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Boyles, J.
Defendant appeals from a conviction and sentence on an information charging him in the first count with the crime of sodomy, and in a second count with having debauched the morals of a boy under the age of 15 years. Two errors are relied on for reversal: (1) That the court erred in denying defendant’s motion for a new trial based on a claimed repudiation by George Kusulin, the 14-year-old boy, of his testimony as the principal witness for the people; and (2) that the verdict of the jury finding the defendant guilty on both counts was faulty, erroneous and void.
A detailed recital of the repulsive testimony is not necessary to decision. George Kusulin, the 14-year-old boy who was the subject of the crime, is an epileptic, attending special school since the age of seven. lie was working for the defendant at defendant’s gasoline filling station, doing odd jobs, changing tire's, et cetera. His testimony before the jury, while inconsistent in many details, was sufficient to convince a jury of defendant’s guilt beyond a reasonable - doubt. It was corroborated to some extent by other witnesses—the clerk and another employee of the hotel where defendant had a room and where the offense is claimed to have been committed. The defendant testified in his own behalf and denied committing the offense. He admitted having been convicted and sentenced in New York for a felony, and having been sentenced to a term of 3% to 4 years in Michigan for larceny. At the time of the present trial he was serving a 90-day sentence in the county jail for another offense. Several witnesses for the defendant testified regarding certain inconsistencies in the people’s testimony. Credibility of witnesses was for the jury. The testimony is important only as it bears on the denial of defendant’s motion for a new trial.
After conviction and before-sentence the defendant moved for a new trial. The ground then urged which is now before us for consideration was that the 14-year-old boy had testified falsely and that he had subsequently repudiated his testimony. Neither the court’s opinion nor order denying the motion for new trial is in the printed record, although the motion obviously was denied as tbe court later imposed sentence and mittimus was issued. However, we take judicial notice of the files of this court on defendant’s application for leave to appeal and his showing in support thereof, on which showing leave to appeal was granted. The proceedings on the motion, omitted from the printed record, are in the files of this court.
Affidavits in support of the motion for new trial were filed, showing that George Kusulin, the 14-year-old boy, had signed an unsworn written statement before witnesses that he had testified falsely. His counsel stated he would ask the court to direct police officers to produce this boy before the court. In defendant’s statement of facts filed in this court with his application for leave to appeal, signed by defendant’s, present counsel and certified to this court by the trial judge, it appears that the 14-year-old boy was called and did testify before the court on the hearing on defendant’s motion for new trial. Such procedure was approved by this court in People v. Keller, 227 Mich. 520, where a motion for new trial was granted in this court after the complaining witness had recanted her former testimony. There the court said:
“We think it unfortunate that the court did not require Leah to be produced as a witness on the hearing of this motion. The unreliability of affidavits as evidence has long been recognized. Had Leah been brought before the court and examined, the judge would have been enabled to form an opinion of the weight which should be given to her conflicting sworn statements, which we would be loath to disturb.”
From defendant’s statement of facts, certified by the trial judge, we quote what occurred in court on defendant’s motion for a new trial:
“At the hearing on the motion for new trial, George Kusulin testified that after defendant’s convictions, his brother, Dave, a taxi driver, picked up George Kusulin on the street at 10 p.m. on Saturday, February 20th, threatened him for having framed his brother, saying he could kill him and then promised him that he would pay the family rent and that nobody in the family would have to work if George would go to defendant’s attorney and tell him that the charge against defendant and a similar charge against one Rubin, were false and had been framed by the Canfield police. Dave did not permit the boy to go home, but kept him with him until the following Tuesday morning, during which time Dave wrote up an alleged confession, showing that the story was a frame-up and had the boy sign it in the presence of some taxi drivers and a passenger. During the same time, the boy was taken to the office of defendant’s attorney to tell his story, but made no written statement. When he returned home on Tuesday, February 23d, his mother had already called the juvenile officers, reporting his absence. Since he was on probation, the officers took him back to juvenile court where he told them what had happened and repeated that his original story was true. Defendant filed a motion for a new trial after conviction, alleging the testimony of George Kusulin ivas false and attaching a copy of the alleged confession. At the hearing of the motion, George was sworn as a witness, and admitted that he had made these statements to defendant’s attorney, but stated that they were not true and that he had only told this and answered the questions because Dave had told him to. He related that Dave kept him with him in the caji all night during the two nights he was away from home, and that when he was not in the cab, he Avas kept in Dave’s home on Blaine avenue, sleeping on the floor. George’s mother was also sworn, and testified as to his absence and that she had informed the juvenile authorities. Defense counsel asked time to file additional affidavits in support of the motion. The motion for a new trial was denied after an adjournment.”
