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Graves, J.
The defendant in error having sued the company in thp circuit court for Berrien county upon certain claims he made against them for services and commissions, the parties regularly submitted their controversy to arbitrators, pursuant to chapter 217 of the Compiled Laws of 1871, and agreed that the court should render judgment upon the award that should be made.
The submission so made embraced three demands by the defendant in error, namely:
First. Eor commissions (salary) earned by him as express agent at St. Joseph, from the 21st of February, 1870, to the 7th of February, 1871, and turned in by him to the plaintiff in error as a loan, being three hundred and eighty-two dollars and sixty-three cents; also interest thereon.
Second. For services as superintendent of the company from January 1st to December 31st, 1871, at one thousand eight hundred dollars per annum; and,
Third. For services rendered as special commissioner in soliciting and obtaining “aid” and securing right of way in Allegan and Ottawa counties from the 20th of July,' 1870, to the 1st of March, 1871, at one hundred and fifty dollars per month.
The case was regularly heard by the arbitrators and a large amount of testimony was given upon the hearing. Both parties presented written requests for specific findings on particular points, and the arbitrators assumed to comply therewith, and finally, on the last day of July, 1872, they made their award in writing, and reported the same, with the evidence which had been given before them, together with the requests for finding, to the court. In their report to the court they embodied their conclusions upon the several matters respecting which they had been requested to find, and rejected all the claims of defendant in error aside from the claim for salary as superintendent. They however awarded to him twelve hundred dollars on that claim, and directed that he should release the company from all commissions earned by him as express agent while in the service of the company as superintendent at St. Joseph, and from all claim for services for the company as commissioner to obtain aid and right of'way while he was their superintendent. The award also provided that the expenses and charges of the arbitration should be mutually borne and paid by the parties.
In December, 1872, the company moved to set aside the award, but this motion the court, after hearing counsel for the respective parties, denied, and afterwards, on motion of the- defendant in error, confirmed the award, and rendered judgment upon it, that the defendant in error recover of the plaintiff in error the sum awarded, being one thousand two hundred dollars, and the costs of the circuit court to be taxed. The judgment was in the usual common-law form, and contained nothing about the giving of releases.
A formal record was made up pursuant to the statute (Comp. L., § 6903), and the company sued out a writ of error from this court. Iu answer to this writ we have •before us not only this record, but all the evidence given before the arbitrators, the several requests made to them to find specifically on various points, and such findings as they were pleased to make in response to such requests.
The larger portion of the assignments of error take for granted that the evidence and the preliminary findings made pursuant to the requests of counsel, which have come up in this way, are regularly before us as materials to affect the judgment we ought to pronounce upon the writ of error. But this is a mistake. The evidence adduced to the arbitrators, though returned by them to, and filed in the circuit court, was not made a part of, or attached to, the record, and its appearance in the return to the writ of error directed to that court, does not permit us to consider it as an ingredient or branch of the record. And we also think that the preliminary findings made by the arbitrators in response to the requests of counsel, and reported to •the court, are in no just sense an integral part of the substantial award or final judgment of the arbitrators. They are in the nature of interlocutory rulings, and have no fundamental bearing upon the final determination. The ultimate decision upon the claims made constitutes the real award, and it was that decision which afforded the basis for the judgment of the circuit court.
I think it is therefore open to much doubt whether these preliminary findings ought to be considered as matters regularly belonging to the record and returnable as such to a writ of error, but if they ought to be considered as strictly elements of the record, we think they are not open to review in this court. In later times, whatever the practice may have been at an early day, the law has earnestly favored the settlement of disputes in tribunals selected by the parties themselves, and it is very averse to interference with the doings of such tribunals upon any technical grounds, or in any way implying a right in the ordinary courts to bind arbitrators to the nice rules of plead ing and evidence or the principles of decision which control the action of such courts. In case it becomes neces.sary to review the proceedings, the original controversy will not be re-examined on the merits, nor will the real determination be disturbed for mere error of judgment of the arbitrators upon any matter within the scope of the submission, and where no fraud has intervened, nor such a mistake as would seem to have caused the case to be so far misapprehended that the declared result does not express the real judgment of the arbitrators upon it, the determination is conclusive and binding, and the courts will not attempt to revise it. So far then as the assignments of error contemplate a consideration of the evidence, or depend upon the findings which are independent of the real award on which the judgment was given, they must be regarded as raising no question we are at liberty to pass upon. >
This disposes of all the objections except such as relate to a supposed injurious difference between the judgment and the award. . On this subject it is made a ground of complaint that the judgment did not require the defendant in ■error to give to the plaintiff in error releases for the rejected claims, and which claims the arbitrators decided .should be released; and it is also objected that the judgment awarded costs to the defendant in error while the award required that the charges and expenses should be borne mutually.
The last objection was not much insisted on, and is plainly untenable. The supposed incompatibility between the judgment and the award on the subject of costs in fact ■does not exist, since the arbitrators did not assume to to decide upon the recovery of the costs in court, but only the charges and expenses attending the arbitration, and the judgment, in giving costs to the defendant in error, confined them to the costs in court.
In reference to the other ground of objection, that the judgment contained no requirement for the execution and delivery of releases, it is enough to say in this case that if any thing of the kind would have been regular or legitimate in tbe body of the judgment, or if it be conceded that the award required the delivery of instruments of release, which I think is not the case, the insertion of an order requiring them was wholly unnecessary. The claims, and the final decision absolutely rejecting them, together with the explicit decision by the arbitrators that they should be released, appeared clearly and fully upou the record, and when the determination of the arbitrators was confirmed by the circuit court, and when that confirmation was acquiesced in by the defendant in error, the claims were released, and the judgment was a complete bar of record.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Black, J.
(dissenting). This is a taxpayers’ suit, brought against the defendant city and city manager. Tbe bill asks an accounting of “all receipts and disbursements of automobile parking district No. 1 up to tbe present time and that defendants be ordered to make such adjustment in the accounts as may be required to permit compliance with ordinance No 1292.” Tbe salient aim of tbe bill is to restrain tbe city from “diverting” portions of its general funds to support tbe sagging revenues of a municipal parking project which, by resolution of tbe city commission and referred vote of tbe electors, was established in March of 1956.
Tbe bill alleges that tbe defendants have ignored tbe requirements of tbe mentioned ordinance and related sections of tbe revenue bond act of 1933, as amended (CL 1948, § 141.101 et seq., as amended [Stat Ann 1958 Rev and Stat Ann 1959 Cum Supp § 5.2731 et seq.])-, that tbe defendants have failed to properly account for tbe expenses of operating tbe system and have not charged tbe actual expenses of operation thereto; that tbe defendants have failed to fix rates for parking in an amount sufficient to meet tbe financial requirements of tbe ordinance; that tbe defendants have failed “to adopt tbe budget required by both statute and ordinance”; that the defendants have failed to set aside a sum sufficient to provide for tbe payment of tbe next succeeding period “as required by tbe revenue bond act”; that tbe defendants have, in violation of tbe statute and ordinance, pledged tbe faith and credit of tbe city to tbe acquisition of real property which has been placed in tbe parking system; that tbe defendants have placed in tbe parking system properties which were acquired for other purposes; and, in general,, that tbe city’s method of meeting payment of tbe outstanding revenue bonds, by which tbe project was financed per tbe enabling ordinance, has resulted in a constant burden on the city’s general funds, the principal source of which is property taxation.
The bill goes on to allege — this is the gist of the case — that during the course of pre-election activities, “the defendant Walter K. Willman [city manager], and officials and representatives of the defendant, city of Pontiac, represented to the electors of the city of Pontiac in advocating a favorable vote in the referendum that the entire cost of the parking system would be paid out of parking meter revenues, that no funds from general tax revenues would be diverted from other municipal purposes and used in the acquisition, administration, operation, or maintenance of the system and that the establishment of such parking system would cause no increase in the taxes paid by the taxpayers of the city of Pontiac nor any reduction of city assets and general tax revenues available for other municipal services.”
The briefs and appendices tender something which is out of the procedural ordinary, that is to say, one circuit judge as against motion to dismiss held the bill sufficient, while another circuit judge on similar motion held the bill deficient. Defendants’ first motion to dismiss was assigned to Judge Ziem. Upholding the bill, Judge Ziem ruled (May 23, 1960):
“The court has listened to the arguments, the capable arguments, and studied the briefs carefully. And one of the issues which the court feels is raised is, are the plaintiffs proper party plaintiffs. The court feels that this is covered by the case cited by counsel, McManus v. City of Petoskey, 164 Mich 390.
“In answer to that question, the court feels that these plaintiffs are proper party plaintiffs.
“Secondly, does the bill of complaint state a cause of action. Of course, the allegations in the bill of complaint must, for the purposes of this motion only, be accepted as true. The motion to dismiss is heard upon the allegations contained in the bill of complaint. All well-pleaded allegations must be accepted as true, of course, and a motion to dismiss cannot be used to try the case on its merits.
“The court is of the opinion that the bill of complaint raises at least 3 issues which can only be decided upon a trial on the merits. One question is whether the defendants are violating the revenue bond act and Pontiac Ordinance No 1292. Secondly, whether the defendants are, contrary to law, pledging the full faith and credit of the city to provide security for the revenue bonds. And thirdly, whether the defendants are violating the representations made prior to the election to induce a favorable referendum vote; and further, whether the defendants are violating the condition under which the favorable vote was given on the issues in the election.”
An order thereupon entered denying defendants’ said motion. Shortly thereafter defendants filed answer to the bill. The answer does not traverse plaintiffs’ allegation of public representations to the electorate to induce an approving vote. September 20, 1960, defendants filed what is styled as a motion for decree on the pleadings, alleging in substance that “there is no prohibition in the city Ordinance No 1292 or the revenue bond act which restricts or limits the city of Pontiac from using capital improvement funds raised pursuant to a charter provision from using portions of said funds for the acquisition, maintenance, and development of public parking lots in the city of Pontiac.” This second motion was assigned to and decided by Judge Beer. Judge Beer, treating the motion for what it really is — another motion to dismiss the bill — ruled as follows:
“In considering this bill of complaint for the purposes of this motion, I accept its allegations as being truthful and correct. The allegations are well pleaded, but I cannot agree that the bill of complaint states a cause of action.
“State law gives the city of Pontiac the right to establish and maintain a public parking facility. That the city in its legislative discretion and wisdom provides for part of the cost through special revenue bonds to be paid for from parking fees does not stop the city of Pontiac from using general funds or capital improvement funds to better public parking in the area.
“The State of Michigan by legislative enactment has granted cities like Pontiac the right to provide public parking facilities. General funds or capital improvement funds may be used for the cost of establishing and maintaining them. This statutory right may not be denied, forfeited or foreclosed to the legislative authority (city commission) by the adoption of an ordinance like No 1292 providing for part payment of the cost of the parking facility out of special revenue bonds, not a debt of the city.
“There are other questions raised in the bill of complaint concerning the legality of the operation and observance of Ordinance No 1292 by the city authorities, but I hold under this bill of complaint, again accepting their allegations as true upon their face, that the plaintiff taxpayers, not being revenue bondholders, may not question these provisions.”
Prom Judge Beer’s order of dismissal, plaintiffs have taken the present appeal.
One feature of this case suggests, again with illustrative significance, that chancery cases are not properly triable on motion to dismiss supported by ex parte affidavit or affidavits of fact. Here defendants seek, by post-appeal affidavit made a part of their appendix, to bolster the reviewed motion to dismiss. The substance of such affidavit is that defendants have “transferred from the parking meter fund to the general fund” certain items of costs “totaling $76,582.05.”
Such practice is quite out of order. It highlights what has been said before; that the policy of moving to dismiss, without accepting as true all well-pleaded allegations of the attacked pleading, must be discouraged save only in the exceptional instances permitted by Court Rule No 18 (1945).
What plaintiffs’ proofs may disclose, by way of persuasion that equity can and should act, cannot now be assessed or determined. It is sufficient to say, as in Peoples Savings Bank v. Stoddard, 351 Mich 342, 357, that the amply pleaded charges plaintiffs make in their bill are grave; further that possible application of the statutes and authorities cited pro and con by the contending parties can best be determined on a full record.
The bill states a case cognizable by equity. The pleaded issues should have gone to testimonial hearing in accordance with the first order below. The order should be reversed and remanded for such purpose. Costs to abide the final result.
Kavanagh and Souris, JJ., concurred with Black, J.
Edwards, J.
Plaintiffs-appellants’ bill of complaint filed by them as taxpayers has as its principal purpose an attack upon the city’s use of tax money from its general fund to supply land and services for public parking in a district of the city of Pontiac in which a parking system financed by revenue bonds to be paid off by parking meters was located.
Attached to plaintiffs’ bill of complaint as exhibit A was the ordinance establishing automobile parking system No. 1. Its title provided in part:
“To provide for the issuance and sale of revenue bonds to defray a part of the cost of such improvements, enlargements and extensions.” (Italics supplied.)
The circuit judge to whom this cause of action was assigned for trial dismissed the bill of complaint on motion. The ruling of the court on that motion properly dealt with the issues before the court as follows:
_ “In November, 1955, the city of Pontiac established by Ordinance No 1292 a downtown public parking system. It had a defined central business area and geographical limits. The cost of this public improvement was in part to be paid for by revenue bonds. The revenue bonds are not a debt of the city. Instead, revenue bonds are payable out of income from the parking facility.
“The bill of complaint alleges the city of Pontiac since 1955, on many occasions to date has serviced, maintained, improved, expanded and enlarged this, public parking system using therefor the general funds and capital improvement funds of the city. It is further alleged that the city of Pontiac plans to continue such conduct in the future.
“Plaintiffs allege such acts to be in violation of their rights as taxpayers in the city. They claim the revenue bondholders are -being benefited unlawfully by the complained of acts of the city of Pontiac, and that also there is the creation of an illegal surplus.
“In considering this bill of complaint for the purposes of this motion, I accept its allegations as being truthful and correct. The allegations are well plead ed, but I cannot agree that the bill of complaint states a cause of action.
“State law gives the city of Pontiac the right to establish and maintain a public parking facility. That the city in its legislative discretion and wisdom provides for part of the cost through special revenue bonds to be paid for from parking fees does not stop the city of Pontiac from using general funds or capital improvement funds to better public parking in the area.
“The State of Michigan by legislative enactment has granted cities like Pontiac the right to provide public parking facilities. General funds or capital improvement funds may be used for the cost of establishing and maintaining them. This statutory right may not be denied, forfeited or foreclosed to the legislative authority (city commission) by the adoption of an ordinance like No 1292 providing for part payment of the cost of the parking facility out of special revenue bonds, not a debt of the city.
“There are other questions raised in the bill of complaint concerning the legality of the operation and observance of Ordinance No 1292 by the city authorities, but I hold under this bill of complaint, again accepting their allegations as true upon their face, that the plaintiff taxpayers, not being revenue bondholders, may not question these provisions.
“I am saying that revenue bondholders might, in an appropriate action, question some of the charges as contained in the allegations of the bill of complaint as to the fund, for the benefit of revenue bondholders.
“Therefore, I grant the motion to dismiss the bill of complaint.”
Affirmed. Costs to appellees.
Dethmers, C. J., and Carr, Kelly, and Smith, JJ., concurred with Edwards, J.
The bill was filed April 27, 1960.
See CL 1948, § 141.122 (Stat Ann 1958 Rev § 5.2752) .—Reporter.
Upon strength of this self-corrective showing defendants say, in their brief:
“The transfer of $76,582.06 (sic) by the director of finance reduces plaintiffs’ ease to one without legal status. The trial judge was correct in his holding that plaintiffs’ bill of complaint did not state a cause of action.” | [
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Per Curiam.
This ease comes within the rule that courts do not take cognizance of suits instituted merely to obtain judicial opinions upon points of law, especially when the persons invoking the jurisdiction have shown for the purposes of a possibly momentous decision no personal grievance or adverse effect upon their personal or property rights. As was said by Mr. Justice Frankfurter, concurring in United States v. Congress of Industrial Organizations, 335 US 106, 126 (68 S Ct 1349, 92 L ed 1849):
“This prerequisite [that a contest must fairly invite adjudication] may be lacking though there be entire disinterestedness on both sides in their desire to secure at the earliest possible moment an adjudication on constitutional power. It may be lacking precisely because the issues were formulated so broadly as to bring gratuitously before the court that for which there is no necessity for decision, or because they invite formulation of a rule of constitutional law broader than is required by the precise facts of the situation or the terms of the assailed legislation * * * (citing cases).
“We are concerned, laere not with derogatory implications of collusion, nor have we a case of mootness with its technical meaning of a nonexistent controversy. The circumstances bring the present record within those considerations which have led this court in the past Tor its own governance in the cases confessedly within its jurisdiction’ to avoid passing on grave constitutional questions because the questions involving the power of congress come here not so shaped by the record and by the proceedings below as to bring those powers before this court as leanly and as sharply as judicial judgment upon an exercise of congressional power requires.”
For Michigan authorities of like tenor, see Attorney General, ex rel. McRae, v. Thompson, 167 Mich 507; Johnson v. City of Muskegon Heights, 330 Mich 631; Taunt v. Moegle, 344 Mich 683; People v. Dungey, 356 Mich 686, 697; Ohio Department of Taxation v. Kleitch Bros., Inc., 357 Mich 504, 516.
Plaintiffs’ bill, filed by residents and electors of Oakland county’s Pontiac township, alleges that section 361 of PA 1954, No 116, as amended by PA 1956, No 104 (CL8 1956, § 168.361 [Stat Ann 1959 Cum Supp § 6.1361]), violates sections 1, 4, 7, and 8 of article 3 of the Constitution of 1908 as amended, also section 18 of article 8 of the same amended instrument. The bill prays that the defendant members of the township board be restrained “from submitting any public question to a viva voce vote”; “from calling or holding any meeting for the transaction of public-business where any public business is submitted to a viva voce vote of anyone other than duly elected and qualified members of the township board”; “from submitting questions involving the expenditure of public moneys to a viva voce vote, or any other form of voting, of unqualified persons”; “from denying to any qualified elector the right to vote by ballot”; “from denying any qualified elector the right to vote by absentee ballot”, and from “surrendering their constitutional offices and legal powers and responsibilities to any meeting or to any group for any purpose.”
The chancellor’s decree of dismissal is affirmed for 2 reasons. The first is that the plaintiffs have shown no injury to their personal or property rights by the conduct of Pontiac township’s annual meeting of 1960. The second is that this Court must decline consideration of a constitutional question of possibly far-reaching importance upon the “dubious presentation” plaintiffs have made by their bill.
Affirmed. No costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
“See. 361. There shall be an annual meeting of the electors of each township on the Saturday preceding the first Monday in April of each year between 1 o’clock p.m. and 8 o’clock p.m. The time and place of such meeting shall be determined by the township board. The township clerk shall, at least 14 days but not more than 20 days before each such township meeting, post in at least 3 conspicuous places in eaeh precinct and publish at least twice in a newspaper of general circulation in the township, a notice designating the date, time and plaee such meeting shall be held. The electors meeting at the plaee. designated shall transact such business as is usually transacted at township meetings by viva voce vote.
“In all townships having 5,000 or more inhabitants the township board by resolution may, or on the filing of petitions signed by not less than 8% of the registered electors of the township shall, submit the question of the abolition of the annual township meeting to the electors at the next regular primary or election: Provided, That such resolution or petition shall be filed with the township clerk at least 30 days prior to such regular primary or election day. In case a majority of the electors of the township voting on the proposal, shall vote for the abolition of the annual township meeting, the annual township meeting in such township shall be abolished.” | [
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Souris, J.
The late Honorable Thomas N. Robinson, sitting as a visiting judge in the third judicial circuit, granted a decree enjoining defendants from enforcing against 163 of defendant city’s employees for whose benefit plaintiffs instituted this class suit a city ordinance requiring said employees to establish bona fide residences within defendant city. The chancellor found the ordinance to be arbitrary and unreasonable as it was sought to be applied to said 163 employees of defendant.
The ordinance was adopted by the city of Highland Park in 1956 and was entitled, “An ordinance to require that all employees in the service of the city of Highland Park establish and maintain a bona fide residence within the corporate limits of the said city.” The entire ordinance is printed in the margin.
_ In 1941 the defendant city’s council adopted a resolution authorizing the city’s department heads, within their discretion, to permit city employees working under their supervision to reside outside the city upon proper showing that such employees were unable to pay the high rentals charged in Highland Park during the then current war emergency. In 1951 another council resolution was adopted which required all nonresident employees of the city to establish bona fide residences within the city within 1 year. This latter resolution provided that failure to comply with its provisions would be cause for discharge, but it provided for an appeal to the city council, in the case of hardship, for an extension of 6 months. Evidence presented at the trial disclosed that the city took no steps to enforce this resolution.
In 1956 the ordinance involved in this case was adopted pursuant to police powers of the city and not by virtue of express charter or statutory authorization.
At the time of enactment of the ordinance, plaintiffs claimed there were approximately 250 of defendant city’s employees who lived beyond its boundaries, but by the time the case was tried the number of such employees had been substantially reduced, either by discharge or resignation from employment or by acquisition of residence within the city’s boundaries. It was stipulated that at the time of trial there were 163 of defendant city’s employees, nonresidents in the city, in whose behalf plaintiffs were acting. It was plaintiffs’ claim in their bill of complaint and before the trial court that the ordinance as sought to be enforced against said employees was arbitrary and unreasonable, violated the due process provisions of article 2, § 16, of the Constitution of the State of Michigan (1908) and of the Fourteenth Amendment to the United States Constitution, and violated said employees’ right to equal protection of the laws as guaranteed by article 2, § 1, of the Constitution of the State of Michigan and by tbe Fourteenth Amendment to the United States Constitution. It was also plaintiffs’ claim that, by defendants’ failure to enforce the council resolution of 1951, defendants were estopped to enforce the 1956 ordinance.
Much testimony was taken by the chancellor from a very large number of witnesses, many of whom were nonresident employees of defendant city, who testified concerning their efforts to acquire residence within the city in compliance with the apparent requirement of the ordinance. Other witnesses were offered by both sides who testified concerning' the availability, or lack thereof, of adequate housing within the city at prices or rentals within the range of salaries paid city employees. There was evidence from which it appears that the population of the city of Highland Park declined, between the years 1940 and 1950 and from which it is reasonable to infer a further decline during the period subsequent to 1950. However, there was also testimony indicating that changes within the city resulted in a drastic curtailment of residential facilities subsequent to 1940. For example, at the time of trial there were fewer than 50 vacant lots, most of them unsuitable for home construction because of their location near industrial properties. There is also testimony to the effect that a substantial number of residences were demolished in recent years for expressway construction and commercial and industrial construction. Highland Park is a city consisting of 2.9 square miles completely surrounded by the cities of Detroit and Hamtramck. There is no practical way in which it can acquire additional residential property.
The employees involved in this litigation are civil service employees whose gross pay ranges from $60 to $70 per week. Many of them are employees of the city’s general hospital. The testimony indi cated that most of the few residences available for rental at the time of the adoption of the ordinance were not available to the employees either because the rentals asked were higher than such employees could afford or the landlords refused to rent their property to tenants with minor children.
The chancellor’s opinion succinctly states his findings, based upon which he concluded the ordinance was arbitrary and unreasonable, and therefore unconstitutional, as it was sought to be applied against the 163 civil service employees represented by plaintiffs.
“The residences are old, upwards of 75% being from 35-45 years of age, with few under 20 years old, mostly large and expensive to maintain, and most of them in need of repairs. The property of the city runs to industrial commercial enterprises rather than residence facilities.
“The testimony of witnesses for the city of Highland Park makes no serious contention that plaintiffs’ proofs do not represent the true situation, but the testimony of defendants’ witnesses, including its personnel director and 2 real-estate operators, seems rather to accentuate than decrease the force of plaintiffs’ testimony.
“Granting that the burden is on those seeking to establish the invalidity of the ordinance, it appears that no adequate survey, if any at all, has been shown to have been made by the city, or has other testimony been offered by it, which could serve to offset the testimony of many of the employees, and that of other witnesses, all of which appears overwhelmingly to establish an almost total lack of adequate facilities to accommodate the employees required to obtain such within 90 days under the ordinance.
“This court is therefore obliged to agree with plaintiffs. There is no room to doubt that the city of Highland Park cannot accommodate an influx of 163 employees and their families so as to furnish adequate housing conditions for all of them, in suit able surroundings and at rentals as their respective income justify.
“To this extent the ordinance is unreasonable in that it presents an alternative that is impossible to attain, and that, under penalty of separation from service in the status of resigned employees. The choice under the proofs as to whether employees shall reside in Highland Park or resign, is not a real choice. It is rather, by reason of inadequate facilities that offer no opportunity of choice, a blunt method of discharging civil service employees wholesale without cause.
“Defendants argue that the city has the power to pass the ordinance; that the city is not estopped; that there is no vested right in a city employee to his job; that the employee has no vested right to a pension; that a resigned employee does not lose his old age or social security benefits; and that a court may not inquire into the hidden motives which may move a legislative body to exercise a power conferred on it.
“It is not necessary to disagree with these arguments nor to decide these points where the proofs so overwhelmingly establish the present inadequacy of housing accommodations, in the face of which these law arguments may be conceded inasmuch as their disposition is not necessary for the disposal of this particular controversy. It may be said, however, that the court, in the absence of any express charter provision requiring employees to reside in the city, and where reliance here is placed on general home-rule powers conferred by statute, is justified in considering and passing upon, as it does here, the reasonableness of the municipal ordinance.”
With the chancellor’s findings we are in complete agreement, there being ample evidence in this record to support such findings. Even defendants do not directly challenge the chancellor’s right to consider and pass upon the reasonableness of the ordinance as he did, bnt defendants instead take the position before us on appeal that emergencies may require the enactment of ordinances under the police power which would be held improper in normal times. Defendants refer, of course, to the “international situation that has existed between our country and certain foreign nations since the end of the Korean War”, as to which defendants ask that we take judicial notice. We need not pursue this matter far, for it was not an issue pleaded or otherwise presented to the trial court, nor is it otherwise an issue meriting our consideration at this time.
That the chancellor correctly stated the law of this State to be that the court may consider and pass upon the reasonableness of a municipal ordinance based upon general home-rule powers and not specifically authorized by charter or statute is established by 1426 Woodward Avenue Corp. v. Wolff, 312 Mich 352. See, also, People v. Armstrong, 73 Mich 288 (2 LRA 721, 16 Am St Rep 578); People v. Gibbs, 186 Mich 127 (Ann Cas 1917B, 830); Harrigan & Reid Co. v. Burton, 224 Mich 564 (33 ALR 142); People’s Appliance & Furniture, Inc., v. City of Flint, 358 Mich 34; Palmer Park Theatre Co. v. City of Highland Park, 362 Mich 326.
The chancellor determined only that the ordinance could not be enforced against the 163 employees of defendant city who were then nonresidents thereof. He did not determine, nor need we determine, the constitutionality of said ordinance as it applied to the many employees of defendant who were then residents of the city and who were required by the ordinance to maintain their residences within the city.
In view of our conclusion that the decree must be affirmed on the basis that the ordinance as it applied to the employees represented by plaintiffs was uncon stitutional because it was arbitrary and unreasonable, it is unnecessary for ns to consider and determine tbe other issues raised by defendants, both in tbe trial court and on appeal.
Decree affirmed. No costs, a public question being involved.
Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred with Souris, J.
Dethmers, C. J., and Carr, J.; concurred in result.
“Seo. 1. The provisions of this ordinance shall apply to all employees in the service of the city of Highland Park.
“See. 2. All employees in the service of the city of Highland Park who are not now bona fide residents of the said city shall be required to establish a bona fide residence within the corporate limits of the city of Highland Park within 90 days from the effective date of this ordinance.
“Sec. 3. All employees shall be required to maintain a bona fide residence within the corporate limits of the city during the period of their employment.
“Sec. 4. Any employee who fails to establish a bona fide residence within 90 days from the effective date of this ordinance and any employee who now or in the future fails to maintain a bona fide residence within the corporate limits of the city of Highland Park shall be separated from the service of the city immediately or as soon thereafter as a qualified resident can be appointed to the position held by the nonresident employee.
“Sec. 5. When in the interests of the city service, due to a lack of qualified applicants, it becomes necessary to recruit employees without the city of Highland Park, such an employee shall be required to establish a bona fide residence within 1 year from the date of their appointment to the position. The appointment of a nonresident to a position in the classified service shall first be approved by the civil service board.
“Sec. 6. All employees who are separated from the city service under the provisions of this ordinance shall be deemed to have resigned and such an entry will be made upon their personnel records.
“Sec. 7. If any section, sentence, clause or phrase of this ordinance is, for any reason, held to be void, such decision shall not affect the validity of the remaining portions of this ordinance.”
See CL 1948, § 117.1 et seq., as amended (Stat Ann. 1949 Rev § 5.2071 et seq., as amended).—Reportes. | [
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Black, J.
Pursuant to resolution of the Pontiac city commission the proposal in question, to amend the Pontiac city charter, was submitted to the electors at the April, 1960, election. The purpose of the proposal appeared on the ballot as follows:
“Statement of purpose — Shall chapter 3 of the city charter be amended by repealing sections 51 to 58 except sections 53 and 57 and by adding sections 59 to 62 inclusive; to provide for the appointment and removal of the chief of police and dismissal of police officers; to remove the board’s power to adopt rules for duties of police officers; to authorize the chief of police to define duties of officers and prescribe rules for performance thereof and impose penalties for violations; to continue in office the present trial board; and to provide for citizen complaints against officers.”
The proposal was adopted, 4,606 electors voting in favor, and 4,043 voting against.
By this bill for declaratory relief plaintiffs assail the apparently adopted amendment, alleging that it is duplicitous under section 21 of the home-rule city act and that it should have been submitted to the electors in separate portions. Judge Ziem held against plaintiffs. They have appealed.
'Plaintiffs contend the proposal embraces 3 separate subjects, as follows:
“1. The amendment embraced the establishment of a trial board.
“2. It concerned the question of the removal of the chief of police from the protection of the trial board and his placement under the city manager, so. far as his right to tenure is concerned.
“3. It involved the city manager’s rights to fix and determine the number of police and fire department personnel, and the adoption of a scheme for the accomplishment of reduction of personnel in these departments for reasons of economy.”
We are referred to 3 cases, with respect to which counsel draw different conclusions as they accept or reject validity of the amendment as proposed and approved. These cases are Kelly v. Laing, 259 Mich 212; Michigan Public Service Company v. City of Cheboygan, 324 Mich 309; and House v. City of Saginaw, 334 Mich 241. In the Kelly Case it was said generally of said section 21, referring to the section as it stood at the time (CL 1929, § 2257 [Stat Ann § 5.2100]):
“It was the intention of the legislature to provide for orderly change of the charter, not to encourage or sanction confusion in city government. To carry out its intention and to avoid absurdity of result, it is necessary that all proposals pertaining to the same subject and directed to the same purpose be treated as 1 amendment, as they are in fact, and be voted on as such, although they contemplate change of more than 1 section.” (p 215)
This quotation stands today as an excellent guide for relevant application of said section 21. The quoted bolstering amendment of the section, employing as it does the expression “more than 1 related proposition,” makes such conclusion clear if clarity was not present before. So it remains necessary that amendatory proposals pertaining to the same subject and directed “to the same purpose be treated as 1 amendment” and “voted on as such.”
The amendment plaintiffs would invalidate pertains to the same subject and is aimed to the same purpose, that of administrative and disciplinary control of the police department by municipal authority. It does not embrace “more than 1 related proposition” since the allegedly “slipped in” authority of the city manager to fire the police chief is well within the objective scope of the unitary subject and purpose I find as stated above.
Even if there, were fair doubt or fair difference of opinion respecting the presented question, Judge Ziem’s decree should be affirmed for reasons considered and applied under the heading of questions 3 and 4 in the Cheboygan Case. No effort was made, by these plaintiff members of the city commission, to seek — prior to election day — relief against the allegedly improper submission as one of separately submissible propositions. Courts weigh these questions with different scales after, distinguished from before, election day. See quotations and conclusions of the Court in the Cheboygan Case, starting at page 337.
I vote to affirm, without an award of costs.
Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Kavanagh, and Souris, JJ., concurred.
Section 21 of the home-rule city act (CLS 1956, § 117.21 [Stat Ann 1959 Cum Supp § 5.2100] provides in part:
“Any proposed amendment shall be confined to 1 subject and in case a subject should embrace more than 1 related proposition, each proposition shall be separately stated to afford an opportunity for an elector to vote for or against eaeh such proposition.” | [
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Black, J.
(after presentation of the facts). We agree with counsel for plaintiff that the stated question should be answered in the affirmative. Within the meaning of one-sentence section 26, all of these elections were held “hereunder.” This leaves doubt only with respect to the meant scope of that employed word “locality.” Such doubt must be resolved by examination of the section from its 4 corners, and by attributing to the legislature the intent of linking “the legislative body” with “the locality where held” so that one shall determine identity of the other. The section may be made operable only by holding that there can be but one legislative body for “the locality where held” and by concluding that this township, having the only legislative body the judicial gaze may reasonably and pertinently distinguish, is the “locality” which by section 26 became obligated to plaintiff.
The defendant township was originally liable as. held below. The defendant city and the defendant township are liable together per quoted agreement of the parties. This calls for affirmance. It is so ordered. No costs.
Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Black, J.
Mr. Justice Smith writes:
“Under the view we have taken of the case it is-pointless to discuss the difference, if any there be in reality, at this stage in the judicial process, between (1) an appeal as of right, and (2) an application for leave to appeal involving ‘a construction of the Constitution or of any statute of this State, or any matters of great public importance * * */ which application we are required to grant.” (The emphasis is that of the present writer.)
My learned Brother leans directly on an old statute, the most recent amendment of which was forced by the declaration of separational independence found in People v. Stanley, 344 Mich 530. The amendment reads (CLS 1956, § 650.1 [Stat Ann 1959 Cum Supp § 27.2591]) :
“Sec. 1. Writs of error upon any final judgment or determination, where the judgment exceeds in amount $500.00, or where judgment has been rendered upon a directed verdict for defendant in cases involving a claim of more than $500.00, may issue, of course, out of the Supreme Court, in vacation as well as in term, and shall be returnable to the same Court; and in all other cases such writ may issue in the discretion of the Supreme Court or any justice thereof upon proper application: Provided, however, That if said case involves a construction of the Constitution or of any statute of this State, or any matters of great public importance or involves the contest of a will, such application need only show such fact and, when filed, the writ of error shall issue of course.”
So we are “required” to grant all applications— whatever their conclusionary form or want of judicial verification - — counsel may choose to make under this statute. Who “requires” such processual obedience by this Court? Lo, it is the legislative branch. I disagree.
This is the tale of 2 reviews of twice-unsuccessful motions for summary judgment in each of the captioned cases. It would end, if my Brother’s opinion prevails, with the floodgates opened wide for appeals of right in law cases and an abject surrender of judicial power to the legislature. With the legisla ture thus dictating the course and extent of appellate judicial process, it would not be difficult to foretell continued gleeful death in the legislature of any measure designed to provide overdue intermediate assistance for this highest Court of a State. Our only available means of relief, from today’s and tomorrow’s overload (that of requiring application and grant of leave to review all matters we may lawfully review), would be lost this day if our majority should decide to haul down the constitutional flag article 7 has entrusted to our membership.
It is hardly necessary to add that a continuously overloaded appellate court does not do as good precedential work as otherwise it might do. “The whole swarm of rulings” predicted by Mr. Justice Graves (see full quotation, infra ) would be brought here for review, once the word is professionally passed that appeal by statutorily “required” writ of error is available generally to all who are willing to write, into a “claim” of appeal, that a question of constitutional or statutory construction, or “of great public importance,” is involved. This surely would mean open advent of the cussed and discussed “one-man opinion.”
These suits originated in Detroit common pleas. They are based on awards made by a New York arbitrator, allegedly on authority of separate and like contracts made in New York by and between the plaintiff and each defendant. Each award was confirmed by judgment of a New York trial court. The confirmed award to plaintiff against defendant Grier amounted to $749.60. The confirmed award to plaintiff against defendant Trecot was in the sum of $908.20. No process was served on the defendants in or from New York State save only as eontentiously indicated in the respective opinions of Judge Neuenfelt in circuit and Justice Smith here.
The cases having come to issue in common pleas, plaintiff filed motions for summary judgment against each defendant. Judge Yokes of common pleas denied both motions. Plaintiff duly applied to the circuit court for leave to appeal from the orders of denial. The circuit court granted leave in each instance. In circuit plaintiff moved again for summary judgment against each defendant. That court denied both motions and ordered remand for further proceedings under section 21 of Court Rule No 77 (1945). Plaintiff, deigning no application for leave this time, arrives upon claim of right by a captioned “claim of appeal” reading (in each case) as follows:
“American Eutectic Welding Alloys Sales Co., Inc., a foreign corporation, plaintiff, claims an appeal from the order entered March 4,1960, by the Honorable Lila M. Neuenfelt, judge of the circuit court for the county of Wayne, denying summary judgment. Appellant takes general appeal pursuant to PA 1953, No 4, as amended, and other applicable laws and statutes of the State of Michigan in such cases made and provided. Appellant shows that the effect of the order appealed from is to deny full faith and credit to a judgment of the supreme court of the State of New York upon which plaintiff’s cause of action is based.”
We cannot evade this challenge of the judicial power. Either we have authority — and duty — to insist on due compliance by all appellants with the applicable procedures of 31-year-old Court Rule No 60 (1945), or the legislature has power to suspend those procedures when that body chooses so by a measure “requiring” grant of an “application” for leave to appeal or constitutional writ. Such is the real issue before us, neglect of which is surely due to seat the legislature firmly on the judicial steed. Until now, we have not been unhorsed. “Spurs can only be applied by a rider and the legislature does not occupy the judicial saddle.” (Wiest, J., concurring in Stepanian v. Moskovits, 232 Mich 630, 639.)
I stress in limine this stark fact: No judgment for or against the plaintiff in either of the 2 cases has as yet been entered in either of the 2 courts below. Thus, under the old practice as well as the new, denial prior to trial of an interlocutory motion has never been reviewable by issuance and return of a writ of error.
In Hermesmeyer v. Northwestern Investment Co., 254 Mich 384, the defendant filed motion for summary judgment. The motion was denied, and defendant claimed appeal of right. The Court said:
“No application for leave to appeal was made to this Court, and no such leave has been granted. The appeal must therefore be dismissed. As this question is not raised by counsel for appellees, no costs will be allowed.”
In Quail v. Cole, 260 Mich 642, the appellant claimed appeal of right from another nonfinal order (setting aside default and judgment) in a law case. Relying on this same statute (cited then as CL 1929, § 15491) to avoid the tedium and risk occasioned by an application for leave to appeal, the appellant was met bluntly this way:
“The statute relates to final judgments, and plaintiff has no judgment, but seeks direction, by this Court, to have his judgment reinstated. The mentioned rules, while requiring mandamus to be termed an appeal, do not change the law that it is an original writ, and that it does not issue without application and allowance.
“Leave to prosecute an appeal in the nature of mandamus was necessary and was not obtained. We, therefore, sua sponie, dismiss the appeal.”
That is what we should do here, sua sponie, if for no other reason than that of fairness to the hundreds of counsel who do comply with Court Rule No 60 (1945) when review of before-trial orders in law cases is sought.
Even if the Constitution — not some statute — “required” that we grant applications for writs of error, it seems to me that we should insist that the appeal-bent party submit an application under Court Rule No 60, just for the pro forma appearance of things in the records of a visibly bemused high court. When the language in question first appeared in said section 1 (by the act of 1917 ), implemental Court Rule No 59 was at once adopted. Until superseded in 1931 by like requirement of Court Rule No 60, said Rule No 59 made clear the position of this Court that the statute required an “application” as a condition of its invocation.
“Rule 59. Any one desiring to secure a writ of error under the provisions of Act No 172 of the Public Acts of 1917, shall, within 30 days from the entry of judgment, prepare a concise statement of what is involved in the case and the points relied upon and notice the same on the opposite party for settlement before the circuit judge. The statement when so settled shall be the basis of the application to this Court.
“To take immediate effect.
“Adopted September 28, 1917.” (199 Mich xxx.)
Now let us assume that this plaintiff has filed formal and Rule No 60-compliant applications for writs of error to review Judge Neuenfelt’s orders. Such applications would be quite out of order because the constitutional writ of error is not and never was employable to review denial of interlocutory motions.
“The plaintiff’s attorney raises the point that the ease is not one which can be reviewed upon writ of error, and in this view we agree. The proceedings were interlocutory, and not final, and resulted in no final judgment against defendant. The province of a writ of error is to bring up for review final judgments or determinations, and it is not employed to bring up interlocutory decisions or discretionary orders made pending litigation. This has been declared in numerous decisions of this Court, some of which are the following: Holbrook v. Cook, 5 Mich 225; Chaffee v. Soldan, 5 Mich 242; Conrad v. Freeland, 18 Mich 255; Adams v. Church, 22 Mich 79; Polhemus v. Ann Arbor Savings Bank, 27 Mich 44; Comstock v. Wayne Circuit Judge, 30 Mich 98; Miller v. Rosier, 31 Mich 475.” Brady v. Toledo, A. A. & N. R. Co., 73 Mich 457.
“If the granting or refusing of an interlocutory motion can be so worked into the record as to au thorize error to be assigned on it, by a mere statement in tbe decision like that made by tbe court below in this instance, then the common-law compo^ sition of the record and the generally admitted scope of a writ of error can be entirely changed by what in time will become a mere form, and the whole swarm of rulings upon pure practice questions and on points rightly and strictly depending on mere judicial discretion will be brought here for review. But we are satisfied that no such jurisdiction is conferred or ought to be.” Polhemus v. Ann Arbor Savings Bank, 27 Mich 44, 51.
The real trouble with meritorious review of these denied motions is that we are left with a complete want of adversary or independent submission of a grave and epochal question of responsiveness of a defendant to process allegedly served in Michigan by mail from another State; a question Justice Smith himself characterizes as “one of first impression in this jurisdiction.” We have no brief from these manifestly disinterested appellees and no brief from counsel amicus. Better, I suggest, that these cases be permitted their regular course in Detroit common pleas in order that an adequate record of fact and due trial come here for proper determination of the ever-present first question in appealed cases; whether the testimonially assembled facts do or do not present the questions of law the appellant would have us decide. Such is the only safe course for a State high court of last resort. What we write now without due care and thorough briefing may errantly decide hundreds and hundreds of cases in law office and lower court before the same question comes here again on sufficient presentation.
To summarise: An order denying motion for summary judgment is not final, either in circuit or common pleas. When, in such instance of denial, a trial of presented issues ensues and judgment is en tered against the unsuccessful movant, he may review of right the final judgment and, by that means, test the order of denial. If he desires an earlier test, he must apply for leave under the rule.
Suppose this plaintiff, following entry of these orders in circuit, had unsuccessfully sought leave to appeal therefrom. Would our orders denying leave foreclose ultimate review of that which we at the time determined not to review? The answer is found in Malooly v. York Heating & Ventilating Corp., 270 Mich 240; Great Lakes Realty Corp. v. Peters, 336 Mich 325, and the opinion signed by Justices Smith, Edwards, Voelker, and Black, in Hack v. Concrete Wall Co., 350 Mich 118, 129, 130.
I would dismiss plaintiff’s appeals for want of application and grant of leave. Defendants, having filed no brief, should not be allowed costs.
Dethmbrs, C. J., and Carr, Kelly, and Kavanagh, JJ., concurred with Black, J.
See the presently quoted form of application we are “required” to grant.
Const 1908.—Reporter.
Polhemus v. Ann Arbor Savings Bank, 27 Mich 44, 51.—Reporter.
“The greatest bane of appellate courts today, in my judgment, is the so-called ‘one-man’ opinion. I am referring to the situation where an opinion purports to be the decision and reflect the thinking of all of the judges on the appellate court but which in faet represents the view and work essentially of just one of the judges. Of all the defects in our appellate practice it is the most insidious for the simple reason that few lawyers or judges and virtually no laymen are even aware that it exists.” Chief Justice Vanderbilt, writing in 26 Cincinnati L Rev, Improving the Administration of Justice, p 257.
“Criticisms of appellate court decisions sometimes are that they rest on one-man opinions. If the judges are too busy, they may be driven to concentrating on the eases assigned to them for opinion writing, accepting, more or less as of course and without the necessary study and scrutiny, the decisions and opinions of their brothers in the other eases. This makes for one-man decisions, one-man opinions. There is no object in swapping what may be the erroneous decision of a trial judge for what may well be the equally erroneous decision of one appellate judge. What the parties and public want and are entitled to have, on appeal, is the composite judgment of the entire group of wise, skilled, and trained men, possessed of judicial temperament, who have been selected to sit on the court of last resort. In turn, the latter must not be placed on a beltline production basis.” Chief Justice Dethmers, writing in The Annals of American Academy of Political and Soeial Science, March issue, 1960, p 162.
The reader will note the completely duplieatory requirements of Court Rules Nos 60 and 77. It is passing strange that this plaintiff applied in circuit for leave to review denial of these motions and yet has seen fit to omit application here for leave to review circuit court denial thereof. [For Court Rule No 77, see 326 Mich lvi.—Reporter.]
PA 1917, No 172, quoted with other amendments of said section 1 in In re Fitch Drain No. 129, 346 Mich 81, 85, 86, 87. | [
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Dethmers, C. J.
Plaintiffs brought this action to' enjoin defendant county road commission from absolutely abandoning that portion of a county road which constituted a crossing over defendant railroad company’s right-of-way and tracks and both defendants from relocating the crossing at a place approximately 1,000 feet up the tracks. From judgment on the pleadings for defendants, plaintiffs appeal here.
From plaintiffs’ bill of complaint and attached exhibits it appears that they are property owners In a platted resort area on the west side of Mullet lake; that a county road runs north and south along the west side of the platted area; that immediately adjacent to the west of that road and running parallel therewith is the defendant railroad company’s right-of-way; that adjacent thereto on the west is highway US-27; that an east and west county road, running through the platted area, extended west across the said north and south county road and the adjoining railroad tracks to highway US-27 at the old crossing location here involved; that the new crossing runs similarly from the north and south county road west across the tracks to highway US-27, at a point some 1,000 feet north of the old crossing; that plaintiffs have access from their properties to highway US-27 over the east and west and the north and south county roads and new crossing in like fashion as they had before over the old crossing. Their bill of complaint contains no allegations that plaintiffs own any property adjacent to or through which the abandoned crossing ran nor that plaintiffs’ access to highway US-27 from their properties is diminished by the relocation.
Plaintiffs’ real objection to the relocation seemed to be that they owned and operated cabins or motels for rentals and feared that with the crossing relocated at a point further removed from their properties they might suffer a decrease in such rentals. They challenge the absolute abandonment action of the road commissioners on the grounds that the board had no valid petition before it on which to act, that it failed to serve notice on them of a hearing on the proposed abandonment and actually held no such hearing and that its finding that the relocation was necessary as a safety measure was unfounded.
CLS 1956, § 224.18 (Stat Ann 1958 Rev § 9.118), ■empowers boards of county road commissioners to absolutely abandon and discontinue any county road or part thereof by resolution. It requires no petition or hearing except when buildings are located along the portion to be discontinued, and no such fact is alleged in plaintiffs’ bill.' In cases calling for a hearing the section- provides for service of notice of such hearing “on the owners of record and occupants of lands through or adjoining which it is proposed to absolutely abandon and discontinue such road.”
In Kimball v. Homan, 74 Mich 699, the discontinuance of a portion of an alleged highway by a township commissioner of highways was under consideration. The governing statute, referred to in the opinion, was How Stat § 1298. It also contained language, as in the statute here in question, requiring notice to be served on the “owners or occupants of lands through or adjoining which it is proposed to * * * discontinue such road”. This Court said (pp 702-704):
“The statute which allows highways, or parts of highways, to be discontinued, requires notice to be given to owners and occupants of lands through or adjoining which it is proposed to discontinue the road. The natural meaning confines this adjacency to the part discontinued. * * * It is evident that in view of the statutes the persons who may complain of the discontinuance of a way must be such as are directly affected in their convenience of access to their property, and who are liable to lose their immediate means of communication. There must be some limit to the extent of country within which the grievance is to be regarded as confined, and this has been fixed by the legislature in the manner specified. How Stat § 1298. These persons are the only ones deemed parties to the controversy, and the only ones, therefore, who can seek a review. * * *
“When the law has distinctly declared that none but adjacent owners and occupants shall be notified, it has thereby declared that those not so situated need not be regarded in the action, and cannot complain of it. * * *
“If petitioner had (as we think he had not) a possible interest in the matter, it is not such that we should be justified in helping it out, under the circumstances of the present case. The only difference between his present and past conditions is that instead of going north into Grand Rapids by an unbroken, straight line, he has to turn at Home street, and select either of 2 northern roads in the. same direction, but a little distance off. This is not a tangible grievance to his convenience of passage.”
In Tomazewski v. Palmer Bee Co., 223 Mich 565, 569, 570, this Court said:
“It is a well-settled rule that a lot owner’s right to object to the vacation of a part of a street depends upon whether his lot abuts upon or comes in actual contact with the vacated portion, or access to his lot is entirely or materially cut off by reason of the vacation. That he may be inconvenienced or that he may have to go a more roundabout way to reach certain points does not bring to him any injury different in kind from the general public but only in degree. If means of ingress and egress are not cut off or lessened in the block of the abutting owner but only rendered less convenient because of being less direct to other points in the city and made so by the vacation of the street in another block such consequence is damnum absque injuria.”
See, also, Phelps v. Stott Realty Co., 233 Mich 486, and Cady v. Oliver Farm Equipment Co., 259 Mich 161.
Under the holdings in these cases plaintiffs’ bill of complaint does not set forth such an interest in them as to entitle them to notice, a hearing or review.
Affirmed. Costs to defendant county road commission.
Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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GLEICHER, J.
These wrongful death actions arise from a sledding accident that took the life of 11-year-old Chance Nash. The accident occurred at Duncan Park in Grand Haven. The questions presented in these consolidated appeals center on the ownership of Duncan Park and whether the governmental tort liability act (GTLA), MCL 691.1401 et seq., bars plaintiffs claims.
To answer these questions we begin by interpreting a document drafted 100 years ago. The circuit court ruled that this instrument transferred the park property from Martha Duncan to the city of Grand Haven. We conclude that the document created a trust that conveyed legal ownership of the land to three trustees rather than to the city.
The more difficult issue is whether the Duncan Park Commission (the Commission), which was established pursuant to Martha Duncan’s trust, constitutes a “political subdivision” of the city of Grand Haven. Political-subdivision status would cloak the trustees and the Commission with governmental immunity. Because the Commission is a private organization empowered by the trust to manage the park without any governmental oversight, we hold that it may not invoke governmental immunity to avoid liability for Chance’s death. Accordingly, we reverse the circuit court’s contrary decision and remand for further proceedings.
I. THE HISTORY OF DUNCAN PARK
The land comprising Duncan Park was originally owned by Martha and Robert Duncan. Martha Duncan inherited the land as her sole property after Robert’s death. On October 22,1913, Mrs. Duncan executed a trust deed naming herself as the “Party of the First Part” and identifying as the “Parties of the Second Part” three individuals who would serve as “Trustees for and in behalf of the people of the city of Grand Haven.”
In the next paragraph, the trust deed states, in relevant part:
[Mrs. Duncan], desiring to transfer the land hereinafter described to the PEOPLE OF THE CITY OF GRAND HAVEN, in order to perpetuate the name of her deceased husband... has GRANTED, BARGAINED, SOLD, REMISED, RELEASED, ALIENED AND CONFIRMED, and by these presents does sell, remise, release, alien, confirm and convey unto the Parties of the Second Part and to their successors in office forever, all that piece of land situated in the City of Grand Haven... known and described as follows ____
The third paragraph sets forth the legal description of the property. The fourth paragraph, the habendum clause, states that the property has been transferred “unto the said parties of the Second Part, and their Successors, forever in fee, upon the trusts, nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared[.]”
In the next several paragraphs, the trust deed conditions the land grant on: (1) the Grand Haven Common Council’s acceptance of the dedication, (2) the Common Council’s creation of a “Park Board” known as “The Duncan Park Commission,” composed of the three named trustees granted full control and supervision of Duncan Park, and (3)
The above-described premises shall be at all times known and described as “DUNCAN PARK” and said described parcel of land shall always be held and occupied by said grantees for and in behalf of the Citizens of the City of Grand Haven as a public park, for the use and enjoyment of the citizens or inhabitants of Grand Haven ....
The fourth condition outlawed liquor in the park, and the fifth required the city to “provide means for the care and improvement” of the park. Notably, this provision also states:
But it shall be the right and duty of the said TRUSTEES to remove all dead, dying, or unsightly trees, to thin out the undergrowth, wherever necessary, to remove dead branches, noxious weeds, or other rubbish, and in short, keep said park in as neat and trim a condition as the means at their command wall allow.
The assignment of active duties to the trustees signifies most tellingly that the drafter crafted a trust. As discussed in greater detail later in this opinion, the fifth provision insulated the trust from a legal challenge under the Michigan statute of uses; without it, the trust was subject to execution, i.e. nullification, as a purely passive device.
The sixth condition provided that “[n]o tax for improvements” on a portion of the park could be levied against Mrs. Duncan. The seventh appointed the “Trustees” as “The Duncan Park Commission,” reiterating that the trustees and their successors would “have the exclusive supervision, management and control” of Duncan Park. The eighth provision states:
This Deed is given on the express condition that the Common Council of the City of Grand Haven shall, on the acceptance thereof, pass an Ordinance satisfactory to the Grantor, creating a “DUNCAN PARK COMMISSION” as herein provided, and providing for its perpetuation in the manner herein specified; also providing for the care and maintenance of said DUNCAN PARK. The repeal of said Ordinance, or any part thereof, at any future time, shall render this Deed null and void and make the same of no effect.
The ninth and final provision states that if the Duncan Park Commission should “cease to exist,” the Ottawa Circuit Court shall “take charge of this trust and appoint a suitable ‘DUNCAN PARK COMMISSION’ to fulfill and carry out the terms of the trust for the benefit of the Citizens of the City of Grand Haven[.]”
On October 20, 1913, the city enacted an ordinance creating “The Duncan Park Commission,” consisting of the three trustees. Section 5 of the ordinance provided:
It is the definite purpose of this ordinance to create and establish a permanent commission, which commission shall have the power and authority at all times to manage and control that plat of land deeded to the three trustees before mentioned for and in behalf of the citizens of the City of Grand Haven, by Mrs. Martha M. H. Duncan, for public park purposes, in accordance with the deed of gift of said park.
Since 1913, the trustees have selected their own successors and Grand Haven’s mayor has duly appointed them to the Commission. The record substantiates that the city does not expend any funds to operate or maintain Duncan Park.
In 1994, the city’s liability insurance carrier communicated to the mayor that “since the City and its residents were using the park, we could cover it for property and liability purposes.” The insurance company declined to extend coverage to the Commission, however, without “some type of agreement.” The city manager proposed that the city and the Commission enter into a “license agreement,” which would require the city to provide general liability insurance coverage for the Commission and the park “in return for use of the park.” “[A]s a housekeeping matter,” the city manager asked the city council to readopt the 1913 ordinance.
The license agreement was drawn between the Commission “acting as trustees for and in behalf of the people of the City of Grand Haven, Michigan” (the licensor) and the city of Grand Haven (the licensee). It states, in relevant part:
A. The Licensor controls certain real property located in the City of Grand Haven... commonly known as “Duncan Park”[.]
1. License. The Licensor grants to the Licensee, and the Licensee accepts from the Licensor, a non-exclusive, revocable, non-transferable license to use the Licensed Premises as a park solely for the benefit of the people of Grand Haven and for no other purposes. This is a license and Licensee understands and agrees that it is only permission to use the Licensed Premises and does not constitute any legal or possessory interest in the property.
3. Insurance. The Licensee shall provide general liability insurance coverage for the Licensor and each of its three members with coverage for bodily injury (including death) and for property damage ....
Both parties signed the license and the city reenacted the 1913 ordinance. In particular, § 5 of the ordinance, quoted in its entirety earlier in this opinion, remained the same.
II. THE PROCEDURAL HISTORIES OF THE CONSOLIDATED APPEALS
A. THE INITIAL SUIT, DOCKET NO. 309403
In November 2010, plaintiff filed a lawsuit against the Commission, alleging that it negligently failed to maintain the sledding hill and failed to warn of its dangers. Following a one-year period of discovery, the Commission moved for summary disposition under MCR 2.116(C)(7) and (10), contending that the GTLA or, alternatively, the recreational use act (RUA), MCL 324.73301, barred plaintiffs suit. The gravamen of the Commission’s GTLA argument was that the Commission constituted a “governmental agency” under then MCL 691.1401(d) as a “political subdivision” of the state of Michigan.
The circuit court granted summary disposition to the Commission under MCR 2.116(C)(7), reasoning that because the Commission was created by ordinance and “authorized” by the city, the Commission constitutes a political subdivision. Further, the circuit court found, “Duncan Park is owned by a public entity,” rendering the RUA inapposite.
Plaintiff then brought a motion for reconsideration and a motion to amend the complaint. Plaintiffs proposed amended complaint would have added as defendants the three Duncan Park commissioners and trustees (the same persons hold both positions) and the Duncan Park Trust.
The circuit court issued a written opinion and order summarizing its reasons for granting summary disposition and reaffirming its decision. “[F]or clarification” the court added that
the actual ownership of Duncan Park does not affect the Court’s decision. That is, even if a private entity is the fee owner of the real property that comprises the park, this does not affect the Court’s decision to grant summary disposition based on [the] GTLA, because under MCL 123.54, a governmental function may occur on private land.
The circuit court also denied plaintiffs motion to amend the complaint. Plaintiff claimed an appeal from both the summary disposition and the amendment rulings.
B. THE SECOND SUIT, DOCKET NO. 314017
In April 2012, plaintiff filed a second suit asserting negligence and gross negligence claims, naming as defendants the Duncan Park Trust and its three individual trustees, defendants Edward Lystra, Rodney Griswold, and Jerry Scott.
In lieu of filing an answer, defendants filed a motion for summary disposition under MCR 2.116(C)(7) and (10). Defendants contended that: (1) res judicata foreclosed plaintiffs claims; (2) the Commission and not the trust controlled the premises; (3) no actual trust exists, despite the donor’s use of trust language in the document conveying the land; (4) the GTLA cloaks all defendants with immunity, and (5) the open and obvious danger doctrine barred the suit.
The circuit court permitted some discovery before considering whether summary disposition was warranted. Shortly after the circuit court entertained the parties’ summary disposition arguments, plaintiff moved to amend the complaint to add Robert DeHare, the park’s groundskeeper, as a party defendant. The proposed first amended complaint also set forth a vicarious liability claim against the individual defendants arising from DeHare’s alleged negligence.
In a written opinion, the circuit court granted summary disposition to defendants. The circuit court first ruled that the “grantee” of Duncan Park was not a trust but rather “the governmental unity the City of Grand Haven — the entity that accepted the gift of land.” The court specifically rejected that the deed “convey[ed] Duncan Park to any named trust.” Rather, “it conveyed the land to ‘trustees for and in behalf of the People of the City of Grand Haven’ contingent upon the Common Council. . . accepting the premises.” Further, the court pointed out, the trust deed made no mention of a “Duncan Park Trust” and plaintiff “cannot point to any document which names a ‘Duncan Park Trust.’ ”
The court theorized that the document could also be deemed ambiguous, in which case “surrounding circumstances” would inform its construction. Those circumstances
reveal that the City formally accepted the “gift” from Mrs. Duncan and created an ordinance which was acceptable to her. Contemporaneously, Mrs. Duncan conveyed the property. The actions of both grantor and the City reflect, and confirm, what is obvious from the language of the deed— that Duncan Park was conveyed to the City for the benefit of the People of Grand Haven.
Thus, the court held, the city “holds title to the fee.”
The circuit court recognized that the licensing agreement tended to refute the court’s conclusion that the city owned the park in fee. It dispensed with this problem as follows:
This latter agreement [the licensing agreement] was apparently prepared at the insistence of the insurance company for the City. Importantly, however, the City was not named as a party in this or the prior litigation. Therefore, there are no party admissions regarding ownership of Duncan Park and there certainly is no stipulation between the parties on this issue.
The circuit court also addressed MCL 554.351, which provides:
No gift, grant, bequest or devise, whether in trust or otherwise to religious, educational, charitable or benevolent uses, or for the purpose of providing for the care or maintenance of any part of any cemetery, public or private, or anything therein contained which shall in other respects be valid under the laws of this state, shall be invalid by reason of the indefiniteness or uncertainty of the object of such trust or of the persons designated as the beneficiaries thereunder in the instrument creating the same, nor by reason of the same contravening any statute or rule against perpetuities. If in the instrument creating such a gift, grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes, shall vest in such trustee. If no such trustee shall be named in said instrument or if a vacancy occurs in the trusteeship, then the trust shall vest in the court of chancery for the proper county, and shall be executed by some trustee appointed for that purpose by or under the direction of the court; and said court may make such orders or decrees as may be necessary to vest the title to said lands or property in the trustee so appointed. [Emphasis added.]
The court acknowledged that the emphasized language arguably supported plaintiffs position, but again looked to the circumstances to discern Mrs. Duncan’s intent. “Because of this, this Court cannot fall prey to any ‘gotcha’ words or phrases which run counter to the intent — evidenced in the entire deed — of the settlor.” Thus, the court ruled, the city owns Duncan Park and the Commission “has exclusive management authority over the land.”
The court granted summary disposition to the trust based on its ruling that the Duncan Park Trust does not exist. And because “there can be no trustees for a non-existent trust,” the court granted summary disposition to the named trustee-defendants. It also granted the same individuals summary disposition in their roles as commissioners based on the court’s prior ruling that the Commission “is a political subdivision that was created by the City and immune from tort liability.” The court explained that pursuant to MCL 691.1407(5), the commissioners qualify as the “ ‘highest appointive executive official[s]’ ” of the Duncan Park Commission, thereby shielding them with immunity from suit.
In a subsequent opinion dated December 18, 2012, the circuit court denied plaintiffs motion to amend the complaint to add new theories of liability against the named Duncan Park commissioners and trustees. The court ruled that “[p]laintiff may file a new claim against a prospective defendant, Mr. DeHare.” Plaintiff claimed a timely appeal from these rulings and this Court consolidated the appeals.
III. ANALYSIS
A. OWNERSHIP OF DUNCAN PARK
We begin by addressing the bedrock question: who owns Duncan Park? We conclude that the trust deed did, in fact, create a trust, and that the trust holds fee simple title to the park. This Court reviews de novo a circuit court’s summary disposition ruling. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). We also review de novo the interpretation of written instruments as a matter of law, Woodbury v Res-Care Premier, Inc, 295 Mich App 232, 243; 814 NW2d 308 (2012), and consider de novo issues of statutory inter pretation. Lenawee Co v Wagley, 301 Mich App 134, 167; 836 NW2d 193 (2013).
Our analysis begins in the year 1535, with England’s adoption of the Statute of Uses. “The ancestor of the modern trust is the medieval use (from a corruption of the Latin word opus, meaning benefit).” Dukeminier, Sitkoff & Lindgren, Wills, Trusts, & Estates (8th ed, 2009), p 541 (emphases in original). Feudal landowners employed a use “to relieve tenants of the burdens of feudal landholding, to enable religious orders to have the benefit of land, and to effect greater freedom in the conveyancing of real property.” Bogert, Trusts & Trustees (3d ed), § 4, p 26. The use conveyed land to third parties who would hold the land for the benefit of others, such as religious orders.
Henry VIII sought to confiscate monastic property and to otherwise enrich his treasury by abolishing the use. At his behest, the English Parliament in 1535 enacted the Statute of Uses, 1535, 27 Henry VIII, c 10 (England). Bogert at 26-27. “The Statute of Uses provided that where any person should thereafter be seised of land ‘to the use, confidence or trust’ of any other person, the latter person shall be seised and possessed of the land in the same estate as that person would otherwise have in use.” 1 Restatement Trusts, 3d, § 6, comment a, p 75. The statute thereby “extinguished the interest of the person who otherwise would hold title subject to the use” and vested the legal property interest in the beneficiary. Id.
Passive trusts are the modern day equivalents of uses.
[A] trust declaration or a trust transfer ‘to the use of another, or ‘in trust for’ another, or ‘for the benefit of another, without describing any duties to be performed by the trustee in carrying out the use or trust, creates a trust that is clearly passive and that is executed by a transfer of the trustee’s interest to the beneficiary, who thereafter holds as absolute owner. [Bogert, § 207, pp 40-41.]
Michigan’s statute of uses, 1846 RS 63, abolished only passive trusts. Saur v Rexford, 369 Mich 338, 340; 119 NW2d 669 (1963).
Active trusts differ from passive trusts in that they assign affirmative powers and duties to the trustee. See 1 Restatement Trusts, 3d, § 6 (1) and (2), p 74; Hunt v Hunt, 124 Mich 502, 504; 83 NW 371 (1900). Professor Bogert distinguishes active trusts from passive trusts as follows: “At the other extreme are trusts that are clearly active because the settlor stated duties and powers that were substantial and important and not merely ministerial, mechanical, or nominal. Cases of this type include where the trustee is directed to manage the trust property[.]” Bogert, § 207, p 43. Professor Scott explains that active duties imposed on a trustee prevented the Statute of Uses from executing (i.e., legally eliminating) the trust. 1A Scott & Fratcher, Scott on Trusts (4th ed, 1987), § 69.1, p 406.
Michigan enacted a statute of uses abolishing passive trusts in 1846.1846 RS 63. Our Legislature reenacted the same statute of uses in 1857,1871, 1897, 1915, 1929, and 1948. The current version, found at MCL 555.1 et seq., is identical to the 1846 version except for minor formatting and punctuation changes not relevant to our discussion. It provides: “Uses and trusts, except as authorized and modified in this chapter, are abolished, and every estate and interest in lands shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided in this title.” MCL 555.1. Pursuant to MCL 555.2, every estate that is now held as a use, executed under the laws of this state as they formerly existed, “is confirmed as a legal estate.” MCL 555.3 expands on that concept by providing that the beneficiary of a use “shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions as his beneficial interest.”
However, MCL 555.4 creates an exception for active trusts: “The last preceding section shall not divest the estate of any trustees, in any existing trust, where the title of such trustees is not merely nominal, but is connected with some power of actual disposition or management, in relation to the lands which are the subject of the trust.” And MCL 555.11 sets forth specific objects for which “express trusts” may be created:
Express trusts may be created for any or either of the following purposes:
First. To sell lands for the benefit of creditors:
Second. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon:
Third. To receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the last preceding chapter:
Fourth. To receive the rents and profits of lands, and to accumulate the same for the benefit of any married woman, or for either of the purposes, and within the limits prescribed in the preceding chapter:
Fifth. For the beneficial interest of any person or persons where such trust is fully expressed and clearly defined upon the face of the instrument creating it subject to the limitations as to time prescribed in this title.
MCL 555.16 states:
Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust; and the person for whose benefit the trust was created, shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.
In 1912, our Supreme Court applied the Michigan statute of uses to “execute” (legally eliminate) a use, in that case a conveyance of property that the Court determined to have been merely a passive trust: “It will thus he seen that in this State passive trusts have been entirely abolished, and where a deed creates them the title passes at once to the beneficiary.” Rothschild v Dickinson, 169 Mich 200, 207; 134 NW 1035 (1912). The Court explained: “There is nothing indicating the terms of the trust; no duties whatever given to the alleged trustee.” Id. Hunt, 124 Mich at 504, describes the powers and duties required of an active trust:
The intention of the testatrix is entirely clear. She devised the real estate to her executors as trustees, with authority to sell, and to invest the proceeds in bond and mortgage, or such other ways as the said trustees should deem safe and advisable, the receipts therefrom to be paid over to her two sons during their lives. She empowered each of them to devise the property, whether it should be realty or personalty, but, should either fail to make a will, then it was to go to the heirs of each one. This intention of the testatrix must be carried out, unless to do so would be in direct violation of law. The trust was an active one[.]
We evaluate the trust deed against this legal backdrop. To survive the statute of uses the writing had to create an active trust.
The trust deed fulfills this requirement. Moreover, the language of the document is quintessentially that of a trust designed to place fee ownership of the land in the trustees rather than in the beneficiary.
1. THE ACTIVE, EXPRESS NATURE OF THE TRUST
The document’s fifth paragraph provides, in relevant part:
But it shall be the right and duty of the said TRUSTEES to remove all dead, dying, or unsightly trees, to thin out the undergrowth, wherever necessary, to remove dead branches, noxious weed, or other rubbish, and in short, keep said park in as neat and trim a condition as the means at their command will allow.
By vesting the trustees with well-defined duties, the drafter created an active trust that would survive a challenge brought under the statute of uses. The assignment of specific, active duties to the trustees forms the document’s signature trust provision.
2. THE IMPACT OF EPIC
The Michigan Trust Code (MTC), MCL 700.7101 to 700.7913, forms a component of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq. The MTC applies to trusts created before its enactment, but does not impair accrued rights or affect an act done before its effective date. MCL 700.8206(l)(a) and (2). However, if any provision of the MTC “conflicts with any provision of 1846 RS 63, MCL 555.1 to 555.27,” the MTC prevails. MCL 700.8206(3).
A reporter’s comment for this section of the MTC further explains the relationship between the old and the newer law:
The Michigan Statute of Uses and Trusts, 1846 RS 63, MCL 555.1 et seq., has only limited application to modern trusts. It does not apply to trusts with personalty. . . . However, it continues to apply to trusts with direct interests in real estate. The Michigan Statute of Uses and Trusts has been largely unchanged since its enactment in 1846, and the act was based on a much older English statute that predates Michigan’s statehood. Because many of the provisions of the Statute of Uses and Trusts have continuing utility, the Statute was not repealed in the course of enacting the MTC. For example, Statute § 1 through § 10 have continuing relevance in the area of real estate. However, § 11 through § 27 arguably conflict with aspects of the MTC. Because the MTC is the more comprehensive and modern statute, if there is a conflict between the two statutes, subsection (3) provides that the terms of the MTC will prevail. A similar amendment was made to the Statute of Uses and Trusts to add a new § 28 in the Statute of Uses and Trusts, effective April 1, 2010. [Martin, Estates & Protected Individuals Code: With Reporter’s Commentary (February 2013 update) (Ann Arbor: Institute of Continuing Legal Education), p 507.]
EPIC lacks direct relevance to whether the indenture created a trust, because Mrs. Duncan’s intent must be gleaned from the legal environment in 1913. However, even if EPIC and the MTC applied to this analysis, the provisions of the indenture permit it to be construed as a trust. MCL 700.7405(1) allows the creation of a charitable trust “for the relief of poverty, the advancement of education or religion, the promotion of health, scientific, literary, benevolent, governmental, or municipal purposes ... or other purposes the achievement of which is beneficial to the community.” Here, the trust deed provides that Mrs. Duncan created the Duncan Park Trust for the benefit of Grand Haven and its people. Thus, the purpose of this trust falls within the statutory definition.
MCL 700.7402(1) provides that a trust is created if all of the following apply:
(a) The settlor has capacity to create a trust.
(b) The settlor indicates an intention to create the trust.
(c) The trust has a definite beneficiary or is either of the following:
(i) A charitable trust.
(¿i) A trust for a noncharitable purpose or for the care of an animal, as provided in [MCL 700.2722].
(d) The trustee has duties to perform.
(e) The same person is not the sole trustee and sole beneficiary.
For the reasons already discussed, the Duncan Park Trust qualifies as charitable and active, thereby meeting the only pertinent statutory requirements. Application of this statute does not change the analysis, because the document’s language signifies an intent to create a charitable trust vesting the trustees with specific duties.
3. THE INDENTURE’S USE OF TRUST LANGUAGE
Moreover, the document’s language clearly contemplates the establishment of a trust. “[I]t requires no particular form of words to create a trust.” Brooks v Gillow, 352 Mich 189, 199; 89 NW2d 457 (1958). “ ‘A person need use no particular form of words to create a trust or to make himself a trustee. It is enough if, having the property, he conveys it to another in trust[.]’ ” Hamilton v Hall’s Estate, 111 Mich 291, 296; 69 NW 484 (1896), quoting Ray v Simmons, 11 RI 266, 268 (1875). The fundamental characteristics that distinguish a trust from other legal relationships are the existence of a fiduciary relationship and the holding of title to property by one person for the benefit of another. 1 Restatement Trusts, 2d, § 2, p 6. “To create a trust, there must be an assignment of designated property to a trustee with the intention of passing title thereto, to hold for the benefit of others. There must be a separation of the legal estate from the beneficial enjoyments.” Equitable Trust Co v Milton Realty Co, 261 Mich 571, 577; 246 NW 500 (1933) (citation omitted).
An express trust must be an explicit declaration of trust, accompanied by an intention to create such an estate and followed by an actual conveyance or transfer of definite property, or estate or interest made by a person capable of such a transfer and for a definite term, which vests the legal title in a person capable of holding as trustee for the benefit of a cestui que trust or purpose, to which the trust fund is to be applied or the retention of title by the owner under circumstances which clearly and unequivocally disclose intent to hold for use of another. [Buhl v Kavanagh, 118 F2d 315, 320 (CA 6, 1941).]
Nor do charitable trusts require formulaic words:
“A charitable trust, like an express private trust, is created only if the settlor properly manifests an intention to create it. The settlor need not, however, use any particular language in showing his intention to create a charitable trust; he need not use the word ‘trust’ or ‘trustee.’ It is sufficient if he shows an intention that the property should be held subject to a legal obligation to devote it to purposes which are charitable.” [Knights of Equity Mem Scholarships Comm v Univ of Detroit, 359 Mich 235, 242; 102 NW2d 463 (1960), quoting 4 Scott, Trusts (2d ed), § 351, p 2574.]
In concluding that no trust existed, the circuit court emphasized that plaintiff had not identified a separate document naming a “Duncan Park Trust.” The circuit court failed to consider that the trust deed itself qualified as the trust document. The trust deed’s language fulfills all the criteria necessary to create a trust.
Starting from the end, the document refers to itself as a “Trust Deed.” Our caselaw recognizes that a trust may be created by a deed, with a document called a trust deed. In re Sweetser’s Estate, 109 Mich 198, 204; 67 NW 130 (1896). See also Thatcher v Wardens of St Andrew’s Church of Ann Arbor, 37 Mich 264, 273 (1877) (“Our statute, [1871 CL 3062] and How. Stat. § 4637 fully authorizes the conveyance in trust for the purpose mentioned in this deed and vests the title in perpetual succession in the trustees provided for by the statute in trust for the church. We are of opinion that the objections made to the validity of this trust deed are not valid, and that it is unnecessary to discuss the other questions raised.”).
The ninth paragraph clearly sets forth Mrs. Duncan’s intent to create a trust:
If at any time in the future the “DUNCAN PARK COMMISSION” shall cease to exist, the Circuit Court for the County of Ottawa in Chancery, or such Court as shall succeed the same, shall, on the application of any Citizen of the City of Grand Haven, take charge of this trust and appoint a suitable “DUNCAN PARK COMMISSION” to fulfill and carry out the terms of the trust for the benefit of the Citizens of the City of Grand Haven-, and the Commission so appointed shall thereafter choose its own successors in the same manner as herein provided.
The habendum clause transfers the property from Martha Duncan (the party of the first part) to the parties of the second part “TO HAVE AND TO HOLD . . . forever in fee, upon the trusts, nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared[.]” (Emphasis added). This language, too, shows the creation of a trust.
The circuit court recognized that the trust deed’s repetitive use of the term “trustees” suggested a trust. Citing Webster’s Online Dictionary, the circuit court set forth three definitions of the word “trustee.” The second, as quoted by the circuit court, is: “Members of a governing board.” The circuit court accepted that definition rather than the other two, the first of which was: “A person (or institution) to whom legal title to property is entrusted to use for another’s benefit.”
The term “trustee” has been defined by our Supreme Court as follows: “A trustee, in the widest meaning of the term, may be defined to be a person in whom some estate, interest, or power in or affecting property of any description is vested for the benefit of another.” Equitable Trust Co v Milton Realty Co, 263 Mich 673, 676; 249 NW 30 (1933) (quotation marks and citation omitted). No Michigan case uses the term “trustee” in the manner proposed by the circuit court, and we decline to do so. Further, the first definition of “trustee” better fits the circumstances of this case, because Mrs. Duncan entrusted the property to the Duncan Park Trust for the use and benefit of the community.
In addition to the “trustee duties” clause included to avoid the statute of uses, the trust deed’s reverter provision is entirely consistent with Mrs. Duncan’s intent to place the property in trust rather than to grant it outright to the city. The third condition specifically provided that if the “Council or said Trustees shall neglect or refuse to carry out in good faith all of the terms and conditions herein specified,” the premises
shall revert to the first party herein, her heirs, executors or assigns and become again vested in her, or her heirs, as fully as if such dedication had never been made; and she, her heirs, or executors, may then enter upon and take possession of said premises and thenceforward hold the same as fully as if this dedication had never been made.
This language supports that Mrs. Duncan placed the land in trust to empower enforcers of her will that the land perpetually remain a park. By placing the land in a trust rather than conveying it to the city directly, Mrs. Duncan gained assurance that if the city breached any of the conditions set forth in the trust deed, the trust would sue to regain the city’s compliance.
4. THE TRUSTEES OWN THE LAND
Because Mrs. Duncan placed the land in an express trust, the trustees own the land. 1897 CL 8844, provided:
Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust; and the person for whose benefit the trust was created, shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.
As described by our Supreme Court:
The trusts contained in this will are express as well as active trusts, and, in so far as they are valid, vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust; and the persons for whose benefits the trust was created take no estate or interests in the lands, but they may enforce the performance of the trust in equity. [Palms v Palms, 68 Mich 355, 380; 36 NW 419 (1888) (opinion by Champrin, J.).]
Today, the same statutory language is found in MCL 555.16.
A second statute, MCL 554.351, lends additional support to this conclusion. The first sentence of the statute states:
No gift, grant, bequest or devise, whether in trust or otherwise to religious, educational, charitable or benevolent uses, or for the purpose of providing for the care or maintenance of any part of any cemetery, public or private, or anything therein contained which shall in other respects be valid under the laws of this state, shall be invalid by reason of the indefiniteness or uncertainty of the object of such trust or of the persons designated as the beneficiaries thereunder in the instrument creating the same, nor hy reason of the same contravening any statute or rule against perpetuities.
The statute’s second sentence, acknowledged but substantively ignored by the circuit court, states: “If in the instrument creating such a gift, grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes, shall vest in such trustee.” 1907 PA 122 included this same sentence.
Only the following sentence, found in the trust deed’s second paragraph, lends any credence to the notion that the instrument transferred the land directly to the city rather than to the trustees:
WITNESSETH THAT the said Party of the First Part, desiring to transfer the land hereinafter described to the PEOPLE OF THE CITY OF GRAND HAVEN, in order to perpetuate the name of her deceased husband, ROBERT W DUNCAN, for and in consideration of the sum of One Dollar ($1.00) to her in hand paid (receipt whereof is hereby acknowledged) has GRANTED, BARGAINED, SOLD, REMISED, RELEASED, ALIENED AND CONFIRMED, and by these presents does sell, remise, release, alien, confirm and convey unto the Parties of the Second Part and to their successors in office forever, all that piece of land situated in the City of Grand Haven in the County of Ottawa and the State of Michigan, known and described as follows[.]
Read in its entirety, this paragraph indicates that Mrs. Duncan “granted” and “convey[ed] unto the Parties of the Second Part” the park premises. The language that begins the sentence, “WITNESSETH THAT the said Party of the First Part, desiring to transfer the land hereinafter described to the PEOPLE OF THE CITY OF GRAND HAVEN,” is precatory. “The mere use of the precatory words ‘desire’ and ‘request’ will not be sufficient to create an enforceable trust, or a power in the nature of a trust, when the context clearly shows that the testator’s intention was the contrary.” Thomas v Ohio State Univ Bd of Trustees, 70 Ohio St 92, 109; 70 NE 896 (1904). The habendum clause that followed unambiguously stated that the land was to be held by the trustees and their successor, “forever in fee, upon the trusts, nevertheless[.]” In context, the precatory language does not alter the remainder of the docu ment’s unambiguously stated intent to create a trust granting the land to the trustees.
5. THE DEDICATION DID NOT VEST OWNERSHIP IN THE CITY
Although not raised in the circuit court, defendants now argue that the “Duncan Deed, by its explicit terms, constituted a common-law ‘dedication’ of property for a public use.” Defendants are correct. The indenture likely did anticipate that the land would be dedicated by the city of Grand Haven for public use. However, a common-law dedication did not vest fee simple title in the city of Grand Haven; rather, fee simple title remained in the trustees.
“A ‘dedication’ of land is an ‘appropriation of land to some public use, accepted for such use by or in behalf of the public.’ ” 2000 Baum Family Trust v Babel, 488 Mich 136, 144; 793 NW2d 633 (2010), quoting Clark v Grand Rapids, 334 Mich 646, 656-657; 55 NW2d 137 (1952). A dedication requires “a clear intent to dedicate on the part of the” property owner, “as well as an acceptance by the public[.]” Lee v Lake, 14 Mich 12, 18 (1865). Acceptance of an offer to dedicate land to public use is essential to a completed dedication. Field v Village of Manchester, 32 Mich 279, 281 (1875). Two types of dedications are recognized in Michigan: statu tory and common law. Gunn v Delhi Twp, 8 Mich App 278, 282; 154 NW2d 598 (1967). “[B]y a common-law dedication the fee does not pass, but only an easement.” Badeaux v Ryerson, 213 Mich 642, 647; 182 NW 22 (1921).
The trust deed supports that Mrs. Duncan intended a common-law dedication of the land for use as a park, which required acceptance by the city. Formal acceptance of the dedication was accomplished through the enactment of the ordinance required pursuant to the trust deed. See West Mich Park Ass’n v Dep’t of Conservation, 2 Mich App 254, 265; 139 NW2d 758 (1966), quoting 23 Am Jur 2d, Dedication, § 50 (“ ‘Formal acceptance may consist of a formal ratification by the proper official board of the municipality, a formal resolution or order by any other proper official body, the adoption of a municipal ordinance, the vote of a town council, the signing of a written instrument by the proper authorities, the execution of an official map by a city showing the street offered to be dedicated as such, or an act of the legislature incorporating a town, or adopting a map showing its limits.’ ”) (emphasis omitted). See 23 Am Jur 2d, Dedication, § 47 (2013). It bears emphasis that the ordinance specifically acknowledged that the “plat of land” comprising the park was “deeded to the three trustees[.]”
In 1913, the leading case concerning common-law dedications was Patrick v Young Men’s Christian Ass’n of Kalamazoo, 120 Mich 185; 79 NW 208 (1899). The land at issue in Patrick was platted by Stephen H. Richardson in 1831. Id. at 186-187. Pursuant to the plat map, a portion of the land was “ ‘appropriated to the four first religious denominations who may form societies in the foregoing town, and erect buildings thereon; one-fourth to the benefit of each society.’ ” Id. at 187. This area was known as “Church Square.” Id. In 1838, Richardson and his wife owned the land surrounding Church Square, and quitclaimed it to Johnson Patrick “without any exception of streets or squares[.]” Id.
Over the next several decades the land was conveyed to different people, including Patrick’s heirs. In 1837, St. Luke’s Protestant Episcopal Society “erected a church building on the premises, and occupied the lot until March 18, 1887, when it deeded the property by quitclaim deed to Senator Stockbridge[.]” Id. at 188. Stockbridge deeded the property to the Young Men’s Christian Association, which erected a building on it. Id. The plaintiffs, heirs at law of Johnson Patrick, contended that “Church Square” belonged to them rather than to the YMCA. Id. at 186.
The Supreme Court began its analysis by examining the plat: “If the plat was valid, and conveyed an absolute fee to the religious society, it is manifestly the end of the plaintiffs’ claim, because Richardson then parted with his entire title.” Id. at 189. The Court continued, “If it was valid, but did not convey the fee, the plaintiffs must show that they own the reversionary interest.” Id. The Court determined that the original platters accomplished a common-law dedication of the land to a public use, rather than a statutory dedication, and that the fee ownership had remained in Richardson until he conveyed it to Patrick. The Court explained, “Common-law dedications do not ordinarily convey the fee. In fact, under the strict rule they never do.” Id. at 192.
Patrick has withstood the test of time. In 2000 Baum Family Trust, 488 Mich at 148, the Supreme Court reiterated that under the common law, fee ownership of dedicated property remains in the original owner. Accordingly, defendants’ late-raised dedication argument is unavailing. Although the land was dedicated to the city of Grand Haven for public purposes, ownership remained in the trustees.
B. GOVERNMENTAL IMMUNITY
We next consider whether governmental immunity bars plaintiffs suit against the trustees and the Commission. The circuit court dismissed both cases under MCR 2.116(C)(7), immunity granted by law. A summary disposition motion brought under subrule (C)(7) “does not test the merits of a claim but rather certain defenses” that may eliminate the need for a trial. DMI Design & Mfg, Inc v Adac Plastics, Inc, 165 Mich App 205, 208; 418 NW2d 386 (1987). (2010). When reviewing a grant of summary disposition under subrule (C)(7), this Court accepts as true the plaintiffs well-pleaded allegations and construes them in the light most favorable to the plaintiff. Id. at 208-209. “If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts,” whether immunity bars the claim is a question of law for the court. Under this subrule, summary disposition may be granted when a claim is barred because of immunity granted by law. Dextrom v Wexford Co, 287 Mich App 406, 429; 789 NW2d 211 (2010).
We hold that the Commission is not a “governmental agency” as that term is defined in the GTLA. The Commission is a private body accountable only to itself, not to the city of Grand Haven. The Commission manages Duncan Park without oversight, direction, or financial contribution from the city. Its sole connection with the city derives from the ordinance’s requirement that the mayor ratify the Commission’s choice of its own commissioners. Whether viewed as the Commission or as three individual trustees, defendants are not a “political subdivision” of the city of Grand Haven and therefore may not invoke the defense of governmental immunity.
Except for certain limited statutory exceptions, MCL 691.1407(1) grants tort immunity to governmental agencies “engaged in the exercise or discharge of a governmental function.” The parties agree that maintaining a park is an exercise of a governmental function. The parties’ disagreement centers on whether the Commission is a “governmental agency” entitled to immunity. The GTLA affords immunity to “governmental agencies,” which the statute defines as “this state or a political subdivision.” MCL 691.1401(a). A “political subdivision” is
a municipal corporation, county, county road commission, school district, community college district, port district, metropolitan district, or transportation authority or a combination of 2 or more of these when acting jointly; a district or authority authorized by law or formed by 1 or more political subdivisions; or an agency, department, court, board, or council of a political subdivision. [MCL 691.1401(e) (emphasis added).][ ]
The circuit court ruled that the Commission “was authorized by a political subdivision of the State,” and therefore qualified as a “political subdivision.” Defendants argue that the Commission falls within the statutory definition of a “political subdivision” because it “is an ‘authority authorized by law,’ namely, as created by City of Grand Haven ordinance.” The statutory language governs our analysis.
When the Legislature defines a term used in a statute, the Court must accept the statutory definition. Erlandson v Genesee Co Employees’ Retirement Comm, 337 Mich 195, 204; 59 NW2d 389 (1953). “Where, as here, a statute supplies its own glossary, courts may not import any other interpretation, but must apply the meaning of the terms as expressly defined.” Detroit v Muzzin & Vincenti, Inc, 74 Mich App 634, 639; 254 NW2d 599 (1977). “ ‘[W]hen a statute specifically defines a given term, that definition alone controls. Therefore, a statutory definition supersedes a commonly accepted dictionary or judicial definition of a term.’ ” People v Williams, 288 Mich App 67, 74; 792 NW2d 384 (2010), quoting 22 Michigan Civil Jurisprudence (2005 revision), § 202, p 731.
The Commission’s entitlement to governmental immunity depends on whether it falls within the definition of “political subdivision” set forth in MCL 691.1401(e). We reject the circuit court’s determination that the Commission qualifies as a “political subdivision” because it “was authorized by a political subdivision of the State.” The statutory definition of “political subdivision” does not include “commissions,” nor does it include commissions “authorized” by a city.
Defendants contend that the Commission is an “authority authorized by law.” Neither the trust nor the ordinance refers to the Commission as an “authority.” Furthermore, a city lacks the power to unilaterally create an “authority”; only the Legislature may do so.
Const 1963, art 7, § 27 states:
Notwithstanding any other provision of this constitution the legislature may establish in metropolitan areas additional forms of government or authorities with powers, duties and jurisdictions as the legislature shall provide. Wherever possible, such additional forms of government or authorities shall be designed to perform multipurpose functions rather than a single function.
Thus, the Constitution grants to the Legislature the power to create “additional forms of government or authorities.” No statute or caselaw supports that a city may create an “authority” by ordinance absent an enabling “law” passed by the Legislature. Rather, the term “authority authorized by law” refers to authorization by the Legislature. And defendants have not identified any statutory provision permitting the city of Grand Haven to form an “authority” involving only one park. Accordingly, the Commission is not an “authority authorized by law.”
Although not argued by defendants, we have considered whether the Commission is a “board,” thereby qualifying as immune under MCL 691.1401(e). The trust deed mandated that the city enact an ordinance creating the Commission. The ordinance was drafted by Mrs. Duncan and her counsel and enacted exactly as specified. The ordinance states in the first paragraph:
That thereby and hereby is, created in the City of Grand Haven, a Park Board, to be known as “The Duncan Park Commission,” to consist of three members, who shall be appointed by the mayor of the City of Grand Haven, in accordance with the deed of gift of “Duncan Park,” wherein and whereby the plat of land known as “Duncan Park” was transferred to three (3) trustees for and in behalf of the citizens of the City of Grand Haven, Michigan.
Although nominally a “Park Board” pursuant to the ordinance, Grand Haven’s charter does not recognize the “Duncan Park Board” as one of the city’s “citizen boards.” Grand Haven Charter § 7.14(a) provides:
To afford citizen participation in the affairs of the city government for the purpose of determining community needs and means of meeting such needs through the government of the city, the following citizen boards are established:
(1) An airport board;
(2) A cemetery board;
(3) A Community Center board;
(4) A harbor board;
(5) A library board;
(6) A parks and recreation board.
The boards consist of five Grand Haven citizens appointed by the mayor “subject to confirmation by the council. . ..” Section 7.14(b). The boards meet at least monthly, and their minutes are “public record.” Section 7.14(c). The boards report to the city council, which may remove a board member for “malfeasance, misfeasance, or nonfeasance.” Id.
Whether labeled a board or an authority, the Commission and its trustees exercise their powers without municipal oversight. The trustees do not report to any elected official, take no guidance from the city of Grand Haven, and are not accountable for their actions to the city. The ordinance provides:
[S]aid commission shall make its own rules and regulations and shall be governed thereby and shall have the entire control and supervision of said “Duncan Park.” ... Said commission shall also have power to adopt rules and regulations governing the duties of its members and each of its officers and employees, and shall have the authority to engage and discharge its own employees.
Aside from appointing the original three trustees to the Commission, the city plays no part in the ongoing management of Duncan Park. Rather than serving as an instrumentality or “political subdivision” of Grand Haven, the Commission is an independent, autono mous, private body that administers privately held land. While agencies, boards, or authorities act on behalf of cities or towns, the Commission acts solely on its own behalf. Rather than serving as an adjunct in the administration of city government, the Commission conducts no public business; it independently manages land outside the city’s control. Designating the Commission a “board” does not transform a private group into a political subdivision.
Further, “the definition of ‘governmental agency’ does not include, or remotely contemplate, joint ventures, partnerships, arrangements between governmental agencies and private entities, or any other combined state-private endeavors.” Vargo v Sauer, 457 Mich 49, 68; 576 NW2d 656 (1998) (emphasis added). Nor does a private agency’s performance of a governmental function confer governmental-agency status on the private entity. Jackson v New Ctr Community Mental Health Servs, 158 Mich App 25, 35; 404 NW2d 688 (1987). In O’Neill v Emma L Bixby Hosp, 182 Mich App 252, 257; 451 NW2d 594 (1990), this Court held that Bixby Hospital, “a nonprofit, nonstock Michigan corporation which was incorporated by individuals” did not qualify as a hospital “ ‘formed by 1 or more political subdivisions.’ ” The Court explained: “Bixby Hospital retains a separate, nongovernmental, corporate identity. Its em ployees are not municipal employees. Defendant is not operated by the city, but by a board of trustees which is quasi-independent from the city.” Id. The city of Adrian’s “indirect control of the hospital through the appointment of the members of the hospital commission/board of trustees” did not sway this Court. Id. “Despite the substantial connections with the City of Adrian,” this Court held that Bixby Hospital was not a governmental agency entitled to immunity. Id. at 257-258.
The Commission is a unique construct of Martha Duncan’s trust that is officially connected with the city of Grand Haven only in the sense that the mayor ratifies the Commission’s choice of successor members. Otherwise, the city has undertaken no official activities relative to Duncan Park. It does not make the rules for the park, supervise the park, maintain the park, direct the park’s use, or expend any funds to maintain the park. Rather, the Commission, a privately appointed group of three trustees, controls private property without governmental oversight. The commissioners act on behalf of the trust, not on behalf of the city. Accordingly, the Commission is not immune from suit as a political subdivision of the city of Grand Haven.
We reverse the circuit court’s grants of summary disposition on the ground of governmental immunity and remand for further proceedings. We do no retain jurisdiction.
WHITBECK, EJ., and HOEKSTRA, J., concurred with Gleicher, J.
The document’s final paragraph refers to the writing as Mrs. Duncan’s “Trust Deed and Deed of Gift.” Accordingly, we refer to the document as a trust deed.
A deed’s habendum clause limits and defines the estate conveyed to the grantee. Darnell v Smith, 238 Mich 33, 37; 213 NW 59 (1927).
The complaint asserts that Chance died after his sled struck a dead tree covered in snow, causing a fatal abdominal injury.
Following the enactment of 2012 PA 50, this definition was relocated to MCL 691.1401(a).
“This is a license and Licensee understands and agrees that it is only-permission to use the Licensed Premises any does not constitute and legal or possessory interest in the property.”
William Shakespeare referred to a use in The Merchant of Venice, near the end of the play (Act iy Scene I). Shylock had been forced to forfeit half his property to the government and half to Antonio. Antonio offered to take the property in trust (use) for Shylock, with the principal going to Shylock’s daughter and her husband upon Shylock’s death:
So please my lord the duke and all the court
To quit the fine for one half of his goods,
I am content; so he will let me have
The other half in use, to render it,
Upon his death, unto the gentleman
That lately stole his daughter!.]
An “express trust” is a trust created by an instrument.
A case decided by the Supreme Court in 1919 lends still more clarity to the active/passive trust distinction. In Woolfitt v Histed, 208 Mich 308; 175 NW 286 (1919), the Supreme Court considered whether a deed created a lawful trust. The Court held that the deed did not, explaining:
It is undisputed that the deed to John does not create an active trust. If a trust is created at all it is a naked or passive trust, which is defined to be “a trust in which the property is vested in one person upon trust for another, and the nature of the trust not being qualified by the settlor, is left to the construction of the law.” Passive trusts are abolished by statute in this State, but where a deed is so worded as to create a passive or naked trust our statute on uses and trusts executes it by forthwith passing the title to the beneficiary. [7<7. at 314 (citations omitted).]
Were we to conclude that the granting and habendum clauses conflict, the habendum clause would control:
[A] repugnancy between the granting clause and the habendum must be resolved, as a rule of construction, in favor of the former when “it cannot be determined from the whole instrument and the attendant circumstances” which the grantor intended to control; “but, where it appears from the whole conveyance and the attendant circumstances that the grantor intended the habendum to enlarge, restrict, or repugn the granting clause, the habendum must control, for the reason that it is the last expression of the grantor’s wish as to the conveyance.” [Thompson v Thompson, 330 Mich 1, 5; 46 NW2d 437 (1951), quoting Powers v Hibbard, 114 Mich 533, 553; 72 NW 339 (1897).]
Before the enactment of 2012 PA 50, this definition was located in subdivision (d).
This definition was formerly located in subdivision (b).
Grand Haven City Manager Pat McGinnis testified as follows at his deposition:
Q. ... It’s my understanding that those documents create the Duncan Park Commission as an autonomous body that has the sole supervisory control of Duncan Park. Is that your understanding, too?
MS. MERRY [defense counsel]: Objection, form. Go ahead and answer.
THE WITNESS: Essentially I agree with your statement. | [
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M. J. KELLY, P.J.
In this suit for mandamus, defendants, the Executive Director of the Michigan Administrative Hearing System (the Hearing System), Michael Zimmer, and the Director of the Michigan Department of Licensing and Regulatory Affairs (LARA), Steven Hilfinger, appeal by right the trial court’s writ of mandamus compelling them to cause their agencies to hold hearings on workers’ compensation claims arising out of injuries occurring in Genesee County within that same locality. The primary issue on appeal is whether the trial court properly interpreted MCL 418.851 to preclude Zimmer and Hilfinger from transferring all hearings on workers’ compensation claims arising in Genesee County to Dimondale, Michigan. We conclude that the trial court did not err when it determined that the Legislature limited the geographic area within which a hearing on workers’ compensation claims may be held and that the transfer of the hearings to Dimondale exceeded that limitation. Because Zimmer and Hilfinger lacked the authority to order the hearings be held in a locality other than the locality where the injury occurred, the trial court did not abuse its discretion when it issued a writ of mandamus compelling Zimmer and Hilfinger to order their agencies to comply with the geographic limitations stated in MCL 418.851. For these reasons, we affirm.
I. BASIC FACTS
Plaintiff Lawrence Younkin worked for General Motors at its assembly plant in Flint. At some point, Younkin injured his back while working and was determined to be totally and permanently disabled. Younkin then filed a claim for workers’ compensation benefits with the workers’ compensation office in Flint.
In September 2012, Zimmer circulated a notice outlining new efforts to streamline and reorganize the Hearing System, which included the offices that handle workers’ compensation claims. Zimmer stated that he was closing the Flint office that handles workers’ compensation claims and transferring those claims to the office located in Dimondale. It was his goal, he wrote, “to have the transfer complete with hearings beginning in the new locations in December 2012.” Thus, after the transfer, both the administrative handling of claims arising in Flint and the hearings on those claims would be conducted at the office in Dimondale.
In October 2012, Younkin sued Zimmer and Hilfinger over the decision to close the Flint office and transfer the proceedings to Dimondale. Younkin alleged that his injuries made it difficult for him to attend hearings in Dimondale. Then, citing MCL 418.851, he alleged that the Legislature had for more than 100 years required all hearings on workers’ compensation claims be held in the locality where the injury occurred. Because Dimondale was not the locality where his injury occurred, he contended that Zimmer and Hilfinger had no authority to order his hearing held in Dimondale. Younkin also alleged that there were numerous other similarly situated individuals who would be harmed in the same way by the unlawful decision to order all hearings on workers’ compensation claims arising in Genesee County to be held in Dimondale. For these reasons, Younkin asked the trial court to issue a writ of mandamus ordering Zimmer and Hilfinger to “comply with MCL 418.851 and perform their ministerial duties to ensure that hearings in cases arising out of injuries occurring in Genesee County shall be held in the locality of injury as statutorily required.”
On October 22, 2012, the trial court entered an order compelling Zimmer and Hilfinger to appear and show cause why the court should not issue a writ of mandamus.
In answer to Younkin’s complaint, Zimmer and Hilfinger argued that MCL 418.851 cannot be read literally. Rather, relying on the decision in Crane v Leonard, Crossette & Riley, 214 Mich 218; 183 NW 204 (1921), they maintained that the trial court should interpret the statute to merely require that the hearing be held in a place that is convenient for the parties and their witnesses. They also argued that they were under no legal duty to refrain from closing unnecessary facilities and reassigning magistrates. Because they had the discretion to make these changes, they concluded that their decision was outside the scope of a writ of mandamus. Finally, they argued that Younkin’s core complaint is that it is not convenient for him to attend a hearing in Dimondale, which implicates equity rather than law and, therefore, cannot be the subject of a writ of mandamus.
The trial court held a hearing on Younkin’s request for a writ of mandamus in November 2012. After hearing the parties’ arguments, the trial court exam ined MCL 418.851 and noted that it provided “that hearings shall be held ‘at the locality where the injury occurred.’ ” From this, it determined that the statute imposed a clear legal duty to hold all hearings on workers’ compensation claims in the locality where the injury occurred: “shall means shall, and does not provide discretion.” It then concluded that the term “locality” did not include a place that was “four counties away” from the place of injury. Indeed, it found that Dimondale would not constitute a locality for any claim arising in Genesee County. Accordingly, the trial court granted Younkin’s request for a writ of mandamus, but initially indicated that it would limit the writ to Younkin’s own hearing. The trial court, however, recognized that Younkin had requested a writ that applied to all claims arising in Genesee County and invited the parties to brief whether it had the authority to issue such a writ on the basis of Younkin’s complaint.
Zimmer and Hilfinger submitted a brief on the scope of the trial court’s order of mandamus later that same month. In their brief, they argued that the trial court’s order should be limited. They maintained that the trial court could not use the order to compel them to hold every ancillary proceeding in the locality, could not compel them to keep the Flint office open, and, because Younkin did not plead his complaint as a class action, the trial court could not extend the order to all hearings concerning claims arising in Genesee County.