The granting or denying of a motion for a new trial rests in the sound discretion of the court. We find no abuse of discretion of the trial court in denying defendant’s motion. People v. Van Den Dreissche, 233 Mich. 38; People v. Sanford, 252 Mich. 240.
The first count in the information charged defendant with having committed the abominable and detestable crime against nature with George Kusulin (sodomy). The punishment for this crime is imprisonment in the State prison for not more than 15 years. Act No. 328, § 158, Pub. Acts 1931 (Michigan penal code) (Comp. Laws Supp. 1940, § 17115-158, Stat. Ann. § 28.355). The second count charged defendant with having debauched and depraved the morals of George Kusulin, a boy under 15 years of age, by enticing and soliciting him to commit the abominable and detestable crime against nature. The punishment for this crime is imprisonment in the State prison not more than five years. Act No. 328, § 340, Pub. Acts 1931 (Michigan penal code) (Comp. Laws Supp. 1940, §17115-340, Stat. Ann. §28.572). The jury returned a verdict of guilty of both offenses. The court sentenced defendant to State prison for 10 to 15 years on the first count, and to State prison for 4 to 5 years on the second count, both sentences to begin on the same date and run concurrently. In effect, this was a sentence of 10 to 15 years on the first count. The two counts did not charge inconsistent offenses. Both arose out of the same transaction, both were provable by the same testimony, only one time, place and subject being involved. Defendant relies on In re Henry Franklin, 77 Mich. 615; People v. Allen, 252 Mich. 553; and People v. Powers, 272 Mich. 303, wherein this court set aside general verdicts of guilty on different counts, one charging larceny and the other receiving stolen property. Inasmuch as one cannot he convicted of being a thief and at the same time for receiving, the same stolen goods, the two different statutes were held to set up separate and distinct offenses. Such is not the case now before us.
“Where there are two counts charging, different grades of the same offense, under a conviction or plea of guilty, it has been the general practice in England and in this country to pass judgment according to the count charging the highest grade of the offense.” People v. Morris, 80 Mich. 634, 636 (8 L. R. A. 685).
“It would seem that, even assuming there is some merit to defendant’s contentions, he was not injured by the alleged error in joinder, inasmuch as a verdict of guilty was returned on all three counts and identical sentences imposed for each count, to run concurrently.” People v. Kolowich, 262 Mich. 137, 148.
“With regard to the claimed error in sentencing defendant on two counts, based upon the same act, we find no error. Although she was sentenced on each count, the sentences were for the same period of imprisonment and were to run concurrently. It is held that when a defendant is convicted on several indictments tried at the same time and is sentenced on each to run concurrently, the judgment will not be reversed because, the evidence was insufficient to support one indictment, since the sentence is, in fact, but a single sentence and is supported by the conviction on the other indictments.” People v. Podsiad, 295 Mich. 541
Nor does the fact that defendant was convicted and sentenced on both counts result in conviction for two felonies such as to subject the defendant to additional' punishment under the habitual criminal act. People v. Podsiad, supra, p. 546. The defendant was not harmed by the sentence under the second count, to run concurrently with the sentence 10 to 15 years under the first count.
Affirmed
North, C. J., and Stakr, Wiest, Butzel, Bushnell, Sharpe, and Reíd-, JJ., concurred.
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Reid, J.