In an opinion addressing the scope of its order, the trial court agreed that it would not “direct or participate in [Zimmer’s and Hilfinger’s] discretionary judgment concerning how [they] will comply with the requirements of MCL 418.851” because that was a matter “within their discretion.” It therefore indicated that its order would not affect “decisions about the allocation of resources to provide services such as scheduling of hearings, assignment of staff, file organization and storage and location of offices.” However, it concluded that it had the discretion to issue a writ that applied to all claims arising in Genesee County, which would be subject to the transfer to Dimondale. The court explained that Zimmer and Hilfinger’s request to have the order apply only to Younkin amounted to a request for the “court’s permission to ignore the statute and break the law” as to the other claimants. Because it was not in the habit of “directing parties to ignore the laws of this state,” the trial court concluded that it would order Zimmer and Hilfinger to “rescind the directive that cases arising out of Genesee County be transferred to a hearing site in Dimondale.”
The trial court entered its writ of mandamus on November 20, 2012. The trial court ordered Zimmer and Hilfinger, in their official capacities, to “comply with MCL 418.851 and to perform their ministerial duties to ensure that hearings in cases arising out of injuries occurring in Genesee County shall be held in the locality of injury, regardless of the type of hearing.” The court also ordered them to “rescind their directive that workers’ compensation cases arising out of injuries occurring in Genesee County be transferred to a hearing site in Dimondale, Michigan.”
Zimmer and Hilfinger now appeal in this Court.
II. WRIT OF MANDAMUS
A. STANDARDS OF REVIEW
Zimmer and Hilfinger argue on appeal that the trial court erred when it determined that Younkin established the right to relief in the form of a writ of mandamus and also erred by granting relief beyond ordering Younkin’s hearing to be held in the locality. This Court reviews a trial court’s decision to enter a writ of mandamus for an abuse of discretion. Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d 102 (2005). This Court reviews de novo whether the “trial court correctly selected, interpreted, and applied the relevant statutes.” Kincaid v Cardwell, 300 Mich App 513, 522; 834 NW2d 122 (2013).
B. MANDAMUS
Mandamus is an extraordinary remedy that courts will use to enforce duties created by law “where the law has established no specific remedy and where, in justice and good government, there should be one.” State Bd of Educ v Houghton Lake Community Sch, 430 Mich 658, 666-667; 425 NW2d 80 (1988). The decision to grant mandamus is one of grace and is governed by equitable principles. Franchise Realty Interstate Corp v Detroit, 368 Mich 276, 279; 118 NW2d 258 (1962). In order to warrant mandamus, the plaintiff must establish that he or she has a “ ‘clear legal right to performance of the specific duty sought to be compelled’ and that the defendant has a ‘clear legal duty to perform such act. . . .’ ” In re MCI Telecom Complaint, 460 Mich 396, 442-443; 596 NW2d 164 (1999), quoting Toan v McGinn, 271 Mich 28, 34; 260 NW 108 (1935).
Here, the trial court determined that Younkin had established grounds for mandamus. It concluded that he had a clear statutory right to have a hearing on his claim for workers’ compensation benefits, which hearing must be held in the locality where the injury occurred. It similarly determined that Zimmer and Hilfinger had a concomitant clear legal duty to ensure that the magistrates acting under their authority held the workers’ compensation hearings in the locality where the injuries occurred.
Zimmer is the Executive Director for the Hearing System and Hilfinger is the Director of LAEA. The Hearing System is an independent and autonomous agency within LAEA, which coordinates and manages the policies and procedures for conducting administrative hearings. MCL 445.2030(IX)(A)(1) and (5); MCL 418.213. The Hearing System is responsible for regulating the services provided by administrative law judges, magistrates, boards, and commissioners that have been assigned to the Hearing System, which includes the board of magistrates for the workers’ compensation system. MCL 445.2030(1X)(A)(6) and (G); MCL 418.213. As such, Zimmer and Hilfinger, as the chief executives in charge of the Hearing System and LAEA, have the ultimate responsibility for ensuring the proper conduct of any administrative hearings held under the authority of the Worker’s Disability Compensation Act, MCL 418.101 et seq. See MCL 418.213(8) and (10). Accordingly, to the extent that magistrates who conduct workers’ compensation hearings are violating the statutory provisions governing those hearings, Zimmer and Hilfinger would have a clear legal duty to rectify the violations.
C. WORKERS’ COMPENSATION HEARINGS
The Legislature established the workers’ compensation scheme to remedy perceived problems with the common-law tort system for compensating injured workers. See McAvoy v H B Sherman Co, 401 Mich 419, 448; 258 NW2d 414 (1977). In exchange for providing prompt — albeit limited — compensation to employees without the need to prove fault, employers are generally granted immunity from tort liability for injuries that their employees sustain during the course of employment. Id.; Lahti v Fosterling, 357 Mich 578, 585; 99 NW2d 490 (1959). See also MCL 418.131(1).
Chapter 8 of the Worker’s Disability Compensation Act governs the procedures for resolving workers’ compensation claims. See MCL 418.801 et seq. Generally, a workers’ compensation claim must be paid promptly to the injured employee after notice of a qualifying injury with weekly payments due thereafter. See MCL 418.801(1). However, in the event that there is a dispute concerning whether or to what extent an employee is entitled to workers’ compensation benefits, the parties are generally entitled to have the dispute resolved after a hearing by a magistrate. See MCL 418.841; MCL 418.847.
In every hearing to resolve a dispute over workers’ compensation benefits, the claimant — the employee or his or her beneficiary — has the burden to prove by a preponderance of the evidence that he or she is entitled to compensation under the act. MCL 418.851. The Legislature further provided that the magistrate has the authority to “make such inquiries and investigations” at the hearing “as he or she considers necessary.” Id. Finally, the Legislature instructed the magistrate to hold the hearings within a defined geographic area: “The hearing shall be held at the locality where the injury occurred . ...” Id. The dispute in this case turns on the proper interpretation of this geographic limitation.
None of the words or phrases used in this statute has acquired a peculiar meaning at law. Therefore, we must give the words and phrases their ordinary meaning. See Wolfe-Haddad Estate v Oakland Co, 272 Mich App 323, 325; 725 NW2d 80 (2006), citing MCL 8.3a. There can be no reasonable dispute that the Legislature’s use of the word “shall” in the phrase “shall be held” plainly and unequivocally requires the magistrate to hold the hearing to resolve the dispute “at the locality where the injury occurred.” See Manuel v Gill, 481 Mich 637, 647; 753 NW2d 48 (2008) (stating that the word “shall” generally denotes “mandatory” conduct). The clause describing the locality (“where the injury occurred”) is similarly unambiguous and limits the place where the hearing may be held to those places that are within the locality where the claimant suffered the qualifying injury. The term “locality” is also susceptible to ordinary understanding and limits the specific geographic area within which the hearings may be held. The term “locality” generally refers to the surroundings of a particular place or district where a person or thing happens to be situated. See The Oxford English Dictionary (2d ed, 1991), p 1080 (defining “locality” as “being local, in the sense of belonging to a particular spot”; the “features or surroundings of a particular place”; and “[a] place or district, of undefined extent, considered as the site occupied by certain persons or things”). In ordinary English, a locality is often understood to be a city, town, or similarly sized district or region within a state, as distinct from the state as a whole. The Oxford English Dictionary (2d ed, 1991), p 1078 (defining “local” to mean “[b]elonging to a town or some comparatively small district, as distinct from the state or country as a whole”). See also Tribbett v Village of Marcellus, 294 Mich 607, 618-619; 293 NW 872 (1940) (discussing the constitutional limitation on local laws and citing authority explaining that a local law generally affects only one locality, which means a municipality, city, or village). Moreover, it bears emphasizing that the Legislature did not refer to a hearing district or region when it imposed this geographic limitation. Rather, it commanded that the hearing be held in a specific locality: the one “where the injury occurred.” This limitation on the term “locality” is most naturally understood to refer to an existing community — the community within which the employee was working at the time of his or her injury. A plain reading of this geographic limitation simply does not support the notion that the Legislature intended the phrase “locality where the injury occurred” to mean any district or region delineated by the executive for the purpose of administrative convenience.
As used in MCL 418.851, the term “locality” refers to a specific geographic region: the municipality or region where the employee suffered the injury giving rise to the workers’ compensation claim. Because the Hearing System and LARA’s preferred reading is contrary to the plain language of the statute, that construction is entitled to no deference. Dep’t of Labor & Economic Growth, Unemployment Ins Agency v Dykstra, 283 Mich App 212, 224-225, 229-230; 771 NW2d 423 (2009) (stating that the judiciary is the final authority on issues of statutory construction and providing that this Court will not defer to an agency construction that is contrary to the Legislature’s plainly expressed intent). The statute is clear and unambiguous. For that reason, this Court must enforce it as written. In re Bradley Estate, 494 Mich 367, 377; 835 NW2d 545 (2013). And we will do so without regard to whether we believe the Legislature’s policy choice is unjust, inconvenient, or unnecessary. Johnson v Recca, 492 Mich 169, 187; 821 NW2d 520 (2012).
It is undisputed that Younkin sustained the injury giving rise to his workers’ compensation claim in Flint. Consequently, under MCL 418.851, the magistrate assigned to resolve any disputes concerning Younkin’s claim for workers’ compensation benefits must hold the hearings to resolve the disputes in the locality that includes Flint. While reasonable people might disagree as to whether the relevant locality is Flint itself, greater Flint (i.e., Flint and its surrounding communities), or even Genesee County, we agree with the trial court that Dimondale is not sufficiently close to qualify as the “locality where the injury occurred.” MCL 418.851. Indeed, as the trial court correctly stated, Dimondale would not qualify as the appropriate “locality” for any injury that occurred in Genesee County.
Notwithstanding the fact that the Legislature unambiguously provided that hearings concerning disputes over workers’ compensation claims must be held in the locality where the injury occurred, Zimmer and Hilfinger argue that this Court should not read this statute “literally.” Instead, relying on our Supreme Court’s decision in Crane, they maintain that this Court should construe the statute merely to require that the hearing be held at the site designated by the Hearing System for claims arising in a particular district. That is, they contend that we should read the term “locality” to mean whatever region they happen to designate for purposes of establishing hearing districts, subject only to the limitation that the districts be reasonably convenient for the parties and witnesses involved in the dispute. We do not agree that our Supreme Court’s decision in Crane eviscerated the Legislature’s command that hearings on workers’ compensation claims be held in the “locality where the injury occurred” by equating “locality” with any location selected by the Hearing System so long as the site is reasonably convenient for the parties and witnesses.
In Crane, the wife of George M. Crane sought and obtained workers’ compensation benefits from Crane’s employer after Crane died in an accident. Crane, 214 Mich at 219-220. Crane worked for his employer in Greenville, Michigan, but accompanied a shipment of produce sent to Chicago. Id. at 219. Although it was unclear when he suffered the accident that killed him, Crane apparently died after he left the state. Id. at 219-220. On appeal, the employer argued that Michigan’s workers’ compensation scheme did not apply to accidents occurring out of state. Our Supreme Court, therefore, had to determine — and it emphasized that this was “the only question in this case” — whether the Worker’s Disability Compensation Act applied under those circumstances. Id. at 220.
The Supreme Court first surveyed the authorities concerning similar compensation schemes and the grounds for concluding that a state’s scheme will apply even when the injury giving rise to the claim occurred outside the state. Id. at 220-228. From these authorities, the Court concluded that the better understanding is that the provisions of Michigan’s workers’ compensation scheme apply to accidents occurring out of state as long as the contract for employment arose within this state. Id. at 228. Having determined that Michigan’s workers’ compensation scheme could apply to the employment contract at issue, the Court next considered the argument that the Legislature included provisions within the act, which demonstrated “a legislative intent that it shall not apply to accidents occurring outside the State.” Id. at 229. One such provision, the employer argued, was the Legislature’s requirement that the magistrate hold the hearing to resolve any dispute arising from the claim “ ‘at the locality where the injury occurred ....’” Id. at 230, quoting 1915 CL 5461.
In rejecting the employer’s contention that this provision suggested that the Legislature intended the Worker’s Disability Compensation Act to apply only to claims involving injuries occurring in this state, our Supreme Court stated that the “provision for the hearings . . . need not be literally followed, the hearing need not be held at the very spot the accident occurred.” Crane, 214 Mich at 230. The requirement, the Court explained, was “designed that it should be held at a convenient place for parties and their witnesses and does not make void a result reached at some other place in the absence of rights being prejudicially affected.” Id. Thus, the Court concluded, compensation should not be refused “where it is impracticable to hold the hearing on the very place of the accident.” Id.
As the Court in Crane clarified, the Legislature enacted the geographic limitation for the convenience of the parties and their witnesses, not to express its intent that the act apply only to accidents occurring within this state. Id. But this acknowledgment was itself a recognition that the Legislature had made a policy choice in favor of local hearings and that it did so for the benefit of the parties and their witnesses — not for the benefit of magistrates or a more streamlined and efficient administrative system. Moreover, although the Court did state that the geographic limitation should not be read “literally,” it did so in the context of determining whether the magistrate’s inability to hold the hearing on “the very place” of the accident rendered the result “void.” Id. And, examining that narrow issue, it opined that, when it is “impracticable” to hold the hearing on “the very place” of the accident, the failure to hold the hearing there will not warrant refusing the claim in the absence of prejudice. Id. Consequently, reading the Court’s discussion in context, it is evident that our Supreme Court did not hold that the magistrate may ignore the Legislature’s command that the hearing be held in the locality where the injury occurred. Rather, it explained that, even when the mag istrate cannot follow the Legislature’s command because it is impracticable to do so, the failure to hold the hearing at the required location will not be sufficient by itself to refuse the claim — that is, the failure to hold the hearing at the proper place will not “void” the result. Id.
We also do not agree with Zimmer and Hilfinger’s contention that the trial court erred by giving MCL 418.851 an overly broad interpretation. The statute refers to “the hearing of the claim”, but the use of the definite article does not mean that the statute applies only to a single type of hearing. Likewise, the reference to “the claim” does not limit application to only those hearings considering the validity of the initial claim. When MCL 418.851 is read in conjunction with MCL 418.841 and MCL 418.847, there is no doubt that the locality requirement applies to all hearings to resolve disputes concerning a claimant’s claim for workers’ compensation benefits. While MCL 418.851 does not apply to mere administrative recordkeeping and the processing of a claim, once a party disputes whether and to what extent a claimant is entitled to benefits, the parties have the right to have the dispute resolved by a magistrate at a hearing, which must be held in the “locality where the injury occurred.” MCL 418.851. Moreover, while nothing precludes a magistrate from taking evidence, considering arguments, and hearing testimony over multiple hearing dates, MCL 418.851 would apply to each appearance by the magistrate that serves as part of the hearing to resolve the dispute.
Also, contrary to Zimmer and Hilfinger’s contention on appeal, the trial court’s order does not require “all events and activity associated with a claimant’s file” be held in the locality. Consistently with our construction of MCL 418.851, the trial court’s order requires magistrates to hold any and all hearings to resolve disputes over workers’ compensation claims in the proper locality. The trial court properly limited its writ of mandamus to the clear statutory mandate and did not interfere with Zimmer and Hilfinger’s discretion to centralize the administration of hearings or determine the manner by which the magistrates might comply with MCL 418.851. See Teasel v Dep’t of Mental Health, 419 Mich 390, 409-412; 355 NW2d 75 (1984) (stating that mandamus will not lie “for the purpose of reviewing, revising, or controlling the exercise of discretion reposed in administrative bodies”, but clarifying that the writ will lie to compel compliance with a clear legal duty to act, even though it may involve some measure of discretion). Indeed, there is nothing in the trial court’s order to prevent Zimmer and Hilfinger from moving all aspects of the administration of claims for workers’ compensation benefits to Marquette, Michigan, as long as the magistrates who resolve disputes over those claims travel to the locality where the injury occurred when holding hearings involving those claims. Because the trial court’s order does not interfere with Zimmer and Hilfinger’s exercise of discretion, beyond those limits that the Legislature imposed, the trial court’s decision to grant mandamus did not amount to an improper interference with executive discretion. See Id.
III. CONCLUSION
With MCL 418.851, the Legislature made a clear policy choice in favor of local hearings; it required magistrates to resolve disputes over workers’ compensation claims by holding a hearing “at the locality where the injury occurred.” MCL 418.851. Although the failure to hold such hearings at the locality will not “void” the result, see Crane, 214 Mich at 230, that fact does not give magistrates the unfettered discretion to ignore the Legislature’s directive that the hearings be held in the locality where the injury occurred. Claimants whose injuries occurred within Genesee County have a clear legal right to have disputes over their claims resolved at hearings held within that locality. Similarly, Zimmer and Hilfinger had and have a clear legal duty to ensure that the magistrates who fall under their authority comply with MCL 418.851 and hold the hearings to resolve those disputes in the locality where the injury occurred. Because the trial court properly construed MCL 418.851 as granting claimants a clear legal right to hearings in the locality where the injury occurred and as imposing a clear legal duty on Zimmer and Hilfinger to ensure that the hearings occur in such localities, it did not abuse its discretion when it chose to grant Younkin’s request for a writ of mandamus compelling Zimmer and Hilfinger to ensure that the magistrates complied with MCL 418.851. See In re MCI Telecom Complaint, 460 Mich at 442-443.
Zimmer and Hilfinger’s efforts to streamline the hearing process and conserve the state’s resources are without a doubt laudable. And some might readily conclude that the locality requirement stated in MCL 418.851 is unwise, inefficient, and out of date given modern advancements in technology. But those contentions are insufficient to permit this Court to rewrite the statute under the guise of judicial interpretation. Such arguments are best directed to the branch of our government that the people empowered to make the desired change: the Legislature. See Karaczewski v Farbman Stein & Co, 478 Mich 28, 42-43; 732 NW2d 56 (2007), overruled in part on other grounds by Bezeau v Palace Sports & Entertainment, Inc, 487 Mich 455 (2010).
There were no errors warranting relief.
Affirmed. Because this appeal involved an important question on a public matter, none of the parties may tax their costs. MCR 7.219(A).
FORT Hood, J., concurred with M. J. KELLY, EJ.
For that reason, a magistrate’s past failure to comply with MCL 418.851 would not warrant relief in the absence of prejudice.
We express no opinion as to whether the parties may waive the statutory right to a hearing in the locality where the injury occurred.
By way of example, a magistrate operating out of an office in Dimondale could comply with the statutory mandate by traveling to Flint to hear disputes on scheduled dates. | [
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] |
Per Curiam.
In these consolidated appeals, appellant Michigan Consolidated Gas Company appeals as of right orders of the Michigan Public Service Commission (PSC) insofar as they repriced appellant’s purchases of exchange gas for the period of April 1, 2009, through March 31,2010, and April 1,2010, through September 27, 2010, in accordance with a rate adopted prospectively for such purchases on September 28, 2010. We vacate the orders below in those regards and remand this case to the PSC for further proceedings. There being no other issues on appeal, we affirm the orders below in all other regards.
I. FACTS
These appeals arise from gas cost reconciliation proceedings conducted pursuant to MCL 460.6h(12), which provides for periodic contested cases in order to “reconcile the revenues recorded pursuant to the gas cost recovery factor and the allowance for cost of gas included in the base rates established in the latest commission order for the gas utility with the amounts actually expensed and included in the cost of gas sold” and for doing so on the basis of the “reasonableness and prudence of expenses for which customers were charged if the issue could not have been considered adequately at a previously conducted gas supply and cost review.”
At issue is appellant’s purchases of exchange gas from the MichCon Gathering Company (MGAT), which gathers natural gas in the northern portion of the lower peninsula into its Antrim Expansion Project (AEP), then delivers the gas to appellant at a meter station in Kalkaska County. According to the parties, a perfect balance never exists between the gas delivered to the AEP and that delivered to appellant, and the difference between those two measured volumes of gas is referred to as “exchange gas.”
Appellant has historically priced its exchange gas purchases at the “jurisdictional rate,” meaning the average cost of gas over the entire cost-recovery period. However, in a September 28, 2010 order in Case No. U-16146, which is the companion of the reconciliation cases on appeal in Docket No. 312305, the PSC announced that exchange gas purchases would thereafter be priced at appellant’s “city-gate index” rates, meaning the published monthly index prices for gas purchases at appellant’s delivery point. The PSC stated that this change would operate prospectively, and elaborated as follows:
Mich Con shall prospectively price its MGAT purchases using its monthly city-gate index price rather than the jurisdictional rate. By “prospective,” the Commission means all purchases occurring after the Commission issues its final order in this case. In the case where the gas was delivered before the Commission issues this order, but the costs are not approved until after the order, then Mich Con shall book the costs at the city-gate monthly index price.
In an order issued a few weeks later, in a case not part of the present appeal, the PSC again addressed the issue of prospective application of the city-gate index pricing for exchange gas, stating:
[T]he Staff.. . recommended that the city-gate index price be applied as a ceiling on a going forward basis. The Staff believed it unfair to Mich Con to apply the city-gate index in this case as the company had not received notice that the Commission might apply another benchmark for the MGAT purchases other than the jurisdictional rate. The ALJ agreed that the city-gate rate is the more appropriate benchmark for MGAT purchase^], but agreed with the Staff that it should be applied to MGAT purchases prospectively only. The ALJ did, however, recommend that the city-gate index rate apply to MGAT supply received but not booked with an associated cost in the forthcoming [gas cost recovery (GCR)] periods. The ALJ did find evidence that Mich Con was aware of the potential risk of disallowance for MGAT pricing. [In re Application of Mich Con Gas Co, order of the Public Service Commission, entered October 14, 2010 (Case No. U-15451-R), p 9.]
Accordingly, the PSC did not use the new pricing for the latter case, but decreed that “Michigan Consolidated Gas Company shall apply the city-gate index price to all future Mich Con Gathering Company supply purchases.” Id. at 12.
A. CASE NO. U-15701-R: EXCHANGE GAS PRICING FOR APRIL 2009 TO MARCH 2010
A witness testifying on behalf of the Attorney General introduced an exhibit detailing events related to MGAT’s deliveries of gas to appellant, asserting that although appellant’s gas cost recovery plan for the 2009-2010 GCR period made no mention of MGAT, MGAT purchases did take place during that period. The witness testified that the purchase price recorded for gas received by appellant from MGAT during the 2009-2010 reconciliation period was the jurisdictional rate for that year, and that in each month of that period appellant recorded its receipt of the gas provided by MGAT as exchange gas received. Asked about changing the pricing method for this period from the jurisdictional rate to the city-gate index rate, the witness estimated that such a change would result in a reduction of appellant’s recoverable costs for exchange gas purchases of $3.3 million.
A gas supply analyst for appellant answered in the negative when asked whether appellant did purchase imbalance volumes from MGAT from April 2009 through March 2010, and elaborated, “MGAT imbalances were recorded as exchange gas and appropriately included in the cost of gas as done for all exchange gas accounting” and that “the volumes have not been booked as a purchase at this time.” The witness explained that appellant was awaiting the PSC’s order in Case No. U-15451-R, because that order was expected to include an approved pricing methodology for exchange gas, and appellant intended to adhere to the PSC’s determination in that regard. The PSC issued that order on October 14, 2010, and there reiterated its determination in the September 28, 2010 order in this case that exchange gas would thereafter be priced at city-gate index rates. Similarly, another of appellant’s supply analysts testified that “MGAT imbalance volumes for the April 2009-March 2010 period have not been purchased at this time.” However, a third witness for appellant, in rebuttal testimony, stated that appellant’s “treatment of the MGAT costs included in this reconciliation is consistent with the Commission’s order [s],” having “priced its MGAT volumes at the Jurisdictional rate” on the ground that “[t]his purchase was made prior to the Commission’s orders and would not have been a ‘prospective’ purchase at the time of these orders.”
The administrative law judge, in the proposal for decision (PFD), opined that appellant “did not ‘purchase’ the volumes within the meaning of the Commission’s orders in Case Nos. U-16146 and U-15451-R, but instead deferred the ‘purchase’ of those volumes pending the Commission’s decisions in those cases,” and thus that “an adjustment to the prices included in the reconciliation for those volumes is appropriate.” The PFD recommended that the PSC adopt the proposal of the attorney general’s witness to disallow $3.3 million in gas recovery costs.
On December 6, 2011, the PSC issued an order in Case No. U-15701-R, repricing appellant’s purchases of exchange gas incurred between April 1, 2009, and March 31, 2010, at city-gate index prices, thus reducing appellant’s gas supply cost recovery by $3.3 million. The PSC denied appellant’s motion for rehearing in an order issued on August 14, 2012.
B. CASE NO. U-16146-R: EXCHANGE GAS PRICING FOR APRIL 2010 TO MARCH 2011
Appellant’s supply analyst testified that, between April 2010 and March 2011, the volume of gas measured at the outlet of the AEP was greater than the net inputs to the AEP; that the gains across were delivered to appellant, producing a surplus for the latter; and that appellant agreed to purchase the imbalance volumes from MGAT at the time they were delivered through the meter. The witness added that those purchases took place before September 28, 2010, and so were “properly” recorded at the jurisdictional rate. Another witness for appellant confirmed that “purchases made through September 27, 2010 were priced at the Jurisdictional Rate for the period during which they were delivered,” but that “[a] 11 purchases made after this date were priced at MichCon’s City Gate Index in accordance with the Commission’s Orders.”
However, the attorney general’s witness recommended that, to be consistent with its treatment of prices for 2009-2010, the PSC adopt city-gate index pricing for the entire 2010-2011 period, and thus reduce appellant’s recovery of gas costs for that period by $1,140,000.
On August 14, 2012, the same date on which the PSC denied rehearing in Case No. U-15701-R, the PSC issued an order pricing all of appellant’s purchases of exchange gas incurred between April 1, 2010, and March 31, 2011, at city-gate index prices, declining to distinguish purchases made before September 28, 2010, from those made afterward. The result was a reduction of appellant’s gas supply cost recovery by $1,142,595. The PSC took the opportunity to elaborate on its new pricing policy, stating:
[T]he jurisdictional rate applies to gas where, by contract, a fixed quantity of gas must be delivered to a certain receipt point on a certain date. None of these attributes applies to MGAT deliveries; thus, it appears that the jurisdictional rate is an unreasonable proxy for pricing MGAT imbalances. This is especially true when the company has an obligation to minimize the cost of gas as provided in Section 3 of Act 304.[ ] Nevertheless, the Commission agreed with the Staffs position in Case No. U-15451-R, that it would be unfair to re-price MGAT supply in that reconciliation because Mich Con was not on notice that the Commission would use the city-gate index as a proxy for MGAT pricing. At this point, however, Mich Con has been aware for almost two years that MGAT purchases are more appropriately priced at city-gate index.
C. APPELLATE PROCEEDINGS
In these consolidated appeals, appellant argues that the PSC erred by applying the city-gate index prices to any purchases of exchange gas incurred at the jurisdictional rate before September 28, 2010, the date from which the city-gate rates were to replace the jurisdictional rates. Appellant raises no challenges concerning witness credibility, the accuracy of any of the mathematics involved, or the overall propriety of using city-gate index pricing for exchange gas purchases. Instead, appellant raises a challenge on procedural grounds concerning the propriety of imposing such an adjustment in a rate reconciliation case, and whether the change constituted impermissible retroactive rate-making. Appellant also challenges what it characterizes as the PSC’s retroactive application of city-gate index rates in these cases on the substantive ground that the PSC failed to adhere to its determination to apply the new pricing methodology only prospectively. Appellees argue that the PSC had a reasonable basis for concluding that the purchases in question took place after the effective date of the orders establishing city-gate index pricing, and also acted reasonably in using the reconciliation process to enforce that requirement.
II. STANDARDS OF REVIEW
All rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasonable. MCL 462.25. See also Mich Consol Gas Co v Pub Serv Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973). A party aggrieved by an order of the PSC bears the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8). To establish that a PSC order is unlawful, the appellant must show that the PSC failed to follow a statutory requirement or abused its discretion in the exercise of its judgment. In re MCI Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164 (1999).
A reviewing court gives due deference to the PSC’s administrative expertise, and is not to substitute its judgment for that of the PSC. Attorney General v Pub Serv Comm No 2, 237 Mich App 82, 88; 602 NW2d 225 (1999). However, whether the PSC exceeded the scope of its authority is a question of law calling for review de novo. In re Complaint of Pelland Against Ameritech Mich, 254 Mich App 675, 682; 658 NW2d 849 (2003). Likewise, issues of statutory interpretation call for review de novo. In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 102; 754 NW2d 259 (2008). A reviewing court should give an administrative agency’s interpretation of statutes that it is obligated to execute respectful consideration, but not deference. Id. at 103, 108.
III. REPRICING IN A RECONCILIATION CASE
Appellant argues that the PSC exceeded its authority by using the reconciliation cases below to adjust the pricing of its exchange gas purchases. We disagree.
This issue concerns the interplay between rate cases and reconciliation cases. MCL 460.6h sets forth the process through which a gas utility may include gas cost recovery factors in calculating rates charged to customers, and through which the PSC may approve such factors initially, or adjust them to reconcile them with actual expenses incurred. Subsections (2) through (11) govern contested GCR plan cases to establish and implement such factors. Specifically, subsection (3) authorizes a gas utility to evaluate the “reasonableness and prudence of its decisions to obtain gas” and to explain its “legal and regulatory actions ... to minimize the cost of gas purchased by the utility.”
Subsection (12) provides for contested gas cost reconciliation proceedings to review GCR plans “not later than 3 months after the end of the 12-month period covered by a .. . plan,” to “reconcile the revenues recorded” in connection with the GCR factors “and the allowance for cost of gas included in the base rates established in the latest commission order for the gas utility with the amounts actually expensed and included in the cost of gas sold,” and authorizes the PSC to “consider any issue regarding the reasonableness and prudence of expenses for which customers were charged if the issue could not have been considered adequately at a previously conducted gas supply and cost review.”
Subsection (13) requires the PSC, in orders resulting from gas cost reconciliation cases, to “require a gas utility to refund to customers or credit to customers’ bills any net amount determined to have been recovered over the period covered in excess of the amounts determined to have been actually expensed by the utility for gas sold, and to have been incurred through reasonable and prudent actions .. . .”
Subsection (14) in turn requires the PSC to “authorize a gas utility to recover from customers any net amount by which the amount determined to have been recovered over the period covered was less than the amount determined to have been actually expensed by the utility for gas sold, and to have been incurred through reasonable and prudent actions . . . .”
Appellant argues that the PSC erred by demanding a change in pricing exchange gas in reconciliation proceedings, on the grounds that the requirement in MCL 460.6h for minimizing costs occurs in the course of providing for GCR plan cases, not reconciliation ones, and that by imposing such adjustments in reconciliation proceedings the PSC has run afoul of the general rule against retroactive ratemaking. The PSC concedes that in the reconciliation cases below it did not determine appellant’s MGAT purchases to be unreasonable or imprudent, but asserts that it retained authority beyond that initial approval to insist on pricing for those purchases consistent with its earlier orders.
The PSC possesses only that authority granted to it by the Legislature. Attorney General v Pub Serv Comm, 231 Mich App 76, 78; 585 NW2d 310 (1998). Among the constraints on administrative action is that decisions may not be “[m]ade upon unlawful procedure resulting in material prejudice to a party.” MCL 24.306(l)(c). Words and phrases in the PSC’s enabling statutes must be read narrowly and in the context of the entire statutory scheme. See Consumers Power Co v Pub Serv Comm, 460 Mich 148, 155-159; 596 NW2d 126 (1999). However, “[t]o the extent possible, each provision of a statute should be given effect, and each should be read to harmonize with all others.” Mich Basic Prop Ins Ass’n v Ware, 230 Mich App 44, 49; 583 NW2d 240 (1998).
MCL 460.6h first sets forth provisions for establishing, approving, and implementing GCR factors, then sets forth provisions for reviewing such implementation in progress to determine whether adjustments are in order. Again, MCL 460.6h(12) directs the PSC to “reconcile the revenues recorded pursuant to the gas cost recovery factor and the allowance for cost of gas included in the base rates established in the latest commission order for the gas utility with the amounts actually expensed and included in the cost of gas sold,” and to do so on the basis of the “reasonableness and prudence of expenses [.]” The provision for reconciliation proceedings thus calls for refinement or enforcement of what was decided in the attendant plan proceedings. Accordingly, we construe the command of MCL 460.6h(3) to minimize costs as bearing on both kinds of proceeding.
In Case No. U-15701-R, its GCR-plan companion, Case No. U-15701, included no provision for exchange gas at all, and so when the reality of such purchases from MGAT came into being, reconciliation proceedings afforded the only opportunity to consider the question whether appellant was recording those purchases at the correct price. That enforcement action thus falls squarely under the authority prescribed in subsection (12) for the PSC to “reconcile the revenues” on the basis of “reasonableness and prudence of expenses for which customers were charged if the issue could not have been considered adequately at a previously conducted gas supply and cost review” (emphasis added).
In Case No. U-16146-R, its rate-proceeding companion, Case No. U-16146, expressly envisioned MGAT purchases, and prospectively called for city-gate index pricing of exchange gas. In light of the discussion and resolution of questions concerning how to price exchange gas through the development of, and decision in, the GCR plan case that in turn engendered this reconciliation case, it would be elevating form over function to suggest that the PSC was powerless to remedy a perceived error in the matter in the reconciliation proceeding.
Nor does appellant’s characterization of the result as retroactive ratemaking have merit. Retroactive rate-making “involves a change either upward or downward in the rates charged by a utility for its service under a lawful order.” Detroit Edison Co v Pub Serv Comm, 221 Mich App 370, 376; 562 NW2d 224 (1997). In the absence of specific statutory authorization, retroactive ratemaking in utility cases is prohibited. Mich Bell Tel Co v Pub Serv Comm, 315 Mich 533, 547, 554-555; 24 NW2d 200 (1946). However, “the PSC has discretion to determine what charges and expenses to allow as costs of operation. What reasonable accounting method to employ is a legislative decision to be made by the PSC.” Detroit Edison Co, 221 Mich App at 375 (citation omitted).
In this case, if the adjustments the PSC made to the pricing of exchange gas in the reconciliation proceedings below may fairly be characterized as retroactive ratemaking, such retroactive ratemaking is statutorily authorized. See Mich Bell Tel Co, 315 Mich at 547, 554-555. As previously discussed, MCL 460.6h sets forth reconciliation proceedings as a means of refining or enforcing the provisions of related GCR plan cases during or immediately following implementation of those plans. As appellees consistently and reasonably note, the statutory provisions for reconciliation cases envision some after-the-fact adjustments in approved costs by their very nature.
For these reasons, we reject appellant’s procedural challenges.
IV PROSPECTIVE APPLICATION
Appellant argues that the PSC set forth a new pricing methodology with strictly prospective application, but then engaged in creative interpretation of the evidence and of its orders to apply that methodology retroactively. We find merit to this argument.
In Case No. U-15701-R, the PSC justified applying the city-gate index pricing by pointing out that two of appellant’s witnesses testified that exchange gas from MGAT had been received and recorded, but that as a matter of bookkeeping, actual completion of the purchases would be delayed until the PSC had issued orders resolving recent controversy over the best method of pricing. The PSC apparently credited those two witnesses entirely, and discredited as an unexplained contradiction the later testimony from a third witness that the gas in question had actually been purchased before the awaited orders were issued. The PSC apparently found it expedient to identify an evidentiary conflict and resolve it in favor of the witnesses who spoke of deferred purchasing. But, as appellant points out, its witnesses were speaking at different times about different practices.
The witnesses who spoke of appellant’s deferring purchases of exchange gas testified on June 29, 2010. The rebuttal witness who spoke of appellant’s having in fact completed all such purchases initiated before the PSC’s September 28, 2010 order announcing a prospective new pricing scheme by that date testified on March 15, 2011. The attorney general’s witness confirmed that a change had taken place, offering the following summary:
[The administrative law judge] issued his PFD in Case No. U-15451-R on July 1, 2010, just two days after MichCon had filed its U-15701-R testimony declaring its intention to price its MGAT purchases in accord with the Commission’s U-15451-R order when it appeared. But MichCon did not wait for the Commission’s order. Instead, on August 4, 2010, MichCon purchased the MGAT deliveries made during the U-15701-R GCR period (April 2009 through March 2010) at a price equal to the Jurisdictional Rate for that U-15701-R period. On the same date, MichCon also purchased the gas delivered by MGAT in April, May, and June 2010. The price for the latter purchase was $6.95 per Mcf, which was MichCon’s estimate (as of the purchase date) of its Jurisdictional Rate for the 2010-2011 GCR period, which is the period being addressed in the present proceeding.
The following day — August 5, 2010 — [the] ALJ ... issued her PFD in Case No. U-16146, MichCon’s GCR plan proceeding for the 2010-2011 GCR period being reconciled here. Four days later, on August 9, MichCon purchased MGAT’s July deliveries; and then MichCon purchased MGAT’s August 2010 deliveries on September 24. Both of these MGAT purchases were priced at MichCon’s then-current estimate of what its Jurisdictional Rate would be for the entire 2010-2011 GCR period, ending March 31, 2011. That estimate remained at $6.95 per Mcf for the purchase of MGAT’s July and August deliveries, the same as the estimate used to price the deliveries for April, May, and June 2010.
Also on August 9, 2010, the same day it purchased MGAT’s July deliveries, MichCon amended its Base Contract with MGAT for the purchase of the MGAT deliveries. The amendment fixed the pricing of the MGAT purchases at MichCon’s Jurisdictional Rate, contrary [to] the recommendations by both ALJs in their PFDs addressing the pricing issue. The amendment also made this pricing change retroactive to include all transactions executed after April 1, 2009.
This summary comports with an exhibit submitted by the Attorney General detailing the purchasing activity between appellant and MGAT at the relevant times. This undisputed chronology suggests that appellant originally intended to defer the completion of its exchange of gas purchases until the PSC issued orders indicating whether there would be a change to city-gate index pricing, but then actually accelerated the process in order to complete the transactions at issue before the anticipated change to retain the perceived advantage of the earlier pricing methodology.
Appellant characterizes its timing in incurring the exchange gas purchases as a management decision outside the PSC’s regulatory purview. Appellant likens its actions in this regard to a taxpayer who “might complete a contemplated transaction before year-end due to a potential future change in the tax law.” We see nothing pernicious about a utility’s accelerating certain business activities in order to maximize the advantage to be had from doing so before an anticipated change in the regulatory environment. We must conclude that the record does not support the PSC’s finding, because the earlier testimony reflected a mere plan to defer actual purchases of exchange gas, which plan ultimately yielded to a change in appellant’s actual business operations. It is undisputed that appellant actually completed the purchases before the orders affecting pricing methodology were issued.
In its order in Case No. U-16146-R, the PSC noted the Attorney General’s argument below that appellant changed its relationship with MGAT in order to “frustrate” the pending recommendations for a change in pricing methodology. The PSC justified its determination to impose city-gate index pricing for the whole period covered in that reconciliation on the grounds that the September 28, 2010 order that called for city-gate index pricing for “all purchases occurring after the Commission issues its final order in this case” also stated that it applied to deliveries of gas that predated that order, but whose costs were not yet approved by that order. According to the PSC, appellant “has been aware for almost two years that MGAT purchases are more appropriately priced at city-gate index.” On appeal, the PSC adopts the following reasoning set forth by the ALJ in the proposal for decision:
Under the express terms of that [9/28/10] Order [in Case No. U-16146], the MGAT purchases between April 1 and September 27, 2010, at issue in this case occurred before September 28, 2010. However, those purchases will not be approved until the Order in this case is entered. Therefore, all MGAT purchases during the GCR Year, irrespective of when they occurred, must be priced at the city-gate index.
The PSC thus concedes that the purchases of the gas at issue had indeed “occurred” before the effective date of the order calling for a change in pricing methodology, then relies on the pendency of final cost approval for purposes of imposing the new pricing on those purchases that had otherwise already occurred. Appellant asserts that dating otherwise completed purchases to a later approval date does not comport with the announced policy of prospective application. We agree that application of the policy to purchases that appellant made before September 28, 2010, did not comply with the PSC’s statement that it would only prospectively apply the new policy.
For these reasons, we conclude that the PSC acted unreasonably, or capriciously, in setting forth a prospective-only requirement changing the pricing of exchange gas to the city-gate index method, then applying that change retroactively. In Case No. U-15701-R it achieved this by overreliance on testimony indicating that appellant intended to defer completing its purchase of delivered exchange gas pending an expected decision from the PSC, when uncontroverted testimony and exhibits indicated that appellant in fact completed the purchases of exchange gas at issue before the PSC announced that pricing change. In Case No. U-16146-R, the PSC enforced its ostensibly prospective-only rule retroactively by indulging the fiction that otherwise completed purchases of exchange gas were in fact not completed until approved through completion of the PSC’s review process, despite conceding that the purchases had occurred before September 28, 2010.
Accordingly, we vacate the orders below insofar as they retroactively repriced appellant’s purchases of exchange gas completed before September 28, 2010, and remand this case to the PSC for further proceedings consistent with this opinion.
Reversed in part and remanded. We do not retain jurisdiction.
WHITBECK, C.J., and FITZGERALD and O’CONNELL, JJ., concurred.
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FITZGERALD, J.
Plaintiff law firm brought this action to collect unpaid attorney fees from defendants. After a jury trial, the trial court entered a judgment in favor of plaintiff in the amount of $73,501.90, inclusive of damages, taxable costs, and prejudgment interest. Defendants appeal as of right from that judgment in Docket No. 302835. The trial court subsequently granted plaintiffs motion for case-evaluation sanctions pursuant to MCR 2.403(0). Defendants appeal as of right from the attorney fees orders in Docket Nos. 305149 and 307002. We consolidated the appeals. We affirm in part, reverse in part, and remand.
DEFENDANTS’ TRANSACTIONS TO PURCHASE HYDROELECTRIC DAMS
Plaintiffs claims for unpaid attorney fees arise from plaintiff s representation of defendants in transactions to purchase and redevelop four hydroelectric dams in the Midland County area. The dams were owned by Synex-Wolverine. Defendants’ cotrustee, Lee Mueller, believed the dams could be redeveloped for a profitable operation producing electrical power for Consumer’s Energy. The transactions involved defendants’ purchasing the entities that operated the dams and also purchasing more than 200 related real estate parcels from Synex-Wolverine. Synex-Wolverine’s 51% shareholder, Scott Goodwin, would also own a 51% interest in the new business, Synex-Michigan, but Goodwin would not have an ownership interest in the real estate. Defendants had sufficient resources to pay for the real estate, but they required financing to purchase the equipment and other business assets. Defendants and their Chicago counsel sought financing from a bank, but defendants obtained a bridge loan from Goodwin’s associate, Richard Milsner, to enable the transaction to close before defendants received permanent financing. Milsner advanced the loan on the condition that Goodwin retain a 51% interest in the newly formed business enterprise.
Defendants retained plaintiff to conduct the transactions, which involved complex tax-planning issues. The transactions were subject to an advantageous tax benefit under the Internal Revenue Code, but only if the transactions were completed within a 180-day period. The transactions closed on March 17 and 23, 2006, enabling defendants to realize the tax benefit. Mueller was satisfied with the transactions and plaintiffs work up to the time of the closing, but afterward Mueller came to believe that Goodwin breached his duties to defendants, effectively depriving defendants of the benefit of the bargain. Goodwin made bridge-loan payments directly to Milsner instead of complying with Mueller’s instructions to route the payments to defendants. Mueller alleged at trial that Goodwin “locked out” defendants from the dam and thwarted defendants’ receipt of payments. Defendants alleged that Goodwin wrongfully failed to disclose to defendants that he had a history of noncompliance with federal energy regulators. Defendants requested plaintiffs services in handling these legal disputes with Goodwin, but they were disappointed with the results. In December 2006, defendants ceased paying plaintiffs attorney fees, leaving an outstanding balance of approximately $74,358.94.
Plaintiff filed a complaint alleging that defendants had paid $161,098.22 in legal fees, but had failed to pay the outstanding balance of $74,358.94. Plaintiff brought claims of breach of contract, account stated, and quantum meruit, and sought damages of $87,632.40, consisting of the unpaid balance, $1,098.22 for costs, and $12,175.24 for a time-price differential. Defendants denied that plaintiff was entitled to the requested damages. In their affirmative defenses, defendants asserted that plaintiff committed the first material breach of contract, that defendants were dissatisfied with the quality of plaintiffs representation, and that plaintiff improperly billed defendants for more hours than were actually spent on the matter, charged defendants for services that were not reasonably necessary, and raised their rates in violation of an agreement to only raise rates with defendants’ written approval. Defendants argued that plaintiff had the burden of proving “that each time entry was actually incurred, was accurately recorded in terms of its length, and represented services reasonably necessary for representation of the defendants.”
TRIAL
At trial, plaintiff’s former associate attorney, John Miller, testified regarding the time he spent on legal matters for defendants. Miller testified that he assisted plaintiffs principal, Edward Castellani, an attorney and certified public accountant, with legal research and other tasks related to business and tax transactions. Miller testified about his hourly rate and the process by which associates submitted their billable hours to partners for review and approval before plaintiff billed clients. He denied overstating his billable hours. Castellani testified that he assigned research and writing tasks to Miller because Miller could perform the work at a lower billing rate. Castellani testified that Miller’s work was satisfactory and that Miller’s time records were accurate. Castellani explained that Douglas Austin, also one of plaintiff’s shareholders, was involved in the project because of his expertise in real estate law.
Castellani believed that plaintiffs work for defendants was completed after the closing, but defendants contacted Castellani about continuing problems with Goodwin. Castellani described “phase two” of plaintiffs work for defendants as “a lot of negotiations, discussion, and legal maneuvering about how to get [Goodwin] out of the business.” Additionally, defendants needed a source of financing to pay off the bridge loan advanced by Milsner before the closing.
Castellani testified regarding an e-mail that Mueller sent to Castellani in response to Castellani’s e-mail to the trustees on September 27, 2006. Mueller stated that defendants paid $12,000 toward their account that month, but they would not make additional payments until Goodwin resumed payments to defendants. The e-mail did not contain anything critical of plaintiffs work. Castellani’s response stated that defendants’ payment of $12,000 left an $8,000 amount that was more than 90 days overdue. Castellani warned defendants that plaintiff would terminate their services when the account became 120 days past due. Castellani rejected defendants’ plan to delay paying plaintiff until Goodwin made payments to defendants. Castellani testified that defendants made no payments after November 2006.
Plaintiff questioned Castellani about defense Exhibit 35, an e-mail that Mueller sent to Castellani the first week of December 2006. In the e-mail, Mueller explained that defendants had problems with their ownership of the hydroelectric facilities. Defendants requested that plaintiff cosign a loan in the amount of $3,400,000 to enable defendants to secure the financing needed to continue to operate the dams. In exchange, Mueller offered to pay plaintiff $60,000, plus $75,000 to “pre-fund a Michigan litigation” against Goodwin. On December 18, 2006, Castellani wrote defendants a letter stating that plaintiff was suspending performance of legal services for defendants until defendants made arrangements to pay the balance due. Castellani testified that Mueller responded with an e-mail stating “there are numerous schedules that are apparently not actually part of the purchase agreement.” Mueller complained that he could not determine from the transactional record which assets were owned by which entities, other than a list of personal property owned by Synex-Wolverine.
Castellani stated that Mike Perry was the billing attorney who reviewed billings to ensure that they were for reasonably necessary services. Castellani agreed that plaintiff was contractually bound to only bill the client for time actually spent on services that were reasonably necessary. Castellani acknowledged that the contract listed his hourly rate as $230, but he believed that the hourly rate actually charged was $240. Castellani stated that he did not know the reason for the differential because Perry handled billing for the firm. Castellani stated that he billed for activities such as drafting documents, reviewing documents, reviewing laws and rules, conferring with other attorneys regarding the file, and interactions with the client. Castellani admitted that all the work done by Miller was work that Castellani could have done himself.
On cross-examination, defendants’ counsel reviewed testimony that there were two closings, one on March 17 and one on March 23, 2006. When asked whether Mueller was “then happy that it got closed,” Castellani answered affirmatively. Defendants asked Castellani if plaintiff resolved defendants’ problem relating to their loss of physical control of the dams. Castellani replied that it did not. Castellani stated that Mueller asked for plaintiffs assistance in obtaining permanent financing to resolve this problem. Defendants asked if “Mr. Mueller was unhappy with the failure to solve this problem?” Castellani replied, “I would say he was unhappy with the way his partner was interpreting those documents.”
Defendants questioned Castellani extensively regarding items on plaintiffs invoices, suggesting that the tasks listed could not really have required as much time as shown in the billings. Defendants also questioned Castellani regarding the prebilhng process in which senior attorneys reviewed associates’ time reports and adjusted them before submitting the bills to clients. Castellani denied that Mueller complained that his billings contained too much detail or lacked enough detail.
Douglas Austin, one of plaintiffs shareholders, testified that his area of practice was real estate and that he usually represented developers. Austin stated that defendants received a bridge loan from Milsner to enable them to close before they obtained permanent financing. Austin did not attend the closing because the real estate issues were resolved by that time. Austin testified regarding plaintiffs Exhibit 36, an e-mail that Austin sent to Castellani after the closings. The e-mail stated, “Am extremely happy Lee [Mueller] called at 4:48 to say that the recordings had been completed, and Eric had revised the commitments to show no requirements.” It also stated, “Lee wanted me to express to you and John his gratitude for everything you have done. He is very pleased.”
Lee Mueller testified that he had been a successor cotrustee of the trusts since 1998. Mueller recognized a business opportunity for the trusts in redeveloping the hydroelectric dams. Mueller and Goodwin discussed the possibility of teaming up to operate the hydroelectric dams. Defendants had sufficient cash to purchase the real estate, but not to purchase the business entities. Defendants’ attorney in Chicago, Peter Recchia, agreed to look into a loan from LaSalle Bank.
Mueller stated that an escrow agent in Chicago paid plaintiffs bills to defendants. Mueller testified regarding his belief that plaintiffs attorneys inflated their bills by exaggerating the amount of time spent on various tasks. For example, Mueller objected to a charge of $120 for time spent exchanging e-mails about the bridge loan. Mueller testified that Miller was present at the closing on March 17, 2006. The closing took several hours and consisted mostly of participants signing documents. Mueller believed that Miller was a “spectator.” Castellani did not tell Mueller that plaintiff would charge defendants for Miller’s attendance. After Mueller received plaintiffs correspondence, notifying defendants of an outstanding balance of $97,000, he called Castellani to say he believed that defendants had already paid all of plaintiffs fees.
Mueller testified regarding the Milsner loan and the early indications that Goodwin intended to cheat defendants:
When the mortgage documents were being delivered to or transmitted to Ed Castellani for review, they had language in them that was very, very troublesome.
Mr. Milsner had expressed a view that in order to — that in order for him to feel secure about providing a 2.4 million dollar bridge loan to the Boyce Trusts, that he would want to be assured that these assets, these hydro assets, would be managed by somebody that he had confidence in. And because Mr. Goodwin was his partner, he wanted assurances that Mr. Goodwin would be the active manager rather than co-trustees of a trust that had never managed a hydro project before.
In concept that — that didn’t sound out of the ordinary. But in practice, I quickly realized that the intent of these documents was not to secure Mr. Milsner’s temporary interest in his loan, but rather these documents were set up very cleverly to provide the ability to swindle the Boyce Trusts out of the entirety of our three million dollar investment.
Mueller confronted Goodwin and reminded him that Goodwin was not to own any interest in the real estate. Goodwin relented, and Castellani changed the documents accordingly. Mueller realized within 30 days that defendants were being swindled, when Goodwin declined to comply with Mueller’s procedures for routing installment payments to Milsner. Mueller intended for Goodwin to submit payments to defendants, which would make payments to Milsner. Mueller knew that defendants were “in trouble” because Goodwin refused to make payments and made excuses for not paying.
Plaintiffs counsel remarked that Mueller had started providing testimony regarding plaintiffs services to defendants for the postclosing matters. Counsel stated:
I’m not sure where this is going to go, but the quote, malpractice, wrongdoing kind of thing is out of the case. And if we’re talking about reasonable necessity of service, that’s one thing. But if we’re going to talk about Fraser Trebilcock not doing or doing something else and whether — other than whether their services were rea sonably necessary, I think we’re going to be running afield far (sic) from what the case is all about.
Defendants’ counsel responded that the evidence established that plaintiff billed “a significant amount of money” in the summer and fall of 2006 “without getting things done that Boyce Trusts had requested [plaintiff] to do..” Plaintiff responded that the contract between the parties did not provide for contingent fees. The trial court asked defendants to specify whether Mueller would testify that the task was not accomplished or that the objective was not accomplished. By way of explaining the distinction, the trial court gave the example of plaintiff billing defendants for a telephone call that was not made, versus billing defendants for a phone call that was made, but did not achieve the result that defendants wanted. The court commented that, in the latter category, “we’re getting into the subjective expectations of the client and . . . whether the lawyer was being effective.” Defendants responded that plaintiff’s witnesses testified about Mueller’s failure to object to invoices. The trial court replied that plaintiff’s failure to meet defendants’ objectives was not relevant because the contract did not provide for a contingency fee. Defendants argued that plaintiff was “engaged in character assassination of Mr. Mueller,” which would probably culminate in a closing argument that “Mueller got himself into a situation and then wasn’t happy with what Fraser Trebilcock did and he didn’t pay . . . .” Defendants asserted that plaintiff “introduced” these issues, so defendants “should have an opportunity to rebut these issues.” The trial court replied that defendants were attempting to mislead the jury about whether the engagement letter empowered defendants to “condition payment not on whether services were reasonably necessary, but whether [they were] satisfied with the outcome of the services that were provided.”
Defendants’ counsel acknowledged that the parties’ contract did not condition defendants’ obligation to pay on their satisfaction with plaintiffs work. But he argued that defendants’ satisfaction was relevant to rebutting issues raised by plaintiff. The trial court commented that defendants had previously intended to pay all of plaintiffs legal fees when defendants received the funds they expected. The trial court stated that defendants’ objections to the amount of the billings, and their inability to pay the invoices, did not support defendants’ position that they were refusing payment because they believed plaintiff was padding the bills with unnecessary or unperformed services. The trial court allowed defendants’ counsel to question Mueller regarding defendants’ complaint that Goodwin excluded defendants from the dams.
Mueller testified that he discontinued plaintiffs services in November or December 2006. On cross-examination, Mueller stated that his failure to pay invoices from August 2006 until March 2007 represented his disapproval. Mueller stated that he expressed to Castellani his “disapproval of the rapacious nature” and “greedy and excessive billing practices” exercised by plaintiff. Mueller continued to pay bills at a lower rate because he did not want to stop payment and lose plaintiffs services. Mueller acknowledged that he told Castellani in correspondence dated September 20,2006, that defendants intended to pay all of their obligations when funds became available. Mueller admitted that the September 20, 2006, e-mail indicated that defendants would sell securities to raise capital to fulfill their commitment to paying plaintiff.
JURY INSTRUCTION DISPUTE
Defendants proposed a special jury instruction indicating that plaintiff had the burden of proving by a preponderance of the evidence that the billings were for services that were reasonably necessary and that the billings accurately stated the time actually spent on each item. The trial court declined to give defendants’ proposed instruction, stating, “I think that [M Civ JI] 142.50 accurately states the law that the Plaintiff has the burden to prove what the parties intended the contract to mean. Whether certain services were or were not reasonably necessary as contemplated by the contract is a factual question ... for the jury to decide.”
The jury found that defendants breached the fee agreement by failing to make payments to plaintiff and that defendants’ breach resulted in $70,000 in damages for plaintiff. The trial court awarded plaintiff a judgment consisting of $70,000 in damages, $380 in taxable costs, interest in the amount of $2,697.21 from August 3, 2009, to August 3, 2010, and interest of $804.61 from August 3, 2010, to December 3, 2010, for a total judgment “in the amount of $73,501.90 [sic].”
POSTJUDGMENT PROCEEDINGS
Defendants moved for a new trial pursuant to MCR 2.611. Defendants asserted that they were deprived of a fair trial because the trial court failed to give their proposed jury instruction on the burden of proof and because the trial court did not allow defendants to present rebuttal testimony concerning defendants’ “displeasure . . . with the amount billed.” The trial court found that defendants had ample opportunity to rebut plaintiffs evidence. The court commented that defendants presented “an awful lot of testimony con cerning the line-by-line time entries from the itemized bills of the law firm.” The court also commented that although the limitations period for filing a malpractice claim had expired, defendants had, but did not exercise, the option of asserting legal malpractice as an affirmative defense and identifying an expert witness in support of that defense. The court also determined that M Civ JI 142.01 was appropriate and accurate with respect to the burden of proof. The trial court denied defendants’ motion for a new trial.
Plaintiff moved for an award of case-evaluation sanctions pursuant to MCR 2.403(0). Plaintiff submitted documentation indicating that the case-evaluation panel unanimously evaluated the case in the amount of $60,000 for plaintiff, which plaintiff accepted, and which defendants effectively rejected by failing to respond. Plaintiff submitted a “Draft for Work-in-Process” detailing its attorneys’ work on the case since the case evaluation.
Defendants argued in response that plaintiff did not incur attorney fees, and was not eligible to receive attorney fees as case-evaluation sanctions, because MCR 2.403(0) does not authorize an award of attorney fees to a party that represents itself. Alternatively, defendants requested that the trial court conduct an evidentiary hearing to determine the reasonableness of the requested attorney fees after allowing the parties the opportunity to conduct discovery. Defendants argued that the requested attorney fees were excessive and out of line with the typical fee rates charged in the Midland area. Defendants filed a second pleading disputing plaintiffs calculation of attorney fees. Defendants argued that the reasonable rate for calculating plaintiffs attorney fees was the range of $195 to $200. Defendants based this argument on the median billing rate for attorneys in Midland County of $200 and the median rate for creditor collections of $195.
At a hearing on February 4, 2011, the trial court commented that if a law firm uses its own attorneys to litigate an action against a former client for unpaid fees, the judgment it receives will be diminished by the cost of the lost opportunity of providing legal services to paying clients. The court commented that plaintiff used $81,000 worth of attorney work hours to collect a $70,000 debt; consequently, “[i]f they can’t recoup the cost, or if the firm can’t recoup the costs of pursuing the client that didn’t pay the firm, they come out $11,000 upside down.” The court asked defendants “what disincentive is there for the client to not stiff the lawyer?” Defendants responded by citing Watkins v Manchester, 220 Mich App 337; 559 NW2d 81 (1996), in which this Court followed caselaw that held that an attorney party who proceeded in propria persona in a lawsuit under the Freedom of Information Act was not permitted to recover attorney fees under MCR 2.403(0). The trial court determined that Watkins was distinguishable because it involved an individual attorney.
The trial court concluded that plaintiff was not a pro se litigant because it was a professional corporation represented through its agents. The court ruled that plaintiff was entitled to case-evaluation sanctions, including attorney fees, to be determined at an evidentiary hearing.
The court issued an order directing the parties to conduct discovery on the proper amount of fees in preparation for a hearing to be held on March 9, 2011. Subsequently, the parties stipulated to an order requiring the parties to take de hene esse depositions of the expert witnesses, Jack Pulley for plaintiff, and William Garchow for defendants, and file postdeposition briefs within seven days from receipt of the deposition transcripts. Defendants argued that plaintiffs fees and costs incurred in pursuing case-evaluation sanctions were not recoverable. Defendants disparaged Pulley as incompetent and corrupt and urged the trial court to give no credence to his opinion on the hourly rate and amount of hours. Defendants praised their own expert, Garchow, and argued in favor of his range of reasonable fees from $180 to $250 an hour.
Plaintiff argued in favor of “$115,202 as a reasonable attorney fee, based on the blended hourly rate of $296 per hour for Fraser Trebilcock’s attorneys’ services from September 21, 2010, until March 3, 2011 necessitated by the Defendants’ rejection of the case evaluation award.” Additionally, plaintiffs brief filed before the stipulated order included arguments that its attorneys’ respective billing rates were reasonable. Plaintiff cited Pulley’s opinion that plaintiffs billing rates were reasonable. Plaintiff also cited data from the state bar that attorney fees in the Mt. Pleasant area ranged from $175 to $400 an hour, with plaintiffs attorneys’ ranges from $175 to $320 falling within this bracket. Plaintiff defended Perry’s hourly rate of $320, Nicole Proulx’s hourly rate of $200, Austin’s hourly rate of $260, and Ryan Kauffman’s hourly rate of $195. Plaintiff argued that lead counsel’s claim for 138.6 hours from September 21, 2010, until November 4, 2010, was reasonable in view of the tasks he was required to perform. Plaintiff argued that the factors in Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982), justified plaintiffs attorneys’ fees.
The trial court began its analysis by determining the appropriate hourly rate for Perry’s services. The court rejected plaintiff’s request of $320 as a reasonable hourly rate, stating that MCR 2.403(0) “is not intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client.” The court also rejected defendants’ argument that $200 was a reasonable rate. The court considered data from the 2010 State Bar of Michigan survey regarding the median, the 75th percentile, and the 95th percentile hourly rates for attorneys based on “legal classification,” years in practice, firm size, field of practice, and primary location. Perry’s legal classification was equity shareholder, he had 37 years of practice, his firm had 40 attorneys, his field of practice was environmental law, and his primary locations were Ingham and Midland Counties. The data indicated that the median hourly rate for attorneys in Michigan who share these categories with Perry ranged from $200 to $270, while the 75th percentile rate in these categories ranged from $235 to $350. The trial court concluded “that given Mr. Perry’s skill, experience and reputation, the 75th percentile more accurately reflects the fee customarily charged for similar legal services, and finds as reasonable a rate of $300 per hour.”
The trial court addressed defendants’ argument that $200 was the reasonable rate because it was the median hourly billing rate in Midland County. The trial court stated that defendants’ “near exclusive reliance” on one factor was inconsistent with our Supreme Court’s decision in Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008). The court found that defendants’ suggested rate failed to account for Perry’s skill, experience, and reputation. The court stated that the reasonable fee did not reflect “what might be reasonable in Ingham County, but rather, what is reasonable in Midland County under the particular circumstances of this case.” The court stated:
It should also be noted that the median hourly billing rate for both Ingham and Midland County is $200, while the 75th percentile for each is roughly equivalent. The Court believes that the 75th percentile figure (whether in Ingham County or Midland County), coupled with an appropriate “upcharge” for Mr. Perry’s considerable skill, experience and reputation, accurately reflects the fee customarily charged for similar legal services.
The court rejected defendants’ argument that the reasonable rate should be determined according to the rates of local law firms that plaintiff might have retained to represent it in the action to collect unpaid attorney fees. The trial court determined that plaintiff reasonably decided to represent itself and that defendants should not have been surprised that plaintiff chose to represent itself because plaintiffs reliance on its own resources to litigate the action “was the economically rational thing to do.” The court cited Perry’s statement in his affidavit that plaintiff saved legal expenses that would have been incurred by outside attorneys familiarizing themselves with the facts of a case that plaintiffs attorneys already knew. The court noted that defendants did not object to the hourly rates of the other attorneys who provided services for plaintiff after the case evaluation, including Samantha Kopacz ($175), J.J. Burchman ($185), Nicole Proulx ($185), Ryan Kaufman ($185), Douglas Austin ($250), and Edward Castellani ($290).
The trial court noted that plaintiff sought compensation for 119.50 hours devoted to discovery and trial preparation, 96.8 hours of trial time, and 172.6 hours for posttrial issues. The tried court addressed defendants’ challenges to an assessment of sanctions for posttrial matters. The court rejected defendants’ argument that Haliw v Sterling Hts, 471 Mich 700; 691 NW2d 753 (2005), which precluded case-evaluation sanctions for appellate proceedings, also precluded sanctions for posttrial proceedings in the trial court. The court commented that the basis for the Haliw Court’s exclusion of appellate costs from case-evaluation sanctions was its recognition that MCR 2.403(0) is “trial-oriented.” The trial court quoted the statement in Haliw that “a causal nexus plainly exists between rejection and trial fees and costs, the same cannot be said with respect to rejection and the decision to bring an appeal.” The trial court reasoned that “there is a sufficient causal nexus between Defendants’ rejection of the case evaluation and the fees and costs associated with continuing to defend against a motion for new trial.” Regarding plaintiffs claim for attorney fees arising from preparing and filing the motion for case-evaluation sanctions, the trial court concluded that these services also were necessitated by defendants’ rejection of the case evaluation and, therefore, were recoverable.
The trial court next considered the “reasonableness of the time spent by Plaintiff at all stages in the case.” The trial court made these findings:
• Perry devoted 37.5 hours to pretrial motions. The trial court found this was reasonable.
• The trial court discounted three hours for Perry’s travel time between Lansing and Midland for depositions, and six hours for Proulx’s travel time for two days.
• The trial court discounted 1.4 hours that Perry spent on a dispositive motion that was never filed. The court also discounted 4.25 hours of a 7.1-hour entry in which Perry’s work on the summary disposition motion was bundled with other services.
• The court discounted time that Austin spent attending the trial as plaintiffs corporate representative.
• Castellani claimed $4,270 for his two days’ attendance at trial, determined by his hourly billing rate. The trial court allowed only $30, according to the daily $15 witness fee.
After making these adjustments, the trial court determined that plaintiffs total number of reasonable hours spent on proceedings after the case evaluation were 284.83, which, when multiplied by the respective attorneys’ hourly rates, established a baseline monetary amount of $80,434. The court considered and rejected defendants’ argument that this baseline figure should be adjusted downward because no attorney fees were incurred when plaintiff did not pay anything to the attorneys involved.
Plaintiff filed a taxed bill of costs for postjudgment proceedings on August 12, 2011, including Pulley’s expert witness fee and the cost of transcribing both experts’ depositions. Defendants argued in response that Pulley’s fees were excessive and not supported by a detailed invoice.
The trial court’s Final Order Awarding Reasonable Attorney Fees and Taxation of Costs in Favor of the Plaintiff was entered on November 7, 2011. The trial court referred to its October 18, 2011, opinion granting a reasonable supplemental attorney fee for fees plaintiff incurred from March 4, 2011, to August 11, 2011. The court adopted and incorporated its October 18, 2011, opinion. The court ordered:
In addition to the reasonable attorney fee awarded to the Plaintiff on July 21, 2011 for the time period from September 21, 2010 to March 3, 2011, the Plaintiff is granted a reasonable supplemental attorney fee award for the fees which it incurred from March 4, 2011 to August 11, 2011 in the amount of $21,253.60, plus interest thereupon through October 31, 2011 in the amount of $1,450.35. The interest upon this Supplemental Attorney Fee Award shall accrue at a rate of $1.86 per day until December 31,2011, at which point it shall continue to accrue until paid in full at the post-judgment interest rate established in accordance with MCL 600.6013(8).
The trial court also awarded plaintiff taxable costs for Pulley’s expert witness fee ($3,000), costs of transcribing expert witnesses’ testimony ($546), plus miscellaneous fees totaling $151, with interest accruing from August 3, 2009.
I. JURY INSTRUCTION
Defendants first argue that the trial court abused its discretion by declining to give defendants’ requested instruction on plaintiffs burden of proof. This Court reviews de novo claims of instructional error, but the trial court’s determination whether a standard jury instruction or special jury instruction is applicable and accurate is reviewed for an abuse of discretion. Alfieri v Bertorelli, 295 Mich App 189, 197; 813 NW2d 772 (2012). This Court considers jury instructions “as a whole to determine whether they adequately present the theories of the parties and the applicable law.” Alpha Capital Mgt, Inc v Rentenbach, 287 Mich App 589, 626-627; 792 NW2d 344 (2010). “Instructional error warrants reversal when it affects the outcome of the trial.” Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 680; 819 NW2d 28 (2011).
The trial court instructed the jury on plaintiffs burden of proof as follows:
Fraser Trebilcock Davis & Dunlap, EC. has the burden of proof on the following:
One, that there was a contract between it and Boyce Trusts 2350, 3649, and 3650.
Two, that Boyce Trusts 2350, 3649, and 3650 breached the contract.
And three, that Fraser Trebilcock Davis & Dunlap, EC. suffered damages as a result of the breach.
In this case, the parties do not dispute that there was a contract between them.
If you find after considering all the evidence that Fraser Trebilcock Davis & Dunlap, EC. has proved these elements, then your verdict should be for Fraser Trebilcock Davis & Dunlap, EC.
However, if Fraser Trebilcock Davis & Dunlap, EC. fails to prove any one of these elements, your verdict should be for Boyce Trusts 2350, 3649, and 3650.
Fraser Trebilcock Davis & Dunlap, EC. has the burden to prove what the parties intended the contract to mean. The contract is to be interpreted so as to give effect to the parties’ intentions.
The court further instructed the jury that plaintiff had the burden of proving the parties’ intentions regarding the correct interpretation of the contract. The court’s instructions substantially recite M Civ JI 142.01 and 142.50. The court also instructed the jury that it “must determine the amount of money, if any, to award [plaintiff] as contract damages,” and that plaintiff “must prove by a preponderance of the evidence the amount of any damages to be awarded.”
Defendants argue that these model instructions failed to adequately instruct the jury that plaintiff was required to prove the legitimacy of each billed item. Defendants requested this special instruction, which the trial court declined to give:
Flaintiff has claimed a right to recover for services it provided under the contract between the parties. As part of the contract, the Flaintiff agreed to provide and Defendant agreed to pay for services that were “reasonably necessary” for the Defendants’ activities. Further, the Plaintiff agreed to bill on an hourly basis for the time spent on a matter. As the Plaintiff seeking compensation for providing services, the burden is on the Plaintiff to prove by a preponderance of the evidence that its billings are for services that are reasonably necessary and are for the time actually spent on the matter.
MCR 2.512(D)(4) provides that the trial court may give “additional instructions on applicable law not covered by the model instructions.” If the court gives additional instructions, they must “be patterned as nearly as practicable after the style of the model instructions and must be concise, understandable, conversational, unslanted, and nonargumentative.” Id.
Defendants argue that the standard instructions on burden of proof were not adequate because they did not explain that plaintiff was required to prove the legitimacy of each disputed item billed. Defendants cite Livingston Shirt Corp v Great Lakes Garment Mfg Co, 351 Mich 123; 88 NW2d 614 (1958). Livingston Shirt does not support defendants’ argument that the trial court was required to specifically instruct the jury that plaintiff must prove the validity of each item billed. On the contrary, the decision indicates that once plaintiff satisfied its prima facie obligation to prove that it performed services in accordance with the contract, the burden shifted to defendants to prove that certain items billed were not proper. Defendants’ reliance on Hofmann v Auto Club Ins Ass’n, 211 Mich App 55; 535 NW2d 529 (1995), which involved a no-fault automobile insurer’s obligation to cover expenses for the insured’s chiropractic treatment, is also misplaced. That case did not involve a claim for breach of contract, but rather a claim for recovery under the no-fault act, which specifically provides that no-fault benefits are payable only for “allowable expenses,” which are limited to “ ‘all reason able charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.’ ” Id. at 93, quoting MCL 500.3107(l)(a).
Defendants extensively cross-examined plaintiffs witnesses regarding items stated in invoices, such as the time involved in answering a short e-mail and reviewing files. Defendants challenged items such as Miller’s work on Christmas Day 2006. Defendants presented a detailed closing argument explaining their position that several of plaintiffs items were not credible. The trial court instructed the jury that plaintiff had the burden of proving all elements of its claim, including what the parties intended their contract to mean. The trial court did not err by determining that defendants’ special requested instruction was not necessary because the model instructions adequately informed the jury on plaintiffs burden of proof. There was no instructional error.
II. EVIDENTIARY RULING
Defendants assert that the trial court erred by excluding Mueller’s proposed testimony regarding defendants’ dissatisfaction with plaintiffs legal services. They contend that plaintiff introduced the issue of client satisfaction into the trial and, therefore, that defendants were entitled to rebut this evidence. This Court reviews a trial court’s decision to admit or exclude evidence, including rebuttal evidence, for an abuse of discretion. Chmielewski v Xermac, Inc, 457 Mich 593, 614; 580 NW2d 817 (1998).
“The scope of rebuttal in civil cases is within the sound discretion of the trial court.” Taylor v Blue Cross & Blue Shield of Mich, 205 Mich App 644, 655; 517 NW2d 864 (1994). The purpose of rebuttal evidence is to “contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same.” People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996) (quotation marks and citations omitted). Here, defendants sought to rebut testimony from plaintiffs witnesses that Mueller was satisfied with plaintiffs services until defendants’ problems with Goodwin arose. Austin testified that he sent an e-mail to Castellani describing Mueller as “extremely happy” that the closing documents were revised in accordance with defendants’ wishes. However, Castellani testified that Mueller was “unhappy with the way his partner was interpreting those documents,” which meant, in context, that the controversy did not result in the desired outcome for Mueller. Mueller was permitted to testify regarding his belief that Goodwin swindled defendants. Thus, the testimony was not calculated to leave the impression that defendants were fully satisfied with plaintiffs services. Accordingly, the trial court did not abuse its discretion by refusing to permit the proposed rebuttal testimony.
III. CASE-EVALUATION SANCTIONS
Defendants objected to plaintiffs motion for case-evaluation sanctions on the ground that a law firm that represents itself is not entitled to receive an award of attorney fees under MCR 2.403(0). The interpretation and application of court rules presents a question of law subject to review de novo by this Court. Kernen v Homestead Dev Co, 252 Mich App 689, 692; 653 NW2d 634 (2002).
MCR 2.403(0) governs case-evaluation sanctions for parties who reject a case evaluation and fail to obtain a more favorable verdict at trial. The rule provides, in pertinent part:
(1) If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the case evaluation.
(2) For the purpose of this rule “verdict” includes,
(a) a jury verdict,
(b) a judgment by the court after a nonjury trial,
(c) a judgment entered as a result of a ruling on a motion after rejection of the case evaluation.
(3) For the purpose of subrule (0)(1), a verdict must be adjusted by adding to it assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the case evaluation, and, if applicable, by making the adjustment of future damages as provided by MCL 600.6306. After this adjustment, the verdict is considered more favorable to a defendant if it is more than 10 percent below the evaluation, and is considered more favorable to the plaintiff if it is more than 10 percent above the evaluation. If the evaluation was zero, a verdict finding that a defendant is not liable to the plaintiff shall be deemed more favorable to the defendant.
(6) For the purpose of this rule, actual costs are
(a) those costs taxable in any civil action, and
(b) a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation.
The parties dispute whether plaintiff, a law firm represented by its own members, is eligible to obtain an award of attorney fees under MCR 2.403(O)(6)(b).
Defendants contend that this issue is controlled by this Court’s decision in Watkins, 220 Mich App 337, in which this Court held that the defendant, an attorney who represented himself and also received services from his law firm’s staff, was not entitled to an award of attorney fees under MCR 2.403(O)(6)(b). This Court’s decision in Watkins was substantially based on this Court’s earlier decision in Laracey v Fin Institutions Bureau, 163 Mich App 437, 441; 414 NW2d 909 (1987), and the United States Supreme Court’s holding in Kay v Ehrler, 499 US 432; 111 S Ct 1435; 113 L Ed 2d 486 (1991). Therefore, a proper understanding of Watkins requires review of these two authorities.
In Laracey, 163 Mich App 437, this Court held that a plaintiff-attorney who represented himself in an action under the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq., was not entitled to attorney fees under the FOIA’s attorney-fee provision, MCL 15.240(4) (1996 PA 553 moved the provision to MCL 15.240(6), effective March 31, 1997), because an attorney acting in propria persona is not an attorney within the meaning of that statutory provision. Reviewing federal cases brought under the attorney-fee provision of the federal FOIA, 5 USC 552, this Court noted that the purpose of the federal FOIA attorney-fee provision “was intended to encourage potential claimants to seek legal advice before commencing litigation,” to afford claimants “the detached and objective perspective necessary to fulfill the federal act’s aims.” Laracey, 163 Mich App at 445. This Court declined to consider “whether a pro se litigant who is also an attorney possesses such perspective, for we are unpersuaded that an attorney proceeding pro se even has an ‘attorney’ for purposes of a fee award.” Id. This Court stated a third rationale for denying attorney fees to a pro se FOIA litigant, namely that “the award of such fees to pro se plaintiffs would create a ‘cottage industry’ for claimants using the act solely as a way to generate fees rather than to vindicate personal claims.” Id. at 446.
In Kay, the petitioner, a licensed attorney, prevailed in an action against Kentucky election officials challenging state election statutes as unconstitutional. Kay, 499 US at 433-434. The petitioner requested attorney fees under 42 USC 1988, which gives a court discretion to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs[.]” 42 USC 1988(b). The Court found that neither the text of the statute nor its legislative history provided a clear answer whether an attorney who proceeds pro se may recover attorney fees under the statute, stating:
On the one hand, petitioner is an “attorney,” and has obviously handled his professional responsibilities in this case in a competent manner. On the other hand, the word “attorney” assumes an agency relationship, and it seems likely that Congress contemplated an attorney-client relationship as the predicate for an award under § 1988. Although this section was no doubt intended to encourage litigation protecting civil rights, it is also true that its more specific purpose was to enable potential plaintiffs to obtain the assistance of competent counsel in vindicating their rights. [Kay, 499 US at 435-436.]
The Supreme Court concluded that the purpose of the attorney-fee provision was to ensure “the effective prosecution of meritorious claims,” id. at 437, which would likely be compromised when a party attempts to represent itself. The Court noted that “[e]ven a skilled lawyer who represents himself is at a disadvantage in contested litigation” because he “is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile wit nesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom.” Id. at 437. The Court concluded that § 1988 did not authorize an award of attorney fees to a pro se litigant because the “statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case.” Id. at 438.
In Watkins, 220 Mich App 337, the plaintiff sued the defendant attorney for breach of contract and the jury returned a verdict of no cause of action. The trial court awarded the defendant attorney fees as a mediation (case evaluation) sanction for the portion of the fee award that reflected the time the defendant and his staff spent working on the case. Id. at 341. On appeal, this Court found “the reasoning of the Laracey and Kay Courts to be persuasive[.]” Id. at 344. The Court commented that the purpose of MCR 2.403(0) is “to encourage settlement by plac[ing] the burden of litigation costs upon the party who insists upon trial by rejecting a proposed mediation award.” Id. at 344 (alteration in original; citation and quotation marks omitted). The Court concluded:
This purpose is best served when a party hires an objective attorney — rather than serving as both litigant and advocate — to provide a “filtering of meritless claims.” Kay, supra. Moreover, we believe that to allow litigant-attorneys to recover compensation for time spent in their own behalf, while not extending such a rule to nonattorneys would most likely contribute to the widespread public perception that the courts exist primarily for the benefit of the legal profession. Pro se litigants who are not attorneys also may suffer lost income or lost business opportunities as the result of their time spent in litigation. [Id. at 344-345.]
This Court acknowledged two factors that weighed in favor of allowing the defendant’s claim for attorney fees: (1) the defendant retained independent counsel and discontinued representing himself during the course of the proceedings, thus alleviating concerns about the value of independent representation, and (2) the defendant was defending a lawsuit rather than pursuing his own claim against a party. This Court concluded, however, that it “[did] not find these factors to be sufficient to justify creating an exception to the general rule disallowing such fees.” Id. at 345. Accordingly, this Court vacated the portion of the attorney-fee award that compensated the defendant attorney for the time he or his staff spent defending against the claim. Id.
Plaintiff argues that Watkins is distinguishable and its rationale does not apply where the party is a law firm represented by its own attorneys. According to plaintiff, it did not appear as a pro se litigant because a law firm is a professional service corporation, as defined by MCL 450.1282 (formerly MCL 450.222, see 2012 PA 569, effective January 2, 2013), which is unable to practice law except through licensed attorneys who are its shareholders and employees. Plaintiff also cites MCL 450.681, which prohibits the practice of law by a corporation or voluntary association. Defendants deny that plaintiffs corporate status is a material distinction with respect to the precedential effect of Watkins. In response, defendants rely on MCR 2.117, which governs appearances in an action by parties and attorneys and states, in pertinent part:
The appearance of an attorney is deemed to be the appearance of every member of the law firm. Any attorney in the firm may be required by the court to conduct a court ordered conference or trial. [MCR 2.117(B)(3)(b).]
No precedential Michigan caselaw exists addressing the effect of MCR 2.117 in the context of an attorney-fee award for a law firm party represented by its own attorneys. However, the trial court recognized that the hours that plaintiffs attorneys devoted to the action may have been of greater value to the firm than the judgment for plaintiff, and if sanctions were not awarded, defendants, which refused the opportunity to resolve the action through case evaluation, would be relieved of liability for sanctions merely because plaintiff made the reasonable and economical decision to represent itself. Denying attorney fees to a law firm party represented by its in-house agents would effectively negate the value of the case-evaluation process by lowering or eliminating the risk of rejecting the evaluation. Under these circumstances, further analysis is warranted.
In Omdahl v West Iron Co Bd of Ed, 478 Mich 423; 733 NW2d 380 (2007), an attorney acting in propria persona brought a lawsuit against his former client for a violation of the Open Meetings Act (OMA), MCL 15.261 et seq. Our Supreme Court noted that the relevant provision of the OMA, MCL 15.271(4), provided that a party who successfully sues a public body for injunctive relief under the statute “ ‘shall recover court costs and actual attorney fees for the action.’ ” Omdahl, 478 Mich at 428 (emphasis added). The Court, id., analyzed the issue whether the plaintiff incurred “actual attorney fees” recoverable under the statute:
The meaning of these three words is central to the resolution of this case. The word “actual” means “ ‘existing in act, fact, or reality; real.’ ” [People v] Yamat, [475 Mich 49] at 54 n 15 [714 NW2d 335 (2006)], quoting Random House Webster’s College Dictionary (1997). “Attorney” is defined as a “lawyer” or an “attorney-at-law.” Random House Webster’s College Dictionary (2001). The definition of “lawyer” is “a person whose profession is to represent clients in a court of law or to advise or act for them in other legal matters.” Id. (emphasis added). And the definition of “attorney-at-law” is “an officer of the court authorized to appear before it as a representative of a party to a legal controversy.” Id. (emphasis added). Clearly, the word “attorney” connotes an agency relationship between two people. “Fee” is relevantly defined as “a sum charged or paid, as for professional services or for a privilege.” Id.
The Court concluded that the statute required an agency relationship between a plaintiff and another person. Id. at 428-429. The Court also cited Laracey, 163 Mich App 437, and Watkins, 220 Mich App 337, in support of its decision. Omdahl, 478 Mich at 431. The Court’s emphasis on an agency relationship as a prerequisite to obtaining an award of attorney fees arguably supports plaintiffs position in this case.
In FMB-First Mich Bank v Bailey, 232 Mich App 711; 591 NW2d 676 (1998), the trial court assessed sanctions under MCR 2.114(E) and (F) against the defendant, Donald Bailey, in favor of the third-party defendants, the law firm of Schenk, Boncher & Prasher, PC (SBP), and an individual attorney, James Koetje, who represented themselves. Id. at 715-716. MCR 2.114 provides, in pertinent part:
(D) Effect of Signature. The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that
(1) he or she had read the document;
(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and
(3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(E) Sanctions for Violation. If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees. The court may not assess punitive damages.
(F) Sanctions for Frivolous Claims and Defenses. In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2). The court may not assess punitive damages.
MCR 2.625(A)(2) provides that “if the court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591.” MCL 600.2591(1) provides that if the court finds that “a civil action or defense to a civil action was frivolous,” the court “shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.”
The defendant in FMB-First Mich Bank, 232 Mich App 711, argued on appeal that the trial court’s award of attorney fees to the third-party defendants under MCR 2.114(E) and (F) was improper because the court rule did not permit pro se litigants to receive attorney fees under MCR 2.114. Id. at 719. This Court reviewed the decisions in Kay, 499 US 432, Watkins, 220 Mich App 337, and Laracey, 163 Mich App 437, but concluded that these cases were distinguishable, stating:
Although instructive, Watkins and Kay are not dispositive. The Courts in Watkins and Kay emphasized, respectively, that the mediation rule, and the attorney fee provision of the civil rights statute, were intended to encourage parties to seek legal counsel. We see no such purpose in MCR 2.114(E) or (F). Rather, the apparent objective of MCR 2.114(E) and (F) is to deter parties and attorneys from filing documents or asserting claims and defenses that have not been sufficiently investigated and researched or that are intended to serve an improper purpose. Clearly then, the question of sanctions to discourage frivolous litigation under MCR 2.114(E) and (F) is different from the questions and interests addressed in Kay, supra, and Watkins, supra. [FMB-First Mich Bank, 232 Mich App at 723.]
The Court in FMB-First Mich Bank discussed federal caselaw and caselaw from sister states analyzing a pro se litigant’s eligibility for attorney fees as sanctions for a frivolous claim or defense. The Court agreed with the principle that “[t]here is no disharmony between the deterrent purpose of MCR 2.114 and attorney fees for pro se litigants,” and commented that the deterrent effect of this rule on vexatious litigation might be diminished by precluding attorney fees for victims of such litigation who represent themselves. FMB-First Mich Bank, 232 Mich App at 725. The Court further considered whether the plain language of MCR 2.114 and MCL 600.2591 authorized attorney fees for pro se litigants, and concluded:
MCR 2.114(E) provides that sanctions may include “the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” Similarly, MCL 600.2591(2); MSA 27A.2591(2) provides that “costs and fees awarded under this section shall include all reasonable costs actually incurred by the pre vailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.” To incur means “[t]o have liabilities cast upon one by act or operation of law, as distinguished from contract, where the party acts affirmatively.” Black’s Law Dictionary (rev 4th ed). An attorney is “an agent or substitute, or one who is appointed and authorized to act in the place or stead of another.” Id. [FMB-First Mich Bank, 232 Mich App at 725-726.]
This Court concluded from these definitions that a person “who represents himself cannot be said to have had a liability cast on himself.” Id. at 726. This Court also concluded that “a party acting in propria persona cannot truly be said to be an attorney for himself” because an attorney necessarily “is an agent or substitute who acts in the stead of another. .. .” Id. This Court applied these conclusions in its interpretation of MCR 2.114(E) and (F):
MCR 2.114(E) says that if a document is signed in violation of the signature rule, “the court... shall impose upon the person who signed it... an appropriate sanction, which may include ... the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” Therefore, MCR 2.114(E) does not restrict the sanction to expenses or costs incurred. Rather, it gives the trial court discretion to fashion another appropriate sanction. In contrast, MCL 600.2591; MSA 27A.2591, incorporated by reference in MCR 2.114(F), provides that the trial court “shall award to the prevailing party the costs and fees incurred,” without giving the trial court discretion to fashion another appropriate sanction. [.FMB-First Mich Bank, 232 Mich App at 726-727.]
This Court concluded that MCR 2.114(E) allows the trial court to award attorney fees in favor of a pro se litigant, but MCR 2.114(F) does not, and remanded the case to the trial coúrt to recalculate sanctions awarded to Koetje and SBP in accordance with its opinion. FMB-First Mich Bank, 232 Mich App at 727.
Plaintiff argues that the United States Supreme Court’s decision in Kay, 499 US at 436 n 7, contains dicta that permits attorney fees where the party is an entity represented by in-house counsel. After commenting that the word “attorney” as used in 42 USC 1988 “assumes an agency relationship, and it seems likely that Congress contemplated an attorney-client relationship as the predicate for an award under § 1988,” id. at 435-436, the Court stated in footnote 7 of the opinion:
Petitioner argues that because Congress intended organizations to receive an attorney’s fee even when they represented themselves, an individual attorney should also be permitted to receive an attorney’s fee even when he represents himself. However, an organization is not comparable to a pro se litigant because the organization is always represented by counsel, whether in-house or pro bono, and thus, there is always an attorney-client relationship. [Kay, 499 US at 436 n 7.]
Plaintiff cites federal cases that have relied on footnote 7 in Kay as authority for allowing attorney fees to a pro se attorney litigant.
Bond v Blum, 317 F3d 385 (CA 4, 2003), involved a copyright-infringement action arising from the defendants’ use of the plaintiffs unpublished manuscript as evidence in a child-custody proceeding. In the custody dispute, the children’s father, William Slavin, argued that the mother’s home was an unfit environment for the children because the mother’s new husband, William Bond, had written an autobiographical work admitting that he murdered his father and manipulated the juvenile criminal justice system to avoid serious consequences. Id. at 390-391. Bond brought an action for copyright infringement against Kenneth Blum (the father of Bond’s wife) and Blum’s legal counsel for their allegedly unauthorized use of the manuscript. The trial court concluded that the copyright-infringement action was frivolous because use of the manuscript in the custody proceeding clearly came within the fair-use exception of the copyright act, 17 USC 107. Bond, 317 F3d at 396-397. The pertinent issue on appeal was whether the trial court erred by denying attorney fees to the two law-firm defendants pursuant to a provision of the copyright act, 17 USC 505. The trial court relied on Kay, 499 US 432, to deny attorney fees on the ground that an attorney representing himself or herself is ineligible for attorney fees. Bond, 317 F3d at 398. The United States Court of Appeals for the Fourth Circuit disagreed and remanded, holding that the principles in Kay “were applied to deny a prevailing party attorneys fees under fee-shifting statutes, [but] do not apply in circumstances where entities represent themselves through in-house or pro bono counsel.” Bond, 317 F3d at 399. Citing Kay, 499 US 436 n 7, the court held that “[w]hen a member of an entity who is also an attorney represents the entity, he is in an attorney-client relationship with the entity and, even though interested in the affairs of the entity, he would not be so emotionally involved in the issues of the case so as to distort the rationality and competence that comes from independent representation.” Bond, 317 F3d at 400. The Court stated:
Though representation of a law firm by one of its members presents an increased risk of emotional involvement and loss of independence, the law firm still remains a business and professional entity distinct from its members, and the member representing the firm as an entity represents the firm’s distinct interests in the agency relationship inherent in the attorney-client relationship. Although a given representation of a law firm by one or more of its members could suffer from a lack of independence, there is no indication in this case of a relationship that tended to distort independent judgment, as existed in Doe [a Baltimore Co Bd of Ed, 165 F3d 260 (CA 4, 1998)]. [Bond, 317 F3d at 400.]
In Baker & Hostetler LLP v United States Dep’t of Commerce, 374 US App DC 172; 473 F3d 312 (2006), the United States Court of Appeals for the District of Columbia Circuit held that the plaintiff, a law firm representing Canadian lumber companies in an unfair-trade dispute, was eligible for an attorney fee when the firm represented itself in a federal FOIA action to obtain documents from the defendant Department of Commerce. Id. at 184, citing 5 USC 552(a)(4)(E). The court relied on both Kay, 499 US at 436 n 7, and the plain text of the statute. The court noted that the FOIA attorney fee provision applied to “all ‘complainants’ who have ‘substantially prevailed,’ ” without making an exception for a claimant law firm that represents itself. Id. at 184-185. The Court stated:
Footnote 7 suggests than an in-house counsel for a corporation is sufficiently independent to ensure effective prosecution of claims, thus justifying fees. An attorney who works for a law firm certainly is no less independent than an attorney who works for a corporation. Therefore, it would make little sense to slice and dice Kay’s conclusion regarding “organizations” and apply footnote 7 to some organizations but not others. [Id. at 185.]
Plaintiff urges this Court to follow the example of Baker & Hostetler and Bond, and adopt the dicta in Kay, 499 US at 436 n 7. FMB-First Mich Bank lends support to plaintiffs position. This Court’s decision in FMB-First Mich Bank rested on two premises: first, that the purpose of awarding sanctions for vexatious litigation under MCR 2.114(E) and (F) is best served by penalizing violators without regard to whether their targets were represented by counsel or represented themselves; and second, that a pro se litigant’s eligibility for vexatious-litigation sanctions depends on the language of the particular statute or court rule. Case-evaluation sanctions are akin to sanctions for vexatious litigation under MCR 2.114. The ostensible purpose of case-evaluation sanctions is to encourage resolution of cases without a trial by shifting the cost of litigation to the party that rejects the evaluation and does not obtain a more favorable verdict at trial. See also Allard v State Farm Ins Co, 271 Mich App 394, 398; 722 NW2d 268 (2006). This is more similar to MCR 2.114’s objective of discouraging frivolous litigation than it is to the objective of attorney-fee provisions in civil rights and FOIA statutes to encourage litigants to retain independent counsel to help them more effectively assert their rights under the statutes. FMB-First Mich Bank, 232 Mich App at 723. Moreover, the value of objective and independent representation is less of a consideration in the case-evaluation context, in which the sanctions are a consequence of the payer’s decisions. We do not perceive how the purpose of MCR 2.403(0) is furthered by excusing a rejecting party from the consequences of a rejection merely because the opposing party chose to represent itself. This is especially pertinent where, as here, the party law firm was represented by its own attorneys, who were already familiar with the underlying facts. Accordingly, we apply the dicta in Kay, 499 US at 436 n 7, and conclude that a law firm represented by its own attorneys is not a pro se litigant for purposes of entitlement to attorney-fee sanctions under MCR 2.403(0).
IV INCURRED FEES
Defendants argue that plaintiff did not incur attorney fees and, therefore, was not eligible to receive an award of attorney fees as a case-evaluation sanction under MCR 2.403(0). They contend that caselaw precluding an award of attorney fees in excess of attorney fees actually incurred supports their argument that plaintiff did not incur any attorney fees and, therefore, is not entitled to an award of attorney fees.
In McAuley v Gen Motors Corp, 457 Mich 513; 578 NW2d 282 (1998), the plaintiff sued the defendants under the former Handicappers’ Civil Rights Act, MCL 37.1101 et seq. (now known as the Persons With Disabilities Civil Rights Act), and was awarded damages and attorney fees. Id. at 516-517. The plaintiff moved for case-evaluation sanctions under MCR 2.403(0), but the trial court denied the motion on the ground that the plaintiff had already been awarded attorney fees under the civil rights act and, therefore, was not entitled to “punitive” damages in the form of a double attorney-fee award. Id. at 517. Our Supreme Court held that attorney fees are compensatory, not punitive, in nature; therefore, “the amount of recovery for such damages is inherently limited by the amount of the loss; the party may not make a profit or obtain more than one recovery.” Id. at 520. The Court acknowledged the possibility that a litigant could receive a double recovery of attorney fees under different court rules and statutes that each serve a different policy, but concluded that “this Court, in enacting MCR 2.403 did not intend double recovery under the circumstances of this case.” Id. at 522-523.
The underlying premise of McAuley is that attorney fees are compensable in nature and that double recovery or excess recovery is impermissible in most circumstances. That principle is not particularly relevant to the issue whether a pro se litigant’s time devoted to litigation is compensable as an attorney fee, even if the litigant did not incur a legal, monetary debt to itself.
As already discussed in Part III of this opinion, this Court in FMB-First Mich Bank, 232 Mich App 711, held that a party’s status as an individual attorney representing himself or herself, or a law firm represented by its own attorney, does not preclude an award of attorney fees as a sanction for vexatious litigation if the applicable statute or court rule authorizes such an award. The Court began its analysis by examining the language of MCL 600.2591, and MCR 2.114(E) and (F). The Court stated:
However, our analysis does not end here. MCR 2.114(E) says that if a document is signed in violation of the signature rule, “the court... shall impose upon the person who signed it... an appropriate sanction, which may include ... the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” Therefore, MCR 2.114(E) does not restrict the sanction to expenses or costs incurred. Rather, it gives the trial court discretion to fashion another appropriate sanction. In contrast, MCL 600.2591; MSA 27A.2591, incorporated by reference in MCR 2.114(F), provides that the trial court “shall award to the prevailing party the costs and fees incurred,” without giving the trial court discretion to fashion another appropriate sanction.
Because any sanction awarded under MCR 2.114(F) is restricted to the costs and fees as described in MCL 600.2591(2); MSA 27A.2591(2), we hold that attorney fee sanctions are not available under MCR 2.114(F). In contrast, MCR 2.114(E) grants the trial court discretion to fashion an “appropriate sanction,” which may include, but is not limited to, an order to pay the opposing party the reasonable expenses incurred (including attorney fees). Of course, the “appropriate sanction” may not include punitive damages under either subparagraph. MCR 2.114(E). [.FMB-First Mich Bank, 232 Mich App at 726-727.]
MCR 2.403(O)(l) provides that the party who rejects a case evaluation and subsequently fails to receive a more favorable verdict “must pay the opposing party’s actual costs .. . MCR 2.403(O)(6)(b) provides that “actual costs” include “a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation.” Unlike MCL 600.2591, which is incorporated by reference in MCR 2.114(F), MCR 2.403(O)(6)(b) does not restrict the trial court’s authority to award a prevailing party only “the costs and fees incurred.” Instead, MCR 2.403(O)(6)(b) requires the trial court to award “a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation.” MCR 2.403(O)(6)(b) does not require that the attorney fee be “incurred,” it requires only that the trial court determine a “reasonable” attorney-fee amount according to a prescribed method, namely, by determining the “hourly or daily rate . . . for services necessitated by the rejection of the case evaluation.” Accordingly, an award of case-evaluation sanctions must include an award of attorney fees to be determined by this method.
V CASE-EVALUATION SANCTIONS FOR POSTJUDGMENT ACTIVITIES
Defendants argue that the trial court erred by awarding plaintiff case-evaluation sanctions for postjudgment activities and by awarding attorney fees for time spent in obtaining case-evaluation sanctions. This issue involves the interpretation and application of a court rule, which is reviewed de novo by this Court. Kernen, 252 Mich App at 692.
MCR 2.403(O)(8)(i) and (ii) provide that a request for case-evaluation sanctions “must be filed and served within 28 days after the entry of the judgment or entry of an order denying a timely motion” for a new trial or to set aside the judgment. Defendants contend that this provision precludes recovery for any costs that arise from proceedings that take place after this 28-day limitations period.
Defendants rely on Haliw, 471 Mich 700, in which our Supreme Court held that appellate attorney fees and costs are not recoverable as case-evaluation sanctions. The Supreme Court held that “the failure of MCR 2.403(0) to expressly exclude appellate attorney fees and costs is [not] necessarily dispositive” because “the American rule permits recovery of fees and costs where expressly authorized.” Haliw, 471 Mich at 707. The Court further observed that MCR 2.403(0) is “trial-oriented,” because it focuses on expenses incurred between the time of the case evaluation and the verdict. Haliw, 471 Mich at 707-708. The Court explained in a footnote:
[I]n support of our conclusion that MCR 2.403(0) is trial-oriented, we note that a request for case evaluation sanctions must be made within twenty-eight days after entry of the judgment, MCR 2.403(O)(8), generally a time before the bulk of appellate fees and costs have been incurred. In addition, MCR 2.403(O)(6)(b) allows recovery of attorney fees “necessitated by” the rejection of the case evaluation. While a causal nexus plainly exists between rejection and trial fees and costs, the same cannot be said with respect to rejection and the decision to bring an appeal. Rather, appellate attorney fees and costs are arguably “necessitated by” a perceived erroneous trial court ruling.
We are cognizant of prior decisions of the Court of Appeals that have construed the phrase “necessitated by the rejection” as a mere temporal demarcation. See, e.g., Michigan Basic Prop Ins Ass’n v Hackert Furniture Distributing Co, Inc, 194 Mich App 230, 235; 486 NW2d 68 (1992). On the basis of the language of MCR 2.403(0), however, we believe the better-reasoned approach goes beyond a temporal demarcation and requires a causal nexus between rejection and incurred expenses. [Haliw, 471 Mich at 711 n 8.]
This Court held in Troyanowski v Village of Kent City, 175 Mich App 217; 437 NW2d 266 (1988), that the trial court properly awarded the defendant case-evaluation sanctions for attorney fees for services performed in postjudgment proceedings. This Court held that the rule authorizes attorney fees “for all services necessitated by the rejection of the mediation award.” Id. at 226-227. In Troyanowski, the plaintiffs rejected the case evaluation and proceeded to trial, which resulted in a verdict of no cause of action. Id. at 219-220. The plaintiffs’ motion for a new trial was denied. The trial court awarded case-evaluation sanctions that included compensation for attorney fees incurred by the defendants for the posttrial evidentiary hearing on the plaintiffs’ motion for a new trial. Id. at 226-227. This Court held that MCR 2.403(0) permitted attorney fees “for all services necessitated by the rejection of the mediation award,” which included the posttrial proceedings that were necessitated by the plaintiffs’ decision to reject the case evaluation and proceed to trial. Id. at 227.
In Young v Nandi, 490 Mich 889 (2011), our Supreme Court issued a peremptory order reversing the portion of this Court’s judgment holding that “the plaintiff is entitled to attorney fees and costs for posttrial work that occurred in the Oakland Circuit Court following the appellate process ....” The Supreme Court, citing Haliw, 471 Mich at 711 n 8, reinstated “the circuit court’s ruling in this regard [because] [t]here is not a sufficient causal nexus between the postappeal proceedings and the defendants’ rejection of the case evaluation.” Young, 490 Mich at 890. The Court did not cite the 28-day period referred to in MCR 2.403(O)(8), but rather determined that the plaintiff failed to demonstrate the requisite causal connection between the postappellate proceedings and the defendants’ rejection of the case evaluation. We infer from these authorities that actual costs arising from postjudgment proceedings that occur more than 28 days after the judgment may be awarded as case-evaluation sanctions if the proceedings are causally connected to the party’s rejection of the case evaluation.
Here, the trial court awarded plaintiff sanctions related both to its opposition to defendants’ motion for a new trial and to its pursuit of case-evaluation sanctions. Regarding the former category, plaintiffs legal work opposing defendants’ motion for a new trial was necessitated by defendants’ rejection of the case evaluation. Defendants’ motion for a new trial was a second attempt to obtain a favorable verdict after their first attempt resulted in a verdict higher than the case evaluation. This “second-bite-of-the-apple” would not have been necessary if defendants had accepted the case evaluation in the first instance.
However, the proceedings to obtain the award of case-evaluation sanctions were not necessitated by defendants’ rejection of the case evaluation. The case-evaluation proceedings were complicated by defendants’ assertion that plaintiff, a law firm represented by its own members, was not entitled to receive attorney fees and by defendants’ objections to the amount of attorney fees sought by plaintiff. As previously discussed, the legal issue of plaintiffs entitlement to attorney fees for services rendered by its own attorneys was a close issue, not clearly settled by Michigan caselaw. Plaintiff requested $115,202 in attorney fees, but the trial court awarded only $80,434, reducing plaintiffs claim by approximately 30%. Under these circumstances, we find that there is insufficient causal nexus between defendants’ rejection of the case evaluation and the resources plaintiff expended claiming attorney fees. Accordingly, the supplemental attorney-fee award of $22,703.95 ($21,253.60 plus interest of $1,450.35) for expenses sustained from March 4, 2011, to August 11, 2011, is not authorized by MCR 2.403(0). Accordingly, we reverse in part the June 29, 2011, and November 7, 2011, orders to the extent they authorize case-evaluation sanctions for plaintiffs time devoted to pursuing case-evaluation sanctions.
VI. REASONABLE HOURLY ATTORNEY-FEE RATE
Defendants argue that the trial court erred by determining that $300 was a reasonable hourly rate for Perry’s services in view of all the relevant factors. A trial court’s decision in determining the amount of attorney fees awarded to a party is reviewed for an abuse of discretion. Peterson v Fertel, 283 Mich App 232, 239; 770 NW2d 47 (2009).
In Wood, 413 Mich 573, our Supreme Court, considering a claim for attorney fees under the no-fault act, held that an attorney-fee award must be reasonable and that reasonableness is determined according to the following factors set forth in Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973):
“(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client.” [Wood, 413 Mich at 588, quoting Crawley, 48 Mich App at 737.]
The Court noted with approval the Crawley Court’s statement “that there is no precise formula for computing the reasonableness of an attorney’s fee . . .Wood, 413 Mich at 588. The Court also stated that a court awarding attorney fees “is not limited to those factors in making its determination,” and that “the trial court need not detail its findings as to each specific factor considered.” Id. The Court concluded that an award “will be upheld unless it appears upon appellate review that the trial court’s finding on the ‘reasonableness’ issue was an abuse of discretion.” Id.
In Smith, 481 Mich 519, two justices (TAYLOR, C.J., and YOUNG, J.), joined by two concurring justices (CORRIGAN, J., and MARKMAN, J.) clarified the statement in Wood that the trial court was not required to make detailed findings regarding each specific factor. The lead opinion by Chief Justice TAYLOR stated “that in order to aid appellate review, the court should briefly address on the record its view of each of the factors.” Smith, 481 Mich at 529 n 14. The lead opinion also stated that the factors set forth in MRPC 1.5(a) are also relevant to determining a reasonable attorney fee and overlapped the Wood factors. Smith, 481 Mich at 529. MRPC 1.5(a) lists these eight factors:
“(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
“(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
“(3) the fee customarily charged in the locality for similar legal services;
“(4) the amount involved and the results obtained;
“(5) the time limitations imposed by the client or by the circumstances;
“(6) the nature and length of the professional relationship with the client;
“(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
“(8) whether the fee is fixed or contingent.” [Smith v Khouri, 481 Mich at 530, quoting MRPC 1.5(a).]
The lead opinion in Smith stated:
We conclude that our current multifactor approach needs some fine-tuning. We hold that a trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services, i.e., factor 3 under MRPC 1.5(a). In determining this number, the court should use reliable surveys or other credible evidence of the legal market. This number should be multiplied by the reasonable number of hours expended in the case (factor 1 under MRPC 1.5[a] and factor 2 under Wood). The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee. We believe that having the trial court consider these two factors first will lead to greater consistency in awards. Thereafter, the court should consider the remaining Wood/MRPC factors to determine whether an up or down adjustment is appropriate. And, in order to aid appellate review, a trial court should briefly discuss its view of the remaining factors. [Smith, 481 Mich at 530-531.]
Contrary to defendants’ implied argument, these authorities do not cap an attorney’s reasonable hourly fee at the highest amount supported by the locality. The trial court gave due consideration to the median, the 75th percentile, and the 95th percentile rates of attorneys with similar characteristics as Perry in the Midland area, the Lansing area, and in all of Michigan. However, the court decided that Perry’s experience and skill justified a premium rate consistent with the 75th percentile of comparable attorneys in Michigan. The court did not abuse its discretion by making this deter mination; its decision is within the range of principled outcomes. Taylor v Currie, 277 Mich App 85, 99; 743 NW2d 571 (2007).
Defendants also argue that the trial court improperly-awarded plaintiff attorney fees in an amount higher than the jury’s verdict for plaintiff. In Smith, the lead opinion stated:
Factor 3 under Wood, 413 Mich at 588, and factor 4 under MRPC 1.5(a), is “the amount in question and the results achieved.” Although this factor may be relevant in other situations, we conclude that it is not a relevant consideration in determining a reasonable attorney fee for case-evaluation sanctions. As stated, the purpose of MCR 2.403(0) is to encourage serious consideration of case-evaluation awards and penalize a party that “should have” accepted the case’s evaluation. The rejecting party that does not achieve a more favorable result must pay reasonable attorney fees “for services necessitated by the rejection . ...” MCR 2.403(O)(6). It would be inconsistent with MCR 2.403(0) to reduce the accepting party’s reasonable attorney fees “for services necessitated by the rejection” on the basis of the amount in question or the results achieved. If we were to do so, the accepting party could have properly evaluated the case’s value, yet be forced to incur additional fees, potentially in excess of the case’s value. Reducing the accepting party’s reasonable attorney fees necessitated by the rejection because they exceed or are disproportionate to the value the accepting party correctly assessed undermines the rule. MCR 2.403(0) penalizes the rejecting party who incorrectly valued the case, not the accepting party who correctly assessed the case’s value at a much earlier and more efficient time. Reducing the accepting party’s reasonable attorney fees on the basis of proportionality simply encourages the inefficiency the rule seeks to combat. [Smith, 481 Mich at 534 n 20 (opinion by Taylor, C.J.).]
Defendants contend that a majority of the justices in Smith held that the “results obtained” factor remains a significant factor in determining a reasonable attorney fee under MCR 2.403(0). Justice CORRIGAN stated in her partial concurrence, partial dissent that the “results obtained” factor should not be eliminated as a factor in determining a reasonable attorney fee. Smith, 481 Mich at 538. Justice CORRIGAN stated that there is “no justification” for concluding that the term “reasonable attorney fee” in MCR 2.403(0) means anything different than it does in any other context; therefore, the results obtained is a relevant factor in determining whether an award is reasonable. Id. at 538-539. The three dissenting justices did not address the results-obtained factor. Accordingly, the results-obtained factor is either of little relevance to the determination of a reasonable attorney fee or only one of many factors to be considered. In the absence of any authority expressly prohibiting an attorney-fee award from being higher than the verdict amount for the prevailing party, we conclude that the trial court’s award of $80,434 in attorney fees is not outside the range of principled outcomes, notwithstanding that the jury’s verdict was only $70,000. Taylor, 277 Mich App at 99.
We affirm the judgment for plaintiff in Docket No. 302835. We affirm in part the award of case-evaluation sanctions in Docket Nos. 305149 and 307002, but reverse the award of case-evaluation sanctions to the extent that it encompasses services related to the pursuit of case-evaluation sanctions. The case is remanded for the recalculation of case-evaluation sanctions consistent with this opinion. We do not retain jurisdiction.
BORRELLO, J., concurred with FITZGERALD, J.
This Court’s opinion does not specify the relationship between SBP and Koetje, but the list of the attorneys representing the parties contained in the syllabus indicates that Koetje represented himself and his law firm, Bailey and Koetje, PC, and that SBP was represented by attorney Gregory Prasher, a member of the SBP firm. Id. at 713. | [
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PER CURIAM.
Claimant, Janice Logan, appeals by leave granted an order of the circuit court, disqualifying her from receiving unemployment benefits. Because claimant voluntarily left work in October 2008 without good cause attributable to her employer at the time, she was disqualified from receiving unemployment benefits under MCL 421.29(l)(a), and we affirm.
I. BACKGROUND
Manpower of Lansing, Inc., is a temporary-staffing agency that provides workers to its clients. Claimant began working for Manpower in April 2008 and was assigned to work part-time as a receptionist at Pennfield Animal Hospital where she also provided general office support. At the beginning of August 2008, claimant went on medical leave. Up until that point, Manpower had paid claimant’s salary. When claimant was ready to return to work in October 2008, she began working for Pennfield as a direct hire. Upon returning to work, claimant had a medical restriction in place, which limited her to working no more than four hours per day for no more than three days per week. After January 3, 2009, those medical restrictions were removed. But claimant never worked anything close to full-time employment, working only 15.5, 5.0, and 8.0 hours, respectively, during her last three two-week pay periods at Pennfield. Claimant was laid off at the end of January 2009.
Claimant applied for unemployment benefits. The Unemployment Insurance Agency initially granted ben efits to claimant, finding that she was not disqualified under § 29(l)(a) of the Michigan Employment Security Act (MESA), MCL 421.1 et seq. Manpower protested the agency’s determination, and after holding a hearing, an administrative law judge (ALJ) ruled that claimant was disqualified for benefits under MCL 421.29(l)(a) because she “did not leave Manpower in order to accept permanent full-time work with Pennfield”; instead, “she abandoned her job with Manpower and took a part-time job with the client company.”
Claimant appealed the ALJ’s decision to the Michigan Employment Security Board of Review. The board initially found that the ALJ properly applied the law and affirmed the decision. Claimant then requested a rehearing because she asserted that she did not leave Manpower to accept part-time work with Pennfield; instead, she claimed that she left Manpower to accept full-time work. She further asserted that she “in fact work[ed] fulltime for a period after she went back to work at the animal hospital.” Claimant acknowledged that the record was not developed on this matter and requested a rehearing to fully develop the record. Alternatively, claimant posited that even if she had left Manpower to accept part-time work with Pennfield, such circumstances would be covered by the intent of § 29(5) of the MESA. The board granted the request for rehearing and remanded the case to the ALJ in order to determine whether Pennfield offered claimant “full-time, permanent employment,” which would have implicated the exception in MCL 421.29(5) to the rule in MCL 421.29(1) that disqualifies a person from receiving benefits for voluntarily leaving work.
On remand, the ALJ heard testimony from Mark Atma, the owner of Pennfield. Atma testified that claimant worked for him for approximately three months, from the end of October 2008 through the end of January 2009. Atma testified that “[claimant] was working part-time” for him during this period. Atma further noted that on claimant’s “new employee information sheet,” claimant had selected the box indicating that she would be working “part-time.” Atma also noted that in January 2009, after claimant’s medical restrictions were removed, claimant never worked full-time. The ALJ found that claimant quit her job with Manpower in order to accept permanent, part-time employment with Pennfield and, as such, the provisions of MCL 421.29(5) did not apply. Therefore, the ALJ concluded that claimant was disqualified from receiving unemployment benefits under MCL 421.29(l)(a).
The Michigan Compensation Appellate Commission affirmed the ALJ’s decision, and claimant appealed in the Calhoun Circuit Court. Claimant reiterated her previous arguments but also argued that Manpower and Pennfield should be considered “joint employers” since she performed the same work before and after her direct hire with Pennfield and, thus, could not have “left” her prior employment. The circuit court was not persuaded and affirmed claimant’s status as being disqualified from receiving unemployment benefits.
II. STANDARD OF REVIEW
When reviewing a circuit court’s review of an agency’s decision, we must determine whether the circuit court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial-evidence test to the agency’s factual findings. Becker-Witt v Bd of Examiners of Social Workers, 256 Mich App 359, 361-362; 663 NW2d 514 (2003). “This latter standard is indistinguishable from the clearly erroneous standard of review that has been widely adopted in Michigan jurisprudence. As defined in numerous other contexts, a finding is clearly erroneous when, on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made.” Boyd v Civil Serv Comm, 220 Mich App 226, 234-235; 559 NW2d 342 (1996).
However, we review questions of statutory interpretation de novo. Adams v West Ottawa Pub Sch, 277 Mich App 461, 465; 746 NW2d 113 (2008). The primary goal when interpreting a statute is to ascertain and give effect to the Legislature’s intent. Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 217-218; 801 NW2d 35 (2011). “The words contained in a statute provide us with the most reliable evidence of the Legislature’s intent.” Green v Ziegelman, 282 Mich App 292, 301; 767 NW2d 660 (2009). In interpreting a statute, this Court considers “both the plain meaning of the critical words or phrases, as well as their placement and purpose in the statutory scheme.” Id. at 302.
III. ANALYSIS
On appeal, claimant argues that she should not be disqualified from receiving unemployment benefits because, under MCL 421.29(l)(a), she did not “le[ave] work voluntarily” when she left Manpower to start working for Pennfield.
MCL 421.29 provides, in pertinent part, the following:
(1) Except as provided in subsection (5), an individual is disqualified from receiving benefits if he or she:
(a) Left work voluntarily without good cause attributable to the employer or employing unit. An individual who left work is presumed to have left work voluntarily without good cause attributable to the employer or employing unit.... An individual claiming benefits under this act has the burden of proof to establish that he or she left work involuntarily or for good cause that was attributable to the employer or employing unit....
(5) If an individual leaves work to accept permanent full-time work with another employer ..., all of the following apply:
(a) Subsection (1) does not apply.
At issue is the effect of claimant stopping to work for Manpower and starting to work for Pennfield in October 2008. Claimant first argues that because her “work” did not change when she started working for Pennfield, she had not “left work” under the plain language of the statute. While “work” is not defined in the statute, from its context in MCL 421.29(l)(a), it is easily understood as being synonymous with “employment.” The Legislature’s intent is ascertained when viewing the phrase in its entirety: “Left work voluntarily without good cause attributable to the employer or employing unit.” Id. The phrase as a whole demonstrates that “work” is associated with “the employer or employing unit.” The use of a definite article indicates that the Legislature was referring to a particular employer and not just any general employer. See Barrow v Detroit Election Comm, 301 Mich App 404, 414; 836 NW2d 498 (2013) (noting that the definite article “the” denotes a particular item instead of a general item). Thus, it is clear that the statute does not refer to work that is unconnected to an employer; instead, the work is linked to a particular employer or employing unit, and when the relationship with that particular employer or employing unit ends, the work at issue necessarily also ends.
Therefore, with this understanding of the statute, it is clear that the circuit court applied the correct legal principles. The circuit court properly ruled that, pursuant to MCL 421.29(l)(a), one who voluntarily leaves work without good cause attributable to his or her prior employer, is disqualified from receiving unemployment benefits. The circuit court also properly noted that one who voluntarily leaves work to accept part-time employment cannot invoke the exception provided in MCL 421.29(5).
Furthermore, the circuit court did not misapprehend or grossly misapply the substantial-evidence test to the agency’s factual findings related to whether claimant accepted part-time employment instead of full-time employment with Pennfield. “ ‘Substantial evidence’ is evidence that a reasonable person would accept as sufficient to support a conclusion.” Dowerk v Oxford Charter Twp, 233 Mich App 62, 72; 592 NW2d 724 (1998). “While this requires more than a scintilla of evidence, it may be substantially less than a preponderance.” Id. In this case, the circuit court correctly noted that “there is evidence to support the conclusion that the claimant left her position to assume part-time employment.” Such evidence included Atma’s testimony that he did not recall ever offering full-time employment to claimant and the fact that claimant checked a box on her new-employee form with Penn-field indicating that she would be working part-time. In short, we are not left with a definite and firm conviction that a mistake was made in this matter.
We note that claimant’s reliance on the fact that she was never “unemployed” under § 48(1) of the MESA, MCL 421.48(1), is misplaced. The disqualification under § 29(l)(a) does not require an individual to have been “unemployed” in order to be disqualified from receiving benefits. Instead, the person merely has to have left work voluntarily without good cause attributable to the employer or employing unit. Claimant also avers that her starting to work for Pennfield should not be construed as voluntarily leaving Manpower. However, this argument is facially without merit as there is no dispute that claimant voluntarily ended her employer-employee relationship with Manpower. As our Supreme Court suggested in Thomas v Employment Security Comm, 356 Mich 665, 669; 97 NW2d 784 (1959), an employee voluntarily leaves his or her job if the separation is the product of the employee’s “hopes, wishes, and intent” to quit. The record here is clear that it was claimant’s hope, wish, and intent to quit working for Manpower, which she effectuated when she voluntarily ended her employee-employer relationship with Manpower in October 2008 and began her employment with Pennfield.
Claimant also argues that Pennfield and Manpower should have been considered “dual” or “joint” employers. Claimant relies on the MESA’s definition of “employing unit”:
“Employing unit” means any individual or type of organization,... which has or subsequent to this amendatory act, had in its employ 1 or more individuals performing services for it within this state. All individuals performing services within this state for any employing unit which maintains 2 or more separate establishments within this state shall be considered to be employed by a single employing unit for all the purposes of this act. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be considered to be employed by that employing unit for all the purposes of this act, whether the individual was hired or paid directly by that employing unit or by the agent or employee, provided the employing unit had actual or constructive knowledge of the work. [MCL 421.40 (emphasis added).]
Claimant’s reliance on this statute is misplaced. As claimant recognizes in her brief on appeal, part of the purpose of this definition is to prevent employers from using agents to hire individuals to perform work and then deny that those individuals were actually employed by those employers. However, claimant fails to explain how Manpower was an agent (or employee) of Pennfield or vice versa. All claimant relies on is that Pennfield and Manpower had “mutual knowledge” that claimant was performing services for Pennfield. This fact is inadequate to establish an agency relationship. An agency is defined as “ ‘a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions.’ ” Breighner v Mich High Sch Athletic Ass’n, 255 Mich App 567, 582-583; 662 NW2d 413 (2003), quoting Black’s Law Dictionary (7th ed). There is no evidence that Manpower had any authority whatsoever to bind Pennfield. Moreover, the MESA recognizes the existence of temporary-staffing firms, like Manpower, and defines them as “an employer whose primary business is to provide a client with the temporary services of 1 or more individuals under contract with the employer ... .” MCL 421.29(1)(Z). Thus, the MESA, itself, identifies the different parties involved in this situation: (1) the individual is the “employee,” (2) the temporary-staffing firm is the “employer,” and (3) the direct beneficiary of the employee’s work is the “client,” not an “employer.” Nowhere in the MESA does it suggest an agency relationship between the employer and the client. If the Legislature had desired to classify the temporary-staffing provider and the client as a single “employing unit,” it could have done so. Thus, without any factual basis to support the existence of an agency relationship and without any statutory language to support claimant’s view, we decline claimant’s invitation to view a temporary-staffing firm and its client as “joint employers” or a single “employing unit.”
Therefore, we conclude that the circuit court applied the correct legal principles and correctly applied the substantial-evidence test to the agency’s factual findings. Accordingly, it did not err by affirming the agency’s determination that claimant was disqualified under MCL 421.29(l)(a) from receiving unemployment benefits because she voluntarily left work without good cause attributable to the employer and she never requalified pursuant to MCL 421.29(3).
Affirmed.
DONOFRIO, EJ., and SAAD and METER, JJ., concurred.
By executive order, the Michigan Employment Security Board of Review was replaced with the Michigan Compensation Appellate Commission on August 1, 2011. Executive Order No. 2011-6.
We note that even though claimant was seeking unemployment benefits in relation to her layoff in January 2009, whether she left work voluntarily in October 2008 was still relevant because if she was disqualified from receiving benefits when she left Manpower, she would remain disqualified until she requalified under MCL 421.29(3). MCL 421.29(2). | [
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SAAD, J.
I. NATURE OF THE CASE
In these consolidated cases that raise identical issues of first impression, two former police officers, who had been the subject of or involved in internal-affairs investigations, say that defendants violated a Michigan statute that prohibits the disclosure of “involuntary statements” made during such investigations. Though defendants made statements to the press about plaintiffs’ termination from employment, plaintiffs fail to identify any confidential, “involuntary statements” defendants disclosed in those statements. Further, and dispositive of their claims, the statute on which they rely does not expressly create a cause of action for damages, nor does Michigan law permit a court to infer a cause of action against a governmental defendant. Accordingly, the trial court properly dismissed plaintiffs’ claims on summary disposition. For the reasons explained in this opinion, we affirm the trial court’s rulings dismissing plaintiffs’ suits.
II. FACTS AND PROCEDURAL HISTORY
Plaintiffs Douglas Louis and James Myers, former police officers of defendant city of Portage, were involved in internal-affairs investigations, and allege that they gave compelled and involuntary statements in the course of those investigations. Soon after, the city terminated both officers’ employment. Defendant Richard White, who serves as Portage’s director of public safety, commented on plaintiffs’ dismissal to local media after a television station made a Freedom of Information Act (FOIA), MCL 15.231 et seq., request.
Plaintiffs brought suit against defendants and alleged that (1) White disclosed “involuntary statements” they made in the course of the internal-affairs investigations when he discussed plaintiffs’ dismissal with the media, and (2) defendants’ conduct was ultra vires and thus not protected under the governmental tort liability act (GTLA), MCL 691.1401, et seq. However, plaintiffs did not point to the specific “involuntary statements” that White allegedly disclosed in his statements to the Gazette and local television stations. Instead, plaintiffs merely asserted that his general references to their dismissal violated MCL 15.395. Plaintiff Louis also claimed that he and defendants made an agreement with regard to his resignation, and that defendants breached that agreement when White discussed the circumstances of his dismissal with the media. Defendants moved for summary disposition as to all plaintiffs’ claims under MCR 2.116(C)(7) and (10).
In two written opinions, the trial court dismissed plaintiffs’ suits and held that (1) MCL 15.395 does not create a private cause of action for monetary damages, and (2) the GTLA applied to both defendants and granted them immunity from suit. It also noted that Louis’s breach of contract claim lacked merit, given that he provided no evidence that his resignation agreement contained any of the nondisclosure provisions he claimed it did, or that any such agreement actually existed. Accordingly, the trial court granted defendants’ motion for summary disposition.
Plaintiffs appealed the decision on all counts in November 2012, and our Court consolidated plaintiffs’ appeals in January 2013.
III. STANDARD OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo. Cowles v Bank West, 476 Mich 1, 13; 719 NW2d 94 (2006). MCR 2.116(C)(7) allows a party to move for dismissal if a claim is barred by immunity granted by law. “In reviewing a motion for summary disposition under MCR 2.116(C)(7), we accept the contents of the complaint as true unless the moving party contradicts the plaintiffs allegations and offers supporting documentation.” Kloian v Schwartz, 272 Mich App 232, 235; 725 NW2d 671 (2006).
A motion brought pursuant to MCR 2.116(0(10) tests the factual support for a claim, and should be granted when “there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A genuine issue of material fact exists when the record, drawing all reasonable inferences in favor of the nonmoving party, “leaves open an issue upon which reasonable minds might differ.” Id. This case involves statutory interpretation, which is an issue of law that is reviewed de novo. Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). We look to the “the plain language of the statute in question” to ascertain the Legislature’s intent, and if that language is “unambiguous, it must be enforced as written.” Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich 543, 560; 837 NW2d 244 (2013).
IV ANALYSIS OF MCL 15.395
During internal-affairs investigations, a law-enforcement agency may compel its officers, on penalty of discharge, to give statements on the subject of the investigation. However, these forced statements cannot be used against the officers in later criminal proceedings brought against them. See Garrity v New Jersey, 385 US 493, 500; 87 S Ct 616; 17 L Ed 2d 562 (1967). Michigan’s Legislature codified this constitutional right against self-incrimination, and gave further protection to the confidentiality of these involuntary statements by precluding their disclosure, except in circumstances not relevant here.
Using the nondisclosure provision in MCL 15.395 as the basis for their suit, plaintiffs assert the right to damages for defendants’ comments to the press about their termination from employment. But, strangely, as the statute’s protection extends only to very specific “involuntary statements,” plaintiffs inexplicably fail to identify these very statements, a failing that the trial court correctly found to be fatal to their claim. Though the trial court did not dismiss plaintiffs’ action on this basis, it would have been justified in doing so. This approach is common sense: if a plaintiff sues a defendant for allegedly disclosing confidential statements to the public, the plaintiff needs to tell the court exactly what disclosed statements are at issue. If plaintiffs fail to do so, they have, quite literally, failed to state a claim upon which relief can be granted. See Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Moreover, even if plaintiffs had specifically identified the precise involuntary statements of which they complain, MCL 15.395 establishes no cause of action and confers no remedy. And Michigan caselaw holds that no cause of action can be inferred against a governmental defendant. The trial court therefore properly dismissed plaintiffs’ claims for violation of MCL 15.395. Lash v Traverse City, 479 Mich 180, 194; 735 NW2d 628 (2007) (holding that courts may not infer the availability of “a private cause of action for money damages ... against a governmental entity”). See also Mack v Detroit, 467 Mich 186, 196; 649 NW2d 47 (2002).
Plaintiffs make the facially appealing, but unavailing, argument that it is unfair for the Legislature to grant a right under MCL 15.395 without providing an effective remedy to enforce that right. But making public policy is the province of the Legislature, not the courts. Johnson v Recca, 492 Mich 169, 187; 821 NW2d 520 (2012) (holding that “[o]ur judicial role precludes imposing different policy choices than those selected by the Legislature”) (quotation marks and citations omitted). We say this without denigrating the importance of this right to confidentiality, but only as a clear statement of law regarding the limits of our authority and the extent of the Legislature’s.
V CONCLUSION
We hold that (1) MCL 15.395 does not permit a private cause of action for monetary damages, and (2) defendants city of Portage and Richard White are immune from plaintiffs’ claims under the GTLA. Accordingly, we affirm the trial court’s rulings granting summary disposition in favor of defendants.
DONOFRIO, EJ., and METER, J., concurred with SAAD, J.
As noted in the trial court’s written opinions, Louis was the subject of an internal-affairs investigation; Myers was merely questioned as part of an unrelated internal-affairs investigation.
Louis allegedly resigned his employment.
The director of public safety position combines the jobs of the police chief and fire chief.
In response to a FOIA request from a local television station, White stated that Louis was dismissed because he “changed his story several times” during the investigation, “bringing his character into question.” The Kalamazoo Gazette subsequently printed the following statement from White: “[I] initially terminated Louis after the internal investigation was completed and [Louis] was later allowed to resign as part of the settlement of a grievance filed by the command officers’ union.” A similar statement was repeated on a local television station.
The trial court did not indicate under which court rule it granted summary disposition.
See MCL 15.393 (“An involuntary statement made by a law enforcement officer, and any information derived from that involuntary statement, shall not be used against the law enforcement officer in a criminal proceeding.”).
See MCL 15.395 (stating that “[a]n involuntary statement made by a law enforcement officer is a confidential communication that is not open to public inspection,” and listing four specific exceptions to this general rule, which, as noted, are not applicable to this case).
Plaintiff Louis also alleges that defendants’ comments to the media breached a resignation agreement under which his employment was terminated. But just as Louis fails to identify any involuntary statements that defendants disclosed to the media, he also inexplicably fails to explain how defendants’ conduct breached the alleged agreement’s specific terms, and he has not offered any evidence to show that the agreement actually exists.
We understand that a plaintiff might not want to publicly republish the confidential statement(s) involved, but there are other methods a plaintiff could use to inform a court (such as an in camera proceeding) of the content of the allegedly released confidential statements at issue.
By definition, a city’s police department is a “governmental entity.” MCL 15.391(b) defines “law enforcement agency” as “the department of state police, the department of natural resources, or a law enforcement agency of a county, township, city, village, airport authority, community college, or university, that is responsible for the prevention and detection of crime and enforcement of the criminal laws of this state.”
Plaintiffs, confusingly, also claim that defendants’ commenting on their dismissal was an ultra vires act that somehow allows them to bring suit against defendants. As noted, plaintiffs do not have any cause of action related to these statements because MCL 15.395 does not provide one. If their discussion of defendants’ supposedly ultra vires action is based on some other common-law claim, plaintiffs do not specify what claim they attempt to bring. See DeGeorge v Warheit, 276 Mich App 587, 594; 741 NW2d 384 (2007) (“It is not enough for an appellant to simply announce a position or assert an error in his or her brief and then leave it up to this Court to discover and rationalize the basis for the claims____”). And, in any event, any common-law claim they assert against defendants for making the statements at issue is barred by the GTLA, which provides defendants with blanket immunity from tort actions, except in circumstances not applicable to this case. See Mack v Detroit, 467 Mich 186, 195-197; 649 NW2d 47 (2002), and Petipren v Jaskowski, 494 Mich 190, 204; 833 NW2d 247 (2013).
In very limited circumstances a court may infer a private cause of action when the defendant is not a governmental entity See Pompey v Gen Motors Corp, 385 Mich 537, 551-560; 189 NW2d 243 (1971), and Gardner v Wood, 429 Mich 290, 301-304; 414 NW2d 706 (1987). These cases took a freewheeling approach to implying a cause of action when one was not explicitly mentioned in the statute: Pompey stated that implication was possible if the statutory remedy was “plainly inadequate”; Gardner promulgated a detailed (if vague) four-part test for infering a cause of action, and stressed the importance of legislative intent. Pompey, 385 Mich at 552 n 14; Gardner, 429 Mich at 302-304. The Michigan Supreme Court recently suggested that the cause-of-action-implication methodology specified in both these cases is disfavored, and that courts now “focus exclusively on evidence of legislative intent ‘to create, either expressly or by implication, a private cause of action.’ ” Lash, 479 Mich at 193 n 24, quoting Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich 479, 498; 697 NW2d 871 (2005) (quotation marks omitted).
As a practical matter, police officers embroiled in internal-affairs investigations typically receive legal representation from their unions. These lawyers can make use of the statutory right in MCL 15.395 in settlement negotiations, and therefore the statute should not be seen as ineffective, despite its lack of a cause of action for damages. | [
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Moore, J.
The relator asks for a mandamus to compel the respondents to build a bridge across Torch river. His petition relates to the same subject-matter passed upon in Attorney General v. Boards of Sup’rs, 120 Mich. 357 (79 N. W. 567). A reference to this case will make a long opinion here unnecessary. The petition shows that relator lives near the site of the old bridge across Torch river, which bridge was, prior to 1895, maintained by the two counties jointly; that since 1895 the bridge has been out of repair, and those persons having occasion to use it have been compelled to employ a private ferry, at great expense; and it is insisted that, under the common law, it is the duty of the respondents to reconstruct the bridge, and that, as they have failed to do so, the relator is entitled to the writ of mandamus to compel them to do so.
In the absence of Act No. 458, Local Acts 1897, I think the contention of the relator is correct. But the case made by'the relator does not differ in kind from the one made when the case was here before, though it shows more strongly how unjust it is to persons having-occasion to cross Torch river, for the respondents to delay action in the matter. The conduct of these boards in failing to agree upon a site and to construct the bridge is not very commendable. The amended return of the board of supervisors of Antrim county shows that a change has taken place in the personnel of that board, and, taken in connection with the other pleadings in the case, indicates that the two boards are likely to agree upon a site before very long, as it is their duty to do. Speaking for myself, I do not believe that it lies in the power of either one or the other of these boards to , indefinitely postpone the building of a bridge across this river. While the legislature, by the passage of Act No. 458, Local Acts 1897, as stated by Justice Hooker, thereby authorized the counties to allow the highway to remain without a bridge at the old site, I think it made it incumbent upon the boards of supervisors to agree upon some site, and erect thereon a bridge, within a reasonable time, and that they cannot deprive the inhabitants of a bridge indefinitely by failing to agree. As there seems to be a prospect of an agreement of the boards very soon, I think the application for the writ of mandamus should be, for the present, denied, but with leave to renew the application therefor if a bridge across Torch river is not built within a reasonable time from this date.
The other Justices concurred. | [
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Hooker, J.
Sullivan filed a claim against tne estate of Ross in probate court for $100,000. It was in form a petition, setting up the facts relied upon to establish his claim, which were in substance the following, viz.: Ross owned pine lands in Michigan. On November 7, 1883, a contract was made between him, under the name of Ross & Co., and Sullivan, wherein it was agreed “to sell all the pine [thereon] to Sullivan for one dollar and fifty cents per thousand feet, board measure,” which Sullivan agreed to pay, and to cut the timber before May 1, 1884. The contract contained the following provision:
“It is hereby agreed that said second party shall have the right to cut said timber as above mentioned before he shall pay the price above mentioned, and also the right to remove the same to the landings or rollways on the shore of Lake Superior; but said property shall continue to be the timber of Ross & Company until paid for by said second party according to the amounts above mentioned, and said second party shall not be permitted or have authority to remove said logs so manufactured from said landings or rollways without paying for the same the sums as above mentioned.”
Another contract was made December 18, 1883, between the same parties, which provided in substance:
“That whereas, the said second party is desirous of procuring advances from said first party for the purpose of enabling the said second party to carry on the work upon the lands mentioned in the articles of agreement made between the said parties the 7th day o£ November, A. D. 1883, being an agreement for the sale of pine stumpage mentioned in said agreement of November 7th, 1883, reference to which agreement is hereby made; said advances desired by second party being as follows: To pay amount due William A. Burt, St. Ignace, $4,100; to pay amount of draft drawn by second party on the first parties in favor of L. P. Trempe, due December 26th, 1883, $2,355; to pay the amount of Brady & Company bill, $788.45; to amount to pay men now and in the following spring as required, for work now done and to be done during the present winter, ten thousand dollars ($10,000), — the total amount of said advances being seventeen thousand two hundred and forty-three and 45-100 dollars ($17,243.45): It is hereby understood and agreed that, so far as said first parties shall make said advances, they shall have a lien on all the timber cut and standing which shall have been purchased by said second .party from said first parties under and by virtue of said agreement dated November 7th, 1883, above referred to; and said second party agrees to pay said first parties for so much of said advances as said first parties shall make to said second party before said timber shall be removed from the rollways upon the banks of Lake Superior, it being hereby agreed by said parties that said timber shall continue to be the property of said first parties until not only the stumpage for the same shall be paid as mentioned in said agreement of November 7th, 1883, but until the amounts of said advances as shall be made by said first parties to said second party shall be fully paid; said advances to be paid by June 1st, 1884. It is understood and agreed between said parties that said second party shall pay to said first parties seven per cent, interest upon all advances that shall be made from the date of each advance. Said second party is also to pay to said first parties a commission fee upon said transaction equal to the amount of five per cent, of such advances as shall be made.”
Claimant got out 9,000,000 feet of logs on the bank of Lake Superior previous to May 28, 1884. On June 24, 1884, a third contract was made between the parties, reading as follows:
“That whereas, the said party of the first part has been unable to- pay up for the advances made to him by the second party under certain agreements dated November 7th, 1883, and December 18th, 1883, and also for stumpage due said second party for timber cut under said last-mentioned agreement; and whereas, said first party is desirous of moving said logs to Sault Ste. Marie, where he hopes that a sale can more readily be made of the same, or where the same can be cut into merchantable lumber; and whereas, said first party desires to obtain from said second party further advances to enable him to remove said logs to Sault Ste. Marie, in Chippewa county, Michigan, or any other place in Michigan that said Boss & Co. may direct, and to the mill of H. W. Seymour: It is hereby agreed by and between said first and second parties as an agreement supplemental to said previous agreements, but not in any way affecting or changing them, that said second party will advance to said first party at the rate of one dollar per thousand feet, board measure, for the purpose of towing and delivering said logs at said place or places that Boss & Co. may direct, and will also advance at the rate of two dollars and a half per thousand feet, board measure, for the purpose of paying for the sawing of any or all of said logs, if it shall appear to be necessary to saw said logs in order that they may meet with a more ready and satisfactory sale.
‘ ‘ In consideration of said additional advances so agreed to be made, it is understood and agreed that said second party shall have the same right to the said logs, and the lumber when cut out of the same, as he now holds under- and by virtue of said agreements of November 7th and December 18th, 1883, to the extent of the advances and stumpage so previously made under said previous agreements, and also to the extent of the said new advances for towing and sawing as above stated.
“It is further understood that, in consideration of said new advances, there shall be paid to said second party from the sale of said logs or lumber manufactured from the same, first, the advances which have already been made and interests and commissions upon the same, and also the amount due for stumpage as agreed upon in said previous agreements, and also for the advances made for towing and sawing and commissions and interests upon the same; and after the same shall be fully paid to said second party, if there shall remain any balance or profit over and above the same, said profit shall be divided between the said first and second parties, one-third of the same to belong to said Sullivan, first party, and the remaining two-thirds to said Ross & Co., second party. It is understood and agreed that the removal of said logs shall be at the risk and expense of said first party.
‘ ‘ The basis of the division of the profits shall be based upon the prices mentioned in a contract drawn, but not entered into between the parties hereto, and now in the hands of F. O. Clark, of Marquette, except as to mill culls, and as -to those they shall be equally divided between the parties hereto. Basis of-value of Norway pine to be $6.00 for long and $4.50 for short logs, and profits to be divided as above stated.
“And it is mutually agreed by and between the parties hereto that Ross & Co., of the second part, shall have the right to pay all the moneys mentioned in this agreement as a further advance for towing and cutting said logs at mill to the parties to whom it is due, and in fact, if they deem it necessary, to control the business in every particular to their own satisfaction.”
The indebtedness mentioned in the last contract was $48,000. Ross took possession and disposed of the logs, claiming to act under the contracts, and attempted to raft them from Au Sable Point, on Lake Superior, to Sault Ste. Marie. Through the negligence and reckless.ness of the agents of Ross in providing and keeping closed a proper boom where the logs were rolled into the lake at Au Sable Point, about 2,000,000 feet of the logs were blown across the lake, and lost. Of the logs which reached and were sent down the rapids of the St. Mary’s river, half a million feet were lost, and a large expense was incurred by Ross- in saving a million feet which escaped from his boom below the rapids through his negligence and recklessness. Several million feet were sawed into lumber, and Ross permitted this to be negligently and recklessly done, whereby the product was injured and lessened, resulting-in a loss of $30,000. Ross shipped this lumber to Detroit, and sold it from there. This was in violation of the contract, and occasioned a loss of $50,000. Ross received $60,000 from the logs, for which petitioner asks an accounting. Several other items were included in the claim, which need not be discussed, as we understand that they are not relied upon. The claim was disallowed in probate court, but upon appeal claimant obtained a verdict for $95,525.65. The cause is before us on a writ of error. The claim for losses through taking the lumber to Detroit was withdrawn from the jury.
One of the most important questions raised by defendant’s counsel relates to the proper construction of the contract of June 24th. They claim that the last clause of that writing gave defendant the right to 'take the control and management of the business, and that he might manage it according to his own judgment, without liability for mistakes or failures, if there was no bad faith. The court instructed the jury that Sullivan was to assume all ordinary risks, such as the risks of navigation, winds, and calamities that might come, but that he was not responsible for the negligent acts, if any, of Mr. Ross or his agents, and that the estate was liable to him for damages resulting from the want of ordinary care and prudence in the conduct of the business. Counsel for the defendant cite a number of cases which hold that, when a vendee agrees to purchase an article if satisfactory, he is not liable if he reject it, so long as he is honest in the expression of his dissatisfaction. Several of the cases are from this court. No case is cited that raises just such a question as we have before us, and we infer that it is useless to search for that which the industry of counsel has failed to find. We think the cases cited are distinguishable from this in principle. In those cases the parties may be supposed to have understood that the purchaser was to exercise his right to reject the goods if for any reason, no matter how frivolous, he should be dissatisfied with them. So, in this case, the defendant’s right to assume control did not depend upon his ability to give a reason for so doing that should be satisfactory to others; but it would not be reasonable to believe that either party contemplated a negligent or reckless course in rafting the logs or manufacturing them into lumber. We think the term used should be subject to the general limitation that, if Ross should choose to take control, he would use ordinary skill and prudence in handling the property, in which the parties had a mutual interest. It is a rule applicable to contracts generally, when a contrary intent does not affirmatively appear, that ordinary skill and prudence are contracted for, and we cannot doubt that such was the intention of the parties in this instance.
Counsel for the defendant insist that there is no evidence that Connolly did take control, and raise the question upon the introduction of evidence whether some testimony offered to prove it was admissible, contending that it was as consistent with the claim that Sullivan was managing the business. We are of the opinion that there was evidence tending to show that Connolly did take control to the exclusion of Sullivan, and therefore it was a question for the jury.
We think, also, that the question of negligence was for the jury, and that there was testimony offered tending to prove it upon all of the claims.
It is urged that the claimant has made claim to a greater quantity of logs than Connolly received from him, and that the jury should have been instructed that 7,500-000 feet, in round numbers, was the limit. It is contended that, had this been done, there could have been no balance in claimant’s favor; and it is obvious that it would have materially reduced his claim, to say the least. This is based on two propositions:
1. That the parties agreed upon Spencer and Barrett to scale the logs, and must be bound by their scale.
2. That the letters of Sullivan to the defendant estop him (Sullivan) to claim more than such quantity.
The court instructed the jury that the parties agreed upon Spencer and Barrett as scalers, and that they made a scale of 7,500," 000 feet approximately, and that this should be binding upon the parties, unless there were fraud or mistake. No one claims any fraud upon defendant’s part in relation to the scale. Claimant insists, however, that there was a mistake in the aggregate amounting to a million and a half feet. The undisputed testimony shows that Spencer and Barrett were employed by Sullivan as scalers, by consent of Connolly, and that each measured a portion of the logs. So we think the court was justified in saying to the jury that the parties agreed upon them as scalers, and that their scale should be final, unless there were fraud or mistake shown. The. alleged mistake is that Mr. Barrett did not report his full scale, or, if he did, it was not included in the computation. There was evidence tending to show that the logs were banked at two landings, and at each some were long and some were short logs. The claim is that Barrett scaled at one and Spencer at the other, and that their scales were added together, making 7,500,000 feet. The item from Barrett was headed “ Scale of Short Logs,” and it was maintained that the long logs, if scaled, were not included in the aggregate. This claim rests on the statement of some witnesses that there were long logs at both landings, and on the fact that Barrett’s scale referred to “short logs.” Barrett testified that this was his total scale, and that he scaled all on the landing. He said: “It ran small logs, — seven or eight to the thousand. * * * I didn’t scale only short logs, and I think all drawed in at that end of the landing.” He said further: “ I don’t remember whether any long logs were drawn down that road or not; not to my knowledge, because I scaled what was down that way.” He was repeatedly asked about this, and reiterated, when asked if he would say there were no long logs at Finn’s camp, that he remembered none, but that, if there were, they did not come to where he scaled. We think that Mr. Barrett’s evidence is pointedly to the effect that he scaled all of the logs at that landing, and that it was included in the item mentioned. The right to go to the jury with this question, then, rests upon the statement of witnesses that long logs were hauled to that landing, and the presence of the word “short” in the Barrett scale. Upon the strength of this, Sullivan was allowed to put his estimate upon the pile of logs, to the exclusion of the scale, and the jury were permitted to find that a million and a.half more logs were upon the hank than the scale showed. In addition to the fact that a formal scale was made, it was given by the scalers to Sullivan, and by him reported to' defendant, who seems to have relied upon it. It was made the basis for the charge for stumpage without dissent, and, although Sullivan must have known of his estimate of 9,000,000 feet, he seems not to have mentioned it to Connolly before the logs were rafted. Accord? ing to Connolly, however, he did suggest to him that the scale was too low, and asked him to require a new scale, when there was talk of a sale to Collins, shortly before the logs were taken to the Soo. Counsel also claim that the fact is proved .by the aggregate of logs lost, lumber destroyed, and sales. Thus they say there were:
Logs lost on Lake Superior._________________ 2,000,000 ft.
Logs lost at Soo Rapids______________________ 500,000 “
Lumber destroyed by bad sawing............ 300,000 “
Lumber produced...'________________________ 6,745/525 “
Logs sold................................... 623,500 “
Total.....'.............................. 10,169,025 “
We are of the opinion that the claim that there was an estoppel is not tenable, and that the learned circuit judge did not err in leaving the question of mistake to the jury.
Several assignments of error fall with this determination. Thus it was not error to show by Spencer another scale, and by Sullivan and others their estimates of the quantity of logs.
Counsel for the defendant claim that the verdict of the jury was excessive: (1) Because, while charged with interest from 1884, the defendant was not allowed interest on advances; (2) because, being entitled to but one-third of the profits above advances and expenses, the claimant should be allowed to recover but one-third of the losses resulting from defendant’s negligence. The first of these two claims is erroneous, for the reason that the account shows that an item of $11,108.88 is included in the account for interest on advances. The second proposition rests upon the assumption that, under the contract of June 24th, the stumpage and advances were to be deducted from the proceeds of the logs, and that the remainder was to constitute profits, of which defendant should have two-thirds. This ignores the provision referring to the unsigned contract as a basis of profit, which shows that no profits could arise until the specified value of the lumber should have been received, and not then unless it equaled the advances, stumpage, etc. Hence there may have been a margin between the amount of the advances and expenses and the value of the logs, computed at $9 per 1,000 feet, and, as this margin would belong to the claimant, he would be entitled to recover, if lost through defendant’s fault. It is obvious that the proposition that claimant ought not to recover more than one-third of the lost profits as defined by the contract is correct.
We have endeavored to examine carefully every point made in this cause, though we do not consider a discussion of each question necessary. We find no error, and the judgment is affirmed.
Montgomery, C. J., Moore and Long, JJ., concurred with Hooker, J.
Viz.: Gibson v. Cranage, 39 Mich. 49; Pierce v. Cooley, 56 Mich. 552 (23 N. W. 310); Mansfield Machine Works v. Common Council of Lowell, 62 Mich. 546 (29 N. W. 105), Plano Manfg. Co. v. Ellis, 68 Mich. 101 (35 N. W. 841); Platt v. Broderick, 70 Mich. 577 (38 N. W. 579); U. S. Electric Fire-Alarm Co. v. City of Big Rapids, 78 Mich. 67 (43 N. W. 1030). | [
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Montgomery, C. J.
This case presents a most unfortunate controversy between husband and wife. The complainant seeks a divorce on the ground of cruelty, predicating the charge in part on an attempt made by her husband to have her committed to an insane asylum. Any general discussion of the causes of dissension between the parties would profit no one. On the contrary, such discussion might tend to widen the breach already existing. We are convinced that the complainant became intensely jealous of her husband without just cause, and the application to have her adjudged insane was made in good faith, and in the belief that the statements attributing improper conduct to the defendant were induced by an unsettled mind. We are not able to find in the defendant’s action in this regard, or in any other respect, such evidence of cruelty as will justify a decree of divorce.
The decree of the court below will be affirmed, but, as we are convinced of the good faith of the appeal, the taxable costs will be allowed to complainant.
The other Justices concurred. | [
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Hooker, J.
Schulte sued Kelly in justice’s court, summons being personally served. Declaration and plea were filed, and the cause was adjourned. Upon the day to which it was adjourned, the plaintiff did not appear, and the cause was dismissed. Plaintiff appealed to the circuit court, and, upon trial before the court, obtained judgment. The cause is before us on writ of error.
Counsel for defendant objected to the admission of any. testimony, on the ground that the court had no jurisdiction, for the reason that the statute does not authorize an appeal where a case is dismissed by a justice for want of prosecution by the plaintiff. The statute (1 Comp. Laws 189?, § 836) provides that judgment of nonsuit, with costs, shall be rendered:
1. If he discontinue or withdraw his action.
2. If he fail to appear on return of process within one hour after the same is returnable.
3. If he fail to appear within one hour after the time to which an adjournment is taken.
4. If he become nonsuited upon the trial.
Section 902 provides that any party to a judgment rendered by a justice of the peace, conceiving himself aggrieved thereby, may appeal:
1 and 2. Where a final judgment was rendered upon issue joined, either of law or fact.
3. Where defendant did not appear and plead, and final judgment was rendered for plaintiff on the merits of his claim.
4. Where a judgment of nonsuit has been rendered.
These two statutes, considered together, if literally construed, expressly allow appeals in cases of nonsuit, and declare that a judgment of nonsuit shall be entered where a plaintiff does not seasonably appear. Counsel for the defendant urges:
First. That this was a discontinuance by operation of law, without act of the parties, and does not amount to a judgment by the justice.
Second. That it is not an appealable judgment, because, being the result of the plaintiff’s nonappearance, it must be treated as a voluntary submission to nonsuit.
And it is said, with much force, that if ohe voluntarily submits to a nonsuit, or withdraws his suit, he must begin over, and cannot appeal. It is argued that, if these points are not good, a plaintiff may commence his suit, file his declaration, and refuse to take further steps, until of necessity a judgment has been rendered against him, when he may appeal, thereby avoiding a trial by the justice in a case which, like the present, is within the exclusive jurisdiction of a justice of the peace; or, if we apply the proposition to a case which accords with plain tiff’s statement of the facts shown in this case, after one jury has disagreed in justice’s court another trial can be avoided by allowing the hour to elapse without appearance, and taking an appeal. On the other hand, it may be said that if an appeal cannot be taken where one is, without fault on his part, prevented from seasonably appearing, it may result in the loss of a claim through the running of the statute of limitations. Such cases, however, would not be numerous, and it would be no more of a hardship than any other accident which prevents timely action, and perhaps ought not to be considered against the inconsistency of a rule which, after giving a court exclusive jurisdiction in a class of cases, should put it in the power of plaintiff to effectively avoid its jurisdiction in such cases, and thereby in effect confer an original jurisdiction upon other courts, which the law has not given, but, on the contrary, has forbidden. We are of the opinion, therefore, that the defendant’s contention should be sustained, unless the statute (section 902) forbids; and this conclusion can only he avoided by so construing the word “nonsuit” as to exclude such cases as this. If it can be said that the statute was intended to apply only to cases where a plaintiff suffered an involuntary nonsuit, the defendant’s position is tenable. The case of Bowne v. Johnson, 1 Doug. (Mich.) 185, was, upon its facts, substantially like the present case, and it was there held, upon the authority of Evans v. Phillips, 4 Wheat. 73, that an appeal would not lie. But the statute then in force (Act No. 49, Laws 1841, § 94) was unlike the present one. It was as follows:
“Sec. 94. Any party to a judgment rendered by a justice of the peace, conceiving himself injured or aggrieved by such judgment, may appeal therefrom to the circuit court for the county where the same was rendered, in the following cases:
“First. Where the final judgment was rendered upon an issue of law joined between the parties.
“ Second. Where the judgment was rendered upon an issue of fact joined between the parties, .whether the defendant was present at the trial or not, or any other final judgment of such justice: Provided, that no appeal shall lie where the sum claimed to be due by either'party shall not exceed ten dollars.” •
The question of the right to appeal from a nonsuit under the statute now in force has been before this court several times. In Pattridge v. Lott, 15 Mich. 251, the case was held appealable. There, however, the justice erroneously dismissed the case against plaintiff’s pnotest. It was treated as a judgment of nonsuit, appealable under the statute. In People, ex rel. Comstock, v. Wayne Circuit Judge, 30 Mich. 98, a case which was dismissed by a justice upon the ground that the summons was defective, against the consent of the plaintiff, was held appealable. In Stall v. Diamond, 37 Mich. 429, a replevin suit’was dismissed for an alleged defect in the affidavit, and it was held that an appeal would lie. These were all cases of involuntary nonsuit, and voluntary and involuntary non-suits have always been distinguished. 6 Enc. Pl. & Prac. 828. In the case of Chouteau v. Rowse, 90 Mo. 191 (2 S. W. 209), the difference is pointed out, and it is said that, while the former may not be appealed from, the latter may. See, also, Shaw v. Pershing, 57 Mo. 416.
It may be said that a plaintiff cannot be compelled to become nonsuit,—Cahill v. Insurance Co., 2 Doug. (Mich.) 124 (43 Am. Dec. 457); Merchants’ Bank of Canada v. Schulenberg, 54 Mich. 49 (19 N. W. 741),—and therefore that all nonsuits are voluntary. But this is certainly not true of a judgment of dismissal made against the protest of the plaintiff, which the defendant contends is equivalent to a judgment of nonsuit. We think that it may justly be said that the legislators did not have in mind voluntary nonsuits when the statute was passed, but that the popular idea of a nonsuit was in mind, which ordinarily was understood to be, in common parlance, the “throwing a plaintiff out of court” by a decision of the justice upon a technical point not going to the merits, and against the plaintiff’s consent. And we think, also, that, where a plaintiff fails to appear and prosecute • his suit, his nonappearance should be held to be voluntary. Neither the opposite party nor the justice is responsible for it, and he stays away with the full knowledge of the legal consequences. The merits of his case are in no way compromised. If he is unavoidably absent, the misfortune is his, rather than another’s, and usually his right to bring another action is ample protection.
Other authorities tending to support the views herein expressed are cited in the defendant’s brief, though without giving the names of parties, — a practice which is productive of confusion, and a nonobservance of our rules.
The learned circuit judge should have sustained the objection to the admission of proof, as the case was not appealable.
The judgment is reversed, and no new trial ordered.
Moore, Long, and Grant, JJ., concurred. Montgomery, C. J., did not sit.
Among the authorities so cited, were: Ewing v. Glidwell, 3 How. (Miss.) 332 (34 Am. Dec. 96); Copeland v. Mears, 3 Smed. & M. 521; Thornton v. Demoss, 5 Smed. & M. 618; Greenlee v. M’Coy, 30 Miss. 588; Poe v. Dominic, 46 Mo. 113; Boggess v. Cox, 48 Mo. 278; Imley v. Beard, 6 Cal. 666; Sleeper v. Kelly, 22 Cal. 456; Boyd v. Kienzle, 46 Md. 301; State v. Bryan, 3 Gill, 397; Anderson v. Presbyterian Church, 13 Fla. 592; Tice v. Smith, 6 Yerg. 319. | [
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Long, J.
It appears that the defendant city, in the summer of 1896, contracted with certain parties to pave Burdick street. That street crosses Main street at right angles, and is 66 feet wide. Main street is 100 feet wide. Prior to September 1, 1896, the pavement had been completed up to the north line of Main street, leaving only the intersection of the streets to complete the pavement. Burdick street had formerly been paved with cedar blocks, and, in doing the work of ’ repaving, the contractors took up those blocks and a few inches of dirt, and filled the space with about 6 inches of broken stone and 2 inches of sand, and upon that foundation laid the brick. Labor Day came on the first Monday of September, and, the authorities being desirous of completing the work before that time, it was arranged that the contractors should continue to work day and night to complete the balance of the paving. On September 2d the contractors began tearing up the intersection of the streets. This work continued during the day and until 10:30 o’clock that night. It is the claim of the plaintiff that about 8:30 o’clock that evening, as he was walking west on the north side of Main street, and as he started to cross Burdick street, he stepped into an excavation caused by tearing up the pavement on the street, and was severely injured thereby, and the result thereof was to produce a double inguinal hernia. This suit was brought to recover damages, and on the trial he received a verdict for $5,000. Defendant brings error.
The main contention of defendant’s counsel is that the evidence shows that plaintiff was guilty of contributory negligence, and that therefore the court should have directed a verdict in favor of defendant. It appeared that plaintiff was a merchant doing business on Burdick street. The pavement had been laid past his store before the accident. He saw the work going forward, knew it was being done, and must have known that, in order to do the paving, the street would have to be excavated to some depth. On the evening in question he passed down Burdick street to the corner of Main street. McDonald’s drug-store is situated on the corner. Plaintiff turned east on Main'street a few rods to visit a place of business, and a short time thereafter he returned westward along Main street. Arriving at the corner of Burdick and Main streets, he attempted to continue directly across Burdick street. The pavement had been torn up at that crossing, as it was a part of the street that was to be finished that night. It was dug and plowed up and excavated to some depth close to the curb, and plaintiff, at once on stepping beyond the curb, fell into the excavation. At that time two arc lights were burning. One was 56 feet north. of the place of the accident, and one was hanging over the center of that part being paved. Lights were also burning in McDonald’s drug-store. Plaintiff testified as follows:
“Q. You then came down to the corner, to the east side of Burdick and Main, to McDonald’s drug-store ?
“A. Yes, sir.
“Q. And did you notice that they were working there in the street when you got down there to the store [meaning McDonald’s drug-store] ?
“A. Yes; I noticed Taft plowing out there in the center of the street. ■ That’s all the men or teams I saw there. He was plowing dirt up by the bricks on Main street, about opposite to McDonald’s, — somewhere south of McDonald’s, on Main street. The team, I think, was on the cross-walk leading from McDonald’s south towards the First National bank. The team was headed east when I saw them.
“Q. Did you stop and look at them awhile ?
“A. Yes; I stopped and looked at them, and saw the team working over there. That was before I went up to the Building & Loan. I might have stood there looking at them working in the street five minutes. I stood in front of McDonald’s drug-store, east of the corner of Main street.
“Q. They had taken out some dirt, had they, in the street ?
“A. I didn’t notice whether they had or not. I know they were plowing it up. I didn’t notice whether they had drawn out any or not.
“ Q. You noticed they had the whole corner ripped up there, didn’t you ?
“A. I didn’t pay any attention to it; I was looking at the team.
“Q. You could have seen that, all right ?
“A. Probably I could if I went and examined it. I was looking at the team. I didn’t pay any attention to anything else.
“Q. You could not help, when you saw the team— What were you looking at the team for ?
“A. They were plowing. They were not drawing any dirt, I think.
“Q. Was there anything singular about the team, that called your attention to it ?
‘'A. Yes, sir; there was.
“Q. What was it?
“A. They worked so steady over those tiles, and among that iron and track; that’s what I was looking at.
“Q. You could see that the whole corner at the intersection was disturbed, couldn’t you ?
‘ ‘A. I didn’t pay any attention to it ?
“Q. Why didn’t you ?
“A. Because I wasn’t looking at it; I was looking at the team.
“Q. There wasn’t anything to prevent you seeing it ?
‘ ‘A. I don’t know whether there was or not.
“Q. What was there, if anything, to prevent your seeing exactly what condition the street was in ?
“A. I don’t know as there was anything, if I had looked at it, but I didn’t take any pains to look out that way; all I was looking at was the team.
“Q. Didn’t have any difficulty in seeing the team there ?
“A. No, sir; they were a gray team.
“Q. You didn’t have any difficulty in seeing the man who was driving the team, did you ?
“A: No, sir. • * * *
“Q. When you came down the street, what did you do ?
“A. I started to go right up to Cobb & Hunter’s.
“Q. Did you stop at the corner there at the time?
“A. No, sir; I went straight on.
“Q. Did you look around to see what they were doing at the street then ?
“A. I did not; no, sir.
“Q. You didn’t pay any attention then; you just—
“A. [interrupting]. I went right on.
“Q. Where were you looking?
“A. Well, I was — • I don’t know where I was looking. I was looking ahead, I presume. I don’t think it was quite as light when I came from the Building & Loan Association up to the corner: It was getting darker all the time, — some darker. I was probably down there 5 or 10 minutes. There were people standing there on the corner when I came up from the Building & Loan Association. I didn’t notice who they were. They were not standing near to this cross-walk.
“Q. As you came along up to the corner on the east side of that street, near this cross-walk, didn’t you look to the south, to see Taft’s team working there ? .
“A. No, sir; I don’t think I did.
“Q. Did you look over towards where the team was working ?
“A. Don’t think I looked that way at all.
“Q. What makes you think you didn’t ?
“A. Because I was going right up there. I starred up there, and I went right along through there.
“Q. Was that the only reason that makes you think you didn’t look at them ?
“A. That’s the only reason, — because I had my mind fixed on going there, and I went there.
“Q. Your eyesight was good at that time ?
“A. Yes; better than it is now.
“Q. It was dark that night ?
“A. Yes, sir; fair. It was dusk, — not as bright as day, not by any means.
“Q. Well, it was light enough so anybody could see what was going on there, — see the street and the people ?
“A. The people standing on the walk, you could see them; yes.
“Q. And you could see people in the street, couldn’t you ?
“A. I didn’t notice anybody in the street.
“ Q. You could have seen;—
“A. [interrupting]. If I was looking that way, I might; yes.
"Q. And you could see whether the street was torn up ?
“A. Well, I didn’t pay any attention to the street.
“Q. You stepped on the curbstone, did you?
“A. I don’t know whether there was a curbstone there or not.
“Q. What?
“A. I didn’t step on any curb, as I know of.
“ Q. Wasn’t there one there ?
“A. I don’t know whether there was a curb there or not; I didn’t notice any.
“Q. Where did you go from McDonald’s walk onto this cross-walk?
“A. I went straight west. .
“Q. Well, were you, or were you not, about in the center of the cross-walk ?
“A. I should judge about in the center.
“ Q. There was nothing there that obstructed your view at all as you came up to the corner of McDonald’s drugstore? You could see where this cross-walk once had been or was ?
“A. If I was looking for it, I might; yes. But I always propose to walk about in the center of the sidewalk/’
The plaintiff testified further that he did not know of any change in the condition of the crossing until he fell into the excavation, and that he did not see any light at the time he fell. He also gave evidence tending to show that an arc light was suspended over the middle of the cross street, but it was swung down very low that night, to light the workmen in the middle of the square, and that objects easily came between it and the crossing, so as to throw the walk into shadow; that at times it did not burn evenly, but sputtered and threw shadows.
The court below, on the plaintiff’s own testimony, should have directed the verdict in favor of defendant. Counsel for plaintiff, however, contend that the case is governed by Dundas v. City of Lansing, 75 Mich. 509 (42 N. W. 1011, 5 L. R. A. 143); Argus v. Village of Sturgis, 86 Mich. 344 (48 N. W. 1085); Brezee v. Powers, 80 Mich. 172 (45 N. W. 130); Finn v. City of Adrian, 93 Mich. 507 (53 N. W. 614); Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561).
The circumstances of the injury in each of those cases were very different from the present case. In Dundas v. City of Lansing it appeared that the plaintiff was not thinking of the hole in the walk. The night was dark and stormy, and a slight snow or mist was falling. It was there said,, however:
“Many cases are reported where, under the circumstances attending the transaction, courts have rightly held that the party was not entitled to a recovery where the danger was apparent and known, and the injury resulted from his own carelessness and inattention.”
In Brezee v. Powers it appeared that the night was quite dark. There was nothing to call the plaintiff’s attention to the fact of the opening into which he fell. In Finn v. City of Adrian it appeared that the plaintiff knew, eight days before the accident, that the walk had been partially torn up, and that the street was being paved. That was held not sufficient to charge her with contributory negligence in attempting to cross the walk, as she had the right to assume, in the absence of any danger signal, that the walk had been placed in good condition. In Graves v. City of Battle Creek the theory of the plaintiff was, and she gave testimony tending to show, that, just before she stumbled over the plank in question, she heard a whistle, and became frightened and hurried on. It was said:
“The court should have submitted to the jury the question of whether this circumstance, coupled with the fact that it was in the night-time, was sufficient to excuse her immediate attention to the walk at the exact time of the injury.”
In the present case the plaintiff knew that the street was being paved. He saw the teams and men there at the very time (although it was in the night) doing the work of grading, and he says that, when he went down, he stopped and looked at the team plowing; and, being asked if he “noticed that they had the whole corner ripped up,” he answered, “I didn’t pay any attention to it; I was looking at the team.” In a few moments afterwards he returned. He was asked if on his return he could see if the street was torn up, and replied: “Well, I didn’t pay any attention to the street.” He was asked if he stepped on the curbstone, and answered: “I don’t know whether there was a curbstone there or not. ■ I didn’t step on any curb, as I know of. I didn’t notice any.” It is apparent from the testimony of plaintiff that, had he looked, he could have seen that the street was torn up. He did know that it was being torn up, and that the men were working there. , He' attempted to cross without giving any attention to the condition of the street, or taking any precaution to avoid injury. It was held in Irion v. City of Saginaw, 120 Mich. 295 (79 N. W. 572), that one who had in mind the bad condition of the cross-walk leading from the street curb to the sidewalk, and knew that if she went over it she must exercise great care, and take the chances of going over in safety, and who, by stepping aside a few feet, could pass along without going on the walk, was barred by contributory negligence from recovering for injuries received in crossing it. In Church v. Village of Howard City, 111 Mich. 298 (69 N. W. 651) 66 Am. St. Rep. 396), it was held that a pedestrian, perfectly familiar with existing conditions, was, as matter of law, guilty of contributory negligence, precluding a recovery for injuries sustained by falling from the side of a walk, unguarded by a rail, into an excavation, during the nighttime, where, instead of guiding himself by a rail on the other side, he directed his course by a light which proved not to be the one he supposed it to be. In Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844), it was held that one who in the daytime attempted to pass over stones which she saw scattered over the sidewalk assumed the risk of injury. While the present case does not present the exact state of facts presented in those cases, it does present facts which lead us to the conclusion that, had the plaintiff exercised the least care, he would not have met with the accident complained of. He walked heedlessly into danger, knowing that the street was being torn up.
The judgment must be reversed, and no new trial ordered.
Hooker, Moore, and Grant, JJ., concurred with Long, J. | [
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] |
Montgomery, C. J.
This is a hearing on a petition filed to review the proceedings in a tax case had on petition of the auditor general. Petitioner has succeeded to the original title, and defendant Edgar W. Ford is a purchaser from the State of the title derived on a sale of the land under a decree. There is no showing that the tax was paid prior to the sale, nor that the land has been redeemed, nor that the land was exempt from taxation. If the court obtained jurisdiction of the proceeding, and has so far followed the statute as to retain jurisdiction, the petitioner is not entitled to have the sale set aside. 1 Comp. Laws 1897, § 3893.
Section 3885, 1 Comp. Laws 1897, provides that, on filing the petition of the auditor general, it shall be the duty of the county clerk to present the same to the circuit judge, and it shall be the duty of the circuit judge to make an order in a form prescribed,—
“Which order, when so made and signed by the circuit judge, shall be countersigned by the county clerk as register in chancery, and recorded by him in the proper books of his office; and thereupon it shall be the duty of said county clerk to immediately make a true copy of said order, and transmit the same to the auditor general.”
The order in question was made in due form, signed by the circuit judge, countersigned by the register in chancery, and filed in the case, but was not recorded at length. Is the record by the clerk jurisdictional ?
Section 3889 provides that the publication of the order and petition shall be equivalent to personal service of notice. The requirement that the order shall be recorded is evidently for the purpose of perpetuating evidence. No jurisdictional action is based on the record. The statute contemplates that the order is to be signed in advance of any record of it in the book. The neglect of the clerk does not, we think, lose jurisdiction. Hoffman v. Pack, Woods & Co., 123 Mich. 74 (81 N. W. 934). The case cited also rules the question raised relative to .the recording of the final decree.
Certain questions are raised relative to. the sufficiency of the affidavit of publication; but, in view of our previous holdings in Mann v. Carson, 120 Mich. 631 (79 N. W. 941), Garner v. Wallace, 118 Mich. 387 (76 N. W. 758), and Spaulding v. O'Connor, 119 Mich. 45 (77 N. W. 323), we do not deem it necessary to discuss the point made at length. It is sufficient to say that the affidavit, by reference to the annexed paper, shows a publication of all requisite notice. In the same connection, the point is made that the publication is defective for the reason that the last publication was not 10 days before the day of the hearing. This point is ruled against the contention of petitioner in Eldridge v. Richmond, 120 Mich. 586 (79 N. W. 807).
The variance in date between the decree entered and the certified copy attached to the tax record is not fatal to the proceeding. Gates v. Johnson, 121 Mich. 663 (80 N. W. 709).
The report of the county treasurer ■ to the auditor general was made before the time when, under the statute, the sale stood confirmed. It is claimed that this is premature, and the case should be treated as though no report of sale had been made. Objection is also made that the return does not show that the lands bid in by the State were offered in their regular order at all. The statute requires that, if any parcel cannot be sold for taxes, interest, and charges, such parcel shall be passed over for the time being, and shall be reoffered on the succeeding day, or before the close of the sale. The report states that:
“ In every case where any parcels are marked as bid to the State, such parcels, on the original offering for sale, were passed over for the time being, and were, before the close of such sale, reoffered for sale; but the same, respectively, could not be sold for the total amount of the taxes, interest, and charges, and thereupon, and for that reason, I did bid off the same, respectively, in the name of the State.”
We think the criticism not justified, and we also think, as to both criticisms on the report, that the alleged irregularities are not jurisdictional. Detroit Fire & Marine Ins. Co. v. Wood, 118 Mich. 31 (76 N. W. 136).
The decree in this case was based on the assessment of 1893. The State became the purchaser in 1895, and the defendant Edgar W. Eord bought the title of the State at the December sale of 1896. It appears that at the same time the defendant Ford purchased on a sale for the taxes of 1894. The petitioner subsequently redeemed from the sale for the taxes of 1894, leaving the purchase of the State interest to stand. It is now claimed that the sale for the taxes of 1894 was void, under Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656), and that as it does not appear that the defendant would have purchased the title of the State under the present decree for the taxes of 1893, except for the reason that he wanted to bid for the taxes of 1894, this sale should fall with the other. It might be answered that it does not appear that the defendant would have purchased under the sale for the taxes of 1894, except for the reason that he wanted to buy the State’s title for the taxes of 1893. We think this purchase gave title to defendant.
We find no jurisdictional defects in the proceedings, and the decree dismissing the petition will be affirmed, with costs.
The other Justices concurred. | [
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] |
Long, J.
In July, 1897, the defendant made and swore to a complaint, in which it was charged that the plaintiff in this case did willfully and maliciously disturb the peace of the village of Metamora, Lapeer county. A warrant was issued upon this complaint by a justice of the peace, and placed in the hands of an officer, and upon which the plaintiff was arrested, and confined in the Metamora jail for a brief period. On a trial before the justice he was discharged. He then brought this action for malicious prosecution and false imprisonment against the defendant here, and recovered a verdict and judgment for $25. Defendant brings error.
On the trial the court below held that the only question in the case was one of false imprisonment, as the complaint and warrant were void, and afforded no protection to the officer making the arrest. It appears that the defendant was a member of the village council, and that there was an ordinance of the village for punishing persons guilty of disturbing the peace by quarreling and fighting on the public streets. It also appears that, in June previous to the arrest, the plaintiff had an altercation with one Rev. William H. Flint, a Congregational minister of the village, and, after exchanging a few words with him, struck him, and then turned and ran away. The defendant was an eye-witness to the affray, and, as the plaintiff turned to run away, the defendant caught him, and asked the marshal of the village to take him before a justice of the peace, which he did, and the justice fined the plaintiff $10 and costs for assault and battery, and the fine was' paid. Following this, the defendant made the complaint out of which the present case grew, and upon which the plaintiff was arrested. The defendant’s connection with the affair was testified to by the plaintiff and by the justice who issued the warrant. The justice testified that the defendant stated to him the facts which he claimed constituted the offense under the village ordinance; that he said to the defendant that he was going to Lapeer, and would lay the matter before the prosecuting attorney; that he did so, and then told the defendant he would take the complaint, as the prosecuting attorney said that the fine in the first case would go to the county, and that there was an action for violating the village ordinance separate from that if they saw fit to prosecute it; that he then took the complaint in writing; that the village attorney was not there, and he drew up the complaint. The justice also testified that, after the complaint was made, he issued the warrant, and handed it to a constable for service, and that the defendant had nothing to do with serving the war rant, to his knowledge; that, when the case was called, it was conceded that the complaint and warrant were defective, and he discharged the plaintiff; that subsequently a new complaint was made by defendant, and warrant issued, the plaintiff arrested, and on the second trial was convicted by a jury.
The plaintiff was permitted to put in some testimony which he claimed tended to show a conspiracy on the part of defendant with others to imprison him, and drive him out of the community. The defendant offered no evidence in the case. His counsel, after the close of the testimony, asked the court to direct the verdict in favor of the defendant. This was refused.
There was no testimony tending to show a conspiracy to imprison the plaintiff, and all the defendant did was to make the complaint. We think the request should have been given. The testimony is conclusive that the plaintiff had been guilty of willfully and maliciously disturbing the peace. He had pleaded guilty to’ an assault and battery on Mr. Flint oh the same occasion. It is also conclusively established by the evidence that defendant had nothing to do with the arrest of the plaintiff except making the complaint. It is true that the complaint and warrant did not contain sufficient averments to make a case under the ordinance; but the defendant had nothing to do with drawing them up. The justice did that after consulting with the prosecuting attorney; and, after he had told the defendant that the prosecuting attorney was of the opinion that the facts stated by defendant to the justice were sufficient, the defendant signed the complaint. The warrant, when issued, was delivered to a constable, and was served by him. The defendant, so far as appears by the record, did not suggest the putting of the plaintiff in the lockup. That was done because of the absence of the justice. When the justice returned, and the plaintiff was brought before him, he let him off on his own recognizance. The case is very similar to the case of Murphy v. Walters, 34 Mich. 180. It was there held that ono who, in making a criminal complaint, merely states the facts and circumstances to the prosecuting attorney, and swears to the complaint drawn by the latter embodying such facts, is not liable in an action of false imprisonment, though the facts sworn to fail to make out a criminal offense. See, also, Thurston v. Wright, 77 Mich. 102, 103 (43 N. W. 860).
The judgment must be reversed, and a new trial granted.
The other J ustices concurred. | [
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] |
Ciiristianov J.:
The questions involved in this case arise upon the indictment and the special verdict.
The first and fourth counts charged, in substance, that the defendant, not being authorized • by law to do a regular banking business and to issue bank bills, “ did issue a certain draft in the similitude of a bank bill,” setting forth the draft.
The second count charges that defendant “ did issue a certain draft to be put in circulation as money.”
The third, that he “ did issue” the draft “ to be used as a currency or circulating medium.”
The fifth, that he issued ■ it, “ to be loaned or put in circulation as money;” and the sixth, that he issued it “ to pass or be used as a currency or circulating medium.” All the counts set forth the same draft in haeo verba.
All .these counts, then, charge the defendant with having “issued” the draft, and it is manifest from the statute upon which the indictment is founded (Gomp. L. §5899), that the substantive offense, in every form defined by the section, consists in the issuing of the paper therein described: that, whatever other ingredients may be required to complete the offense, if the defendant did not “issue” the paper, he has committed no offense under this section.
Have the jury, by their special verdict, found that the defendant issued the paper as set forth in any count of the indictment? This is the first question, and if decided in the negative no other question can properly arise.
The special verdict, so far as this point is involved, ■only finds that the defendant “ did pay out” the paper in question to one Miles Lattimer, on a check drawn upon the defendant.
The court can add nothing to this finding: they can draw only the legal conclusions from the facts found. No facts can be inferred by the court which the jury have not inferred and set forth; especially against a defendant in á criminal case. To this verdict the maxim applies, in its full force; “ de non apparentibas et non existentibus, 1eadem est ratio, et judieiumP
This verdict does not find that the defendant is the same person whose name purports to be signed to the acceptance set forth in the indictment, or that he had any connection with or interest in the “Savings and Exchange Bank of B. Wells,” upon which the draft purports to be drawn; nor .that he was a banker, or in any manner connected with, responsible for, or interested in the paper in question, except what is to be inferred from the single fact of paying it out upon a check drawn upon him.
None of these facts, which 'the verdict has omitted, can be supplied by the court.
We are compelled, therefore, to consider the defendant as no otherwise connected with, or responsible for, the issue of this paper, than any other individual would be by the naked fact of paying it out upon a check or order drawn upon him; and the question is whether such “pay ing out” is necessarily equivalent to, or identical, with, the “ issuing” of the paper, within the meaning of this statute ?
. We do not think this is the fair import of the term “issue” as here used.
. This section, so far as relates to the present question, is the same found in section five of chapter fifty of the Revised Statutes of 1846. The chapter is there entitled, “ Of unauthorized banking, and certain notes or evidences of debt issued by banks.’’ The amendment of 1853 (JDcms of 1853, p: 20), in no way affects the present question. An examination of the chapter, as it now stands (Comp. L. §§ 5895 to 5903) will, we think, show very clearly that the term is not used in the sense of merely passing, or paying out, by a person in no way a party to the paper, nor connected, as principal or agent, with its original issue, and who is to derive no profit or benefit from the illegal enterprise.
By the first section, “no person unauthorized by law, shall subscribe to, or become a member or in any way interested in, any association or company formed for the purpose of issuing notes or other evidences of debt, to be loaned or put in circulation as money; nor shall any person unauthorized by law subscribe to, or become in any way interested in, any bank or fund created or to be created for the like purposes, or either of them.”
Section two imposes a penalty for becoming a member of such company, or being interested in such fund.
Section three prohibits any incorporated company, not expressly authorized by law, from employing any part of its effects, or being in any way interested in, any fund that shall be employed for the purpose of receiving deposites, making discounts or issuing notes, or other evidences' of debt “to be loaned or put in circulation as money,” and inn poses a penalty for a violation of the section.
Section four declares all such notes, &c., mentioned in the preceding section, void.
Section five (upon which this indictment is based), as amended by the act of 1853, enacts, “No person, association or body corporate, whether public or private, except such bodies corporate as are or shall be expressly authorized by law to do a regular banking business, and to issue bank bills, shall issue any bills, notes, due bills, drafts or other evidences of debt, in the similitude of bank bills, or to be loaned or put in circulation as money, or to pass or be used as a currency or circulating medium;” and imposes the penalty for a violation.
This section distinguishes between the act of issuing by the parties interested, and the passing or circulating by other parties: the latter is stated as the purpose for which the former act is committed.
The sixth section prohibits any corporation, authorized to do a banking business, from making their bills payable in any thing but specie, or at any other place but their banldng house, &c.
By the seventh section it is enacted, “No person shall pay, give or receive in payment, or in any way circulate or attempt to circulate, any bank bill, promissory note or other evidence of debt, issued by any banking company, or by any other corporation within this state or elsewhere, which shall purport to be for the payment of a less sum than one dollar, or which shall be made payable otherwise than in specie on demand;” and imposes a penalty.
This section makes a clear and manifest distinction between the issuing and paying or circulating, and imposes a penalty for paying or circulating the paper there described, “issued by any banking company,” &c. If this section had been made applicable to the paper described in the fifth section, the special verdict would have brought the defendant within it. And if it had been intended to make the offense consist in the paying out or circulating the paper described in the fifth section, no good reason can be given why the Legislature should not have used language similar to that in the seventh section.
The eighth section also makes a distinction between the issuing and the passing or circulating post notes, &c.
Upon a full examination of the statute, therefore, we think it too clear to admit of any reasonable doubt, that the special verdict in this case fails to bring the defendant within any provision of this statute, or any other statute of this state.
It must be certified to the Circuit Court for the county of Kent, as the opinion of this court, that upon the faots found by the jury, defendant is not guilty in manner and. form as charged in the indictment.
Manning and Campbell JJ., concurred.
Martin Cu. J., was absent. | [
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Campbell J.:
The statute iinder which this prosecution is had punishes “ every person who shall break and enter, in the night time, any office, shop, railroad depot or warehouse, not adjoining to or occupied with a dwelling house,” with intent to commit felony.
It is a plain principle of law, that where the statutes ommerate several elements as combining to create a crime, the crime can not properly be described without including all these elements. An entry into a shop or warehouse in the night, with intent to commit a felony, is not a crime under this statute unless it also appears that the shop or warehouse is neither adjoining to nor occupied with a dwelling. Burglary at common law must be committed in such a place as is within the definition of a dwelling, which term has received an enlarged signification. Entering other, buildings was not regarded in the same light. In making a pew crime, the Legislature have seen fit to select a peculiar class of buildings; and it can not be enlarged or varied.
The information is defective in not setting forth any offense known to our laws; and the judgment was therefore erroneous, and must be reversed.
Manning & Ciiristiancy JJ. concurred.
Martin Cii. J. was absent. | [
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] |
Manning J.:
This is an action against the city of Saginaw, for maintaining, keeping up and continuing in said city, since the first day of January, 1859, certain ditches, whereby thesur plus surface water of the city is thrown upon the land of the plaintiff, to his great injury. On the trial, after introducing evidence to show his title to the land on 1st January, 1859, and that he was in possession thereof, the existence of the ditches, and the injury done to the land, he offered in evidence the record of the proceedings of thecommon council of the city, in 1858, to prove the making of contracts and employment of men hy the city to dig the ditch hy which the water was turned on his land. It was ■objected to, and ruled out by the court, but for what reason does not appear from the bill of exceptions. If on the ground that it was of proceedings anterior to the plaintiff’s title, and his possession of the land — as stated in the brief submitted by defendant’s counsel — it is only necessary to say that the city, hy creating the nuisance, which the evidence offered tended to prove, is prima facie liable for its continuance.
Judgment reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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] |
Grant, J.
{after stating the facts). Mr. Tomlinson and George Cornett were the only two witnesses of what occurred at the time of the assignment, and of any parol agreement. Mr. Tomlinson died after the decree was rendered. He was then 80 years of age. The learned circuit judge, before whom the testimony was taken, refers to the known character and reputation of Mr. Tomlinson for honesty and integrity, and states that “it would be impossible for any judge sitting in Jackson to pass upon his sworn testimony without recognizing that fact.” He then refers to the character of George Cornett as illustrated by the proofs in the case, and the litigation involving the mortgage in question and other mortgages. The circuit judge then says:
“Where these two witnesses disagree upon a material question of fact, the disagreement scarcely creates a subject for hesitation or debate in the mind of a court, seeking to determine the truth.”
He then concludes that where they disagree he must rely upon the testimony of Mr. Tomlinson.
Were this case to be decided upon the testimony of these two witnesses, we might reach the same conclusion, —not, however, upon what the judge has said about the reputation of either or both. The judge was not a witness; and in chancery cases, which must be determined by this court upon the facts, we cannot consider the statement of the circuit judge as to the reputation or character of either litigant, unless it is based upon the testimony in the case. The circuit judge evidently recognized the difficulty in reconciling Mr. Tomlinson’s conduct for six years after this assignment with his present claim, for he says:
“While it may not be easy to reconcile Tomlinson’s conduct and testimony in the litigation extending over the period from ’90 to ’96 with his view of the transaction as sworn to in this case, under all the circumstances surrounding him, and with the explanation afforded by the situation itself, with its strikingly peculiar conditions, I am satisfied that such inconsistencies as exist are not sufficient to compensate for the wide difference in probative force between the testimony of Tomlinson, as given in this case, and that of Cornett; and, notwithstanding the ■deteriorating effect which these inconsistencies must have upon his testimony here, I still believe that the truth is, in substance, in accordance with Tomlinson’s testimony given in this case.”
It becomes, therefore, essential to determine what that conduct was. The assignment and the negotiable promissory notes and the payment of $1,000 import, and are consistent only with the theory of, an absolute sale. Complainant admits that the arrangement between him and Cornett was to be kept secret. Soon after this assignment, the firm of Conely, Maybury & Lucking sued George Cornett, and garnished Mr. Tomlinson, upon the theory that he was indebted to, or had property, money, or effects in his hands belonging to, George Cornett. Mr. Tomlinson filed a disclosure absolutely denying any indebtedness whatever, or the possession of any property, moneys, goods, chattels, or effects whatsoever belonging to George Cornett. He was examined under oath, and there testified, in substance, that he was the absolute owner of the mortgage, and that “ I paid him [George Cornett] $1,000 in cash, and the balance in negotiable paper.” On the strength of this disclosure, Conely, May-bury & Lucking were compelled to discontinue their suit, and paid Mr. Tomlinson the costs. In his bill for foreclosure Mr. Tomlinson stated under oath “that said note, mortgage, and decree, having been duly sold and assigned, are now owned by your orator.” William H. Cornett testified that he asked Mr. Tomlinson “if the transaction was a genuine one, and if there was anything in it in which George had any interest, or anything of that kind, and he said, ‘No.’ He said that he was the absolute owner of the property that was transferred to him; that he gave George .a thousand dollars in money and these two promissory notes, and in consideration of that he received the assignment of the mortgage that had been decreed to him.” Complainant admits that he told William that it was a bond fide transaction. He claims to have made a-written memorandum at the time of the assignment, which was produced in evidence, and reads as follows:
“Agreement between George Cornett, of the first part, and Joseph B. Tomlinson, of the second part, of the city of Jackson, county of Jackson, State of Michigan, in regard to the matter of the Gates mortgage: Said George Cornett, of the first part, agrees to furnish Joseph B. Tomlinson, of the second part, all the money needed to foreclose said mortgage, and for and in consideration of the payment by Joseph B. Tomlinson, of the second part, to George Cornett, of the first part, one thousand dollars in cash in hand paid, and two notes amounting to $6,000 or over, in consideration of which said George Cornett, of the first part, guarantees the collection of said mortgage, with all the costs and interest that may accrue thereon.”
That memorandum is consistent alone with the sale, and not with that of agency. His attitude for six years towards every one who had any interest in knowing the facts was that of a bona fide purchaser. It is unnecessary to enter further into the testimony. Mr. Tomlinson in his lifetime was, and his estate now is, bound by the record he then made. He was called upon, by those who had a right to know, to speak and tell the truth of this transaction. He deliberately chose not to do so. He testified that he made these statements upon the theory that he was the absolute owner of this mortgage, the note secured thereby, and the decree, until he had foreclosed, sold the property., and realized thereon, and that then what he had received was not his own, but belonged to George Cornett. The theory is a reflection upon Mr. Tomlinson’s intelligence If he was merely the agent for collection for George Cornett, he should, when called upon, have so stated. He knew the facts then as well as he did six years later. Under this record, there are only two possible theories: (1) That the purchase and sale by complainant were absolute; or (2) that the assignment was made to prevent the creditors of George Cornett from getting the benefit of this property. But, whatever may have been the secret understanding between them, Mr. Tomlinson deliberately made his bed, lay in it for six years, and his estate must now continue to lie in it. This disposition of the case renders it unnecessary to discuss the other point raised, viz., whether the assignment and notes constitute a written contract, which cannot be varied by a contemporaneous parol agreement.
Decree reversed and bill dismissed, with costs of both courts.
The other Justices concurred.
Subsequently, on motion, a decree was entered under defend" ants’ prayers for affirmative relief, declaring liens for the amounts of their several claims on the purchase-money notes given by complainant. | [
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] |
Campbell J.:
The only question in this case is, whether an owner of an undivided interest in a piece of property which has been assessed without division, can redeem his share from a sale for city taxes.
The city charter, providing' for the assessment of property, is silent as to its details, but as the 'same roll is the basis of all taxation, the general statutes apply so far as not modified by the charter. Under these, no doubt can exist concerning the right to assess undivided interests. And the law expressly provides for the redemption of any undivided interest whatever.
I think the charter very clearly recognizes the right of owners of part interests, to pay their share of taxes to the collectors before sale, whether separately assessed or not. Section 14 of the charter (D. 1857, p. 144-5) makes the tax a lien upon the property assessed, and renders the owners, occupants, and parties in interest, liable on demand to pay it. The statute could not have intended such an absurdity as that a part owner should be bound to pay the whole tax. Such a construction would avoid the statute, as beyond the power of the Legislature. And in the very next clause provision is made, that in. case of default in paying the same “ or any part thereof ” the council may proceed to enforce it by the usual process, which is there set forth. In providing' for the sale of “real estate,” we must hold that the term applies not to whole lots, but to such interests as are not paid upon, or else we must hold that the city may lawfully receive and demand a portion from each part owner, and yet sell the whole estate for the default' of one, although the rest have paid, and without allowing the amount of such payments to be deducted. This would be a monstrous doctrine.
The language of section 15, in relation to redemptions, is the same (so far as it refers to property) with that of section 14. And although section 16 uses language somewhat different, yet there is no such difference - as would justify us in assuming a different construction when we look at the reason of the matter, and regard the provisions of section 17. The latter section provides means whereby any person in possession, who has been obliged to pay taxes, may recover them back of the owner. But no provision is made whereby a tenant in common may recover of his co-tenant; and in the absence of such a provision, unless a tenant in common can redeem his own share, he may be compelled* either to lose it, or pay more than its entire value to retain it.
An undivided interest is just as much a separate estate as a divided one, and the law so regards it. No tenant in common can restrain his co-tenant from disposing of his interest to absentees or irresponsible persons. And such estates are created more frequently by intestacy than by grant. It should be a very clear provision of law which can be construed to apply to these estates a burden of liability for taxes beyond others. And for my own part I am not prepared to admit that the law can validly make any such distinction. No property can be subjected to more than its share of general taxes, without infringing on principles of great moment; and I am not willing to apply to any statute a meaning which will render it obnoxious to such consequences, if any other can be reasonably arrived at.
A mandamus must issue as prayed for.
Martin, Ch. J. concurred. | [
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] |
Hooker, J.
The plaintiff’s action is based upon two promissory notes made by the defendant, payable to the Wolverine Oil & Gas Company, Limited. They bear the indorsement of the Wolverine Oil & Gas Company, Limited. A writ of error has been taken by the defendant, against whom a judgment was rendered in the circuit court.
The evidence indicates that the plaintiff sold to the Wolverine Oil & Gas Company of Detroit, Mich., Limited, from time to time, supplies for use in the latter’s business. The company being in need of funds, its stockholders undertook to raise an amount of money for it; and defendant gave the notes in question for his proportionate share, he being a stockholder. It is noticeable that the words “ Detroit, Mich.,” are omitted from the name of the payee in the notes; but it appears that these words are omitted in its certificates of stock, and it was commonly known by the name used in the notes, and it indorsed them in that name. The testimony of the plaintiff shows that.these notes were given to the plaintiff in payment of its claim by the proper officers of the company, and were received in payment therefor, before maturity.
Upon the trial defendant claimed that the notes were procured through misrepresentation and fraud by the "Wolverine Company, and offered testimony to prove it. He also sought to show that defendant received no consideration whatever for the notes. This testimony was excluded upon the ground that it was not competent until some evidence had been given tending to show that the plaintiff was not a bona ficle holder of the paper. The defendant alleges error upon this ruling. He also asserts that the misnomer of the Wolverine Company made the notes nonnegotiable, and that, if not, the indorsement did not convey -title, because not indorsed in the company’s true name. Error is also alleged upon the ground that plaintiff had no valid claim against the Wolverine Company.
The notes in question were made to the Wolverine Company in the name in which it saw fit to do business. Section 6081 of the statute (2 Comp. Laws) is cited as authority to the point that the full name is required in its promissory notes. Plainly, it is not applicable, having reference only to papers made by it; and we do- not mean to intimate that such would be void.
To the claim that the notes were made payable to a fictitious person, and therefore not negotiable, the statute (2 Comp. Laws, § 4870), which makes such notes the same as though made to bearer, is an answer. The defendant delivered them to the Wolverine Oil Sc Gas Company of Detroit, Mich., Limited, and that company became the owner of them. The indorsement is either effective or unnecessary to pass title to the notes to the plaintiff.
The claim that plaintiff did not pay value, because it had no valid claim against the company, is based on a statute (2 Comp. Laws, § 6083) which reads:
“No debt shall be contracted nor liability incurred for said association except by one or more of said managers, and no liability for an amount exceeding five hundred dollars, except against the person incurring it, shall bind the said association unless reduced to writing and signed' by at least two managers.”
The debt for which these notes were given to plaintiff was the result of a running account. The aggregate exceeded $500, but there is testimony that indicates that each of the items going to make up the amount was under $500. The transfer of the notes was not the incurring of a liability, but paying it. It may be said that the indorsement creatéd a liability, if valid. But the indorsement may be effective to pay the debt, and ineffective to create a liability as indorser, like an indorsement “ without recourse.” Certainly the delivery of the property of the company to pay a valid debt is not within the letter of the statute. The case is unlike Citizens’ Sav. Bank v. Vaughan, 115 Mich. 157 (73 N. W. 143).
It was within the discretion of the court to exclude proof of fraud and want of consideration until plaintiff’s prima facie proof of bona fides was contradicted by sufficient testimony to raise a question for the jury. Drovers’ Nat. Bank v. Blue, 110 Mich. 31 (67 N. W. 1105, 64 Am. St. Rep. 327); Drovers’ Nat. Bank v. Potvin, 116 Mich. 474 (74 N. W. 724).
We discover no error in the record, and the judgment is affirmed.
Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit. | [
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] |
Moore' J.
Prior to September 26, 1894, defendant kept a hotel known as the “Tivola House,” now known as the “ Butler House,” in the city of Lansing. He leased the hotel, but owned all the kitchen, dining-room, office, sleeping-room, and other furniture and fixtures in the hotel. In September he made ah exchange of his furniture and fixtures with plaintiff for other property. The hotel furniture and fixtures were valued in the exchange at $1,200. To secure the payment of $239.46 of the pur- ^ chase price, the plaintiff gave defendant a chattel mortgage upon all the hotel fixtures and furniture he had obtained from him. The mortgage contained the following provision:
“ But, if default be made in such payment, the said Lewis G. Darby is hereby authorized to and shall sell at public auction, after the like notice as is required by law for constables’ sales, the goods, chattels, and personal property hereinbefore mentioned, or so much thereof as may be necessary to satisfy the said debt, interest, and reasonable expenses, and to retain the same out of the proceeds of such sale; the overplus or residue, if any, to belong and to be returned to said Edward P. Castner,”
After this exchange was made, the plaintiff kept the hotel for a time. He was not successful as a hotel keeper. He got behind with his rent. He finally arranged with the owner of the hotel to surrender possession, and the owner relinquished the amount due for rent. The defendant demanded possession of the mortgaged property, and, when objection was made to his taking possession, threatened to replevy the property. He was then permitted to take possession. He rented the hotel, and used all the furniture for some weeks, without taking any steps to foreclose his mortgage. He then caused notices of foreclosure to be posted, but did not give notice to the mortgagor of the sale. Upon the day of the sale no bidders appeared. There were several persons in and about the hotel. The officer having charge of the sale, and Mr. Darby, visited a number of the rooms of the hotel, but not all of them. The officer stated he was ready to sell the property in parcels or as a whole, but he did not actually put up any separate article, or the furniture in any par ticular room, for sale. The property had not been gathered into one place, but was in the several places where it was used during the running of the hotel. The officer then offered all the property covered by the chattel mortgage for sale. The defendant bid $130 for it. There were no other bidders, and it was sold to him for that amount. When the plaintiff learned of the sale, he caused a demand to be made upon the defendant for the property. The defendant refused to comply with the demand. The plaintiff sued him in assumpsit in justice’s court, and obtained a judgment. The case was appealed to the circuit court. Upon the trial in that court the property was valued by the witnesses at from $250, by the defendant, to as high as $800, by another witness. The jury fixed its value at $500" in their verdict. The case is brought here by writ of error.
The court refused to give the following request:
“ In finding the value of the goods in question, the jury are not at liberty to consider what the plaintiff called them worth in the trade he made with the defendant, as the question to be determined is what they in reality were worth at the time they were sold by McKale; and it cannot be said they were worth more than their actual value at that time, because, when the plaintiff traded for them in September before, he estimated them at any particular sum.”
This refusal is said to be error. We cannot agree with counsel. The court told the jury they must be confined to the actual value of the goods. The estimate the parties themselves had put upon the goods was in evidence. It was not conclusive, but it was for the consideration of the jury, in connection with all the other evidence and facts and circumstances developed by the trial.
The court, after calling the attention of the jury to the manner in which the sale was made, said to them:
‘ ‘ Originally, the owner of a mortgage was not permitted to make purchase under the mortgage sale. It was considered a matter of doubtful propriety whether a man should buy at his own sale. The mortgagee makes the sale, and in an early day it was considered a questionable thing that he should buy at his own sale; that it would not be fair; that the incentive to unfairness would defeat the object of the law, which was a fair sale. But a statute was passed in this State in 1877 which reads in this way:
“ ‘ That, at any sale of' property upon foreclosure of a chattel mortgage, the mortgagee or his assigns, or his or their legal representative, may fairly and in good faith purchase the property so offered for sale, or any part thereof.’
‘ ‘ The statute describes the manner in which the mortgagee may purchase. It must be ‘fairly and in good faith.’ Now, that means that there must be sufficient notice before he can purchase. That means that the property must be offered in the right way before he can purchase. And I instruct you in this case, where it appears that the property was sold in one mass, being property of the kind described here, — hotel property, — and being purchased in by the mortgagee, according to his own testimony, at about 50 cents on the dollar of what he considered it fairly worth, that it was not a fair sale, nor such a sale as would be permitted. I instruct you that the sale was void.”
This is said to be error.
Section 9530, 3 Comp. Laws, reads as follows:
“ The People of the State of Michigan enact, that at any sale of property upon foreclosure of a chattel mort- ’ gage, or of a pledge, the mortgagee or pledgee, or his or their assignees or legal representatives, may fairly and in good faith purchase the property so offered for sale, or any part thereof.”
In Jones, Chat. Mortg. § 808a, it is said:
“A mortgagee purchasing at a grossly inadequate price, or without giving requisite notice, obtains only a colorable title, and is accountable to the owner for the fair value of the property at the time of the appropriation. The owner may disregard the sale, and redeem the property. The burden is upon the mortgagee purchasing at his own sale under a power to show that the sale was fairly and openly made, in strict compliance with the power, and that the price paid was not so clearly and grossly inadequate as to raise a presumption of bad faith.”
In Herm. Chat. Mortg. p. 507, it is said:
“The conduct and fairness of a sale by a mortgagee, and the rights acquired under it, are always open to investigation at the instance of the mortgagor. On this account a sale under judicial sanction is safer, and, where the amount is large, advisable. .Such sales will be jealously watched, and upon the slightest proof of unfair conduct, or a departure from the power, will be set aside. Everything done by the parties to such sale calculated to prevent competition renders it void. A mortgagee selling under a power of sale in his mortgage will be held strictly responsible for any prejudice to the mortgagor arising from any deviation from the provisions governing the exercise of the power and the statute requisitions as to notice.”
Under the facts disclosed by this record, we think the court was right in holding the sale was void.
It is strenuously urged that plaintiff has mistaken his remedy, and that assumpsit will not lie in such a case as this. In considering this branch of the case it is well to remember that defendant came into possession of this property by virtue of a contract, — that is, a chattel mortgage, made to him by the plaintiff; that he had sold the property, as mortgagee, to himself as an individual; and that upon demand he had refused to give the plaintiff possession of the property, and claimed to be the owner of it. The ease comes directly within Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652); Newman v. Olney, 118 Mich. 545 (77 N. W. 9); Grinnell v. Anderson, 122 Mich. 533 (81 N. W. 329).
The other assignments do not call for discussion. The court instructed the jury to deduct from the value of the property the entire amount of the chattel mortgage, and this was done.
Judgment is affirmed.
The other Justices concurred. | [
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Montgomery, C. J.
Plaintiff was gang sawyer in defendant’s mill. As such, it was his duty, when cants or logs with broomed ends, containing stones and gravel, were going through the gang, to chop off the ends, that the saws might not be injured. While engaged in this work, called “ sniping,” he was hurt by having the end of a load of cants run against his leg. The assignments of error raise only the question of whether a verdict should have been directed for defendant.
Plaintiff testified that, at the time of the accident, he was standing between the rollers that are between the skidways of the band saw, engaged in the work of sniping. He testified that this work required close attention, and that he necessarily stood in this place, and with his back to the rollers which brought up the cants, depending for protection upon the fact that, unless one of the levers con. trolling the rollers should be reversed, the load of cants must stop at a certain dead roller behind him, and that, as he testified, it was his duty to reverse the lever to bring the cants beyond the dead roller, or to order it done, testifying: “It was not customary for anybody to pull up without an order from me. I so instructed the men, and the men understood it. ” This is contradicted by defendant’s witnesses, who assert that it was customary to move the cants up without plaintiff’s orders.
The testimony shows that the lever was reversed, and the load of cants which caused the injury brought up, by the order of Mr. Fraser, the mill foreman. The testimony of the tail sawyer, who reversed the lever by this order, is that, ‘ ‘ from Mr. Fraser’s order, I had an idea he did not want the cants any farther than the band-saw skidway, and that is where my intention was to put them;” and that he (witness) was not looking towards plaintiff when he pulled the lever, but looked around afterwards to see if he had the cants far enough, and then the damage was done. Mr. Fraser testified that his direction to the tail sawyer, by motion, was to stop the cants at the band-saw skidway.
Defendant’s witness Mr. Morey testified:
‘ ‘ I am in the employ of Mr. Hall, — manager and superintendent, as you might say, of the Detroit mill [the mill in question]. * * * Mr. Fraser was hired as mill foreman. * * * I think he understands every department in the mill. He is competent in every respect, — mechanically and otherwise. I have so much confidence in his ability and efficiency that he has exclusive charge of the department.”
This testimony seems to be in accord with that of plaintiff’s witnesses as to Fraser’s duties about the mill. There was some conflict in the testimony as to how much manual labor Fraser was in the habit of performing, and as to what authority he had in the matter of hiring and discharging men. Upon the latter point Mr. Morey testified:
“I always hired the engineer. The firemen, day and night, I guess I invariably hired. • Aside from that, most of the men in the mill probably were hired by Mr. Fraser, after receiving instructions from me. I instructed him when to hire the men, and when to make arrangements when we should start, and also what wages generally to pay. If any changes in the wages were made, he consulted me. I have talked with Mr. Fraser about what sort of men he should hire for the different places in the mill, as to character or efficiency. It was always understood that we were to hire the best men we could get, and to try to have the reputation of paying wages that would enable him to get -good, efficient men, when it was practicable. That was always the instruction that Mr. Fraser had with reference to hiring men, so far as was necessary.”
One of plaintiff’s witnesses testified to statements made to him by Mr. Morey, when declining to interfere with Fraser’s refusal to employ the witness, that he (Morey) had nothing to do with the mill, and that Mr. Fraser had full charge of it. Plaintiff testified that Mr. Fraser claimed to him that he had full power to hire and discharge any man in the mill.
Defendant claims that the undisputed testimony shows that Fraser was acting as plaintiff’s fellow-servant, at least in giving the order in question. The mill consisted of a lumber mill, proper, a shingle mill, a lath mill, and the defendant, also, as a part of his operations, conducted a salt mill. The testimony shows that one Connors was foreman of the shingle mill, with similar powers to those exercised by Fraser in the sawmill; one McIntyre was foreman over the lath mill; and one Gillis was foreman over the salt mill. All of these men were under the supervision of Mr. Morey, defendant’s superintendent. We think that, under the undisputed testimony, the case falls within our former holdings, and that Fraser must be held to have been a fellow-servant of the plaintiff. It is to be noted that the alleged negligence of Fraser was not an act which it is the master’s duty to perform. No complaint can be made that a safe place to work was not furnished to the workmen in the mill. Fraser’s order related to the mere conduct of the work, and in the giving of that order he did not occupy the position of the master, within the holdings of this court. See Schroeder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354); Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Andre v. Elevator Co., 117 Mich. 560 (76 N. W. 86); Findlay v. Foundry Co., 108 Mich. 286 (66 N. W. 50).
It is very doubtful whether, in any view, it could be said that the order actually given by Fraser was the cause of the injury to the plaintiff. If the testimony of the tail sawyer and of Fraser be credited, it would appear that had the order, as given, been obeyed by the tail sawyer, no injury would have happened to the plaintiff. But, in the view we take of the relation of Fraser to the plaintiff, it is not necessary to determine the case upon this ground.
The judgment will be reversed, and a new trial ordered.
Hooker, Moore, and Long, JJ., concurred. Grant, J., did not sit. | [
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Long, J.
This action was brought to recover for the purchase price of a stock of clothing sold by plaintiff to defendant in January, 1896, for $4,000. The defendant, under the plea of the general issue, gave notice that in December, 1898, all matters of difference between the parties were settled in connection with the sale of another stock of goods from defendant to the plaintiff, by which it was then and there agreed, by and between the parties, that the sale by said defendant to plaintiff of said stock of goods, and the acceptance by defendant of a certain sum of money, should constitute a settlement of all claims of either party against the other, including the balance due said plaintiff from said defendant for the purchase price of the stock of goods sold in 1896, if any such balance existed, “which this defendant denied and now denies.”
It appears that at first defendant was in plaintiff’s employ as a clerk; then as a partner. He borrowed money of plaintiff, and gave due-bills, from time to time, until, in 1895, this indebtedness amounted to $3,326.44. In 1896 plaintiff sold to him a stock of goods on Gratiot avenue, Detroit, for $4,000, so that his indebtedness to her amounted to something over $7,000. Defendant had taken some goods from a partnership in Lansing, and put into the Detroit store on Gratiot avenue, and continued to do business there. In April, 1898, defendant married a granddaughter of plaintiff, and after this plaintiff seems to have aided defendant in selling goods, and, the lease of the store having expired, she took a lease of it in her own name. Trouble thereafter arose. The parties called upon one Jacobs, a mutual friend, hoping he might bring about a settlement of their affairs, and he undertook to do so. An inventory was taken of the stock in the store. It is claimed by defendant that this inventory footed up to $12,325.44, not including the store fixtures or the good will of the business. The inventory was completed on Saturday, and defendant claims that it was arranged that plaintiff, with Mr. Jacobs, should meet the defendant and a Mr. Blumenthal on the next day (Sunday), and effect a settlement.
It is the contention of defendant that the parties did so meet and settle all differences, as follows: The plaintiff to buy from defendant the stock of goods then in the store, and pay therefor in cash or good notes $3,5(30, pay the' indebtedness on the stock, amounting to $2,300, and also cancel the claim she (plaintiff) had against defendant of $7,300; this amount of indebtedness being for the stock purchased by him from her in 1896, $4,000, and money borrowed from time to time, amounting to about $3,300. The plaintiff contended and testified on the trial that she on that day purchased defendant’s stock of goods, and was to pay therefor in cash or notes $3,500, and the indebtedness on the stock of $2,300, but that nothing was said about the indebtedness due her from defendant of $7,300. It appears that, whatever the arrangement may have been about the $7,300 claim, the parties met on Monday morning, a bill of sale was given by defendant to plaintiff for the goods in the store, and defendant received Mr. Jacobs’notes for the $3,500; that immediately after this was done, and on the same day, this suit was commenced, and Jacobs was garnished on the notes. The cause came on for trial, and the court left the issue thus made between the parties for the consideration of the jury, who returned a verdict in favor of plaintiff for $4,228.49.
It is the contention of counsel for defendant that, the court erred in admitting testimony on behalf of plaintiff bearing upon the question of the actual value of the goods conveyed by defendant. The question was asked plaintiff by her counsel:
“Q. How did the stock compare in size and kind when you sold him?
“A. It was not in a good condition. It was moth-eaten, and it was odds and ends, — some coats that were nothing but moth-eaten. * * * It was not in a good condition at all. * * *
“Q. In paying or agreeing to pay him $3,500 and the debts, $2,300, state whether, in your judgment, that was a full price for the stock which you bought of him. Was that all the stock was worth ?
“A. Yes, sir.”
One Charles Goldsmith was called as a witness for plaintiff, and testified:
“I looked at this stock of goods. I think I was there after the sale. I always manufactured goods, and know what they are worth. I did not go there for the purpose of examining the stock. I am able to judge of the stock by examining it. I examined this stock. I don’t mean I took an inventory. I glanced it over. I was not asked about it at the time. From a glance at the time, I know what the stock was worth. It was a very poor stock,— an old stock.”
The court asked :
“Q. What examination did you make of the stock ?
“A. Not any. After she told me what the inventory was, I looked through the stock. I went through table by table, and glanced over it, — just glanced through them on the tables. I looked through the piles from the outside,— lifted one up. I did not count them, and do not know how many pieces there were.
“Q. Do you know within a thousand how many pieces there were ?
“A. No, sir.”
The court allowed the witness to state that the stock was worth not to exceed $5,000. All the above testimony was taken under objection.
We think the testimony as to the value of the stock, except Goldsmith’s, which will be referred to later, was properly admitted. It was a circumstance which the jury might consider in determining which of the parties was entitled to belief as to the agreement for the purchase of the stock. Such testimony is admissible. Banghart v. Hyde, 94 Mich. 49 (53 N. W. 915). See, also, Richardson v. McGoldrick, 43 Mich. 476 (5 N. W. 672); Misner v. Darling, 44 Mich. 438 (7 N. W. 77); Shakespeare v. Baughman, 113 Mich. 551 (71 N. W. 874).
The testimony was very conflicting upon the question of the agreement. The contract of settlement was shown to have been made in the presence of different witnesses. Mr. Blumenthal was called in by the defendant, and Mr. Jacobs by the plaintiff. Mr. Immerman and Mr. Frankenstein, it is claimed, were also there. Mr. Blumenthal testified that he was present when the contract was made; that—
“After Mrs. Grabowsky and Mr. Jacobs had a conference in another room, she backed out of that proposition [the proposition which had been made by defendant], and would not take $5,000 for her claim; and defendant, Baumgart, said it was getting late, and he wanted to know one way or the other; that he would take$3,500 for his claim in the business in place of $4,000. Then Mr. Jacobs took a pencil and paper, and marked it down, and said: ‘Now, Mrs. Grabowsky, remember, if you don’t want to take $5,000 for your claim, that you have to pay Mr. Baumgart $3,500, and $7,300 in your claim, and $2,300 on the indebtedness against the stock, which will figure up $13,100, and the stock would cost you about 100 cents on the dollar. Are you satisfied to take the stock at 100 cents on the dollar?’ And she says: ‘All right; I will take it.’ The items which made up the $13,100 were the $7,300 which she claimed Baumgart owed her, $2,300 indebtedness against the stock, and $3,500 which Joe [Baumgart] was to take for his share.”
Mr. Immerman testified substantially that the agreement was that the plaintiff was to take the stock and pay to defendant $3,500, to creditors $2,300, and cancel her claim of $7,300 against defendant. On the other hand, Mr. Jacobs testified that plaintiff was to pay defendant $3,500 for the stock, and creditors $2,300. When asked about the indebtedness of $7,300, he stated that defendant said he would pay that a little at a time, as he was able.' Mr. Selling, a witness also produced by plaintiff, testified that on Monday morning plaintiff called him to the store; that he there had a talk with defendant, in which he stated that he was selling his stock to plaintiff for $3,500, and she was to pay the debts; that he did not owe the plaintiff anything, and that had nothing to do with the matter.
We think, however, that the court was in error in permitting witness Goldsmith to give his opinion as to the value of the stock. His examination of it, according to his own testimony, was very superficial, and he apparently was not sufficiently familiar with it to judge of its value. His testimony should have been stricken out. We are unable to say that it was not prejudicial to the rights of the defendant.
We think, also, that the court was in error in permitting plaintiff’s counsel to make the argument he did at the close of the testimony. Counsel said:
“ What are his written pleadings ? 'He comes into this court after stating the facts to his counsel. He puts it down in writing, and he comes in here and says, ‘ I was undertaking to defraud her.’ Why do I say that? Because he admits under oath that he owed her every penny at that time. Now, he says in writing, at the beginning of this suit, £ I denied that I owed her a cent, and I deny it now.’ That is what he said at the beginning of the suit. Now he comes into court and says: £ I don’t care about the value of this property. She agreed to take it under those circumstances, whatever they were. She is bound by it. She agreed to take it for $14,000,- — mainly old goods that nobody would give $6,000 for. She made the bargain. Let the chattel mortgage be enforced. Take the goods. She agreed to it. I don’t offer a word of evidence of what the stock was worth. Here is an inventory. She agreed to it. That is the evidence in the case.’ Agreed to it, when he is a self-confessed robber of the grandmother of his wife! He admits in writing that he denied owing her a cent when he owed her $8,600. I am repeating that often, because it is the turning point in this case. You may stamp her as a robber if jmu choose by your verdict; but I say his written admissions are, together with his oath as given now, that he is a self-confessed attempted robber. Denying that he owed her money, and then attempting to force her into a bargain by which he would get away with $3,500, and all she had, practically, — to start over again in life after all these years of labor. And they come into court', and whitewash him, and call him ‘ Honorable Joe;’ and all that depends upon whether you find he denied this debt. If he didn’t deny this debt, you find for him. If he did deny this debt, he is a villain; he is a scoundrel; he is. an attempted robber. If you find that he did deny it, if you find that what his counsel said in writing at the beginning of this case is true, then you must find against him.”
The court should not have permitted this argument. The issues of the case did not warrant it. It is true that Mr. Selling testified that defendant told him he did not owe the plaintiff anything, but that was at a time when the defendant claimed the settlement had been made. Mr. Jacobs testified that defendant admitted the indebtedness, and all the other witnesses to the transaction also so testified. The defendant did not deny on the trial that he owed the $7,300, but claimed it was settled for in the purchase of the goods by plaintiff. The notice under the plea did deny the indebtedness, but defendant did not draw the notice, and he testified that he never saw it, and knew nothing of what was set up in it. Under these circumstances, the argument indulged in by counsel was unwarranted, and must have been very prejudicial to defendant’s case. On the trial the defendant did not deny that he owed plaintiff before the settlement $7,300, but claimed this was taken into account in the settlement. Plaintiff denied that this indebtedness of $7,300 to her was taken into account in the settlement. This was the issue, and the court should have compelled counsel to keep within it.
We think the court was not in error in saying to the jury that the burden of showing the settlement claimed by him was on the defendant.
For the errors pointed out, the judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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Hooker, J.
The defendant has appealed from a judgment of $8,000 in favor of a woman who claims to have received severe and permanent injuries from a fall upon a defective sidewalk. The sidewalk was of plank laid upon four-inch stringers, and it is plaintiff’s claim that the plank had been removed for a space of some feet, and that while walking upon the'walk, the night being dark, she stepped off from the plank unexpectedly, going down from four to six inches, and that, turning her ankle, she fell upon the ground, and is now bedridden with paralysis, from which it is unlikely that she will ever recover, as a consequence.
It is claimed by the defense that the walk was reasonably safe, and that the court should have so instructed the jury, under the rule in the case of Shietart v. City of Detroit, 308 Mich. 309 (66 N. W. 221). We are of the opinion that the case of Williams v. City of West Bay City, 126 Mich. 156 (85 N. W. 458), justifies the course taken of submitting the question to the jury.
It is next contended that the notice and claim filed with the common council did not conform to the requirements of the law. Among other defects alleged is that the claim was not itemized. We think the notice was quite definite, and that the statement of all of the specific injuries that had then developed was sufficient. It. was unnecessary to attach to each an aliquot part of the damages claimed. This case presents no new features relating to the subject of statutory notice that would be of interest, and we omit further reference to the particulars of the notice.
It was claimed that the injury was permanent, and after some evidence to that effect had been heard, the mortality tables were introduced, against the general •objection that they were incompetent and immaterial. It is now claimed that the plaintiff was not a woman of average health at the time of the accident, and that the tables should have been excluded, under the authority of Denman v. Johnston, 85 Mich. 387 (48 N. W. 565). Had the fact that she was not an ordinarily healthy person been admitted or undisputed, the tables would have had no bearing, but, being disputed, they were admissible, to be used or not by the jury, according to their conclusion upon the question of fact. As the only assignments of error relating to the charge are based upon refusals to give certain requests, we assume that the charge of the court upon this subject was correct.
It was shown that the walk was inspected some ten days before the accident, but there was proof that it had been out of repair for three weeks, and that the inspector was informed of it during the time. It was, therefore, competent to leave the question of notice to the jury.
Error is assigned upon the admission of the testimony of plaintiff’s companion that on her way home she said that she was not thinking of the condition of the walk; but this was upon redirect examination, and a part of a conversation drawn out upon his cross-examination.
Error is assigned upon the alleged exclusion of the testimony of Murphy in relation to the condition of the walk cn the morning after the accident; but the record shows that the testimony was given without objection on a repetition of the question.
Error was assigned upon the following remarks of counsel:
“The city has refused to put these two doctors on the stand, Dr. Burr and Dr. Campbell. We have asked them to do it, and they have not offered to do it. They dare not do it, because their mouths would be closed against the fact that this girl had been injured. They dare not put Dr. Burr and Dr. Campbell on the stand.”
By Mr. Bray: “ But, gentlemen of the jury, if by any mischance you should not be able to do justice by her,, then, gentlemen, I beg of you not to let injustice take the form of another disagreement. Either make the city of Flint do what is right by this girl, or send her to the. county-house at once.”
It is claimed that these remarks were not excepted to,, but the record shows otherwise. The record shows that they were not consecutive. The allusion to Drs. Burr and Campbell was followed by an exception, when Mr. Heims,, counsel for defendant, said:
“Now, gentlemen of the jury, Mr. Bray will tell you that, unless you render a judgment in favor of the plaintiff, she will have to go to the poor-house. Be that as it may, if she has to go to the poor-house, the city of Flint will pay its portion of the expense.”
The counsel for the plaintiff is accused of making a somewhat pathetic appeal for sympathy to the jury, which contained the remainder of the language excepted to.
The remarks relating to Drs. Burr and Campbell were, perhaps, justified by the case of Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075). The other language is similar to that used in the case of Leach v. Railway, 125 Mich. 373 (84 N. W. 316), decided after this cause was tried, and should have been omitted. We are reluctant to disturb a judgment in a case that was well and fairly tried, unless there has been manifest injustice, which does not appear; and, as the remark was invited by the comment of defendant’s counsel, we think this point should not reverse the case.
Several questions of minor importance are presented, but an examination of them has satisfied us that there is no error.
The judgment is affirmed.
The other Justices concurred. | [
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] |
Moore, J.
This suit was brought by plaintiff against defendant for breach of promise to marry. The plea is the general issue, with notice that defendant would prove an offer on his part to carry out his agreement of marriage, which plaintiff refused to do, and that by reason thereof he was released from his engagement. The plaintiff offered evidence of an offer of marriage on the part of defendant, and an acceptance on the part of plaintiff; that the date of said marriage was set for the 1st day of October, 1898, and that she was then ready to, carry out the contract, and that the defendant refused so to do; that she had been before married, of which fact defendant was informed; and offered to prove by the records and files of the Kent circuit court, in chancery, in the case of Jamison against Jamison, that she had duly and legally obtained a divorce.
The bill was filed June 8,189?. It alleged the marriage of complainant to Mr. Jamison in December, 1873, at Lowell, Mich.; that the parties lived and cohabited together from that time until December, 1894; that complainant, at the time of the filing of the bill, was a resident of the State, and had been continually since said marriage. It alleged defendant deserted complainant for a period of more than two years immediately prior to the filing of the bill. In June, 1897, Mrs. Jamison made an affidavit, stating, among other things:
“That said defendant is a nonresident, and resides out of the State of Michigan, and that it cannot be ascertained by her in what State or county said defendant resides; that the last she heard of or from said defendant was through a brother of his, to the effect that the said defendant was then at the city of Ft. Wayne, State of Indiana, and that such information was received several months ago; and that she has inquired of said defendant’s own people, his father and mother, residing in the township of Bowne, in said county of Kent, to ascertain said defendant’s whereabouts, and she says that he has not been residing in this State of Michigan for more than two years last past.”
On June 11th an order of appearance and publication was entered in said cause, which was not personally served on defendant, but was published for six successive weeks in a newspaper printed, published, and circulated in the said county of Kent; the last of said publications being on July 30, 189?, and on that date the affidavit of publication was made and sworn to. November 15, 1897, an affidavit of regularity was filed, a hearing was had in open court, and a decree of divorce was granted. Objection was made to the introduction of these files and the decree in evidence, which objection was sustained. A verdict was rendered in favor of defendant. The case is brought here by writ of error.'
The sole question in the case is whether the court erred in holding the chancery court did not obtain jurisdiction to grant the decree. It is insisted that, as the bill of complaint was filed while the provisions of Act No. 202 of the Public Acts of 1895 were in force, the desertion was not complete, so as to constitute a cause of action, until two years had elapsed, and, as defendant was not a resident of the State when the two years elapsed, personal service was necessary to give the court jurisdiction; citing Bentley v. Wayne Circuit Judge, 110 Mich. 626 (69 N. W. 660).
It is true, the affidavit for the order of publication sets up, we think as a conclusion from information given complainant in answer to her inquiries, that defendant at that time was, and for two years had been, a nonresident of the State. The record does not disclose what testimony was taken before the circuit judge upon the hearing. It may have been shown to the entire satisfaction of the judge that the defendant was domiciled in the State during the entire period of desertion.
The causes for which divorce may he granted are to be found in sections 8621-8623, 3 Comp. Laws. They have remained the same since prior to 1894. Act No. 202 of the Public Acts of 1895 did not change the causes for divorce. It provided what must be made to appear before the decree should be granted. This law remained in force until August, 1897, when its place was taken by an amended section. Act No. 116, Pub. Acts 1897; 3 Comp. Laws, § 8624. This section provides what must be made to appear upon the hearing before a decree should be granted. Among the provisions contained in the later act was the following:
“In all cases where a divorce is asked on the ground of desertion, such desertion shall be deemed to have occurred and taken place in this State, for the purposes of this act, when the parties, complainant and defendant, shall have been actually and in good faith domiciled in this State at the time the defendant actually abandoned the complainant.”
The bill of complaint shows the parties were residents of this State when the desertion began. This fact is nowhere contradicted in the record. The act of 1897 does not change the causes for divorce, but does change the requirements which must be shown upon the hearing before a decree shall be granted. This law had been in effect some time when the decree of divorce was granted. At that time it was controlling. See Beebe v. Birkett, 108 Mich. 234 (65 N. W. 970); State Sav. Bank v. Matthews, 123 Mich. 56 (81 N. W. 918); Judd v. Judd, 125 Mich. 228 (84 N. W. 134). The court had jurisdiction to make the decree.
• The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Grant, J.
(after stating the facts). Plaintiff was not invited to ride upon the deadwood. No custom was shown permitting him to ride there. The company had instructed its employés not to permit it. It was not intended or sanctioned for the use of passengers. It needs no, argument to demonstrate that the position was a dangerous one, and never intended as a place for passengers to ride. The place was so dangerous that the plaintiff considered it necessary to hold on with both hands. According to his own theory, then, it was a place where it would be next to impossible for him to pay fare. There was danger in rounding curves, from sudden stoppage and starting, and from collisions both’ in front and from the rear, which are not of uncommon occurrence. The two passengers who were standing with plaintiff jumped from the car, which was then standing still, and escaped injury. Plaintiff testified that he did not have time to jump. There was neither an express nor implied assent for the plaintiff to ride in this dangerous position. The conductor advised him not to ride there, by telling him that he better get off and wait, or get inside. This language cannot be construed into an invitation. It was a busy time, when people were returning from their work apd business to their homes. The conductor was not called upon to stop and put the plaintiff off. He had done all that was required in warning, if, indeed, he needed any warning. Plaintiff knew that, if the car was crowded, others were coming within two or three min •utes, which he could have taken, and the testimony shows that there was room on the next car. Plaintiff voluntarily, and without invitation or permission, chose to ride in a dangerous place, rather than attempt to get inside or to wait a few minutes for another car. His negligent act was a continuing one, and directly contributed to the injury. When a place is one not provided or intended for passengers to ride upon, and is in itself dangerous, the •employe who assumes to permit a passenger to ride in such a place acts without authority, unless such authority be shown expressly or by common custom. The case comes within the principle established by the following authorities: Chamberlain v. Railroad Co., 11 Wis. 238; Jackson v. Crilly, 16 Colo. 103 (26 Pac. 331); L. R. & Ft. S. Ry. v. Miles, 40 Ark. 298 (48 Am. Rep. 10); Carroll v. Transit Co., 107 Mo. 653 (17 S. W. 889); Railroad Co. v. Jones, 95 U. S. 439; Bard v. Traction Co., 176 Pa. St. 97 (34 Atl. 953, 53 Am. St. Rep. 672). The last case is the parallel of this in its facts, except that the conductor in that case did not know that the plaintiff was standing upon the bumper. We have examined all the cases cited in support of the plaintiff’s contention, and we think they are not applicable to this case.
Judgment reversed, and no new trial ordered.
Hooker and Long, JJ., concurred with Grant, J. | [
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] |
Hooker, J.
The plaintiff brought this action against his wife’s father, an incompetent, under guardianship, serving process upon the defendant. . His guardian entered his appearance as attorney and guardian, and conducted the defense, and appears in this appeal. The items for which plaintiff claims a right to recover grow out of dealings which plaintiff alleges to be mutual. They are given in the bill of particulars, as follows:
This action is brought to recover the balance of the following account:
For services rendered from October 27, 1877, to July 30,1894, in oaring for the property, both real and personal, loaning and collecting, étc., for F. F. Riggs, at $60 per year........-.......$1,000 00
To cash, one-half the family expenses from October 17, 1894, to October 6, 1895_________________________________ 201 00
To cash, the family expenses from October 6, 1895, to January 4, 1896, 13 weeks, less $8.70..._________________ 93 19
To cash, the family expenses from January 4, 1896, to. June 20,1897, 24 weeks. 179 21
--$1,473 40
To care and nursing by self and wife, from March 11, 1895, to June 20, 1896, 66 weeks, 16 weeks, at $10___________ $160 00
Living in Riggs’house, 50 weeks, at $7.. 350 00 •
- 510 00
Then followed fourteen items, giving dates, in 1896 and 1897, amounting to $41.60, making a total of $2,025. A claim for interest, amounting to $1,358.15, was included in the bill.
A bill of particulars of set-off included alleged payments of money to plaintiff in defendant’s behalf at different dates in 1878, 1880, and from 1882 to October 17, 1894. A notice of the statute of limitations was given and is relied on.
In support of his claim, the plaintiff testified that he had charge of defendant’s business affairs, by arrangement and employment, from October 27, 1877, to July 30, 1894, during which time he loaned and received money for him, on many occasions, while he was absent in Colorado, and that during the same period he kept an account of the business, which he submitted to the defendant, showing a balance of the trust funds of $430 in his hands, and that defendant then promised to pay him for his ser- ■ vices when he should sell his mine in Colorado. The amount was not mentioned, or payment of the $430 demanded, and the jury probably found that it was treated as an item to be applied on the service. He also testified that about October 17, 1894, he moved into the house with the defendant, under an arrangement that they were to share living expenses equally, and that they lived thus for several years, and that the defendant owes upon yearly balances for moneys expended in that transaction, also for care and nursing by plaintiff and wife in 1895, at a time when defendant was suffering from a broken leg, and for medicines and various other things.
The defendant appealed from a verdict in favor of plaintiff, and has since died.
The briefs of defendant’s counsel state that:
“Concerning the latter arrangement there was little controversy as between the parties. The contention made at the trial concerned the claim for services said to have been rendered between October, 1877, and July, 1894, and the testimony admitted and rejected with reference thereto, and the instructions of the court to the jury.”
“I have carefully examined the record, and there are only two questions in it: First, whether the account, as-made by Mr. Stoner, is a continuing account, or whether the same is governed by the statute of limitations; second, whether it is necessary to have a guardian ad litem appointed in a case like this.”
We feel justified, therefore, in treating the claim for services as the only one in dispute.
At the common law, a distinction existed between actions at law and in equity.
“At law, a lunatic defends in the same manner as ordinary persons. Process is served upon him personally; then, if an infant, he appears by guardian, and, if of full age, by attorney. * . * * In suits in equity the practice is different. In .those he defends by guardian ad litem, and his committee is appointed such guardian as of course, unless there is no committee, or the committee is in interest adverse to him in the suit.” Van Horn v. Hann, 39 N. J. Law, 213.
See Bearinger v. Pelton, 78 Mich. 114 (43 N. W. 1042), where a guardian ad litem was held necessary in a foreclosure case in chancery, where the defendant was an infant. See, also, 3 Comp. Laws, § 10461 et seq., which seems to require the appointment of a guardian ad litem, in all suits against infants. There seems to be no such statute applicable to the insane or non compos mentis. It is said that in most States there need be no guardian ad litem, if the infant have a probate or other authorized guardian competent to act; and the case of Bearinger v. Pelton is treated as involving a statutory exception. Woerner, Guardianship, p. 66, § 21. The same author says (section 145) that “ there is little, if any, difference between guardians ad litem for minors and those for insane litigants. The latter defend by general guardian or committee, if one has been appointed,” etc. See, also, 9 Enc. Pl. & Prac. p. 937; 10 Enc. Pl. & Prac. p. 1229; King v. Robinson, 33 Me. 114 (54 Am. Dec. 614). In this case the guardian, who was an attorney, appeared in both capacities, and we may assume that it was with the •approval of the court, if such approval was necessary. We have considered this question, although no exception was taken upon the trial.
Upon the question whether the item for services was mutual, we find no authorities cited in support of the proposition that such item must be considered by itself, .and not in connection with the moneys received and paid •out by the plaintiff. We see no reason for so holding. The fact that it was not made a book item, while the others were, is not controlling, and the alleged agreement to pay for the services, made in connection with defendant’s examination of plaintiff’s account of the fund in his hands, would seem to make it such within the rule laid •down in the case of Kimball v. Kimball, 16 Mich. 218. See, also, Campbell v. White, 22 Mich. 186, 187; White v. Campbell, 25 Mich. 471; In re Hiscock's Estate, 79 Mich. 536 (44 N. W. 947); Lester v. Thompson, 91 Mich.245 (51 N. W. 893). The court did not err in refusing to take from the jury this question, and the question of the statute of limitations.
Error is assigned upon the exclusion of a large number of checks relating to the business of defendant during the period that the plaintiff had it in charge. It was admitted that the items covered by them were not included in the= bill of particulars, and defendant declined to amend his-bill of particulars when told that by so doing they would be made admissible. They were present, and plaintiff' was examined at length upon many, if not all, of them. We are unable to see where the defendant suffered injury-through their exclusion.
We may say the same in relation to the court’s charge-upon the preponderance of evidence. It was as follows:
“ I have stated to you in what a preponderance consists. It is simply that the evidence offered in favor of a proposition must be of a little better quality than that opposed to it. You are to canvass all the evidence in the case, and, if you act in favor of the defendant [plaintiff], it must be-because you find it preponderates in his favor; but you have no right to cast aside testimony upon any particular point, unless you find it is disputed in some way, either by direct testimony or circumstantial evidence. In this case-there is no direct testimony offered in favor of the defendant, but the defense is claimed to exist by reason of certain circumstances that have been shown in the case, and that matter is entirely for your consideration; the court, has nothing whatever to do with it.”
The other points discussed in the briefs relate to portions-of the charge in which we find no error.
The point that the item for nursing should not have-been submitted to the jury does not appear to be properly raised, and the same may be said of the denial of a motion: : for new trial.
The judgment is affirmed.
The other Justices concurred. | [
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] |
Long, J.
On the 6th day of January, 1897, the defendant appellee opened a savings account with the complainant bank by a deposit of $2,804.27. Several sums, in various amounts, were drawn out from time to time, so that on December 31, 1898, there remained a balance due said defendant appellee of $1,512.47. This sum, less $49.20 allowed complainant for costs, is the sole subject of controversy here.
On the 26th day of July, 1898, Ida M. Orout Potter filed her bill of complaint in the circuit court for the county of "Wayne, in chancery, against the Supreme Oommandery of the United Friends of Michigan. The supreme commandery was made the sole defendant. The bill, among other things, prayed for an injunction against E. F. Lamb, William A. Haines, and the Citizens’ Savings Bank, restraining them from paying any money or disposing of any property in their hands belonging to said defendant. On the 26th day of July, 1898, the circuit court made an order appointing Mr. Haines receiver, and also allowed an injunction directed to the complainant bank, in no way mentioned in the bill, restraining it from paying out certain money described in the writ of injunction. After the service of such injunction, complainant bank declined to pay any money to the defendant appellee. Being threatened with suit, leave having been first obtained, the bank, filed its bill of interpleader against William A. Haines, receiver of the Supreme Oommandery of the United Friends of Michigan, and the defendant appellee, as defendants. The bill averred the opening of the account with the complainant bank by defendant appellee, the respective claims of defendants to the fund in controversy, and asked that they be ordered to interplead, and that complainant be permitted to pay the money into court.
The defendant appellee answered that the money in controversy was its sole property; that the defendant Haines, receiver, never had any title to the same; that it was not, and never had been, a subordinate lodge of said Supreme Oommandery of the United Friends, and was not, and never had been, subject to its jurisdiction or control; that it was a subordinate lodge of the Grand Loge of the Deutschen Orden von Detroit, a corporation organized and existing by and under the laws of this State. Mr. Haines, the receiver, defendant appellant, answered that he had no knowledge of the opening of the account in complainant bank by appellee defendant, nor of defendant appellee’s demand for the money upon complainant bank. He admitted the incorporation of the Grand Doge of the Deutschen Orden von Detroit, and that defendant appellee was one of its subordinate lodges. He claimed that the fund in controversy had been the property of Germania Commandery, No. 30, of the United Friends, and had been fraudulently withdrawn and transferred to defendant appellee, an organization not under the jurisdiction of the Supreme Oommandery of the United Friends. By way of cross-bill, the answer claimed that complainant bank had notice of the right and title of the receiver defendant to the fund in controversy, and afterwards paid out part of it to appellee defendant. It prayed that the complainant bank might be held liable for all the money in its hands at the time it received notice of the receiver’s title to the fund. The bank filed its answer to the cross-bill, and a replication to the general answer.
The case came on to be heard on pleadings and proofs by the examination of witnesses in open court. The proofs on' that hearing were not restricted to the right of the complainant bank to interplead, nor to the amount for which it was liable, if at all, to the receiver defendant; but the testimony taken covered all points of difference between the parties. On the 12th day of June, 1899, the court below made a decree dismissing the receiver defendant’s answer in the nature of a cross-bill, and directed the complainant bank to pay into court the sum of $1,531.37, less costs to be taxed, and that, upon making such payment, the complainant bank be discharged from all liability to either of the defendants. It directed the defendants to interplead and settle title to the fund between them selves. From that decree, defendant appellant appealed, and his appeal in that behalf was dismissed by the Supreme Court on October 2, 1900. Thereafter the complainant bank had no further interest in the controversy, and since that time it has not been properly a party to the suit, though it is now here a party to the appeal. The defendants did not formally interplead. They were content with the issue framed by their respective answers, and were content to go to a hearing, and did go to a hearing, upon the issue as thus framed.
The defendant Germania Loge- claimed it was entitled to the fund, and accordingly presented to the court for his signature a decree awarding the money to it. This the court declined to sign, whereupon defendant appellee presented to the Supreme Court a petition praying for a mandamus to compel the lower court to sign such decree. The reasons of the learned judge’s refusal to sign the decree are set up in his answer to the petition. They were, in substance, that the case of Ida M. Crout Potter against the supreme commandery was the principal case; that the interpleader suit was a mere ancillary proceeding; that the main case had not been heard at all, nor had all other claims, one represented by Attorney Stanley, and one by Attorneys Flowers & Moloney, been disposed of, each of whom claimed interest in the outcome and disposal of the funds ordered paid into court on the hearing of the interpleader branch of the case, relating to the bank’s holding of the deposit in question. The appeal of the receiver defendant, already noticed, put an end to all proceedings for a mandamus in this court. After the appeal had been dismissed by this court, and no third person having established claim to the fund in controversy, the court, on the 8th day of October last, made a decree awarding the fund in controversy to defendant appellee. From that decree the receiver has appealed. It is that appeal that is now on hearing.
The complainant bank now comes into this court and claims the right to be discharged from any further liabil ity in the matter, with its reasonable costs. The bank was not properly made a party to the appeal, and that prayer must be granted, with its costs against Haines, receiver.
It is the contention of counsel for defendant appellee that the fund in controversy was deposited in the complainant bank in the name of the defendant appellee, and that prima facie it was its property, and cannot be disturbed until the receiver shows a perfect title to it. We think this statement is correct. It appears conclusively that the fund was originally the property of the Knights of Honor; that that lodge had a sick-benefit fund of $2,525.79; that this money was presented by the Knights of Honor to four gentlemen in various sums, and they in turn made a present of it to the “sick fund” of the Germania Commandery, No. 30, United Friends. $563.79 of that money was paid to the United Friends for assessments. The sick-benefit fund was no part of the general fund. Mr. Schroeder, a witness for defendant appellant, produced the records of Germania Commandery, No. 30. The record there recites that:
“The proposition to change the law respecting the sick fund was read a third time, and then adopted. It was moved and seconded that the sick-fund association — the association for the benefit of the sick of Germania Commandery, No. 30 — do secede or separate itself from Ger-mania Commandery, No. 30, and ally itself with Germania Loge, No. 1, of Detroit; and it was unanimously adopted or carried. It was moved and supported that the trustees be authorized to accomplish this, and it was adopted.”
It appears that all the members of the sick-benefit fund association of the Germania Commandery, except two or three, voted in favor of this resolution to secede, and then allied themselves with Germania Loge, No. 1. The fund was carried over by the same vote. The fund belonged to these members as a sick-benefit fund. It is apparent that the supreme commandery, represented here by the receiver, has no right to or interest in this sick-benefit fund. The funds, and the only ones, to which the supreme com mandery is entitled, are prescribed by the laws of that commandery, as follows:
“ The revenue of the supreme commandery shall be derived from charter fees from subordinate commanderies, per capita tax from subordinate commanderies, and from the sale of supplies to subordinate commanderies and other members of the order.”
It was not, therefore, entitled to this sick-benefit fund. That fund belonged to Germania Commandery, No. 30, which, by almost unanimous vote, passed it over to the defendant appellee. It is clear that the supreme commandery has no interest in the fund, and was not entitled to the relief asked. The court below very properly decreed that the moneys belonged to the sick-benefit fund, and that the defendant appellee was entitled to them. That decree must he affirmed, with costs against the receiver.
Hooker, Moore, and Grant, JJ., concurred. . Montgomery, C. J., did not sit. | [
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] |
Montgomery, C. J.
The bill asks that defendant be enjoined from interfering with a fence built by complainant, as it claims, upon its own grounds. The bill was dismissed by the court, with a finding that the fence stands wholly upon defendant’s land.
The boundary between complainant’s and defendant’s land is the north and south quarter line of the section. There is much testimony in the record bearing upon the location of the center post of the section, for,the purpose of fixing the boundary. But it is undisputed that a certain old board fence had served as a line fence between the two properties for many years. The testimony is very conflicting, and an attentive reading of the entire testimony has left some doubt in our minds; but, on the whole record, we incline to the opinion that the line as found by the circuit judge is the correct line, and one which has been recognized by adjacent proprietors for more than the period of the statute of limitations. When we take into view the better opportunity of the circuit judge to decide-the question of fact, we feel that we are not authorized to disturb his finding. The same considerations induce us to sustain his holding denying the application for a rehearing.
The decree will be affirmed.
Hooker, Moore, and Long, JJ., concurred. Grant, J., did not sit. | [
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Long, J.
Claimant filed his claim against said estate in the probate court. The claim is upon a note for $57.50. The estate contested it on the ground that the note was never signed by the deceased, and, if it was, it was barred by the statute of limitations. The probate court disallowed. the claim. The cause was heard in the circuit court on appeal before a jury, and verdict found against the estate. The defenses in the circuit court were the same as in the probate court. The execution of the note was denied under oath filed in the probate court.
The note bears date and purports to have been signed by deceased September 20, 1887, payable one day after date, with interest at 7 per cent, per annum. Halleck, the maker of the note, died September 25th, or five days after the date of the note. No payments appear to have been made upon it. No application was made for the appointment of an administrator until November 28, 1899, when the claimant here made the petition under which the appointment was made. Thus 12 years, 2 months, and 3 ■days elapsed from the time of decedent’s death to the time of the petition for administration. There were no other -debts against the estate. The deceased left two heirs at law. The estate consisted of two village lots of the value ■of about $300, and no personal property.
It is the contention of counsel for defendant that, as the statute of limitations (section 9728, 3 Comp. Laws) began to run before the death of the intestate, his death would mot suspend it, and therefore the note was barred. We think the right of the claimant to bring the action against the estate is governed by section 9737, 3 Comp. Laws, which reads as follows:
“ If any person entitled to bring any of the actions before mentioned in this chapter, or liable to any such actions, shall die before the expiration of the time herein limited, or within thirty days after the expiration of the said time, and if the cause of action does by law survive, the action may be commenced by or against the executor •or administrator of the deceased person, or the claim may be proved as a debt against the estate of the deceased person, as the case may be, at any time within two years •after granting letters testamentary or of administration, •and not afterwards, if barred by the provisions of this •chapter.”
It was held in Field v. Loveridge, 114 Mich. 227 (72 N. W. 160), that the statute of limitations, under this statute, would be suspended at the death of the intestate, and would not commence to run until after letters of administration were granted. See, also, First Nat. Bank v. Sherman’s Estate, 117 Mich. 602 (76 N. W. 97); MeIntire v. Conrad, 93 Mich. 532 (53 N. W. 829).
Some claim is made that the court below was in error in permitting claimant to put in evidence his books of account. They were allowed in evidence as a circumstance to show that the note was for the same amount as. the books showed to be due. We think there was no error in this, as the court charged the jury that that was. the only purpose for which the books could be used.
We need not discuss the question of the due execution of the note, as that question was fully and fairly submitted to the jury for their determination. We have examined all the claims made by the defendant, and find no error.. The case was fairly submitted.
The judgment must be affirmed.
The other Justices concurred. | [
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Long, J.
In November, 1893, complainants were the-owners of a house and lot in the city of Detroit, incumbered by a mortgage of $300. Defendants were the owners of 40 acres of land in Sumpter township, Wayne-county, incumbered by a mortgage of $241.6?. The parties entered into an agreement to exchange properties. The complainants were to deed defendants their house- and lot in Detroit, subject to the mortgage above mentioned, which the defendants were to pay, and subse quently did pay. The defendants were to deed complainants the west half of the 40 acres of land, subject to the incumbrance above mentioned, and which complainants were to pay. The deeds were passed, and defendants paid the mortgage on the house and lot. This bill is filed by complainants to set aside the deed made by them to defendants. It is the claim of complainants that the exchange of properties so made was brought about by fraudulent representations of the defendants; that the deed from defendants to them was never properly executed; that complainants never claimed any rights under it; and that the property so pretended to be conveyed to complainants was incumbered by a tax deed standing in the name of a third party. The proofs were taken in open court, and a decree made dismissing complainants’ bill, from which decree they have appealed.
Counsel for complainants states in his brief the issues between the parties. He says that “the question for détermination in this case is whether or not the complainants intended to deed to defendants their home in Detroit. If both of the complainants so intended, then this bill cannot be sustained. If, however, both of the complainants did not act understandingly, and did not intend to deed their home, the bill should be sustained.”
It appears that the complainants were joint owners of the premises conveyed to defendants, and it is true that neither could convey without the consent of the other, during their joint lives. But we are satisfied that the ' court below was not in error in dismissing. the bill. The deed was signed by both complainants, and delivered to defendants, and there is no satisfactory evidence that Mrs. Pirgandi did not understand that she was signing an instrument of conveyance of the premises in exchange for the land of defendants. There is no force in the contention that the deed from defendants was not properly executed. At the time of the exchange, by some oversight the deed was not acknowledged by Mrs. Fay, one of the defendants, and had but one witness. This omission was subsequently remedied, and tbe deed redelivered to the complainants. The court below, in passing upon the question of the incumbrance by the tax title, found that the defendants’ grantor obtained from the tax-title owner a quitclaim deed running to himself; that he had theretofore Conveyed the premises to the defendants by deed of warranty; and that consequently the title was perfected in defendants.
Upon the whole record, we are satisfied that the court very properly entered a decree dismissing complainants’ bill. That decree must be affirmed, with costs to defendants.
Montgomery, C. J., Hooker and Moore, JJ., concurred. Grant, J., did not sit. | [
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] |
Grant, J.
(after stating the facts). The statute (section 3441, 1 Comp. Laws) requires sidewalks to be kept in reasonable repair, and in a condition reasonably safe and fit for travel. A failure on the part of a municipality to keep them in such repair entails upon it liability for injuries sustained by the traveler who is in the exercise of due care. While a bicycle is a vehicle, it is not one to be classed, in all its methods of use, with other vehicles drawn by animal or mechanical power. This distinction is clearly recognized and pointed out* in Murfin v. Plank-Road Co., 113 Mich. 675 (71 N. W. 1108, 38 L. R. A. 198, 67 Am. St. Rep. 489). To ride a bicycle upon a sidewalk may not be a nuisance, where to drive a horse and wagon upon it would. A baby carriage is a vehicle, but is not a nuisance upon either streets or sidewalks. The riding of a bicycle upon a sidewalk is not an unlawful act at the common law. , Counsel for defendant cite Mercer v. Corbin, 117 Ind. 450 (20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76), cited also in 4 Am. & Eng. Enc. Law (2d Ed.), 20, in support of the proposition that it is. The decision does not sustain that contention, but is based upon a statute making it “unlawful for any person to ride or drive upon the sidewalks of any town or village, or upon any similar sidewalk for the use of foot passengers by the side of any public highway, unless in the necessary act of crossing the same.”
One riding a bicycle occupies no more space than he would in walking. With proper care and proper warning, there is no danger of collision with foot passengers, or any others lawfully using the sidewalks. The charter of the defendant expressly confers upon the common council the entire control over the streets and sidewalks, and the power “to regulate the use thereof.” What would be a nuisance upon a sidewalk continually crowded with foot passengers would not be a nuisance upon a sidewalk where there was little travel. • The bicycle has become almost a necessity for the use of workmen, clerks, and others in going to. and from their places of work. Where the streets are unpaved, they are oftentimes impassable for the bicycle, and it is entirely proper for municipalities to permit and regulate the use of the sidewalks in such cases. Under the broad power conferred by the charter upon the defendant, it is clothed with the right to permit this use of the sidewalks. Such use is sustained in Lechner v. Vil lage of Newark, 44 N. Y. Supp. 556, and Purple v. Inhabitants of Greenfield, 138 Mass. 1.
It should be borne in mind that in this decision we carry the doctrine no further than was done in Leslie v. City of Grand Rapids, 120 Mich. 28 (78 N. W. 885), where we held that the measure of duty imposed by the statute upon municipalities included ordinary vehicles, and did not require that the streets should be so constructed and repaired as to include safety to bicycles. It was held sufficient in that case if the highway was in reasonable repair for the passing of ordinary vehicles, though it might be dangerous for bicycles. So, in this case, we must assume that the sidewalk was not in reasonable repair for the ordinary uses for which sidewalks were constructed. There might be a defect in a sidewalk similar to the defect in a street in that case, which would involve no danger to a traveler on foot, but might involve danger to one riding a bicycle over it. If a walk were constructed of planks running lengthwise, the planks might be so far apart as to permit the tire of a wheel to be caught in the openings, and cause the rider to fall, while it would be entirely safe for pedestrians. Or there might be a depression in a cement walk, entirely safe for pedestrians, but unsafe for bicyclists. Such conditions would be controlled by Leslie v. City of Grand Rapids.
Judgment affirmed.
The other Justices concurred. | [
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Moore, J.
An information was lodged against the respondent, reading as follows after the formal heading:
“Prank A. Rodgers, prosecuting attorney for the county of Kent, aforesaid, for and in behalf of the people of the State of Michigan, comes into said court, in the May term thereof, A. D. 1900, and gives it here to understand and be informed that one William M. Butts, late of the city of Grand Rapids, of the county of Kent, on, to wit, the 1st day of March, 1899, at the city of Grand Rapids, county of Kent, aforesaid, being then and there an officer, to wit, secretary, of the Worden Grocer Company, an incorporated company organized and existing under and by virtue of the laws of the State of Michigan, and not being then and there an apprentice nor other person under the age of sixteen years, did, by virtue of his said employment, then and there, whilst he was such officer of said incorporated company, as aforesaid, receive and take into his possession certain money to a large amount, to the amount of, to wit, nine thousand (9,000) dollars, and of the value of nine thousand (9,000) dollars, of the property of the said Worden Grocer Company, the incorporated company aforesaid, and which said money came to the possession of the said William M. Butts by virtue of said employment, and the said money then and there fraudulently and feloniously did embezzle and convert to his own use, without the consent of the said Worden Grocer Company, the incorporated company aforesaid, his said employer; and the said prosecuting attorney further gives the court to understand and be informed that the said William M. Butts then and there, in manner and form aforesaid, the said money, the property of the said Worden Grocer Company, the incorporated company aforesaid, his said employer, from the said Worden Grocer Company, the corporation aforesaid, feloniously did steal, take, and carry away, contrary to the statute,” etc.
The respondent was tried by a jury, and convicted. The case is brought here on exceptions before sentence.
There are 145 assignments of error.' The case is greatly simplified by the testimony of the respondent, who was a witness in his own behalf. The record discloses that, during the temporary absence in Chicago of the respondent, a large discrepancy was found between the cash account as kept by him and the cash on hand. A telegram was sent to him, asking his return to Grand Rapids, and he came at once. An interview was had between him and the officers of the company, which it is not necessary to detail. Shortly after this, respondent had at least two interviews with Judge Wanty, who was acting as the attorney for the company. Upon the trial Judge Wanty testified as to what was said at the interview of October 19th in part as follows:
“I asked him what the shortage was, and he said that the books now showed something between $38,000 and $39,000; and I asked him if any one took it — any of this money — except himself, and he said ‘No,’ he was responsible for it, but that he was quite sure there would be some errors found that would reduce this amount; and I asked him how much he took, and he said he took, he should think, about $10,000; and then I asked him again what he did with it, and he replied that the money he received for his salary he turned over to his wife every Saturday night; got it in an envelope; and that everything outside of the actual living expenses at the house, for which this was expended, he took the money from the company from time to time to pay; and he said that he had sent his father money enough so that he had practically kept his father’s family, who lived in Ohio, and that money he had taken from the company, and these investments, — his insurance policies. He said that he had had doctors’ bills that had amounted to, some years, as much as $300, which he paid; but he said that the whole amount that he had taken did not amount to as much as the books show. * * * I then asked him what he had done with this money, and he said nothing any further than what he had said; and I said then, 'The impression is that you have been dealing on the Chicago market in margins, in pork or wheat or something of that sort;’ and he said, ‘ No,’ he had not. * * *
“Q. Do you remember, Mr. Wanty, in any of these conversations, of asking Mr. Butts anything in regard to his private account upon the books ?
“A. Yes, sir; and I think that was in the first conversation. I asked Mr. Butts if any of this money had been charged to him. I asked him first if he had an account on the books, and he said, ‘ Yes, I have an account on the books, but it refers only to a lawsuit;’and I said, ‘Was any of this money charged to you on the books ? ’ and he said, ‘ No, we pay by the envelope system, and no money that was paid to me for my salary, or any of those sums that I took, have ever been charged to me on the books.’
“The Court: I would ask if this last reply, ‘None of this money was charged on the book,’ did that have reference to his salary, or what ?
“A. He said that neither his salary nor any other money that he had taken was charged in an account against him on the books.”
Mr. Butts, among other things, testified as follows:
“I was one of the directors and secretary of the Worden Grocer Company from 1895 to the 16th of October, 1899. At the time the company was organized, C. F. Rood, N. F. Avery, W. F. Blake, W. L. Freeman, W. D. Tel-ford, C. W. Garfield, and myself became the directors. A. E. Worden was president, W. D. Telford vice-president, W. L. Freeman treasurer, and myself secretary. * * *
“ Q. I understood you to say that you told Mr. Wanty substantially as he told it here upon the stand ?
“ A. Yes, sir.
“ Q. Judge Wanty testified that you told him that you gave your wife your salary, as you drew it weekly, for the current expenses of the house.
“A. Yes, sir.
“ Q. That was true, wasn’t it?
“A. Yes, sir.
“ Q. That you paid your coal bills, and your doctors’ bills, and all of your personal expenses out of money that you took from the Worden Grocer Company. That is true, isn’t it ? Now, I am referring to these six months from March 1st to September 1st.
“A. That is substantially right; yes, sir.
“Q. How much money did you spend for insurance from March 1 to September 1, — March 1, 1899? I will state now, whenever I inquire of you about any transaction in this regard, unless I especially mention it, I mean the period covered by this information, from March 1 to September 1, 1899.
“A. Why, I think, about $75 or $80 during that period. ❖ ^ 5l«
“Q. That was $75 or $80 you took from the Worden Grocer Company?
“A. Yes, sir.
“Q. How did you take it?
“A. Currency.
“Q. Out of the drawer ?
“A. I presume I did, or out of the safe.
“Q. You are not able to tell the jury whether you took it out of the drawer or out of the safe ?
“A. I could not say; no, sir. * * *
“Q. Did you buy any coal during that time ?
“A. Yes, sir; I think I did.
“Q. Where did you get the money to pay for that ?
“A. The Worden Grocer Company.
“Q. Did you take that in currency ?
“A. I presume I did; yes, sir.
“Q. How much did you pay for the coal?
“A. Well, I generally paid, I presume, $15 or $25. I generally bought two or three tons at a time.
“Q. You are not able to tell this jury how much money you took during that period for coal for your own private family purposes ?
“A. I say probably $15 or $25. * * *
“Q. You sent your father during that period $315 ?
“A. Yes, sir.
“Q. Where did you get that money ?
“A. The Worden Grocer Company.
“Q. Did you take it in currency ?
“A. Yes, sir.
“Q. Where did that money come from, — from what source ?
“A. Why, it came in the general run of business; from the customers who paid their bills, generally.
“Q. Now, can you tell any other bills that you paid during that period besides the money that you put into the Cycloid Company and the mail-bag business and the air-gun business?
“A.' Yes, sir; I think I paid a doctor’s bill along about July 1st.
“Q. How much?
“A. My recollection is that my bill was about $90.
“ Q. And where did you get that money ?
“A. - The same place.
“ Q. From the Worden Grocer Company ?
“A. Yes, sir.
“Q. Took it in currency out of their money ?
“A. Yes, sir.
“ Q. To pay your doctor ?
“A. To pay my doctor.
“Q. Can you tell any other money that you took out of the money of the Worden Grocer Company that you have not mentioned ?
“A. Why, there would probably be no doubt some items like three or four or five or ten dollars for my own personal expenses.
“ Q. You took that out of the Worden Grocer Company?
“A. Yes, sir.
“ Q. Now, can you think of any other moneys that you took out ?
“ A. Outside of the investments in these different companies, do you mean ?
“ D Yp=!
“A. No, sir; I don’t.
“ Q. Now, as a matter of fact, whenever you wanted any money for your private use, you went to the drawer and took it, didn’t you ?
“A. Yes, sir.
“ Q. You took whatever you wanted, whether it was-|90 to pay your doctor, or $5 or $10 for your personal expenses, you went and took it ?
“A. Yes, sir.
“ Q. And you are confident that that amount of money that you took in that way during this six months-amounted to something like $1,500 ?
“A. Yes, sir; about that.”
This testimony discloses, as plainly as words can express, that, while respondent was secretary of the company, funds belonging to the company came into his possession, which he appropriated to his own use; not inadvertently and unintentionally, but designedly and intentionally, knowing the funds belonged to the company, and not to himself. Taking his own version of the transaction, there is not a single element of the offense described by the statute lacking. Act No. 114, Pub. Acts 1897 (3 Comp. Laws, § 11591); People v. Warren, 122 Mich. 504 (81 N. W. 360, 80 Am. St. Rep. 582). It is true, the respondent says he intended to return the money, but that does not do away with the offense. It is doubtless true that nearly every employe who misappropriates funds intends to return them to his employer, and to do this before the misappropriation is discovered. But this intention does not prevent the act from becoming a crime. The crime consists in the intentional appropriation of the money by the employe of the employer. It is true, too, that respondent claims that one or more of the directors-of the company knew what he was doing, and did not object to it. This is denied by the other officers of the-company, but, whether true or false, it does not excuse the respondent. Two or more of the directors of the company could not appropriate the funds of the company to their own personal use, and be justified in doing so. The judge did not charge the jury that the testimony of the respondent made out a case against him, but left the question of intent to the jury. This was quite as favorable to-the respondent as he had a right to ask. People v. Hawkins, 106 Mich. 479 (64 N. W. 736); People v. Schottey, 116 Mich. 1 (74 N. W. 209).
But one other question calls for discussion. The respondent introduced in evidence sections 14 and 15 of the by-laws of the company, which read as follows:
“ Seo. 14. The secretary shall keep a record of all proceedings of stockholders’ or directors’ meetings. He shall give all necessary notices. He shall be the custodian of the seal, and affix the same to all documents when necessary. He shall attend to the issuing of the certificates of stock, and shall keep a record of all stockholders, their respective residences, and the number of shares held by each, and shall perform such other duties as may be assigned to him by the board of directors.
“ Sec. 15. The treasurer shall be the custodian of all notes, deeds, and valuable papers belonging to the said corporation; shall collect and receive all money due this corporation. He shall keep proper books of accounts, and a faithful record of all property of this corporation that may come into his possession, and shall cause an annual inventory to be taken, and shall have the same and all other information requisite to the full understanding of the financial condition of said corporation at each annual meeting of the stockholders, and shall perform such other duties as the directors may assign to him.”
It is insisted that the treasurer of the company was the custodian of the funds, and the secretary was not, and the funds misappropriated by the respondent did not come into his possession by virtue of his office as secretary, and therefore he is not guilty. It is true, the by-laws prescribe the duties of the two officers. The record, however, discloses that in the practical management of the business no attention was paid to these by-laws. The treasurer did not in fact collect and receive the moneys due the corporation. They were nearly all of them received by the secretary, and some of them were misappropriated by him.
The other questions raised by counsel have been examined, but we deem a discussion of them unnecessary. The verdict is affirmed, and the case will be remanded to the court below, with instructions to proceed to judgment.
Montgomery, C. J., Hooker and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Moore, J.
The plaintiff in this case, then Nellie L. Holton, on the 5th day of December, 1896, recovered a judgment in the circuit court for the county of Clinton against the defendant, in an action in which she would become entitled to an execution against the body of the defendant. On the 20th day of February, 1897, an execution was issued upon said judgment against the property of the defendant. The return day named in such execution was the 15th day of March, 1897. This execution was delivered to the sheriff of Clinton county for service on the day it was issued, and was returned by him nulla bona on the 16th day of March, 1897. On the 20th day of July, 1897, an alias execution was issued against,the property of the defendant, and given to the sheriff of said county for service. This execution was held by such sheriff until the 18th day of July, 1899, upon which day he made return thereof unsatisfied in part. After the return of such alias execution, and on the 19th day of July, 1899, the plaintiff took out a writ of ca. sa., or body execution, upon such judgment, and delivered the same to the sheriff of Clinton county for service. The sheriff executed said writ by taking the defendant into custody, and taking from him a bond for bail to the jail limits of Clinton county. This bond bears date' the 24th day of July, 1899. On the 20th day of April, 1900, the defendant applied to the judge of the circuit court of the county of Clinton for a supersedeas, for the reason that, under sections 10412 and 10413 of the Compiled Laws of this State, it is provided that, if an execution be issued against the property of the defendant, a writ of capias ad satisfaciendum must be issued within three months after the return day of suc]h execution; that an execution was issued upon said judgment, as heretofore shown, against the property of the defendant, and the return day therein named was the 15th day of March, 1897, while the body execution was not issued until the 19th day of July, 1899, or over two years thereafter. The judge of Clinton county allowed a supersedeas, as prayed for by the defendant, and the plaintiff is now here asking that such supersedeas be set aside and quashed by this court. The cause of delay in taking the ca. sa. is said to be the pendency of a chancery proceeding.
Two errors are assigned:
First. That the circuit judge erred in holding that because said capias ad satisfaciendum, or body execution, was not issued within three months after the return day of said execution issued on February 20, 1897, and returnable March 15,1897, said capias ad satisfaciendum was not duly and regularly issued according to law.
Second. That said court erred in holding that, under the facts in said cause, he had any authority to allow, and in allowing, said writ of supersedeas.
It is claimed on the part of the plaintiff that sections 10301, 10303,10304, 3 Comp. Laws, authorize the issuance of the ca. sa. in this case. We cannot agree with this claim. Section 10412, 3 Comp. Laws, reads as follows:
“When any defendant shall be in custody upon a surrender in discharge of his bail, made after a judgment obtained against him, and such bail shall be thereupon exonerated, the plaintiff in such judgment shall charge such defendant in execution thereon within three months after such surrender, or, if an execution against the property of such defendant shall have been issued, within three months after the return day of such execution.”
This section has been construed in Douglass v. Manistee Circuit Judge, 42 Mich. 495 (4 N. W. 225), a case almost like this one, and the construction there given to it sustains the action of the circuit judge. See, also, 1 Green, New Prac. 344.
Judgment is affirmed.
The other Justices concurred. | [
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] |
Montgomery, C. J.
The defendant and one James McDougal were engaged in the business of roofing. The plaintiff was the agent for the National Life Insurance Company. In October, 1898, the plaintiff delivered to the defendant a binding receipt, and, later on, a policy, in the sum of $1,000, in said company. At the time of the delivery of the policy, a promissory note for the amount of the premium was given. This note matured, and was not paid, and on March 1, 1899, was renewed by the giving of the note in suit, the amount of which is $31.10. This action is brought upon this note. The defense interposed is that, at the time of the execution of this note, the plaintiff’s brother was engaged in erecting a brick building, and that the note was given upon the assurance of the plaintiff that he had secured for the defendant and his partner the job of putting on the roof. The jury, under the instructions of the court, evidently accepted defendant’s version of the transaction as true, and returned a verdict for the defendant. The plaintiff brings error.
It appears to be conceded by defendant’s counsel that it would not be competent to contradict the terms of the note by showing a promissory agreement that the plaintiff would secure the job of roofing for the defendant, or that the note was to be paid out of the proceeds of such contract; but the contention of defendant’s counsel on the trial was that the plaintiff’s misrepresentations related to an existing fact, and amounted to a fraud on the defendant and his partner. If the fact was that the plaintiff, as an inducement to the taking of this policy of insurance, represented to the defendant and his partner that he had secured for them the job of roofing, we see no reason why this is not competent, nor do we discover in what way it contradicts the terms of a written instrument.
The court instructed the jury as follows:
“You are instructed that the delivery of the policy of insurance by the plaintiff in this case to the defendant might constitute a sufficient consideration for the giving of the note in question. That is, if there was nothing else in this case but the question of whether the policy of insurance was delivered, and the note given therefor, then, under those circumstances, the policy of insurance would be a valid consideration for the note in question. Defendant claims that the policy of insurance which is in evidence in this case was not the real consideration for the note upon which the suit is brought, but that the said note was given conditionally, in payment of the performance of a certain contract that was entered into by defendant and plaintiff, but which has not been performed. The jury are instructed that if they find from the evidence that the note in question was in fact given in payment for the performance of a contract entered into by plaintiff, or partly in payment for such performance, and that said contract has not been performed by plaintiff, then it was not necessary for defendant to return to plaintiff the policy of insurance in order to avail himself of his contention in ■this suit. But if you find that the policy of insurance was not returned, or no offer made to return it, by defendant, if it is of any value, in determining the issue in this case, as to whether there was or was not a failure of consideration of the note, you may consider it for that purpose. That is for you to say. ”
—And refused to give plaintiff’s fourth request, as follows:
■ “You are also instructed that if you find that the defendant in this case accepted, at the time of the giving of the original note, an insurance policy on his life for $1,000, and that he understood that the annual premium for the policy was $31.10, and if you also find that he retained said policy, and never surrendered it, and that said policy continued in full force and effect for the period of one year, and that the only consideration given for said policy was the original note, of which the one here in question is a renewal, then plaintiff would be entitled to recover.”
It will be seen that the theory upon which the case was submitted to the jury was, or might be found to be, that the sole consideration for the note in suit was the securing of the job of roofing for defendant and his partner. We do not think the case admits of any such view. Defendant received a policy of insurance, the premium on which was $31.10 for the first year. He retained it during the entire year, and had the benefit of the insurance. He has
received some consideration for the note. It cannot be said that there was a total failure of consideration. The case was not submitted to the jury upon the theory of recoupment. A partial failure of consideration is a defense pro tanto only. Bigelow, Bills & N. (2d Ed.) 89, note; Story, Prom. Notes (7th Ed.), § 187; 6 Am. & Eng. Enc. Law (2d Ed.), 791.
We find there was a mistrial, and the judgment will be reversed and a new trial ordered.
The other Justices concurred. | [
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] |
Campbell, J.
Eelator asks a mandamus to restore bina to membership in the St. George’s society of Detroit from which he claims be was expelled without compliance with tbe rules of tbe society.
The objections are that the charges are insufficient, and the proceedings irregular.
The articles of the society provide for expelling members “guilty of improper conduct calculated to bring this society into disrepute.”
The charges were: First, Of having received of oue William J. Fisk two dollars as his proposed initiation fee, with a petition on his behalf to become a member of the society, and that ho had not paid the money to the society, nor returned it to Fisk, who had complained thereof to various persons; second, that having been entrusted by the secretary of the society with the keys of the society chest to obtain a receipt book therefrom, he at the same time, and without leave, took from' such chest the'original roll of the society, which was its property, and refused to return it.
These charges involved elements indicating, until explained, acts in the nature of frauds against the society as well as against Fisk. The article defining the cases in which interference can he had is very awkwardly drawn. Eut it must have been intended, at least, to cover cases of misconduct injurious to the society, and damaging to the reputation of the person charged. It would be difficult to find any meaning, if this is not the fair interpretation of the provision.
The principal objection relates to the formalities of the prosecution. The articles provide that charges “shall be investigated by a special committee of three members, appointed for that purpose by the president or other presiding officer; the committee to report at the following regular meeting; then should a majority of the members present vote for the expulsion of the member, he shall be notified of the same by the secretary.”
As these are all proceedings under articles agreed to by all the members, it is necessary to consider them without too much regard to any technicalities; and to follow sub stantial justice more than form. The only defect pointed out is in the appointment of the committee of investigation. It appears from the return that this committee was first appointed immediately after the adjournment of the meeting which passed the resolution of reference, and the appointment was made by the second vice president, who presided at that meeting. Two members declined to act, and the first vice president filled their places some days thereafter. When the committee met the relator had knowledge of it, and attended, and while he claims he protested against their being a lawful committee, the return says he made no such objection, but protested on other grounds, and took some part in examining witnesses. As the return is admitted to be true by the demurrer, this would probably estop .relator from now raising the point. But it does not appear to us well founded. The return avers that the appointment of the committee was according to usage. The article referred to does not direct when or how the appointment shall be made, but only that it shall be made by the presiding officer. We see no reason why, under these circumstances, the appointment need be made during a meeting, and being made immediately after, and at the place of meeting, the officer presiding at that meeting may very properly be considered as the presiding officer, so long as the business was continuous. And the subsequent appointment by the real presiding officer, of members to fill up the vacancies, would be a sufficient recognition of it to give it his sanction as of that time. The fact that a report was required to be made at the next regular meeting of the society, shows that action by way of appointment might be expected between the meetings to create or fill up the committee. The presumption of regularity from all these facts, if disputable, would at least require some clear allegation to put it in issue, and even the relator’s' showing contains nothing to contradict these facts, while he admits them still more effectually by receiving the return as true.
There was a committee claiming to be regular, and which appears to have been so. Eelator had knowledge of their meeting, was present at it, and had an opportunity of defense. He was bound to know that the report must be made at the next regular meeting, and could have raised any objections there that occurred to him, and if the proceedings were not according to the usages of the corporation, it must be presumed they would not have been sanctioned ; and this court is no place to review such routine questions.
The relator has seen fit to place himself, not on the merits, but on a mere question of formality. We have no means of reviewing the proofs as to his violation of the rules of the society. And as we see no defect which could defeat their action, the writ must be refused. We do not wish it to be understood that the formal correctness of such society proceedings, when affecting no substantial right, should be reviewed here. But we have referred to the proceedings merely to show that no injustice has been done which relator could not have objected to in the society or committee meeting, which was the proper forum.
The other Justices concurred. | [
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Cooley, J.
This is a case of the laying out of a highway, and the proceedings are alleged to be void for various reasons, the most important of which is that they fail to show that the commissioners gave notice to the parties interested, as required by law.
The statute requires the commissioners, when applied to to-lay out a highway, to issue a written notice, stating the object of the application, and appointing a time and place .of meeting, which notice shall be served by the commissioners, or one of them, on the owners or occupants of lands through which it is proposed to lay out the road, either personally or by copy left at the residence of each owner or occupant, at least ten days before the time fixed for meeting ; and it makes further provision -for the posting of notices to non-residents. — Comp. L., 1871, § 1253. And after the commissioners have determined to lay out the road, and passed upon all questions of damages for the appropriation of lands, they are to make return of their doings in writing, signed by them, which return must state their action in regard to the application, and shall be filed in the office •of the township clerk, with the application, and a copy of the notice attached thereto.
■ The commissioners made and filed their return in this .case, but the return does not show who are the parties-¡through whose lands the proposed road is to run, nor does it set forth how notice was given, except by a general statement that they proceeded to lay out the road “after due notice given according to law.” We have already decided that this is not sufficient. — People v. Highway Commissioners of Nanlcin, 1J¡. Mich., 528. In eases of this nature, where public officers are proceeding summarily to deprive owners of their lands, jurisdictional facts must be distinctly shown, and are not to be made out by a general averment which amounts to no more than a statement that the law has-been complied with. The. record must show the. facts, so that we may see whether the law was complied with.or-no t.
The commissioners have endeavored to support their proceedings by an amendment, which consists in putting on file an affidavit made five months after their action was taken, showing that in fact notice was duly given by one of their number. Had the amendment shown that the commissioners, at the time of acting, had proof before them that the parties entitled to notice had received it, we might have been required to consider some of the questions discussed on the argument concerning the right to amend. But such is not the case here. On the contrary, the inference is irresistible that these commissioners had no proof before them in laying out the road which could give them jurisdiction to act at all, unless the mere oral statement of the person giving such notice could be regarded as proof. And it needs no argument or citation of authorities to demonstrate that the jurisdiction to take from a private owner the possession of his lands can never be allowed to rest upon any such dangerous basis as what some one may have orally said concerning it. The notice is in the nature of process, and it is indispensable that there be legal evidence that it has been given. Admitting that the commissioners’ return might be amended to supply proof of notice actually had, does not help a case like this, where no proof was had, and the commissioners attempt to make the proof for the first time after the case has been taken into the courts.
It can make no difference that one of the commissioners in this case had personal knowledge that the notices were given. His oral statement could not be proof to the others, and if it could, it would not be evidence to third persons, who are entitled, when such interests are involved, to have the facts placed upon record.
The proceedings must be quashed.
The other Justices concurred. | [
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Weaver, J.
The question presented in this case is whether the county is responsible for paying a judgment entered against the probate court when the plaintiffs alleged discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., by the probate judge.
The facts of the underlying suit were well-summarized by the Court of Appeals:
Cindy Cameron was formerly employed as Judge Seitz’ judicial secretary. She resigned her position in 1990 when Judge Seitz became hostile toward her shortly after she announced her intention to marry plaintiff Lawrence Cameron. Judge Seitz was removed from his judicial office in 1993 for judicial misconduct involving, in part, his relationship with, and conduct toward, Cindy Cameron. [214 Mich App 681, 683, n 2; 543 NW2d 71 (1995).]
Cindy and Lawrence Cameron, former employees of the probate court, brought suit, alleging marital discrimination and violations of the Civil Rights Acts by the probate court judge. Pursuant to a mediation agreement that was accepted by both plaintiffs and the Monroe County Probate Court, a judgment of $25,000 was entered against the probate court. The plaintiffs received $25,000 from the state of Michigan.
The probate court had filed a third-party complaint against Monroe County, alleging that the county was responsible for paying any judgment that might be rendered against the probate court. The trial court granted the county’s motion for summary disposition, ruling that the county is not responsible for payment of any judgment entered against the probate court. The Court of Appeals affirmed. We reverse and dismiss the third-party complaint.
i
A
In contending that the county is not responsible for paying the judgment, defendant relies on Kell v Johnson, 186 Mich App 562; 465 NW2d 26 (1990), which held that the state would be primarily responsible for a judgment entered against the district court or dis trict court judge. We find that this case, entered before Grand Traverse Co v Michigan, 450 Mich 457; 538 NW2d 1 (1995), was wrongly decided. Its reasoning was based on the premise that the county was liable only for those expenses that were specifically allocated to the county by statute. However, MCL 600.8103(1); MSA 27A.8103(1) provides that the county is responsible for “maintaining, financing and operating the district court . . . except as otherwise provided in this act.” Thus, contrary to the holding in Kell, the plain language of the statutory provision dictates that the county is responsible for all expenses of maintaining, financing, and operating the district court, unless otherwise specified.
B
In reaching its decision that the county need not pay the judgment entered against the probate court, the Court of Appeals relied on Employees & Judge of the Second Dist Court v Hillsdale Co, 423 Mich 705; 378 NW2d 744 (1985). It said that “the funding obligation of a local funding unit extends only to the provision of those funds that are ‘necessary to the performance [by the court] of its statutorily mandated function.’ Payment of a money judgment is not a statutory function of the probate court.” 214 Mich App 689 (citations omitted).
In so holding, the Court of Appeals incorrectly interpreted our holding in Hillsdale to mean that the county was responsible for paying only those expenses spelled out by statute. This is an inaccurate reading of the case. In Hillsdale, this Court did not limit the county’s obligation to statutory functions, but merely limited the scope of its decision to statu tory functions. The issue was when the district court could compel funding in excess of appropriations from the local funding unit. This Court held that “Where the Legislature has by statute granted authority or created a duty, the local funding unit may not refuse to provide adequate funding to fulfill the function.” The Court specifically did not consider “when and under what standards the judiciary may compel expenditures beyond those appropriated to fulfill a statutory function.” Id. at 721-722.
This unanswered question was dealt with in Grand Traverse Co, when we held that the state is not constitutionally required to fund the entire cost of trial court operations, and recognized that trial courts historically have operated on local funds and resources. Because there is no statutory authority specifying who will pay a judgment entered against the probate court for civil rights violations of a probate court employee, it must be paid by the local funding unit, the county.
c
It is well established that “Despite the fact that the courts have always been regarded as part of state government, they have operated historically on local funds and resources.” Grand Traverse Co, supra at 473-474. Although the expenses of justice are incurred for the benefit of the state, they are charged against the counties in accordance with old usage, as a proper method of distributing the burden. Id., citing People ex rel Schmittdiel v Wayne Co Bd of Auditors, 13 Mich 233 (1865).
The county contends, correctly, that employment discrimination is not an “expense of justice.” How ever, supervision and administration of court personnel is a necessary expense of justice for which the county is expected to pay. The mediation judgment entered against the county is the result of poor or inappropriate administration. Just as the county would benefit from the wise and efficient administration of the judges its voters elect, so it suffers from the thoughtless and improper administration in the instant case.
n
Appellant also argues that the circuit court lacked jurisdiction over the third-party complaint because it could not adjudicate the state’s liability for money damages. Appellant contends that the third-party complaint should have been brought in the Court of Claims, which has exclusive jurisdiction over claims for money damages against the state. MCL 600.6419; MSA 27A.6419, Silverman v Univ of Michigan Bd of Regents, 445 Mich 209; 516 NW2d 54 (1994).
However, the third-party complaint by the appellant probate court asked only that the court order the county to pay the judgment.’ The state was not made a party to the complaint, nor did the court attempt to order the state to pay the complaint. The order merely stated that the county was not liable, without attempting to impose such liability on the state. Therefore, appellant’s claim that the circuit court lacked jurisdiction has no merit.
m
We conclude that counties are responsible for paying judgments entered against courts in such tort actions. The trial court, accordingly, erred in granting the county’s motion for summary disposition of the third-party complaint. If the probate court had been found liable to plaintiff, the county would be liable for any resulting judgment as a matter of law.
Here, however, we are faced with unusual circumstances. There was no finding of liability; rather, the special administrator accepted a mediation evaluation on behalf of the probate court. Further, the probate court did not pay the settlement amount. In the third-party complaint, the probate court sought indemnification from the county “[i]n the event Monroe County Probate Court is liable for the claims alleged by Plaintiffs.” Assuming, arguendo, that the county could state a claim for indemnification, it is clear that the probate court is not entitled to indemnification from the county here because the underlying claim was resolved at no cost to the probate court. Thus, we need not remand this matter for resolution of the third-party complaint. We, accordingly, reverse the Court of Appeals decision affirming the trial court’s grant of summary disposition to the county and dismiss the third-party complaint.
Mallett, C.J., and Brickley, Cavanagh, Boyle, Kelly, and Taylor, JJ., concurred with Weaver, J.
The State Court Administrator (sca), was acting as the Special Administrator for the Probate Court. The scAaceepted the mediation evaluation on behalf of the probate court, apparently against the wishes of the county. | [
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] |
Cavanagh, J.
The case calls on us to decide whether the plaintiffs action, which was successful on the merits before a jury, was barred by the statute of limitations prescribed by the Whistleblowers’ Protection Act. Because the plaintiff has alleged and proven an act by her employer in violation of the Whistleblowers’ Protection Act within the limitation period, we find that her action is not barred.
The plaintiff filed her action on January 19, 1990, ninety days after writing and sending her letter of resignation to her employer. Her complaint alleged, inter alia, that she had been constructively discharged from her employment in violation of the act. Following a jury verdict for the plaintiff, the trial court granted defendant’s motion for directed verdict, agreeing with defendant’s contention that the plaintiff’s claim was barred because the plaintiff had not filed her claim within the ninety-day statutory period for claims under the act.
The Court of Appeals reversed in part, finding a continuing pattern of discriminatory conduct, with most acts outside the statutory period, but at least one act within it. The Court of Appeals concluded that this fit within an exception to the limitation period for continuing violations, and that the plaintiff’s complaint was therefore timely filed. We granted defendant’s application for leave to appeal.
We find that the plaintiff has shown that she was constructively discharged on the date of resignation in retaliation for conduct protected by the act. It is undisputed that when the plaintiff filed her action, the period of limitation covering any actions on the date of her resignation, October 21, 1989, had not expired. Accordingly, we affirm the result reached by the Court of Appeals, but on different grounds.
i
Plaintiff G. Marie Jacobson worked for defendant Parda Federal Credit Union from 1972 until her resignation on October 21, 1989. Beginning as a temporary employee, she eventually rose to the position of executive vice president and chief operating officer. While serving in this position, plaintiff, after consulting with her private attorney, contacted the Federal Bureau of Investigation on February 28, 1989, to report her suspicions regarding a bond claim filed by the defendant with its insurer. Plaintiff believed that this bond claim was unsupported and, therefore, improper and perhaps fraudulent.
That same day, the board of directors of the credit union learned of plaintiff’s action. Thereafter, plaintiff noted a dramatic decline in her relationship with the board. The plaintiff testified that the board was upset and outraged that she had reported the credit union to the FBI.
Joseph Abate was president and CEO of the credit union during this time, but had announced his retirement effective April 1, 1989. Plaintiff believed herself to be generally considered to be Abate’s successor. Shortly before Abate’s retirement, she was assured by members of the board that no search was being conducted for a replacement for Abate, and that, even if there was to be a search, she would have a “fair chance” in any search to fill Abate’s position. Following Abate’s retirement, however, the chairman of the credit union’s board, Herman Armstrong, was named acting interim CEO.
From there, the plaintiff detailed at trial an extensive collection of actions adverse to her taken by the board, including the placing of a blind advertisement for the CEO position, the offering of the position to another candidate (who declined it), the failure of the board to inform her of its eventual decision to appoint her CEO, and the rescission of that decision before it in fact took effect. It is undisputed that all these actions occurred well outside the statutory limitation period present when the plaintiff filed her action.
Eventually, on August 16, 1989, the credit union hired Katie Stone as interim president and CEO. Simultaneously, plaintiffs staff was assigned to report to Stone, and plaintiff was relieved of her previous job duties. Plaintiff testified that from this point forward she was ostracized and ignored by the board.
On October 21, 1989, plaintiff typed out a letter of resignation and mailed it to the board members, leaving an additional copy on Stone’s desk. It is undisputed that plaintiff was alone at work that day, a Saturday. Plaintiff reported to work on the following Monday, October 23, 1989, and was instructed by Stone to clean out her desk and leave at once. Plaintiff complied with Stone’s instructions.
On January 19, 1990, exactly ninety days after the day plaintiff wrote and mailed her letter of resignation, she filed this action. The defendant moved for a directed verdict at the close of plaintiff’s proofs and again at the close of its proofs. The trial court took both motions under advisement. Following a jury verdict in favor of the plaintiff, the trial court granted a directed verdict (judgment notwithstanding the verdict) in favor of the defendant on all counts. The Court of Appeals reversed in part, with respect to the finding that plaintiffs whistleblowers’ action was barred by the statute of limitations. It is from this portion of the Court of Appeals decision that the defendant appeals. We now affirm, for reasons other than those stated by the Court of Appeals.
n
The issue whether a claim is within the period of limitation is one of law, Solowy v Oakwood Hosp Corp, 454 Mich 214, 216; 561 NW2d 843 (1997), and hence reviewed de novo, Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). Here, because a jury has found in favor of the plaintiff, and the trial court entered a directed verdict, plaintiff on appeal is entitled to all factual issues being viewed in the light most favorable to her, along with the drawing of reasonable favorable inferences from them. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975).
Plaintiff filed her action on January 19, 1990. Under the act, the period of limitation for an action alleging unlawful retaliatory conduct is ninety days. Therefore, the first step in any analysis of this claim is to determine whether the plaintiff has stated a claim regarding events within the limitation period. Even if we were to agree with the analysis of the Court of Appeals of the events that were otherwise barred by the statute of limitations, the analysis must nevertheless begin at those times within the period of limitation. Simply stated, if the plaintiff has alleged an action within the period of limitation, and the trier of fact has found in favor of the plaintiffs claims, we need look no further.
Here the plaintiff resigned on October 21, 1989. She was admittedly alone at work on that day, a Saturday. Plaintiff testified that her working conditions had become intolerable, and offered considerable testimony in support of her claims that the conditions had steadily deteriorated in response to her reporting certain actions of the board of directors of her employer to the FBI.
The question when a constructive discharge occurs has been previously addressed by this Court only in the context of a Michigan Civil Rights Act claim. Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). Noting that “a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign,” we found that the supervisor’s conduct in Champion was severe enough to compel the plaintiff to resign.
Defendant argues that Champion stands for the proposition that the act of an employer constitutes the action that results in the “discharge” in a constructive discharge situation, and that, therefore, the timing of the action of the employer controls. We disagree. The act of the employer and the constructive discharge were inseparable in Champion. Our analysis did not deviate from the standard expressed in Vagts, that is, would a reasonable person in plaintiff’s position have felt compelled to resign as a result of the employer’s sexual assault? Applying that same standard, the defendant’s motion for judgment notwithstanding the verdict should not have been granted if, viewing the evidence in a light most favorable to the plaintiff, jurors could have reached different conclusions whether plaintiff’s working conditions were so intolerable that a reasonable person in plaintiff’s position would have felt compelled to resign. Champion, 450 Mich 710; Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994).
m
In this case, the plaintiff alleged that her work conditions, as a result of retaliatory action prohibited by the act, became intolerable as of October 21, 1989, and she submitted her resignation on that day. The trier of fact accepted this contention.
While an employer’s action may lead to a constructive discharge, such a discharge itself generally cannot become evident until the employee has, in fact, left the employment. It seems, therefore, that to say that a discharge occurred whenever an employer’s action that resulted in the discharge occurred would be to set a date of occurrence in retrospect. Until the employee resigns, the employer’s action has yet to prove to be one of discharge. A discharge, be it constructive or otherwise, must have in place all the events necessary to determine its existence.
On the day she resigned, plaintiff found her working conditions to finally be intolerable. As we have noted above, “a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign.” Champion at 710-711, citing Vagts at 487-488, and Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). Our approach historically has been to apply an objective standard of reasonableness to the action of the employee.
We decline the defendant’s invitation to depart from our longstanding rule that a discharge occurs when a reasonable person in the employee’s place would feel compelled to resign. In analyzing such circumstances, we cannot know what place the employee is in, and hence evaluate her conduct, until she actually resigns. It seems, therefore, that our focus in these far more common situations must be on the moment of resignation. Here, the employee’s resignation occurred on October 21, 1989. A jury later agreed that it was reasonable for her to resign at that time. She was constructively discharged on October 21, 1989.
“[O]nce individuals establish their constructive discharge, they are treated as if their employer has actually fired them.” Champion at 710. The law does not differentiate between employees who were constructively discharged and those who were actually discharged. Id. At the time plaintiff filed her claim, any act that occurred on October 21, 1989, could timely be addressed. If the plaintiff had been fired by her employer on October 21, 1989, her claim would be timely. We, therefore, would find it timely on the basis of her constructive discharge.
Because reasonable jurors could differ regarding whether plaintiff was constructively discharged in violation of the act at the time she resigned, we affirm the result of the Court of Appeals, which reversed the directed verdict, and reinstate the jury’s award on the basis of the reasoning herein.
Mallett, C.J., and Boyle and Kelly, JJ., concurred with Cavanagh, J.
MCL 15.361 et seq.; MSA 17.428(1) et seq.
While plaintiffs suit initially named several individual members of her employer’s board of directors as defendants, the trial court dismissed these claims pursuant to MCR 2.116(C)(8), finding the individual directors not to be employers within the meaning of the Whistleblowers’ Protection Act. The Court of Appeals affirmed this dismissal, and the plaintiff has not filed a cross appeal on this issue.
The jury awarded the plaintiff $277,000 in present economic damages and $128,000 in future economic damages. The jury also awarded $100,000 in noneconomic damages on the plaintiff’s claim of intentional infliction of emotional distress. The trial court granted a directed verdict on this claim, and the Court of Appeals affirmed. Plaintiff has not filed a cross appeal on this issue.
Now a judgment notwithstanding the verdict, MCR 2.610.
MCL 15.363(1); MSA 17.428(3)(1).
Unpublished opinion per curiam, issued November 17, 1995 (Docket No. 162885).
The Court of Appeals cited Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 528; 398 NW2d 368 (1986), for this proposition.
454 Mich 905 (1997).
Constructive discharge is not, itself, a cause of action, but rather a defense to a claim of the voluntary leaving of the employee. See Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994). However, discharge is among the retaliatory actions prohibited by the act. Plaintiff alleged she was constructively discharged. The actual posturing of her claim, accordingly, is one of discharge in violation of the act.
In reviewing a motion for judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn in a light most favorable to the nonmoving party. If reasonable jurors could have reached different conclusions, the motion should have been denied. Matras v Amoco Oil Co, 424 Mich 675, 681-682; 385 NW2d 586 (1986).
As will be seen, we find no need to reach the issue of a possible “continuing violation” encompassing acts beyond the limitation period.
It is apparent that, before the plaintiff contacted the FBI, she had brought her concerns regarding the bond claim to the board of directors, which nonetheless authorized the filing of the claim.
While it is apparent that the board decided to promote plaintiff to ceo after the other candidate refused the position, the plaintiff testified she was never informed of that decision and learned of it by way of a third-party’s congratulatory letter a month later. When confronted by the plaintiff, the board informed her that it had already rescinded her promotion, and thereafter hired Katie Stone as interim CEO.
A motion for judgment notwithstanding the verdict should be granted only if the evidence, viewed in a light most favorable to the nonmoving party, fails to establish a claim as a matter of law. Orzel v Scott Drug Co, 449 Mich 550, 557-558; 537 NW2d 208 (1995).
Our decision rests on a claim of constructive discharge within the limitation period. Plaintiff also alleged numerous discriminatory acts by the defendant outside the limitation period. While those allegations do not, by themselves, form the basis we decide this matter on, they are nonetheless relevant to determining the reasonableness of the plaintiff’s resignation, a determination required in addressing a claim of constructive discharge. See Vagts, n 9 supra at 487-488.
MCL 37.2101 et seq.-, MSA 3.548(101) et seq.
Subsection 103 of the act provides:
(i) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:
(ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment, public accommodations or public services, education, or housing.
Champion at 710, citing Vagts, n 9 supra at 487-488, and Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975).
In Champion, the plaintiff was forcibly raped by her supervisor while at work. The plaintiff, not surprisingly, never returned to work. She later filed an action against her employer under the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., alleging sexual harassment. We held “that an employer is liable for such rapes where they are accomplished through the use of the supervisor’s managerial powers.” Champion, 450 Mich 704. We also held that the rape was equivalent to a decision to discharge and that this “ ‘decision affecting . . . employment’ is actionable under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii) . . . .” Id. at 711.
We note that the rule of Vagts defining a constructive discharge was not new to our jurisdiction. For at least fourteen years, Michigan appellate cases have applied this standard in determining a constructive discharge. See, e.g., Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 721; 465 NW2d 395 (1991); Fischhaber v General Motors Corp, 174 Mich App 450, 454-455; 436 NW2d 386 (1988); LeGalley v Bronson Community Schools, 127 Mich App 482, 486-487; 339 NW2d 223 (1983).
There may, of course, be instances where the events necessary to determine a constructive discharge may be in place before the date of resignation, such as when the employee has received definite notice of the termination. Such circumstances might compel a finding of a constructive discharge on a date before the date of resignation, although we do no more than make this observation, because that is not the case before us. Herein, while the plaintiff may have had indications that the upward mobility of her career was in jeopardy, the record, when viewed, as required, in a light most favorable to her, does not reveal that she had definite notice of termination of her employment at some point before the date of her resignation, and does indicate that, at that time, her resignation was reasonable under the circumstances.
We are not alone in relying on the date of resignation as the date on which a constructive discharge accrued. Several courts have determined, using a variety of rationales, that such a date provides the most clearly determinable indication of when a constructive discharge occurred. See, e.g., Armington v School Dist of Philadelphia, 767 F Supp 661, 666 (ED Penn, 1991), aff’d 941 F2d 1200 (CA 3, 1991), Eure v United States Postal Service, 711 F Supp 1365, 1372 (SD Miss, 1989), and Stroud v VBFSB Holding Corp, 917 SW2d 75, 81 (Tex App, 1996).
The potential concern often argued against allowing an employee who controls the date at which she resigns to thereby “control” the accrual of her cause of action has been effectively dealt with by several courts. In particular, we note the Supreme Court of California’s comprehensive statement in this regard:
[The defendant’s] concern to avoid vesting employees with sole control over the commencement of the statute of limitations period, which it asserts would leave employers unaware of the accrual of a cause of action until an employee resigns, is misplaced .... The essence of constructive discharge is that it is a termination of employment secured by the employer through indirect means. The employer remains in control in that he or she coerces the employee’s resignation. Just as an employer who gives advance notice of impending termination of employment has knowledge sufficient to prepare for a possible lawsuit, an employer who creates or knows of intolerable conditions is in the same position to be prepared for a possible lawsuit when the coerced resignation finally occurs. In addition, the alleged intolerable condition — a circumstance in the control of the employer — normally continues up until the time of resignation, so that the litigation will not relate to some long-ago event, but to recent circumstances. Nor is it true that having the statute of limitations run from the date of termination leaves the employee able to delay the bringing of a lawsuit indefinitely. The longer the employee delays his or her resignation, the more difficult it may be to prove that the allegedly intolerable conditions of employment actually were intolerable on an objective basis ... , or that it was these conditions that caused the employee’s resignation. Further, the employer, who has created or permitted the persistence of known intolerable conditions, should not be able to complain of delay when the employee retains employment in the hope that conditions will improve or that informal conciliation may succeed. [Mullins v Rockwell Int’l Corp, 15 Cal 4th 731, 740; 63 Cal Rptr 2d 636; 936 P2d 1246 (1997) (citations omitted).]
Hence we find no reason to address the other issues raised by the plaintiff, such as the continuing violation doctrine.
We pause to again address the dissent's claim that our action impairs the function of the statute of limitations in these cases. Despite the dissent’s claims, our decision today entails a workable framework for the evaluation of statute of limitations issues in constructive discharge cases. Whether a resignation was reasonable at the time it was made controls the presence of a constructive discharge. Obviously a person claiming “intolerable” working conditions for some number of years will be hard pressed to convince a trier of fact, or even raise a question of fact, that such conditions were reasonably “intolerable.” The hypothetical tardy plaintiff so feared by the dissent is more likely to harm, rather than help, her cause by delaying action.
We also note another likely consequence if the view of the dissent were to prevail. Faced with the likelihood that a court, in retrospect, would examine the factual record and fix the first serious negative action as the date of occurrence of the constructive discharge, the only logical advice a competent practitioner could offer a potential plaintiff would be to, at the first sign of serious trouble, resign, and file a claim of constructive discharge. To remain and attempt to resolve the problem would lead to the expiration of a claim, even if the work environment had become far worse since the time of the last identifiable management action that appears in the record. The natural resolution of most workplace difficulties, which thankfully do not reach the level of litigation, would likely be frustrated. | [
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Cooley, J.
The plaintiffs sued defendant in justice’s court to recover advances, charges and expenses on twelve bales of hops, sent by them to New York for him, and there reported sold. The advances were fifteen dollars, the charges and expenses increased the amount to seventy-seven dollars and thirty-two cents, and they reported to him a sale of the hops at eight dollars and ten cents. For the difference, sixty-nine dollars and twenty-two cents, the plaintiffs had judgment in justice’s court, which the circuit court reversed on certiorari.
The plaintiffs’ evidence was that they made a contract with defendant to sell his hops in New Yorlc for a certain commission; that they were to be sold by themselves, and that defendant was to settle with them by the bill which should be rendered by their New York correspondent. They then offered in evidence what purported to be an account of sales by their correspondent of a number of lots, amounting to a hundred and seventy bales in all, including twelve marked “Nash,” and presumed to be defendant’s, for the gross sum of one hundred and fifteen dollars, and on which the charges were five hundred and sixty-eight dollars and fifty-six cents. Defendant objected to the reception of this account in evidence, but the justice received it. No other evidence was given of the sale of defendant’s hops, or of what was received for them. Defendant seems to have been credited with his proportion of the gross, receipts, assuming the hops to have been all of the same value.
The error in receiving this account in evidence is very manifest. Plaintiffs had no right to sell defendant’s hops in that manner as part of a lot with others; ■ and defendant had never agreed to be bound by any such sale, or by any bill that should be rendered of a sale not made separately. Such an account, not proved in the ordinary way, could only be received in evidence on the ground of contract; but to make it admissible on that ground it must be in accordance with the contract, and not distinctly in disregard of it, as was the case here. The paper was consequently mere hearsay, and the circuit court was right in reversing the judgment for its reception.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Graves,-J.
This was trover by the plaintiff in error for the value of pine timber taken from the southwest quarter of the southeast quarter of section twenty-one, in township fourteen north, of range five west, in the county of Isabella, The cause was tried before a jury, who, by direction of the court, found for the defendant, and the plaintiff brought error.
Unless it appears by the record that the plaintiff made a case which he was entitled to have investigated by the jury the judgment must be affirmed. The land was wild and unoccupied, and his right to the timber was made to 'turn upon his legal ownership of the land, and that again depended- upon the effect due -to certain deeds and the records, made of them. Both "parties claimed,.’title to the land under deeds from the patentee, an- Indian named Away- , way-shing, ’and -there is no'question but that these, conflicting deeds were made respectively for valuable consideration. Neither is there any dispute upon. the .fact that .the defendant, and his grantor, who was the immediate ‘ purchaser from the patentee, were both purchasers for valuable con- ' siderati'on and in góod faith.- The plaintiff proved by the ■record of deeds that the. patentee deeded, to him on the 29th of January, 1872, and that the’deed was put on record -the first-day-of February-following.
The defendant gave in evidence an original deed from the -patentee-to Thomas -Buckley earlier in date than that to ..the plaintiff, since it bore date' on the 13th of September, 1871. The defendant also gave in evidence a-second original deed between the same parties, dated February 7th, 3872, and, as will be noticed, subsequent in date to that given to the plaintiff. He also submitted in evidence a quit-claim deed for the timber, given by Thomas Buckley to himself on the 8th of February, 1872. The first deed to Buckley was placed on record before the plaintiff’s deed was given, namely, on the 16th of September, 1871. ' The second deed to Buckley was placed on record afterwards. If ■ as between these parties the first deed to Buckley, and the record of it, were sufficient to convey the title to Buckley and - preclude the plaintiff from founding any right to the land on his deed, made and recorded subsequent to the record of such first deed to Buckley, then the plaintiff was .not entitled to recover, and the verdict was correct. But the plaintiff has raised several .questions relating to the sufficiency of the execution of the deed, the acknowledgment; the registry, and the effect due to the actual Registry... One of the witnesses to this deed was unable to write, and his name was written out by the other witness, and he then affixed his mark. It is now argued that this was not,a compliance with the statute which regulates the mode in which deeds are to be witnessed. The plaintiff insists that the language and spirit of the provision indicate that the witness must actually subscribe his own name.
.This objection, however, is deemed to.be well answered by the general statute of construction, which declares that in construing statutes, except when inconsistent with, the manifest intent of the legislature, the written signature of any person, whenever required, shall always be ^the proper hand-writing of such person, or in case he is unable to write, his proper marie. — Comp. .L., § 2, sub, 17. Therefore, if apart from this provision it would be right to interpret the statute relating to subscribing witnesses jn such a . way as to render all persons who cannot write. incompetent witnesses to deeds, we think this law precludes, all question on the subject. ...
It was objected to the record, that the certificate of acknowledgment did not show that the grantor was .per- . sonally known to the officer. The certificate was as follows :
“ State or Michigan, )
County or Bay, j s' ’
“ On this thirteenth day of September, in the year one thousand eight hundred and' seventy-one, before me, á jus tice of the peace in and for said county, personally appeared Louis Away-way-shing, to me lenown to be the same person described in, and who executed the within instrument, who acknowledged the same to be his free act and deed.
“Phillip Gruett,
“ Justice of the Peace!
We think this objection untenable. The certificate upon its face clearly implied that the grantor was personally known to the justice. It was supposed that an intimation in Buell v. Irwin, 24. Mich., 145, favored the objection here taken. The expression noticed was an incidental one in the opinion, and was not made as conveying the view held by the court on the point, and however it may be considered, as a correct indication or otherwise, in respect to the state of things to which it had reference, it has no application here. There the question arose upon an instrument claimed to be a certificate of acknowledgment of a Michigan commissioner in another state, and as on its face the instrument appeared to be unauthenticated by seal, and hence without any force as a certificate, the suggestion was made that possibly it ought not to be considered as sufficiently showing that the grantor in the deed was personally known to the commissioner.
The point of the objection here is not that the supposed certificate was, upon its face, wanting in something to stamp it as a certificate, but it is upon the construction due to it if considered as a certificate; whether in truth the terms used import that the grantor was personally known to the justice.
In the course of the defendants proofs it turned out that the justice who took the acknowledgment was not a justice of the peace of Bay county at the time, but was a justice of the peace of Isabella county, and that he went into Bay county and there took the acknowledgment.
Some objections were taken to the admission of evidence that Mr. Gruett was a justice of the peace of Isabella county, but as the court ultimately ruled, and as we think correctly, that Mr. Gruett, as a justice of the peace of Isabella county, was not authorized, to go into Bay county, and there take the acknowledgment, and as the case must-rest upon other considerations, we do not pass upon those objections.
The original deed was proved and given in evidence, and admitting that the acknowledgment was bad, still the deed itself was a good - common-law conveyance as between the parties to it, and as against all others rightly chargeable with notice.
The general statute which regulates alienation by deed, very clearly implies that the acknowledgment is not one of the constituent facts of the conveyance proper. Among other things it authorizes, as a proper preliminary to registry, a proceeding in court to obtain a judicial authentication, where a resident grantor refuses to acknowledge his deed. And we cannot suppose that the legislature would have sanctioned in this way the authentication of an unacknowledged deed, a deed the grantor himself would not acknowledge, so as to fit it for record and adapt it to operate every way as a perfect and complete conveyance, if it had been considered that acknowledgment was an attribute of the contract of conveyance, and without which there would be no transit of the title as between the parties. To suppose so would be to assume that the legislature meant to expressly authorize an act they considered as part of the contract of conveyance, and which could proceed only from the will of the grantor, to be-performed by an independent agency, and against the will of the grantor.
Considering the deed as a good conveyance between the parties to it, and as made in good faith and on a valuable consideration, but defective in the statutory requisite of acknowledgment, and bearing in mind that it was made and actually placed on record before the plaintiff’s deed., the remaining question concerns the effect, if any, of this registry upon the plaintiff’s rights. By the last clause of the 4th section of the curative act of 1861 (Sess. L, 1861, p. 16), it is provided that when an instrument made in good' faith and on valuable consideration, and intended to operate as a conveyance, is placed on record-in -the county where the lands lie, and the paper has a defect in some statutory requisite in the acknowledgment or certificate of acknowledgment, the- record shall operate as legal notice-of all the rights secured by the instrument.- While .this law, we think, would not make the record of the ■defective instrument any evidence of the original paper, but would leave such original paper to be proved by independent and - satisfactory evidence, we think it was meant to make the record operate so far as to convey legal notice of the rights-secured by the original paper.
As already- stated, the first original deed to Bu’ckley was given in evidence with proof that it was in good faith and on valuable consideration, and if- this statute was in force when the plaintiff took his deed, it- seems unquestionable that this record was legal notice of all .the rights secured by the -deed to Buckley, or in other words, of the -rights acquired1 by Buckley as grantee in a good common-law conveyance made by- the patentee. And if this were true, the •effect of-- it would be to invalidate the plaintiff’s title. But the plaintiff contends that this provision of the curative act was impliedly repealed-by a section added to the general chapter relating-to alienation by deed, in--1867.— Comp. A., § ■.1¡B1¡9. The act of 1867 amended, one section and added three -to.the general chapter just mentioned; but it did not profess in direct terms to -exclude the operation of the curative act of 1861. The title contains no indication of a purpose to repeal the law of 1861, and we see no such inconsistency between the two statutes as to feel warranted in saying that .they may not stand together. Kepeals by implication are not favored,-and -there is certainly much room for both of these statutes-to operate without conflict. - Both were designéd to guard-and secure rights; not-to impair or-destroy-them. And the-grounds of policy for-the law of 1861, -as one to ■operate in future, were as evident in 1867 as in 1861, and when the legislature required registers to abstain from recording defective papers, they were well aware that such papers after all would sometimes get' on record, and' that important interests might be sacrificed unless some effect should be given to Such records. Accepting this, true and practical view of the matter, they allowed the act.of 1861 to remain, but endeavored by the act of 1867 to lessen the occasions for its application. • . :
Having reached, the conclusion, that the act' of 1861 wds in force, and that, under the fourth section the record of the first deed to ‘Buckley was legal notice to 'the . plaintiff' when he took his deed, it- follows that he obtained- no title on' which to base a recovery, and that the judgment of the court below was right, and should be affirmed, with costs.
The other Justices concurred. | [
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Brickley, J.
Defendant Barbara Kieft, whose deceased husband David received medical services from plaintiff North Ottawa Community Hospital, appeals the circuit court’s grant of summary disposition for plaintiff in its collection action against her. She defends this action on the basis of a provision of the married women’s property act (mwpa), which the Court of Appeals found to be unconstitutional.
For the reasons that follow, we find that the mwpa is constitutional and that it bars a judgment against Ms. Kieft for her husband’s medical expenses. Consistent with our findings today, we abrogate the common-law doctrine of necessaries and hold that neither a husband nor a wife is liable, absent express agreement, for necessaries supplied to the other. The deci sion of the Court of Appeals is reversed, and we remand this case to the circuit court for entry of judgment in favor of defendant.
i
Barbara Kieft and David Kieft were a married couple. David received health care services from North Ottawa Community Hospital and, upon his death, left an insolvent estate. The hospital attempted to recover from Ms. Kieft the unpaid hospital charges, which amounted to $22,191.81. From the materials at hand, it appears that the parties agree that Ms. Kieft did not contract for David’s care, nor did she agree to guarantee payment for his care.
To recover the outstanding debt, North Ottawa brought this suit against Ms. Kieft. In its complaint, North Ottawa stated that Ms. Kieft had “a common law and/or statutory obligation to pay for necessaries and/or support of the parties.” Ms. Kieft answered that “she has no duty and has never assumed the obligation of paying for the services rendered to David Kieft.”
North Ottawa moved for summaiy disposition, pursuant to MCR 2.116(C)(9), (10). Noting Ms. Kieft’s denial of an obligation to pay for Mr. Kieft’s health care expenses, North Ottawa stated in its motion that “it is well established Michigan law, that each spouse is obligated to pay for the medical necessaries rendered to the spouse, if they were rendered during the marriage.” An accompanying brief cited Borgess Medical Center v Smith, 149 Mich App 796; 386 NW2d 684 (1986), and Bronson Methodist Hosp v LaRoy, 171 Mich App 729; 430 NW2d 817 (1988), as authority for the obligation of the wife to pay the debts of the husband.
The circuit court granted summary disposition, finding that “pursuant to Borgess at 801, this Court must hold that the wife is liable for the medical necessities of her husband.” The court then entered judgment in favor of North Ottawa for the full $22,191.81, plus costs and interest.
The Court of Appeals affirmed, ruling that the mwpa is unconstitutional, and held Ms. Kieft liable for her husband’s medical necessities. 213 Mich App 518; 543 NW2d 37 (1995). We granted leave to appeal.
n
This appeal presents three separate but interrelated questions. First, does the mwpa (and a related provision in the Michigan Constitution) preclude North Ottawa from recovering from Ms. Kieft health care expenses incurred by her deceased husband? Second, if the provisions bar judgment against Ms. Kieft for her husband’s debts, are those provisions violative of the Equal Protection Clauses of the Michigan and federal constitutions? Finally, in light of equal protection considerations, does the common-law necessaries doctrine remain valid?
A
It is well known that the common law imposed significant economic disabilities on married women, and that property rights of women in Michigan were virtu ally nonexistent before the enactment of married women’s property acts. Burdeno v Amperse, 14 Mich 91 (1866), and Tong v Marvin, 15 Mich 60 (1866). At common law, a married woman, by her coverture, enjoyed no individual rights pertaining to the property she may have owned before the marriage or acquired during the marriage. The state of coverture was virtually a legal disability whereby a woman lost the capacity to contract, sue, or be sued individually. “In short, [coverture] stripped a married woman of virtually all means of self-support.” Bartrom v Adjustment Bureau, Inc, 618 NE2d 1, 3 (Ind, 1993).
In an apparent effort to place married women on a more equal footing with single women, the Michigan Legislature abrogated some of the harsh features imposed on women at common law by enacting a series of married women’s property acts. The acts included enlarging married women’s property and contractual rights, thereby removing some of the disabilities of coverture. In 1981, the Legislature enacted the most recent version of the mwpa, declaring that a wife’s separate property is not subject to her husband’s debts:
If a woman acquires real or personal property before marriage or becomes entitled to or acquires, after marriage, real or personal property through gift, grant, inheritance, devise, or other manner, that property is and shall remain the property of the woman and be a part of the woman’s estate. She may contract with respect to the property, sell, transfer, mortgage, convey, devise, or bequeath the property in the same manner and with the same effect as if she were unmarried. The property shall not be liable for the debts, obligations, or engagements of any other person, including the woman’s husband, except as provided in this act. [MCL 557.21(1); MSA 26.165(1)(1) (emphasis added).]
A later provision in the same act empowers a married woman to contract, but specifies that she may be sued separately on her contracts and that a husband is not liable upon any contract made by his wife “unless the husband acted as a surety, co-signor [sic], or guarantor on the contract.” MCL 557.24(2); MSA 26.165(4)(2).
Advancing notions of equity are also reflected in the last three constitutions adopted by the people of Michigan, with the most recent providing:
The disabilities of coverture as to property are abolished. The real and personal estate of every woman acquired before marriage and all real and personal property to which she may afterwards become entitled shall be and remain the estate and property of such woman, and shall not be liable for the debts, obligations or engagements of her husband, and may be dealt with and disposed of by her as if she were unmarried. Dower may be relinquished or conveyed as provided by law. [Const 1963, art 10, § 1 (emphasis added).][ ]
Although the foregoing provisions of the mwpa and the Michigan Constitution enlarged rights and removed disabilities imposed on married women at common law, the common-law necessaries doctrine, which essentially makes husbands liable for necessities that are provided to their wives, has remained unmodified in this state. See Pritchard v Bigger, 288 Mich 447, 450; 285 NW 17 (1939) (opinion of Bushnell, J.), In re LaFreniere’s Estate, 323 Mich 562, 564; 36 NW2d 147 (1949), Detroit v Eisele, 362 Mich 684, 686; 108 NW2d 763 (1961). The doctrine, which attempted to “obviate some of the victimization which coverture would otherwise have permitted,” has been characterized as providing a common-law “mechanism by which the duty of support could be enforced.” Bartrom, 618 NE2d 3.
Recently, creditors and husbands in a number of states, including Michigan, have asserted a constitutional equal protection challenge to the necessaries doctrine, demanding reexamination of the doctrine’s modem viability. As noted above, at common law, the doctrine imposed liability only on the husband for his family’s necessaries, while not recognizing a recipro cal liability on the part of the wife for the husband’s necessaries, with the primary purpose being to assure that dependent wives received support from neglectful husbands. Note, The unnecessary doctrine of necessaries, 82 Mich L R 1767 (1984). This gender-discriminatory application has more recently resulted in the abrogation of the doctrine in some states, Condore v Prince George’s Co, 289 Md 516; 425 A2d 1011 (1981); Schilling v Bedford Co Memorial Hosp, 225 Va 539; 303 SE2d 905 (1983), while other states have expanded the doctrine to apply equally or quasi-equally to both spouses. North Carolina Baptist Hosps v Harris, 319 NC 347; 354 SE2d 471 (1987); Jersey Shore Medical Center-Fitkin Hosp v Baum Estate, 84 NJ 137; 417 A2d 1003 (1980).
B
The common-law necessaries doctrine was squarely before our Court of Appeals in Borgess Medical Center, supra. In that case, a married man without assets died in 1983, and Borgess Medical Center sued his widow for the cost of medical services provided to him. After noting that the mwpa made it clear that a wife is not responsible for her husband’s debts, the Borgess Court suggested that it was time for a change in the law, referencing Jersey Shore Medical Center, supra, in which the New Jersey Supreme Court held both spouses liable for each other’s necessaries on the basis of the court’s view of marriage as a partnership. The Borgess Court stated:
In Jersey Shore Medical Center-Fitkin Hospital v Estate of Baum, 84 NJ 137; 417 A2d 1003 (1980), the New Jersey Supreme Court found that the New Jersey Married Woman’s Act, NJSA 37:2-15, if read literally, would bar liability for either spouse for the medical debts of the other.
While there is no Michigan case addressing this issue, several cases have emerged from our sister states within the last 25 years on this subject. In holding that a married woman is responsible for her husband’s medical necessities, the Jersey Shore Court relied upon Orr v Orr, 440 US 268; 99 S Ct 1102; 59 L Ed 2d 306 (1979) (where the United States Supreme Court held that a statute under which husbands, but not wives, might be ordered to pay alimony violated the equal protection clause of the Fourteenth Amendment). If it is true, as plaintiff asserts, that the New Jersey statute did not bar the court from finding the wife liable for her husband’s medical expenses, the New Jersey Supreme Court would not have found it necessary to rely upon constitutional considerations but would have merely changed the common law. [149 Mich App 798-800.]
From there, the Court embarked on a discussion that apparently served both to expand the common law to give wives the responsibility of paying the medical expenses of husbands, and effectively to hold the statute unconstitutional. However, the discussion of the constitutional question was, at best, indirect;
In Manatee Convalescent Center, Inc v McDonald, 392 So 2d 1356, 1357 (Fla App, 1980), the Second District Court of Appeals stated in part:
“The law is not static. It must keep pace with changes in our society, for the doctrine of stare decisis is not an iron mold which can never be changed.”
Hi * *
The Manatee Court concluded:
“Changing times demand reexamination of seemingly unchangeable legal dogma. Equality under law and even handed treatment of the sexes in the modem market place must also carry the burden of responsibility which goes with the benefits.” 392 So 2d 1358.
We find the law from our sister states to be persuasive and, therefore, we hold that a wife is liable for the medical necessaries of her husband. The question still remaining is what remedy should this Court provide. We do not think that it is equitable in this case to hold the defendant liable where both the plaintiff and the defendant have relied on prior law (when the expense was incurred) which we have changed today to keep pace with the changes in society.[ ] We adopt this principle prospectively so that it applies only to debts incurred after the date of this decision. [Borgess Medical Center, 149 Mich App 800-801.]
After reviewing the New Jersey case on which Borgess Medical Center primarily relied, it is evident that the Court was attempting to explain its expansion of the common law.
c
Relying on analysis from Borgess, the Court of Appeals in the present case held the mwpa to be unconstitutional and found defendant Barbara Kieft hable for her husband’s medical necessities. The anal ysis is brief. After summarizing the history of this case and noting the decision in Borgess, the majority stated:
Article 1, § 2 of the Michigan Constitution of 1963, as well as the Fourteenth Amendment of the United States Constitution provides for equal protection of the law. The Court in Borgess Medical Center, supra, concluded by necessary implication that the married women’s property act is unconstitutional. We agree. [214 Mich App 520.]
Beyond “[w]e agree,” the majority did not explain its conclusion that Borgess correctly found the statute to be unconstitutional.
m
In the present case, Ms. Kieft argues that the Borgess Court’s expansion of the necessaries doctrine imposing liability on wives was inappropriate because such an extension of the common law is specifically precluded by statute and the Michigan Constitution. We agree. The final sentence of MCL 557.21(1); MSA 26.165(1)(1) expressly indicates that such an obligation cannot be imposed:
If a woman acquires real or personal property before marriage or becomes entitled to or acquires, after marriage, real or personal property through gift, grant, inheritance, devise, or other manner, that property is and shall remain the property of the woman and be a part of the woman’s estate. She may contract with respect to the property, sell, transfer, mortgage, convey, devise, or bequeath the property in the same manner and with the same effect as if she were unmarried. The property shall not be liable for the debts, obligations, or engagements of any other person, including the woman’s husband, except as provided in this act. [Emphasis added.]
As spelled out above, the language in art 10, § 1 of the Michigan Constitution provides similar protection. We overrule Borgess to the extent that its expansion of the necessaries doctrine, imposing a corresponding obligation on wives, is inconsistent with both the mwpa and the Michigan Constitution.
IV
We now reach the principal question presented in this appeal, namely, whether art 10, § 1 of the Michigan Constitution and the final sentence of MCL 557.21(1); MSA 26.165(1)(1) are constitutional in light of the equal protection guarantees provided under both art 1, § 2 of the Michigan Constitution and the Fourteenth Amendment of the United States Constitution.
The United States Supreme Court has held that, for a gender-based classification to pass constitutional muster, it must serve an important governmental objective and be substantially related to the achievement of that objective. Califano v Webster, 430 US 313, 317; 97 S Ct 1192; 51 L Ed 2d 360 (1977), quoting Craig v Boren, 429 US 190, 197; 97 S Ct 451; 50 L Ed 2d 397 (1976). Employing this standard, the Supreme Court has overturned statutory gender classifications where the state’s purpose could be achieved by gender-neutral regulation. Orr v Orr, 440 US 268; 99 S Ct 1102; 59 L Ed 2d 306 (1979) (a state statute allowing alimony for wives, but not for husbands, was held invalid). However, the Court has also upheld a gender-discriminatory classification if necessary to compensate for past gender discrimination. Kahn v Shevin, 416 US 351; 94 S Ct 1734; 40 L Ed 2d 189 (1974) (a Florida statute granting widows, but not widowers, a property tax exemption was upheld because the state’s objective to cushion widows’ greater financial difficulties was held constitutionally valid).
We find that both art 10, § 1 of the Michigan Constitution and the mwpa, on their own, form a gender-neutral scheme under which each spouse is independent of the other. On their faces, the provisions state an unremarkable proposition: A married woman is not liable for a contract to which she is not a party. As indicated above, these provisions have the purpose and effect of relieving married women of the disabilities of coverture and place them on an equal footing with respect to contract and property rights with both unmarried women and men. Accordingly, we find that these provisions are designed to promote, rather than hinder, economic equality.
In light of the foregoing, we are satisfied that the mwpa and art 10, § 1 of the Michigan Constitution are not violative of the Equal Protection Clauses of the Michigan and federal constitutions. To the extent that it held otherwise, Borgess, supra, is overruled. As explained above, for historical reasons, there was greater need to legislate the economic equality of women, and, therefore, the absence of corresponding provisions (other than the provision protecting the property of married men, MCL 557.24[2]; MSA 26.165[4][2]) regarding the economic status of men is readily explainable on that basis.
However, the enforcement of the provisions under review today may cause a disparate effect on married men if a court were to apply the common-law necessaries doctrine that holds a husband liable for the necessary medical expenses of his wife. There is no question that, when applied to married men only, the necessaries doctrine qualifies as gender-based discrimination and offends the principle of equal protection of the law. Clearly, the underlying governmental objective of the common-law doctrine was to provide for a dependent wife who surrendered all her property rights to her husband at the time of marriage. Thus, the common-law necessaries doctrine imposing the support burden only on a husband could be justified in the past because it was substantially related to the important governmental objective of providing necessary support to dependent wives. However, the contemporary reality of women owning property, working outside the home, and otherwise contributing to their own economic support calls for the abrogation of this sex-discriminatory doctrine from early common law.
v
We find that the provisions of the mwpa and Michigan Constitution under review today preclude North Ottawa from recovering from Ms. Kieft health care expenses incurred by her deceased husband. We also find that these provisions do not violate the Equal Protection Clauses of the Michigan and federal constitutions. However, as traditionally formulated, the common-law necessaries doctrine violates equal protection principles, and we remedy this unconstitutionality by abrogating the doctrine, holding that neither a husband nor a wife is liable, absent express agreement, for necessaries supplied to the other. We reverse the decision of the Court of Appeals and remand this case to the circuit court for entry of judgment in favor of defendant.
Mallett, C.J., and Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred with Brickley, J.
The pertinent provision states:
If a woman acquires real or personal property before marriage or becomes entitled to or acquires, after marriage, real or personal property through gift, grant, inheritance, devise, or other manner, that property is and shall remain the property of the woman and be a part of the woman’s estate. She may contract with respect to the property, sell, transfer, mortgage, convey, devise, or bequeath the property in the same manner and with the same effect as if she were unmarried. The property shall not be liable for the debts, obligations, or engagements of any other person, including the woman’s husband, except as provided in this act. [MCL 557.21(1); MSA 26.165(1)(1) (emphasis added).]
After oral argument was ordered, briefs were submitted by defendant-appellant Barbara Kieft, and amicus curiae in support of Ms. Kieft’s position. The clerk advises that no brief was submitted by plaintiff-appellee North Ottawa.
Coverture is defined as “[t]he condition or state of a married woman. Sometimes [it is] used elliptically to describe the legal disability which formerly existed at common law from a state of coverture . . . .” Black’s Law Dictionary (6th ed), p 366.
See, generally, Salmon, Women and the Law of Property in Early America (Chapel Hill: Univ of North Carolina Press, 1986).
See 1855 PA 168, 1911 PA 196, 1917 PA 158, and 1981 PA 216. Although there is a paucity of published research addressing the motives behind the development of married women’s property acts, they seem to have been a product of the women’s suffrage movement. See Kanowitz, Women and the Law, p 40; Johnston, Sex and property: The common law tradition, the law school curriculum, and developments toward equality, 47 NYU L R 1033, 1062 (1972).
In the past, there has been some question whether the mwpa remains viable in light of the constitutional language which provides that “[t]he disabilities of coverture ... are abolished.” See City Finance Co v Kloostra, 47 Mich App 276; 209 NW2d 498 (1973), and Michigan Nat’l Leasing Corp v Cardillo, 103 Mich App 427; 302 NW2d 888 (1981). We granted leave to appeal this question in Cardillo, but later granted reconsideration, saying, “It appearing that this case is not jurisprudentially significant in view of the enactment of 198[1] PA 216, the [grant] order is vacated and leave to appeal is denied.” 412 Mich 857, 858 (1982). We find art 10, § 1 of the constitution to be a clear expression that all the disabilities of coverture are abolished. Our examination of the remaining language in art 10, § 1 leads us to the conclusion that the Legislature retains the ability to enact statutory measures directed toward ensuring the abrogation of those disabilities of coverture. Such statutes are subject, of course, to a constitutional analysis under other provisions, such as equal protection.
Medically necessary expenses have been characterized as “necessaries” within the spirit of the doctrine. Eisele, supra at 686.
With its reference to “prior law . . . which we have changed today to keep pace with the changes in society,” the Court of Appeals implied that it was changing the common law. However, in the context of the whole opinion, it appears that the Court not only expanded the necessaries doctrine, but also found the statute to be unconstitutional in part.
Two years later, our Court of Appeals in Bronson Hosp, supra, although acknowledging the Borgess holding, held that the defendant wife did not have to pay medical expenses incurred by her husband because the expenses were incurred before the effective date of Borgess. The Bronson panel criticized the Borgess holding, stating that “[a]lthough a change in the common law is needed, this is neither the time nor the place. This is an issue for the Legislature and not the judiciary.” Id. at 732. Although we agree that the necessaries doctrine is an issue better addressed by the Legislature, see n 14, we note that it is unquestioned that the judiciary has the power to determine whether a statute violates the constitution. Likewise, it is axiomatic that our courts have the constitutional authority to change the common law in the proper case. Placek v Sterling Heights, 405 Mich 638, 656-657; 275 NW2d 511 (1979).
Judge Markey added a short concurrence:
This issue was squarely addressed by the holding in Borgess Medical Center v Smith, 149 Mich App 796, 801; 386 NW2d 684 (1986).
Accordingly, I concur in the result only. [214 Mich App 520.]
Our state constitution provides equal protection guarantees similar to those contained in the United States Constitution. Doe v Dep’t of Social Services, 439 Mich 650, 672; 487 NW2d 166 (1992).
We find support for our determination on this point in the House Legislative Analysis of 1981 PA 216, which makes clear that the intent of the bill was to harmonize and update earlier versions of the mwpa:
Ideally, individuals of either gender should have equal legal rights and responsibilities, regardless of marital status. However, since the legislature cannot pass a blanket statute to abolish common law, some people say that the most effective way to correct the present inequalities would be to replace the Married Women’s Property Acts with a more comprehensive statute which would assure married women of the same legal status as men and unmarried women. [House Legislative Analysis, HB 4098, May 12, 1981, P 1J
Although the mwpa contains a provision protecting a husband from liability for contracts separately entered into by his wife, MCL 557.24(2); MSA 26.165(4)(2), we believe that language is not sufficient to abrogate the common-law doctrine of necessaries. Rather, we find that provision contemplates the exemption of liability for the voluntary contracts of a spouse and, therefore, does not pertain to the necessaries doctrine, which creates a unilateral obligation of support directly between the husband and the third party who has provided services.
In light of our determination that the common-law necessaries doctrine is controlled by MCL 557.21(1); MSA 26.165(1)(1) and Const 1963, art 10, § 1, we cannot remedy the doctrine’s equal protection violation by extending liability to both wives and husbands. We therefore abolish the doctrine altogether and await the judgment of the Legislature regarding which is the better policy for the state to adopt. We recognize that virtually all the necessaries doctrine cases will concern hospitals seeking to collect debts resulting from medical services rendered to spouses, often during a last illness. The public policy issues surrounding these circumstances are complex, and we think that such issues are best taken up by the Legislature in family-expense statutes, creditors’ rights laws, or even comprehensive health care legislation. See Connor v Southwest Florida Regional Medical Center, 668 So 2d 175, 176 (Fla, 1995); Condore, supra at 531-532; Schilling, supra at 543-544. | [
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Graves, J.
This case comes up by appeal from a decree dismissing an information which was filed by the attorney general by direction of the governor.
• The information was based upon paragraphs in the 4th and 8th clauses of the last will of the late Ambrose L. Soule. The 8th clause is as follows: “ Eighth, I do further order and direct my said executors to set apart a sum not exceeding ten thousand dollars, to be derived from the sale of my real and personal estate sold, and that may remain unsold, or otherwise, after having first provided for or paid over to each one of my said children the snm of five thousand dollars, as hereinafter directed; and after paying and providing for all the other orders, directions and bequests of this will, for the establishment of a school at Montrose aforesaid., for the education of children, to be expended according to the direction of my said executors.”
The passage referred to in the 4th clause is found among the enumeration of charges upon a particular residue of the estate, and it merely mentions the sum for “establishing a school for the education of children,” as directed in the eighth clause.
The events contemplated by the will as precedent to the. establishment of the school having apparently occurred, and the executors forbearing or declining as yet to take upon themselves the special trust connected with the bequest in question, this suit was instituted and has been prosecuted to compel them to assume the trust, and devise and execute a plan for the establishment of the school, or, by way of alternative, to cast upon the court the duty to maintain and carry out the trust, and according to the doctrine of approximate execution, if that should be found necessary.
The discussion at the hearing took a wide range, and the general subject of equity jurisdiction in charity cases, and especially the influence of the statute of charitable uses, of the 43d Eliz., on that jurisdiction, received considerable attention.
For the informant it was strenuously contended that the bequest of Mr. Soule was to charity, and was one which was subject to be enforced and carried out at the suit of the attorney general in the circuit court in chancery. This general position was earnestly controverted by the defendants, on several grounds.
The opinion which has been formed of the case renders it quite unnecessary to attempt to trace the growth, modifications or extent of equity jurisdiction over gifts to charity, or to inquire how far kingly prerogative may be said to have become connected or intermingled with the-strictly judicial authority relating to charities. It is eminently necessary that we do not ignore the precise attitude of the case actually presented. The cause before us is not one in which trustees are seeking the advice or assistance-of the court, nor one in which heirs are endeavoring to-test the validity or extent of a gift asserted against them as one to charity. The controversy is not one between private parties for the determination of private rights. The suit is not in the interest of the heirs or of the executors,but is a purely adverse proceeding by the state, through the attorney general.
Now, the state, no less than other prosecutors, must appear on the face of the record to be entitled to prosecute, and whenever this does not appear, the proceeding must fail in consequence of the irrelation of the plaintiff to the subject of the action.
The fundamental ground on which the state is permitted to sue in these cases is, that there has arisen a public right, and of a nature which makes it the duty of the state, through its law officer, to take action for its maintenance and enforcement. And the proceeding before us necessarily assumes the existence of a public right capable of being asserted and carried out in the court of chancery,, in a suit by the attorney general, wholly adverse to all private parties and all private interests.
The counsel for the state were understood as specially contending that the gift to establish a school was a gift for a charitable purpose which inured as a public right, subject to be protected and coerced by public authority.
Was this bequest of Mr. Soule of such a character as to warrant this assumption, and authorize this public intervention ?
Unless the gift was definitely to a charity such as equity recognizes, and one more or less public or general, there is no right in the public to serve as a ground for intervention in this way by the law officer of the state.
The case of The Attorney General on relation of the Inhabitants of Glapham v. Sewer, decided in 1700 and reported in 2 Vernon, 387, will tend to illustrate this point. There a school house had been erected by voluntary contribution of the inhabitants, on the waste of the lord of the manor, Mr. Atkins, who gave the site to a number of the inhabitants, and their heirs in trust, and to the intent that the inhabitants of Ciapham might forever have a school as the gift of Richard Atkins. Upon a dispute between the inhabitants and the surviving trustees as to which should nominate the school-master, the attorney general proceeded by information. The lord keeper said :• “This not being a free school, is not a charity within- the provisions of the statute of Queen Elizabeth, and consequently the inhabitants have not a right to sue in the name of the attorney general. If the lord of a manor should erect a mill and convey it to trustees to the intent the inhabitants might have the convenience of grinding there, the inhabitants should not be admitted to sue here in Mr. Attorney General’s name.”
■ As already intimated, it is essential that it should appear that the gift was definitely to charity, and definitely to public charity.
When the property or fund is so given that it may or may not be used for charity, or may or may not be used for a charitable object of a public character, without violating the directions of the will, the case is not one for enforcing the gift as a charity, in a suit by the attorney general for the public. ,
“The question is not,” says Sir William Grant, in Morice v. Bishop of Durham, 9 Ves., 399, “whether the trustee may not apply it upon purposes wholly charitable, but whether he is bound so to apply it.” And in James v. Allen, 3 Mer., 17, he says further: “If the property might, consistently with the will, be applied to other than strictly charitable purposes, the trust is too indefinite for the court to execute.” — See also Ellis v. Selby, 1 Myl. & C., 286.
If the ambiguity involves the quality of the charity as public or private, the same reasons, and principles must apply, where the right to maintain the suit depends upon its being public, and if the fund may consistently with the will be applied to a purpose not public, the attorney general cannot interpose to compel a public application.
Recurring to the terms of Mr. Soule’s will, it will be-noticed that he directs the setting apart of ten thousand dollars to be expended according to the directions of his executors for the establishment of a school at Montrose for the education of children. The word, “establish,” in the connection in which it is used, is quite indefinite. It is susceptible of various senses. The testator may have used it to denote the employment of a teacher or teachers, or the organization of an institution, or the erection of a building, or part or all of them. — Attorney General v. Hull, 15 E. L. & Eq., 182. But whatever plan, if any, was in the testator’s mind, it is plain that he did not explain it in his will, nor did he bind his executors to any specific scheme. He did not indicate the character of the school, as to the matter to be taught, the system of instruction, the description of the pupils, the number to be admitted, or the qualification, or number of instructors. The will is wholly silent as to how the school should be maintained, and as to whether it should be public or private. Perhaps an inference may be drawn from the expressions used, that the whole bequest was intended to be expended at once and for all, in estallisMng the school, and so leaving nothing as a fund to assist its continuance. And if such was the design, it was contemplated, most likely, that when established it should be self-sustaining, and not a free school.
We have, then, the gift of a sum of money to be expended by trustees according to their unlimited discretion, in establishing a school for children at a specified place, and we find no provision looking to the exercise of this discretion by the court, or anybody else. The executors are not bound by the will to erect any particular kind of school. Consistently with the will they may in their discretion erect one of an exclusive character, and in no just sense public. And I see nothing in the words -of the testator to preclude a school which, according to the authorities, could not be recognized as a charity at all. — Duke Char. Us., 128.
On the whole, it appears to me that Mr. Soule’s bequest is uncertain and indefinite in two ways. In the first place, the bequest is so constructed as not to bind the trustees to ■an application of the fund to public charity, or perhaps .even to charity at all, as recognized in courts of equity. ■On the contrary, they appear to be vested with a discretion broad enough to permit them to apply the fund to a private school, and, perhaps, to a school not within the class •of charities. In the second place, if it were found to be for a public charitable object, the gift would still be wholly uncertain and indefinite, in plan and detail, and in terms completely dependent upon the discretion of the exe■cutors for the contrivance and development of the end aimed at. How the second ground of difficulty might serve to affect the action of the court, if the first was not in the way, I do not pause to consider.
The first appears to me to present insuperable objections to this proceeding by the state, and to afford sufficient reasons for affirming the decree of the court below. I am also of opinion that the state ought to pay the taxable •costs of the defendants in both courts. — Comp. L., § 7407.
The other Justices concurred. | [
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] |
Graves, Ch. J.
This was an ejectment by Starkweather against the defendants in error, commenced in May, 18G6, to recover a parcel of land in Royalton, Berrien county, described in the declaration as part of section one, in township five south, of range nineteen west, and bounded as follows: Beginning at the quarter section post between said section one and section two; thence running due east forty chains and to the middle of said section one; thence due north until the line intersects the river St. Joseph; thence following said river down stream, on the banks thereof, to a point from which a due west line to said line between section one and two will enclose eighty acres by actual measurement.
The court heard the cause without a jury in December, 1870, and having* been requested thereto by the respective parties, made a special finding, which was filed February 6th, 1872. By this finding it appears that all the defendants, except the Martins, suffered default. Judgment was given against the plaintiff, and he having taken exceptions to rulings at the trial, those exceptions were settled, and he now asks a revision of the proceedings on writ of error.
Although it is made a point by the plaintiff, that a feature which appeared in the defendant’s title precluded them from asserting or maintaining that they were bona fide purchasers without notice as against him, as owner of the title he counted on, it would seem that the cause really turned on the exclusion of certain evidence he offered, and the points raised by the exclusion of that evidence are therefore regarded as the first to be examined. If we come to an opinion in his favor upon them, the other question becomes unimportant in the present attitude of the cause.
There was no dispute about the origin of the title, and the judge found upon the evidence, which was not contro-verted, that the land was sold by the United States to one Edward Smith, on the 6th day of October, Í830, and that Smith afterwards received his patent, dated April 1,1831.
Each side claimed to deduce title from the patentee; the plaintiff contending for a chain of title to himself, the first link of which was a warranty deed from Edward Smith to James Sherman, dated October 7, 1830, recorded in Oass county, October 10, 1830, and in Berrien county, February-15, 1860; and the second link of which was a warranty deed from James Sherman to Benjamin Sherman, dated October 3, 1836, and recorded in Berrien county, April 22, 1837.
The defendants contended that the patentee quit-claimed to Timothy S. Smith, on the 6th day of August, 1849, that this deed was recorded in Berrien county, January 6, 1857; that Timothy S. Smith by James B. Sutherland, his attorney in fact, quit-claimed to Herrick E. Martin, one of the defendants, by deed dated April 9, 1858, and recorded in Berrien county the day after.
The plaintiff produced no original deeds, and sought to prove his chain of title from the record. He was allowed to put in evidence the Berrien record of the deed of 1830, from the patentee to James Sherman, and the record of the deed from James Sherman to Benjamin Sherman, but the Cass county record of the deed of 1830 was excluded on the defendants’ objections hereinafter noticed.
The defendants were allowed to give in evidence the original quit-claim deed from the patentee to Timothy S.. Smith, and the certificate of its record in Berrien county, January 6, 1857; the original quit-claim deed from Timothy S. Smith by his attorney Sutherland, to the defendant Herrick E. Martin, and the certificate of its record in Berrien county, April 10, 1858, and the record of a power of attorney from Timothy S. Smith to Sutherland.
. By a comparison of dates it will be observed that the deed from the patentee in the plaintiff’s chain of title was nearly twenty years earlier than the corresponding deed in the-defendants’ chain, but that the record made of it inBerrien county, which was the record admitted in evidence,, was about three years later than the record of the deed from the patentee in the defendants’ chain of title.
It is obvious from this summary, that the Cass county record of the deed from Smith to Sherman, and which record was made, as before noticed, in October, 1830, and nearly twenty years before the deed from Smith to Smith - was given, assumed importance.
The plaintiff produced a certified copy of the entry found in the records of Cass county, of the supposed deed from-Smith to Sherman, and its certificates, and offered it in evidence. At the same time the record itself was exhibited. A copy of the writings as they appeared in the record book is set forth in the bill of exceptions, and it speaks the language of a formal warranty deed made October 7, 1830, by Edward Smith, of Berrien county, in the territory of Michigan, to James Sherman, jr., of Cayuga county, in the state of New York, and conveying in fee the premises in the declaration, for one hundred dollars. Immediately following the covenants, appear the conclusion, subscription, attestation, a note marking a correction, and the certificate of acknowledgment, in these terms:.
“In -witness whereof the party of the first part bath hereunto set his hand and seal, the day and year first above-written.
“Sealed and delivered, in presence of)
(the word, ‘junior’ was interlined >• Edward Smith. before execution, also one erased),)
“Robert Clark, Benj. O. Hoyt.”
“Territory of Michigan, County of Monroe,
“Personally came before me, one of the justices of the-peace within and for tbe county of Monroe aforesaid, the within named Edward Smith, known to me to be the person described in and who executed the within deed; and acknowledged that he signed, sealed and delivered the same as his free act and deed, and for the uses and purposes therein mentioned. All which I certify according to the statute in such case made and provided.
“In testimony whereof I have hereunto set my hand and-seal, this seventh day of October, in the year of our Lord* one thousand eight hundred and thirty, and the fifty-fifth year of the independence of the United States of America.
“ Peter P. Perry, [ l. s. ] Justice of the Peace!
An inspection of this entry did not disclose any thing upon it of the similitude or sign of a seal of the grantor* or the trace of any sign, device or statement of the register, to denote specifically that the original bore a seal. The defendants objected to the evidence on this ground, and the court excluded it.
The precise points thus presented have never been decided in this state, and their importance will be readily recognized by all who are acquainted with the manner in which our early records in many counties- were made up* and have been handled and defaced in the course of years. Many titles, undoubtedly, depend upon similar questions. The real points to be investigated were neither mentioned-nor considered in Buell v. Irwin, Mich., 145, and none of the Michigan cases referred to have any direct bearing.' The subject is not free from difficulty. The decisions cited from other states and from England, and directed to resembling questions, are inharmonious. Moreover, the case is one peculiarly of local law, and among all the authorities cited, no one appears to have comprehended the same material data which are given here.
We have an entry as the record of a deed, made by á register of probate more than forty years ago, an entry made shortly after the organization of the county, when the country was new, and when, in some districts, there was great looseness, carelessness and irregularity in the making and care of records. The entry was certainly considered by the officer as authorized, and was as certainly intended t'o be a regular and legal record of a deed. The instrument related to premises comprehended by the territorial jurisdiction of the recording officer. It was his duty to record it if it was sealed. It was contrary to his duty to record it if it was not sealed. In this, counsel are agreed. They differ, however, in regard to the mode in which his duty required him to make up the record.
The defendants’ Counsel contends that he was required to make his entry so far correspond with the original as to denote its nature as a deed, a sealed instrument,- a paper entitled to go on record; that to make a record of-a deed it was essential to indicate upon the book, by some sign, device or statement of the register, that the original had a seal, and that an entry containing nothing of the kind, or any trace of any thing of the kind, does not purport to be a récord, and does not tend to show an original sealed conveyance.
The plaintiff’s counsel insist that the circumstances require the presumption that the original was so sealed as to satisfy all legal necessity, and they maintain that it was-not incumbent on the register to go further than to transcribe the written and printed matter; that it was not required of him to copy, or attempt to copy, or put upon or .affix to his book an image of whatever the grantor may have treated as his seal, or to suggest by expressions or tokens of his own, that the paper was sealed. They contend that any thing which was allowed by law to be a. constituent or appendage of the original, and which from its nature was incapable of being specifically ear-marked upon' the record, was considered as an unrecordable badge of the original; and that any mere statement, suggestion or symbol of the register, to denote a sealing, and not answering to the character of a substantial copy, oleren intended to stand as a copy, would have been ip truth nothing more than an unauthorized and unofficial certificate of the officer based on his opinion, and wholly destitute of legal value.
It is not to be denied -that these opposing positions, and the arguments made in their support, possess- a good deal of force. The question to be considered naturally suggests tbe propriety of bringing into view the contemporary regulations for sealing and recording deeds, and their practical bearing upon conveyancing and recording. For the purpose of examining this case the two laws should be regarded as in pari materia.
Under the recording law of the territory in force in 1830, applicable to lands outside of Detroit, a deed, signed and sealed by the grantor, and signed by two or more witnesses, and acknowledged by the grantor, or proved by one or more of the subscribing witnesses, and having endorsed upon it a certificate of such acknowledgment or proof signed by the person taking it, being one of the officers mentioned in the statute, was entitled to be “recorded in the office of the register of probate for the county;” and every deed was required to be “recorded in the order.and as of the time when the same should be delivered to any register for that purpose, and to be considered as recorded from the time of such delivery.” The register vas- enjoined to. make an entry in the margin of the record, of the day, month, and year, and the time of the day when recorded,. and to endorse and sign a certificate on such deed, of the particular time when, and the book and page in which it was recorded.
While the law was thus very precise in delineating the course and duty of the register touching certain particulars in the matter of recording, it will not escape notice that ' in regard to other things it was very unprecise and at large, and that it did not in direct and express terms prescribe any method of transcription, or define what he should do to give his work the stamp of a complete and legal record. The instrument being seen to have been regularly executed, witnessed and authenticated, was then to be recorded.
The statute did not in terms require the certificates of acknowledgment or proof to be recorded. It did not specify that the spelling or punctuation should be followed, or in what way, if at all, the seal should be represented. The duty of making the entry in such form as to import the true original was expressed by the phrase, “shall be recorded.” This undoubtedly contemplated that the original document, with all its written testimonial adjuncts, should be substantially copied. But it did not contemplate that in making the copy, incorrect spelling not varying the sense, or interlineations, or blots, must be counterfeited, or that any attempt should be made to present a fac simile of any feature.
In regard to this there appears to be no controversy. Indeed, the defendants’ counsel, while insisting that the ■ entry, in order to amount to a record and afford evidence that the original was sealed, must bear some mark, device •or statement of the register upon it evincive of a seal, yet conceded that it was not essential that it should be in any special definite form, to the exclusion of every other. He contended that the seal should be represented in some intelligible way, and admitted that the word, “seal” or the letters, “ L. S. ” would suffice. This admission implies that it was not encumbent on the register to try to represent the specific seal, but only that his record should import the fact that there was a seal.
We may now notice the law which prevailed here on the subject of sealing, when the deed was made and recorded in 1830; and we have no occasion to explore the curious learning connected with the introduction, use and former utility of private seals. Great changes have taken place, and the main, if not all, the substantial reasons which once existed for the practice of private sealing have disappeared. Certainly we look for them in vain here. Some remnants of the ancient law still linger in our code, through the indulgence of legislation, and they mainly seem to perpetuate useless distinctions and engender perplexing and unprofitable questions.
The law which prevailed in 1830 is found in the act of June 10, 1828. It contained two sections. The first enacted “that any instrument to which the person making the same shall affix any device by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed.” The second section applied the rule to all instruments executed after the 31st of December, 1827. — Rev. Stat. 1888, p. 516. A recent compilation contains what purports to have been a law passed, or rather adopted, by the governor and judges in 1822 in the same terms as the first section of the act of 1828.— Territorial Laws, Vol. 1, p. 272.
Assuming that this law of 1828 contemplated that the “device affixed” should be something visibly importing that it was meant for a seal, this instrument of 1830 may have been lawfully sealed with any such “device.” The law chose to leave it to the fancy or caprice of the grantor, and then provided that an instrument thus constituted might be “recorded.” Admitting that it was the register’s duty, whatever the “device” was, to set some ■special sign of its existence upon-the record, was the circumstance that the entry, on inspection, did not disclose the trace of any such sign, sufficient to warrant the opinion that the the original was unsealed, and to justify the rejection of the evidence?
.. That there was a genuine original, sealed or unsealed, seems not to be questioned, or to admit of question. The entry appeared to have been made by the proper officer, and in, the appropriate place. It had stood, at the time of the trial, forty years, and nearly twenty when the patentee made the conflicting grant. The conclusion, and attestation clause, and the certificate of acknowledgment, all speak of the instrument as under seal. Unless it was seeled they were untrue. It was contrary to the duty of the justice to take the acknowledgment unless it was sealed. It was contrary to the duty of the register to record it unless it was sealed. It was the common course, the lawful course, to seal conveyances of real estate. These facts and incidents taken together afford a very strong presumption that the paper was sealed, and that the proceeding was ■meant, to have effect, and not be useless.
On the other hand, we have the proposition that if the original was sealed, it was incumbent on the register to signify the fact in some special form; and on this proposition we have the argument that the absence of such an indication is a fatal defect in the record, whether the original Was sealed or not, and at the same time affords an inference that the original was unsealed, and hence not entitled to be recorded.
Conceding that in strictness it was the duty of the register to put something of his own upon the record to •indicate that the paper he recorded was sealed, the facts in the case will not allow his omission to do so, to overcome the evidence that the paper was sealed, or to do away with the record itself. When we reflect upon the state of the law as to sealing and recording in 1830, it is very easy to perceive that a register may have deemed it quite unimportant that he should make any special device of his own on, the record. The omission under the circumstances is not entitled to the grave significance which the defendants ascribe to it.
Upon full consideration we think the evidence derived from facts, inferences and presumptions, supports the opinion that the original instrument was sealed, and that enough appeared upon the face of the registry, when rightly viewed» to denote the fact. This being so, the omission of the register to attach some special mark or statement of his own to signify the same idea was at the most a mere clerical misprision not sufficient to detract from the validity or force of the entry as a record.
The rejection of the evidence, then, of the Cass record, was incorrect, and as the finding proceeded on a state of facts wholly different from the case which would have been, presented if this evidence had been admitted, we have no finding in the cause, upon the proofs which ought to have been allowed and considered. As this court can not make a new finding, the case must be retried.
The points decided in favor of the plaintiff are not now open to review, and those ruled against him, which have not been considered, are either unimportant or will not be likely to come up again.
The judgment and finding should be set aside, with costs, and a new trial ordered.
Campbell and Cooley, JJ., concurred.
Christiancy, J., did not sit in this case. | [
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Weaver, J.
The issue in this case is whether the Department of Mental Health may seek reimbursement for the cost of care it provided to Barbara Hertsberg from a trust established for her benefit. The determinative question is who should be considered the settlor of the trust — Barbara Hertsberg, or her mother, Edith Hertsberg, who funded the trust pursuant to a court order. The probate court concluded that Barbara was the settlor, and that the department could seek reimbursement from the trust. The Court of Appeals held that Edith was the settlor, and that the trust could not be reached. We reverse, and reinstate the order of the probate court.
i
Barbara Hertsberg is a developmentally disabled person. In 1983, her guardian filed a complaint in Wayne Circuit Court on her behalf, alleging that Edith Hertsberg, Barbara’s now-deceased mother, neglected Barbara and failed to provide for her with the Social Security benefits Edith Hertsberg had received on behalf of Barbara. A consent judgment was entered on January 17, 1986. Under its terms, Edith Hertsberg was ordered to fund a trust for the benefit of Barbara with $150,000. On January 23, 1986, a discretionary trust with a spendthrift provision was established pursuant to the consent judgment. The trust agreement named Edith Hertsberg as the grantor and Elaine Levy and Edie Colman as co-trustees. Upon the death of Barbara, the trust principal was to be distributed to several of her relatives.
As a recipient of mental health services provided by the department, Barbara was subject to a financial liability determination. In May of 1994, the department determined that the trust assets were available to Barbara to reimburse the state for $90,800 in past services provided, and for $729 a month for continued care. The trustee filed an administrative appeal of the department’s financial liability determination, but this appeal was adjourned by the consent of the parties, who agreed that the matter should be determined by a court.
The probate court noted that discretionary trusts can protect assets from creditors when the trust settlor is a third party and the beneficiary has no absolute interest in the trust. However, relying on In re Johannes Trust, 191 Mich App 514; 479 NW2d 25 (1991), the court said that where the settlor of the trust is also the beneficiary, the assets are reachable by creditors. The court agreed with the department’s contention that Barbara Hertsberg was the true settlor of the trust because she was the plaintiff in the lawsuit from which the trust arose.
The Court of Appeals reversed. It also focused on In re Johannes Trust, supra. The Court said that in light of Johannes, the probate court had erred in determining that Barbara Hertsberg was the settlor of the trust. Edith Hertsberg created the trust, and furnished the funds for it. Barbara contributed none of the trust assets.
The department appealed and we granted leave.
n
A discretionary trust provides that a “trustee may pay to the beneficiary so much of the income or principal as he in his discretion determines . . . .” Miller v Dep’t of Mental Health, 432 Mich 426, 429; 442 NW2d 617 (1989). Normally, a discretionary trust cannot be reached by creditors because the beneficiary has no ascertainable interest in the assets. Id., p 431. However, where the beneficiary is also the settlor of the trust, we agree with the Court of Appeals in In re Johannes Trust, supra, that creditors can reach the assets of the trust.
Like the Johannes panel, we find persuasive and adopt Restatement Trusts, 2d, § 156. Section 156 states:
(1) Where a person creates for his own benefit a trust with a provision restraining the voluntary or involuntary transfer of his interest, his transferee or creditors can reach his interest.
(2) Where a person creates for his own benefit a trust for support or a discretionary trust, his transferee or creditors can reach the maximum amount which the trustee under the terms of the trust could pay to him or apply for his benefit. [Id., p 326.]
As recognized by the Court of Appeals in In re Johannes Trust, supra, it would be contrary to public policy to allow a person to shelter assets from creditors in a trust of which he is the beneficiary. Furthermore, to allow an individual to so shelter assets would defeat the express requirement of the Mental Health Code that individuals reimburse the state for services rendered to them by the department. MCL 330.1804; MSA 14.800(804). Thus, the dispositive question in this case is whether Barbara Hertsberg was the settlor of the trust.
We find that a settlor is one who provides consideration for a trust. See 191 Mich App 520; Ronney v Dep’t of Social Services, 210 Mich App 312, 317; 532 NW2d 910 (1995); Forsyth v Rowe, 226 Conn 818, 826; 629 A2d 379 (1993); Guaranty Trust Co of New York v New York Trust Co, 297 NY 45, 50-51; 74 NE2d 232 (1947). In In re Johannes Trust, supra, the petitioner, as guardian of her disabled sister, established a discretionary trust for the sister’s benefit from assets that the sister had inherited. The Johannes panel determined that, insofar as the trust was funded with assets provided by petitioner’s disabled sister, she would be considered a settlor of the trust, and the department could reach those assets. It held that to the extent the disabled sister funded the trust, she was the settlor and liable to the department for services provided. Id.
In concluding that Barbara was not the settlor of the trust, the Court of Appeals reasoned:
When reviewing a trust, the intent of the settlor should be carried out as much as possible and the settlor’s intent can be gained from the trust document. In re Maloney Trust, 423 Mich 632, 639-640 (Cavanagh, J., with Williams, C.J., and Levin, J., concurring), 641 (Ryan, J., with Williams, C.J., and Levin, J., concurring); 377 NW2d 791 (1985). Pursuant to the trust agreement, Edith Hertsberg created the trust by trans ferring $150,000 to the trustees. The transfer of the money directly to the trustees indicated that Edith Hertsberg never intended for Barbara to receive the money. Because the $150,000 was never transferred to Barbara, she did not contribute any of her assets to the creation of the trust. See Johannes Trust, supra at 520-521. Therefore, the trial court erred when it concluded that Barbara Hertsberg was a settlor of the trust. [Unpublished opinion per curiam, issued July 5, 1996 (Docket No. 181189), slip op, p 3.]
Although it is true that the trust agreement recites that Edith Hertsberg is the grantor of the trust, and that she transferred to the trustees the assets that funded the trust, the mechanics of the transaction are not controlling. It is the identity, not the intent, of the settlor that is at issue. The fact that Barbara Hertsberg, through her guardian, agreed that the funds would be paid into the trust, rather than directly to her, does not alter the fact that she had control over the disposition of the property.
We find the Court of Appeals sole reliance on Edith’s intent as expressed within the trust agreement erroneous in this case, given that the motivation for the establishment of the trust is expressed within the consent judgment. The consent judgment states:
That Edith Hertsberg shall forthwith fund a certain trust in favor of Barbara J. Hertsberg (a copy of which is attached hereto as Exhibit A) with $150,000.00; further that this requirement is binding upon her heirs, assigns, and personal representative.
Edith Hertsberg created the trust in exchange for the settlement of an action filed against her on Barbara Hertsberg’s behalf. The cause of action was a form of property belonging to Barbara Hertsberg, and the proceeds of that settlement formed the consideration for the trust. In an analogous and persuasive decision, the Connecticut Supreme Court held that a trust funded by the settlement of the beneficiary’s tort claim was a medicaid qualifying trust because the trust’s assets were attributable to the beneficiary even though the settlement was consummated by the beneficiary’s father. Forsyth v Rowe, supra, p 826.
Therefore, we hold that Barbara Hertsberg was the settlor of the trust.
Accordingly, we reverse the judgment of the Court of Appeals and reinstate the October 3, 1994, order of the probate court.
Mallett, C.J., and Brickley, Boyle, and Taylor JJ., concurred with Weaver, J.
MCL 330.1804; MSA 14.800(804) stated:
The individual, the spouse, and the parents, as these terms are defined in section 800, shall be financially liable for services provided to the individual by the department.
Under the version of MCL 330.1818(c); MSA 14.800(818)(c) applicable at the time of trial in this case, an individual’s ability to pay was determined from
consideration of his or her financial situation. That consideration shall include, but need not be limited to, the following factors: income, expenses, insurance proceeds, and number and condition of dependents, assets, and liabilities.
These provisions were amended by 1995 PA 290. The revisions would not affect our holding in this case.
The Johannes panel concluded that the record did not explain who had legal claim to the disabled sister’s share.
As the department suggests, the situation is analogous to an employer agreeing with an employee to pay wages into the employee’s trust. The wages, like the settlement award, belong to the employee, and it is the employee’s decision regarding the manner in which payment is to be made.
42 USC 1396a(k) dealt with Medicaid qualifying trusts. This statute was repealed in 1993 under the Omnibus Budget Reconciliation Act. | [
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] |
Mat,lett, C.J.
This Handicappers’ Civil Rights Act suit involves the question whether, in considering if a person has a condition that meets the act’s definition of “handicap,” the trier of fact should assess the individual without the benefit of medication or other mitigating measures, or if it should assess the individual’s condition as it presently exists with the benefit of such measures. The act requires that to qualify as having a “handicap” for purposes of coming within the act’s protection, an individual must have a determinable physical or mental characteristic that substantially limits a major life activity. Plaintiff, who underwent a liver transplant and is dependent on antirejection medication, argues that the trial court erred in refusing to give the jury a special instruction to the effect that it should consider his condition without the benefit of his antirejection medication. Because we disagree and find that the requested instruction contravenes the plain language of the statute, we affirm the Court of Appeals affirmance of the jury verdict for the defendant. We also affirm the Court of Appeals holding that the trial court did not err in admitting evidence of the plaintiff’s alcoholism and of the defendant’s economic condition.
i
FACTS AND PROCEEDINGS
The plaintiff began working as a salesperson for defendant Xermac, a supplier of sophisticated electronic machinery, in the fall of 1985. His duties also included demonstrating and installing machinery. Plaintiff is an alcoholic, although his alcoholism apparently had little or no effect on his ability to perform his job functions. His alcoholism did, however, have an effect on his liver. In 1988, plaintiff learned that he had cirrhosis of the liver and underwent a lifesaving liver transplant.
He returned to his job in December, 1989, after a six-month medical leave of absence. On January 29, 1990, he signed a sales agreement, in which he agreed to a decrease in his sales territory from a multistate region to an exclusive right for sales in Michigan, an increase in his commission rate for sales, a car allowance, and sales quotas. While he had periodically signed similar agreements while with Xermac, this was apparently the first time the company had included sales quotas. When he signed the document, the plaintiff added his own comment indicating his concern about meeting the sales quotas. The plaintiff alleged at trial that his supervisors also began to criticize his work for the first time during the period after his return. In June, 1990, the defendant terminated the plaintiff’s employment, citing his failure to meet the sales quotas delineated in the January, 1990, agreement.
The plaintiff brought this employment discrimination suit and later added a claim for wrongful discharge pursuant to Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). The defendant moved for summary disposition on both claims. The trial court, finding that plaintiff was an employee at will, dismissed the Toussaint claim. The court allowed the discrimination claim to go forward, finding that there were material issues of fact regarding whether the plaintiff came within the protection of the Handicappers’ Civil Rights Act.
The plaintiff’s theory at trial was that the defendant employer terminated him in violation of the hcra to avoid continued health insurance premium increases caused by the liver transplant and his need to take costly antirejection medication for the rest of his life. The plaintiff testified at trial that the plant manager, John Purrett, visited him at his home while on medical leave and informed him that Xermac’s president, Pete Schmitt, wanted to terminate him because of the increased medical insurance costs. Mr. Donald Shaver, Xermac’s general manager and the plaintiff’s immediate supervisor, also testified that at several meetings he and Mr. Schmitt had discussed the matter of the plaintiff’s medical bills contributing to the company’s increased insurance costs.
The defendant countered plaintiff’s hcra suit by arguing (1) that the plaintiff does not come within the hcra’s protection because he is not handicapped, and (2) that the plaintiff was not terminated because of an alleged handicap, but because of economic necessity. Regarding the first argument, the defendant pursued two lines of defense. First, the act requires that to be handicapped one must be substantially limited in a major life activity. MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A). The defendant argued that since the lifesaving operation, the plaintiff has no limitation in any life activities and consequently cannot claim handicapped status. Second, the defendant points out that the hcra excludes from the definition of handicap, conditions caused by the use of alcohol that prevent an individual from performing the duties of his job. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). The defendant argued that because the plaintiffs alcoholism necessitated the liver transplant, any claimed handicap flowing from the liver transplant falls outside the act’s protection.
During the trial, the plaintiff sought to exclude evidence relating to his alcoholism and cirrhosis. He argued that it was not relevant because it did not prevent him from performing his job functions and that even if it was relevant, its prejudice outweighed any probative value. The trial court disagreed and denied the plaintiff’s motion.
The plaintiff also sought to exclude evidence regarding the defendant’s economic condition, arguing that the defendant was attempting to assert an economic-necessity defense and that because it did not raise this affirmative defense during discovery or in any responsive pleadings, it was waived. The trial court also denied this motion. It found that evidence of the defendant’s economic condition was relevant to disproving a required element of plaintiff’s prima facie discrimination case because the evidence tended to disprove that he was terminated because of a handicap.
During closing argument, the attorneys for the plaintiff and the defendant focused the jurors’ attention on whether the plaintiff, for purposes of meeting the hcra’s definition of handicap, should be viewed with or without his antirejection medication. The plaintiff’s attorney argued that the law requires that the plaintiff’s condition be considered without the benefit of his medication and that, because he would die if he did not take his medicine, his condition met the hcra’s requirement of substantially limiting a major life activity. Conversely, the defense argued that the law required that the plaintiff’s condition be viewed as it presently existed, i.e., with the benefit of his medication.
Before closing argument commenced, the plaintiff requested a special jury instruction regarding the effect of mitigating measures, such as medication, on an individual’s handicapped status. The proposed instruction was as follows:
A person that has a determinable physical [characteristic] which substantially limits one or more life activities is handicapped even if the determinable physical condition is controlled with medication or medical care.
The trial court refused to give the instruction, concluding that it was more appropriate to simply instruct the jury in the language of the act, without distinguishing between the plaintiff’s premedicated and postmedicated states. During deliberations, the jury sent a note to the trial judge inquiring about the relevance of the plaintiff’s dependence on medication. The court refused to comment further on the issue and instructed the jurors to rely on the evidence presented and on the instructions already given. The jury returned a general verdict for the defendant.
The Court of Appeals affirmed, rejecting the plaintiffs arguments that the trial court erred in failing to give the proposed special jury instruction and in allowing evidence regarding plaintiff’s alcoholism and defendant’s economic condition. We granted leave to appeal in an unlimited grant order.
n
BACKGROUND
The HCRA prohibits discrimination against individuals because of their handicapped status. The purpose of the act is to mandate “the employment of the handicapped to the fullest extent reasonably possible.” Allen v Southeastern Michigan Transportation Authority, 132 Mich App 533, 537-538; 349 NW2d 204 (1984). The act is remedial, and, as a remedial act, it is to be liberally construed by the courts. See Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998); Allen, supra. Further, in interpreting provisions of the HCRA, analogous federal precedents are persuasive, although not necessarily binding. Robson v General Motors Corp, 137 Mich App 650; 357 NW2d 919 (1984), rev’d on other grounds 427 Mich 505; 398 NW2d 368 (1986). Federal courts have similarly noted that analysis of claims under the HCRA largely parallels analysis under the federal Americans with Disabilities Act. Hamlin v Flint Charter Twp, 942 F Supp 1129, 1136 (ED Mich, 1996); Fritz v Mascotech Automotive Systems Group, Inc, 914 F Supp 1481 (ED Mich, 1996).
To prove a discrimination claim under the HCRA, the plaintiff must show (1) that he is handicapped as defined in the act, (2) that the handicap is unrelated to his ability to perform his job duties, and (3) that he has been discriminated against in one of the ways delineated in the statute. Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 743; 440 NW2d 101 (1989). This case primarily involves the first element, i.e., whether the plaintiff is handicapped as defined in the act.
The act, as amended in 1990, defines handicap as follows:
(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:
(A) For purposes of article 2 [employment discrimination], substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion.
(ii) A history of a determinable physical or mental characteristic described in subparagraph (i).
(iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [MCL 37.1103(e); MSA 3.550(103)(e).][ ]
For purposes of employment discrimination under article 2 of the act, the definition of handicap does not include:
A determinable physical or mental characteristic caused by the use of an alcoholic liquor by that individual, if that physical or mental characteristic prevents that individual from performing the duties of his or her job. [MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii).]
The act does not specifically address mitigating measures, such as medication. Consequently, we must engage in a more detailed analysis of how such measures affect a person’s handicapped status. We turn next to this issue and will consider the plaintiff’s other claims of error regarding admission of evidence of the plaintiff’s alcoholism and of the defendant’s economic conditions later in this opinion.
in
CLAIMED INSTRUCTIONAL ERROR
The question whether to consider a person’s unmitigated condition in determining handicapped status under the 1990 HCRA definition of “handicap” is one of first impression. Because the HCRA definition mirrors that of the ADA, we examine federal law for guidance.
While the ADA itself, like the hcra, does not specifically address the issue of mitigating measures, the Equal Employment Opportunity Commission, the federal agency charged with administering the act in the employment context, has determined that an individual’s status should be determined not as it presently exists, but as it would exist without regard to medication or other mitigating measures. The interpretive guidelines state:
The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices. See Senate Report at 23, House Labor Report at 52, House Judiciary Report at 28. For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine. Similarly, an individual with a hearing loss would be considered to have an impairment even if the condition were correctable through the use of a hearing aid. [29 CFR 1630.2(h), Appendix, p 350 (1997). ][ ]
Despite this interpretive guidance, and the general rule that federal courts accord deference to agency interpretation of the act that the agency is charged to administer, many federal courts that have considered the issue have rejected the eeoc’s guidelines. Federal courts are split on whether the ADA requires consideration of the individual’s present status, or whether the eeoc guidelines should be followed and consideration be given to the individual’s condition as it would hypothetically exist without the aid of mitigating measures.
We find the reasoning of those federal courts that have rejected the EEOC guidelines to be persuasive and that this reasoning applies to our interpretation of the HCRA. We will turn next to a review of the arguments presented by these courts.
First, and most important, the approach taken in the EEOC guidelines contravenes the plain language of the ADA, and also of the hcra. The ADA and hcra definitions require an individual to have a condition that substantially limits a major life activity. In contrast, the administrative gloss imposed on this plain language by the guidelines provides that an individual who would have a substantial limitation if he failed to take his medication or discontinued using other miti gating measures comes within the definition. In other words, the eeoc approach, which is the approach that the plaintiff would have this Court adopt, would require us to read out of the statute the requirement that the individual’s condition substantially limits a major life activity. As this Court has stated on numerous occasions, where a statute is clear and unambiguous on its face, we will follow the clear language as written wdthout engaging in judicial construction. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135-136; 545 NW2d 642 (1996).
Many federal courts have also taken this view. As explained by the court in Coghlan v HJ Heinz Co, 851 F Supp 808, 813 (ND Tex, 1994), a case involving an individual with controlled diabetes mellitus:
Defendant’s argument appears to run like this: In order to have a disability under the ADA, one must have a physical or mental impairment that substantially limits one or more major life activity [sic]. Yet the eeoc’s interpretative guidance states that a diabetic who without insulin would lapse into a coma would be substantially limited because the individual cannot perform major life activities without the aid of medication. This gloss reads “limits” right out of the statute because an insulin-dependent diabetic who takes insulin could perform major life activities and would therefore not be limited. Because the eeoc gloss requires determination of “disability” regardless of an insulin-dependent diabetic’s limitation, it is at odds with the statute. In other words, the eeoc interpretation requires that one not having a limitation be considered as having a disability even though the statutory language clearly requires substantial limitation. [Coghlan at 813.]
This rationale is equally applicable to plaintiffs handicap claim. We must examine the plaintiffs condition as it exists, with the benefit of his antirejection medication. Because he has no limitations of any major life activities, he does not have a handicap.
A recent decision from the United States Court of Appeals for the Sixth Circuit is also instructive. In that case, Gilday v Mecosta Co, 124 F3d 760 (CA 6, 1997), involving a noninsulin dependent diabetic, a majority of the court, consisting of Judges Kennedy and Guy, determined that the ADA required assessing the individual’s condition as it presently existed with his oral medications and his diet and exercise regimen. As Judge Kennedy explained:
In my opinion, the eeoc’s rule on mitigating circumstances conflicts with the text of the ADA and is, therefore, not a “permissible construction of the statute.” Id. To be “disabled” under 42 USC 12102(2)(A), an individual must prove (1) that he has an impairment, and (2) that this impairment substantially limits a major life activity. The eeoc’s rule is at odds with this second requirement. Under the eeoc’s Interpretive Guidance, an individual is considered disabled even if, with the benefit of medication, the individual is not, in fact, substantially limited in any major life activity. The eeoc’s rule, in effect, eliminates the statutory requirement that an impairment “substantially limit]]” a major life activity in order to constitute a disability. As a result, I believe that the ada’s definition of disability “cannot bear the interpretation adopted by” the eeoc in 29 CFR 1630 App 1630.2(j), Sullivan v Everhart, 494 US 83, 92; 110 S Ct 960, 966; 108 L Ed 2d 72 (1990), and therefore, that this Court should not give effect to the eeoc’s interpretive rule. See Public Employees Retirement Sys v Betts, 492 US 158, 171; 109 S Ct 2854, 2863; 106 L Ed 2d 134 (1989) (“[0]f course, no deference is due to agency interpretations at odds with the plain language of the statute itself”). [Id. at 766-767.]
Countering the argument presented by Judge Moore that the eeoc approach is consistent with the legislative history of the act, Judge Kennedy reasoned that “[w]here the statutory text is unambiguous ... as I believe it is here, that ends the matter. ‘[W]e do not resort to legislative history to cloud a statutory text that is clear.’ Ratzlaf v United States, 510 US 135, 147-148; 114 S Ct 655, 662; 126 L Ed 2d 615 (1994).” Gilday at 767. Michigan law in this regard is in accord. Luttrell v Dep’t of Corrections, 421 Mich 93, 101; 365 NW2d 74 (1984); Tryc, supra. Consequently, we reject the plaintiff’s argument that the legislative history of the HCRA supports the view that an individual’s handicapped status should be determined without regard to his actual condition with mitigating measures.
We also find persuasive defendant’s argument that the EEOC approach creates a slippery slope that would lead to the inclusion of many commonplace and relatively benign and easily remedied conditions into the act’s definition of handicap. For example, an individual with myopia or hypertension that, when treated, is not substantially limiting would be deemed to be handicapped when viewed in his untreated state. This Court declines to head down that slippery slope. We note that federal courts interpreting similar language in the Rehabilitation Act, the precursor of the ADA, have noted that the high purpose of the act of assuring that truly disabled yet capable individuals are protected from discrimination would be debased if the statute’s protections could be invoked by relatively minor and commonplace impairments. See, e.g., Forrisi v Bowen, 794 F2d 931, 933 (CA 4, 1986). To protect against this, the ADA and the hcra include the requirement that an individual have a condition that substantially limits a major life activity. These words have real meaning. They set the standard for determining which conditions will meet the definition and which will not. By limiting the HCRA’s protection to individuals having conditions that actually impose substantial limitations, the standard preserves the high purpose of the act.
To these points we add a word of caution. In some instances, an individual’s condition will be substantially limiting despite the use of medications, prosthetic devices, or other mitigating measures. Courts must analyze the individual’s condition case by case. For example, while probably most eyeglass wearers will not have a substantially limiting condition, there should be no categorical conclusion that all eyeglass wearers fail to meet the HCRA definition. A visual problem that renders the person virtually blind in the morning before he dons his glasses and requires coke-bottle thick lenses to correct his visual acuity might meet the definition. Similarly, a person with an amputated leg who functions quite well with a prosthetic limb might nevertheless meet the definition if he can show that his ambulation is significantly slowed or limited in another way, or if he can show that the use of the limb in itself is time-consuming or substantially burdensome to the performance of his major life activities. An appropriate analogy is a stat ute that burdens an individual’s right, but does not completely impede his ability to exercise that right. If the burdens associated with use of the mitigating device are great enough, the definition will be met.
We note that other jurists have noted the importance of a case-by-case analysis. Judges Kennedy and Guy, in both their separate opinions in Gilday emphasized this point. Judge Kennedy stated:
Of course, it may well be in some instances that the controlling medication (or other mitigating measure) will itself impose a substantial limitation on an individual’s major life activities. In such cases, the individual will be “disabled” [or handicapped] under the ada [or the hcra], [Id. at 767.]
Similarly, Judge Guy stated:
In my view, the impact of mitigating measures must be decided on a case-by-case basis. In some cases a person with a “controlled” medical problem or condition will be completely functional and should be evaluated as such. In other cases a person with a controlled medical condition may still be under a disability as defined by the Act. Indeed, what is necessary to “control” the condition may be part of what makes the person disabled. [Id. at 768.]
likewise, we caution that courts must carefully analyze each individual claiming a handicap and must not categorically apply the definition to a given diagnosis.
Having concluded that the law requires the factfinder to assess the individual’s condition as it actually exists, we hold that the trial court did not err in refusing to give the requested instruction. We therefore affirm the Court of Appeals affirmance of the jury verdict for the defendant. We do not, however, endorse the analysis of the Court of Appeals on this issue. That Court concluded that the requested instruction required a finding that a medicated individual is handicapped per se. We cannot agree. When viewed in context of the entire body of instructions given the jury, we do not agree that the requested instruction was misleading in this way. We simply note that it was an erroneous interpretation of the law. We also note that, by allowing plaintiff and defense counsel to both present their conflicting views of the law, the jury was improperly placed in the position of choosing which version was the correct statement of the law. This said, however, because the jury’s verdict was not inconsistent with substantial justice, any error in failing to properly instruct the jury regarding the law does not require reversal. Johnson v Corbet, 423 Mich 304, 326; 377 NW2d 713 (1985).
IV
CLAIMED EVIDENTIARY ERRORS
We next turn to the plaintiffs claims that the Court of Appeals erred in upholding the trial court’s admission of evidence of his alcoholism and evidence of the defendant’s economic condition at the trial. A trial court’s decision to admit evidence is within its sound discretion and will not be disturbed absent an abuse of discretion. People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995). With this standard in mind, we turn to the first claimed evidentiary error.
A
EVIDENCE OF ALCOHOLISM
As noted earlier in this opinion, for purposes of employment discrimination, the hcra expressly excludes from the definition of “handicap” determinable physical or mental characteristics caused by the use of alcohol when the alcohol-related condition prevents the employee from performing his job duties. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). The plaintiff argues that even the defendant conceded that his alcoholism did not affect his job performance. Consequently, he argues that evidence of his alcoholism was not relevant to whether he was handicapped. Further, the plaintiff argues that evidence concerning his use of alcohol was not relevant to the issue of damages because it related only to life expectancy, which was not at issue in the case, and not to his projected retirement age. The plaintiff further argues that, even if his alcoholism were relevant, it should not have been admitted because the danger of unfair prejudice from this evidence substantially outweighed any probative value. MRE 403.
We agree with the Court of Appeals that evidence of the plaintiffs use of alcohol was relevant in determining the plaintiffs handicapped status and that its probative value in this regard was not substantially outweighed by unfair prejudice. While at the close of proofs it became fairly apparent that the plaintiffs use of alcohol did not affect his job performance, this was not a foregone conclusion. For example, there was evidence that on at least two occasions his alcohol use might have affected his job performance. Further, the defendant presented testimony that the plaintiff was fired because he did not meet his sales quotas. The defendant’s theory was that the plaintiff’s poor work performance, in the form of failing to meet the quotas, resulted from his failure to fully recover from the injuries caused by his alcoholism. While the plaintiff denied any continuing health problems that affected his job performance, this does not mean that the evidence regarding alcoholism was not relevant. The trial court did not abuse its discretion by allowing the jury to hear the evidence on both sides of this issue.
Further, the trial court carefully cautioned the jury regarding how the evidence of alcoholism should be used. The court instructed that plaintiff could not be found to have a handicap if the condition caused by his use of alcohol affected his job duties, but that he could be found to have a handicap if the condition caused by his use of alcohol did not prevent him from performing his job duties. This instruction helped diminish the potential prejudicial effect of the evidence.
Additionally, we agree with the Court of Appeals that the evidence was relevant to the issue of damages. Expert testimony was elicited to the effect that the plaintiff, as a person with a liver transplant, could expect a lower life expectancy. From this evidence, a reasonable jury could infer that the plaintiffs ability to continue in his employment might be affected, reducing the amount of damages flowing from the alleged employment discrimination. Further, the plaintiff sought damages for mental anguish and other noneconomic damages. The amount of these damages would have been directly related to life expectancy. Consequently, we conclude that the Court of Appeals did not clearly err in concluding that the trial court did not abuse its discretion in allowing evidence of the plaintiff’s alcoholism.
B
EVIDENCE OF DEFENDANT’S ECONOMIC CONDITION
The plaintiff also contends that the Court of Appeals erred in upholding the trial court’s admission of evidence of the defendant’s financial condition. The plaintiff argues that because the defendant did not raise economic necessity as an affirmative defense in its responsive pleadings or in discovery, all evidence concerning the defendant’s financial condition should have been excluded at trial. We agree with the Court of Appeals analysis of this issue. That Court stated:
An affirmative defense is a defense that does not controvert the establishment of a prima facie case, but that otherwise denies relief to the plaintiff. [Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993).]
In a handicap discrimination case, the plaintiff has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of the handicap. Dzierbowicz v American Seating Co, 209 Mich App 130, 132; 530 NW2d 158 (1995), rev’d on other grounds 450 Mich 969 (1996). Evidence that the decision to terminate the plaintiff was motivated by economic considerations directly controverted this element of the prima facie case and, therefore, by definition did not constitute an affirmative defense. Stanke, supra. Accordingly, the trial corut did not abuse its discretion in admitting evidence of defendant’s financial condition. [216 Mich App 707, 712-713; 550 NW2d 797 (1996).]
We agree and affirm the Court of Appeals conclusion that the trial court did not abuse its discretion in allowing evidence of the defendant’s economic hardship at trial.
v
conclusion
Because the plain language of the hcra requires that an individual actually have a determinable characteristic that substantially limits a major life activity, we hold that the trial court did not err in refusing to give the plaintiff’s requested special jury instruction. This instruction would have erroneously allowed the jury to find a handicap even if it concluded that, with the plaintiff’s antirejection medication, he presently suffered no substantially limiting condition.
We further hold that the trial court did not err in allowing evidence of the plaintiffs alcoholism and of the defendant’s financial status. The evidence of alcoholism was relevant to whether the plaintiff’s condition met the hcra’s definition of handicap and to the issue of damages. Further, the trial court cautioned the jury regarding the appropriate use of the evidence. We find that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The evidence of the defendant’s financial condition tended to disprove that the plaintiff was fired because of his alleged handicap, an element of the plaintiff’s prima facie case. Consequently, the trial court correctly rejected the plaintiff’s argument that by failing to plead economic necessity as an affirmative defense, the defendant had waived any argument relating to its economic condition.
For these reasons, we affirm the Court of Appeals affirmance of the jury verdict for the defendant.
Brickley, Boyle, Weaver, and Taylor, JJ., concurred with Mallett, C.J.
MCL 37.1101 et seq.-, MSA 3.550(101) et seq.
Plaintiff might be described as a “functional alcoholic.” Although his alcoholism did not generally interfere with his job, he did have two episodes at work related to his alcoholism. One occurred shortly before his liver transplant when he was making a call on a General Motors customer in Bay City, Michigan. He apparently lost consciousness during this call and was taken to a General Motors medical facility. The other incident involved feelings of faintness while on a call in Indianapolis, Indiana.
The plaintiff added this statement, “[b]ecause of my absence, the increased competition, and economic climate, I have concerns about meeting these quotas.”
The record discloses that the plaintiff’s liver transplant cost the defendant’s medical insurer more than $130,000 and that the continuing costs related to the antirejection medications are approximately $700 a month. Mr. Purrett testified that the medical procedures and medications caused the defendant’s health insurance premiums to increase by approximately $15,000 a year.
The defendant, however, presented evidence that increased insurance costs were not the reason for the discharge. For example, Mr. Schmitt testified that he was not aware that a liver transplant caused the insurance premiums to increase by a specific amount. The defendant also presented a chart showing a comparison of monthly premiums billed for certain Xeimac employees. This chart revealed that while the premiums billed for the plaintiff more than doubled between 1988 and 1990, similar or even greater increases in premiums occurred for other employees. The chart also indicated that premiums for at least six other employees were significantly higher than those for the plaintiff.
In fact, the plaintiff does not dispute that with the benefit of his operation and the antirejection medication, he is in good health and currently has no functional limitations.
The plaintiff’s medical expert, Michael R. Lucey, M.D., testified as follows:
Q. What would happen to Gary if he ceased taking these medications that you referred to?
A. If he stops taking his immunosuppressive medicines, he will reject his liver graft, and he will die, unless he’s transplanted again.
Because the parties could not agree on a special verdict form, the court used a general form. Consequently, it is impossible to determine whether the jury presumed that it should consider plaintiffs medicated state and determined that he was not handicapped, or if it found the plaintiff to be handicapped, but granted no relief for some other reason. For example, it might have believed the defense position that the defendant actually did terminate the plaintiff because he did not meet the sales quotas and because it was experiencing an economic downturn and could not justify continuing plaintiffs sales position.
456 Mich 869 (1997).
We note that the plaintiff does not rely on subsections (ii) or (iii) to prove his i-icra claim. Consequently, this opinion does not deal with the interpretation of these provisions.
In pertinent part, the ADA defines “disability,” the term used in that act in place of the hcra’s term “handicap,” as follows:
a physical or mental impairment that substantially limits one or more of the major life activities of [the] individual .... [42 USC 12102(2)(A).]
See also 29 CFR 1630.2Q), Appendix, p 351 (1997), which states that “[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices.”
See, e.g., Chevron USA, Inc v Natural Resources Defense Council, Inc, 467 US 837; 104 S Ct 2778; 81 L Ed 2d 694 (1984).
See, e.g., Coghlan v HJ Heinz Co, 851 F Supp 808 (ND Tex, 1994), and Harris v H & W Contracting Co, 102 F3d 516 (CA 11, 1996). The dissent’s suggestion that the overwhelming majority of federal courts have adopted the eeoc approach is misleading. Rather, federal district courts appear to be fairly evenly divided on the issue. Further, while there does appear to be a majority of federal courts of appeals that have followed the eeoc, there also appears to be a recent trend toward disregarding the eeoc guidelines. See, e.g., Gilday v Mecosta Co, 124 F3d 760 (CA 6, 1997). We also note that the eeoc guidance carries far less persuasive force for this Court in interpreting a Michigan statute than it does for federal courts in interpreting the ADA.
As noted by the court in Sutton v United Air Lines, Inc, 130 F3d 893, 902 (CA 10, 1997), “we are concerned with whether the impairment affects the individual in fact, not whether it would hypothetically affect the individual without the use of corrective measures.” The court in Sutton held that mitigating measures, in that case eyeglasses, must be taken into consideration in determining whether an individual’s impairment substantially limits a major life activity.
It should be noted that although Judge Moore’s opinion appears as the lead opinion, Judge Kennedy’s opinion is controlling regarding the definitional question at issue here.
Judge Moore accepted the eeoc guideline approach. In her view, the eeoc’s interpretation is consistent with the text of the statute because “[a] person with a serious disability who depends on medicine or a medical device to ameliorate the effects of that disability nonetheless has a limit on a major life activity: without the corrective measure the person would be unable to perform a mqjor life activity.” Gilday, supra at 763. Judge Moore also reasoned that the eeoc approach is consistent with the purpose of the statute. She also found support for the agency’s interpretation in the legislative history of the act. Other courts that have embraced this view have utilized similar reasoning. See, e.g., Harris v H & W Contracting Co, n 14 supra; Roth v Lutheran General Hosp, 57 F3d 1446 (CA 7, 1995); Sicard v Sioux City, 950 F Supp 1420 (ND Iowa, 1996).
In this regard, the plaintiff presents a statement by former Representative H. Lynn Jondahl, a cosponsor of the 1990 amendments of the hcra, to the effect that persons with controlled diabetes or epilepsy are protected by the act. Besides the irrelevance of such statements where the act is unambiguous, we note that the opinion of a single legislator is not necessarily equivalent to the intent of the entire Legislature at the time of enactment. Consequently, the dissent’s reliance on this “legislative history” is specious.
The dissent fails to truly understand this argument. It states, post at 631, n 14, that the slippery slope argument does not apply because courts must continue to undertake a case-by-case analysis. Even if under the eeoc approach courts were to examine each case individually, by failing to consider the individual’s actual state as it presently exists with mitigating measures, more and more individuals with easily remedied conditions, whom we believe the Legislature did not intend to sweep into the act’s protection, would be deemed handicapped.
The dissent claims that we neglect to consider the purpose behind the act and instead rely on a “strained plain-language argument.” Post at 624. To the contrary, as we have noted, our analysis is consistent with the purpose of the act, which is to afford protection to the truly disabled. Further, we fail to understand how upholding the definition’s clear language can be deemed a “strained” argument. The act clearly requires that the characteristic substantially limits a major life activity. Surely, one could not seriously characterize as “strained” an analysis that honors the Legislature’s choice of the present tense.
See, e.g., Sutton, supra.
Judge Moore, in her lead opinion in Gilday, used this analogy, but to reach the wrong conclusion. She stated that “[t]o put a condition on the activity of, for example, hearing, limits that ability, in the same way that putting a condition on the exercise of a right impairs that right.” Id. at 763. What Judge Moore overlooked is that not every condition placed on the exercise of a right is tantamount to an impairment of it.
The dissent makes much of three Michigan Court of Appeals cases, Hines v Grand Trunk W R Co, 151 Mich App 585; 391 NW2d 750 (1985), Crittenden v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), and Szymczak v American Seating Co, 204 Mich App 255; 514 NW2d 251 (1994), which it reads as supporting its view that this Court should disregard the individual’s condition as it exists with mitigating measures. Even if those Michigan Court of Appeals cases were binding on this Court, which of course they are not, they are distinguishable and actually support assessing the individual in his present medicated state.
Hines is simply not applicable, because it interprets the pre-1990 definition of handicap, and actually stands for the proposition that one should consider an individual’s mitigated state. Hines required analysis of whether an insulin-dependent diabetic met the pre-1990 definition of handicap. That definition did not require a substantial limitation of a major life activity. It did, however, require that the individual have a condition resulting from disease, or a history of such a condition, that is unrelated to the individual’s ability to perform the duties of the job. The defendant apparently argued that Mr. Hines, as a matter of law, could not meet the definition because his diabetes affected his ability to perform his job functions. The Court determined that, because with his insulin the plaintiff’s diabetes might not affect his job, it was improper to determine that he was not handicapped as a matter of law.
Crittenden similarly involved whether the plaintiff’s condition, hypertension, rendered him unable to perform the available work. The Court held that whether plaintiff’s condition rendered him unable to perform the work was a factual question that should be determined by the jury. As in Hines, Crittenden analyzed the pre-1990 definition of handicap and actually supports looking at the person in his medicated state. Particularly, the Court dispensed with the defendant’s argument that plaintiff was not handicapped because his hypertension would affect his work by noting that the plaintiff had presented evidence that his hypertension, when controlled by medication, would not affect his working ability. Id. at 332.
In Szymczak, the Court of Appeals determined that there was a disputed factual question whether the plaintiff’s seizure disorder rendered him unable to safely perform his job. Even when medicated, the plaintiff had a history of seizures that came on without warning. The Court determined that if the job required the use of power tools, the danger presented from the unpredictable seizures would render him unable to perform the job, even with his medication.
A close review of the facts and analyses of these cases, rather than supporting the dissent’s view, actually supports the view that the individual should be assessed in his present medicated condition. Further, the dissent’s claim that under our analysis the plaintiffs in Hines and Szymczak would not meet the definition is incorrect. Mr. Hines’ diabetes was apparently not fully controlled with insulin, defendant’s physician had found that his blood sugar was unacceptably high. We simply do not know whether his condition, with medication, would limit a major life activity. Similarly, Mr. Szymczak’s seizure disorder was not fully controlled with medication. Conceivably, his uncontrollable and unpredictable seizures might be disruptive enough to constitute a substantial limitation of a major life activity under the current definition.
The Court of Appeals mischaracterized the requested instruction as defining a handicap. A careful review, however, shows that the instruction merely attempted to clarify, albeit mistakenly in our view, that a condition that would be substantially limiting if not for the mitigating measures meets the definition. The jury was also instructed regarding the definition of “handicap” from the verbatim language of the hcra. Likewise, we do not deem determinative the absence of the word “major” before the words “life activities” in the proposed instruction. The phrase “major life activities” was included in the instruction regarding the hcra. definition of “handicap.”
See n 2.
The trial court’s instructions in this regard were as follows:
Now, ladies and gentlemen, if the history of the physical characteristic was caused by the use of alcoholic liquor but the physical characteristic did not prevent the Plaintiff from performing his job, then you are to disregard the fact that use of alcohol caused the physical characteristic.
On the other hand, if you find that the Plaintiff has a determinable physical characteristic caused by the use of alcoholic liquor and that characteristic prevented the Plaintiff from performing the duties of his job, then the Plaintiff is not handicapped under the law.
A person, ladies and gentlemen, cannot have a history of determinable physical characteristic to be construed as a handicap if the physical characteristic was caused by the use of alcoholic liquor which prevented the person from performing the duties of his job. | [
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Smith, J.
The case before us concerns the validity of a constructive trust. The controversy is a family one, involving the heirs of Bengta Nelson. The court files in 3 cases have been stipulated as exhibits. The parties have stipulated, also, the facts from which the current action arises, which stipulation, shortened by deletion of nonessential numbering, follows in its substantial entirety:
“Bengta Nelson died July 25, 1925, leaving a last will and testament which was admitted for probate in Bay county, Michigan, and Edith Nelson was appointed executrix of this estate on August 25, 1925, and continued in this capacity until her death January 14,1956.
“Edith Nelson, as executrix of estate of Bengta Nelson, filed an accounting on or about February 21, 1934. This account was not noticed for hearing nor allowed. Edith Nelson died January 14, 1956, without making a further accounting and the estate of Bengta Nelson was still open, active, and contained property being administered. The estate of Edith Nelson is being probated in Bay county, Michigan. The Bay county probate court appointed Florence Russ Woodworth executrix of the estate of Edith Nelson and letters testamentary were issued on February 17, 1956.
“On December 11,1956, Florence Russ Woodworth, as executrix of the estate of Edith Nelson, filed an amended final accounting for Edith Nelson in the estate of Bengta Nelson. This accounting covered the period from February 21, 1934, to January 14, 1956, the date of death of Edith Nelson.
“A result of the opinion and order on said accounting was that Edith Nelson was indebted to the estate of Bengta Nelson in the sum of $3,967.30, which'indebtedness arose as more fully set forth in the accounting and court opinions thereon. The order was appealed to the Bay county circuit court by the plaintiff in this case. Said circuit court affirmed the order of the probate court by order of March, 1959. (Bay circuit court file No 17,049.) ' Pursuant to the finding on the accounting, a claim for the said $3,967.30 was filed in the estate of Edith Nelson by the administrator d/b/n of the estate of Bengta Nelson, and the claim was allowed on April 20, 1959.
“The estate of Edith Nelson is insolvent. Except for said joint account, the subject matter of this litigation, her financial status at the time of her death is indicated by the inventory and other papers on file in her estate.
“On October 2, 1929, Edith Nelson, individually, opened account No 7,377 in the Mutual Savings & Loan Association of Bay City, Michigan. This account continued in her own name until December 12, 1950, when she made it joint as account No 06,266 with her brother, A. G. Nelson, who was the first executor named in her will. A. G. Nelson made no deposit or withdrawal nor performed any other act in relation to this account except to sign the signature card dated December 12, 1950. Edith Nelson .after December 12, 1950, continued to make both deposits and withdrawals in this account. A. G. Nelson died on February 12, 1955.
“By letter of February 17, 1955, Edith Nelson •changed this to a joint account with Florence Buss Woodworth, the alternate executrix named in her will, the balance then being $5,448.18. Florence Buss Woodworth paid nothing for this but signed a signature card for the joint account on February 17,1955. Otherwise, Florence Buss Woodworth made no deposit or withdrawal nor performed any other act in relation to this account during the lifetime of Edith Nelson. At the death of Edith Nelson on January 14, 1956, there was $5,585.22 in this account.
“From December 1, 1950, until the date of her death, Edith Nelson did not dispose of by gift or •othei’wise any significant properties except for the aforesaid transfer of the Mutual Savings & Loan Association account. During such period her personal assets excepting for said joint account remained substantially the same as appears in the inventory filed in the' estate of Edith Nelson, deceased.
“Florence Russ Woodworth became executrix of the estate of Edith Nelson, deceased, on February 17,1956. On said date she withdrew $1,140 from the Mutual Savings & Loan Association joint account and of this sum paid $939.96 to Hyatt’s Funeral Home on the same date for the funeral expenses of Edith Nelson and on said date paid $131 to Bay City General Hospital on its claim against Edith Nelson. The remainder of said $1,140, Florence Russ Woodworth retained. On April 17, 1956, Florence Russ Woodworth withdrew the balance of said joint account in the sum of $4,445.22 and has retained the same as her sole, individual property.
“No part of the $3,967.30 for which Edith Nelson was surcharged in the accounting made on her behalf in the estate of Bengta Nelson has been paid to the estate of Bengta Nelson by either Florence Russ Woodworth individually or as executrix of the estate of Edith Nelson or in any other manner.”
Upon these facts, as stipulated, the trial chancellor decreed that “a constructive trust be and hereby is imposed on all funds withdrawn by defendant, individually or as said executrix, from Mutual Savings & Loan Association of Bay City to the total sum of $3,967.30, and said Florence Russ Wood-worth, individually and as executrix of the estate of Edith Nelson, deceased, be, and she hereby is, ordered to pay said sum forthwith to John P. Nelson as administrator with will annexed of the estate of Bengta Nelson, deceased, in payment of the claim for said sum for which Edith Nelson was surcharged as executrix of the estate of Bengta Nelson, deceased, together with statutory interest accumulated thereon from the date of allowance of said claim on April 20, 1959.”
Much of the argument upon this appeal relates to the refusal of the probate court to remove appellant as executrix over the objection that a conflict of interest existed with respect to the above-mentioned Mutual Savings & Loan Association account, and to the court’s subsequent approval of her amended final accounting, in which a balance due the estate of Bengta Nelson was listed in the sum of $3,967.30. This accounting had been objected to upon several grounds, namely, the occupancy, rent free, of the property of the estate of Bengta Nelson by Edith Nelson, the allowance of expenditures for the maintenance of the property, for attorney’s fees, and for other items. The probate approval of this account closed with the words: “It is further ordered that Edith L. Nelson is not and was not guilty of any actual or bonstructive fraud in her administration of the estate of Bengta Nelson.” Such statement is urged as conclusive upon the issue before us, namely, the interests of the parties in the proceeds,, of the mutual savings account. The argument is not well taken. The interests of the contesting parties in the fund in question arising out of the circumstances hereinabove described was neither adjudicated nor found. Indeed, the adjudication of ownership of personal property would not have been within the range of functions of the probate court. What is sought here is the intervention of the chancellor upon grounds allegedly justifying the imposition of a constructive trust. The doctrine of res judicata has no application to these facts.
It is argued, also, that the funds in question belonged at all times to Edith Nelson, that, as noted, Edith Nelson was guilty of no fraud in connection therewith, that Florence Russ Woodworth contributed in no way to the “reasons advanced for the imposition of a constructive trust,” and hence that there “is nothing upon which a constructive trust can be based.”
The argument misconceives the basis upon which rests the doctrine of the constructive trust. As we recently held with respect to the constructive trust, “Fraud in the inception we do not require, nor deceit, nor chicanery in any of its varied guises, for it is not necessary that property be wrongfully acquired. It is enough that it be unconscionably withheld.” The constructive trust is purely a remedial device, “the formula through which the conscience of equity finds expression.”
The situation before us was well summarized by the trial chancellor in the following terms:
“Certainly, Edith Nelson did not wish in any way to appropriate moneys or funds from her mother’s estate to her own use.
“It would be more conscionable to interpret her actions as an attempt to create an assurance that her mother’s wishes would be carried out. It is true that she could have made an accounting long before her death, but the fact remains she did not so do. She knew, or should have known, that there were moneys due and owing by her to her mother’s estate and both the probate court and an affirmance by the circuit court shows that to be a fact. It would appear that she placed trust and confidence in her executors to keep her conscience clear, even after death. * * *
“We find that Edith Nelson intended that any just debts she owed her mother’s estate be paid and that to allow Florence Russ Woodworth individually, or as executrix of Edith Nelson’s estate, to retain funds available for that purpose would defeat the very basic precepts of equity. For that reason it is our opinion that a constructive trust be imposed on the funds held by Florence Russ Woodworth for the benefit of the estate of Bengta Nelson, deceased, to. the extent of the indebtedness of Edith Nelson to the Bengta Nelson Estate.”
Appellant urges, finally, that should the imposition of this constructive trust be affirmed by us we order the funds paid into the estate of Edith Nelson, deceased, rather than directly into the estate of Bengta Nelson, deceased. Appellee resists upon the grounds that such action fails to achieve complete justice, is unnecessary, and will unjustly promote further litigation. The molding of the relief required by the circumstances of the case is peculiarly within the province of the trial chancellor and we are not persuaded that upon the facts before us his decree was in error.
We find no error in the case. Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
Bay county probate file No 9,958, In the Matter of the Estate of Bengta Nelson, Deceased.
Bay county probate file No 20,088, In the Matter of the Estate of Edith Nelson, Deceased.
Bay county circuit court file No 17,049, In the Matter of the Estate of Bengta Nelson, Deceased (appeal from probate).
See Laude v. Cossins, 334 Mich 622.
Kent v. Klein, 352 Mich 652, 657.
Cardozo, J., in Beatty v. Guggenheim Exploration Co., 225 NY 380, 386 (122 NE 378). | [
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Souris, J.
Defendant Badger Mutual Insurance Company brings this appeal from a $1,740 judgment entered against it after jury verdict on a fire and extended coverage insurance policy issued to plaintiff.
The defense below, repeated on appeal, was that the policy of insurance did not cover plaintiff’s loss. The trial judge ruled as a matter of law, and so instructed the jury, that it did. We agree.
Defendant’s policy insured plaintiff against loss on the following 6 items and for the amounts specified:
“1. $4,000 on the frame, composition roof, 1-family dwelling. * * *
“2. $2,500 on-the contents in the above dwelling.
“3. $2,000 on the frame, composition roof dog kennel.
“4. $2,000 on the contents in the above building.
“5. $2,000 on the frame, composition roof dog kennel #2.
“6. $2,000 on the contents in the above building.”
Items 5 and 6 are involved in this suit. A stove located in dog kennel #2 did not function properly, resulting in smoke damage to the kennel and death of several dogs kept by plaintiff for breeding and show purposes.
Defendant’s contention is that a provision in a rider attached to its policy limited its liability only to “household and personal property usual or incidental to the occupancy of the premises as a dwelling” and to such household and personal property contained in “appurtenant private structures.” The provision referred to appears in the uniform standard dwelling and contents form attached to the policy of insurance. We would agree readily with defendant’s contention had the policy, as written, covered only the first 2 items listed above, for the uniform standard dwelling and contents form applies only to those, items. However, as noted the policy expressly covered, for specified additional policy benefits, 2 dog kennels and the contents of each, as to which the language contained in the uniform standard dwelling and contents form clearly is inapplicable. The trial judge did not err in ruling as a matter of law that the policy covered plaintiff’s kennels and dogs, leaving for jury determination only the cause of the loss and the amount of damage.
The interpretation placed upon the policy by Judge Searl, the trial judge, does not depend upon the extrinsic evidence of contractual intent received at the trial, for the policy language is not so ambiguous that it requires such parol evidence for understanding. In the absence of ambiguity, the rights of the parties rest on the contract as written. Cottrill v. Michigan Hospital Service, 359 Mich 472. We do not rewrite the agreement of the parties under the guise of interpretation. Patek v. Aetna Life Insurance Co., 362 Mich 292. It may also be observed in passing that all of the parol evidence taken at the trial supported, or tended to support, Judge Searl’s interpretation of the policy. The fact of the matter was that defendant’s agent, in writing the policy, told plaintiff that her dogs would be covered by its provisions and he so admitted at the trial. Therefore, even if the language of the policy is considered ambiguous, the parol evidence taken was undisputed and unambiguous, and interpretation or construction of the written contract under such circumstances was a question for the court. 65 ALR 648, 652.
Only one other matter need be considered. Plaintiff joined as a party defendant General Insurance Company of America. That defendant had previously issued a fire and extended coverage policy insuring plaintiff’s dwelling and contents, but during the course of trial, during plaintiff’s proofs and after ascertaining that plaintiff had no further evidence to introduce relating to General’s liability, Judge Searl dismissed the suit as against General on the ground that there had been a cancellation of its policy effective prior to the date of loss. Without determining the correctness of Judge Searl’s finding of prior cancellation, we affirm General’s dismissal, noting as we do that an indorsement added to its policy 1 month after it was issued expressly excluded, “liability arising out of the operation of the dog kennel.”
In the light of the foregoing, other questions presented on appeal are unnecessary for decision herein. Affirmed. Costs to appellees.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred. | [
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Carr, J.
Appellant herein was appointed as a bailiff of the common pleas court of the city of Detroit in 1941, and thereafter proceeded for a number of years to perform the duties of said office in connection with the service of process. By order of 3 judges of said court he was removed on January 27, 1960, and his name stricken from the list of bailiffs. Such action was taken following a hearing, before the judges signing said order, on a petition filed by the clerk of said court, on January 6th preceding, alleging that defendant had abandoned and vacated the office in violation of statute because of his failure to serve process assigned to him. From the order entered an appeal was taken to the circuit court of Wayne county which, under date of July 21, 1960, affirmed the order of the common pleas court. In connection with the proceeding in the circuit the parties filed a stipulation of facts in lieu of a transcript of the testimony taken on the hearing above mentioned. On appeal to this Court it is the claim of defendant that the order of removal was unauthorized by law and unwarranted under the facts.
The stipulation of facts filed in circuit court, and incorporated in the record before us, sets forth that in his capacity as bailiff appellant served process from the common pleas court until July, 1958, when he advised the clerk of the court that he wished to take a vacation and requested that process assigned to him should be delivered 'to another bailiff for service. Apparently the request was complied with, the clerk presumably assuming that appellant’s vacation period would be reasonably limited. However, during the period from July, 1958, until early in January, 1960, another bailiff, Gerald Clancy, continued to serve process assigned to defendant under a rotating system initiated by the court, a portion of the fees received therefor being turned over to defendant. Apparently he received during the period in question amounts varying from $35 to $150 per month while giving his time and efforts to his personal business affairs.
It was further stipulated that the practice had been observed on occasions by the bailiffs in the common pleas court to work “in teams”, assisting one another in the service of process. It does not appear, however, that arrangements of the character entered into by Mr. Cartwright had been made by other bailiffs or had been sanctioned by the judges of the court. It is a fair inference that the practice referred to in the stipulation was adopted in some instances to facilitate the service of process and to insure the making of proper service in the event that the bailiff to whom the process had been assigned in rotation was unable to act. In 1957 appellant signed a statement or declaration, at the request of the clerk of the court, setting forth his willingness and ability to serve process. In the early part of 1960 he renewed performance of the duties of his office, for which he received fees paid after the date of the institution of the removal proceeding.
On the filing of the petition asking Mr. Cartwright’s removal from the office of bailiff the clerk was directed by the presiding judge of the common pleas court to omit the name of appellant from the list of bailiffs authorized to serve process in garnishment and assumpsit proceedings. Such order did not prevent appellant from serving writs of execution, replevin, and attachment. Whether he actually served such writs following the order of suspension does not appear.
The common pleas court of the city of Detroit is governed by the provisions of PA 1929, No 260, as ■amended (CL 1948, § 728.1 et seq., as amended [Stat Ann and Stat Ann 1959 Cum Supp § 27.3651 et seq.]). The statute fixes the jurisdiction of the court, provides for the election of the judges and duties thereof, and for the appointment of a clerk and bailiffs. Section 28 of the act (CL 1948, § 728.28 [Stat Ann 1959 Cum Supp § 27.3679]) reads as follows:
“Every bailiff of the city in which the court , is situated serving process out of any such court shall be answerable thereto for all his conduct in the line of duty; and it shall be the duty of every such court to compel bailiffs serving process out of such court to perform their duties, to examine into complaints against them, to determine their guilt or innocence of misfeasance and/or malfeasance in office and to discipline any offending bailiffs in manner as herein provided. Inquiry into the conduct of any bailiffs serving process out of any such court shall be instituted on complaint by the clerk thereof or by any person conceiving himself aggrieved, in manner as hereinafter provided, and may be instituted by such court on its own motion whenever the presiding judge or whenever any judge or judges thereof assigned to deal with such matters consider it expedient to do so. Where the inquiry is instituted on the court’s own motion the procedure shall be as prescribed by court rule adopted by a majority of the judges of such court. On complaint in writing by the clerk of any such court or in writing under oath by or on behalf of any person conceiving himself aggrieved, to the presiding judge or such other judge or judges thereof assigned to receive such complaint, stating allegations of fact from which it appears to the examining judge that any bailiff serving process out of such court is guilty of any misconduct in office, such judge shall issue an order in writing directed to such bailiff requiring him to appear before the presiding judge or any judge or judges of said court assigned to hear such complaint, at a time fixed in such order, and show cause why said court should not take disciplinary action against such bailiff. A copy of said complaint and order shall be served on such bailiff prior to the date of hearing, the time and manner of service to be fixed in the order. No complaint, after the filing thereof as aforesaid, may be withdrawn nor shall the same or any proceeding thereon be dismissed or discontinued except by written order of the court for good cause shown, the reasons therefor to be stated in the order. The judge or judges hearing said complaint may permit or, on the court’s own motion, order the filing of amendments thereto, may continue the hearing thereon from time to time, as the ends of justice may require, and, at any time prior to the final disposition of such matter, may require the prosecuting attorney of the county where such court is situated to prosecute said complaint, and the county where such court is situated shall pay the fees for such witnesses, depositions, if any, and such other evidence adduced by such prosecutors as the judge or judges in charge of said proceedings shall approve or certify to the board of county auditors. No fees shall be allowed or paid to such prosecutors for their services. In the event such bailiff shall be found guilty of any misfeasance and/or malfeasance in office as herein defined, the trial judges shall have power, in their discretion, as follows: (a) permanent removal from office of such officer; (b) suspension from office for a definite period; (c) a finding of contempt of court and the imposition of a penalty therefor as provided by law. The punishment, provided in clause (c) hereof, may be imposed concurrently with the provision in cause (a) or (b) hereof. All findings of guilt and all orders of punishment may be confirmed by a majority of the judges of the court. The findings of fact made by such judges shall be based upon a record stenographically reported: Provided, however, That an appeal from the order of such judges shall lie to the circuit court of the county in which such court is located on all questions of law and facts and upon said record, and a further appeal to the Supreme Court of the State of Michigan.”
It is the claim of appellant that the making and carrying out of the arrangement for the service of process assigned to him in rotation did not constitute misfeasance in office. In substance it is argued in his behalf that he was within his rights in procuring another bailiff to serve such process, and to share in the fees therefor. Reliance is placed in this regard on a provision of section 23 of the act (CLS 1956, § 728.23 [Stat Ann 1959 Cum Supp § 27.3674]) requiring that the bailiffs “shall promptly serve or cause to be served and execute all process, writs and/or orders delivered to them as herein provided.” It is asserted in substance that appellant caused process assigned to him to be served and that, in consequence, he complied with the letter of the statute. The judges of the court of common pleas disagreed with such claim, concluding that the conduct of defendant did not constitute proper performance of the duties of his office, and that under the language of the statute above quoted it was the duty of the court to take action. Such conclusion was summarized as follows:
“It is clear, unquestionably clear, that this respondent did not obey the dictates of the statute in that regard and that he showed a complete lack of diligence amounting to an abandonment of the office of bailiff of the common pleas court.
“We also find from the testimony in this case that the defendant from the testimony is guilty of misfeasance. Therefore, the name of respondent Arthur Cartwright is ordered stricken from the list of bailiffs of the common pleas court, and the said Arthur Cartwright is hereby ordered removed from the office of bailiff of the common pleas court and the said office is hereby declared vacant.”
Appellant contends that he did not abandon the office of bailiff and directs attention to the fact that in January, 1960, he served some process. It is a fair inference, however, that his action in this regard was prompted by the fact that the question had been raised as to the propriety of the arrangement for the service of process which in effect relieved him from the performance of his official duties, thus permitting him to devote his entire time and attention to private business matters. It is not disputed that during the period of approximately 1-1/2 years he did not personally perform his duties as bailiff, required by statute to serve process assigned to him, but, rather, undertook to delegate such duties to a fellow bailiff. It is clear that he practically ignored the office other than to share in the fees paid for service of process made by another.
The judges' of common pleas court pointed out in their opinion, based on the testimony taken before them, that during the period in question from July, 1958, to early in January, 1960, appellant had no knowledge as to the number of summons or writs assigned to him for service, that he kept no record thereof, and that he did not attempt to ascertain whether process issued to him had been served. The conclusion may not be avoided that Mr. Cartwright was not performing the duties of his office in the manner contemplated by the statute. From a practical standpoint he abandoned performance of his official duties during a period of approximately 18 months.
Did the acts of the defendant on the basis of which the order of removal was made constitute misfeasance within the meaning of the section of the controlling statute, above quoted? The term is defined in 67 CJS, Officers, § 60, p 250, as follows:
“ ‘Misfeasance,’ as a cause for removal from office, is a default in not doing a lawful thing in a proper manner, or omitting to do it as it should be done.”
The fee-splitting arrangement into which defendant entered with his fellow bailiff enabled him to receive compensation for services that he did not personally render. His lack of attention to the work of his office was not consistent with his duties as a public officer. The arrangement made was not consistent with sound principles of public policy relating to the performance of official acts for which the incumbent of the office was charged with personal responsibility. If such an arrangement may be made within the purview of the statute, it is obvious, as suggested by counsel for appellee in argument, that other bailiffs might follow a similar course, thereby creating a situation interfering with the proper performance of their duties and at variance with the proper functioning of the court of which they are officers.
Defendant’s course of conduct was not only unauthorized hy the statute under which he held his office but was inconsistent with the manifest intention of the legislature as expressed in the language pertaining to the duties of bailiffs and the authority of the court with reference thereto. We think that conduct of such character must be regarded as constituting misfeasance in office within the commonly-accepted definition of that term. The duty clearly rested on appellant to properly perform the duties of the office to which he had been appointed.
In view of the factual situation this case is somewhat unusual, but general principles applicable to public offices are in accord with the finding and order of the common pleas court and of the circuit court of Wayne county. State, ex rel. Rockwell, v. State Board of Education, 213 Minn 184 (6 NW2d 251, 143 ALR 503); People, ex rel. Johnson, v. Coffey, 237 Mich 591 (52 ALR 1); 67 CJS, Officers, § 60, p 250 et seq.; 43 Am Jur, Public Officers, § 195 et seq., p 39 et seq.
The order of the circuit court from which defendant has appealed is affirmed. Questions at issue being matters of public concern, no costs are allowed.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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] |
Souris, J.
This lawsuit resulted from a rear-end collision, plaintiff being the driver and owner of the front car involved. The questions of defendants’ negligence and plaintiff’s contributory negligence were removed from the jury’s consideration by the trial judge, defendants having admitted liability in their opening statement. The sole issue before the jury was the amount of damages, if any, recoverable by plaintiff. In reporting the verdict the jury fore-, man said:
“We have decided to give the plaintiff $25 damages that he paid for his automobile, plus his hospital and X-rays which was another $200.”
In allowing plaintiff to recover for his special damages, the jury must necessarily have found that he suffered injuries proximately caused by defendants’ negligence. The court properly instructed the jury with respect to its duty to award such special damages in the event it found that defendants proximately caused plaintiff’s injuries. The court also properly charged that in that event plaintiff should be awarded, in addition, an “amount that will compensate him as far as money can compensate him for the pain and suffering that he has endured.” There was much disputed testimony relating to plaintiff’s medical history and physical condition both prior and subsequent to the collision here involved. Defendants sought to prove that plaintiff’s injuries had been caused by other events, principally athletic and body-conditioning activities in which he engaged rather extensively, and, of course, plaintiff sought to prove his claim that the injuries were caused by defendants. The jury resolved the dispute in plaintiff’s favor by its verdict, which included damages for plaintiff’s medical expenses. The jury’s verdict, however, manifests a disregard of the court’s quoted instruction by its failure to award damages for pain and suffering. Once the jury resolved the causation dispute, the great weight of the evidence compelled it to award plaintiff damages for the pain and suffering which naturally followed such injuries found by the jury to have been proximately caused by defendants. The language of this Court in Weller v. Mancha, 353 Mich 189, 195, 196, is applicable here :
! '“The jury verdict was for the exact amount of the stipulated special damages of the deceased. It is apparent that no consideration was given by the jury to the additional elements of the pain and suffering of the deceased and the future damages of the widow and minor child, and, therefore, the damages awarded to plaintiff were overwhelmingly against the evidence, and, under the evidence, grossly inadequate.”
We deem it unnecessary to discuss other questions raised in this appeal, as they are unlikely, to occur upon retrial.
Reversed and remanded for new trial. Costs to plaintiff.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Souris, J.
See, also, annotation at 20 ALR2d 276 and eases cited therein. | [
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Souris, J.
A judgment for $10,000 for breach of contract was entered after trial before the court without a jury. Appellant, Midway Sales, Inc., claims on appeal that the judgment is against the preponderance of the evidence. The letter set forth in full in the margin is the source of this dispute. Midway-claims that when it used the name Brothers Delicatessen in the letter it meant Brothers Delicatessen and Bestaurant, Inc., a Michigan corporation operating in the Detroit area, and that the trial judge was not justified by the preponderance of the evidence in finding, as he did, that it meant The Brothers, a co-partnership preparing to operate a delicatessen in the Lansing area.
Midway and others are the owners of the Frandor shopping center near the city of Lansing. In 1954 Midway entered into a 15-year lease with Brothers Delicatessen and Bestaurant, Inc., and its stockholders, the agreement providing that Midway would construct a store in its shopping center to be used as a delicatessen by the lessees. Subsequently, the lessees determined that they could not proceed with the lease and, on November 25, 1955, several agreements were executed which materially altered the lease. On that date, the following occurred:
1. The lease was amended to reduce the size of the leased premises and the minimum yearly rental therefor. The amendment also provided that Midway would loan the lessees the sum of $10,000 “to help fixture the building,” which loan was to be evidenced by a promissory note bearing 6% interest and payable at the rate of $2,000 per year beginning on February 1,1957.
2. The lessees assigned all of their right, title and interest in and to the lease to Leon and Claire Baminick and George and Anne Waldman, and the assignees assumed and agreed to make all of the payments and to perform all of the promises, covenants, conditions, and agreements of the lessees. The assignment specifically provided, however, that the assignors’ liability under the lease would continue in full force and effect.
3. Midway acknowledged the foregoing assignment and assumption of the lease and agreed, by marginal notation on tbe lease, to relieve the stockholders of Brothers Delicatessen and Restaurant, Inc., of all “responsibility” under the lease on February 1,1961..
Mr. Raminick and Mr. Waldman, 2 of the assignees, of the original lessees, proceeded with arrangements to equip and operate the leased premises as a delicatessen under the name Brothers Delicatessen, although the assumed name of the business was The Brothers. They arranged to purchase their fixtures, from plaintiffs in this suit, but neither Raminick nor Waldman, to the knowledge of all parties involved herein, was financially responsible. Plaintiffs were willing to sell them the fixtures on a conditional sale contract with a down payment of $10,000 upon delivery, but before ordering their fabrication plaintiffs wanted assurance that the $10,000 down payment would be made. The January 25, 1956, letter from appellant quoted in the margin above was the assurance upon which plaintiffs relied. The fixtures were fabricated and installed in the premises by May 8, 1956, but plaintiffs never were paid the $10,000 down payment thereon. When plaintiffs, together with Raminick and Waldman, called upon appellant for the $10,000, appellant gave them a $10,000 check drawn to the order of plaintiffs and Brothers Delicatessen and Restaurant, Inc., and that corporation’s stockholders instead of to plaintiffs and the Raminicks and Waldmans. Appellant took the position that the letter of January 25, 1956, referred to the “Detroit Brothers Delicatessen” and not to the Lansing group. The Detroit corporation and its stockholders refused to indorse the check so that plaintiffs could negotiate it and this suit resulted.
The foregoing facts are not disputed. The only significant factual dispute relates to a meeting in appellant’s offices on January 25, 1956, at which the letter was dictated by appellant’s president, a Mr. 'Corr, and delivered to Jesse E. Feiler, one of the plaintiffs. Feiler testified that Corr said he would ■give Feiler a letter stating that the $10,000 would he paid plaintiffs through Waldman and Eaminick. Feiler, Waldman, and a representative of the fixture manufacturer, all of whom were present at the January 25,1956, meeting, each testified in effect that all parties understood Brothers Delicatessen, as used in the letter, to mean the business operated by Wald-man and Eaminick. Corr alone denied that any of this was so and testified that, whatever the others had in mind, he intended at all times to refer to the Detroit group, the original lessees under the lease. It is appellant’s contention that this record discloses a failure of mutual assent, that there was no meeting of the minds on all essential points necessary to constitute a valid contract. Appellant also claims there was no consideration from plaintiffs for its undertaking to supply the money.
The trial judge found as a fact that all parties, appellant included, understood that Brothers Delicatessen, as used in the letter, referred to the Waldmans and Eaminicks. The evidence summarized above, and in other respects not essential to an understanding of this case, clearly preponderates in favor of the trial court’s finding. Appellant claims it is unreasonable to believe it would undertake to loan financially irresponsible Waldman and Eaminick $10,000, but is it? Appellant had the assurance that the money it undertook to advance would be used to pay for fixtures installed in its building. In addition, the Detroit group’s liability under the lease continued until at least February of 1961, and it will be remembered that the lease was amended on November 25, 1955, to include the loan agreement, which called for complete repayment of the $10,000 by February 1, 1961. Whether or not the Detroit group’s liability included liability to appellant in the event of a default by Waldman and Raminick in repaying the contemplated loan is not necessary to decision in this case. The conclusion is inescapable that appellant fully intended to make the loan to Waldman and Raminick, the only ones who could apply it “on fixtures for their store in Frandor shopping center,” in the words of the disputed letter.
As for appellant’s claim that the letter of January 25,1956, did not constitute an agreement binding upon it because there was no consideration for its undertaking, we find therein no basis for reversal of the trial court’s judgment. Whether or not an enforceable obligation arose at the moment appellant gave plaintiffs its letter, upon performance of the conditions set forth therein by plaintiffs in reliance upon appellant’s promise, the obligation became enforceable against appellant. People v. Taylor, 2 Mich 250; Paxton v. Paxton, 28 Mich 159; Thomas v. South Haven & Eastern R. Co., 138 Mich 50; Holt v. Stofflet, 338 Mich 115; 1 Restatement, Contracts, § 90; 50 Mich L Rev 639 and 873.
In only one respect does the judgment of the trial court require modification. No interest was allowed plaintiffs on the judgment although performance of the promise was due in May of 1956. It was undisputed at the trial that the fixtures were installed and the delicatessen commenced business on May 8,1956, and that Waldman and Raminick would have indorsed appellant’s $10,000 check to plaintiffs for their use had appellant not insisted upon naming thereon the Detroit group. Interest at the legal rate from May 15, 1956, should have been allowed plaintiffs on their judgment, plaintiffs’ declaration claiming therefor only from said date. Bernstein v. Shifman, 358 Mich 699.
Judgment affirmed and remanded for addition of interest. Costs to plaintiffs.
Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
Dethmers, C. J., did not sit.
“MIDWAY SALES, INC.
1205 E. Saginaw Street Lansing 6, Michigan
Francis J. Corr, President Telephone 2-0841
“January 25, 1956
“Louis Feiler Company
1434 Gratiot Avenue
Detroit 7, Michigan
“Gentlemen:
“We are writing this letter to advise you that we have a clause in our lease with Brothers Delicatessen whereby we are loaning them $10,000 to apply on fixtures for their store in Frandor Shopping Center.
“Upon delivery of the equipment we will issue a check jointly to Brothers Delicatessen and Louis Feiler Company to fulfill the qualifications of our lease.
“Sincerely,
MIDWAY SALES, INC.
/s/ F. J. Coee
FJC:rl Francis J. Corr, President” | [
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Edwards, J.
Plaintiff and appellant is the assignee of a fire insurance policy upon a house. After the house concerned was damaged by 2 fires, plaintiff filed a bill of complaint in equity to compel the defendant insurance company to accept the assignments involved and pay the loss to her. Defendant insurance company claimed the assignments were without defendant’s knowledge or consent and that the policy’s specific terms rendered them invalid.
The circuit judge heard the case on an agreed statement of facts and dismissed the bill of complaint.
The stipulated facts follow:
“In order to facilitate trial of the above cause, the parties hereto, through their respective attorneys, have agreed upon the following facts without the necessity of further proof thereof.
“That on May 17, 1957, the defendant issued a policy of fire insurance through its agent,- Bruno F. Domzalski, bearing No. 200,308, insuring Leslie and Evangeline Pearson for the sum of $5,000 against loss sustained by reason of fire to a dwelling house known as 11737 Groodwin avenue, Highland Park, Michigan for a period of 3 years from the above date to May 17,1960, the premium being paid therefor.
“That the policy of insurance contained a mortgage clause in favor of Helen B. Bay and Nancy Day Nester. On November 5, 1957, an indorsement was made on the said policy showing that the mortgage interest of Helen B. Day and Nancy Day Nester had been satisfied, and a mortgage clause in favor of Henry Burkhardt and Eleanor Burkhardt, his wife, was attached thereto.
“On January 29,1958, Leslie and Evangeline Pearson conveyed by quitclaim deed the premises in question to Plenry Burkhardt and Eleanor Burkhardt, his wife, and on said date did assign their interest in said policy of insurance to Henry and Eleanor Burkhardt.
“On April 21,1958, Henry and Eleanor Burkhardt by quitclaim deed conveyed their interest in said dwelling to the plaintiff herein, and on said date did assign their interest in said policy of insurance to the plaintiff.
“Neither of these assignments of the insurance policy were ever given to the defendant or to the defendant’s agent, Bruno Domzalski; nor did the company or its agent ever consent to the assignment of said policy.
“On either November 1 or November 2,1958, a fire occurred in said dwelling causing damage to the premises. The plaintiff duly notified Bruno Domzalski, defendant’s agent, of the loss and notice of the loss was sent to Nelson & Killian, Inc., the defendant’s adjusters.
“On November 17, 1958, the assignments above mentioned were mailed to Nelson & Killian, Inc., the defendant’s adjusters, but were not accepted or consented to by either the said adjusters or the defendant. On November 18, 1958, a 10-day notice of cancellation of said policy was sent to Leslie Pearson and Evangeline Pearson and to Henry and Eleanor Burkhardt, as mortgagees under said policy, and the unused portion of the premium was tendered to Leslie Pearson and Evangeline Pearson, the assureds under said policy of insurance.
“That on November 25,1958, a second fire occurred and the plaintiff duly notified the defendant of said loss.
“It is admitted that the damage caused by the 2 fires was in excess of the policy limits, and if plaintiff is to recover her damage, it would be in the amount of $5,000.
“That on November 5, 1957, a letter was sent by the city of Highland Park to Leslie Pearson advising him that condemnation proceedings were being started due to the poor condition of the dwelling and advising that the dwelling was unfit for occupancy until the necessary repairs were made. That at the time of the fires no repairs had yet been made to said dwelling to make it fit for habitation.
“That the defendant has refused to acknowledge any liability for this loss on the ground that it had not been notified of, nor had it consented to the assignments of said policy of insurance, and that under the terms of the said policy of insurance, that no assignment is valid unless consented to by the defendant.”
The clause relied upon .by defendant insurance company was printed on the face of the policy:
“Assignment of this policy shall not be valid except with the written consent of this company.”
Thus this case presents the question as to whether in an action in equity an assignee of a fire insurance policy has any recourse when, after notice of loss, the insurance company cancels the policy, tenders back the premiums and denies liability because the assignment was made without notice to the company and acceptance thereby as required by express language in the policy.
As we have noticed, the circuit judge who heard this matter answered this question in the negative. In doing so he relied upon established authority. Kamm & Schellinger Brewing Co. v. St. Joseph County Village Fire Insurance Co., 168 Mich 606; Cleaver v. Traders’ Insurance Company, 65 Mich 527 (8 Am St Rep 908); 29 Am Jur, Insurance, § 653.
Actually in one sense the 2 Michigan cases cited above are considerably stronger cases for the plaintiffs involved than is our present one. In each, an insurance agent knew of the facts about which the claimant was required to inform the insurance company.
Appellant, however, claims that these cases involved mutual insurance companies and that to such companies the identity (and responsibility) of the insured was of greater importance than it is to the modern stock company. This record does nothing, however, to establish this distinction and, if true, it is hardly common knowledge as to which the Court would be inclined to take judicial notice.
Further, appellant fails to cite one authority which supports the proposition that legal effect may be given an assignment made without the insurance company’s knowledge or consent when the specific terms of the insurance contract are to the contrary.
On the contrary, the general rule appears to hold that fire insurance contracts are personal and that the identity of the insured is a matter of importance to the insuring company.
Indeed, Appleman says:
“A provision that a fire policy shall be void if it is assigned without the insurer’s written consent is valid and enforceable, as has been seen. While such provisions will usually be construed against the insurer to prevent a forfeiture, yet they must be upheld where they clearly and plainly exist.” 5 Appleman, Insurance Law & Practice, § 3425.
See, also, Leonard v. Farmers’ Mutual Fire Insurance Co. of Monroe and Wayne Counties, 192 Mich 230; 6 Couch, Cyclopedia of Insurance Law, § 1450; 66 ALE. 864, annotation.
Finally, we note that the language of the assignment provision relied upon by the insurance company herein is an exact copy of the wording on the first page of the Michigan standard policy, set forth in the Michigan insurance code of 1956 (CLS 1956, § 500.2832 [Stat Ann 1957 Rev §24.12832]), which all fire insurance companies are required to follow.
Whether or not this standard assignment clause grants an unfair windfall to fire insurance companies in some instances would appear to be subject to legislative consideration.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black, and Souris, JJ., concurred.
Kavanagh, J., did not sit. | [
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] |
Kavanagh, J.
By this action against Blair Transit Company, a common carrier, plaintiff seeks to recover $3,363.35 for loss sustained as a result of damage in transit to a through shipment from Buffalo, New York, to Pontiac, Michigan, under a uniform motor carrier’s hill of lading. Defendant is the connecting and terminal carrier which delivered the shipment to plaintiff’s plant at Pontiac, Michigan, on February 26,1957.
The bill of lading under which this shipment was carried contained the following contractual provision pertaining to defendant’s liability for damages to goods in transit:
“Sec. 2(b) As a condition precedent to recovery, claims must he filed in writing with the receiving or delivering carrier * * * within 9 months after delivery of the property. * * * Where claims are not filed * # * in accordance with the foregoing provisions, no carrier hereunder shall he liable, and such claims will not be paid.”
On or about the 28th of February, 1957, plaintiff verbally notified defendant the equipment was damaged. In response to this notification, and on or about March 1, 1957, defendant inspected the equipment and found it to be damaged. On such date a form entitled “Loss and Damage Inspection Report” was completed and signed by agents for both plaintiff and defendant. Such report detailed the extent and nature of the damage and that it was caused while in defendant’s possession. On March 6, 1957, plaintiff further notified defendant in writing that plain tiff held defendant responsible and liable for the damage caused to the equipment by the following letter:
“March 6, 1957
“Blair Trucking Company
“675 South Saginaw Street
“Pontiac, Michigan
“Attention: Mr. George Plank
“Gentlemen:
“We are filing a claim against your company for damages incurred in transit on 4 Westinghouse quick disconnect switches and cabinets. This material was sent to Westinghouse for repair on March 5,1957, in accordance with your report of March 1st, in which you stated that your company was aware of the extent of such damages.
“Westinghouse will notify us of the cost of such repair, at which time our claim for repayment will be forwarded to you.
“Very truly yours,
“Warren Alloy ((__
“A. H. Stafford
“Material Control Manager”
Defendant moved that the declaration and cause of action be dismissed for the reason plaintiff failed to comply with the requirement of the bill of lading that claims be filed within 9 months from the date of delivery.
The trial court granted the motion to dismiss, finding that plaintiff’s letter of March 6, 1957, and the “Loss and Damage Inspection Report” were mere expressions of intent to file a claim and that the letter and report did not constitute the filing of a claim within the provisions of the bill of lading. Prom such finding plaintiff appeals.
The United States supreme court in Georgia, Florida & Alabama R. Co. v. Blish Milling Co., 241 US 190, 193 (36 S Ct 541, 60 L ed 948), held that a telegram identifying the shipment and stating “We will make claim against railroad for entire contents of car at invoice price,” was in substance the making of a claim within the meaning of the stipulation, the object of which was to secure reasonable notice.
This Court in Snyder v. King, 199 Mich 345 (1 ALR. 893), with reference to a contention plaintiff: shipper could not recover because he did not file a verified claim within 5 days as required under a uniform contract provision, stated (pp 355-357):
“In our opinion the only serious question here involved is whether there was a substantial compliance with the 5-day requirement. In the Blish Milling Company Case [supra] it was held that the parties could not waive conditions ‘fixed by the agreement made under the published tariffs and regulations.’ The court, however, reached the conclusion that a telegram sent by the plaintiff to the defendant to the effect that the shipper ‘would make claim against the railroad for entire contents of car at invoice price,’ taken in connection with other telegrams identifying the shipment, was a substantial compliance with the bill of lading provision in question, and therefore affirmed the Georgia court. In that case, Justice Hughes, after referring to the telegrams, and stating that the object of the stipulation was to secure reasonable notice, said (p 198) :
“ ‘We think that it sufficiently apprised the carrier of the character of the claim, * * * and it is plain that no prejudice resulted. Granting that the stipulation is applicable and valid, it does not require documents in a particular form.' It is addressed to a practical exigency, and it is to be construed in a practical way. The stipulation required that the claim should be made in writing, but a telegram which in itself or taken with other telegrams contained an adequate statement must be deemed to satisfy this requirement.’ — citing cases.
“The object of the stipulation was reasonable notice. If the telegram was a substantial compliance with the stipulation in the BlisJi Milling Company Case, may not the report from the agent of the defendants at Hart to the office at Detroit, made after his own personal examination of the horses after they had been unloaded and under the circumstances stated, be deemed a substantial compliance with the contract in the instant case? We think so. An investigation by a claim agent followed, and there was no claim of surprise, or that defendants had been misled. In the McLaughlin Case [Chesapeake & Ohio R. Co. v. McLaughlin, 242 US 142 (37 S Ct 40, 61 L ed 207)] the stipulation was the same as. in the instant case, and the court said:
“ ‘Upon its face the agreement seems to be unobjectionable, and nothing in the record tends to* establish circumstances rendering it invalid or excuse failure to comply therewith.’
“We think this reaffirms the doctrine of the Blish Milling Company Case, which is therein cited. Plaintiff’s counsel in this court do not claim that the 5-day-clause can be waived, but that there was a substantial compliance with it, ‘when the contract and the' facts are given practical construction in the light of the practical exigency which existed in the case/' With this contention we agree.”
In Boyd v. King, 201 Mich 436, Justice Steers, writing for this Court, after noting plaintiff had notified defendant twice by telegram that “we shall hold said P.M.R.R. Co. for all damages,” continued (p. 441):
“Defendants were certainly advised promptly that-a claim was made, so that a timely investigation of' the facts could be had if desired, which is said to be the ‘obvious purpose of the notice’.” (Citing Slider v. Pere Marquette R. Co., 194 Mich 581, and Snyder v. King, supra.)
The same rule of law applies to the facts in the instant case. The trial court erred in granting the motion to dismiss.
The order of dismissal is hereby reversed, and the case is ordered reinstated. Plaintiff shall have costs.
Dethmers, C. J. and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred. | [
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ON REMAND
Before: BECKERING, EJ., and WHITBECK and M. J. Kelly, JJ.
Per CURIAM.
This case returns to us on remand from our Supreme Court to reconsider whether the trial court properly dismissed plaintiff Devon Scott Bailey’s claims against defendants T.J. Realty, Inc., which did business under the name Hi-Tech Protection, Inc. (Hi-Tech), Evergreen Regency Townhomes, Ltd. (Evergreen), and Radney Management & Investments (Radney). Bailey v Schaaf, 494 Mich 595, 618-619; 835 NW2d 413 (2013). For the reasons more fully explained in this opinion, we again conclude that the trial court erred when it dismissed Bailey’s claim against Evergreen and Radney for breach of their duty to involve the police after learning of an ongoing criminal emergency, but did not err when it dismissed Bailey’s remaining claims. Accordingly, we again affirm in part, reverse in part, and remand for further proceedings.
I. BASIC FACTS
In November 2007, Bailey sued various parties to recover damages for injuries he sustained after defendant Steven Gerome Schaaf shot him at an outdoor gathering on the grounds of an apartment complex. See Bailey v Schaaf, 293 Mich App 611, 616-617; 810 NW2d 641 (2011). In addition to his claim against Schaaf, Bailey eventually alleged claims against Evergreen, which owned the apartment complex; the complex’s manager, Radney; the business that provided security for the complex, Hi-Tech; Hi-Tech’s owner, Timothy Johnson; and the security guards that Hi-Tech assigned to the complex on the day of the shooting, William Baker and Christopher Campbell. Id. at 617. The trial court dismissed the claims against the individual defendants — Baker, Campbell and Johnson — after Bailey’s lawyer declined to argue a basis for holding them individually liable. Id. at 618. The trial court later dismissed the claims against Evergreen, Radney, and Hi-Tech, but entered a default judgment against Schaaf. Bailey then appealed the trial court’s decision to dismiss his claims against Evergreen, Radney, and Hi-Tech to this Court. Id. at 619-620.
In that first appeal, we addressed three issues: whether the trial court abused its discretion when it allowed Evergreen and Radney to amend their responses to Bailey’s request for admissions, whether the trial court erred when it determined that Bailey was not a third-party beneficiary of the contract for security services between Evergreen and Hi-Tech, and whether the trial court erred when it dismissed Bailey’s claims against Evergreen, Radney, and Hi-Tech under MCR 2.116(C)(8) after it determined that Bailey failed to identify a duty that any of these defendants owed to him. See Bailey, 293 Mich App at 614-615, 627. We concluded that the trial court did not abuse its discretion when it permitted Evergreen and Radney to amend their responses to Bailey’s request to admit and did not err when it determined that Bailey was not a third-party beneficiary under the contract between Evergreen and Hi-Tech. Id. at 620-626.
Turning to the duties that Evergreen and Radney may have owed to Bailey, this Court surveyed the authorities addressing a premises possessor’s duty to his or her invitees and recognized that the common law does not normally impose a duty to protect invitees from criminal acts by third parties. Id. at 629-642. This Court, however, acknowledged that our Supreme Court had determined that merchants have a limited duty to respond to criminal acts: the merchant must expedite the involvement of the police “when a situation presently occurring on the premises poses a risk of imminent and foreseeable harm to identifiable invitees.” Id. at 636, citing MacDonald v PKT, Inc, 464 Mich 322, 326, 335, 338; 628 NW2d 33 (2001). We then reasoned that the limited duty to involve the police applied equally to landlords. Bailey, 293 Mich App at 640-642. Because Bailey’s complaint adequately alleged a claim against Evergreen and Radney premised on this limited duty, we determined that the trial court erred when it dismissed Bailey’s claims against Evergreen and Radney under MCR 2.116(C)(8). Id. at 642.
Finally, we determined that Hi-Tech had no comm on - law duty to protect Evergreen and Radney’s invitees from criminal acts by third parties; we explained that any duty that Hi-Tech may have had arose from its contract to provide security services, which Bailey could not use as a basis for his claim because he was not a third-party beneficiary under the contract. Id. at 642-643, citing Fultz v Union-Commerce Assoc, 470 Mich 460, 461-462; 683 NW2d 587 (2004). For that reason, we concluded that the trial court did not err when it dismissed Bailey’s claim against Hi-Tech. Id. at 643.
On further appeal, our Supreme Court affirmed this Court’s extension of the duty stated in MacDonald to the landlord-tenant relationship. Bailey, 494 Mich at 618-619. It did not, however, affirm this Court’s judgment in its entirety; it vacated a portion of the opinion and remanded the case for consideration of two issues. Id. at 619.
First, it asked this Court to consider Evergreen and Radney’s argument that the dismissal of the claims against the security guards relieved them of vicarious liability under the decision in Al-Shimmari v Detroit Med Ctr, 477 Mich 280; 731 NW2d 29 (2007). See Bailey, 494 Mich at 619. The Supreme Court indicated that this Court should additionally consider whether Evergreen and Radney properly preserved that issue for appeal. Id.
Second, the Supreme Court asked this Court to reconsider our decision concerning Hi-Tech’s duty to Bailey — if any — in light of the decisions in Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157; 809 NW2d 553 (2011), and Hill v Sears, Roebuck & Co, 492 Mich 651; 822 NW2d 190 (2012), which clarified and applied the holding in Fultz. See Bailey, 494 Mich at 619.
II. HI-TECH’S DUTY
A. STANDARD OF REVIEW
We first reconsider whether the trial court properly dismissed Bailey’s claim against Hi-Tech on the grounds that he failed to show that Hi-Tech owed him a duty that was distinct from those provided under Hi- Tech’s agreement with Evergreen and Radney. This Court reviews de novo whether the trial court properly granted a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo whether the trial court properly interpreted and applied the common law. Brecht v Hendry, 297 Mich App 732, 736; 825 NW2d 110 (2012). Likewise, whether Hi-Tech owed a duty to Bailey is a question of law that this Court reviews de novo. See Fultz, 470 Mich at 463.
B. CONTRACTUAL DUTIES AND TORT LIABILITY
In our prior opinion, we determined that Bailey “failed to identify a duty that was separate and distinct from Hi-Tech’s duties under its contract with Evergreen.” Bailey, 293 Mich App at 642. We noted that Hi-Tech had no common-law duty to protect Bailey from Schaaf or even to take some affirmative step to aid him after he was injured. Id. Instead, we stated, to the extent that Hi-Tech had any duty to act, its “duties were created by the terms of the contract” that it had with Evergreen. Id. Because Bailey had no right to enforce a “duty imposed solely under a contract to which he is not a party or an intended beneficiary,” we concluded that Bailey failed to state a claim against Hi-Tech. Id. at 643. Although we applied our Supreme Court’s decision in Fultz, the Supreme Court has now nevertheless asked us to reconsider our decision in light of the clarification of Fultz that it provided in Loweke and Hill. Bailey, 494 Mich at 619. Accordingly, we briefly trace the evolution of the test stated in Fultz and clarified in Loweke and Hill.
In order to recover against Hi-Tech, Bailey had to establish as a threshold matter that Hi-Tech owed him a duty of care. See Hill, 492 Mich at 660. Whether one person owes a duty of care to another depends — in significant part — on the relationship between those persons: “At common law, [t]he determination of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actor’s part to act for the benefit of the subsequently injured person.” Id. at 661 (quotation marks and citations omitted) (alteration in original). A duty to act for another person’s benefit may arise by contractual agreement, by statute, or under the common law. Id. at 660-661.
A party to an agreement has an enforceable contractual duty to perform as agreed in the contract. See Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham, 479 Mich 206, 212-213; 737 NW2d 670 (2007) (characterizing the right to make and enforce contracts as a fundamental right and stating that, “when parties have freely established their mutual rights and obligations through the formation of unambiguous contracts,” the courts must enforce the contract’s terms). But not every person benefited by the contractual agreement may sue to enforce the duties arising under it. Rather, only the parties to the agreement and those third parties that the contracting parties intended to benefit by the agreement may sue to enforce it. Brunsell v City of Zeeland, 467 Mich 293, 295-299; 651 NW2d 388 (2002). See also Schmalfeldt v North Pointe Ins Co, 469 Mich 422, 427-429; 670 NW2d 651 (2003).
Nevertheless, even though a party to a contract does not have a duty to perform for the benefit of third parties, Michigan courts have long recognized that persons acting pursuant to a contract may be liable to third parties at common law for negligently performing their contractual duties. Fultz, 470 Mich at 464-465 (recognizing that once a party voluntarily undertakes to perform an act, whether gratuitously or for consideration, despite having no prior obligation to do so, that party may have a duty to perform the act in a non-negligent manner). See also Hill, 492 Mich at 663 (“Having engaged to perform this undertaking, defendant installers had a common-law duty to do so with due care....”). Michigan courts have, however, struggled with distinguishing between harms caused by a contracting party’s breach of a contractual duty, for which the third party will have no cause of action, and harms caused by the contracting party’s breach of the common-law duty to perform a contract in a non-negligent manner, for which the third party may recover in an action for negligence. See Fultz, 470 Mich at 466, citing Hart v Ludwig, 347 Mich 559, 564-565; 79 NW2d 895 (1956).
In Hart, our Supreme Court had to determine whether Hazen Hart and Lorene Hart properly stated a claim in tort against Frederick Ludwig. Id. at 560. The Harts had hired Ludwig to care for their orchard, but shortly after beginning work for the 1953 season, Ludwig refused to continue working. Id. The Harts alleged a tort claim premised on Ludwig’s negligent failure to remove shoots, prune, fertilize, and protect the orchard from destructive animal life, which caused them damage. Id.
Turning to whether the Harts’ claim sounded in tort, our Supreme Court recognized that the “question is not without difficulty.” Id. The Court explained that there had arisen a distinction between claims arising from misfeasance and nonfeasance. This distinction was between claims arising from the negligent failure to perform or timely perform under the contract (nonfea sanee), which were actionable only in contract, and claims arising from active negligence causing harm (misfeasance), which were actionable in tort. Id. at 561-565. The Court stated that it was often difficult to distinguish between nonfeasance and misfeasance in borderline cases. According to the Court, such cases may involve nonfeasance, as with a surgeon’s failure to sterilize his instruments or a builder’s failure to fill a ditch, which also constitute misfeasance. Id. at 564-565. In examining the facts from those decisions in which the courts had concluded that an action in tort would lie, our Supreme Court surmised that the common thread was whether the claim involved a breach of duty that was distinct from enforcing the contractual promise:
These are all, it is true, failures to act, each disastrous detail, in itself, a “mere” nonfeasance. But the significant similarity relates not to the slippery distinction between action and nonaction but to the fundamental concept of “duty”; in each a situation of peril has been created, with respect to which a tort action would lie without having recourse to the contract itself. Machinery has been set in motion and life or property is endangered. It avails not that the operator pleads that he simply failed to sound the whistle as he approached the crossing. The hand that would spare cannot be stayed with impunity on the theory that mere nonfeasance is involved. In such cases... we have a “breach of duty distinct from contract.” Or, as Prosser puts it “if a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not.” [Id. at 565 (citations omitted).]
Because the “only duty, other than that voluntarily assumed in the contract to which [Ludwig] was subject, was his duty to perform his promise in a careful and skillful manner without risk of harm to others, the violation of which is not alleged,” the Court concluded that the Harts’ claim sounded in contract: “This is not a duty imposed by the law upon all, the violation of which gives rise to a tort action, but a duty arising out of the intentions of the parties themselves and owed only to those specific individuals to whom the promise runs.” Id. at 565-566.
Our Supreme Court reexamined the distinction between a claim arising from the failure to perform under a contract and the negligent performance of a contractual obligation in Fultz. In that case, Sandra Fultz fell and injured her ankle while walking across a parking lot owned by Comm-Co Equities. Fultz, 470 Mich at 462. Fultz sued Comm-Co as the premises possessor, but also sued Creative Maintenance Limited, which was the company that Comm-Co had hired to provide snow removal services for its lot. Id. Fultz alleged that, once Creative Maintenance undertook to clear Comm-Co’s lot, it had a common-law duty to exercise reasonable care in performing its contractual duties. Id. at 463-464. A jury eventually found that Creative Maintenance breached its duty to provide reasonable snow removal, and this Court affirmed. Id. at 462. Our Supreme Court, however, determined that Fultz’s claim against Creative Maintenance did not implicate a duty recognized under the common law.
In analyzing the issue, our Supreme Court first acknowledged that persons who undertake to perform an act for another — as with a typical agent or independent contractor — have a duty to perform the act in a nonnegligent manner. Id. at 465. The Court explained that this duty must nevertheless be one that the person specifically owed to the plaintiff or must be one that the person owed to the general public. Id., quoting Clark v Dalman, 379 Mich 251, 260-261; 150 NW2d 755 (1967). The Court recognized that Michigan courts had tradi tionally examined the “contours of this common-law duty” by drawing a distinction between “misfeasance (action) and nonfeasance (inaction) for tort claims” arising from contractual obligations. Fultz, 470 Mich at 465. Thus, “[w]e have held that a tort action will not lie when based solely on the nonperformance of a contractual duty.” Id. at 466, citing Hart, 347 Mich 559, Chase v Clinton Co, 241 Mich 478; 217 NW 565 (1928), and Churchill v Howe, 186 Mich 107; 152 NW 989 (1915).
But the Court felt that this distinction was largely “semantic” and “somewhat artificial.” Id. As had been recognized in Hart, the Court stated, the real distinction was not one of misfeasance or nonfeasance, but of duty. Fultz, 470 Mich at 466, quoting Hart, 347 Mich at 564-565. It recognized that it had, since the decision in Hart, “defined a tort action stemming from misfeasance of a contractual obligation as the ‘violation of a legal duty separate and distinct from the contractual obligation.’ ” Fultz, 470 Mich at 467, quoting Rinaldo’s Constr Corp v Mich Bell Tel Co, 454 Mich 65, 84; 559 NW2d 647 (1997). It then concluded that the “separate and distinct” definition noted in Hart and explained in Rinaldo’s offered “better guidance in determining whether a negligence action based on contract may lie because it focuses on the threshold question of duty in a negligence claim.” Fultz, 470 Mich at 467. Accordingly, it stated that Michigan courts should in the future analyze whether the claim was one that arose solely from a contract by examining whether the plaintiff pleaded that the agent or contractor violated a duty that was “separate and distinct from the defendant’s contractual obligations.” Id. “If no independent duty exists, no tort action based on a contract will lie.” Id.
Turning to the facts of the case, the Court determined that Fultz’s claims against Creative Mainte nance failed because she did not establish that Creative Maintenance had a common-law duty to remove the snow and ice from Comm-Co’s parking lot; instead, she essentially alleged that Creative Maintenance breached its contract with Comm-Co “by failing to perform its contractual duty of plowing or salting the parking lot.” Id. at 468. Moreover, although the Court agreed that the performance of a contractual obligation may amount to a breach of duty that is separate and distinct when the performing party creates a new hazard, Fultz did not allege that Creative Maintenance created a new hazard; she only alleged that it failed to clear the lot. Id. at 469. Because Fultz could not rely on Creative Maintenance’s breach of its contractual duty to Comm-Co to establish a claim against Creative Maintenance, the Supreme Court reversed the jury’s verdict against Creative Maintenance. Id. at 470.
As can be seen from a careful reading of Fultz, the Court did not alter the substantive law applicable to claims arising from the negligent performance of a contractual duty; instead, it adopted the analytical framework stated in Hart and Rinaldo’s. Nevertheless, after the decision in Fultz, some courts “misconstrued” the decision in Fultz to create a “form of tort immunity” for negligence claims raised by noncontracting third parties. Loweke, 489 Mich at 168. Specifically, some courts began to apply Fultz not by examining whether the plaintiff alleged a claim premised on a duty that was separate and distinct from the underlying contractual obligation, but by examining whether the defendant’s conduct “was separate and distinct from the obligations required by the contract or whether the hazard was a subject of or contemplated by the contract.” Id. Because of the confusion arising from these decisions, in Loweke our Supreme Court again addressed the proper analysis for determining whether a tort action will lie for the negligent performance of a contract.
In Loweke, our Supreme Court rejected the notion that Fultz established a new test premised on the nature of the obligations under the contract. In Fultz, it explained, it had merely “recast the test to focus on whether any legal duty independent of the contract existed.” Id. at 169.
Determining whether a duty arises separately and distinctly from the contractual agreement, therefore, generally does not necessarily involve reading the contract, noting the obligations required by it, and determining whether the plaintiffs injury was contemplated by the contract. Instead, Fultz’s directive is to determine whether a defendant owes a noncontracting, third-party plaintiff a legal duty apart from the defendant’s contractual obligations to another. As this Court has historically recognized, a separate and distinct duty to support a cause of action in tort can arise by statute, or by a number of preexisting tort principles, including duties imposed because of a special relationship between the parties, and the generally recognized common-law duty to use due care in undertakings. [Id. at 169-170 (citations omitted).]
Because the trial court and this Court had misapplied the test stated in Fultz to the facts in Loweke, the Supreme Court reversed the trial court’s dismissal and remanded the case for further proceedings. Id. at 172-173.
Our Supreme Court applied the clarified Fultz decision in Hill, 492 Mich 651. In that case, Marcy Hill, Patricia Hill, and Christopher Hill sued Sears, Roebuck and Co. for injuries that they sustained after Marcy Hill inadvertently released gas into her home through an uncapped gas line, which later ignited. Hill, 492 Mich at 656-657. The Hills alleged that Sears negligently in stalled an electric dryer more than three years earlier and that its negligence proximately caused their injuries. Id. at 656-657.
On appeal, the Court determined that Sears had a limited relationship with the Hills that involved meeting its contractual obligation to deliver and install the dryer and to do so with due care. Id. at 662-664. The Court rejected the contention that, by agreeing to deliver and install the electric dryer, Sears assumed additional duties not associated with the delivery and installation. Id. at 665. Instead, it held that Sears had no duty with respect to the gas line. Id. Finally, the Court agreed that Sears could be liable for breaching a duty that was separate and distinct from its contract as stated in Fultz, but concluded that the Hills failed to establish that Sears breached such a duty by creating a “new dangerous condition” or making “an existing dangerous condition more hazardous”: “The placement of the dryer did not affect the existence or nature of the hazard in any manner because the danger posed by the uncapped gas line was exactly the same before and after the electric dryer was installed.” Id. at 671.
Turning to this case, under Fultz, as clarified in Loweke and applied in Hill, Bailey could not rely solely on Hi-Tech’s promise to provide security services to Evergreen to establish a claim against Hi-Tech. Because Bailey was not a party to Hi-Tech’s agreement with Evergreen and was not a third-party beneficiary under that agreement, Bailey had to plead and be able to prove that Hi-Tech breached a duty to him that was separate and distinct from Hi-Tech’s promises to Evergreen. And, under Hill, Bailey cannot establish the breach of its common-law duty of ordinary care if Hi-Tech’s actions did not create a new hazard or make an existing hazard more dangerous.
C. ANALYSIS
Here, Evergreen negotiated and entered into an agreement with Hi-Tech that obligated Hi-Tech to provide certain security services for Evergreen’s property. In accordance with the terms of its agreement with Evergreen, Hi-Tech assigned its security guards to the apartment complex where Schaaf shot Bailey. Although Hi-Tech had a contractual obligation to provide security guards who would presumably protect Evergreen’s property, tenants, and guests, Hi-Tech had no legal duty to provide such protection because, under Michigan’s common law, a person generally does not have a duty to protect or intervene to help others who might be in danger. See Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 498-499; 418 NW2d 381 (1988) (noting that courts are reluctant to establish duties that “force persons to help one another” and recognizing the general rule is “there is no duty that obligates one person to aid or protect another”).
And, although a person may become obligated to act to protect another on the basis of certain special relationships, it is clear that none of those special relationships apply to the relationship between Hi-Tech and Bailey. See Bailey, 494 Mich at 604 (recognizing that the common law imposes a duty of care when a special relationship exists as when one person entrusts himself to the control and protection of another); Williams, 429 Mich at 499 (stating that there are “special relationships” — such as those between a common carrier and its passengers, between an innkeeper and his or her guests, between an employer and its employees— that may give rise to a duty to provide a place of safety); Dawe v Bar-Levav & Assoc, PC (On Remand), 289 Mich App 380, 390; 808 NW2d 240 (2010) (holding that the psychiatrist-patient relationship is a special relationship that may give rise to a duty to protect another from harm by a third party).
Bailey did not allege that Hi-Tech had possession and control over the premises at issue; accordingly, Hi-Tech had no duty to keep the common areas safe. See Duffy v Irons Area Tourist Ass’n, 300 Mich App 542, 547; 834 NW2d 508 (2013) (explaining that premises liability usually applies to land owners, tenants, and lessees because those persons or entities are in possession and control of the land). For the same reason, Hi-Tech had no duty as a landlord or merchant to expedite the involvement of police officers once it became aware— through its employees — that Bailey and the other guests at the gathering were in imminent danger. See Bailey, 494 Mich at 614-617.
Finally, Bailey did not allege that Hi-Tech’s employees breached their common-law duty to act with ordinary care by creating a new hazard or increasing the danger posed by an existing hazard; given the allegations, the danger posed by Schaaf was the same without regard to Baker and Campbell’s presence at the apartment complex. See Hill, 492 Mich at 671-672 (stating that the installers did not create a new hazard or increase the danger posed by an existing hazard when they installed the dryer; therefore, there was no breach of the common-law duty of ordinary care); Hart, 347 Mich at 565 (stating that the case at issue did not involve allegations that the defendant breached his duty to perform his promise “in a careful and skillful manner without risk of harm to others”); compare Ross v Glaser, 220 Mich App 183, 186-187; 559 NW2d 331 (1996) (holding that the provision of a firearm to a person with known mental instability was actionable misfeasance as opposed to mere nonfeasance).
If Hi-Tech and its employees had any duty to protect Bailey or otherwise intervene on his behalf, that duty was solely a matter of the contractual agreements between Hi-Tech, its employees, and Evergreen. While Evergreen might be able to recover for a beach of the agreement to provide security services should it ultimately be held liable for the Hi-Tech employees’ failure to properly respond to the events, Bailey cannot rely on Hi-Tech’s purported breach of the agreement with Evergreen to establish his tort claim. See Hart, 347 Mich at 565-566 (“This is not a duty imposed by the law upon all,. . . but a duty arising out of the intentions of the parties themselves and owed only to those specific individuals to whom the promise runs.”). Because Bailey failed to allege that Hi-Tech breached a duty that was separate and distinct from its obligations under its agreement with Evergreen, the trial court did not err when it dismissed Bailey’s claim against Hi-Tech. See Fultz, 470 Mich at 469.
III. VICARIOUS LIABILITY AND AGENCY
A. STANDARDS OF REVIEW
We next consider Evergreen and Radney’s argument that this Court should affirm the trial court’s decision to dismiss Bailey’s claims under the rule stated in Al-Shimmari, All Mich 280. On appeal, Evergreen and Radney contend that Bailey’s claims against them are premised on the failure of their purported agents, Baker and Campbell, to involve police officers and, under our Supreme Court’s decision in Al-Shimmari, the claims against them as principals must be dismissed because the claims against their agents were dismissed. This Court reviews de novo a trial court’s decision on a motion for summary disposition. Barnard Mfg, 285 Mich App at 369. This Court also reviews de novo the proper scope and application of the common law, such as the common law of agency. Brecht, 297 Mich App at 736.
B. PRESERVATION
As a preliminary matter, we must address whether Evergreen and Radney properly preserved this issue for appeal.
In February 2009, Evergreen, Radney, Hi-Tech, Campbell, Baker, and Johnson moved for summary disposition under MCR 2.116(C)(8). In their motion and brief, they argued that the claims against them must be dismissed because Bailey failed to properly plead that any one of them breached a duty owed to Bailey. Specifically, they maintained that Michigan law does not impose a duty on premises possessors, such as Evergreen or Radney, to provide security or make their premises safe from criminal activity, and does not impose a duty to protect or aid others. They did not address Evergreen or Radney’s vicarious liability for any tort committed by Baker or Campbell and did not raise or discuss our Supreme Court’s decision in AlShimmari.
The trial court held a hearing on the motion in March 2009. At the hearing, defendants’ lawyer began by arguing that the individual defendants — Johnson, Baker, and Campbell — plainly had no duty to protect or aid Bailey. After defendants’ lawyer summarized his position as to the duty owed by the individual defendants, the trial court interrupted:
Well, let’s stop there for just a second. Mr. Robinson [addressing Bailey’s lawyer], that’s probably the part that I have the most difficulty with from your position. How [are] Tim Johnson and these individuals personally liable? This is a corporation. How are they personally liable? I don’t even believe there’s been an allegation that would suggest the piercing of the corporate veil or any ultra [sic] ego theory. How are they personally liable?
In response, Bailey’s lawyer stated that he was “really not contending that” and noted that he had not “address[ed] that in our response.” After this brief colloquy, the trial court granted the request for dismissal as to the claims against the individual defendants. The trial court went on to rule that Evergreen, Radney, and Hi-Tech also had no duty to provide security or to otherwise protect or aid Bailey. In May 2009, the trial court entered an order dismissing the claims against each defendant other than Schaaf that was consistent with that determination.
As can be seen, Evergreen and Radney did not argue before the trial court that Bailey’s claims against them had to be dismissed once the trial court determined that Baker and Campbell could not be held individually liable. Because the parties did not raise this issue before the trial court and the trial court did not address it, this issue was not preserved for appellate review. Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008).
In civil cases, Michigan courts generally follow the rule that a “a litigant must preserve an issue for appellate review by raising it in the trial court.” Id. This “raise or waive” rule of appellate review has its origins in judicial efficiency and fundamental fairness:
By limiting appellate review to those issues raised and argued in the trial court, and holding all other issues waived, appellate courts require litigants to raise and frame their arguments at a time when their opponents may respond to them factually. This practice also avoids the untenable result of permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that proved unsuccessful. Generally, a party may not remain silent in the trial court, only to prevail on an issue that was not called to the trial court’s attention. Trial courts are not the research assistants of the litigants; the parties have a duty to fully present their legal arguments to the court for its resolution of their dispute. [Id. at 388 (citations omitted).]
When a litigant waives appellate review by failing to properly preserve a claim of error, although under no obligation to do so, this Court may exercise its discretion to consider the claim. Id. at 387. See also Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006) (“[T]his Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented[.]”). But this Court will exercise its discretion to review such claims sparingly and only when exceptional circumstances warrant review. Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234 n 23; 507 NW2d 422 (1993); Napier v Jacobs, 429 Mich 222, 233; 414 NW2d 862 (1987) (advising that this power should be “exercised quite sparingly”).
Whether Al-Shimmari applies to this case is solely a question of law that requires no further factual development and plainly implicates the proper determination of the case. See Smith, 269 Mich App at 427. Moreover, given the peculiar procedural history of this case, it is not clear that Evergreen or Radney’s lawyer had a reasonable opportunity to raise this alternate basis for relief before the trial court; by declining to argue a basis for imposing liability, Bailey’s lawyer essentially conceded that whether the individual defendants could be personally liable was not at issue, and the trial court soon after determined that it would be appropriate to dismiss the claims against Evergreen and Radney on the grounds that Bailey also failed to state a claim against them. Thus, it is not surprising that Evergreen and Radney did not offer an alternate basis for dismissal at the hearing. Finally, even if we declined to review this issue, we can see no reason that would preclude Evergreen and Radney from raising this ground for dismissal in a new motion on remand, which in turn could result in yet further appeals. Therefore, in the interests of justice and efficiency, we elect to exercise our discretion and consider this issue for the first time on appeal. See Walters, 481 Mich at 387-388.
C. AGENCY AND TORT LIABILITY
In order to properly understand the decision in Al-Shimmari and how it might apply to the facts of this case, it is useful to briefly summarize the law of agency as it applies to a principal’s vicarious liability for the torts of the principal’s agent, an agent’s liability to third parties for the agent’s own torts, and a principal’s direct liability for the principal’s own torts.
A principal may be vicariously liable to a third party for harms inflicted by his or her agent even though the principal did not participate by act or omission in the agent’s tort. See Al-Shimmari, 477 Mich at 294. “Vicarious liability is indirect responsibility imposed by operation of law.” Theophelis v Lansing Gen Hosp, 430 Mich 473, 483; 424 NW2d 478 (1988). Courts impose indirect responsibility on the principal for his or her agent’s torts as a matter of public policy, but the “principal, having committed no tortious act, is not a ‘tortfeasor’ as that term is commonly defined.” Id. Because liability is imputed by law, a plaintiff does not have to prove that the principal acted negligently. “Rather, to succeed on a vicarious liability claim, a plaintiff need only prove that an agent has acted negligently.” Al-Shimmari, All Mich at 294-295. Concomitantly, if the agent has not breached a duty owed to the third party, the principal cannot be held vicariously liable for the agent’s actions or omissions. Lincoln v Gupta, 142 Mich App 615, 622; 370 NW2d 312 (1985).
A principal, however, remains directly liable for his or her own tortious conduct. See Cox v Flint Bd of Hosp Mgrs, 467 Mich 1, 11; 651 NW2d 356 (2002) (recognizing that a principal may be directly liable for the principal’s own torts or vicariously liable for torts committed by its agents); Malcolm v City of East Detroit, 437 Mich 132, 145-146; 468 NW2d 479 (1991) (explaining that “[w]hether liability is vicarious or direct depends upon whether the focus is upon the entity or the individual employee committing the tort”); Cascarella v Nat’l Grocer Co, 151 Mich 15, 18; 114 NW 857 (1908). Thus, a principal may be directly liable — as opposed to vicariously liable — for negligently hiring, training, or supervising an employee, if the employee’s actions harm a third party. See Zsigo v Hurley Med Ctr, 475 Mich 215, 227; 716 NW2d 220 (2006); Hersh v Kentfeld Builders, Inc, 385 Mich 410, 412-413; 189 NW2d 286 (1971); but see DeShambo v Anderson, 471 Mich 27, 31; 684 NW2d 332 (2004) (stating that it “has been long established in Michigan that a person who hires an independent contract is not liable for injuries that the contractor negligently causes”); Campbell v Kovich, 273 Mich App 227, 235; 731 NW2d 112 (2006) (stating that Michigan law does not recognize a cause of action for negligently hiring an independent contractor). And, in those types of cases, the plaintiffs ability to establish his or her claims against the principal does not depend on the plaintiffs ability to prove that the agent breached a duty that the agent owed to another.
As for an agent, he or she is personally liable for his or her own tortious conduct, even when acting on behalf of his or her principal. Dep’t of Agriculture v Appletree Marketing, LLC, 485 Mich 1, 17 n 39; 779 NW2d 237 (2010). The agent remains liable even though his or her principal may also be vicariously liable. Wines v Crosby & Co, 169 Mich 210, 215; 135 NW 96 (1912). An agent is not, however, liable to a third party merely because he or she neglects to perform a duty that his or her principal owes to a third party. In such a case, the third party’s remedy is against the principal alone. See Ellis v McNaughton, 76 Mich 237, 240-242; 42 NW 1113 (1889) (acknowledging that an agent is not normally liable for his or her nonfeasance, but distinguishing the facts therein, and concluding that the agent’s duty was “imposed upon him by law as a responsible individual in common with all other members of society”); 2 Restatement Agency, 3d, § 7.02 (“An agent’s breach of a duty owed to the principal is not an independent basis for the agent’s tort liability to a third party. An agent is subject to tort liability to a third party harmed by the agent’s conduct only when the agent’s conduct breaches a duty that the agent owes to the third party.”) (emphasis omitted); 2 Restatement Agency, 2d, § 352, p 122; 2A CJS, Agency, § 399, p 695; but see 2 Restatement Agency, 2d, § 354, p 125 (noting that an agent who specifically undertakes to protect another for his principal may be liable for failing to protect the third party under certain circumstances).
As our Supreme Court recognized more than 100 years ago, when an agent breaches a duty owed solely to his or her principal, a third party may not rely on that breach to establish a tort claim; but when the agent breaches a separate duty owed to the third party, the third party may hold the agent liable:
“It is often said in the books that an agent is responsible to third persons for misfeasance only, and not for nonfeasance. * * * But, if the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot by abandoning its execution midway, and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not non-feasance, or doing nothing, but it is misfeasance, — doing improperly.” [Ellis, 76 Mich at 241, quoting Osborne v Morgan, 130 Mass 102, 103 (1881).]
Although no longer framed as a matter of misfeasance versus nonfeasance, this rule is consistent with modern application of the rule:
[C]onduct that breaches an agent’s duties to the principal does not always, additionally, subject the agent to liability to a third party although the agent’s conduct also harms the third party. An agent is subject to liability to a third party only when the agent’s conduct breaches a duty that the agent owes the third party. The duty may be derived from tort law, from a contract between the third party and the principal when the agent is a party to the contract, from a promise made by the agent to the principal for which the third party is an intended third-party beneficiary, or from the agent’s assumption of duties toward the third person that are independent of the duties the agent owes the principal. [2 Restatement Agency, 3d, § 7.02, comment b.]
Because the distinction between misfeasance and nonfeasance is analogous to that addressed by the Fultz line of cases discussed earlier in this opinion, the analytic framework applied in Fultz applies equally to determining whether an agent can be liable in tort to a third party. Accordingly, a plaintiff cannot sue an agent to recover for harm caused by the agent’s breach of a duty owed solely to his or her principal. Rather, the plaintiff must allege and be able to prove that the agent breached a duty that was separate and distinct from his or her agency agreement with the principal. See Fultz, 470 Mich 467; Ellis, 76 Mich at 240-242.
D. AL-SHIMMARI
With these basic principles of agency law in mind, we now examine our Supreme Court’s decision in AlShimmari. In that case, Abdul Al-Shimmari sued his surgeon, Dr. Setti Rengachary, and several institutional defendants after he discovered that he had suffered a nerve injury during a surgery that Rengachary performed. Al-Shimmari, 477 Mich at 284. Our Supreme Court determined that the trial court did not err when it dismissed the claim against Rengachary because Al-Shimmari failed to serve process on Rengachary within the period of limitations. Id. at 287-293. After concluding that the trial court did not err when it dismissed the claim against Rengachary, the Court analyzed whether the claims against the institutional defendants could nevertheless proceed. Id. at 294.
The Court first noted that Al-Shimmari’s claims against the institutional defendants were premised solely on their vicarious liability for Rengachary’s alleged negligence (there were no claims against the institutional defendants involving direct liability). Id. at 285, 294-295. The Court then examined MCR 2.504(B)(3) and determined that the dismissal of the claim against Rengachary constituted an adjudication on the merits under that rule. Id. at 295. Because the dismissal of the claim against Rengachary amounted to a dismissal on the merits, Al-Shimmari could no longer argue the merits of the claim against Rengachary and, therefore, could not impute Rengachary’s negligence to the institutional defendants. Id. at 295-296. For that reason, the Supreme Court determined that Al-Shimmari’s vicarious-liability claims against the institutional defendants had to be dismissed. Id. at 297.
As explained by our Supreme Court in AlShimmari, a principal cannot be held vicariously liable for his or her agent’s alleged tort if the trial court dismisses the claim against the agent and that dismissal constitutes an adjudication on the merits. This is so because the plaintiff can no longer argue the merits of the underlying tort claim. Al-Shimmari, 477 Mich at 295-296. The decision in Al-Shimmari did not, however, involve — and therefore did not address — whether the dismissal of claims against an agent constitutes an adjudication on the merits concerning any acts or omissions that the agent took on the principal’s behalf, which did not themselves amount to a breach of a duty owed by the agent to the third party, but nevertheless constituted a breach of a duty owed by the principal to that third party. Because the Court in Al-Shimmari only addressed those situations in which the principal’s liability arose solely from its agent’s breach of a duty to the injured party, we conclude that it applies only to claims premised solely on true vicarious liability.
If a plaintiffs claim against the principal does not involve an agent’s breach of a duty that the agent separately owed to the third party, that claim does not involve true vicarious liability and the dismissal of the plaintiffs claims against the agent will not constitute an adjudication on the merits as to whether the agent’s acts or omissions constitute the breach of duty independently owed by the principal. Similarly, in those situations in which a plaintiff has alleged separate claims of vicarious and direct liability against the principal on the basis of an agent’s conduct, the dismissal of the claims — if any — against the agent will only constitute an adjudication on the merits as to those claims against the principal involving true vicarious liability. Accordingly, if Bailey’s remaining claims against Evergreen and Radney are not solely based on vicarious liability— that is, do not solely depend on holding Evergreen and Radney liable for a tort committed by Baker and Campbell — the dismissal of the claims against Baker and Campbell will not constitute an adjudication on the merits under Al-Shimmari.
E. APPLYING THE LAW
In his second amended complaint, Bailey did allege that Evergreen and Radney were vicariously liable for any torts committed by Hi-Tech, Baker, or Campbell. But he also alleged that his injuries were caused by Evergreen’s failure to keep its premises safe and by both Evergreen and Radney’s negligence in hiring, supervising, and retaining Hi-Tech. That is, he plainly alleged traditional claims of direct liability against both Evergreen and Radney. Although this Court eventually determined that Bailey failed to state claims against Evergreen and Radney to the extent that his complaint alleged that Evergreen and Radney had a duty to provide security or make its premises safe from criminal activity, this Court nevertheless determined that Bailey’s allegations were sufficient to state a claim that Evergreen and Radney — as landlords or premises possessors — breached their duty to adequately respond to an ongoing criminal emergency. Bailey, 293 Mich App at 641-642. Accordingly, the claims at issue on appeal do not solely involve true vicarious liability. This is so because Bailey does not have to prove that Baker and Campbell breached a duty that they owed to him in order to establish that Evergreen and Radney breached their duty to respond to an ongoing criminal emergency.
Evergreen and Radney had a common-law duty to their invitees: they had to expedite the involvement of the police “when a situation presently occurring on the premises pose[d] a risk of imminent and foreseeable harm to identifiable invitees.” Bailey, 293 Mich App at 636, citing MacDonald, 464 Mich at 326, 335, 338. Their contractor, Hi-Tech, and its employees, Baker and Campbell, in contrast, had no common-law duty to either protect Bailey from criminal acts by third parties or to involve the police. Bailey, 494 Mich at 604 (“It is a basic principle of negligence law that, as a general rule, ‘there is no duty that obligates one person to aid or protect another.’ ”), quoting Williams, 429 Mich at 498-499. Rather, the limited duty to protect others from criminal acts applied solely to Evergreen and Radney as the premises possessors or landlords. Bailey, 494 Mich at 614-617.
Moreover, the fact that Evergreen or Radney contracted with Hi-Tech to meet their duty to involve the police did not relieve them of direct liability should Hi-Tech fail to perform its contractual duty. Fultz, 470 Mich at 467 n 2. See also Samuelson v Cleveland Iron Mining Co, 49 Mich 164, 172-173; 13 NW 499 (1882) (COOLEY, J.) (explaining that, when the “duty which has been neglected is personal to the master himself,” it does not matter that an agent or employee neglected the duty; in such cases the principal remains liable in his or her own right). Because Bailey’s remaining claims against Evergreen and Radney involve direct liability rather than true vicarious liability, the trial court’s decision to dismiss the claims against Baker and Campbell does not implicate Al-Shimmari’s holding that the principal cannot be held vicariously liable when the court dismisses on the merits the negligence claims against the agent.
We acknowledge that it might appear incongruous to hold that a principal can be liable for a breach of duty that was caused by its employee or agent’s actions while nevertheless holding that the employee or agent’s actions do not amount to a breach of duty by the employee or agent in his or her individual capacity. This is particularly true where, as here, the principal’s duty would not have been triggered had its security personnel not been informed of the ongoing emergency.
But the same would be true even if Hi-Tech and its employees had not been in the business of providing security. If Evergreen and Radney had hired Hi-Tech to provide maintenance, and had Baker and Campbell been informed of the ongoing emergency while they were conducting maintenance, the outcome might be the same; Bailey could similarly have alleged that Baker and Campbell were Evergreen and Radney’s agents, that Evergreen and Radney had notice of the ongoing emergency through their agents, and that their knowledge triggered a duty to involve the police, which Evergreen and Radney breached by failing to call the police. See New Props, Inc v George D Newpower, Jr, Inc, 282 Mich App 120, 134; 762 NW2d 178 (2009) (discussing the doctrine of imputed knowledge). Here, Bailey alleged a direct cause of action against Evergreen and Radney. Should Evergreen or Radney be found liable for their purported agents’ failure to properly perform their contract, Evergreen and Radney are not without a remedy: they may seek damages for their agents’ breach of the agency agreement or security contract. See Fultz, 470 Mich at 467 n 2.
iv conclusion
The trial court did not err when it determined that Bailey failed to allege that Hi-Tech breached a duty to him that was separate and distinct from its obligations under its agreement with Evergreen to provide security services. For that reason, we again conclude that the trial court properly dismissed Bailey’s claim against Hi-Tech. Bailey’s remaining claims against Evergreen and Radney were not, however, solely premised on vicarious liability. Rather, Bailey alleged that Evergreen and Radney directly breached their duty to involve the police after learning of an ongoing criminal emergency. Because Bailey did not have to allege or prove that Baker and Campbell committed a tort in order to hold Evergreen or Radney liable under this theory, the trial court’s decision to dismiss Bailey’s claims against Baker and Campbell does not implicate Al-Shimmari. Consequently, we decline to affirm the trial court’s decision to dismiss on this alternative basis.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. As the prevailing party, Bailey may tax his costs. MCR 7.219(A).
BECKERING, EJ., and WHITBECK and M. J. KELLY, JJ., concurred.
In our prior opinion, we rejected Bailey’s argument that the trial court erred when it dismissed his third-party beneficiary claim. See Bailey, 293 Mich App at 623-626. And that decision is not at issue in this appeal.
We recognize that there is a distinction between the terms “waiver” and “forfeiture” in Michigan law. See Walters, 481 Mich at 384 n 14. However, for purposes of determining whether this Court should exercise its discretion to consider an issue that was not raised and addressed by the trial court, we elect to use the term “waiver” in its broader sense, as our Supreme Court elected to do when discussing the issue in Walters. Id. at 384 n 14, 387-390.
In contrast to civil cases, Michigan courts will review even unpreserved errors from criminal trials; we will do this to ensure the defendant’s constitutional right to a fair trial. See Napier v Jacobs, 429 Mich 222, 233; 414 NW2d 862 (1987). Nevertheless, even then, this Court’s review is limited to plain errors affecting the defendant’s substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Similarly, because a parent’s right to custody of his or her child is an important liberty interest protected by the United States Constitution, this Court will also review unpreserved errors in termination proceedings for plain error. See In re Rose, 174 Mich App 85, 88; 435 NW2d 461 (1989), rev’d on other grounds 432 Mich 934; In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). The same concerns, however, do not arise with civil cases. See Napier, 429 Mich at 233-234 (refusing to characterize an erroneously entered civil judgment as a miscarriage of justice and noting that a criminal defendant cannot obtain adequate relief for a wrongful conviction by suing his or her lawyer for malpractice). | [
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O’CONNELL, J.
In this action brought under the Revocation of Paternity Act, MCL 722.1431 et seq., plaintiff seeks to revoke defendants’ acknowledgment of parentage of a nine-year-old child whom defendants have raised from birth. After a bench trial, the circuit court denied plaintiffs request and also denied plaintiffs requests for an order of filiation and parenting time. Plaintiff now appeals by right.
We conclude that the circuit court reached the correct result, albeit for incorrect reasons. “This Court ordinarily affirms a trial court’s decision if it reached the right result, even for the wrong reasons.” Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 150; 624 NW2d 197 (2000). We affirm on grounds other than those relied on by the circuit court.
I. FACTS AND PROCEDURAL HISTORY
Defendants, Lisa and Douglas Beaman, have been in a relationship for more than 10 years. In the fall of 2002, they separated for a few weeks. During those weeks, Lisa had a brief sexual relationship with plaintiff, Matthew Helton. Lisa and Douglas then reunited, but did not marry. In June 2003, Lisa gave birth to the child who is the subject of this action. Douglas accompanied Lisa to the hospital for the child’s birth. While at the hospital, both defendants signed an affidavit of parentage that established Douglas as the child’s father. The child’s birth certificate identifies both defendants as the child’s parents.
Defendants began raising the child as part of their family, along with three other children. When the child was an infant, defendants allowed Helton to see the child periodically. When the child was approximately two months old, Helton asked to have DNA paternity testing conducted for the child. Defendants agreed to allow the testing, which was performed in 2003. Defendants opted to halt Helton’s interaction with the child until he obtained the DNA results.
Although Helton planned to pay for the DNA testing, he failed to make full payment to the DNA laboratory for three years. Because of Helton’s delay in payment, the parties did not receive the DNA results until 2006. The results established that Helton is the child’s biological father. After receiving the DNA results, Helton visited the child a few times. Helton’s visits then ceased. There was conflicting testimony at trial about whether Helton voluntarily stopped visiting the child or defendants decided against allowing further visits.
Four years after receiving the DNA results, when the child was seven years old, Helton brought suit against defendants seeking an order of filiation and parenting time with the child. By this time, the child had not visited with Helton for several years. While Helton’s suit was pending, defendants married. The circuit court subsequently dismissed Helton’s suit by stipulation.
When the child was nine years old, Helton brought suit against defendants under §§ 7 and 13 of the newly enacted Revocation of Paternity Act, MCL 722.1437 and 722.1443. Helton submitted the DNA results to the circuit court and moved for summary disposition under MCR 2.116(0(10) (no genuine issue of material fact). The circuit court found that although the DNA results proved that Helton was the child’s biological father, the DNA results standing alone were insufficient to establish by clear and convincing evidence that defendants’ acknowledgment of parentage should be set aside.
The circuit court later held a bench trial and then issued an opinion and order. In the opinion, the court stated that it had weighed the credibility of the parties and that it found Lisa’s testimony more credible than Helton’s testimony with regard to Helton’s failure to continue a relationship with the child. The court specifically found that Helton had no parental relationship with the child. The court concluded that the evidence established that “it is not in [the child’s] best interest to grant the relief requested by Plaintiff.” Citing MCL 722.1443(4), the court denied Helton’s request to revoke the acknowledgment of parentage. The court also denied Helton’s requests for an order of filiation and parenting time.
II. STANDARD OF REVIEW
In an action to set aside an acknowledgment of parentage, the circuit court must make factual findings concerning the sufficiency of the plaintiffs supporting affidavit. See MCL 722.1437(3); see also In re Moiles, 303 Mich App 59, 66-67; 840 NW2d 790 (2013), lv pending. If the plaintiffs affidavit is sufficient, the circuit court must then determine whether to revoke the acknowledgment of parentage. See MCL 722.1437(3) and 722.1443(5).
We review for clear error the circuit court’s factual findings on the sufficiency of the plaintiff s affidavit; we also review for clear error the circuit court’s determi nation on the revocation of the acknowledgment of parentage. See Moiles, 303 Mich App at 66. To the extent that the circuit court made conclusions of law, those conclusions are reviewed de novo. Id.
III. ANALYSIS OF THE CIRCUIT COURT’S ORDER
A. SUFFICIENCY OF HELTON’S AFFIDAVIT
A plaintiff filing an action for revocation of an acknowledgment of parentage must submit an affidavit attesting to the basis for the revocation action. MCL 722.1437(2). The plaintiff must state facts that constitute at least one of the five factors listed in Subsection (2) of MCL 722.1437:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found before the acknowledgment was signed.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress in signing the acknowledgment. [MCL 722.1437(2).]
In turn, Subsection (3) of the same section requires the circuit court to make a determination of the sufficiency of the plaintiffs affidavit before ruling on the revocation request:
If the court in an action for revocation under this section finds that an affidavit under subsection (2) is sufficient, the court shall order blood or tissue typing or DNA identification profiling as required under [MCL 722.1443(5)]. The person filing the action has the burden of proving, by clear and convincing evidence, that the acknowledged father is not the father of the child. [MCL 722.1437(3) (emphasis added).]
In this case, Helton’s affidavit listed three grounds for revocation: mistake of fact, misconduct, and fraud. Specifically, Helton attested that “[t]he DNA test report demonstrates that there was a mistake of fact, in that [Douglas] is not the Father.” Helton further alleged that defendants engaged in misconduct or fraud by executing the acknowledgment of parentage. Helton attested that he had sexual relations with Lisa in September 2002 and that Lisa knew he might be the father of the child born in June 2003. Helton went on to attest that Lisa “induced” Douglas to execute an acknowledgment of parentage.
The circuit court did not directly rule on the sufficiency of Helton’s affidavit. After hearing the trial testimony, the circuit court implicitly rejected Helton’s assertions of misconduct and fraud. The court found that when the child was born, both defendants believed that Douglas was the child’s biological father. Although Helton disputed defendants’ testimony regarding their belief that Douglas was the biological father, we defer to the circuit court’s credibility determinations. MCR 2.613(C);. Woodington v Shokoohi, 288 Mich App 352, 355; 792 NW2d 63 (2010). Given that defendants believed Douglas to be the child’s biological father at the time they signed the affidavit of parentage, Helton’s assertions of misconduct and fraud are insufficient to support his action for revocation.
In contrast, Helton’s assertion of mistake of fact is a sufficient basis to proceed with the revocation action. The DNA evidence supports Helton’s attestation that he is the child’s biological father, and the trial testimony indicates that defendants mistakenly believed that Douglas was the child’s biological father. When a defendant’s decision to sign an affidavit of parentage was based in part on a mistaken belief that he is the child’s biological father, that mistaken belief constitutes a mistake of fact sufficient to proceed with a revocation action. Bay Co Prosecutor v Nugent, 276 Mich App 183, 189-190; 740 NW2d 678 (2007) (interpreting MCL 722.1011(2), now repealed and replaced by MCL 722.1437(2)). Accordingly, Helton’s affidavit in this case was sufficient to allow the circuit court to proceed to determine whether to revoke the acknowledgment of parentage.
B. STANDARDS FOR REVOCATION UNDER THE REVOCATION OF PATERNITY ACT
1. THE ACKNOWLEDGMENT OF PARENTAGE ACT
The Acknowledgment of Parentage Act, MCL 722.1001 et seq., confers the status of natural and legal father upon a man who executes an affidavit of parentage. Sinicropi v Mazurek, 273 Mich App 149, 152; 729 NW2d 256 (2006). The affidavit of parentage provides notice to the male signatory that he has the responsibility to support the child. MCL 722.1007(f). In addition, a valid acknowledgment of parentage may serve as the basis for child support, custody, and parenting time. MCL 722.1004. Once the acknowledgment of parentage is complete, the child has “the identical status, rights, and duties of a child born in lawful wedlock effective from birth.” Id.
A man who executes an acknowledgment of parentage is known for legal purposes as the “acknowledged father.” MCL 722.1433(1). In contrast, a man who obtains an order of filiation is known for legal purposes as an “affiliated father.” MCL 722.1433(2). The existence of a valid acknowledgment of parentage by one man precludes a court from entering an order of filiation for a different man. Sinicropi, 273 Mich App at 164-165. In other words, a child may have only one legal father. Id. at 164. As a result, the circuit court in this case could not grant an order of filiation in favor of Helton unless the court first revoked defendants’ acknowledgment of parentage.
2. BEST-INTEREST FACTORS IN § 13(4) OF THE REVOCATION OF PATERNITY ACT
In Moiles, 303 Mich App at 76, this Court held that a circuit court is not required to make a best-interest determination under MCL 722.1443(4) when revoking an acknowledgment. Because we are bound by Moiles, we conclude that the circuit court in this case mistakenly applied the best-interest factors in MCL 722.1443(4) when it denied Helton’s request to revoke the acknowledgment of parentage.
3. APPLICABLE STANDARDS UNDER THE REVOCATION OF PATERNITY ACT
Given that the circuit court in this case mistakenly applied the best-interest factors in the Revocation of Paternity Act, MCL 722.1443(4), we must determine whether the error requires reversal of the circuit court’s decision. We first consider the controlling sections of the act.
Nothing in the act indicates that DNA results, standing alone, are sufficient to require revocation of an acknowledgment of parentage. In § 7(3) of the act, the Legislature mandated that a circuit court order DNA testing if the court determines that the plaintiffs supporting affidavit fulfills one of the requisite factors for proceeding with a revocation action. MCL 722.1437(3). In the same subsection, the Legislature mandated that the plaintiff in a revocation action “has the burden of proving, by clear and convincing evidence, that the acknowledged father is not the father of the child.” Id. Section 7 then addresses the administrative process for revoking an acknowledgment of parentage and requires the clerk of court to forward a revocation order to the State Registrar of the Department of Community Health. MCL 722.1437(4).
Section 7 is silent with regard to the legal standard for a circuit court to apply when deciding whether to revoke an acknowledgment of parentage. “When a statute expressly mentions one thing, it implies the exclusion of other similar things.” Modes, 303 Mich App at 75. If the Legislature had intended to decree that a DNA test indicating that the plaintiff is the father will result in an automatic revocation of an acknowledgment of parentage, the Legislature could have made that decree specific in the statute. Absent any indica tion that a revocation order is automatic when a plaintiff submits such DNA results, we decline to interpret the statute as establishing an unsupported legal standard.
Section 13(5) of the act confirms that the legal standards for revocation of an acknowledgment of parentage require consideration of factors other than DNA results. MCL 722.1443(5). That statute reads:
The court shall order the parties to an action or motion under this act to participate in and pay for blood or tissue typing or DNA identification profiling to assist the court in making a determination under this act. Blood or tissue typing or DNA identification profiling shall be conducted in accordance with section 6 of the paternity act, 1956 PA 205, MCL 722.716. The results of blood or tissue typing or DNA identification profiling are not binding on a court in making a determination under this act. [Id. (emphasis added); see also Moiles, 303 Mich App at 67.]
The Legislature’s decision that DNA results are not binding on a court making a revocation determination is consistent with the predecessor revocation statute. Before the enactment of the Revocation of Paternity Act in 2012, revocation claims were governed by § 11 of the Acknowledgment of Parentage Act, MCL 722.1011 (repealed by 2012 PA 161). When enacting the new Revocation of Paternity Act, the Legislature adopted much of the language of the predecessor statute with regard to claims for revocation of acknowledgment of parentage. Compare former MCL 722.1011 with MCL 722.1437. The Legislature did not, however, adopt the predecessor statute’s legal standard for revocation, which stated as follows: “The party filing the claim for revocation has the burden of proving, by clear and convincing evidence, that the man is not the father and that, considering the equities of the case, revocation of the acknowledgment is proper.” MCL 722.1011(3), as enacted by 1996 PA 305 (emphasis added).
When the Legislature repealed the predecessor equitable legal standard for revocation claims, it replaced the equitable standard with the statutory declaration that DNA results are not binding on a court making a determination under the new act. MCL 722.1443(5). That statutory declaration gives circuit courts discretion to consider other factors when determining whether to revoke an acknowledgment of parentage. Because the Legislature did not identify the relevant factors or the legal standard that governs the circuit court’s discretion, we consider analogous caselaw to determine the applicable legal standard for assessing the circuit court’s decision in this case.
The legal standards in cases involving a change in child custody are well established, and our Courts have applied those standards to resolve issues similar to the issue presented in this case. The change-in-custody standards are designed to preserve stability for the child and protect against unwarranted and disruptive changes in the child’s life. See In re AP, 283 Mich App 574, 592; 770 NW2d 403 (2009). Given that the change-in-custody standards are suited to the particular facts in this case, we assess the circuit court’s decision on the basis of those factors.
This Court explained the legal standards that control a change-in-custody decision in AP, 283 Mich App at 600-602:
[T]he party seeking a change of custody must first establish proper cause or change of circumstances by a preponderance of evidence. The movant must make this requisite showing before the trial court determines the burden of persuasion to be applied and conducts the evidentiary hearing.
In determining the applicable burden of persuasion, the court must first determine whom the custody dispute is between. If the dispute is between the parents, the presumption in favor of the established custodial environment applies. MCL 722.27(l)(c) embodies this presumption and provides:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age. 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.
As a threshold matter to determining which party will carry the burden of rebutting the presumption by clear and convincing evidence, the court is required to look into the circumstances of the case and determine whether an established custodial environment exists. A child’s 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.” MCL 722.27(l)(c). In making this determination, a court must also consider the “age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship ....” Id. If an established custodial environment exists with one parent and not the other, then the noncustodial parent bears the burden of persuasion and must show by clear and convincing evidence that a change in the custodial environment is in the child’s best interests. We note that in circumstances in which an established custodial environment exists with both parents, the party seeking to modify the custody arrangement bears the burden of rebutting the presumption in favor of the custodial environment established with the other parent. [Citations omitted.]
Certain aspects of these legal standards require modification for application in this case. First, the Revocation of Paternity Act indicates that a mistake of fact is a change in circumstance that warrants consideration of a claim for revocation. MCL 722.1437(2)(a). In this case, Helton has established a mistake of fact regarding the biological paternity of the child. As a result, we find for purposes of this case that a change in circumstance exists. Second, with regard to the applicable burden of persuasion, the Revocation of Paternity Act places Helton (as biological father) and Douglas (as acknowledged father) in equivalent litigation postures. See MCL 722.1437(3). Accordingly, it is appropriate to use the burden of persuasion applicable to disputes between parents, which results in a presumption in favor of maintaining the child’s established custodial environment. See AP, 283 Mich App at 600-601.
In this case, the child has an established custodial environment with defendants. To alter the established custodial environment, Helton would have to present clear and convincing evidence that a change in the custodial environment is in the child’s best interests under MCL 722.23. In a typical case, we would remand for presentation of evidence on the child’s best interests under that statute. In this case, however, the record is sufficient to determine that a change in the established custodial environment would not be in the child’s best interest. The statutory best-interest factors to be considered in change of custody cases are
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute. [MCL 722.23.]
Given that defendants have raised the child from birth and that Helton has had little to no meaningful interaction with the child, the record favors defendants on Factor (a) (emotional ties between the parties and the child) and on Factor (d) (the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity). Even if the record were equivocal with regard to the remaining factors, these two best-interest factors plainly favor maintaining the custodial environment the child has enjoyed thus far in life. We therefore conclude that in this case, the circuit court properly denied Holton’s action for revocation of parentage.
Affirmed.
This Court could not locate the affidavit of parentage in the electronic record. For purposes of this opinion, the Court has assumed that the affidavit was duly signed and notarized and was properly executed and filed in keeping with the requirements §§ 3 and 5 of the Acknowledgment of Parentage Act, MCL 722.1003 and 722.1005. To be consistent with the terms used in the Acknowledgment of Parentage Act and the Michigan Department of Community Health forms, we refer to the document that defendants signed in the hospital as the “affidavit of parentage” and to the legal record on file with the Michigan Office of the State Registrar as the “acknowledgment of parentage” See Department of Community Health, Affidavit of Parentage <http://www.michigan.gov/documents/ Parentage_10872_7.pdf> (accessed November 19, 2013) [http:// perma.cc/3YMG-BPMK]; MCL 722.1003 and 722.1005.
Moiles was reversed in part and vacated in part after the release of this opinion. See In re Moiles, 495 Mich 944 (2014)—Reporter.
Because of Helton’s delay in challenging paternity, I agree with Judge Kelly that the equitable defense of laches applies in this case.
The Moiles case did not directly present the issue of the standard of review for a circuit court’s determination on revocation. Moiles, 303 Mich App at 65-66. However, it appears from the Moiles decision that the clear-error standard applies to the determination. Id. at 66.
The parties on appeal do not address the sufficiency of Helton’s affidavit. We address the affidavit because a determination of the sufficiency of the affidavit is a requisite step in the analysis prescribed by MCL 722.1437. See Moiles, 303 Mich App at 67.
At the time the circuit court denied Helton’s summary disposition motion, Helton had not yet submitted the affidavit. Helton submitted the affidavit in an amended complaint.
We need not consider whether Helton’s assertions of misconduct and fraud would be sufficient if the evidence demonstrated that defendants knew or had reason to know that Douglas was not the biological father at the time they signed the affidavit. Compare Moiles, 303 Mich App at 72 (affidavit of parentage attests to belief that male signatory is “natural father”) with Moiles, 303 Mich App at 79 (Whitbeck, EJ., dissenting in part) (affidavit of parentage does not include attestation that male signator is “biological father.”).
MCL 722.1443(4) reads:
A court may refuse to enter an order setting aside a paternity determination or determining that a child is horn out of wedlock if the court finds evidence that the order would not be in the best interests of the child. The court shall state its reasons for refusing to enter an order on the record. The court may consider the following factors:
(a) Whether the presumed father is estopped from denying parentage because of his conduct.
(b) The length of time the presumed father was on notice that he might not be the child’s father.
(c) The facts surrounding the presumed father’s discovery that he might not be the child’s father.
(d) The nature of the relationship between the child and the presumed or alleged father.
(e) The age of the child.
(f) The harm that may result to the child.
(g) Other factors that may affect the equities arising from the disruption of the father-child relationship.
(h) Any other factor that the court determines appropriate to consider.
But for Moiles, I would agree with Judge Kelly that “[a]n order revoking an acknowledgment of parentage, is plainly an order ‘setting aside a paternity determination’ and, therefore, subject to a best-interest analysis under MCL 722.1443(4).” Post at 114-115. However, because the legal standards for child custody cases can be applied in this case, I see no immediate need to call for a conflict panel. An appeal in our Supreme Court will produce a more efficient resolution of these legal issues.
An automatic revocation of parentage upon receipt of DNA results indicating that the plaintiff is the father would be contrary to the history and purpose of Michigan’s laws, which require consideration of children’s best interests before ordering unwarranted and traumatic disruptions in children’s lives. See, e.g., MCL 712A.19b(5); MCL 722.23. Our Legislature adhered to this history and purpose in the Revocation of Paternity Act. For example, § 13(12) of the act allows circuit courts to extend, under certain circumstances, the limitations period for filing an action. MCL 722.1443(12). Once a circuit court extends the time for filing an action, the statute imposes a burden on the party filing the request for the extension to prove “by clear and convincing evidence, that granting relief under this act will not be against the best interests of the child considering the equities of the case.” MCL 722.1443(13) (emphasis added).
To impose an automatic revocation would not only be contrary to the language in the Revocation of Paternity Act, but would allow the absurdity of revoking the parental status of an acknowledged father in favor of, for example, a long-absent biological father who has a history of crimes against children. | [
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Montgomery, C. J.
Error is brought to review proceedings on a trial by a jury of a claim filed by Addison Allen against the estate of deceased, which claim reads as follows:
In the Matter of the Estate of William Fields, Deceased.
To Addison Allen, Dr.
To 2 years’ board and washing.......................§200
To work, labor, services, care, attendance, and employment in and about the care and management of farm work, and assistance to said deceased personally____ 500
§700
On the trial there was testimony tending to show that claimant furnished board to deceased, and that he attended upon deceased at times when intoxicated, furnished conveyance to his home on such occasions, and that he at times did farm chores for deceased. The character of the services was such that they might be treated as neighborly acts, or as services to be compensated, as there was or was not an agreement or understanding that they were to be paid for. The claimant called a number of witnesses who testified to statements made by deceased to the effect that claimant would be paid in the end; “that he would be well paid;” that claimant understood that he would be well paid in the end, etc. The jury found in favor of claimant in the sum of $675.
We shall consider the assignments of error in the order in which they are discussed in appellant’s brief. First, it is contended that the claim was not sufficient to justify the court in receiving any evidence There does not appear to have been any demand for a bill of particulars, or any request to the court to frame an issue. Under these circumstances we consider the objection without force. Grimm v. Taylor's Estate, 96 Mich. 5 (55 N. W. 447); King v. Brewer, 121 Mich. 339 (80 N. W. 238).
It is claimed that counsel for claimant was permitted to prejudice the jury. Counsel offered in evidence the will of deceased for the purpose of showing that the deceased had not provided any payment for the services rendered. We think this can hardly have worked any serious prejudice. Counsel on cross-examination of the executor, Mr. Lathrop, asked him if he drew the will. It is insisted that, as it appeared that Mr. Lathrop was not related to the deceased, and was the residuary legatee under the will, this might have worked prejudice, and error is assigned on the refusal of the court to strike out the testimony. We are not convinced that such was the probable effect of this testimony.
Error is also assigned on a statement of claimant’s counsel that the claim was allowed before commissioners. The record discloses that claimant’s counsel offered in evidence the files in the case to show that the claim was presented to commissioners, and an appeal taken by the executor to the circuit. Counsel for the estate at once stated, “I do not understand that the claim was allowed,” to which claimant’s counsel replied that the claim was allowed. Neither counsel kept within the rule, and we do not think counsel for the estate is in position to complain.
Error is assigned upon the refusal of certain requests. The circuit judge charged the jury in part as follows:
“I charge you that in this case, if the services rendered by said Allen and his wife to deceased were rendered under an agreement and understanding between deceased and said claimant that such services were to be paid for out of the estate of said deceased, after his death, such agreement would be binding on his estate, and would not be barred by the statute of limitations. An agreement whereby one undertakes to compensate another for services rendered to him out of his estate after his death is binding on the estate of such person deceased, and the statute of limitations would not commence to run upon such undertaking until after the death of the person so promising. So one important question for you to determine is, Under what agreement or understanding were the services that are claimed to have been rendered by the claimant rendered for the deceased? Were they so rendered under an understanding and agreement had by both the deceased and claimant that the services rendered were to be paid for out of his estate at his death? You will therefore carefully consider the testimony as to the language of the parties as shown to have been used,- the conduct, acts, and declarations of the deceased relative to the matter; do they show that these services claimed to have been rendered were rendered under such circumstances as show that the deceased intended to have claimant understand, and that claimant did understand, that such services as he should render at the request of deceased should be paid for out of his estate, by provision in his will or otherwise? If so, then you will understand that the statute of limitations, which bars all claims over six years of age, does not commence to run until the payment becomes due, which would be at the death of deceased. This is important, because it may be that services were rendered with the understanding that they were to be paid for, but the payment was not expressly deferred, and for such services, if the payment was not deferred until death, the compensation would be due and payable immediately, and barred by the statute of limitations at the expiration of six years from their rendition. I say this to you that you may see how important it is for you to determine first this very important question, ‘Were these services claimed rendered under the circumstances I have mentioned ? ’ It is not necessary that the claimant should show a formal contract between the parties, but he should show, in order to avoid the statute of limitations, as to any claim for services rendered six years before the death of deceased, he should show that they were rendered under an agreement and understanding on the part of both deceased and himself that the services were to be paid for out of his estate, as by provision in his will or otherwise, at his death. If you find, from the evidence introduced in this case, that the services rendered by claimant were valuable, and that there was an understanding between deceased and claimant whereby the claimant was to be compensated therefor after the death of deceased, then such agreenoient would be binding upon the estate of deceased, and you should allow the claimant what such services were reasonably worth. It is not sufficient, to entitle claimant to recover, to show that he rendered services to the deceased, and that such services were valuable, but he must also show that such services were rendered under such circumstances as to justify the conclusion that a charge therefor was intended and expected by the claimant and deceased. If the relation of the parties, the nature of the services rendered, and all the pertinent facts show that claimant was not working for money pay, and the deceased did not understand that pay was expected, none can be demanded. One neighbor may request another to render a service for him, which service may be of value to the party receiving it; yet, if such service was rendered at the time without the expectation of pay, a claim therefor cannot afterwards be presented and allowed.”
We think these instructions fairly presented the issue in the case, and could not have been misapprehended by the jury.
The other assignments do not call for discussion.
Judgment affirmed.
The other Justices concurred. | [
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Hooker, J.
Complainant made and caused to be recorded a deed to his wife of 40 acres of land, upon which, with another 40 acres, he resided. In October, 1895, she made a deed of the same to her mother for life, remainder to her brothers and sister. This deed was delivered, but there was no change in the possession of the premises. Two years later she died, and complainant has filed the bill in this cause to set aside the deeds, — the first, because it does not contain a reversionary clause, which his bill alleges was to have been made a part of it, according to an agreement with his wife, under which the deed is alleged to have been made; the second, on account of undue influence exerted by the parties upon his wife. The learned circuit judge dismissed the bill, and this, we think, was fully justified' by the proofs. The question, being one of fact, needs no discussion, further than to say that we think it fails to show that there was an agreement for a reversionary clause, or that the same was contemplated, or that Henry Butler, the conveyancer, was directed to insert it.
The decree is affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). Receivers may be garnished, by leave of the court. Cohnen v. Sweenie, 105 Mich. 643 (63 N. W. 641); Hudson v. Saginaw Circuit Judge, 114 Mich. 116 (72 N. W. 162, 68 Am. St. Rep. 465). We see no reason why the receiver appointed under the statute above cited is not subject to garnishment, as well as any other receiver.
The answer of the garnishee states that there is a personal claim allowed in favor of the principal defendant of $186.38, that he has in his hands sufficient to pay a dividend of 28 per cent., and that $52.18 is due. Whether the dividend due upon the other claim can be garnished, under Markham v. Gehan, 42 Mich. 74 (3 N. W. 262), will depend on the proofs.
The writ must issue.
The other Justices concurred. | [
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Per Curiam.
The complainant’s bill has a double purpose: First, to reach certain stock in a corporation, alleged to have been conveyed by defendant Lon N. Hodges to his wife in fraud of creditors; and, second, in aid of an execution levied upon three horses which defendants claim to be the property of the wife. We think that the case presents no questions of law requiring discussion, and that the learned circuit judge reached a just conclusion upon the facts. His decree is therefore affirmed, with costs. | [
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] |
The Chief Justice :
This is a motion to dismiss the bill of exceptions brought up before judgment, in a prosecution for an offense arising under an ordinance of the city of Detroit. We have already decided (see p. IS), that questions arising upon the trial of such prosecutions could not be reserved for our advice, nor entertained by us, for want of jurisdiction. The same rea sons which exclude jurisdiction in such cases, apply to the bill of exceptions now before us. The Recorder’s Court has a twofold jurisdiction. Jurisdiction under the general laws of the state, over prosecutions for offenses against such laws committed within the city, and jurisdiction over prosecutions for violations of city ordinances. In respect to the former, the general laws in all respects apply; and cases, questions, and bills of exceptions may be exhibited to us, precisely as they may by a Circuit Judge or Court. But in respect to the latter, no such right exists in the Recorder, nor is any such jurisdiction conferred upon us.
A careful examination of the charter will show, that the powers and jurisdiction in the latter class of cases are not co-extensive with those in the former, and that it was the intention of the Legislature to keep them distinct. For example, all writs and process issuing from said Recorder’s Court on complaints under the ordinances, shall be to the marshal or any constable of the city; while those for offenses against the general laws, shall be directed to the sheriff, shall run in the name of the People of the state of Michigan, and shall be sealed, &c. Prosecutions under the general laws shall be by indictment, complaint or information, in the name of the People, signed by the prosecuting attorney, &c., while those for violations of a city ordinance shall be by written complaint of any one aggrieved, sworn to by him, and the intervention of the prosecuting attorney is not required. The city attorney or any private attorney acts in behalf of the prosecution in the latter case. The complaint in the former .case is an official act: in the latter it is not necessarily such.
Again, by the provisions of the Constitution and of the common law, persons charged with crime must be tried by a jury, and the law is well settled that this is imperative, and not a right to be waived: yet under the charter, in all trials for offenses against it, or the ordinances of the city, this right shall be deemed waived unless a jury be demanded.
These are a few of the illustrations to be found in the charter of the twofold nature of the Recorder’s jurisdiction, and of the conclusion at which we have arrived, that in proceedings for breaches of ordinances, the general rules applicable to proceedings in the Circuit Courts, or in the Recorder’s Court, for offenses against the genera] laws, so far as they relate to the reservation or removal of cases before judgment, do not apply.
Much reliance is placed upon the language of §24 of the charter, in urging this right of bringing tiñese exceptions before us. But a careful examination of the section, and of the whole chapter VI, will show that it has reference only to the removal of cases arising- under general laws. “Like proceedings” refers as well to character as to details, and those under complaints for violation of ordinances, can hardly be likened in character to those under indictments or informations for breaches of general laws.
At the common law no exceptions would lie in criminal cases, and it is only by force of the statute that any right to take them exists. The statute gives such right only in cases of violations of general laws. The ordinances of the city are no more nor less than by-laws of a corporation; and it would be strange indeed if such could be raised to the dignity of general criminal laws, or courts of general jurisdiction could take cognizance of such ordinances, or of proceedings to enforce them, in like manner as they can of general laws, or proceedings under them, without express legislative provision.
The motion must be granted.
This section is as follows:
“Sec. 24. All the proceedings of said Recorder’s Court, at any time before or after final judgment or sentence, may be removed to the Supreme Court by writ of error or other process, in the same manner that like proceedings may by law bo removed to tlie Supreme Court from tlie Circuit Courts of the state; and the Supreme Court shall proceed to adjudicate thereon, in the same manner as on proceeding removed from said Circuit Courts.” | [
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Edwards, J.
This is another case in which we are called on to interpret a provision of the annexation statutes. The problem is accurately set forth in the sole stated question as agreed upon by the parties:
“Were the 1958 taxes on property in Fillmore township personal property of the township within the meaning of CLS 1956, § 117.14 (Stat Ann 1959 Cum Supp §5.2093), on August 3, 1958, the date when a portion of Fillmore township was annexed to the city of Holland, thus requiring the money received from the collection of those taxes to be divided between the township of Fillmore and the city of Holland!”
The trial judge answered this question in the affirmative and awarded appellee city of Hollaud 46.149% of the 1958 township taxes, in the sum of $7,109.77. The township appeals.
The relevant facts (also agreed on) are:
On August 3,1958, a portion of Fillmore township, in the county of Allegan, known as the Maplewood area, was annexed to the city of Holland. The election on the annexation issue was approved by the electorate on June 3, 1958. The assessed valuation of the area which was absorbed by the city pursuant to this annexation was 46.149% of the total assessed valuation of Fillmore township. 46.149% of the 1958 township taxes collected amounts to $7,109.77, which amount is claimed by both Fillmore township 'and the city of Holland.
No dispute exists between Fillmore township and the city of Holland other than this divergent claim arising out of the 1958 township taxes, the township of Fillmore having turned over to the city of Holland all assets and liabilities in the proportion of the valuation of the area annexed to the valuation of the whole township.
It is the contention of the city of Holland that under PA 1909, No 279, § 14, as amended (CLS 1956, § 117.14 [Stat Ann 1959 Cum Supp § 5.2093]), these 1958 township taxes were part of the personal property of the township on the date annexation became effective and, therefore, should be divided between the city and township, along with the other personal property of the township.
It is the contention of the township that these 1958 taxes had not as yet become personal property of the township on the date of annexation and, therefore, were not subject to division with the city.
It is agreed that January 1,1958, was the “tax day” for the year 1958, at which time property located in Fillmore township became subject to township taxes. It is further agreed between the parties that between January 1, 1958, and June 2, 1958, the township supervisor had completed his assessment roll, the township board of review had completed the review of the 1958 assessment roll, the assessment roll was equalized by the county board of supervisors, and that June 2,1958, was the final date for establishment of a maximum tax rate for townships by the Allegan county tax allocation board.
Subsequent to the date of August 3,1958, the date upon which the annexation became effective, there still remained the duty of the county board of supervisors of Allegan county to apportion county taxes among cities and townships, and the duty of the supervisor to assess the taxes, as apportioned, at which time, under the statute then existing, the property taxes became a debt to the township. Lastly, it is agreed that on December 1, 1958, the taxes so assessed became a lien on the respective properties of the township.
On December 15,1959, both municipal corporations filed actions in the circuit court for Allegan county, the township of Fillmore proceeding in an action at law for a writ of mandamus, and the city of Holland proceeding in chancery for an injunction. On February 25, 1960, an order for partial settlement was filed, and the 2 cases combined by agreement, to continue as a case in chancery. On April 1, 1960, the circuit judge for Allegan county entered a written opinion, holding that the 1958 township taxes were personal property and thus subject to division between the city of Holland and the township of Fill more. From this decision, the township of Fillmore appeals.
The particular statute which is applicable to the present problem is section 14 of PA 1909, No 279, as amended (CLS 1956, §117.14 [Stat Ann 1959 Cum Supp § 5.2093]):
“Whenever a part of a city, village or township is annexed to a city, all of the personal property belonging to any such city, village or township from which territory is detached shall be divided between the township, city or village from which said territory is detached and the city to which the territory is annexed, in the same ratio as the assessed valuation of the taxable property in the territory annexed bears to the assessed valuation of the taxable property in the entire city, village or township from which said territory is taken. * * *
“The indebtedness and liabilities of every city, village and township, a part of which shall be annexed to a city shall be assumed by the city to which the same is annexed in the same proportion which the assessed valuation of the taxable property in the territory annexed bears to the assessed valuation of the taxable property in the entire city, village or township from which such territory is taken. Assessed valuation shall be determined in every division pursuant to this section from the last assessment roll of the city, village or township which has been confirmed by the board of review.”
Thus, as indicated in the stated question, decision hinges on the meaning of the term “personal property.” Black’s Law Dictionary (4th ed), p 1382, defines the term “personal property” as follows:
“In broad and general sense, everything that is the subject of ownership, not coming under denomination of real estate.”
American Jurisprudence follows this definition closely:
“In its general or ordinary significance, the term ‘personal property’ embraces all objects and rights which are capable of ownership except freehold estates in land, and incorporeal hereditaments issuing thereout, or exercisable within the same.” 42 Am Jur, Property, § 23.
We are not given much assistance on this task by statutory definition. Michigan lists a number of types of property which are included in the term “personal property,” none of them specifically applicable to a township’s interest in its taxes.
There is, however, included in the same section a catchall provision which puts us back where we started:
“All other personal property not herein enumerated, and not especially exempted by law.” CLS 1956, § 211.8, subd (8) (Stat Ann 1960 Rev § 7.8, subd [8]).
In Township of Royal Oak v. City of Berkley, 309 Mich 572, this Court held that township accounts receivable were personal property within the meaning of CL 1929, § 2250, as amended by PA 1931, No 233 (Stat Ann § 5.2093), and said (p 580):
“ ‘Personal property’ connotes intangible as well as tangible personal property and must include choses in action.”
These last 2 definitions, however, do not give us much assistance on our present problem.
A “chose in action” is defined in Black as:
“A right to personal things of which the owner has not the possession, but merely a right of action- for their possession.” Black’s Law Dictionary (4th ed), p 305.
Fillmore township’s interest in 1958 taxes was not a chose in action as of the date of annexation of a portion of the township to the city of Holland.
As the law stood at that point, appellant accurately points out that the 1958 taxes were not owing, and were not collectible in a suit at law.
“The taxes thus assessed shall become at once a debt due to the township, city, village and county from the persons to whom they are assessed, and the amounts assessed on any interest in real property shall, on the first day of December, for State, county, village or township taxes or upon such day as may be heretofore or hereafter provided by charter of a city or village, become a lien upon such real property, and the lien for such amounts, and for all interest and charges thereon, shall continue until payment thereof.” CL 1948, § 211.40, as amended by PA 1949, No 110 (CLS 1956, § 211.40, Stat Ann 1950 Rev § 7.81).
It seems clear to us, however, that as of August 3, 1958, Fillmore township had a legal interest in its 1958 taxes which in the future was due to be specifically defined as to amount and to become legally collectible.
The fact that this property interest is intangible, uncertain as to amount, and not immediately subject to being reduced to possession, does not deprive it of value and transferability. These are ordinary characteristics of that class of property interests known as future interests.
Simes and Smith define a future interest thus:
“A future interest may be described as an interest in land or other things in which the privilege of possession or of enjoyment is future and not present. It should be emphasized that the interest is an existing interest from the time of its creation, and is looked upon as a part of the total ownership of the land or other thing which is its subject matter. In that sense, the term ‘future interest’ is somewhat misleading, and it is applied only to indicate that the possession or enjoyment of the subject matter is to take place in the future. * * * The essence of a future interest, then, is that it is an interest (1) which potentially gives the holder the privilege of possession or enjoyment at some time in the future, and (2) which is regarded as a part of the total present ownership. It necessarily involves the possibility of legal relations arising in the future, but it also may involve some present legal relations.” 1 Simes and Smith, The Law of Future Interests (2d ed), ch 1, § 1, p 2.
Such interests may be, and frequently are, created by statute. 1 Simes and Smith (2d ed), ch 10, § 311 et seq. "We conclude that the interest in its 1958 taxes which Fillmore township possessed on August 3,1958, was a future interest in personal property.
The question still remains, however, as to whether or not such a future interest itself comes within the term “personal property” employed in the annexation statute quoted above.
We believe that it does. The apportionment under this statute of contingent and undetermined liability for such items as special assessment bonds and salaries has been approved by this Court. Township of Dearborn v. City of Dearborn, 308 Mich 284; Hazel Park Nonpartisan Taxpayers Ass’n v. Township of Royal Oak, 317 Mich 607; City of Riverview v. City of Trenton, 359 Mich 98. While we deal here with apportionment of assets rather than liabilities, there would seem to he a parallel.
Closer to point is a case which squarely requires apportionment under the statute in question of contingent and unascertained assets represented by a township’s claims as to certain special assessments:
“The city’s computation of these disputed items also includes money in hank in special assessment district accounts which has not been turned over to the township. The township claims that these items should not have been included in figuring the town ship property on hand, that they should not he included in computing the township’s liability to the-city unless and until they are collected. The court held with the township, that these moneys could not be charged against the township as cash on hand at the time the city was incorporated, because the township had not yet received them. The court further held — and the decree so provides — that the city should be entitled to its share of these moneys only if' and when they were collected by the township. The-city argues for reversal of this ruling.
“While it is plain that these claims of the township-against the special assessment districts are in a sense personal property of the township, the critical issue is whether the township must at this time beheld to account for these items as cash, or may the settlement be deferred until these items become cash instead of ‘accounts receivable.’ This involves a construction of the applicable part of the statute governing the question. It provides:
“ Whenever a new city shall be incorporated, the-personal property of the township from which it is taken shall be divided and its liabilities assumed between such city and the portion of the township remaining after such incorporation, in the same ratio-as herein provided in case of the annexation of a part of a township to a city.’ CL 1929, § 2250, as amended by PA 1931, No 233 (CLS 1940, § 2250, Stat Ann §5.2093). * * *
“According to the record, some of these special assessment districts are no longer in existence, and a portion of the taxable property in other such districts has become the property of the State for nonpayment of taxes. Any money to be derived from a reassessment of these delinquent special assessments cannot at the present time be classed as cash of the township on hand for pro rata accounting to the city. To the extent that these items -are ‘bad debts,’ perhaps worthless items owing to the township, the township cannot be required to include the same in its present accounting. We agree with the trial court that the- city is entitled to its share only if and when the same are collected by the township.” Township of Royal Oak v. City of Berkley, supra, 579-582.
"We recognize that the instant case requires us to go a step farther than the Court went in the Royal Oak Township Case. In our present case, the right to enforce the debt had not arisen on the annexation day, whereas it had in Royal Oak township.
Like the circuit judge, we do not feel that the fact that Fillmore township could not, on August 3, 1958, sue to enforce payment of 1958 taxes meant that its interest in those taxes were not personal property as that term was employed in CLS 1956, § 117.14 (Stat Ann 1960 Rev § 5.2093). The allocation should be made on the same basis of when, as and if collected, as was done in the Royal Oak Township Case.
Affirmed as indicated. Costs to plaintiff-appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred.
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] |
Dethmers, C. J.
Plaintiffs, husband and wife, sue defendant doctors for alleged malpractice in their professional treatment of plaintiff wife, hereinafter called the plaintiff. Appeal is from judgments non obstante veredicto for defendants.
On February 14, 1957, defendants performed a right oophorectomy, being the removal of the plaintiff’s right ovary, which had become cystic, and lysis or freeing of certain abdominal adhesions. On May 1, 1957, defendants again performed surgery on the plaintiff for lysis of bowel adhesions and relief of bowel obstruction. They freed adhesions between bowels and the uterus and other adhesions which were binding down the small bowel in both the right and left quadrants in the cul-de-sac.
Defendant Monson, who performed the surgery, assisted by defendant Sinclair, testified that all this was done with great difficulty and took quite a bit •of time because there were so many adhesions; that they also found small areas of endometriosis on the left side of the abdomen attached to the sigmoid, the abdominal wall, the bowels and the uterus, all of which he freed, and in the cul-de-sac a tremendous .amount of endometriosis, probably the size of a hand, half an inch or more thick, which he freed. He described endometriosis as a condition in which endometrial tissue or lining of the uterus escapes the womb into an area where it is not normally present, testifying that wherever it touches it attaches and spreads like cancer, its cells growing wildly, that it looks somewhat like a sponge, is very vascular and friable, fragile and difficult to handle and bleeds profusely, and that a stitch cuts right through it like it would through butter. He further testified that it is customary, in seeing anything abnormal like this during surgery, to take a sample for laboratory analysis and check for possible malignancy; that as they took a small piece of the endometriosis profuse bleeding ensued; that they had to pack the bleeding and put stitches in it to try to stop the bleeding; that they had to put the stitches in deep into the endometriosis in an effort to make them hold and stop the bleeding; that the large quantity of endometriosis and blood obliterated the landmarks, so that it was impossible to see anything around while stitching; that the blood was just welling up and it was necessary to act with speed to prevent further hemorrhaging ; that at one time they feared they were not going to be able to control the hemorrhage; that they were able to pack it just enough so they could put in a stitch and keep on going that way and so complete the operation. An expert medical witness testified that, under such circumstances, this has to be done* to save the patient’s life.
During the next few weeks plaintiff received treatments for small bowel obstruction. On June 13,. 1957, a different doctor operated on plaintiff. He-testified that he then found that plaintiff’s right ureter had become involved with a chromic catgut suture and was blocked; that this had caused a leakage of urine from that ureter which had formed a large cystic mass containing urine. He removed the cyst and repaired the ureter. He further testified that the injury to the ureter could have occurred, during either the February or May, 1957, operations-by defendants. The jury found that it did happen in the May operation.
All medical testimony was that the ureter is not the subject matter of the kind of operations performed by defendants in February or May, and that in such operations it is not standard practice to-suture the ureter. Defendant Monson testified that he had not, to his knowledge, placed a suture around the ureter, but that it frequently happens when surgery is performed in that area and when the landmarks are so obliterated by excessive bleeding that the surgeon does not realize, that the ureter is around there. Defendant Sinclair testified that the suturing done by defendants was not done near where the ureter normally is located; that when the hemorrhaging began and blood obscured the whole operative field, they applied packs, but, because of the friability of the endometriosis, they felt it was inadvisable to clamp it or put a tie on it because the tie would cut right through it, so, instead, they put a suture .around the area which was bleeding and put a tie in that position, immediately stopping the bleeding. Expert medical testimony was that the existence of -the mass of endometriosis, especially in an area where previous surgery had occurred, could dis place organs or structures such as the ureter from normal position; also, that, where structures are obliterated by bleeding, as here, it would be foolhardy to make further dissections of the mass and create further bleeding in order to identify structures not in view. The record, read in context, does not support the statement in plaintiff’s brief that expert medical testimony was to the effect that the right ureter was not in the vicinity of the endometriosis which defendants were suturing. On the contrary, expert medical testimony was that the ureter must have been in the immediate neighborhood of the endometriosis mass. An expert medical witness testified, in response to the hypothetical question based on the assumption of the existence of the facts as described by the testimony on both sides of the case, that defendants “used the usual and ordinary practice in the handling of this case” and that the evidence of injury by suture to the ureter was not evidence of improper practice nor was there anything unusual in such occurrence; further, that insertion of a catheter into the ureter, under the circumstances of this case and because of the endometriosis mass, would not have enabled defendants to ascertain that a suture had entered the right ureter.
There was no medical testimony that defendants’ treatment and handling of the case was not in accord with standard and usual practice of skilled doctors in the community.
■In the ordinary negligence ease a question is presented whether an ordinary, careful and prudent person would have done as defendant did under the circumstances. Presumably a jury of 12 persons, drawn from and representing a cross section of the community, is competent to judge that question, on the basis of its own knowledge and experience, and to determine negligence or freedom therefrom accordingly. Sometimes, in such cases, a problem pre sented is whether the question of defendant’s negligence is one of fact for the jury or of law to be decided by the court. That is not the problem here. Rather, it must be determined in this case whether it is competent for a jury of laymen to decide a question concerning professional practice and to make a finding of malpractice without benefit of professional testimony to support it. In a case involving professional service the ordinary layman is not equipped by common knowledge and experience to judge of the skill and competence of that service and determine whether it squares with the standard of such professional practice in the community. For that, the aid of expert testimony from those learned in the profession involved is required. As this Court said in Zoterell v. Repp, 187 Mich 319, 330:
“As to those matters of special knowledge strictly involving professional skill and attention, unskillfulness, negligence, or failure to do that which ought to be done must be shown by the testimony of those learned in such matters.”
“In conduct, like that of a surgeon, resting upon judgment, opinion, or theory, the ordinary rules for determining negligence do not prevail. Luka v. Lowrie, 171 Mich 122 (41 LRA NS 290); The Tom Lysle (WD Pa), 48 F 690; Brown v. French, 104 Pa 604; Williams v. Le Bar, 141 Pa 149 (21 A 525). One reason for the rule is that when one acts according to his best judgment in an emergency, he is not chargeable with negligence. Luka v. Lowrie, supra; Sta-loch v. Holm, 100 Minn 276 (111 NW 264, 9 LRA NS 712); Williams v. Poppleton, 3 Or 139; 30 Cyc, p 1587; Sherwood v. Babcock, 208 Mich 536.
“In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or simi lar communities.” Delahunt v. Finton, 244 Mich 226, 229, 230.
In support of this general rule that expert testimony is essential to the establishment of a cause of action for professional malpractice, defendants cite Spaulding v. Bliss, 83 Mich 311; Farrell v. Haze, 157 Mich 374; Neifert v. Hasley, 149 Mich 232; Miller v. Toles, 183 Mich 252 (LRA 1915C, 595); Sherwood v. Babcock, 208 Mich 536; Delahunt v. Finton, 244 Mich 226; Rytkonen v. Lojacono, 269 Mich 270; Ruben-stein v. Purcell, 276 Mich 433; Dunbar v. Adams, 283 Mich 48; Perri v. Tassie, 293 Mich 464; Zanson v. Whittaker, 310 Mich 340; Facer v. Lewis, 326 Mich 702; Taylor v. Milton, 353 Mich 421.
Exceptions to that rule are to be found in cases where the lack of professional care is so manifest that it would be within the common knowledge and experience of the ordinary layman that the conduct was careless and not conformable to the standards of professional practice and care employed in the community. Among these are LeFaive v. Asselin, 262 Mich 443, Winchester v. Chabut, 321 Mich 114, and Higdon v. Carlebach, 348 Mich 363. In LeFaive the surgeon, after performing an appendectomy, sewed up the incision without removing a curved surgical needle from the abdominal cavity. In Winchester the proofs indicated that the surgeon, when dosing up by sutures the incision made for reduction •of a fractured femur, left a cotton gauze surgical sponge inside. In Higdon the defendant dentist was using a revolving separating disk to make space between 2 of plaintiff’s teeth. The disk came in contact with her tongue. In these eases, it was the view of this Court that, as said by Mr. Justice Wiest in Ballance v. Dunnington, 241 Mich 383, 387 (57 ALR 262), concerning an excessively long exposure to X-ray, and quoted in LeFaive (p 446), “even the merest tyro would know this was improper.” Holdings that expert testimony was not prerequisite to recovery in those cases were predicated on the proposition that it would be within-common knowledge and the experience of lay jurors whether the acts in question were careless and not in accord with standards of good practice in the community. Such is not the factual situation presented by this record.
Plaintiff’s theory seems to be that because there is testimony that the ureter is not the subject matter of operations for the maladies defendants were seeking to correct and that they had not intended to suture or involve the ureter, therefore, it would be within the common knowledge of laymen, without the benefit of expert medical testimony, that the actual involving of the ureter by suture was negligence. The question here, however, is not that simple. Purpose of the operation and intent of the surgeon, alone, are not conclusive here. The question, rather, is whether the action of defendants, confronted with the endometriosis and hemorrhaging condition, obliterated landmarks and need for quick stopping of bleeding by placing stitches deep into the endometriosis mass, conformed to standards of good practice in the community. Common knowledge and the experience of ordinary laymen do not equip them to give the answer without the aid of expert medical testimony.
Careless professional practice must not be made immune from redress at law. This is imperative for the protection of the public. That same consideration, however, dictates that no legal barriers be erected against a doctor’s proceeding, in emergency or otherwise, as his judgment directs and skills permit, for saving the life or health of the patient, without fear that his professional judgment and action shall be subjected to the test of unlearned lay judgment without the guidance of professional testimony ■as to compliance with professional standards and practice in the community.
Affirmed. Costs to defendants.
Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Per Curiam.
This is a bill of complaint to reform a release given for $62.50. A collision between an automobile driven by Frances E. Kovach, allegedly owned by William H. Norris, and a semitrailer owned by Wagoner Transportation Company, Inc., driven by G-erald A. Hardin, resulted in Hardin’s death and other loss. There was a settlement of the suit at law by the administratrix of Hardin’s estate against Kovach .and Norris, in which Wagoner, among others, joined, and, concurrently, releases we're given by all plaintiffs to all defendants. One year later, Hartford Accident & Indemnity Company, workmen’s compensation insurer for Wagoner, filed suit against Norris as third-party owner of the automobile involved. Upon motion to dismiss, all proceedings were held in abeyance pending the filing and disposition of proceedings in chancery by plaintiff to set aside or reform the said general release given by Wagoner to defendants. In the subsequent chancery suit brought for reformation, it was held by the trial chancellor, that “the matter of workmen’s compensation, and payments which have been made therefor by the plaintiff, was in no way considered at the time the release was executed and that the release in matter of fact was intended to and did discharge liability for a property loss as distinguished from workmen’s compensation liability.”
Affirmed. The case is controlled by Denton v. Utley, 350 Mich 332. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Kavanagh, J.
Defendant appeals from a jury verdict in favor of plaintiff in the amount of $10,000. Defendant also appeals from denial of motions for a directed verdict and for a new trial.
At about 10 p.m., on March 2,1956, plaintiff, a 43-year-old farmhand, left a restaurant in the town of Mass in the Upper Peninsula and walked in a northwesterly direction along Adventure avenue to a point where 14th street intersects Adventure avenue. To this point plaintiff claims he was walking on the sidewalk at the edge of the highway; that there was snow piled on both sides of the highway but that it had been pushed back from 13th to 14th streets so that the sidewalk was available for use. Plaintiff further contends that as he crossed the intersection of 14th street the highway had not been plowed as wide as it was south of 14th street. No sidewalk existed from 14th street north.
, Plaintiff testified that when he reached the north side of the intersection of Adventure and 14th he attempted to cross the street to walk on the left side of Adventure avenue to a school located north •and west of the intersection, where he hoped to get .a ride home. As he started to cross the intersection plaintiff claims that for about 4 or 5 seconds he looked to his left for cars which might be approaching, and seeing none he looked to his right, noticed 2 cars coming but formed an opinion he had time to cross ahead of these cars. He started to cross the street but had taken only about 2 or 3 steps when he was hit by defendant’s car coming from the left.
Defendant claims his car was parked in front of the Northland restaurant; that he got in his car and proceeded north on Adventure avenue to go to his home, which was located 3 blocks north and 1 block east. He claimed he had the car lights turned on and was going about 15 miles per hour. Defendant testified 2 cars were coming toward him but had passed him before the accident occurred. He testified that just after the second car passed “A dark object came from my right and seemed to come very fast and I struck it. I immediately applied the brakes and stopped.” He placed the accident at about 30 or 40 feet north of the intersection of Adventure avenue and 14th street.
Witness Albert W. Taro, plaintiff’s employer, had been attending the same township board meeting as defendant and left the meeting at the same time as defendant. He stopped and talked with an unknown person for a few seconds, then drove in a northerly direction on Adventure-avenue for about 75 or 100 feet, where he found a car without lights and saw Mr. Maloney standing outside the car. Mr. Taro testified Maloney’s car lights were off at that time. It is to be noted plaintiff contends he saw no car lights approaching him from his left. Mr. Taro testified it was a clear, cold, frosty, moonless night.
The case was tried on the part of defendant on the theory that plaintiff appeared abruptly in front of defendant and that he, therefore, was not guilty of any negligence; that plaintiff was intoxicated and for that reason did not see defendant’s car. Defendant contends: (1) he was not guilty of any negligence which contributed to the accident and, therefore, was entitled to a directed verdict on this score; (2) that plaintiff was guilty of negligence as a matter of law, barring his recovery and that he (defendant) was entitled to a directed verdict on this theory; (3) that he is entitled to a new trial, since the verdict of the jury is against the weight and preponderance of the testimony; and (4) that the court erred in not giving a requested charge.
Defendant’s first question deals with whether or not he was guilty of any negligence. He argues he was not and was, therefore, entitled to a directed verdict. The record discloses ample testimony from which the jury might reasonably find that defendant was negligent in driving so as to be unable to stop in the assured clear distance ahead, and clearly there was a question of fact for the jury to determine whether defendant was driving at night without lights. Witness Albert W. Taro testified that within seconds after the accident happened, defendant’s car did not have the lights on. Plaintiff testified he looked to his left and did not see defendant’s car approaching. Immediately thereafter when he looked to his right he saw 2 other cars approaching because they had their lights on. The inferences to be drawn from all this testimony was clearly for the jury.
There was testimony that defendant might have been blinded by the lights of the oncoming vehicles. If the jury so found, certainly defendant’s failure to -drive, with the oncoming lights blinding him, so as to be able to stop within the assured clear distance ahead, would be negligence.
Under the testimony in this case a clear question of fact as to defendant’s negligence was created. The credibility of the witnesses and any inconsistencies and contradictory statements of the witnesses are for the jury to weigh. The court did not err in failing to direct a verdict for the defendant on the theory he had not been guilty of any negligence which was a proximate cause of the accident.
As to his second question with reference to the plaintiff being guilty of negligence as a matter of law, the same rules apply. Whether plaintiff was excused from seeing defendant’s car and starting across the street because defendant was driving without lights was a question which was properly submitted to the jury. We will not disturb the finding of the jury when there is testimony from which the jurors could arrive at a conclusion that plaintiff was free from negligence and defendant was guilty of negligence which was the proximate cause of the .accident.
As to defendant’s third question, that he is entitled to a new trial since the verdict of the jury is against the weight and preponderance of the testimony, we do not agree. A reading of the record does not bring us to the conclusion that the verdict was against the .great weight of the evidence.
The fourth and last question deals with a request to charge. Defendant requested the following charge:
“Yon are hereby instructed to disregard any comments by witness Taro regarding the lighting condition he observed of defendant’s car after he arrived at the accident scene as having any bearing on the condition existing at the time of the accident. Lighting is a fact and circumstance that may change momentarily and unless the conditions shown to exist after an accident are connected up with conditions existing at the time of the accident, you have no right to conclude that after facts or circumstances are the same facts existing at the time of the accident.”
It should be apparent from what we have said in answer to the first question that this was not a proper statement of the law and the court was, therefore, not obligated to give the request. Sweet v. Ringwelski, 362 Mich 138; Duncan v. Strating, 357 Mich 654 (14 NCCA3d 359).
The verdict and judgment of the lower court are affirmed. Plaintiff shall have costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred.
See CLS 1956, § 257.627 (Stat Ann 1952 Rey § 9.2327).—Re-porter.
See CLS 1956, § 257.684 (Stat Ann 1960 Kev § 9.2384).—Re-porter. | [
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] |
Smith, J.
The controversy here concerns the terms of a contract. The plaintiff, who was engaged in construction work, was a subcontractor on the school job we are to consider. The defendant, also engaged in the construction business, was the principal contractor for the job. The positions of the parties may be very simply stated. The plaintiff claims he agreed to do certain work for $8,485. The defendant, on the other hand, asserts that the agreed figure was only $5,100. In a suit for the difference between the 2 figures, plaintiff had judgment, and defendant is before us on a general appeal. It is the claim of the defendant that the judgment rendered by the trial court, sitting without a jury, is against the preponderance of the evidence, in fact that there was a “total” lack of evidence to sustain the judgment, and that the court erred in denying defendant’s motion for a new trial.
The original successful bidder for the work (ultimately performed in large part by plaintiff) was the Grand Rapids Tile & Mosaic Company, which had bid $24,126 to furnish “the hard and soft tile work.” Press of work, however, prevented their undertaking the job and defendant was forced to contract elsewhere. The Venice Tile & Mosaic Company was found to do a portion of the work, the hard tile work, for which it was paid the sum of $16,500. This figure, the trial court observed in his opinion, added to the figure claimed by plaintiff as his agreed-upon price for the balance of the work ($8,485), together with extras, totaled $25,451.58, only $1,325.58 more than the original Grand Rapids bid.
In addition to other evidence, the trial court considered the testimony of those experienced in the business as to the probability or improbability of either bid (see Berry v. Dolman, 335 Mich 646), as a result of which he concluded that “it appears highly improbable that plaintiff would have agreed to do this job for $5,100, a figure that was less than his actual cost and which would have required an increase of $3,385, or over 65%, for plaintiff to have earned what he and his witness Andrew Wampler testified was a fair profit on the transaction.”
Appellant makes much of an argument concerning the date of printing of a memorandum pad from the desk of Walter P. Wilkins who, for defendant, conducted negotiations with plaintiff, asserting that the pad was not even in existence at the time plaintiff testified he made certain notations upon it. Plaintiff, on the other hand, points to an exhibit as proof indicating that the defendant “had access to the same type of pads before January, 1957, even though the defendant claims they were not available.” There are other details of the transaction in dispute, and evidence, pro and con, with respect thereto. After a consideration thereof the trial court concluded that “the parties here entered into a binding contract under which plaintiff agreed to do certain specified work for an agreed price of $8,485.”
We do not, in a law case tried without a jury, reverse unless the evidence clearly preponderates against the finding of fact of the trial court. Houghton v. Roberts, 357 Mich 223. We cannot here so conclude.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Per Curiam.
These consolidated suits for negligence, one derivative from the other, were tried to> the court without a jury. The trial judge found for defendant and entered judgments accordingly. Plaintiffs appeal.
A bicycle ridden by an 8-year-old boy (plaintiff in the principal suit), proceeding in one direction along a rather narrow blacktop road, came into collision with an automobile defendant was driving-in the opposite direction. Whether at the time of collision the bicycle or the automobile was on the-wrong or slightly wrong side of the road was disputed. The center line was not marked. The point of impact of car and bicycle was shown photographically as being on the extreme left front and left-side of the car. There was testimony from which the trial judge could infer that the defendant was driving on his own side of the road at the time of and immediately prior to occurrence of the collision, and there was other proof from which the-trial judge could infer that defendant was, at the-time, driving on “about the middle of it.”
There also was testimony that the boy, just before the collision took place, “swerved to his left, right into the car.” The trial judge relied particularly on this testimony. Plaintiffs criticize his action in such regard as violative of the sudden emergency doctrine and say that fear of being hurt by the oncoming car was the cause of the swerve if in fact the boy did swerve as testified.
Questions of fact only were presented before the circuit judge. He resolved them. His finding thereon cannot be pronounced contrary to the dear-preponderance of the evidence. The judgments entered below must therefore be affirmed, with costs to> defendant.
Dethmers, C. J., and Carr, Kelly, Black, and Kavanagh, JJ., concurred. | [
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Edwards, J.
This is an appeal from a verdict directed against plaintiff after completion of plaintiff’s proofs.
Plaintiff was a retired worker who, although not a member, from time to time attended defendant’s clubroom. He played cards and purchased drinks without difficulty, although the club was supposed to be restricted to members.
On April 4,1957, plaintiff went to defendant’s clubroom and remained until shortly before midnight. As he was leaving the hall, he fell and fractured his hip.
The declaration filed attributed his fall to the negligence of defendant in failing to have a light over the steps, in failing to have a handrail, and in the irregular height of the 3 steps. The declaration contended that plaintiff was an invitee.
Defendant’s answer denied any negligence, contended plaintiff was guilty of contributory negligence, and contended that plaintiff was a trespasser.
On appeal, the negligence issue is decisive. The trial judge, in granting the motion for a directed verdict, held that plaintiff had not established any negligence on the part of defendant which occasioned the injury.
Plaintiff-appellant’s brief recites the fact questions he asserts were raised as to negligence, as follows:
“In the instant case the light blub over the steps of defendant’s building was a 50-watt bulb and was in a frosted glass cover. There was no handrail down the steps. There was testimony that the treads of the steps were not uniform height, one above the other.”
There is no testimony that the light was out, and there is testimony that it was on.
As to the other points, plaintiff-appellant’s principal problem is that his own testimony does not relate his fall to any fault in the steps or exit. He testified:
“Q. Were there any lights on?
“A. I don’t know. My foot slipped, and that’s all.
“Q. Where did your foot slip?
“A. There was a step here, and I fell over this way (indicating). The sidewalk here, and I come boom.
“Q. Had you walked in and out of that place many times ?
“A. Not too often — sometimes I did. * * *
“Q. Do I understand it is your claim as you were ■coming out of the veteran’s hall that night, that your foot slipped, and you fell?
“A. Yes.
“Q. And is that the only reason that you fell was because your foot slipped?
“A. I think so, my foot slipped.”
The trial judge held:
“The court finds, taking the testimony in the light most favorable to the plaintiff, there is no evidence in this case that the defendant was guilty of any negligence which was the proximate cause of the injuries of this plaintiff.”
We believe the trial judge was correct. In Nash v. Lewis, 352 Mich 488, 492, this Court adopted the following standard of care as to “business visitors,” from 2 Restatement of the Law of Torts, Negligence, § 343:
“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them.”
The testimony does not identify any hazardous, condition which subjected plaintiff to “an unreasonable risk,” and which caused his injury.
The case is distinguishable from Nezworski v. Mazanec, 301 Mich 43. Plaintiff in that case stepped out of a door onto a dark platform narrower than the door. Part of her foot was off the edge of the platform and, as a result, she lost her balance.
In the instant case, plaintiff has established only an unfortunate accident, such as this Court dealt with in Nash v. Lewis, supra; Yearsley v. City Bank, 361 Mich 574; and Bisceglia v. Cunningham Drug Stores, 350 Mich 159.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred. | [
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Smith, J.
This is an action for personal injuries. The accident occurred in the course of construction of a building. The general contractors were Darin & Armstrong. Roofing subcontractors were Detroit Cornice & Slate Company, plaintiff’s employer, and the Martin Fireproofing Corporation, of New Yprk,. defendant and appellee before us.
The roofing work here under consideration was-a 2-stage operation. Martin Fireproofing first placed fiberglass (or fiberboard, as it is sometimes referred to in the record) over inverted T-irons. The fiberglass, at this stage of the process, and as placed upon the structural iron work, was not capable of supporting substantial weight. Wire mesh was next placed over the fiberglass and covered with 2 or 3 inches of wet gypsum. After a couple of hours-the gypsum solidified and could then be walked upon in safety. Detroit Cornice, plaintiff’s employer, took over at this stage and completed the operation by-finishing with gravel, hot asphalt, and roofing paper.
The day of the accident was plaintiff Klovski’s first day on this particular job, though he had done roofing work before. On the morning in question he rode to the site of the work with fellow workers. Their employer’s ladders and kettles had been set up at the north end of the building, where their work was to begin, but, not having been there before, they came to the south end of the construction, parked there, and walked through the building. As-, one of them put it “Then we walked north through this long building looking for the roofing outfit; see, it had been raining and it was awful muddy on the- side so naturally you are going to take the best way. through, the best way to walk, so we walked through this cement floor going north, looking for exactly where they were working, see.” As the group approached the far end they saw a ladder going up to the roof. Without instruction from anyone, indeed, without reporting for work and directions to anyone in authority, some of them (including plaintiff:) climbed the ladder. One of the plaintiff’s companions noticed that the fiberglass “gave” as he stepped on it and he put his weight, rather, on a T-iron. Plaintiff, however, placed his thermos bottle on the fiberglass, stepped off the ladder onto the fiberglass, and fell through to the floor below.
Action was brought against the general contractor, Darin & Armstrong, and the other roofing subcontractor, Martin Fireproofing. After trial, a motion for directed verdict made by Martin at the close of plaintiff’s case, upon which decision had been reserved, was renewed and granted. The case against Darin & Armstrong went to the jury and a verdict was returned for plaintiff. This, however, was set aside by the trial court because of error in instructions, and a new trial granted. The appeal before us is from the denial of plaintiff’s motion for a new trial against Martin, and from the verdict directed in its favor.
As Martin, the appellee, was neither plaintiff’s employer, nor the general contractor, but rather a co-subcontractor, plaintiff rests his case upon the theory that he was an “invitee or licensee at the time and place of his injury.” It is undisputed that Martin owned the ladder by which plaintiff gained access to the roof. In addition it is argued that “the area from which plaintiff fell was uncovered fiberboard, constructed and under the control of the appellee,” that certain others had used this ladder to gain access to the roof, and that there was no other way to get to the roof.
The difficulty with plaintiff’s case lies in the facts. Before we can have one legally in the position of invitee or licensee we must have an invitation, or a license. Here is where plaintiff’s case collapses. The plaintiff simply saw a ladder, climbed it, and thereby gained access to a part of the roof not yet prepared for the operations of his employer, from which he, unfortunately, fell. Was the ladder an invitation to the plaintiff to climb? There was no express invitation to so use, and as for implied invitation, the ladder’s mere presence in the area was not such. Detroit Cornice, plaintiff’s employer, had its own ladders for reaching its work and its own equipment. But, plaintiff urges, others had used the ladder. The others disclosed by the record are a government inspector and Darin & Armstrong’s general superintendent, but invitation to them is not invitation to the plaintiff, or, in fact, the employees of Detroit Cornice as a class. Moreover it is clear that plaintiff did not rely on the user of the government inspector or the general superintendent as constituting invitation or license, indeed, that it was not even known to him. On this phase of the case the trial judge held as follows:
“Now, in the absence of any evidence of an agreement between Martin Fireproofing and Detroit Cornice, either express or implied, for the mutual use of the ladder and in the absence of any evidence that Martin Fireproofing knew or should have known the plaintiff or his fellow employees or any employee of any other subcontractor had used or reasonably could be expected to use Martin Fireproofing’s ladder, I find there is no basis upon which .to conclude that Martin Fireproofing owed any duty to the plaintiff, either as an invitee, a licensee or as a trespasser.”
And, in the trial court’s opinion denying plaintiff’s motion for new trial against Martin, as follows:
“If possible liability is to be imposed upon Martin Fireproofing because its ladder was used, by invitation or otherwise, express or implied, by plaintiff to gain access to the roof, there should have been, but there was not, some evidence from which the jury could find that defendant knew or should have known that plaintiff or others like plaintiff had so used its ladder, might so use it, or were so using it. The only evidence of the use of such ladders owned by Martin Fireproofing by others than its own employees was that the general contractor’s foreman and a government inspector had done so, there being no evidence that defendant Martin Fireproofing even knew about that.”
The cases upon which appellant relies, Nezworski v. Mazanec, 301 Mich 43; Judis v. Borg-Warner Corp., 339 Mich 313, and Munson v. Vane-Stecker Co., 347 Mich 377, as well as Florez v. Groom Development Co., Inc., 53 Cal 2d 347 (1 Cal Rptr 840, 348 P2d 200), are all distinguishable on their facts. None, in particular, involves the absence of invitation, express or implied, found here. Nor do we have here the problem presented from express permission granted one subcontractor to use the equipment of another. See Arthur v. Standard Engineering Co., 89 App DC 399 (193 F2d 903, 32 ALR2d 408), certiorari denied 343 US 964 (72 S Ct 1057, 96 L ed 1361).
Appellant urges also that defendant breached “one or both of its duties to plaintiff, that is, (1) its duty to make the premises safe, or (2) its duty to warn of a known dangerous condition.” The plaintiff’s difficulty is, again, with the facts. There was no duty upon defendant Martin, one of the roofing sub contractors, to make the premises safe for all who might work there, if, indeed, this were possible of accomplishment in a building under construction. Plaintiff, in fact, was not injured while on defendant Martin’s work, using its equipment (there was no defect in the ladder), nor was he injured in an area turned over to his own employer for the performance of its operations hut left in an unsafe condition through Martin’s negligence. The danger, moreover, in working upon the roof of premises under construction is obvious to all who will look. As we observed in an earlier case, the doctrine of the safe place cannot be applied as controlling where the facts before the court disclose construction work which, by its very nature, involves unusual risks in a progressively changing situation. ¥e find no error in the case.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, and Kavanagh, JJ., concurred.
Souris, J., did not sit.
See CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1959 Cum Supp § 27.1461 et seq.).—Reporter.
Forth v. Cadillac Motor Car Co., 198 Mich 501, 512. | [
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Per Curiam.
Defendant appeals from a decree awarding plaintiff, on tbe latter’s bill for an account ing against defendant, the sum of $15,105 plus interest on separate sums of the total award, calculated from 2 different dates. The chancellor has-presented the essential facts in fair and comprehensive summary:
“This is a bill for an accounting brought in the-name of Donald B. Cyranoski as administrator of the estate of Daniel A. Cyranoski, deceased. The-plaintiff and the deceased were brothers. Daniel A. Cyranoski met with an accidental death while operating a motor vehicle on January 12, 1957.
“The defendant is engaged in the business of' selling used automobiles and deceased had been employed by the company since around 1950. For some-years prior to his death he had acted as sales manager for the company. Plaintiff claims that the defendant was indebted to the deceased at the time of' his death on several accounts.
“1. A loan from the deceased to defendant on November 26', 1956, in the amount of $7,500.
“2. Sale of a Buick automobile on November 2,. 1954, in the amount of $1,930.
“3. A sales bonus for 1955 in amount of $3,000.
“.4.- A sales bonus for 1956 in amount of $3,900.
. “5. Unpaid wages for 2 weeks in 1957 in the-amount of $300. Also claimed interest as due on first 4 items.
“Since the plaintiff invoked the dead man’s statute the evidence revolved almost completely around the books of account of the defendant company. Many of the entries were said to be in the handwriting of the deceased. The defendant admitted items'of the loan of $7,500; the car sale; and admitted that there -was due to the deceased in the way of a 1956 bonus the sum of $2,000. Defendant also claimed, that the alleged bonus for 1955 of $3,000 had been paid, and that all salary to the date of deceased’s death had been paid. The defendant also claimed a set-off.
“It is apparent that the deceased and the defendant worked in close co-operation and that the defendant was greatly in the confidence of the deceased because no evidence of defendant’s obligation was given to the deceased and therefore resort was necessarily to the record. How accurate or-reliable these have been are subject to some reasonable doubt in some of the particulars relating to the transactions between the parties.”
Defendant’s motion to dismiss, assigning availability of an adequate remedy at law, was denied. Defendant thereupon filed an answer, which answer included a notice of “set-off and recoupment” the substance of which was that an automobile (owned by defendant and valued at $1,515) was negligently demolished by plaintiff’s decedent in the accident which took the latter’s life. As to such “set-off and recoupment” the chancellor held that plaintiff’s decedent would have been liable to defendant — for destruction of the car — only as bailee and, there being no proof that plaintiff’s decedent was actionably negligent, that defendant could not recover upon the asserted counterclaim.
The questions defendant would have us review are whether Judge Taylor should have granted his motion to dismiss; whether defendant should have been permitted to testify to matters equally within the knowledge of plaintiff’s decedent “after having been called as a witness, and examined as to such matters, by plaintiff’s attorney;” and whether the judge should have “allowed defendant a set-off * * * as a result of the demolition of one of defendant’s cars by plaintiff’s decedent.”
First: We agree with plaintiff that the proof relevantly discloses a fiduciary relationship between plaintiff’s decedent and defendant sufficient to justify invocation by plaintiff of equity’s concurrent jurisdiction, the nature of which Professor Pomeroy has considered at length in part 4, group 7, chapter 2 of his work on equity jurisprudence, and that defendant’s motion to dismiss, assigning presence of an adequate remedy at law, was on that account properly denied.
Second: We find no ground for reversal here. Defendant failed to request the taking upon separate record of such additional portion of his testimony as might tend effectively to establish non-indebtedness to plaintiff’s decedent by him. The limited amount of defendant’s actually received testimony, as to matters equally within the decedent’s knowledge, which testimony is shown in defendant’s-appendix, does not convince as against the documentary proof and the chancellor’s finding thereon that the decretal award is excessive. Such testimony is limited to a manifestly self-serving asseveration by defendant that he paid the decedent “a bonus of $3,000” in cash and that the decedent thereafter-made no claim of nonpayment of said bonus.
The trouble with defendant’s complaint under this heading' is that he has not brought here, and did not ask the chancellor’s aid in bringing here, that comprehensive record of defendant’s testimony which might enable us to ascertain its value as well as competence. See Counihan v. Hayes, 246 Mich 390; Kerns v. Kerns, 303 Mich 23; Serbinoff v. Dukas, 348 Mich 69; Bujalski v. Metzler Motor Sales Co., 353 Mich 493; and Lazerow v. Lazerow, 362 Mich 27.
Third: Plaintiff insists that defendant, having the burden of proof in such regard, failed to establish that the relationship of decedent, to defendant was that of bailee of the latter’s car. We agree. Defendant’s said “set-off and recoupment” does not allege the claimed relationship and there is no proof of the nature of the claimed contract of bailment if in fact or law such contract came into existence. If anything, on the face of this discursive record, the sole inference is that plaintiff’s decedent was at the time engaged in the course of his employment by defendant. Thus we decline consideration and decision of an argued conflict between the claimed presumption of negligence on the part of decedent (as bailee) and the countering presumption that he exercised due care. Such a decision calls for a more thorough record of facts to determine whether plaintiff or defendant bore the ultimate burden of persuasion. As Wigmore says (9 Wigmore on Evidence [3d ed], § 2493, pp 292, 293):
“This shifting of the duty of production of evidence, by reason of the successive invocation of different presumptions, may create a complicated situation difficult to work out; but it can more properly be spoken of as a case of successive presumptions than of conflicting presumptions; and the ultimate key to the situation is very often found by ascertaining the incidence of the burden of proof in the other sense, i.e. the ultimate risk of nonpersuasion.”
A final question remains. The principal item of the total decreed amount was a conceded “loan” by the decedent to defendant in the sum of $7,500. With respect to this item only the chancellor allowed interest to plaintiff’s satisfaction. As to the remaining amount decreed the claimed accrual of interest (prior to decree) was denied. By cross appeal plaintiff insists that the decree should be modified “so as to allow plaintiff interest on all 5 of the sums claimed by plaintiff in this cause, rather than on the $7,500 loan only, from their respective due dates, from January 12, 1957, or from May 1, 1957, as this Court may determine is agreeable to equity and good conscience.”
We are in equity. Plaintiff sought and obtained equity’s aid by way of an accounting. The only evidence of plaintiff’s right to such accounting appeared in defendant’s business records and they were deficient of proof or inference that the parties intended the running of interest on these disputed items. Further, there is no proof of a demand by the decedent for payment of such disputed items.
The question of allowance of interest in suits for accounting is usually a matter for determination according to sound discretion based on presented equities. See collection of authorities in 47 CJS, Interest, § 3, pp 13, 14. The text reads:
“In equity. Courts of equity, in decreeing or refusing interest, generally follow the law; and, on the other hand, it has been said that courts of law are sometimes affected by equitable considerations in the allowance of interest. Nevertheless, interest is sometimes allowed by courts of equity, in the exercise of a sound discretion, when it would not be recoverable at law. These courts, it has been said, will, in their discretion, allow or withhold interest as, under all the circumstances of the case, seems equitable and just, except in cases where interest is recoverable as a matter of right.”
Here there is no ground for holding that equity’s discretion, with respect to allowance or disallowance of interest, has been abused. This is especially so where mutual accounts have been asserted and settled without evidence of an agreement or understanding that the prevailing party, on striking or determining a balance, should receive interest prior to ascertainment thereof.
Decree affirmed. Costs to plaintiff.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
See CL 1948, § 617.65 (Stat Ann § 27.914) .—Reporter.
“§ 1420. Origin of the Equitable Jurisdiction. — The action of account-render was one of the most ancient actions known to the common law. From the narrow scope and technical rules of this action, the inability of common-law courts to obtain a discovery from the defendant on his oath, the difficulty met with in cases of mutual and complicated accounts, and the impossibility of otherwise doing complete justice, it is easy to understand why the action of account-render fell into disuse, and a jurisdiction in equity to entertain suits for an accounting grew, up.” 4 Pomeroy’s Equity Jurisprudence (5th éd), § 1420, p 1076.
Defendant’s pleaded “set-off and recoupment” reads as follows:
“Further answering said bill of complaint, and by way of set-off and recoupment, this defendant claims that the ear that was used by plaintiff’s decedent at the time of his death was owned by this defendant, and that plaintiff’s decedent was allowed to use the car for his convenience. That the ear was damaged in the amount of $1,515. That plaintiff’s decedent also purchased some furniture from this defendant in the amount of $150, and a camera for $35. That plaintiff’s decedent also had an advance of $374, so that plaintiff’s estate is indebted to defendant in the amount of $2,074.
“Wherefore, defendant claims a set-off in the amount of $2,074 against the claims of plaintiff as alleged in his bill of complaint as admitted in the answer of defendant filed in this cause.” | [
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Per Curiam.
On motion of the Court, the briefs and appendices of plaintiffs-appellants Harvey, et al., in the above-styled matters are stricken for gross violations of Court Buie No 67 (particularly sections 1, 2, and 6 thereof).
Further, under authority of Court Bule No 70, § 5(b), the appeals of plaintiffs-appellants Harvey, et al., will be dismissed 60 days from date unless by then appellants have filed briefs and appendices complying with appellate rules.
Court Rules (1945) were amended and certain sections added, October 30, 1956, effective January 2, 1957. Por Rule No 67 see 347 Midi xxii, and subsequent amendment effective July 1, 1959, at 355 Mich xiv. Por Rule No 70, § 5(b), see 347 Mich xxx.—Reporter.
As to Nos. 48,731 and 48,732, see, also, Author’s Comment, Honigman, Michigan Court Rules Annotated (1959 Pocket Part, p 214). | [
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PER CURIAM.
Petitioner appeals as of right a final opinion and judgment of the Michigan Tax Tribunal in which the tribunal determined that petitioner is not entitled to a principal residence exemption (PRE) under MCL 211.7cc. We reverse and remand.
Petitioner’s husband, Richard, owned a home before he and petitioner married. Richard passed away in August 2011. His will provided petitioner a life estate in the home, and provided his children a future interest in the home. A deed granting petitioner’s life estate was drafted on January 16, 2012. Respondent denied petitioner’s request for a PRE for the property. Petitioner appealed, and a hearing referee determined that petitioner is an “owner” of the property under MCL 211.7dd(a)(c) and therefore entitled to the exemption. Respondent filed exceptions to the referee’s findings. The tribunal determined that petitioner is not an owner under MCL 211.7dd(a)(c) because she was not a prior owner before the transfer and, therefore, that she is not entitled to the exemption.
The only issue presented is whether petitioner is an owner of the property for purposes of the PRE under MCL 211.7cc. “In the absence of fraud, review of a decision by the Tax Tribunal is limited to determining whether the tribunal erred in applying the law or adopted a wrong principle; its factual findings are conclusive if supported by competent, material, and substantial evidence on the whole record.” Mich Bell Tel Co v Dep’t of Treasury, 445 Mich 470, 476; 518 NW2d 808 (1994). Resolution of this appeal also involves a matter of statutory interpretation, which is reviewed de novo as a question of law. Klooster v City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011).
The primary goal in statutory interpretation is to give effect to the Legislature’s intent. Mt Pleasant v State Tax Comm, 477 Mich 50, 53; 729 NW2d 833 (2007). When interpreting a statute, the statute must be considered as a whole and the words used are to be given their plain meaning. Klooster, 488 Mich at 296. “When the plain and ordinary language of a statute is unambiguous, the Legislature’s intent is clear and judicial construction is neither necessary nor permitted.” Moshier v Whitewater Twp, 277 Mich App 403, 407; 745 NW2d 523 (2007). However, “[w]here a statute sets forth its own definitions, the terms must be applied as expressly defined.” Cherry Growers, Inc v Agricultural Mktg & Bargaining Bd, 240 Mich App 153, 169; 610 NW2d 613 (2000).
In pertinent part, MCL 211.7cc(l) states that “[a] principal residence is exempt from the tax levied by a local school district for school operating purposes to the extent provided under section 1211 of the revised school code, 1976 PA 451, MCL 380.1211, if an owner of that principal residence claims an exemption as provided in this section.” MCL 211.7dd(a) defines “owner” to mean any one of the following:
(i) A person who owns property or who is purchasing property under a land contract.
{ii) A person who is a partial owner of property.
(Hi) A person who owns property as a result of being a beneficiary of a will or trust or as a result of intestate succession.
(:iv) A person who owns or is purchasing a dwelling on leased land.
(v) A person holding a life lease in property previously sold or transferred to another.
(vi) A grantor who has placed the property in a revocable trust or a qualified personal residence trust.
(vii) The sole present beneficiary of a trust if the trust purchased or acquired the property as a principal residence for the sole present beneficiary of the trust, and the sole present beneficiary of the trust is totally and permanently disabled. As used in this subparagraph, “totally and permanently disabled” means disability as defined in section 216 of title II of the social security act, 42 USC 416, without regard as to whether the sole present beneficiary of the trust has reached the age of retirement.
(viii) A cooperative housing corporation.
(ix) A facility registered under the living care disclosure act, 1976 PA 440, MCL 554.801 to 554.844.
Petitioner maintains that she qualifies as an “owner” under MCL 211.7dd(a)(ii), (Hi), or (v).
The tribunal concluded that petitioner is not an owner under MCL 211.7dd(a)(u):
MCL 211.7dd(a)(i0 defines “owner” as “[a] person holding a life lease in property previously sold or transferred to another.” Here, Petitioner is not the owner of the subject property. Although the Tribunal finds that Petitioner has a valid life lease in the property, Petitioner did not previously own the subject property prior to the creation of the life lease and the clause “previously sold or transferred to another” implies prior ownership. Otherwise, the clause would not have been added to interpret owner to include the holder of a life lease.
The tribunal’s reasoning in regard to MCL 211.7dd(a)(c) is sound because petitioner’s life estate was not preceded by a sale or transfer of the property to another.
MCL 211.7dd(a)(ii) defines owner as a “person who is a partial owner of property.” This definition is ambiguous because it is circular, i.e., the term to be defined— “owner” — is included as part of the definition. Thus, we can consult dictionary definitions to provide meaning. Johnson v Pastoriza, 491 Mich 417, 436; 818 NW2d 279 (2012). “Owner” is the derived, undefined noun form of “own.” Random House Webster’s College Dictionary (1997), p 933; see id. at xvi. “Own” is defined, in part, as “something that belongs to oneself” or “to have or hold as one’s own; possess.” Id. at 933. And “ownership” is defined as “the state or fact of being an owner” or “legal right of possession; proprietorship.” Id.
And, looking to caselaw, in Barnes v Detroit, 379 Mich 169, 177; 150 NW2d 740 (1967), a case involving an exemption with respect to real estate owned and used as a homestead by a disabled veteran, the Court stated:
This Court has many times held that a person does not have to own property in fee simple to claim a homestead. The word “owner” as used in the law has generally been treated as including all parties who had a claim or interest in the property, although the same might be an undivided one or fall short of an absolute ownership, and possession alone has frequently been held, in reference to personal property, as prima facie evidence of ownership.
A life estate gives the holder the right to possess, control, and enjoy the property during the holder’s lifetime. Wengel v Wengel, 270 Mich App 86, 99; 714 NW2d 371 (2006). Accordingly, we conclude that the holder of a life estate has an interest in the property and is considered an “owner.” Therefore, petitioner is entitled to the PRE because she is a partial owner, along with Richard’s children, under MCL 211.7dd(a)(ii). Further, petitioner is also an owner under MCL 211.7dd(a)(iii) because she “owns property as a result of being a beneficiary of a will or trust or as a result of intestate succession.” The tax tribunal erred by applying the law or adopted a wrong principle when it determined petitioner was not an owner under MCL 211.7dd(a). Mich Bell, 445 Mich at 476.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Wilder, EJ., and Fitzgerald and Markey, JJ., concurred. | [
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ON REMAND
Before: TALBOT, EJ., and WILDER and RlORDAN, JJ.
WILDER, J.
Previously, in Winget v Dep’t of Treasury, unpublished opinion per curiam of the Court of Appeals, issued October 16, 2012 (Docket No. 302190), we affirmed the order of the Michigan Tax Tribunal (MTT) affirming respondent’s assessments for tax years 2001 and 2002. Our Supreme Court vacated our judgment and remanded for us to reconsider the issue in light of its decision in Malpass v Dep’t of Treasury, 494 Mich 237; 833 NW2d 272 (2013). Winget v Dep’t of Treasury, 495 Mich 863 (2013). For the reasons set forth in this opinion, we again affirm.
Petitioner Larry Winget is the sole shareholder of several subchapter S corporations. Most of the S corporations operate exclusively within Michigan, but during the tax years at issue, two or three S corporations had multistate operations. Petitioners determined their Michigan income tax liability by combining the property, payroll, and sales figures for all the S corporations to calculate a single apportionment percentage. Petitioners applied this apportionment percentage to each of the S corporations. After reviewing petitioners’ tax returns for tax years 2001 and 2002, respondent concluded that petitioners should have calculated and applied separate apportionment percentages for each of the S corporations. The MTT ruled in favor of respondent, and petitioners appealed.
In the absence of fraud, we review the MTT’s decision for “misapplication of the law or adoption of a wrong principle.” Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 75; 780 NW2d 753 (2010). Issues of statutory interpretation are reviewed de novo. Id.
Under the federal Constitution, a state is prohibited from imposing income tax on value earned outside the state’s borders. Container Corp of America v Franchise Tax Bd, 463 US 159, 164; 103 S Ct 2933; 77 L Ed 2d 545 (1983). However, “[a] state is not required to isolate a business’s intrastate activities from its interstate activities; instead, ‘it may tax an apportioned sum of the corporation’s multistate business if the business is unitary.’ ” Malpass, 494 Mich at 246, quoting Allied-Signal, Inc v Div of Taxation Dir, 504 US 768, 772; 112 S Ct 2251; 119 L Ed 2d 533 (1992) (emphasis added). This unitary-business principle “allows a state to ‘tax multistate businesses “on an apportionable share of the multistate business carried on in part in the taxing state.” ’ ” Malpass, 494 Mich at 246, quoting Preston v Dep’t of Treasury, 292 Mich App 728, 733; 815 NW2d 781 (2011) (citation omitted).
Consistently with the unitary-business principle, MCL 206.103, during the relevant tax years, provided the following:
Any taxpayer having income from business activity which is taxable both within and without this state, other than the rendering of purely personal services by an individual, shall allocate and apportion his net income as provided in this act.[ ]
The apportionment formula is set forth in MCL 206.115. At the time relevant to this appeal, MCL 206.115 read as follows:
All business income, other than income from transportation services shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is 3.[ ]
“The property, payroll, and sales factors represent the percentage of the total property, payroll, or sales of the business used, paid, or made in this state.” Grunewald v Dep’t of Treasury, 104 Mich App 601, 606; 305 NW2d 269 (1981), citing MCL 206.116, MCL 206.119, and MCL 206.121.
Petitioners argue that apportionment of business income under MCL 206.115 may be calculated by adding the property, payroll, and sales of multiple S corporations to establish a single property factor, a single payroll factor, and a single sales factor. While this is a valid method for apportionment, it is only available when the multistate businesses are unitary. In order
for a business or individual to exercise multistate apportionment, there must “be some sharing or exchange of value not capable of precise identification or measurement — beyond the mere flow of funds arising out of a passive investment or a distinct business operation — which renders formula apportionment a reasonable method of taxation.” [Wheeler Estate v Dep’t of Treasury, 297 Mich App 411, 417; 825 NW2d 588 (2012), affd in part and vacated in part on other grounds sub nom Malpass, 494 Mich 237, quoting Container Corp, 463 US at 166.
In Malpass, the plaintiff individuals (i.e., natural persons) owned two separate S corporations. Both were Michigan corporations, but one conducted its business in Michigan, and the other conducted its business in Oklahoma. Malpass, 494 Mich at 242-243. The “Michigan” S corporation had a net gain, while the “Oklahoma” S corporation had a net loss. In their amended tax returns, the taxpayers treated the S corporations as a unitary business. By treating the S corporations as a single unitary business, the taxpayers were able to substantially reduce their Michigan income tax obligations by applying the losses from the “Oklahoma” S corporation against their Michigan income. Id. at 243.
The Supreme Court noted that there were different apportionment formulas, including separate-entity reporting and combined reporting, and identified the question as being “whether the ITA [Income Tax Act, MCL 206.1 et seq.] prohibits individual taxpayers from using combined reporting.” Id. at 247. It noted that (1) when an individual taxpayer derives income “from business activity both within and without this state, the ITA requires an individual taxpayer to ‘allocate and apportion his net income,’ ” (2) all taxable income not attributable to another state must be allocated to this state, and (3) the allocation must be in accordance with MCL 206.115, which applies to “all business income.” Id. at 248. Further, it noted that while MCL 206.115 unambiguously provided for formulary apportionment, it was silent on the method to be used. The Supreme Court concluded that “the phrase, ‘[a]ll business income . . . shall be apportioned[,]’ is certainly broad enough to encompass either of the approaches advocated by the parties.” Id. at 249. Therefore, it concluded that the ITA did not require separate-entity reporting and that “in the absence of a policy choice by the Legislature, . . . the ITA permits either reporting method.” Id. at 251.
However, the Malpass Court did not eliminate the requirement that the businesses be unitary in order to apportion the income. It also did not indicate that all business that flowed through to the taxpayer would be regarded as a unitary business. In Malpass, it was not disputed that the businesses were unitary. Id. at 254. In Wheeler v Dep’t of Treasury, the companion case accompanying Malpass, it was disputed. Id. at 255. And because the Supreme Court agreed that the businesses in Wheeler were unitary, it held that the apportionment was proper. Id. at 256-258. Thus, the Supreme Court made it clear that it was maintaining the requirement that businesses need to be unitary in order for a taxpayer to apportion under MCL 206.115.
In the present case, the MTT found:
[5.] d. The [hearing officer] was correct in finding that:
“With regard to all of the entities at issue, other than generalized testimony that they were engaged in automotive related businesses, there are no facts to support a conclusion that the entities constitute a ‘unitary’ business. This suggests that even under the theory pursuant to which the original return was filed (excluding income and losses of non-unitary businesses) the factors should be combined only for those entities that are together engaged in a unitary business. However, the facts do not support a conclusion that they were so engaged.”
f. Had Petitioners brought forth evidence of a unitary business enterprise for some or all of the S corporations, a different result may have been warranted.
6. Given the above, the Tribunal adopts the conclusion of the Proposed Opinion and Judgment finding Petitioners failed to prove that a unitary business existed between and amongst any of the S corporations. Therefore, Respondent was correct in determining Petitioners’ taxable income is based on the business activities of each separate entity. [Citation omitted.]
Since petitioners failed to establish that the S corporations constituted a unitary business, they were not entitled to use combined reporting.
Petitioners argue that because they are resident individual taxpayers, MCL 206.110 and MCL 206.115 required allocation of all taxable business income in accordance with the apportionment formula, regardless of whether their businesses were unitary. However, Malpass forecloses this possibility since it recognized that combined reporting could only occur if the businesses were unitary.
Affirmed.
TALBOT, EJ., and RiORDAN, J., concurred with WILDER, J.
MCL 206.103, as amended by 1970 PA 140. Effective January 1,2012, this statute was modified by replacing “as provided in this act” with “as provided in this part.” 2011 PA 38.
MCL 206.115, as amended by 1975 PA 233. The statute was subsequently amended by 2011 PA 38 and 178. | [
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Murphy, C.J.
This Court convened a special panel pursuant to MCR 7.215(J) in order to resolve the conflict between the previous opinion issued in this case and Tyra v Organ Procurement Agency of Mich, 302 Mich App 208; 840 NW2d 730 (2013). The conflict concerns whether our Supreme Court’s opinion in Driver v Naini, 490 Mich 239; 802 NW2d 311 (2011), effectively overruled this Court’s opinion in Zwiers v Growney, 286 Mich App 38; 778 NW2d 81 (2009), despite no express mention of Zwiers. The trial court relied on Zwiers in denying defendants’ motion for summary disposition, in this case where plaintiffs’ medical malpractice complaint was filed one day before the end of the mandatory notice waiting period under MCL 600.2912b associated with the service of a notice of intent to file a claim (NOI). We conclude that there is a lack of clarity in the language of Driver to the degree that we simply cannot hold, with any level of confidence, that our Supreme Court overruled Zwiers or that it implicitly intended to do so. Indeed, there is language in Driver that can reasonably be interpreted as supporting the analytical framework set forth in Zwiers. Therefore, we are not prepared to rule that Driver effectively overruled Zwiers and leave the issue for a future definitive decision by the Michigan Supreme Court, should the Court have the opportunity and inclination to tackle the issue. Accordingly, we affirm the trial court’s order denying summary disposition.
I. OVERVIEW
The underlying substantive issue at the heart of the conflict concerns whether MCL 600.2301 can serve as the basis for a court to reject dismissal of a medical malpractice action that would otherwise result from the filing of a complaint before the expiration of the mandatory notice waiting period in MCL 600.2912b. In the context of that issue, the Zwiers panel held that if the criteria in MCL 600.2301 are satisfied, the statute can indeed be invoked to prevent the medical malpractice action from being summarily dismissed, whether by amendment of the complaint’s filing date or the simple disregard of the defect. Zwiers, 286 Mich App at 52-53. In Driver, the Michigan Supreme Court held “that a plaintiff is not entitled [under MCL 600.2301] to amend an original NOI to add nonparty defendants so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations^]” Driver, 490 Mich at 243. The majority in Tyra continued to recognize Zwiers as controlling precedent after the opinion in Driver was issued. Tyra, 302 Mich App at 223-227. In the lead opinion in the earlier Furr decision, it was expressed that Driver had effectively overruled Zwiers, that the Court was nevertheless bound by Tyra’s construction of Driver and its affect on Zwiers, that Zwiers therefore remained applicable, requiring affirmance of the trial court’s ruling, and that Tyra was wrongly decided. Furr v McLeod, 303 Mich App 801 (2013).
For multiple reasons, we cannot confidently or with any measure of certainty conclude that Driver effectively overruled Zwiers. First, the Driver opinion, which was extremely thorough and detailed, never expressly mentioned Zwiers, despite the fact that Zwiers, a binding decision from this Court, specifically analyzed the interplay between Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005), Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009), and MCL 600.2301 — a topic discussed at length in Driver. Second, Zwiers, Tyra, and Furr addressed a fact pattern significantly different from that in Driver, because those cases merely involved a timely served NOI and a prematurely filed complaint and did not concern, as did Driver, service of an NOI on a nonparty defendant beyond the limitations period and an attempt to amend an earlier timely NOI to add the nonparty defendant. Indeed, Driver couched much of its discussion and analysis in the context of a plaintiffs seeking to add a nonparty defendant. See, e.g., Driver, 490 Mich at 255 (“In addition, allowing a claimant to amend an original NOI to add nonparty defendants conflicts with ...Third, the Driver Court never expressly stated that MCL 600.2301 can never be applied to disregard or reject the dismissal of a prematurely filed medical malpractice complaint. Fourth, the Court in Driver actually applied the criteria in MCL 600.2301 to the facts presented and found that, under the circumstances, the statute would not support allowing an amendment. Fifth, to the extent that Driver might be construed to support the proposition that MCL 600.2301 only permits an amendment of a document’s “content,” which the lead opinion in Furr concluded, such a construction seems doubtful, given that MCL 600.2301 expressly authorizes a court to “amend any process, pleading or proceeding. .., either in form or substance[.]” (Emphasis added.) Finally, in our view, the plain and unambiguous language of MCL 600.2301 would appear to mandate a court to disregard a premature filing under MCL 600.2912b if a defendant’s substantial rights are unaffected.
In summation, we hold that the trial court did not err by applying Zwiers in denying defendants’ motion for summary disposition.
II. APPLICABLE STATUTORY PROVISIONS
To provide some context for our discussion, we begin by reviewing the statutory provisions implicated in this matter. MCL 600.2912b(l) provides:
Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
The notice period is shortened to 154 days or to 91 days in certain circumstances that are unnecessary to discuss for purposes of this opinion. MCL 600.2912b(3) and (8). The factual setting in Zwiers, Tyra, and in this case, Furr, involved the filing of medical malpractice complaints before the NOI waiting period in MCL 600.2912b had expired. Furr, 303 Mich App at 808; Tyra, 302 Mich App at 211; Zwiers, 286 Mich App at 40-41. In each instance, there were prematurely filed complaints.
In general, a medical malpractice action must be commenced within two years of when the claim accrued or within six months after the plaintiff discovered or should have discovered the claim’s existence, whichever is later. MCL 600.5838a(2); MCL 600.5805(1) and (6); Driver, 490 Mich at 249-250. MCL 600.5856(a) provides that a statute of limitations is tolled “[a]t the time the complaint is filed,” assuming timely service of the summons and complaint under the court rules. Pursuant to MCL 600.5856(c), a statute of limitations is also tolled under the following circumstance:
At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.
“When a claimant files an NOI with time remaining on the applicable statute of limitations, that NOI tolls the statute of limitations for up to 182 days[.]” Driver, 490 Mich at 249. Finally, MCL 600.2301 provides:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
The panels in Zwiers, Tyra, and Furr addressed the application of MCL 600.2301 relative to the prematurely filed complaints and the subsequent expiration of the period of limitations.
III. EVOLUTION OF THE PERTINENT CASELAW
In Burton, 471 Mich 745, the plaintiff filed a medical malpractice complaint, along with an affidavit of merit, before the expiration of the notice waiting period in MCL 600.2912b(l). The Michigan Supreme Court identified the issue as being “whether a complaint alleging medical malpractice that is filed before the expiration of the notice period provided by MCL 600.2912b tolls the period of limitations.” Id. at 747. The Court held that a medical malpractice complaint filed before the expiration of the applicable notice period does not toll the period of limitations. Id. The Burton Court explained:
The directive in § 2912b(l) that a person “shall not” commence a medical malpractice action until the expiration of the notice period is similar to the directive in [MCL 600.2912d(l)] that a plaintiffs attorney “shall file with the complaint an affidavit of merit. ...” Each statute sets forth a prerequisite condition to the commencement of a medical malpractice lawsuit. The filing of a complaint before the expiration of the statutorily mandated notice period is no more effective to commence a lawsuit than the filing of a complaint without the required affidavit of merit. In each instance, the failure to comply with the statutory requirement renders the complaint insufficient to commence the action. [Id. at 753-754 (omission in original).]
“[Dismissal is an appropriate remedy for noncompliance with the notice provisions of MCL 600.2912b and . .. when a case is dismissed, the plaintiff must still comply with the applicable statute of limitations.” Id. at 753. We emphasize that our Supreme Court in Burton did not indicate that the plaintiff presented an argument under MCL 600.2301, and the statute was not addressed by the Court in any form or fashion.
In Bush, the Supreme Court addressed the question whether a substantive defect in a timely served NOI “precludes the tolling of the statute of limitations on a plaintiffs medical malpractice claim.” Bush, 484 Mich at 160. The Bush Court ruled:
We hold that pursuant to MCL 600.5856(c), as amended by 2004 PA 87, effective April 22, 2004, when an NOI is timely, the statute of limitations is tolled despite defects contained therein. Moreover, in light of the legislative clarification of § 5856(c), we hold that the purpose of the NOI statute is better served by allowing for defects in NOIs to be addressed in light of § 2301, which permits “amendment” or “disregard” of “any error or defect” where the substantial rights of the parties are not affected, as long as the cure is in the furtherance of justice and on terms that are just. A cure is in the furtherance of justice when a party makes a good-faith attempt to comply with the content requirements of § 2912b. [Id. at 185.]
The Bush Court, in discussing MCL 600.2301 and the statute’s references to the terms “process” and “proceeding,” observed that “[s]ervice of an NOI is clearly part of a medical malpractice ‘process’ or ‘proceeding’ in Michigan.” Id. at 176. The Court further explained that because “an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding’ ” and therefore MCL 600.2301 “applies to the NOI ‘process.’ ” Id. at 176-177. According to the Court, “the language of § 2301 goes beyond the limited concept of amendment of ‘pleadings’ and allows for curing of certain defects in any ‘process, pleading or proceeding.’ ” Id. at 176. The Court “h[e]ld that § 2301 may be employed to cure defects in an NOI,” as long as a plaintiff makes a good-faith attempt to comply with the content requirements of MCL 600.2912b(4). Id. at 177-178.
In Zwiers, 286 Mich App at 39-40, this Court, referring to MCL 600.2301, Burton, and Bush, summed up the nature of the case and its holding as follows:
In this medical malpractice lawsuit, plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants under MCR 2.116(C)(7). At issue is whether plaintiffs case was properly dismissed when she mistakenly filed her complaint and affidavit of merit 181 days after serving her... (NOI) on defendants, instead of commencing her action one day later or at least 182 days following service of the notice, as required by MCL 600.2912b(l). The trial court dismissed the action, ruling that the premature filing of the complaint and affidavit was ineffective to commence the action and that the period of limitations had subsequently expired. While Burton ..., standing alone, would compel us to affirm, Burton did not address or consider MCL 600.2301, which, in the furtherance of justice, permits a court to amend any process or proceeding and to disregard any error or defect in the proceedings if substantial rights are not affected. In Bush ..., our Supreme Court interpreted MCL 600.2301, determining that it was implicated and applicable with respect to compliance failures under the NOI statute, MCL 600.2912b. On the strength of MCL 600.2301 and Bush, and given plaintiffs good-faith effort to comply with the NOI statute, a failure to show that the legislative purpose behind enactment of the NOI statute was harmed or defeated, and given that defendants’ substantial rights were not affected, we reverse and remand in the “furtherance of justice.”
The Zwiers panel acknowledged “that Bush dealt with a violation or defect in regard to the NOI content requirements of § 2912b(4) and not a violation or defect in the proceedings arising out of § 2912b(l).” Zwiers, 286 Mich App at 49. This Court concluded, however, that the distinction did not preclude application of MCL 600.2301, reasoning as follows:
Bush makes it abundantly clear that MCL 600.2301 is applicable to the entire NOI process and any compliance failures under the NOI statute. Bush, supra at 176-177 (service of an NOI is part of a medical malpractice proceeding and as a result “§ 2301 applies to the NOI ‘process’ ”). The Bush Court stated that § 2301 goes beyond the amendment of pleadings and reaches defects in any process, pleading, or proceeding. Id. at 176. MCL 600.2301 expressly speaks of errors or defects in the proceedings, and it cannot reasonably be disputed that the premature filing of a complaint under § 2912b(l) constitutes an error or defect in the proceedings. MCL 600.2301 also addresses the power of amendment relative to process, pleadings, and proceedings, and the concept of “process” clearly encompasses the issuance of a summons, the filing of a complaint, service of the summons and complaint on a defendant, and the overall commencement of an action that compels a defendant to respond. See MCR 2.101 et seq. [Id. at 49-50.]
The Zwiers panel did not hold that Burton was no longer good law after Bush was issued. After reciting the facts and holding in Burton, this Court stated in Zwiers that, on the basis of Burton, “when plaintiff here filed suit one day premature in violation of MCL 600.2912b(l),. . . she did not technically commence the medical malpractice action for purposes of the statute of limitations.” Zwiers, 286 Mich App at 45. And because the plaintiff did not effectively commence the action, “the clock on the two-year period of limitations resumed running and then expired.” Id. at 45-46. However, because Burton did not address an argument under MCL 600.2301, the Zwiers panel engaged in an analysis of the statute, as guided by the Bush opinion. Id. at 46-52. In sum, the analysis in Zwiers first required a determination whether the medical malpractice action was indeed subject to summary dismissal under Burton. If Burton called for dismissal of the action, the analysis moved to contemplation of MCL 600.2301 in order to determine whether the action could nonetheless be resurrected through amendment or disregard of the underlying defect. And only upon satisfaction of the criteria in MCL 600.2301, as analyzed under the particular facts of a case, could the medical malpractice action continue, otherwise Burton compelled dismissal. Zwiers, 286 Mich App at 44-53.
Two years later, the Michigan Supreme Court issued the Driver decision, addressing the issue “whether a plaintiff is entitled to amend an original. .. (NOI) when adding a nonparty defendant to a pending action pursuant to this Court’s holding in Bush . . . and MCL 600.2301 so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations.” Driver, 490 Mich at 242-243. In Driver, the plaintiff filed a medical malpractice action against Dr. Mansoor Naini and Michigan Cardiology Associates, PC (MCA), alleging that Dr. Naini had failed to properly screen the plaintiff for colon cancer and that MCA was vicariously liable for Dr. Nairn’s malpractice. There was no dispute that the plaintiff sent an NOI to Dr. Naini and MCA in compliance with MCL 600.2912b(l) and that the plaintiff properly and timely filed suit after the expiration of the notice waiting period. Id. at 243-244. After Dr. Naini and MCA served a notice of nonparty at fault on the plaintiff naming Cardiovascular Clinical Associates, PC (CCA), as a potential defendant, the plaintiff sent an NOI to CCA and filed a motion seeking leave to file an amended complaint to add CCA as a party defendant. The trial court granted the motion, and an amended complaint was filed that added CCA as a defendant. In regard to CCA, the 91-day notice waiting period under MCL 600.2912b(3) applied, but the amended complaint was filed only 49 days after CCA was sent its NOI. Id. at 244. In Driver, “the six-month discovery rule provide[d] the applicable limitations period.” Id. at 250. The plaintiff sent the NOI to CCA after the six-month period of limitations had already expired, making the NOI and the amended complaint untimely with respect to the statute of limitations period. Id. at 251. In part, the plaintiff argued “that he should be permitted to amend his original NOI pursuant to this Court’s holding in Bush and MCL 600.2301 so that the NOI he sent to CCA relate[d] back in time to his original NOI” that had been served on Dr. Naini and MCA. Id. at 251-252.
The Driver Court stated that “the facts at issue do not trigger application of MCL 600.2301.” Id. at 253. The Court quoted MCL 600.2301, emphasizing the introductory language providing that it applies to courts “ ‘in which any action or proceeding is pending.’ ” Driver, 490 Mich at 253. The Driver Court ruled:
By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. An action is not pending if it cannot be commenced.... In Bush, however, this Court explained that an NOI is part of a medical malpractice “proceeding.” The Court explained that, “[s\ince an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’ ” Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any “proceeding” against CCA because plaintiffs claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case. [Id. at 254 (citations and some quotation marks omitted; alteration and emphasis in original).]
Our Supreme Court did not stop at this point in explaining why MCL 600.2301 was inapplicable; rather, it proceeded to provide myriad additional reasons. At this stage, we shall briefly summarize the Supreme Court’s additional reasoning and discussion. First, the Court analyzed the particular facts of the case under MCL 600.2301 and found that allowing amendment of the original NOI so that the plaintiff could add CCA would affect CCA’s substantial rights and would not further justice. Driver, 490 Mich at 254-255. Next, the Court explained that “allowing a claimant to amend an original NOI to add nonparty defendants conflicts” with the NOI and NOI-waiting-period requirements of MCL 600.2912b. Id. at 255-256. The Court then reviewed the facts and ruling in Burton, concluding that “[n]othing in Bush altered our holding in Burton” Id. at 256-257. The Court observed that Bush addressed the issue of an NOI’s failing “to comply with the content requirements of MCL 600.2912b(4)[,]” whereas Burton concerned the issue of a “failure to comply with. . . notice-waiting-period requirements[.]” Id. at 257-258. The Driver Court finally maintained that a plaintiff should not be allowed to amend an original NOI to add a nonparty defendant because “it would create a situation permitting endless joinder of nonparty defendants” and “defeat the very principles underlying limitations periods.” Id. at 258-259. We shall examine the Court’s reasoning in greater detail in the analysis section of this opinion.
Subsequently, this Court issued its opinion in Tyra, which concerned the filing of a medical malpractice complaint 112 days after notices of intent were sent to the defendants “instead of. . . 182 days or more as required by statute, MCL 600.2912b(l).” Tyra, 302 Mich App at 210. After addressing a waiver issue, the opinion of the Court in Tyra discussed Burton, and although it expressed some criticism of the analysis in Burton, the Court acknowledged that Burton was binding precedent, especially considering the reaffirmance of Burton in Driver. Id. at 222-223. The opinion of the Court in Tyra then moved to a discussion of Zwiers, followed by an examination of Driver’s affect on the application of MCL 600.2301. Id. at 223-224. The opinion of the Court observed:
In Driver, 490 Mich at 254, our Supreme Court explained that “MCL 600.2301 only applies to actions or proceedings that are pending.” Although an untimely complaint cannot commence an action, the proceedings here are underway. In Driver, the plaintiffs were barred from the initial step of the proceedings of filing the notice of intent, whereas here, there is no dispute that the notice of intent was proper. The dissent apparently concludes that MCL 600.2301 cannot apply because no action was underway. We disagree: MCL 600.2301 cannot be used to create a filing out of whole cloth, but no such bootstrapping would occur here, where all the requisite documents actually exist. In any event, MCL 600.2301 merely affords plaintiff the opportunity to make an argument. We see no value in attempting, on this record, to determine whether defendants’ substantial rights would truly be invaded if they are ultimately required to address the merits of the claim instead of relying on legal technicalities to avoid doing so. As we discuss, whether amendment would further the interests of justice or prejudice defendants is a question to be put to the trial court’s discretion on remand. [Tyra, 302 Mich App at 224-225.]
The Court then engaged in an examination of the criteria in MCL 600.2301, concluding “that on the basis of both Zwiers and the purpose behind MCL 600.2301, the trial court erred by failing to at least consider the possibility of allowing plaintiff to amend her complaint and afford plaintiff the opportunity to present an argument.” Id. at 225-226. Accordingly, the Court in Tyra was of the view that the decision in Zwiers remained good law following Driver.
Finally, the Furr opinion was issued. The facts in Furr indicated that while undergoing a recommended total thyroidectomy, Susan “Furr’s left recurrent laryngeal nerve was transected[,]” and the following day it was “discovered that she had ‘bilateral true vocal cord paralysis.’ ” Furr, 303 Mich App at 802. The plaintiffs, Susan and William Furr, served the defendant healthcare providers with a notice of intent and, as in Zwiers, the Furrs “filed their complaint one day before the end of the applicable 182-day notice waiting period.” Id. at 808. The trial court denied the healthcare providers’ motion for summary disposition on the basis of Zwiers. Id. at 803. The lead opinion in Furr set forth the conclusion that Driver had overruled Zwiers and that Tyra was therefore incorrectly decided. Id. at 808-809. Citing Driver, 490 Mich at 252, the lead opinion further indicated that “a plaintiff may only invoke MCL 600.2301 to correct a defective content requirement in the notice of intent.” Id. at 809. Additionally, it was asserted in the Furr lead opinion that the Zwiers panel “believed that the Michigan Supreme Court’s unequivocal holding in Burton was no longer controlling law[;]” however, Driver clearly established that Burton remained good law and that nothing in Bush altered Burton. Id. at 810. Nevertheless, given Tyrols interpretation of Driver and Zwiers, the Furr panel determined that it was compelled under MCR 7.215(J) to affirm the trial court’s denial of summary disposition pursuant to Zwiers. Id. at 801-802. This Court requested the convening of a special panel to resolve the conflict. Id. at 802.
IV ANALYSIS
We are called upon to determine whether our Supreme Court’s decision in Driver effectively overruled this Court’s decision in Zwiers. Resolving the issue requires examination of whether the discussion in Driver was sufficiently broad so as to definitively preclude the application of MCL 600.2301 under any circumstances entailing a Burton-type situation in which a complaint is prematurely filed in regard to the statutory notice waiting period of MCL 600.2912b.
In Sumner v Gen Motors Corp (On Remand), 245 Mich App 653, 664; 633 NW2d 1 (2001), this Court, quoting Black’s Law Dictionary (6th ed), p 1104, explained the concept of overruling a decision:
“A judicial decision is said to be overruled when a later decision, rendered by the same court or by a superior court in the same system, expresses a judgment upon the same question of law directly opposite to that which was before given, thereby depriving the earlier opinion of all authority as a precedent.” [Emphasis omitted.]
The first reason offered by the Court in Driver not to extend MCL 600.2301 to allow the amendment of an original NOI to add a nonparty defendant was the absence of a pending proceeding or action as required by § 2301. Driver, 490 Mich at 253-254. As quoted earlier in this opinion, and relative to the language the Tyra Court seized upon as a basis to continue honoring Zwiers, the Driver Court observed:
By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. An action is not pending if it cannot be commenced.... In Bush, however, this Court explained that an NOI is part of a medical malpractice “proceeding.” The Court explained that, “[s\ince an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’ ” Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any “proceeding” against CCA because plaintiffs claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case. [Driver, 490 Mich at 254 (citations and some quotation marks omitted; alteration in original).]
In Zwiers, Tyra, and Furr, however, the NOIs were timely served on the defendants, so while actions had not been commenced because of the premature filing of complaints and no actions were therefore pending for purposes of MCL 600.2301, proceedings had been commenced given the timely NOIs and proceedings were therefore pending. Furr, 303 Mich App at 802-803; Tyra, 302 Mich App at 211; Zwiers, 286 Mich App at 40. MCL 600.2301 speaks of a pending “action or proceeding.” (Emphasis added.) Given the timely served NOIs, Zwiers, Tyra, and Furr were not time-barred by the statute of limitations at the outset, as in Driver. It appears that the majority in Tyra relied exclusively on the distinction between a pending action and a pending proceeding in determining that MCL 600.2301 remained potentially applicable despite Driver. Tyra, 302 Mich App at 224-225.
The Driver Court next provided the following argument with respect to why MCL 600.2301 could not save the plaintiffs action:
Moreover, amendment of the original NOI to allow plaintiff to add CCA would not be for the furtherance of justice and would affect CCA’s substantial rights. Every defendant in a medical malpractice suit is entitled to a timely NOI. The legislative purpose behind the notice requirement was to provide a mechanism for promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs[.] Applying MCL 600.2301 in the present case would deprive CCA of its statutory right to a timely NOI followed by the appropriate notice waiting period, and CCA would be denied an opportunity to consider settlement. CCA would also be denied its right to a statute-of-limitations defense. These outcomes are plainly contrary to, and would not be in furtherance of, the Legislature’s intent in enacting MCL 600.2912b. [Driver, 490 Mich at 254-255 (quotation marks and citations omitted).]
This particular paragraph is quite interesting and belies a conclusion that Zwiers was effectively overruled by Driver. It reflects the Supreme Court’s actually engaging in an examination and evaluation of the criteria in MCL 600.2301, finding that, in regard to possible amendment of the original NOI to add CCA, justice would not be furthered and CCA’s substantial rights would be affected, especially considering the expiration of the statute of limitations period before the NOI was served on CCA. The Zwiers panel also exam ined and evaluated the criteria in MCL 600.2301, merely coming to a different conclusion concerning the furtherance of justice and substantial rights. Zwiers, 286 Mich App at 51-53. Again, Zwiers addressed a much different fact pattern, where the NOI was served and the complaint was filed within the applicable statute of limitations period, and where the complaint was only one day premature. The Zwiers panel did not rule that MCL 600.2301 was always applicable to save a case from a Burton-based dismissal; the issue was instead fact-sensitive. The above-quoted paragraph from Driver does indicate that if MCL 600.2301 were applied, CCA would be deprived of a statute of limitations defense. There is, however, a significant difference between a plaintiffs attempting by way of MCL 600.2301 to bring a defendant into a medical malpractice suit for the first time after failing to file a complaint or to even serve the NOI itself before expiration of the applicable limitations period, as in Driver, and a plaintiffs using MCL 600.2301 to preserve an action where the NOI was served and the complaint was filed within the statute of limitations period, as in Zwiers, thereby negating concerns of a defendant losing the protections afforded by the statute of limitations. In the latter situation, it is the defendant’s own strategic decision to surreptitiously await the expiration of the statute of limitations period as caused by the absence of tolling, unbeknownst to the plaintiff, before moving for dismissal.
The Driver Court, in its continuing analysis and explanation of the shortcomings of allowing application of MCL 600.2301 to save the medical malpractice action against CCA, further stated:
In addition, allowing a claimant to amend an original NOI to add nonparty defendants conflicts with the statu tory requirements that govern the commencement of a medical malpractice action and tolling of the statute of limitations....
We have construed [MCL 600.2912b(l)] as containing a dual requirement: A plaintiff must (1) submit an NOI to every health professional or health facility before filing a complaint and (2) wait the applicable notice waiting period with respect to each defendant before he or she can commence an action. A plaintiff has the burden of ensuring compliance with these mandates. With regard to the requirement that a plaintiff provide every defendant an NOI during the applicable limitations period before filing a complaint, nothing in Bush eliminates this requirement. Permitting amendment to add time-barred nonparty defendants to an original NOI on the basis of Bush would render the NOI requirement meaningless and the provision pertaining to nonparty defendants, MCL 600.2912b(3), nugatory. [Driver, 490 Mich at 255-256 (citations omitted).]
This passage is couched in terms of the prospect of allowing amendment of an original NOI to add a time-barred nonparty defendant, which, again, does not fit the fact pattern in Zwiers, Tyra, and Furr, where the NOIs were timely served in relation to the statute of limitations and the actions were not time-barred at the outset. The Driver Court next stated:
Nor does Bush compel the conclusion that a plaintiff can add a nonparty defendant and avoid compliance with the notice waiting period by simply amending the original NOI. As we explained in Burton, when a plaintiff fails to strictly comply with the notice waiting period under MCL 600.2912b, his or her prematurely filed complaint fails to commence an action that tolls the statute of limitations .... [T]he significance of Burton is that a plaintiff cannot commence an action that tolls the statute of limitations against a particular defendant until the plaintiff complies with the notice-waiting-period requirements of MCL 600.2912b.
Nothing in Bush altered our holding in Burton. The central issue in Bush involved the effect an NOI had on tolling when the NOI failed to comply with the content requirements of MCL 600.2912b(4). The central issue in Burton involved the effect the plaintiffs failure to comply with the notice-waiting-period requirements had on tolling. Indeed, the Bush Court repeatedly emphasized that the focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b. In contrast to placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s holding that a plaintiff must comply with the notice waiting period to ensure the complaint tolls the statute of limitations. [Driver, 490 Mich at 256-258 (citations omitted).]
Comparable to the other aspects of the reasoning in Driver, this passage, addressing the notice waiting period, is again framed in the context of a plaintiffs seeking to amend an original NOI to add a nonparty defendant, which, as we have emphasized, is easily distinguishable from the circumstances in Zwiers, Tyra, and Furr. It is important to accurately grasp what the plaintiff was attempting to accomplish in Driver. After a lawsuit against CCA had become time-barred, the plaintiff served an NOI for the first time on CCA and then prematurely filed an amended complaint adding CCA, with the plaintiff then seeking, under MCL 600.2301, to tie CCA to an earlier, timely NOI that only identified and had been solely served on defendants other than CCA. Driver, 490 Mich at 243-252. Had the Court allowed the plaintiff to so apply MCL 600.2301, the door would have been opened to plaintiffs in litigation to endlessly add defendants, otherwise protected by the statute of limitations from the outset, and to deprive those defendants of not only a timely served NOI, but to also entirely deprive them of any notice waiting period whatsoever. The focus of Driver was not on the fact that the amended complaint adding CCA was filed only 49 days after the untimely NOI; rather, the focus was on the fact that the NOI was untimely to begin with, falling outside the statute of limitations period. The Driver Court’s emphasis on distinguishing Bush must be read in that context. The concern in Driver, i.e., time-barred NOIs and an unending parade of wholly unprotected potential defendants, was simply not a problem in Zwiers, Tyra, and Furr.
Moreover, nowhere in the Driver opinion did the Court expressly state that MCL 600.2301 can never be applied in a Burton situation where a complaint was prematurely filed under MCL 600.2912b. And the Driver Court made no mention of Zwiers, even though the Zwiers panel engaged in a discussion regarding the interplay between Burton, Bush, and MCL 600.2301. Furthermore, Zwiers did not hold that Burton was overruled or altered by Bush, nor that Burton was no longer good law.
The last-quoted passage from Driver was interpreted in Furr’s lead opinion to mean that only content-based amendments are permitted under MCL 600.2301. Furr, 303 Mich App at 809. However, the Driver Court did not so state, and it clearly was still engaged in simply distinguishing Bush itself, not unraveling the parameters of MCL 600.2301. Moreover, and importantly, to reach such a conclusion, one would have to believe that the Supreme Court was wholly unaware of or failed to appreciate the plain and unambiguous language in MCL 600.2301, which empowers a court to amend any process, pleading, or proceeding “either in form or substance[.]” (Emphasis added.) It cannot reasonably be disputed that substance equates to content. Random House Webster’s College Dictionary (2001), p 289 (definition of “content” includes “substantive information”). And an amendment with regard to “form” is not an amendment of “content.” It would appear to defy logic, therefore, to construe Driver as indicating that only content-based amendments are permissible under MCL 600.2301.
Under these circumstances, in which more questions than answers arise in contemplating whether the language in Driver effectively overruled Zwiers, we are simply not prepared to conclude that the Driver Court implicitly intended to overrule Zwiers, nor that it effectively did overrule Zwiers. There is an absence of clarity on the issue, and binding precedent from this Court, such as Zwiers, should not be relegated to the scrapheap of overruled opinions on the basis of speculation regarding our Supreme Court’s intent with respect to whether the precedent was overruled.
Finally, in our view, the plain and unambiguous language of MCL 600.2301 would appear to mandate a court to disregard a premature filing under MCL 600.2912b if a defendant’s substantial rights are unaffected.
In Whitman v City of Burton, 493 Mich 303, 311-312; 831 NW2d 223 (2013), our Supreme Court recited the well-established principles of statutory interpretation:
When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most rehable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent. [Citations omitted.]
The language in MCL 600.2301 is plain and unambiguous, providing, once again, as follows:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. [Emphasis added.]
In our opinion, each of the two sentences comprising MCL 600.2301 can stand on its own. The first sentence addresses the amendment of any process, pleading, or proceeding during the pendency of an action or proceeding. The second sentence of the statute does not speak of amending an error or defect; rather, it mandates the outright disregard of any error or defect if to do so would not affect the substantial rights of the parties. See Burton, 471 Mich at 752 (“use of the word ‘shall’ indicates a mandatory and imperative directive”). Indeed, the two sentences in § 2301 were clearly never intended to be read coextensively, given that the amendment power described in the first sentence can only be invoked “before judgment [is] rendered[,]” while the authority to disregard an error or defect described in the second sentence can be invoked “at every stage of the action or proceeding,” which would necessarily include judgment and postjudgment stages. If, for example, there was an error or defect in postjudgment proceedings that did not affect substantial rights, the second sentence of MCL 600.2301 would, beyond question, require a court to disregard the error or defect; the criteria in the first sentence of § 2301, including the furtherance-of-justice provision, could not be taken into consideration. And even if a court was prepared to disregard an error or defect occurring during a phase of the proceedings covered by both sentences in MCL 600.2301, imposing any requirements or restrictions found in the first sentence before allowing the court to disregard the error or defect would entirely circumvent and undermine the plain and unambiguous language of the second sentence of § 2301. By way of further example, if an inconsequential error or defect did not pertain to “form or substance,” which quoted language is found in the first sentence of the statute, a court’s refusal to disregard the error or defect because it did not concern “form or substance” would negate the plain and unambiguous mandate of sentence two. Accordingly, the second sentence of MCL 600.2301 necessarily stands on its own. It reflects a legislative mandate to the courts of this state to essentially employ equity by disregarding harmless errors or defects.
Our construction of MCL 600.2301 is consistent with earlier Supreme Court precedent, which emphasized that the statute “ ‘aims to abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties.’ ” Gratiot Lumber & Coal Co v Lubinski, 309 Mich 662, 668-669; 16 NW2d 112 (1944), quoting M M Gantz Co v Alexander, 258 Mich 695, 697; 242 NW 813 (1932).
The language in MCL 600.2301 requiring a court to disregard “any” errors or defects if no substantial rights are affected plainly and unambiguously reaches both content and noncontent errors or defects, as the term “any” is all-inclusive. See People v Lively, 470 Mich 248, 253; 680 NW2d 878 (2004) (Use of the term “any” by the Legislature “casts a wide net and encompasses a wide range of things.”). There is nothing in the language of the second sentence of § 2301 even hinting at restricting the error or defect to only those errors or defects that relate to content. And any such limitation or restriction placed on the construction of MCL 600.2301 would entail grafting language to the statute that simply does not exist; “any” means “any.” See Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002) (“[A] court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.”). For that very same reason, the spectrum of errors or defects enveloped by MCL 600.2301 necessarily includes statutory errors or defects. Filing a medical malpractice complaint prematurely under MCL 600.2912b falls under the broad umbrella of “any error or defect in the proceedings” — it constitutes a statutory, procedural defect or error. Concluding otherwise would reflect a wholesale failure to recognize, appreciate, and honor the plain and unambiguous language of MCL 600.2301. And with a timely served NOI, a court’s act of invoking MCL 600.2301 to disregard the § 2912b error or defect would occur during a “stage of the . . . proceeding.”
The only other pertinent question that arises under the second sentence of MCL 600.2301 is whether the failure to comply with the notice-waiting-period provisions in MCL 600.2912b will always affect a medical malpractice defendant’s substantial rights, so that § 2301 can never be employed to disregard the error or defect. Generally speaking, an error or defect affects substantial rights when a party incurs prejudice. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); see also In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008); Black’s Law Dictionary (7th ed), p 1324 (A “substantial right” is “[a]n essential right that potentially affects the outcome of a lawsuit and is capable of legal enforcement and protection, as distinguished from a mere technical or procedural right.”); DeCosta v Gossage, 486 Mich 116, 138; 782 NW2d 734 (2010) (MARKMAN, J., dissenting) (applying Carines and the definition in Black’s Law Dictionary in defining “substantial rights” as used in MCL 600.2301). The second sentence in MCL 600.2301 requires a court to ask whether the error or defect affects substantial rights. The issue boils down to whether the party was deprived of any consequential legal benefit or opportunity or was otherwise harmed because of the error or defect.
“The legislative purpose behind the notice requirement was to provide a mechanism for promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs . . . .” Driver, 490 Mich at 254-255 (quotation marks and citations omitted). We fail to see how every premature filing under MCL 600.2912b would affect a defendant’s substantial rights with respect to attempts at settlement and keeping costs at bay, especially in a situation where, as in Zwiers and Furr, the mistaken filing occurred one day short of the applicable 182-day period and there were no ongoing settlement negotiations. Furr, 303 Mich App at 808; Zwiers, 286 Mich App at 50-51. Indeed, the lead opinion in Furr conceded that, under the facts presented, application of MCL 600.2301 and Zwiers supported the trial court’s ruling denying defendants’ motion for summary disposition, and we agree with that assessment. Furr, 303 Mich App at 808. The issue whether substantial rights are affected in relationship to the purpose behind NOIs can only be case-specific.
Additionally, in the context of the second sentence of MCL 600.2301 and the fact pattern in Zwiers, a defendant is not truly deprived of a statute of limitations defense because of the error or defect, i.e., the premature filing of a medical malpractice complaint, given that the period of limitations would not yet have elapsed at the time of the defect or error. Further, it cannot reasonably be maintained that every statutory error or defect necessarily affects a party’s substantial rights; some statutory errors or defects will simply not result in any prejudice. It is necessary to examine the nature of a statutory error or defect and the legislative goal of a statute in order to determine whether a particular statutory violation affects a party’s substantial rights. MCL 600.2301 does not state that it precludes a court from disregarding errors or defects that affect statutory rights, and to conclude otherwise requires reading language into the statute that does not exist. Moreover, such a construction would conflict with the language in MCL 600.2301 allowing a court to disregard “any” errors or defects, which would encompass statutory errors or defects, where the only errors or defects that cannot be disregarded are those that result in prejudice to a party. In sum, the plain and unambiguous language of MCL 600.2301 would strongly suggest that Zwiers was correctly decided.
v CONCLUSION
We cannot discern with any certitude whether the Driver Court effectively overruled Zwiers. It is simply unclear whether our Supreme Court intended to preclude the application of MCL 600.2301 under any circumstances entailing a Burton-type situation in which a complaint is prematurely filed in relation to the statutory notice waiting period of MCL 600.2912b. Had that been the Court’s intent, it would have been rather easy to make that pronouncement in definitive fashion. Given the absence of a reference to Zwiers in Driver, the significant distinctions in the fact patterns, Driver’s lack of a precise assessment of the role of MCL 600.2301 when a complaint is prematurely filed under MCL 600.2912b, the plain and unambiguous text of MCL 600.2301 favoring application, especially in regard to a complaint filed one day early, and considering the language in Driver suggesting the appropriateness of examining and evaluating the particular facts of a case under MCL 600.2301, we are not prepared to hold that Driver overruled Zwiers by implication. Instead, the sound legal course for this Court is to leave the issue for a future definitive decision by the Michigan Supreme Court, should the Court have the opportunity and inclination to address the matter. Accordingly, we affirm the trial court’s order denying summary disposition.
Affirmed. We decline to award taxable costs pursuant to our discretion under MCR 7.219.
MARKEY, BORRELLO, and BECKERING, JJ., concurred with Murphy, C. J.
The previous opinion in this case was vacated in its entirety pursuant to MCR 7.215(J)(5) in the order that convened this special panel. Furr v McLeod, 303 Mich App 801 (2013).
MCL 600.2301 permits a court in the furtherance of justice to amend any proceeding or process and to disregard defects or errors when substantial rights are not affected.
Hereafter, when we make reference to “Furr,” it shall pertain to the lead opinion by Presiding Judge Whitbeck and the statements and rulings therein.
We disagree with the assessment in the lead opinion in Furr that the Zwiers panel “believed that the Michigan Supreme Court’s unequivocal holding in Burton was no longer controlling law.” Furr, 303 Mich App at 810.
The fact that the catch line heading of MCL 600.2301 only alludes to “Amendment of process or pleadings before judgment” does not alter our conclusion. The catch line heading of a statutory section “shall in no way he deemed to be a part of the section or the statute, or be used to construe the section more broadly or narrowly than the text of the section would indicate, but shall he deemed to be inserted for purposes of convenience to persons using publications of the statutes.” MCL 8.4b; see Robinson v City of Lansing, 486 Mich 1, 10 n 8; 782 NW2d 171 (2010).
Both the Bush and the Driver Courts accepted that the “service of an NOI is a part of a medical malpractice proceeding.” Driver, 490 Mich at 254, quoting Bush, 484 Mich at 176-177 (emphasis added; quotation marks omitted). Moreover, in our view, it would strain the English language to find that there were no ongoing proceedings in Zwiers, Tyra, and Furr. | [
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BOONSTRA, J.
Plaintiff appeals by right the opinion and order of the trial court granting summary disposition to defendant, denying plaintiffs motion for summary disposition, and dismissing plaintiffs complaint with prejudice. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff allegedly injured her shoulder while at work and filed a workers’ compensation claim. Plaintiffs employer’s insurance company, Citizens Management, Inc., hired Medicolegal Services, Inc. to obtain an independent medical evaluation (IME) of plaintiff. Plaintiff was examined by Dr. Joseph Salama, who had been contracted by Medicolegal Services. Salama ordered an MRI and an arthrogram of plaintiffs left shoulder, for which Medicolegal Services hired defendant.
Plaintiff underwent the MRI and arthrogram procedures on January 4, 2011. A report was then sent to Salama, who authored his own report and sent it to Citizens. On February 8, 2011, plaintiffs counsel wrote to defendant and requested copies of plaintiffs “medical chart including office notes, diagnostic test results, consulting physician reports, correspondence, and related documents[.]” Defendant declined to send the requested records.
Plaintiff filed suit, alleging that defendant denied her access to records of those procedures in violation of the Medical Records Access Act (MRAA), MCL 333.26261 et seq., and that this denial also constituted “an unfair, unconscionable, or deceptive method, act or practice in the conduct of trade or commerce” in violation of the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq. Defendant answered and denied that plaintiff was “a patient” because the services she received were “part of a legal evaluation pursuant to a [w]orker’s Compensation claim she had filed” and she “signed a consent [form] acknowledging that she was not receiving medical care and that no physician-patient relationship was being formed.”
Both parties moved for summary disposition pursuant to MCR 2.116(0(10). The trial court heard the motions on April 4, 2012. On April 6, 2012, the trial court entered a written opinion and order. It first found that plaintiff had standing to sue under the MRAA because her “allegations that she is a patient of defendant and is entitled to access her records give her a substantial interest in the MRAA that confers standing.” It then found that the records plaintiff sought were not “medical records” as defined by the MRAA because plaintiff “presented] no evidence that defendant performed any part of its evaluation, ordered the MRI, or created any medical records while caring for [p]laintiffis health,” and, therefore, plaintiff did not “demonstrate that she has a right to access the records. Thus, defendant [was] entitled to summary disposition of [p]laintiff s MRAA claim.” Finally, the trial court held that the MCPA did not apply to plaintiffs claim because the independent medical examination was “requested and paid for by the worker’s compensation insurance carrier for the sole purpose of evaluating the merits of [pjlaintiffs worker’s compensation claim,” and, citing Zine v Chrysler Corp, 236 Mich App 261, 273; 600 NW2d 384 (1999), the MCPA does not apply to services purchased primarily for business or commercial, rather than personal, purposes. This appeal followed.
II. STANDARD OF REVIEW
We review a trial court’s decision on a motion for summary disposition de novo. Anzaldua v Neogen Corp, 292 Mich App 626, 629; 808 NW2d 804 (2011). We also review issues of statutory interpretation de novo. In re Conservatorship of Townsend, 293 Mich App 182, 186; 809 NW2d 424 (2011).
A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the complaint. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). Summary disposition is appropriate if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” McCoig Materials, LLC v Galui Constr, Inc, 295 Mich App 684, 693; 818 NW2d 410 (2012). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds could differ.” Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich App 431, 441; 814 NW2d 670 (2012). “This Court reviews the motion by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.” Auto Club Group Ins Ass’n v Andrzejewski, 292 Mich App 565, 569; 808 NW2d 537 (2011). “When a motion under [MCR 2.116(C)(10)] is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must. . . set forth specific facts showing that there is a genuine issue for trial.” MCR 2.116(G)(4); Coblentz v City of Novi, 475 Mich 558, 569; 719 NW2d 73 (2006).
“A court’s primary purpose in interpreting a statute is to ascertain and effectuate legislative intent.” Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 217; 801 NW2d 35 (2011). “[T]his task begins by examining the language of the statute itself. The words of a statute provide the most reliable evidence of [the Legislature’s] intent . . . .” United States Fidelity & Guaranty Co v Michigan Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009) (quotation marks and citation omitted). “The words used by the Legislature are given their common and ordinary meaning. If the statutory language is unambiguous, we presume that the Legislature intended the meaning that it clearly expressed, and further construction is neither required nor permitted.” Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012).
III. PLAINTIFF’S CLAIM UNDER THE MRAA
Plaintiff first argues that the trial court erred both when it granted summary disposition in favor of defendant on the basis that the records plaintiff sought were not within the scope of the MRAA and when it denied plaintiffs motion for summary disposition. The MRAA provides in relevant part that “[e]xcept as otherwise provided by law or regulation, a patient or his or her authorized representative has the right to examine or obtain the patient’s medical record.” MCL 333.26265(1). A “patient” means “an individual who receives or has received health care from a health care provider or health facility.” MCL 333.26263(n). “Health care” means “any care, service, or procedure provided by a health care provider or health facility to diagnose, treat, or maintain a patient’s physical condition, or that affects the structure or a function of the human'body.” MCL 333.26263(d). Finally, the MRAA defines “medical record” as “information oral or recorded in any form or medium that pertains to a patient’s health care, medical history, diagnosis, prognosis, or medical condition and that is maintained by a health care provider or health facility in the process of caring for the patient’s health.” MCL 333.26263(i). .
The trial court granted defendant’s motion for summary disposition under MCR 2.116(0(10), reasoning that the records plaintiff sought were not “medical records” as defined by the MRAA because plaintiff “presented] no evidence that [defendant performed any part of its evaluation, ordered the MRI, or created any medical records while caring for [plaintiff’s health,” and, therefore, plaintiff did not “demonstrate that she has a right to access the records. Thus, [defendant [was] entitled to summary disposition of [p]laintiff s MRAA claim.” We agree.
An IME differs significantly from the typical interaction between a physician and patient. “In the particularized setting of an IME, the physician’s goal is to gather information for the examinee or a third party to use in employment or related financial decisions. It is not to provide a diagnosis or treatment of medical conditions.” Dyer v Trachtman, 470 Mich 45, 51; 679 NW2d 311 (2004). The relationship is a “limited” one that “does not involve the full panoply of the physi cian’s typical responsibilities to diagnose and treat the examinee for medical conditions.” Id. at 50. “[T]he general duty of diagnosis and treatment is inappropriate in the IME setting given the purpose of the examination.” Id. at 52.
Plaintiff urges this Court to adopt a definition of the words “caring” and “care,” culled from a dictionary, that defines “caring” as “to give care,” and that further defines “care” as “responsibility,” “watchful attention,” and “charge, supervision.” Plaintiff further argues that adoption of these definitions necessarily results in finding that defendant was engaged “in the process of caring for [plaintiffs] health” when plaintiff underwent the examinations at issue. We disagree, because we do not find “the process of caring for the patient’s health” to be consistent with the limited nature of a physician’s duty in an IME context. Our Supreme Court has stated that, in the context of an IME, a physician owes a “limited duty” to “exercise care consistent with his professional training and expertise so as not to cause physical harm by negligently conducting the examination.” Dyer, 470 Mich at 55. However, this duty does not constitute a duty to diagnose or treat an examinee’s medical conditions. Id. at 51. We decline to adopt plaintiff’s proposed definition of “caring for the patient’s health” as meaning, essentially, any situation where a patient, for whatever reason, undergoes an examination by a medical professional. Read in context, it is clear that this phrase refers to records maintained in the course of providing some sort of diagnostic or treatment service for the treatment and betterment of the patient. See Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009) (statutory language should be interpreted with regard to context).
Plaintiff essentially asks this Court to interpret the statutory phrase “in the process of caring for the patient’s health” so broadly that it is difficult to conceive of a record maintained by a health care provider or health facility that would not fit this criterion. Such an interpretation would essentially render portions of the statute nugatory, in contravention of our principles of statutory construction. Apsey v Mem Hosp, 477 Mich 120, 131; 730 NW2d 695 (2007) (“A statute is rendered nugatory when an interpretation fails to give it meaning or effect.”). We therefore hold that records of defendant’s examination of plaintiff for the benefit of a third party were not produced “in the process of caring for the patient’s health,” within the meaning of the MRAA, and that the MRAA does not apply in the context of an IME.
We affirm the trial court’s grant of summary disposition to defendant regarding plaintiffs MRAA claim.
IV PLAINTIFF’S CLAIM UNDER THE MCPA
Plaintiff also argues that the trial court erred when it granted summary disposition in favor of defendant with respect to plaintiffs claims under the MCPA. We disagree.
The MCPA provides, in pertinent part, that “[u]nfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce are unlawful,” and sets forth several examples of proscribed activity. MCL 445.903(1); Liss v Lewiston-Richards, Inc, 478 Mich 203, 208; 732 NW2d 514 (2007). “Trade or commerce” is defined as “the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article, or a business opportunity.” MCL 445.902(l)(g). “Except in a class action, a person who suffers loss as a result of a violation of this act may bring an action to recover actual damages or $250.00, whichever is greater, together with reasonable attorneys’ fees.” MCL 445.911(2); Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 130 n 5; 839 NW2d 223 (2013).
“Given the variety of deceptive practices prohibited by the act, a single act may violate more than one subsection.” Zine, 236 Mich App at 282. “[0]nly allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician’s practice may be brought under the MCPA.” Tipton v William Beaumont Hosp, 266 Mich App 27, 32; 697 NW2d 552 (2005). In contrast, “ ‘[allegations that concern misconduct in the actual performance of medical services or the actual practice of medicine would be improper.’ ” Id. at 33, quoting Nelson v Ho, 222 Mich App 74, 83; 564 NW2d 482 (1997).
Plaintiffs complaint alleged that defendant violated MCL 445.903(l)(n), (s), and (bb) when it “falsely told [p]laintiff that she had no right to obtain her medical records because she was not ‘a patient.’ ” The trial court found that the MCPA did not apply to plaintiffs claim, adopting defendant’s argument that its actions were not “trade or commerce” as defined by the act:
Defendant’s IME was requested and paid for by the worker’s compensation insurance carrier for the sole purpose of evaluating the merits of Plaintiffs worker’s compensation claim. Plaintiff did not contract for or purchase Defendant’s services, and there is no evidence that Defendant provided services to Plaintiff for personal purposes. Because Plaintiff fails to establish a question of fact whether Defendant performed the IME for business purposes, the MCPA does not apply and Defendant is entitled to summary disposition of Plaintiffs MCPA claim.
Claims under the MCPA require an inquiry into the quality of the specific transaction at issue to determine whether the alleged violator provided “goods, property, or service primarily for personal, family, or household purposes....” MCL445.902(l)(g); Noggles v Battle Creek Wrecking, Inc, 153 Mich App 363, 367-368; 395 NW2d 322 (1986). Plaintiffs cursory argument that the tests performed were “personal” is unpersuasive, because it relies upon the conclusion that such tests were “diagnostic” in nature. The arthrogram and MRI performed on plaintiff were done at the request of Citizens Management for the business purpose of evaluating plaintiffs workers’ compensation claim. Thus, the MCPA did not apply to those procedures because they were not undertaken “primarily for personal, family, or household purposes,” MCL 445.902(l)(g), and the trial court appropriately granted summary disposition in favor of defendant on plaintiffs claims under the MCPA.
Affirmed.
MURRAY, J., concurred with BOONSTRA, J.
An arthrogram is “a test using X-rays to obtain a series of pictures of a joint after a contrast material (such as a dye, water, air, or a combination of these) has been injected into the joint.” WebMD, Arthrogram (Joint X-Ray) <http://arthritis.webmd.com/arthrogram-joint-x-ray> (accessed January 7, 2014) [http://perma.cc/Y597-KHVS].
The MRAA defines “medical record” as “information oral or recorded in any form or medium that pertains to a patient’s health care, medical history, diagnosis, prognosis, or medical condition and that is maintained by a health care provider or health facility in the process of caring for the patient’s health.” MCL 333:26263®.
Plaintiff states that this definition comes from “The Merriam-Webster Dictionary” but does not provide an edition number, date of publication, or page number.
Because the “limited physician-patient relationship” recognized by our Supreme Court in the IME context “requires that the examiner conduct the examination in such a way as not to cause harm,” it can result in a claim for medical malpractice. Dyer, 470 Mich at 53-54. We reject, however, as both hypothetical and incorrect, plaintiffs suggestion that absent access to records under the MRAA, an IME patient will be precluded from bringing a medical malpractice cause of action. MCL 600.2912b(5) specifically affords to a medical malpractice claimant “access to all medical records related to the claim that are in the control of the health professional or health facility.” That access must he provided within 56 days after the claimant provides notice of intent to file a claim. Id. Thus, in the context of a medical malpractice action against an IME physician, a claimant is to be afforded access to the IME records before the time for filing a complaint for malpractice, and before the time by which the claimant must file an expert witness’s affidavit of merit. MCL 600.2912d; see also Ligons v Crittenton Hosp, 285 Mich App 337, 349; 776 NW2d 361 (2009).
“Causing a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction.” MCL 445.903(l)(n).
“Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.” MCL 445.903(l)(s).
“Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.” MCL 445.903(l)(bb). | [
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MURPHY, C.J.
In Docket No. 312632, defendants, Vrajmohan C. Parikh and Sivaji Gundlappalli, appeal as of right the trial court’s order that granted a motion for reconsideration filed by plaintiff, Talmer Bank & Trust (Talmer), which then resulted in summary disposition being granted in favor of Talmer after its earlier motion for summary disposition had been denied by the court. Talmer cross-appeals the trial court’s order denying its request for attorney fees in the case. In Docket No. 313122, the same defendants appeal as of right the trial court’s order, issued by a different judge in a separate action, granting Talmer’s motion for summary disposition. The court awarded Talmer attorney fees in the action. These consolidated appeals arise out of defendants’ purchase of two condominium units in Las Vegas, Nevada, foreclosure sales of the condos following defaults pursuant to power-of-sale provisions in deeds of trust that had secured two promissory notes executed by defendants relative to their purchase of the condos and Talmer’s attempts to collect deficiency judgments in Michigan against defendants on the notes in the instant actions. Separate suits were filed regarding each note. Defendants are presently residents of Michigan and were so when they executed the promissory notes, and the bank that initially provided the loans was a Michigan bank, as is Talmer. The notes were executed in Michigan, and defendants, until the defaults, performed under the notes by way of making payments in Michigan. The crux of the dispute is whether Nevada law or Michigan law governs the deficiency actions, with the trial courts ultimately concluding that, as urged by Talmer, Michigan law controls. Deficiency judgments were entered against defendants in the amounts of $244,476 in LC No. 2011-123327-CK (Docket No. 312632) and $454,932 in LC No. 2011-123328-CK (Docket No. 313122). We affirm in all re spects, except that we reverse the trial court’s order in Docket No. 312632 that denied Talmer’s request for attorney fees and remand for entry of an award of reasonable attorney fees.
I. BACKGROUND
On November 14, 2006, defendants, who are both Michigan doctors, executed a 30-year promissory note as borrowers in the amount of $336,000. The lender on the note was Citizens First Savings Bank (Citizens), which had an address in Port Huron, Michigan. Defendants obtained the loan in order to purchase a condominium unit in Las Vegas, Clark County, Nevada, as part of an investment strategy. The promissory note provided that the monthly payments of $2,235 were to be mailed or delivered to Citizens’ Port Huron address. The note also indicated that, upon default, Citizens could declare the entire unpaid principal balance on the note and all accrued unpaid interest immediately due and payable. The note further provided for the payment of reasonable attorney fees associated with any collection efforts should there be a default. In a paragraph addressing the governing law, the promissory note provided:
This NOTE will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of Michigan without regard to its conflicts of law provisions. This NOTE has been accepted by Lender in the State of Michigan.
The promissory note was secured by a deed of trust executed by defendants on November 14, 2006, in favor of Citizens. The deed of trust granted and conveyed to the trustee, Nevada Title Company (NTC), to be held “in trust, with power of sale,” the Las Vegas condominium unit being purchased. The deed of trust pro vided that it “shall be governed by federal law and the law of the jurisdiction in which the Property is located.” The deed of trust was recorded on November 22, 2006, with the Register of Deeds for Clark County, Nevada.
On August 31, 2007, defendants executed a second 30-year promissory note as borrowers in the amount of $760,000 relative to the purchase of another Las Vegas condominium. The lender on the note was again Citizens. The promissory note provided that the monthly payments of $5,056 were to be mailed or delivered to Citizens’ Port Huron address. This note did not include a choice-of-law or governing-law provision as was included in the first note. The note provided for the payment of reasonable attorney fees associated with any collection efforts should there be a default.
The promissory note was secured by a deed of trust executed by defendants on August 31, 2007, in favor of Citizens. As with the first deed of trust, it granted and conveyed to trustee NTC, to be held “in trust, with power of sale,” the Las Vegas condominium unit being purchased in the second transaction. Also as with the first deed of trust, it provided that the deed of trust “shall be governed by federal law and the law of the jurisdiction in which the Property is located.” The deed of trust was recorded on September 7, 2007, with the Register of Deeds for Clark County, Nevada.
Subsequently, Citizens became CF Bancorp, and CF Bancorp later failed, resulting in the Federal Deposit Insurance Corporation (FDIC) taking CF Bancorp into receivership. In April 2010, the FDIC and First Michigan Bank (FMB), which was later to become Talmer, entered into a purchase and assumption agreement, pursuant to which FMB was to assume CF Bancorp’s liabilities and purchase its assets. These assets included the two promissory notes and deeds of trust regarding the loans used to purchase the Las Vegas condominiums. The purchase and assumption agreement between the FDIC and FMB reflected the FDIC’s acceptance of FMB’s “[a]sset premium (discount) bid of (19.8)% (negative),” which meant, according to defendants, that FMB paid approximately 20 cents on the dollar relative to the assets being purchased from the FDIC. In May 2010, defendants stopped making the monthly payments on the promissory notes given the severe downturn in the economy and drastically reduced real property values. In October 2010, and pursuant to the earlier purchase and assumption agreement, the FDIC formally granted, assigned, and transferred CF Ban-corp’s assets to FMB. Accordingly, Talmer, formerly known as FMB, came to hold the notes and deeds of trust executed by defendants. Talmer is a Michigan bank.
In light of defendants’ failure to pay on the notes, in November 2010, notices of default and election to sell under the deeds of trust were served on defendants and recorded. With respect to the condo covered by the first note and deed of trust, it was sold at public auction in a trustee’s sale on September 15, 2011, to a third party, GMM Investments, LLC, for $133,450, leaving an outstanding loan balance of $233,261 as of the sale’s date. With respect to the condo covered by the second note and deed of trust, it was sold at public auction in a trustee’s sale on September 15, 2011, to Talmer for $382,590, leaving an outstanding loan balance of $454,932 as of the sale’s date.
On November 30, 2011, in LC No. 2011-123327-CK (Docket No. 312632), Talmer filed a breach-of-note action in the trial court against defendants in regard to the first note, seeking a deficiency judgment for the outstanding balance on the note, $233,261, plus inter est, costs, and attorney fees that had accrued since the trustee’s sale. On November 30, 2011, in LC No. 2011-123328-CK (Docket No. 313122), Talmer also filed a breach-of-note action in the trial court (different judge) against defendants in regard to the second note, seeking a deficiency judgment for the outstanding balance on the note, $454,932, plus interest, costs, and attorney fees that had accrued since the trustee’s sale.
In both actions, Talmer filed motions for summary disposition under MCR 2.116(C)(9) and (10), arguing that defendants had failed to raise any dispute regarding the material facts, nor had they presented any colorable defense. In response, defendants argued that Talmer elected to foreclose pursuant to Nevada law and was required to abide by the mortgage foreclosure deficiency collection laws and procedures of Nevada, which allegedly presented hurdles not found under Michigan law. We shall explore later the particulars of Nevada law relied on by defendants. Defendants contended that Talmer had been required to pursue any deficiency claims in Nevada in association with the earlier trustee sales and failed to do so. Defendants additionally argued that summary disposition was premature, because discovery had not yet been completed. Defendants further maintained that one of the promissory notes did not specify that it was secured by collateral and thus the trustee sale was improper. Defendants also emphasized that FMB, now known as Talmer, purchased the notes and deeds of trust at a significant discount from the FDIC, which should be taken into consideration with regard to any claimed deficiency. Finally, defendants contended that Talmer lacked the authority to exercise the power-of-sale clauses because the FDIC assignment was never recorded.
In LC No. 2011-123327-CK (Docket No. 312632), a hearing was held in May 2012 on Talmer’s motion for summary disposition. The trial court denied Talmer’s motion, concluding that the note and deed of trust were interrelated, that the deed trumped the note given the sale at auction, that the choice of Nevada law set forth in the deed of trust therefore governed, that Nevada had a substantial relationship to and interest in the transaction considering that the condo was located in that state, that Michigan did not have a materially greater interest in the matter than Nevada, and that there were factual issues with respect to whether Talmer complied with the relevant provisions of Nevada law. Talmer filed a motion for reconsideration, which the trial court granted in August 2012. The court relied on 2 Restatement Conflict of Laws, 2d, § 229, and a comment thereto, along with cases from other jurisdictions, in ruling that, while foreclosure of a mortgage is governed by the law of the state in which the mortgaged property is located, the underlying promissory note is governed by the state law applicable to the note. The court ruled that the parties had agreed that the note would be governed by Michigan law and that Michigan had the more significant relationship to the note, considering that it was executed and delivered in Michigan by Michigan parties; the only connection of the note to Nevada was that the property securing the note was located in Nevada. The trial court, however, declined to award Talmer attorney fees, determining that defendants’ choice-of-law arguments were not frivolous, that the case was otherwise a simple, routine collection action, and that any award of fees would not be reasonable. On September 11, 2012, the trial court entered an order granting summary disposition in favor of Talmer and awarding Talmer a deficiency judgment against defendants, jointly and severally, in the amount of $244,476. Defendants appeal as of right the trial court’s ruling awarding Talmer the deficiency judgment, while Talmer cross-appeals the court’s denial of attorney fees.
In LC No. 2011-123328-CK (Docket No. 313122), after Talmer had filed its motion for summary disposition, defendants filed their own motion for summary disposition under MCR 2.116(C)(8) and (10), arguing that Nevada law applied and that Talmer had failed to act in accordance with Nevada law. In September 2012, a hearing was conducted on the competing motions for summary disposition. The trial court granted Talmer’s motion for summary disposition and denied defendants’ motion, employing an analysis that essentially mimicked the analysis set forth by the judge in deciding Talmer’s motion for reconsideration in the first action. As opposed to the ruling in the first suit, the trial court awarded Talmer attorney fees. Pursuant to an order entered on October 10, 2012, the trial court formally granted summary disposition in favor of Talmer and awarded Talmer a deficiency judgment against defendants, jointly and severally, in the amount of $454,932, plus interest and $18,345 in attorney fees. Defendants appeal as of right.
II. ANALYSIS
A. STANDARD OP REVIEW AND SUMMARY DISPOSITION TESTS
A trial court’s ruling on a motion for summary disposition is reviewed de novo on appeal. Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 277; 831 NW2d 204 (2013). “We review a trial court’s ruling on a motion for reconsideration for an abuse of discretion.” Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009). Issues concerning choice and conflicts of law are subject to review de novo. Frederick v Federal- Mogul Corp, 273 Mich App 334, 336; 733 NW2d 57 (2006). A trial court’s decision to grant or deny a request for attorney fees is reviewed for an abuse of discretion. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). However, underlying factual findings made in support of a decision regarding attorney fees are reviewed for clear error. Id. We review de novo legal issues related to a trial court’s ruling relative to attorney fees. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 296-297; 769 NW2d 234 (2009).
Summary disposition was granted by the trial court on the basis of MCR 2.116(C)(9) and (10). “When deciding a motion under MCR 2.116(C)(9), which tests the sufficiency of a defendant’s pleadings, the trial court must accept as true all well-pleaded allegations and properly grants summary disposition where a defendant fails to plead a valid defense to a claim.” Slater v Ann Arbor Pub Sch Bd of Ed, 250 Mich App 419, 425; 648 NW2d 205 (2002). Granting summary disposition under MCR 2.116(C)(9) is appropriate if the defendant’s pleadings are so clearly untenable as a matter of law that no factual development could possibly deny the plaintiffs right to recover. Id. at 425-426.
In Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 377; 836 NW2d 257 (2013), this Court acknowledged the foundational principles applicable to the analysis of a motion under MCR 2.116(C)(10), stating:
In general, MCR 2.116(0(10) provides for summary disposition when there is no genuine issue regarding any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. A motion brought under MCR 2.116(0(10) tests the factual support for a party’s claim. A trial court may grant a motion for summary disposition under MCR 2.116(0(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ. The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(0(10). A court may only consider substantively admissible evidence actually proffered relative to a motion for summary disposition under MCR 2.116(0(10). [Citations and quotation marks omitted.]
B. DISCUSSION
1. INTRODUCTION
The provisions in the deeds of trust that indicated that Nevada law governed with regard to the deeds are not in dispute, and Nevada law was employed with respect to the exercise of the power-of-sale clauses. Talmer filed the lawsuits to collect on the two promissory notes, so our focus is on determining the law that governs the notes and related deficiency claims. In regard to the two promissory notes, one contained a choice-of-law provision, stating that Michigan law governed, while the other note was silent on the matter. Initially, we shall review and compare Michigan and Nevada law with respect to deficiency actions.
2. DEFICIENCY ACTIONS — MICHIGAN AND NEVADA LAW — REVIEW AND COMPARISON
In Michigan, MCL 600.3201 et seq., addresses foreclosure by advertisement pursuant to power-of-sale clauses, and MCL 600.3280 is the only statute that directly pertains to deficiency actions. See Citizens Bank v Boggs, 299 Mich App 517, 521; 831 NW2d 876 (2013) (the power to render a deficiency ruling in foreclosure proceedings is entirely statutory and MCL 600.3280 provides defenses to a deficiency action). MCL 600.3280 provides:
When, in the foreclosure of a mortgage by advertisement, any sale of real property has been made after February 11, 1933, or shall be hereafter made by a mortgagee, trustee, or other person authorized to make the same pursuant to the power of sale contained therein, at which the mortgagee, payee or other holder of the obligation thereby secured has become or becomes the purchaser, or takes or has taken title thereto at such sale either directly or indirectly, and thereafter such mortgagee, payee or other holder of the secured obligation, as aforesaid, shall sue for and undertake to recover a deficiency judgment against the mortgagor, trustor or other maker of any such obligation, or any other person liable thereon, it shall be competent and lawful for the defendant against whom such deficiency judgment is sought to allege and show as matter of defense and set-off to the extent only of the amount of the plaintiffs claim, that the property sold was fairly worth the amount of the debt secured by it at the time and place of sale or that the amount bid was substantially less than its true value, and such showing shall constitute a defense to such action and shall defeat the deficiency judgment against him, either in whole or in part to such extent. This section shall not affect nor apply to the rights of other purchasers or of innocent third parties, nor shall it be held to affect or defeat the negotiability of any note, bond or other obligation secured by such mortgage, deed of trust or other instrument. Such proceedings, as aforesaid, shall in no way affect the title of the purchaser to the lands acquired by such purchase. This section shall not apply to foreclosure sales made pursuant to an order or decree of court nor to any judgment sought or rendered in any foreclosure suit nor to any chancery sale heretofore or hereafter made and confirmed.
“The clear language of the statute provides a defense, or setoff, to a deficiency action where a purchaser purchased property for less than the value of the property!, but it] does not apply where . . . the purchase bid far exceeds the ‘value’ of the property.” Pulleyblank v Cape, 179 Mich App 690, 694; 446 NW2d 345 (1989). Under MCL 600.3280, if “the lender bids less than the amount of the loan and seeks a deficiency, the lender may be challenged by the debtor on the grounds that the bid was below the fair market value.” 1 Cameron, Michigan Real Property Law (3d ed), Mortgages, § 18.86, p 753; see also Reconstruction Fin Corp v Mercury Realty Co, Inc, 97 F Supp 491, 494 (ED Mich, 1951) (“[T]he Michigan statute provides that in determining the amount of deficiency the fair market value of the property at the time of sale . . . shall be considered!.]”). The “true value” of the foreclosed property is thus relevant and can aid a defending debtor in a deficiency action when the true value is more than the purchase price. MCL 600.3280 otherwise provides a setoff or credit against a deficiency claim for the amount of a winning bid at a foreclosure sale. In Citizens Bank, 299 Mich App at 520-521, this Court explained what is known as the “full credit bid” rule:
“When a lender bids at a foreclosure sale, it is not required to pay cash, but rather is permitted to make a credit bid because any cash tendered would be returned to it. If this credit bid is equal to the unpaid principal and interest on the mortgage plus the costs of foreclosure, this is known as a ‘full credit bid.’ When a mortgagee makes a full credit bid, the mortgage debt is satisfied, and the mortgage is extinguished.” [Quoting New Freedom Mtg Corp v Globe Mtg Corp, 281 Mich App 63, 68; 761 NW2d 832 (2008) (citations omitted), which referred to MCL 600.3280.]
We next examine Nevada law. Nevada Revised Statutes (NRS) 40.451 et seq., address the joint topic of foreclosure sales and deficiency judgments. Defendants emphasize the language in NRS 40.453, which provides:
Except as otherwise provided in NRS 40.495 [inapplicable]:
(1) It is hereby declared by the Legislature to be against public policy for any document relating to the sale of real property to contain any provision whereby a mortgagor or the grantor of a deed of trust or a guarantor or surety of the indebtedness secured thereby, waives any right secured to the person by the laws of this state.
(2) A court shall not enforce any such provision.
“This section is part of the anti-deficiency statutes, and the obvious intent of the legislature was to preclude lenders from requiring borrowers to waive their rights under the anti-deficiency statutes.” Lowe Enterprises Residential Partners, LP v The Eighth Judicial Dist Court of Nevada, 118 Nev 92, 103; 40 P3d 405 (2002). But the Lowe Enterprises court also noted that, with regard to NRS 40.453, the legislature could not have intended “to prohibit the waiver of any right secured by law, then such things as arbitration agreements, forum selection clauses and choice-of-law provisions would be unenforceable.” Id. at 102-103. NRS 40.453 quite clearly would encompass a loan obtained for the purpose of purchasing real property; the promissory notes related to the sales of real property. Defendants maintain that NRS 40.453, which specifically alludes to Nevada public policy and governs real property sales in Nevada, is circumvented, with deficiency protections effectively being waived, if Michigan law is applied to Talmer’s collection actions.
NRS 40.455(1) provides:
[U]pon application of the judgment creditor or the beneficiary of the deed of trust within 6 months after the date of the foreclosure sale or the trustee’s sale held pursuant to NRS 107.080, respectively, and after the required hearing, the court shall award a deficiency judgment to the judgment creditor or the beneficiary of the deed of trust if it appears from the sheriffs return or the recital of consideration in the trustee’s deed that there is a deficiency of the proceeds of the sale and a balance remaining due to the judgment creditor or the beneficiary of the deed of trust, respectively.
NRS 40.455(3) does not allow for a deficiency judgment, even if a deficiency exists, with respect to a single-family dwelling owned by the debtor or deed of trust grantor and purchased with the loan proceeds secured by a deed of trust, but only if the “debtor or grantor continuously occupied the real property as the debtor’s or grantor’s principal residence after securing the . . . deed of trust[.]” There is no dispute that defendants, who reside in Michigan, did not continuously occupy the condos as their principal residences after executing the deeds of trust. Accordingly, although Michigan does not have a provision similar to NRS 40.455(3), the statute would not afford defendants any protection under the circumstances. NRS 40.457 provides:
(1) Before awarding a deficiency judgment under NRS 40.455, the court shall hold a hearing and shall take evidence presented by either party concerning the fair market value of the property sold as of the date of foreclosure sale or trustee’s sale.....
(2) Upon application of any party made at least 10 days before the date set for the hearing the court shall, or upon its own motion the court may, appoint an appraiser to appraise the property sold as of the date of foreclosure sale or trustee’s sale.
“NRS 40.457 requires a hearing and the taking of evidence concerning the fair market value of the property sold and notice of the hearing to all defendants against whom a deficiency judgment is sought.” First Interstate Bank of Nevada v Shields, 102 Nev 616, 619; 730 P2d 429 (1986) (emphasis omitted). Although MCL 600.3280 does not expressly refer to an evidentiary hearing being conducted, a deficiency lawsuit and a defense to a deficiency action under MCL 600.3280 would necessarily entail a hearing and possibly a trial, the presentation of evidence, and all the protections afforded by the Michigan Court Rules and constitutional due process principles. In Guardian Depositors Corp v Darmstaetter, 290 Mich 445; 288 NW 59 (1939), the Michigan Supreme Court addressed a deficiency action brought under the nearly identical predecessor to MCL 600.3280, 1937 PA 143, and found that the parties were entitled to a jury trial on an issue of fact concerning the value of the property, even though the statute then expressly permitted only a bench trial. With regard to an appraisal, nothing in MCL 600.3280 precludes an appraisal, and, indeed, an appraisal would be an almost necessary evidentiary tool to determine true value under MCL 600.3280. See Guardian Depositors Corp v Hebb, 290 Mich 427, 432-433; 287 NW 796 (1939) (reviewing and accepting an appraiser’s testimony in a deficiency action brought under the predecessor to MCL 600.3280).
NRS 40.459 provides, in relevant part:
(1) After the hearing, the court shall award a money judgment against the debtor, guarantor or surety who is personally liable for the debt. The court shall not render judgment for more than:
(a) The amount by which the amount of the indebtedness which was secured exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the sale;
(b) The amount which is the difference between the amount for which the property was actually sold and the amount of the indebtedness which was secured, with interest from the date of sale; or
(c) If the person seeking the judgment acquired the right to obtain the judgment from a person who previously held that right, the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs,
whichever [of the three] is the lesser amount.
NRS 40.459(l)(a) and (b) appear to be fairly comparable to the provisions in MCL 600.3280, effectively providing a credit or setoff based on either the actual winning bid at a sale or the fair market value of the property at the time of sale. See Shields, 102 Nev at 619 (If “the fair market value of the property at the time of sale exceeded the amount due the creditor, no deficiency exists and no party ... may be held liable to the creditor.”).
NRS 40.459(l)(c) perhaps supports defendants’ argument that the price of the promissory notes paid to the FDIC needs to be contemplated in determining the amount of the deficiencies. If NRS 40.459(l)(c) applies, and if the purchase of the notes from the FDIC was for 20 cents on the dollar as claimed by defendants, any deficiencies would appear to be wiped clean. Michigan does not have a comparable provision. NRS 40.459(l)(c) is a recent addition to Nevada law, it only became effective June 10, 2011. See 2011 Nev Stat, ch 311, § 5. In the fall of 2013, the Nevada Supreme Court issued an advisory opinion regarding NRS 40.459(l)(c). Sandpointe Apartments, LLC v The Eighth Judicial Dist Court of Nevada, 313 P3d 849; 129 Nev Adv Rep 87 (2013). The court held “that the limitations in NRS 40.459(l)(c) apply to sales, pursuant to either judicial foreclosures or trustee’s sales, occurring on or after the effective date [June 10, 2011] of the statute[,]” regardless of when underlying rights in promissory notes were transferred or assigned. Id. at 851. The trustee sales here took place after June 10, 2011, in September 2011. The court in Sandpointe Apartments noted that NRS 40.459(l)(c) was designed to prevent profiteering and to encourage negotiations between creditors and borrowers. Id. at 853. In order to accomplish those goals, the statute greatly limited “the amount of a deficiency judgment that a successor in interest can recover, thereby discouraging these entities from purchasing notes or mortgages ‘for pennies on the dollar.’ ” Id. (citation omitted).
In summation, and as can be gleaned from our earlier discussion, we find that the law regarding deficiency actions in Michigan and Nevada is quite comparable for purposes of our factual circumstances, with the exception of NRS 40.459(l)(c), which could potentially make an enormous difference in the amount recoverable by Talmer if applicable. Because it is beyond the scope of this appeal, we make no ruling with respect to whether NRS 40.459(l)(c) actually applies to and benefits defendants, but we shall proceed on the assumption that it does as part of our analysis.
3. LEGAL PRINCIPLES REGARDING CHOICE AND CONFLICT OF LAWS
The Restatement Conflict of Laws, 2d, has generally been followed and applied by Michigan courts. Grange Ins Co of Mich v Lawrence, 494 Mich 475, 489 n 17, 502 n 51; 835 NW2d 363 (2013); Chrysler Corp v Skyline Indus Servs, Inc, 448 Mich 113, 124-128; 528 NW2d 698 (1995) (specifically adopting §§ 187 and 188 of the Restatement, which are relevant here); Farm Bureau Ins Co v Abalos, 277 Mich App 41, 45; 742 NW2d 624 (2007). “The method for the foreclosure of a mortgage on land and the interests in the land resulting from the foreclosure are determined by the local law of the situs.” 2 Restatement Conflict of Laws, 2d, § 229, p 29. Consistent with this provision, and as indicated earlier, the deeds of trust and trustee sales were governed by Nevada law. Comment e to § 229 of the Restatement, which addresses issues collateral to foreclosure, provides:
The courts of the situs would apply their own local law to determine questions involving the foreclosure which affect interests in the land. Issues which do not affect any interest in the land, although they do relate to the foreclosure, are determined, on the other hand, by the law which governs the debt for which the mortgage was given. Examples of such latter issues are the mortgagee’s right to hold the mortgagor liable for any deficiency remaining after foreclosure or to bring suit upon the underlying debt without having first proceeded against the mortgaged land. The rules for ascertaining the state whose local law governs the underlying debt are stated in §§ 187-188. [Section 187 addresses contracts with choice-of-law provisions, and § 188 addresses contracts that are silent on the issue.]
With respect to 1 Restatement Conflict of Laws, 2d, § 188, p 575, it addresses situations in which, as is the case for one of the promissory notes here, the parties have entered into a contract that is silent in regard to the choice of state law that will govern the parties’ rights under the contract. Section 188 provides:
(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.[ ]
(2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
(3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-199 and 203.
Defendants direct our attention to 1 Restatement Conflict of Laws, 2d, § 189, p 586, as generally alluded to above in subsection (3) of § 188; however, § 189 addresses contracts for the transfer of interests in land, which would pertain to purchase or buy-sell agreements for property, not promissory notes. 1 Restatement Conflict of Laws, 2d, § 195, p 619, which is also encompassed by the reference in subsection (3) of § 188, provides:
The validity of a contract for the repayment of money lent and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires that repayment be made, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.
In Sutherland v Kennington Truck Serv, Ltd, 454 Mich 274, 286; 562 NW2d 466 (1997), our Supreme Court discussed, in general, the issue of what state law applies in any given case:
[W]e will apply Michigan law unless a “rational reason” to do otherwise exists. In determining whether a rational reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine if any foreign state has an interest in having its law applied. If no state has such an interest, the presumption that Michigan law will apply cannot be overcome. If a foreign state does have an interest in having its law applied, we must then determine if Michigan’s interests mandate that Michigan law be applied, despite the foreign interests. [Citations omitted.]
With respect to 1 Restatement Conflict of Laws, 2d, § 187, p 561, it addresses situations in which the parties have entered into a contract containing a choice-of-law provision, as is the case regarding one of the promissory notes here. Section 187 provides:
(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.
As indicated in subsection (2)(b) of § 187, the factors in § 188, previously quoted, can also become relevant when analyzing § 187. Mostly consistent with § 187, in Hudson v Mathers, 283 Mich App 91, 96-97; 770 NW2d 883 (2009), this Court observed:
When determining the applicable law, the expectations of the parties must be balanced with the interests of the states. The parties’ choice of law should be applied if the issue is one the parties could have resolved by an express contractual provision. However, there are exceptions. The parties’ choice of law will not be followed if (1) the chosen state has no substantial relationship to the parties or the transaction or (2) there is no reasonable basis for choosing that state’s law. Also, the chosen state’s law will not be applied when it would be contrary to the fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue and whose law would be applicable in the absence of an effective choice of law by the parties. [Citations omitted.]
4. APPLICATION OF LEGAL PRINCIPLES TO THE FACTS
Upon analysis of 1 Restatement Conflict of Laws, 2d, § 188(2)(a) to (e), the factors favor applying Michigan law, because the place of negotiating the promissory notes was Michigan, the place of contracting was Michigan, the place of performance with regard to making the payments on the notes was Michigan, the place of defendants’ residence was Michigan, and the place of Citizens’ business, as well as the place of Talmer’s business, was Michigan. Even in regard to the “location of the subject matter of the contract,” § 188(2)(d), the subject matter of the promissory notes was technically the funds being loaned, with the subject matter of the deeds of trust and purchase agreements being the condos. That said, the funds received by defendants were used to purchase condos in Nevada, and the notes were secured by the Nevada condos. Nevertheless, the factors in § 188(2)(a) to (e) still weigh heavily in favor of Michigan law.
Under 1 Restatement Conflict of Laws, 2d, § 195, which pertains to “Contracts for the Repayment of Money Lent,” the analysis calls for applying the law of the state where the contract required repayment to be made, which here was indisputably Michigan, unless another state had a more significant relationship to the transaction and the parties. Again, the transactions on the notes occurred in Michigan and solely involved Michigan parties.
Under Sutherland, 454 Mich at 286, with respect to which state law should apply generally, we start with the presumption that Michigan law applies, and the issue then becomes whether Nevada has an interest in having its laws apply, and if so, whether Michigan interests nevertheless mandate application of Michigan law. We additionally note that 1 Restatement Conflict of Laws, 2d, § 6, p 10, as incorporated by §§ 188 and 195 (see footnote 4 of this opinion), also refers to, among other matters, the interests and policies of the competing states. We shall return to the issue of state policies and interests momentarily.
Relative to the promissory note that provides for application of Michigan law, under 1 Restatement Conflict of Laws, 2d, § 187, and Hudson, 283 Mich App at 96-97, our starting point is that Michigan law applies given the parties’ contract, but the choice can be overcome if Michigan lacked a substantial relationship to the parties or the transaction and there was no reasonable basis for the parties to have chosen Michigan. Consistent with our analysis under §§ 188 and 195, Michigan had a substantial relationship to the parties and transaction and there was thus a reasonable basis for the parties to have chosen application of Michigan law, considering that the parties were from Michigan, the note was negotiated and executed in Michigan, and performance of the note occurred in Michigan. The parties’ choice of law can also be overcome under § 187 and Hudson, 283 Mich App at 96-97, if applying Michigan law would be contrary to the fundamental policies of Nevada, if Nevada has a materially greater interest than Michigan in the issue presented, and if Nevada law would govern under a balancing of the factors in 1 Restatement Conflict of Laws, 2d, § 188. We have already determined that the balancing of the factors in § 188 weighs in favor of applying Michigan law; therefore, application of § 187 and Hudson supports the conclusion that the choice-of-law provision in the one promissory note is valid and enforceable.
With respect to the interests and policies of Michigan and Nevada in regard to deficiency actions, defendants adamantly argue that the protections afforded mortgagors under Nevada law are substantial, cannot be waived, are effectively waived by applying Michigan law, and must be honored in order to fulfill the public policy goals of Nevada and safeguard its interests. In support, defendants cite myriad statutes and Nevada cases referenced by us earlier in this opinion. In our view, one of the problems with defendants’ argument is that it essentially presupposes the applicability of Nevada law rather than provides support for choosing Nevada law over Michigan law. Defendants, for the most part, ignore or inaccurately trivialize Michigan policy and law, reviewed earlier in this opinion, regarding deficiency actions and protections given to both debtors and creditors. Setting aside for the moment consideration of NRS 40.459(l)(c), which might perhaps defeat Talmer’s deficiency claims if applied, Michigan and Nevada law with respect to deficiency actions, under the facts presented here, are sufficiently similar to the extent that Nevada policies and interests are not circumvented or defeated by the application of Michigan law. Moreover, defendants have not directly argued that the fair market values of the condos at the time of the sales were greater than the amounts of the successful bids.
In regard to NRS 40.459(l)(c), it certainly creates a new source of protection against deficiency actions for certain debtors, while at the same time clearly frustrating entities that purchase notes and security instruments at discounted rates. In O’Steen & Johansson, AB 273 Creates New Challenges for Secured Lenders, 19 Nevada Lawyer 22, 23-24 (2011), the authors, after noting that “borrowers will undoubtedly assert that the effect of [NRS 40.459(1) (c)] is to limit a deficiency award whenever the underlying debt has been acquired,” opined:
This statute has a tremendous potential to undermine the value of commercial transactions involving Nevada real estate loans. Loans are often acquired for a number of reasons, including pooling transactions, bank failures and note sales. Indeed, it is a fundamental aspect of a promissory note that it is a “negotiable instrument” and thus freely transferrable.
Michigan, at this time, has not opted to impose such constraints on deficiency claims, which absence of legislation must also be given some consideration. Indeed, MCL 600.3280 provides, in part, that the statute shall not “be held to affect or defeat the negotiability of any note, bond or other obligation secured by [a] mortgage, deed of trust or other instrument.” (Emphasis added.) As suggested by the authors of the Nevada Lawyer article, NRS 40.459(l)(c) can be viewed as affecting the negotiability of promissory notes, which, perhaps arguably, would be contrary to Michigan policy as reflected in MCL 600.3280. Contemplation of Nevada’s and Michigan’s policies and interests does not mean favoring and supporting only those laws that benefit borrow ers to the detriment of lenders or giving weight to laws, or the absence thereof, that benefit lenders to the detriment of borrowers. Ultimately, NRS 40.459(l)(c) does not support applying Nevada law and ignoring Michigan’s policies and interests and the direct Michigan connections to the promissory notes, to the parties to those notes, and to the performances under the notes. We also question Nevada’s interests in seeing Michigan residents avoid deficiency judgments at the hands of a Michigan bank merely because the properties securing the loans, which originated and were paid in Michigan, were located in Nevada. Moreover, while we appreciate that the Nevada Supreme Court has ruled in Sandpointe Apartments, 313 P3d at 851, that NRS 40.459(l)(c) applies to trustee sales that took place on or after June 10, 2011, regardless of when underlying transfers or assignments occurred, the fact remains that the statutory provision did not exist when the notes were executed or when the notes and deeds of trust were purchased from the FDIC. Sandpointe Apartments dealt with the issue of retroactive versus prospective application, not conflicts of law. And 1 Restatement Conflict of Laws, 2d, § 6, directs courts to protect the justified expectations of the parties and to consider the certainty and predictability of results. There was no expectation of the applicability of NRS 40.459(1) (c) in 2006 and 2007 when the notes and deeds of trust were executed, nor would the application of a statutory provision that did not exist at the time of contracting lend support to the certainty and predictability of results.
Turning to another argument posed by defendants, they maintain, citing NRS 40.430, that Nevada law required the trustee sales to be joined with the deficiency suits in a single action. Defendants contend that once Talmer opted to have the condos sold at auction, it was locked into pursuing any deficiencies in Nevada or under Nevada law. Again, these arguments presuppose the applicability of Nevada law and are inconsistent with the Restatement approach and Michigan cases analyzed earlier. Furthermore, NRS 40.430(1) provides:
Except in cases where a person proceeds under subsection 2 of NRS 40.495 or subsection 1 of NRS 40.512, and except as otherwise provided in NRS 118C.220 [all exceptions inapplicable], there may be but one action for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate. That action must be in accordance with the provisions of NRS 40.430 to 40.459, inclusive. In that action, the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale of the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRS 40.462. [Emphasis added.]
The flaw in defendants’ argument is that NRS 40.430(6)(e) specifically provides that an “action” does not include an act or proceeding “[f]or the exercise of a power of sale . . . .” Accordingly, Talmer’s exercise of the power-of-sale provisions in the two deeds of trust did not constitute an action that necessitated the joinder of deficiency suits, even if Nevada law applied.
Finally, we note that our ruling finds support in other jurisdictions. See Fed Deposit Ins Corp v Henry, 818 F Supp 452, 454-455 (D Mass, 1993) (Massachusetts law governed deficiency action on a note executed in Massachusetts even though the property securing the loan was located in New Hampshire); Cardon v Cotton Lane Holdings, Inc, 173 Ariz 203; 841 P2d 198 (1992); Consol Capital Income Trust v Khaloghli, 183 Cal App 3d 107, 112; 227 Cal Rptr 879 (1986) (“[T]he rule is clear and solidly grounded: The law of the situs of the debt controls when the suit is brought against the debt... and not the land.”).
5. ATTORNEY FEES
In Docket No. 312632, Talmer cross-appeals the trial court’s denial of its request for attorney fees. Attorney fees are not recoverable as an element of damages or costs unless expressly allowed by court rule, statute, common-law exception, or contract. Reed, 265 Mich App at 164. Parties can contract for the payment of attorney fees, and contractual provisions for the payment of reasonable attorney fees are judicially enforceable. Fleet Business Credit, LLC v Krapohl Ford Lincoln Mercury Co, 274 Mich App 584, 589; 735 NW2d 644 (2007). “In other words, a contractual clause providing that in the event of a dispute the prevailing party is entitled to recover attorney fees is valid.” Id. Attorney fees that are awarded pursuant to contractual provisions are considered damages, not costs. Id. “A contractual provision for reasonable attorney fees in enforcing provisions of [a] contract may validly include allowance for services rendered upon appeal.” Central Transp, Inc v Fruehauf Corp, 139 Mich App 536, 549; 362 NW2d 823 (1984).
Here, the promissory note required defendants to pay the lender’s reasonable attorney fees incurred in collecting on the note upon default. Given our holding affirming entry of the summary disposition judgment, Talmer is contractually entitled to reasonable attorney fees incurred in litigating the case, including reasonable attorney fees associated with this appeal. The trial court’s reasoning that defendants’ arguments regarding choice and conflicts of law were not frivolous and that the case was otherwise a simple, routine collection action has no relevancy to defendants’ contractual obligation to pay Talmer’s attorney fees, although it might have a bearing on the amount of fees awarded in the context of evaluating reasonableness. See Dep’t of Transp v Randolph, 461 Mich 757, 766; 610 NW2d 893 (2000), employing Rule 1.5(a) of the Michigan Rules of Professional Conduct; Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d 653 (1982). The trial court’s ruling that any award of attorney fees would be unreasonable circumvents defendants’ clear contractual obligation to pay fees and Talmer’s clear contractual right to be reimbursed for its attorney fees, as long as they are reasonable. On remand, the trial court is to award Talmer reasonable Attorney fees consistent with applicable legal authorities. To the extent that defendants may be challenging the award of attorney fees in Docket No. 313122, we affirm for the same reasons set forth above.
III. CONCLUSION
We affirm the trial courts’ rulings granting summary disposition in favor of Talmer and entering deficiency judgments against defendants in Docket Nos. 312632 and 313122. We also affirm the trial court’s ruling awarding attorney fees to Talmer in Docket No. 313122. Finally, we reverse the trial court’s ruling in Docket No. 312632 that denied Talmer’s request for attorney fees and remand for a determination of Talmer’s reasonable attorney fees.
Affirmed in part and reversed and remanded in part for proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, Talmer is awarded taxable costs pursuant to MCR 7.219.
M. J. Kelly and Ronayne Krause, JJ., concurred with Murphy, C.J.
Defendants note the ease of Welburn v The Eighth Judicial Dist Court of Nevada, 107 Nev 105, 107; 806 P2d 1045 (1991), wherein the Nevada Supreme Court stated, “Nevada has a strong interest in protecting the efficacy of the deficiency statute[s] with respect to out of state owners of Nevada real propertyE.]” See also Verreaux v D’Onofrio, 108 Nev 142,144; 824 P2d 1021 (1992).
NRS 40.459 does appear to allow an assessment of fair market value even when a third party submits a winning bid at a trustee sale and pays the lender said amount, whereas MCL 600.3280 only addresses situations in which the “mortgagee, payee or other holder of the obligation” makes the purchase at the auction.
The court reflected on the Nevada Legislature’s motivation:
The recent recession severely affected Nevada’s real estate market. As a result, a large secondary market emerged wherein various entities, including collection companies, would purchase distressed loans at deep discounts. These entities would then exercise their power of sale or judicially foreclose on the collateral securing the loans and seek deficiency judgments against the debtors and guarantors based upon the full indebtedness. [Sandpointe Apartments, 313 P3d at 852, citing Hearing on Assembly Bill 273 Before the Assembly Commerce and Labor Committee, 76th Leg (Nev, March 23, 2011).]
1 Restatement Conflict of Laws, 2d, § 6, p 10, indicates that a court, subject to constitutional restrictions, must follow statutory directives of its own state regarding choice of law, but if there are no such directives, the following factors are relevant to determining choice of law: the various needs of interstate systems; pertinent policies of the forum state; the relevant policies of other interested states in determining particular issues; the protection of justified expectations; policies underlying particular fields of law; certainty, uniformity, and predictability of results; and the ease in determining and applying the law subject to selection. Michigan has no statutory directives concerning choice of law. Michigan does have a forum-selection statute, MCL 600.745. | [
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Per CURIAM.
Defendant pleaded no contest to unarmed robbery, MCL 750.530, and was sentenced to 8 to 40 years’ imprisonment. He appeals by leave granted, arguing that his sentencing guidelines score should be reduced. Specifically, he argues that he should have been assessed 5 points for Offense Variable (OV) 1 rather than 15 points, on the theory that he never threatened anyone with a knife, but rather merely displayed or implied the knife. We disagree and affirm.
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made.” People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). This Court reviews de novo whether the facts, as found by the sentencing court, are adequate to satisfy the scoring conditions prescribed by statute. Hardy, 494 Mich at 438. Accordingly, the lower court’s factual finding that defendant attempted to pull a knife out of his sock is reviewed for clear error. The application of the statutory scoring conditions to that finding is reviewed de novo.
“Offense variable 1 is aggravated use of a weapon.” MCL 777.31(1). See also People v Morson, 471 Mich 248, 256; 685 NW2d 203 (2004). Pursuant to OV 1,15 points must be assessed when “[a] firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an immediate battery when threatened with a knife or other cutting or stabbing weapon.” MCL 777.31(l)(c). Alternatively, pursuant to OV 1, 5 points must be assessed if “[a] weapon was displayed or implied.” MCL 777.31(l)(e). Defendant does not contend that “[n]o aggravated use of a weapon occurred.” MCL 777.31(l)(f). Indeed, there is no dispute that the victim — the cashier at the gas station where the robbery took place — had a reasonable apprehension of an immediate battery. Therefore, the issue before this Court is whether a knife was used to threaten the victim, or if the knife was merely displayed or implied without a threat.
Michigan Courts have not previously considered what actions constitute a threat under MCL 777.31(l)(c), versus a mere display of a weapon under MCL 777.31(l)(e). Consequently, this is an issue of first impression. Words not defined by statute are given their plain and ordinary meanings, and consulting a dictionary to ascertain those meanings is proper. Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Random House Webster’s College Dictionary (1997) defines “threaten” as “to be a menace or source of danger to” or “to indicate impending evil, mischief, or difficulty.” “Display” is defined as “to show or exhibit; make visible.” Id.
Clearly, whether displaying something would constitute a threat must be highly context specific. For example, a box cutter displayed while opening one’s mail would not likely suggest a source of danger to an observer, because in that context it is unambiguously being used as a tool. Or a sales clerk in a store that sells knives showing a knife to a customer would not likely suggest a source of danger to a customer, because in that context it is merely an item of commerce. How the knife was used to threaten or how it was displayed must also be put in context here, a case involving a crime that by definition entails the defendant “us[ing] force or violence against any person who is present, or .. . assaulting] or put[ting] the person in fear....” MCL 750.530(1). The situational context in this case would suggest that the presence of the knife was not benign.
Significantly, MCL 777.31(1) explicitly distinguishes “threatening]” from “displaying].” Furthermore, MCL 777.31(1)(c) indicates that the threat is associated with, if not the proximate cause of, the victim reasonably apprehending an immediate battery. Finally, it is instructive that although MCL 777.31(l)(c) and (e) are both phrased in the passive voice, the former necessitates the victim’s involvement in some way, whereas the latter does not. We conclude that the minimum distinction between the two circumstances is whether the defendant in any way suggests, by act or circumstance, that the weapon might actually be used against the victim.
In other words, the fact that some kind of weapon is apparently present, by sight or by implication, in the abstract warrants the assessment of 5 points under MCL 777.31(l)(e). To warrant the assessment of 15 points under MCL 777.31(l)(c), there must be some reason, however slight, for the victim to reasonably perceive that the weapon will actually be used, and moreover, will actually be used against the victim. A threat exists when a knife is used for the purpose of suggesting to the victim a “menace or source of danger ....” Random House Webster’s College Dictionary (1997).
In this case, the factual record is not as clear as we might hope; in particular, there is some ambiguity whether defendant ever even removed the knife from his sock, let alone actually pointed it at or gestured with it toward anyone. Indeed, there is some dispute whether defendant made any overt acts that would suggest imminent removal of the knife from his sock. The presentence investigation report states that defendant “attempted to pull a knife out of his sock.” The trial court’s reading of the police report reflects that “the witness stated that they [sic] believed [defendant] attempted to pull a knife out of his sock.” At the sentencing hearing, the prosecution stated that defendant “fiddled with a knife, which was seen by the victim,” but also stated that defendant did not point it at anyone during the robbery. Defendant denied that a knife was ever displayed, and also argued that “[e]ven the victim had said that [the knife] was never exposed.” Consequently, it is not undisputed whether the victim was, in fact, aware of the knife at all. The trial court did not explicitly state on the record that it found that defendant threatened anyone with the knife, but the trial court clearly did so by necessary implication; it further concluded that fear of the knife was the reason that the victim and another person who was present allowed defendant to leave the store with the beer and cigarettes.
We are not left with a definite and firm conviction that the trial court made a mistake in finding by a preponderance of the evidence that defendant threatened the victim with a knife. The evidence overwhelmingly indicates that defendant had a readily apparent knife and engaged in some kind of intentional, overt conduct involving that knife. The most reasonable interpretation of that action is that defendant had a present intention of removing the knife for use. In the context of a robbery, an assailant attempting to pull a knife out of his sock, or even merely reaching for the knife, would be interpreted by any reasonable person as an indication that the knife would actually be used to inflict harm upon them. In other words, defendant went beyond merely displaying a weapon by acting in a manner that suggested its imminent use. We conclude that defendant’s actions were sufficient to constitute a threat under MCL 777.31(l)(c). Defendant’s only counterargument is that there is no evidence that he pointed the knife at the victim; however, doing so is not necessary to constitute a threat.
Accordingly, based on the factual finding of the trial court that defendant attempted to pull a knife from his sock, an assessment of 15 points for OV 1 was appropriate.
Affirmed.
Murphy, C.J., and M. J. Kelly and Ronayne Krause, JJ., concurred.
The language of MCL 777.31(l)(c) relating to firearms indicates that 15 points should be assessed for OV 1 if the firearm is “pointed at or toward a victim,” but that instructive language applies only to firearms, not other weapons. | [
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Montgomery, J.
This is an action on certain promissory notes made by the firm of W. B. Stone & Son, and to recover for an overdraft of the account of the same firm. The case is within a narrow compass, as the only meritorious question is whether the defendant Permelia L. Stone became a member of the firm. Certain questions relating to the rulings as to the admissibility of certain testimony become immaterial, inasmuch as the circuit judge, in directing a verdict for the plaintiff, rested his ruling upon the testimony given by the defendant Permelia L. Stone on this trial and on the trial of another case involving the same issue.
The firm of W. B. Stone & Son was originally composed of W. B. Stone and Harry L. Stone. W. B. Stone died on September 9, 1898, leaving Harry L. Stone, his only son, and Permelia L. Stone, his widow, who were the only persons, other than creditors, interested in his estate, and who were appointed to administer the estate. The business of the firm of W. B. Stone & Son was continued from September, 1898, until June, 1900. The question of the liability of Permelia L. Stone in this action is to be determined by ascertaining whether in what she did she made herself a member of the firm.
It is now well settled that the administrator, by tacitly leaving the assets in the hands of the surviving partner, does not incur liability as a partner. Nor does the receipt of profits of the business, in and of itself, constitute him a partner. Parsons, Partn. § 74, and cases cited. On the other hand, it appears to be as definitely settled that by an agreement to continue the business, either expressly or impliedly made, either for the benefit of the estate or of the executor, he does incur liability as a partner. Id. In the present case the testimony of Mrs. Stone, given on this trial, was as follows:
“ Q. What did you and Harry talk about in regard to this business ?
“A. I told him he better go on with it just as he had been doing.
‘ ‘ Q. What made you tell him that ?
“A. Because we thought it was the best thing to do, because we did not know anything else to do. We did not talk about any other plan. We talked it just as a son and mother would talk about things, with no one else to look to. We were the only heirs, each claiming to own the property, and talked over the matter about going on with the business, and concluded it was the best thing to do.
“ Q. And you told him to go on, did you ?
“A. I don’t know as I told him to go on. We thought it would be best to go on. He thought he could go on with the business, and work out of debt after a-while.
“ Q. The debts covered your property and his property, did they ?
“A. Well, it would naturally, I suppose. I did not expect it would take my property, though, at the time.
“ Q. But the debts you wanted to pay covered your property and his property ? Is that true ?
“A. Yes; there Avas a mortgage on it all. The understanding was that he was to pay the debts that were hanging over the firm, — pay the lumber debts; and we intended to sell the property as soon as we could, and pay the mortgage.
“ Q. Did you talk that all over between yourselves ?
“A. Well, we might have talked it over. It is hard to say just what we talked over. I presume we did. We talked over a good many things about all the business,— .all the property.
“ Q. Did you agree upon that, — come to an agreement between you; that is, both make up your minds to the same thing ?
“A. We never made any agreement about it.
“ Q. I mean, di'il you and he agree as to what was the best thing to do ?
“A. Yes; I suppose we did.
“ Q. And did he continue the business because of that agreement ?
‘ ‘A. I don’t think he continued under anything I said about it, because he knew better than I did about it. I did not know anything about it. I never had anything to do with any of the business. He and D talked it over, and “came to the conclusion that it was the best thing to do.
“ Q. And he went on in accordance with that conclusion, didn’t he ?
“A. Yes. I asked him for money when I needed it, and he gave it to me. I could not say it came from the firm.”
It is true, she also stated that she did not understand that she became a partner, but the test is whether her relations to the business were such as to constitute her a partner. As was said in Beecher v. Bush, 45 Mich. 188 (7 N. W. 785, 40 Am. Rep. 465):
“ It is possible for parties to intend no partnership, and yet to form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners.”
In this case the testimony of defendant shows that Mrs. Stone, as well as her son, understood that, for an indefinite time, property owned by them jointly was to be used in the business, and that the assets of the old firm were to be continued in that business with a view to the mutual profit of the parties. Under the law, they became partners.
Judgment affirmed.
Moore and Grant, JJ., concurred. Hooker, O. J., did not sit. | [
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] |
Grant, J.
A statement of the issue in this case will be found in 127 Mich. 379 (86 N. W. 806). Upon the second trial the defendant was permitted to show by parol testimony that the parties did not understand the term, “to be fully settled for within ten days,” to mean payment, but that the agent of the Ideal Flatiron Company informed Mrs. Servis and Mr. Stockwell that she would pay the money out of what goods she sold, and account for those unsold.
The term “settled,” or “to be settled for,” does not necessarily mean payment. One lexicographer defines “settle” to mean “to adjust differences, claims, or accounts; come to an agreement.” Cent. Diet. & Enc. Another says: “Settle implies the mutual adjustment of accounts, and an agreement upon the balance.” And. Law Diet. 944. The conversation, therefore, between the parties' was competent in order to explain what was meant by the term. If the Ideal Flatiron Com pany desired payment within 10 days, and a guaranty thereof, it should have used language which meant that and nothing else.
We find no error, and the judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Grant, J.
(after stating the facts). Section 60 of the bankrupt act (subdivisions a and 6) reads as follows:
“(cf) A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.
“(b) If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.” 30 U. S. Stat. p. 562.
The sole question presented is: Did Mr. Feldheim and his attorney, Mr. Butzel, acting for him, have reasonable cause to believe that Ives & Sons were insolvent, and made the assignment with intent thereby to give a preference ? The court below, in a written opinion, found that they did not. In this finding we concur. We deem it unimportant to set forth the evidence upon which the finding is based. It would not form a precedent of any value to the profession. We are satisfied that Ives & Sons did not at the time of the assignment contemplate bankruptcy, and that both defendants had no information which led them to believe, or which should have caused them to believe, that the firm was insolvent. All the suspicious features of the contract are fully explained by the testimony.
The decree is affirmed, with costs.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Moore, J.
This suit was brought for the purpose of recovering for injuries received by plaintiff while a passenger on a street car owned by defendant. The circuit judge directed a verdict in favor of defendant. The case is brought here by writ of error.
It is the contention of plaintiff that he had a claim against defendant for injuries received by him October 26, 1899; that on November 1, 1899, he "made a written agreement with Mr. Bolton, a lawyer, to collect said claim, and assigned him one-half thereof in consideration of his services. He also claims that Mr. Bolton had negotiations with the representatives of the company for a settlement, and was offered $1,300 unconditionally for a settlement of the claim, and $2,000 if certain conditions existed. Defendant denied that any such offers were made. ' It is the further claim of plaintiff that, by means of false representations and concealments of what had occurred between his attorney and the representatives of the company, he was induced on December 5, 1899, to settle his claim in full for $800. Defendant denies there, was any fraud used to bring about this settlement, but insists plaintiff voluntarily and freely made it. It is the claim of plaintiff that, when he learned from Mr. Bolton the exact facts, he repudiated the settlement. Afterwards this suit was brought, and, as before stated, a verdict was directed by the circuit judge, who was of the opinion that no fraud had been shown in making the settlement.
A great many questions are raised by counsel which we do not deem it necessary to discuss, as we think plaintiff has failed to put himself in a position to maintain this suit. The law is well settled that, if one seeks to rescind a settlement on the ground of fraud or mistake, he must, after discovering the fraud, place the other party in statu quo. Jewett v. Petit, 4 Mich. 508; Crippen v. Hope, 38 Mich. 344; Pangborn v. Insurance Co., 67 Mich. 683 (35 N. W. 814); Galvin v. O’Brien, 96 Mich. 483 (56 N. W. 85). Counsel claim plaintiff did this by tendering back the money to defendant, while defendant denies that any sufficient tender was made. The testimony bearing upon that point is brief, and we quote it. Plaintiff testified:
‘‘ I was never at the railway office but once. That was some day or so after I received the money. I went there with Mr. Bolton. * * *
“ Q. You got $800, of which you paid $150 to your physician ?
“A. Yes, sir.
“ Q. And you have used that $650 ?
“A. Yes, sir. * * *
“ Q. You said that you were in the street-railway office the next day with Mr. Bolton?
“A. I think it was the next day or two afterwards.
“ Q. What did you go down there for ?
“M. To tender the money.
“ Q. Who told you to do that ?
“M. Mr. Bolton.
“ Q. You were satisfied to take the money the day before, weren’t you ?
“A. I was the day before.
“ Q. And Mr. Bolton told you the next day to go down and pay the money back. How much of the money did you have the next day ?
“A. I think Mr. Bolton had the money.
“ Q. Oh, you think he had the money?
“A. I don’t know. I did not see it.
“ Q. Where was your money ?
“A. My money was in the bank.
“ Q. In the bank. You never took your money back to tender any money, did you ?
“M. They did not ask me to.
“Q. Who?
“A. Mr. Bolton.
“ Q. You did. not see any money with Mr. Bolton, did you?
“A. No, I did not see any.
“ Q. And there was no money tendered to anybody, was there ?
“A. Not that I know of or saw.
“ Q. No, you did not see any money tendered back, but you think Mr. Bolton had the money. How do you knqw he had the money ?
“A. Well, all I know is, he says, ‘You come with me, and,’ he says, ‘we will tender that money back.’
“ Q. Didn’t he tell you, too, that Mr. Hutchins would refuse the money?
“A. No, sir.
‘ ‘ Q. Did not Mr. Hutchins ask him to let him see the money ?
“A. He asked— He refused it, and as we was going out he says, ‘Let’s see your money.’ Bolton says, ‘You refused it once.’ Bolton did not show him any money, that I seen. . I think I would have seen it if he had shown any.”
Mr. Bolton’s version of what occurred is as follows:
“ Mr. Niederhauser, Mr. Hubbard, and myself went down to the Detroit Citizens’ Street-Railway Company at 12 Woodward avenue, and met Mr. Hutchins. Before going down there, we had arranged for raising money. We had arranged for tendering back to Mr. Hutchins — to the railway company — that $800, and whatever— There was a little interest, or. whatever there would be on it. I did not take the money with me. When we got to Mr. Hutchins’ office, we met Mr. Hutchins, and I told him that we repudiated that settlement; there was no settlement; that the boy had been unjustly dealt with, and the settlement was a fraud, and we came back to see if he would not take the money back. He says: ‘No, sir; it is a settlement. It is final with me, and I will not take any money back. ’ After that conversation we came back to my office. After we left Mr. Hutchins’ office, and while we were getting into the elevator- — • I think Mr. Hubbard and Mr. Niederhauser were in the elevator, and I was just getting in, and Mr. Hutchins, I think, had either stepped —there is a double doorway there — stepped in the doorway, and kind of stepped back, and he laughed, and in a sneering way he says: ‘ Ha, you fellows haven’t got any money. I never have seen the color of your money. Where is your money ? ’ I don’t remember that we made any reply at all. That is all I remember that was said. I might have said, ‘You refused it;’ something of that kind. I might have thrown back a remark at him. After that this suit was brought.”
Mr. Hutchins’ version of what occurred is as follows:
• “ Mr. Niederhauser, Mr. Bolton, and Mr. Hubbard came to my office. I met the parties in the hall. Mr. Bolton said, ‘This is Mr. Niederhauser.’ He said: ‘We have come down to tender you the money back in the Niederhauser case. Will you accept it ? ’ I said, ‘ No.’ So Mr. Hubbard had started towards the elevator. Mr. Bolton and Mr. Niederhauser were still standing near me. I then went to ask for the money, so I said, ‘Oh, wait a minute; let me see the money.’ Mr. Bolton said, ‘ Come on, Niederhauser; come on, Mederhauser,’ as he rushed off towards the elevator; ‘he said he would not accept it;’ and I said I would like to see the color of the money, and Bolton repeated it, ‘Come on, Niederhauser,’and then all got in the elevator and went away. I did not see any money. ”
While the old rule that, to make a valid tender of money, there must be produced the precise sum in current money, which must actually be offered to the person to whom the tender is made, has been modified, it is not believed a case can be found where what was done here would be regarded as a valid tender. In Chase v. Welsh, 45 Mich. 345 (7 N. W. 895), Justice Campbell, speaking for the court, said:
“No sum of money whatever was tendered, and no tender in the proper sense made at all. There was no more than a proposition or offer to pay what might be ascertained' as the proper sum; but the parties tendering had not informed themselves, and took no steps to do so beyond preparing a receipt in blank, to be filled up when the supposed judgment and interest should be figured up. This receipt purported to discharge the judgment. Prentis refused to sign it. There is some conflict as to what reason he gave, but, inasmuch as no sum of money whatever was produced or offered, all that it could have amounted to at best was a manifestation of readiness to make payment when the proper amount was figured up. This was no tender of payment.”
See, also, Engle v. Hall, 45 Mich. 57 (7 N. W. 239); Selby v. Hurd, 51 Mich; 1 (16 N. W. 180); Potts v. Plaisted, 30 Mich. 149.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Montgomery, J.
This is an action to recover the penalty prescribed by 2 Comp. Laws, § 6235, which reads as follows:
“ Every such corporation shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, offer or be offered for transportation at the place of starting, and the junctions of other railroads, and at siding and at stopping places established for discharging and receiving way passengers and freight, and shall take, transport, and discharge such passengers and property at, from, and to such places on the due payment of toll, freight, or fare legally authorized therefor; and every such corpora tion shall transport merchandise, wood, lumber, and other property, and persons, from the various stations upon said road, without partiality or favor, when not otherwise directed by the owner of said property, and with all practicable dispatch, and in the order in which such freight and property shall have been received, under a penalty for each violation of this provision of one hundred dollars, to be recovered by the party aggrieved in an action of debt against such corporation: Provided, that perishable or explosive freight and property shall have the preference over all other classes of merchandise. In case of the refusal by such corporation or agents so to take and transport any such passenger or property as aforesaid, or to deliver the same, or either of them, without a legal ór just excuse for such default, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby, with costs of suit, or the penalty prescribed in this section, at the election of the party aggrieved.”
The declaration avers, in the first count, that plaintiffs are copartners doing business under the firm name of the Crosby Transportation Company, and operating a line of steamboats carrying goods and merchandise for hire from the cities of Muskegon and Grand Haven, in the State of Michigan, to the city of Milwaukee, in the State of Wisconsin. It then avers the duty of defendant to furnish accommodation for the transportation of property offered for transportation, and to transport the same with áll practicable dispatch, without partiality or discrimination, under a penalty of $100. It next avers that on the 26th day of August, 1901, one Charles F. Hale, of Shelby, Mich., within a reasonable time previous to the starting of defendant’s train, offered to defendant’s agent at its station at Shelby one car of fruit, consigned to the Crosby Transportation Company, at Muskegon, Mich., and offered to prepay the freight, but that defendant’s agent, without legal or just excuse, refused to receive the car load of fruit, and that by reason thereof, and by force of the statute, “an action has accrued to the plaintiffs, who were the parties aggrieved by the said refusal, for the recovery of the penalty named in the statute.” The second count is general, alleging that defendant exercised partiality in accepting at its station at Shelby a car load of fruit to be delivered to the Goodrich Transportation Company, at Muskegon, and refusing to accept a certain other car load of fruit to be delivered to the plaintiffs, contrary to the form of the statute, by reason whereof “an action has accrued to the plaintiffs, they being the parties aggrieved, to recover from the defendant the penalty named in said statute,” etc.
The case presents numerous interesting questions; but the question which meets us at the threshold of the case is whether the plaintiffs occupy such a relation to this proposed shipment of goods as entitles them to maintain this action. It is not averred that the fruit was the property of the plaintiffs, or that- they had any interest therein other than the prospective profits which they might have earned as common carriers had the freight been shipped to them. This calls for a construction of the terms of the statute, which confine the recovery of the penalty to the “ party aggrieved.” It will be noted that the penalty fixed is “a penalty for each violation of this provision, to be recovered by the party aggrieved.” The penalty arises “in case of the refusal by such corporation or agents so to take and transport any such passenger or property, or to deliver the same, without a legal or just excuse for such default.” It would be an enlargement of this statute to hold that more than a single penalty was contemplated. A penal statute is not to be enlarged by construction. It would seem clear that the one offering the goods for shipment, or his principal, if he be an agent, would be a party aggrieved, within the terms of this statute. He is the person who, either on his own behalf or on behalf of the owner, has sought to invoke the service. It is his right which is, in the first instance, violated. Can it be said, then, that the plaintiffs, having no further interest than as common carriers, prepared to perform a service in case the freight was shipped and reached the point of connection with their line, have suffered a legal injury, such as excludes the right of the shipper to recover, and transfers the cause of action to them ? We think not.
A somewhat similar question was presented in St. Louis, etc., Packet Co. v. Missouri Pac. R. Co., 35 Mo. App. 272. In that case plaintiff was a common carrier. Goods had been consigned to the plaintiff’s agent. Instead of delivering the goods to the plaintiff’s agent, they were delivered to another carrier, and plaintiff thereby lost the freight which it would have earned. It was held that the plaintiff had no such interest in the contract between the shipper and the first carrier as entitled it to maintain an action. It was said:
“The rule which enables one to sue upon a contract made for his benefit does not, in its very nature, include cases where the contract is made for the benefit of the main contracting parties.”
So in the case of Lafaye v. Harris, 13 La. Ann. 553, under a statute which broadly declared that “every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it,” it was held that the refusal of a common carrier to take goods consigned to the plaintiff was a violation of the obligation to the shipper, and not to the consignee, and that an action for damages by the consignee would not lie in such a case.
A case which furnishes persuasive authority in the present is the case of Hadley v. Telegraph Co., 115 Ind. 191 (15 N. E. 845). In that case the court had before it for construction a statute which, in respect to the prohibition of discrimination, is singularly like the statute under consideration in this case. It provided that telegraph messages should be received during the usual office hours, whether from other telegraph lines or from individuals, and should be transmitted upon the usual terms, with impartiality and in good faith, and in the order of time in which they were received. It also prohibited discrimination in rates charged, and in the manner or conditions of service, between any of its patrons. A third section provided that any person or company violating the provisions of the act should be liable “to any party aggrieved” in a penalty of $100 for each offense. It was contended that the expression “any party aggrieved” was broad enough to include as well the person to whom or corporation to which the dispatch was directed, when aggrieved by a noncompliance with the requirements of the act, as the sender of the dispatch. The court applied the well-understood rule that, in construing a statute authorizing the recovery of a penalty, a strict, rather than a liberal, construction ought to be given to its provisions; and, while conceding that the fixed penalty was imposed for the breach of a duty which telegraph companies owe to the public generally, and not as damages for the nonperformance of a contract to properly transmit a dispatch, the court says that nevertheless ‘ ‘ such a breach of duty cannot arise until after a telegraph company has either entered into a contract, or has become obligated to transmit the dispatch,” and holds that the primary object of the statute was to protect the interests of patrons by preventing discrimination between them, and that the person to whom a dispatch is sent cannot become a party aggrieved, in the sense contemplated by the act under consideration; adding, “Any other construction might result in a multiplicity of suits to recover the same penalty.” Our statute more clearly excludes the consignee, for not only is a single penalty provided for each violation, but the damages are given to “ the party aggrieved,” while under the Indiana statute “ any party aggrieved” might recover the penalty.
Having reached the conclusion that these plaintiffs are not entitled to recover the penalty under this statute, it would be premature to discuss the other questions involved in the case. The circuit judge having directed a verdict for the defendant, the judgment will be affirmed, with costs.
Hooker, O. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Hooker, C. J.
Schulte claims to be owner of the original title to premises described in his petition, having purchased them on January 15, 1900, for the benefit of and in trust for the People’s Savings Bank of Detroit, taking them subject to a mortgage held by said bank, dated June 28, 1897. He is in possession. In 1887 a reassessed drain tax was included in the taxes for that year, the same having been originally assessed in 1882. In default of payment of this reassessed tax, the property was bid in for the State at a tax sale held for that year. This sale was declared void in the year 1890 by the circuit court for the county of Oakland. In 1900 the auditor general repetitioned, and included this land in the tax sale held in 1901, when the premises were purchased by O’Connor.
On September 6, 1902, petitioner (Schulte) applied to the auditor general for a certificate of error under section 98 of the tax law (Act No. 206, Pub. Acts 1893), said petition being made upon the ground “that a certificate that no taxes were charged against said lands had been given by the proper officer within the time limited by law for the payment or redemption thereof. ” The circumstances relied on, as stated in the petition, are that in March, 1897, when the bank proposed to take the mortgage referred to, the relator, as vice-president of the bank, sent the abstract of title of the land to the persons engaged in making and selling abstracts of title in the county where the land is situated for certification, and received back from them a tax statement, showing a cancellation of the tax of 1887 by the circuit judge, and a further certificate that the taxes for 1895 had been paid. Subsequent to January, 1899, he received a certificate from the same persons, in answer to a letter of January 14, 1899, asking for the amount of taxes outstanding for the years 1896, 1897, and 1898, which certificate showed that the taxes for those years were marked “Paid,” except those for 1898, and that the roll for that year was not in the hands of the county treasurer. In January, 1901, relator’s agent sent to relator a letter from the county treasurer stating that “ there is no tax of record against” the premises. “For 1900 tax write township treasurer.” The tax for 1900 — $23.64—was subsequently sent the town treasurer. On November 27, 1901, relator’s agent wrote the county treasurer to advise him of the amount of taxes due for the years 1899 and 1900, and received answer that “taxes of 1899 and 1900 are paid.”
On June 15, 1902, relator received notice from O’Connor of his purchase, on May 21, 1901, for $110.45, and claiming that he was entitled to $265.90. About July 19, 1902, he received from O’Connor the statutory notice, with claim of $110.45, together with 100 per cent, and fees provided by law in case relator should choose to redeem. He sent with his petition to the auditor general $119.06, being the purchase price and 6 per cent, interest. The auditor general replied that the sale on the reassessment of 1887 was held void because there was no dollar sign in the decree, whereupon the sale was canceled, and, without reassessment, the lands were included in a later petition, and a decree was taken for sale in 1901, when O’Connor purchased, as stated. He stated further that no objections were filed to this tax in the year 1890, and, second, that the cancellation and readvertising were done under sections 138 and 139 of the tax law (Act No. 169, Pub. Acts 1899), and that, in his opinion, such taxes were not subject to payment at the county treasurer’s office, but to the auditor general only, and that the certificate of the county treasurer did not warrant the cancellation asked, and the application was denied, and the deposit returned to relator. We are now asked to compel the auditor general to cancel by writ of mandamus.
The answer of the auditor general to the order to show cause has been anticipated by the foregoing statement made by the auditor general in answer to relator’s application. The contention of the relator is reduced to this: i. e., that, by the cancellation of the sale based on the action of the circuit court in holding the decree void, the tax, which was in no way affected, became again a delinquent tax, subject to payment at the county treasurer’s office, under the provisions of sections 58 and 59 (Act No. 206, Pub. Acts 1893), the latter of which is said to provide that payment of delinquent taxes may be made at the county treasurer’s office at any time before the land is sold. On behalf of the auditor general it is insisted that, after sale and cancellation of the certificate or deed, these lands were not to be treated as delinquent lands within the provisions of sections 58 and 59, but were to be considered in a different class, governed by sections 138 and 139, which are said to specifically provide for their treatment ; and, further, that there is no provision under which the county treasurer can have either information as to their condition or authority over them.
The whole controversy appears to be over the amount required for redemption. We are of the opinion that the auditor general has placed the right construction upon these statutes. The land had been sold, and by such sale the right to pay the tax to the county treasurer, under sec tion 58, ended. Tbe sale was afterward held invalid, but it was for a technical defect in the decree, and this defect in no way affected the validity of the tax. The auditor general had authority, therefore, under section 138, to include this land in a subsequent petition for sale, and did so. Undoubtedly, the owner might have paid this tax to the auditor general under the provision’s of section 138, but there is no express provision authorizing the county treasurer to act further in the premises. The land is in a class by itself, under the charge and control of the auditor general. Hence the county treasurer cannot be said to have been the proper officer to give the certificate relied on in the case. Subdivision 4 of section 98 gives relief to those who have been misled by certificates issued by the proper officers, but this relief, being statutory, applies only to such cases. We cannot enlarge the statute.
The writ is denied.
Moore, Grant, and Montgomery, JJ., concurred. | [
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Grant, J.
Respondent was convicted of horse stealing, under Act No. 102, Pub. Acts 1877 (3 Comp. Laws, § 11595).
1. Complaint is made of certain statements made by the prosecuting attorney in his opening to the jury. The extracts from the statement complained of are isolated from the rest of the statement, and were made, as expressly stated by the prosecuting attorney, not to influence the jury, but to explain the reason why certain witnesses would be produced. In his closing address to the jury the prosecuting attorney called the defendant a ‘ ‘ monumental liar and bluffer.” We are not prepared to say there was no evidence in the case to justify these remarks.
2. Several errors are assigned upon the admission of testimony. No reason was given for some of the objections, and such objections will not be considered. We, however, find no prejudicial error in any of the rulings upon the testimony. They are not of sufficient importance to discuss.
Evidently the attorneys for the defendant made a severe attack upon the police officers, and now complain of the following instruction:
“The police department is an important part of the machinery of our government, and it is well enough to bear in mind that your homes, your lives, and your property would not be safe but for the police department and officers. It does not follow that because an officer testifies in the court-room that his testimony is to be discarded, or any suspicion cast upon it, unless there is something about it which calls your attention to it.”
We see no objection to the instruction.
We find no error upon the record, and the conviction is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
Respondent was convicted of sexual intercourse with one Pearl Arnold, a female under the age of 16 years.
1. The principal ground of error relied upon for reversal is that there was no competent proof to establish the girl’s age. The respondent is the girl’s uncle, and was 30 years old. The complaint was not made either by the girl or her mother, but by a neighbor. She had been delivered of a child.- The girl and her mother were both witnesses hostile to the prosecution, and desired to shield the respondent. Both the girl and her mother, upon the examination, testified that the girl was under 16 years of age at the time of the alleged intercourse. Upon the trial both testified that they were mistaken, and that she was a year older, which made her more than 16 years of age. The girl also denied ever having sexual intercourse with the respondent. Several witnesses testified that the respondent told them that he had “gotten the girl into trouble; that her mother threatened prosecution; and that the girl was under age.” He did not deny these statements, taking advantage of his constitutional right not to testify. The jury were entitled to consider the statements of the respondent as to her age, and as well her appearance. Com. v. Emmons, 98 Mass. 6; Com. v. Phillips, 162 Mass. 504 (39 N. E. 109); People v. New York County Justices, 10 Hun, 224. What the respondent meant by using the expression, “The girl was under age,” was for the jury.
It is impossible to read this record without reaching the conclusion that the girl was infatuated with the respondent, and that she testified falsely for the sole purpose of shielding him. No other conclusion can with reason be reached than that he had sexual intercourse with her during the time alleged in the information. The mother had had several children, and was compelled to change the dates of the births of all of them, from that to which she testified upon the examination, in order to make the age of Pearl above 16. We think there was conflicting evidence in regard to her age, which made it a proper question for the jury-
2. Evidence was permitted tending to show that Pearl and respondent left Michigan and went to Indiana, where her child was born, and to show intimate relations subsequent to the time of the commission of the crime. This testimony was offered, not to establish other and subsequent offenses, but to show his treatment of the girl after the commission of the alleged offense, and after he ascertained that she was with child. This testimony is not within the rule established in People v. Clark, 33 Mich. 112; People v. Etter, 81 Mich. 570 (45 N. W. 1109); and People v. Fowler, 104 Mich. 449 (62 N. W. 572). In these cases the prosecution was permitted to show subsequent acts of sexual intercourse to prove the one charged. This was held improper. This case comes within the rule established in People v. Hubbard, 92 Mich. 326 (52 N. W. 729), People v. Craig, 116 Mich. 388 (74 N. W. 528), and Matthews v. Detroit Journal Co., 123 Mich. 608 (82 N. W. 243), and authorities cited, in which it was held competent to show the subsequent and intimate friendly* relations of the parties. The court very carefully instructed the jury upon this point, in accordance with the rule of these decisions.
3. Testimony was introduced showing admissions by Pearl that she and the respondent lived together in Indiana. The objection made to this testimony was that it was immaterial, and that the admissions were not made in the presence of the respondent. The court stated that he admitted them only as bearing on the credibility of the witness Pearl, she having denied that she there lived with respondent. No objection was made to this testimony upon this ground. If the witness Pearl had been called as a witness by the respondent, this testimony would have been clearly admissible. As already stated, it was apparent that she was in fact his witness, and testified for the purpose of protecting him. Whether, under such circumstances, it was competent for the people to show contradictory statements made by her, we need not consider, inasmuch as this point was not raised in the court below. I do not think upon this record that the case should be-reversed for the admission of this testimony.
Conviction should be affirmed.
Moore, J.
I cannot agree with Mr. Justice Grant that testimony of admissions made by Pearl Arnold not in the presence of the accused was admissible. The case is directly within People v. Fowler, 104 Mich. 449 (62 N. W. 572), and the cases there cited.
The conviction should be set aside, and a new trial ordered.
Hooker, C. J., and Montgomery, J., concurred with Moore, J. | [
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] |
Hooker, C. J.
The defendants have appealed from a decree requiring them to specifically perform a contract for the sale of land. The question is one of fact, and requires no discussion. We are satisfied that the contract was procured by complainant’s brother through deceit, and that she is not equitably entitled to specific performance. We agree, however, that the complainant acquired a valid title to the mortgage upon said premises, as against the defendants, by virtue of the assignment of the same.
The decree is reversed, and the bill is dismissed, with costs.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This case was commenced in justice’s court, where judgment was rendered in favor of the plaintiff. It was then appealed to the circuit court. The attorney for the defendant during the session of the circuit court had a case in the federal court in Cincinnati. He did not make a formal application for a continuance of the case, though he had some correspondence by letter and telegram with the circuit judge and the clerk of the court. The attorneys for the plaintiff would not consent to a continuance. When it was reached in its order upon the calendar, it was tried by a jury, who rendered a verdict in favor of plaintiff for $23.27. Afterwards a motion was made for a new trial, which motion was overruled. The case is brought here by writ of error to review the action of the circuit judge in refusing to grant a new trial.
The record does not disclose that the circuit judge was requested to give his reasons for refusing a new trial, nor does it show that he gave them, nor does it show that any exceptions were taken. Under such circumstances, we have repeatedly held that we cannot review the action of the circuit judge in refusing to grant a new trial. McRae v. Lumber Co., 102 Mich. 488 (60 N. W. 967); Finley v. Widner, 116 Mich. 679 (75 N. W. 132); In re Gallagher's Estate, 120 Mich. 365 (79 N. W. 570); Brennan v. O'Brien, 121 Mich. 491 (80 N. W. 249); Tobin v. Modern Woodmen of America, 126 Mich. 161 (85 N. W. 472).
The judgment is affirmed.
Hooker, O. J., Grant and Montgomery, JJ., concurred. | [
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] |
Hooker, C. J.
The plaintiff made a contract with the city of Detroit whereby he undertook to construct a short extension of an existing sewer. The contract was in writing. The specifications referred to in the advertisement for proposals were made a part of the contract. They contained the following provisions: “No tunneling or drilling will be permitted unless by written consent of the board of public works, or unless stated on the plan or diagram to be a tunneled sewer;” also, “All loss or damage arising out of the nature of the work, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, to be sustained by the contractor. ” A diagram of the proposed extension was also made a part of the contract, and upon its face the words, “ N. B. May be tunneled,” were printed. Plaintiff and the city officers appear to have acted upon a common understanding that ft would be tunneled; but on making the attempt to sink a shaft, as preliminary to tunneling, quicksand was struck, and that plan was abandoned. Plaintiff proceeded to excavate a trench, and finished his job, but at a cost considerably exceeding the contract price, which was paid him. He has brought this action to recover the actual post, $2,024.36, less $500, the contract price. A verdict was directed for the defendant, and the plaintiff has appealed.
It is urged upon the part of the plaintiff:
1. That the city has represented that this ground was such as to admit of tunneling, and that, it having turned out otherwise, the law will imply an obligation to pay the increased cost.
2. That the contract provides that the' contractor shall submit to changes and alterations in the sewer at the direction of the city, and shall be paid for extra work occasioned thereby. He says that a change became necessary in the method of doing the work, whereby he is entitled to compensation for his additional labor and expense, under this stipulation.
To us the case seems a simple one. We think that it cannot be said that the fact that the job was let with an expectation that it would be tunneled indicates an intention to represent that it could be tunneled. On the contrary, the language of the contract is a permission to tunnel, and the indication that this was so understood is emphasized by the express provision of the contract quoted, imposing risks of obstructions upon the contractor. The job was advertised and let upon such terms, and, while we appreciate the hardship of having to perform a contract at a loss, we cannot relieve the contractor from the obligation of his contract. See McBrian v. City of Grand Rapids, 56 Mich. 99 (22 N. W. 206).
Eegarding the second point, it is sufficient to say that, in our opinion, counsel ask for a strained construction of the language. The city has asked for no addition to, nor change in, its sewer. Nor has it attempted to dictate as to a method of construction.
The judgment is affirmed.
Moore, Grant, and Montgomery, JJ., concurred.' Long, J., did not sit. | [
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] |
Hooker, C. J.
The plaintiff and two or three other persons had claims against defendant for injuries to their respective cattle. The plaintiff took assignments from the others, of which the following is a sample of all:
“For a valuable consideration, to me in hand paid by Robert Henderson, the receipt whereof is hereby acknowledged and confessed, I herein and hereby soil, assign, transfer, and set over to said Robert Henderson all my right, title, and claim for damages against the Detroit & Mackinac Railway Company for injuries done to my cow on the 5th day of May, 1901, and I herein and hereby authorize and empower said Robert Henderson, in his name, to commence suit and prosecute the same against the Detroit & Mackinac Railway Company for the damages and injuries I sustained on account of the injuries to my said cow.
“Dated August 13th, 1901.
“Ed Fitzpatrick.”
The evidence shows that no agreement was made as to the compensation to be made for the assignments, except that it was agreed that whatever plaintiff should collect out of these claims should be turned over to the respective assignors. The assignments were admitted under objection, and defendant’s counsel urges that it was error to admit them and to permit the jury to consider them. Counsel says in his brief that:
‘ ‘ The only thing I complain of is the methods which these parties have employed in attempting to unite these causes of action. Had the several claimants not united their claims in this unique manner, the defendant would not have been subjected to a trial in the circuit court, as their claims would all have been exclusively within the jurisdiction of the justice of the peace; but, having attempted to unite them, they should have advanced in support thereof some substantial and concerted action as between themselves. They should show some agreement of a sufficiently definite character to constitute an assignment, and it should not be permitted to rest in so careless and indifferent condition. It is perfectly evident from the testimony of the plaintiff that the minds of the assignors and the assignee never met on a common plane, other than that the plaintiff was to sue in his own name for their united claims, and the question of consideration was left to abide the result of the suit.”
No claim is made that these claims could not be assigned, but it seems to be defendant’s contention that, inasmuch as the plaintiff’s obligation is to turn over only what he recovers upon the several claims, he did not become the owner of them, and therefore could not sue upon them. We think this is not a correct view. The claims might be the subjects of gift, and in such case the defendant could not object. The instruments, upon their faces, are fair assignments, and the defendant has no interest in the consideration, as we have frequently held.
There was no obligation on these parties to have their respective claims prosecuted in justice’s court. While parties cannot join in a suit upon claims which are individual, one may become owner, and sue upon all in one action.
No question arises over the pleading.
The judgment is affirmed.
Moore, Grant, and Montgomery, JJ., concurred. | [
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] |
Hooker, C. J.
The defendant in this case was convicted under the statute punishing the careless use of firearms. The testimony tended to show that the defendant and two boys by the name of Ward met in a cornfield where the Ward boys were at work. The defendant had a gun, and the boys were looking at it. After the respondent had been there about 30 minutes, the Ward boy claimed he must go to work, when the respondent put a shell in the gun, and said, “Look out, or I will shoot you,”' and simultaneously did shoot him, seriously injuring him. The respondent claimed that the two boys were scuffling-over the gun, when it was discharged accidentally.
It is claimed by counsel that the testimony showed that the shooting was intentional, and therefore that he was not guilty under the statute, for the reason that the shooting punished thereby must be by the discharge of a _ firearm pointed and aimed intentionally, but without malice. There was testimony in the case from which the jury could legitimately infer the absence of malice.
The court permitted testimony that on the occasion of the shooting, and just before, the defendant pointed the gun at the other Ward boy. Error is assigned upon this ruling, but we think it a part of the res gestee. It tended to show that there -was no malice.
Error was assigned upon the refusal of the court to give-defendant’s first, second, and fourth requests to charge. We think that they were covered by the charge.
Error is also assigned on the statement of the court that, “All that is necessary to constitute this offense is the fact that this young man pointed the gun at the other young man, and that he was shot and maimed.” , The brief does not point out where this language is to be found. We do not discover it in the charge, but we do find that the language was used in relation to an objection in the course of the, trial. We are satisfied that the jury could not have been misled by it, as the charge very fully covers the law applicable to the case.
The verdict is affirmed, and the circuit judge directed to proceed to sentence the defendant.
Moore, - Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). 1. The first objection to the validity of the tax is that the description of the land is void for indefiniteness. Counsel cite and rely in support of this contention upon Hubbard v. Winsor, 15 Mich. 146; Petit v. Railroad Co., 114 Mich. 362 (72 N. W. 238). In the former case the description was, “N. E. U” etc., “less lots sold.” In the latter case it was, “W. fractional -J-,” etc., “excepting and reserving the lands heretofore sold to E. Fitzgerald, Smith, Wright, Read, and others, and about one and a half acres in the northwest corner, and one and a half acres being in the Indian reserve, and also the Chicago & Grand Trunk Railway, being about 55 acres.” Those cases do not control this. In those cases it is manifest that no reference is made to any deed or other instrument for a description of the property reserved from the governmental description. There might have been a deed, there might have been a written contract for sale, or there might have been a parol contract. In this case the reference is made to a deed presumptively of record, and upon which, presumptively, the grantee in that deed has been assessed upon the same roll as was the land of the plaintiffs. It is not claimed that there was in fact any difficulty in determining the exact description of the assessed land by reference to the deed of Barrow.
2. The second point made is that the supervisors never in fact adopted the report of the committee on equalization, and that therefore- the equalization is void, under Auditor General v. Roberts, 83 Mich. 471 (47 N. W. 442), and cases there cited. We cannot adopt this view. After the vote to reconsider was carried, the motion was made “to amend the report, and that the several townships and cities be equalized as follows.” This motion included all the townships and cities, with the proper amounts opposite as equalized. A motion to amend this motion was made and defeated. Thereupon Supervisor Burton’s motion was carried. While the clerk recorded the motion as one to amend the report of the committee on equalization, it was evidently the motion made by Mr. Burton, which covered the entire subject of equalization, and was sufficient. The motion, as recorded, must control, and not the construction put upon it by the clerk in his minutes. In Auditor General v. Roberts this question was not involved.. There changes were made in several townships, and it did not appear “what the amounts of the valuation of each town and ward were, as made by the supervisors, nor how much in any case was added to or deducted from the valuation as returned by the supervisor.” What was there held fatal to the validity of the tax was in fact done in this case.
Judgment affirmed.
The other Justices concurred. | [
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Montgomery, J.
This is certiorari to review the action of the circuit judge in refusing a writ of mandamus. The relators and respondents comprise the board of trustees of the village of Grant, Newaygo county. The petition avers that on the 29th of April’ 1901, at a special meeting held by the board, there were present the president pro tem., Briggs, McKinley, Jackson, Colligan, and Hudson, comprising the two relators and the three respondents; that at this meeting the retail liquor bond of Ors Bisard was presented for approval; that the bond was approved by a majority vote, the respondents voting in the affirmative, and the relators in the negative; that the certificate of approval was duly indorsed, the bond returned, and filed with the county treasurer, the tax paid, and the receipt obtained; and that on May 1st said Ors Bisard entered upon the business of a retail liquor dealer. The petition sets out that, when the bond was presented for approval, a motion was made to delay proceedings until some investigation was made as to the property owned by the sureties, but that this motion was laid upon the table. The petition also avers the pecuniary irresponsibility of the sureties, and asks that the respondents be required to reconvene, and reconsider the vote by which the bond was approved. Other facts are set out in the petition, — as that one of the sureties is the real principal; but, as this fact was not made to appear to the board at the time the action was taken, we think it is obvious that it cannot be an important fact in this proceeding.
This is the first time an application has been made to set aside the action of a board approving a bond. The answer to the petition shows that the respondents acted in good faith in approving the bond. The most that can be claimed is that they erred in judgment, and that they did not give such investigation as to the property owned by the sureties as the relators conceive to be essential, and as, indeed, might have been wise. It would certainly be anomalous if the courts, in the absence of fraud on the part of municipal authorities, in a case where they have jurisdiction to determine a question of fact, and where it has been determined, and acted upon by third parties, should intervene to control their action, or set it aside, and compel new action to be taken. The law plainly commits to the common council of the village the authority to act upon such applications, to approve or refuse to approve a bond. When action has once been taken in good faith, it is not open to review by the courts. Bailey v. Van Buren Circuit Judge, 128 Mich. 627 (87 N. W. 890).
The order of the circuit judge is affirmed.
Hooker, C. J., and Moore, J., concurred. Long, J., did not sit. Grant, J., took no part in the decision. | [
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Montgomery, J.
This is an action for negligent injury, and the case may be described and the law laid down by the court understood best by an extract from the charge of the court, as follows:
“The case here is not one arising upon a street crossing, which has been a very fruitful source of litigation, but the situation is one where the decedent was riding upon his wheel in the public highway, close by the side of the defendant’s railway, and was overtaken and killed by a car coming from behind. It is sometimes said, very correctly, that, if one discovers another to have been negligent, he must take precautions accordingly, omitting which, he is liable to the other for the damages which follow from his own want of care, for, however related the separate negligences may be, the one cannot bar an action for the other, unless it be contributory; and, though an unseen position might contribute to an accident, a discovered one cannot.
“ The decedent, Mr. Bedell, was not a trespasser upon the street-car tracks, in any sense. The right of the street railway in the street is only to use it in common with the public. It has no exclusive right of travel, even upon its track, and it is bound to use the same care in preventing a collision as the driver of a wagon, or any person crossing or entering upon the railway. Street cars have precedence, necessarily, in the portion of the way designated for their use. This superior right must be exercised, however, with proper caution, and a due regard for the rights of others; and the fact that it has a prescribed route does not alter the duty of the defendant railway company to the public, who have the right to travel upon its track until they are overtaken by its cars. In this case there is no dispute but that the motorman saw the decedent, Mr. Bedell, for some time and for a considerable distance before he overtook and struck him with the car. It is undisputed that the motorman saw the decedent riding upon his wheel along a path in very close proximity to the track of the railway company. It is in dispute, however, whether the bell or gong was rung by the motorman. The motorman himself testifies that the decedent gave no indication that he heard the bell or gong of the rapidly approaching car until it was too late to escape disaster.
“Applying some of these principles to the facts in this case, I instruct you that if the decedent, Mr. Bedell, by reason of being upon his wheel, with his back to the approaching car, and apparently giving no indication of any knowledge of the warning given him by the motorman, was rhanifestly in a place of imminent danger when and as seen by the motorman, then it became the duty of the motorman to run his car with corresponding care, and in a manner reasonably safe under those circumstances, both as to speed and as to the control of his car; and if, under these circumstances and such duty, the motorman intentionally ran his car, or recklessly or wantonly allowed his car to run, at what he knew was a high and dangerous rate of speed, and in reckless disregard of safety and the consequences to the decedent, although with no thought or intention to injure any one, and if, by reason of such reckless and wanton conduct on the part of the motorman, the decedent, Mr. Bedell, was struck and killed, then I think that the railway company was to blame, and the defendant is liable in this action for whatever damages plaintiff received.
‘ ‘ If the decedent, Mr. Bedell, was not in a place of danger, as seen by the motorman, then the defendant would not be liable. If the car was not running at a high rate of speed, which the motorman knew, and a reasonable man ought to have known, to be dangerous and improper under the circumstances, then the defendant would not be liable. If the railway company, through its servants, was not wanton or reckless under the circumstances, it is not liable. Whether or not the railway company is liable, you are to determine from the evidence. In other words, you are to determine from the evidence whether or not the plaintiff has shown, by a fair preponderance of the evidence, that under the facts and circumstances known and apparent to the motorman, and in view of the situation as it appeared to him, this car was run at a high and dangerous rate of speed, with reckless and wanton disregard of consequences, and whether or not this accident was caused thereby. ' If these things have not been so shown, the defendant is not liable; if they have not been established, then the defendant is not liable.
“ If you find from the evidence that no bell or gong was rung or sounded, this would be an act of negligence on the part of the defendant company. If you should find from the evidence that the motorman was aware that the decedent, Mr. Bedell, was deaf, and knew that the person riding upon the wheel in front of the car was Mr. Bedell, this knowledge would impose upon the motorman the duty of greater care and caution in the movement and control and handling of his car.”
These instructions embodied the law as established by previous rulings of this court. See Montgomery v. Railway Co., 103 Mich. 60 (61 N. W. 543, 29 L. R. A. 287); Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and cases cited. The only question which can fairly be made upon this record is whether the facts justified the submis sion of the question to the jury in the form adopted by the circuit judge. It is contended by the defendant that the evidence shows that the decedent was signaled by his companions, and warned of the danger. This is doubtless true, but.it is also apparent that the decedent did not understand the signals given, and there was testimony from which the jury might have inferred that the motorman observed that these signals were not being understood or observed by decedent.
The defendant also contends that the case is one like Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), namely, an attempt to cross the track, unexpected and sudden. But the present case differs from that in this: That for a considerable distance the decedent, while pursuing his way on his bicycle, ahead of and in the same direction in which the electric car was going, was near enough to the track to be in a place of danger; and this within the observation of the motorman. There was testimony, therefore, bringing the case within the rule of the cases first above cited, and, as the only error relied upon is the refusal of the circuit judge to direct a verdict for the defendant, the judgment will be affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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Cooley, Ch. J:
On the face of the record it would seem that the decree in this case was entered prematurely. The date is only about two weeks from the time the cause was put at issue, and it does not appear that the cause was brought to a hearing by stipulation. Neither does the decree recite the appearance of defendant at the hearing, or any notice of hearing to him. Under these circumstances we must reverse the decree, and send the case back for further proceedings. We shall not, however, award any costs.
The other Justices concurred. | [
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