(dissenting in part). The bill of complaint in this case was filed by owners of two house trailers situated on different lots to enjoin the city of Battle Creek from ousting them from their trailer coaches pursuant to a city ordinance. The trial judge held the ordinance constitutional and dismissed the bill. Plaintiffs appeal.
No objection is raised to the joinder of two separate owners in this suit.
Aaron J ones and his wife live in their separately-owned trailer coach which they had placed on a lot belonging to Merle Puff, for the use of which lot they pay him rent. Puff occupies a residence situated on the same lot. Plaintiff Claude Loose owns the lot on which his one-room trailer coach is situated. He lives in it most of. the year and is lessor of an occupied1 residence on the same lot. In each case the occupants of the trailer coaches have use of the toilet facilities in the respective residences and have water and electrical current supplied.
In paragraphs 5 and 6 of the bill, both admitted by the defendant, plaintiffs claim that “they resided in said trailers; and that it is the only dwelling they have in the city of Battle Creek; that there is no other place at the present time they can occupy * * * that to comply with * * * said ordinance would * * * compel them to move out of the city of Battle Creek. ’ ’ Plaintiff Loose has used his trailer coach at the samé place more than five years and has not moved it nor changed its location in the last two years. Plaintiff Jones established the use of his trailer at the present location in August, 1941, and in July, 1942, he traded trailers and substituted a slightly larger trailer at the same location and with the same connections.
Plaintiffs claim that the entire ordinance is unconstitutional and. in conflict with Act No. 143, Pub. Acts 1939, as amended by Act No. 255, Pub. Acts 1941 (Comp. Laws Supp. 1940, 1943, § 1098-21 et seq., Stat. Ann. 1943 Cum. Supp. § 5.278 [1] et seq.). The most serious objection urged by plaintiffs is to the portion of the ordinance which limits the occupancy of a trailer coach for residential purposes to a period of six weeks in any one year. They compare that section with the' statute which permits trailer coaches in trailer parks to be occupied the year round. The ordinance forbids a single trailer coach being occupied for more than six weeks in the year, though it be so used and occupied as not to violate sanitary regulations or offend public morals.
The pertinent sections of the ordinance, adopted1 June 15, 1942, are as follows:
“Seo. 2. Prohibited parking and use.
“ (a) No person shall park or cause to be parked any trailer coach over night on any street, alley, highway, or other public place.
“ (b) No trailer coach shall at any time beparked between the established set back line and the curb line on any lot.
“(c) No trailer coach shall be used or occupied unless there is a clear unoccupied space of at least ten feet on all sides thereof.
“ (d) No person shall park or permit the parking of any occupied trailer coach or use or occupy or permit the use or occupancy of any trailer coach on any site,, lot, field, or'tract of land not specifically licensed as a trailer coach park, except only as provided1 in this ordinance.
“Sec. 3. Parking on dwelling premises.
“Not more than one trailer coach may be parked,used and occupied on the premises of any dwelling as hereinafter limited, provided the occupants of the trailer coach have free access to and the unlimited use of the sanitary facilities of the dwelling of said premises and the operator of such trailer coach secures a permit as provided in this ordinance.
“Sec. 4. Permits.
“Application for a permit to park, use and1 occupy a trailer coach on the premises of a dwelling shall be made to the health officer of the city and shall state the address of the dwelling, the name of the owner or occupant in control thereof, the name and address of the owner or operator and license number of such trailer coach. The consent in writing of the owner or of the occupant in control of the dwelling premises to such parking, use and occupancy and to the use of the sanitary facilities as herein provided shall accompany the application or be indorsed thereon. Upon the filing of such application, the health officer shall cause an inspection to be made of such dwelling premises and trailer coach and if he finds that adequate facilities are afforded om the premises for the disposal of waste and excreta and it appears that the parking, use and occupancy of such trailer coach complies with the statutes of the State of Michigan and ordinances of the city, he shall approve such application. Upon the filing thereof with the city clerk and payment of a fee of $2 the clerk shall issue a permit, which permit shall limit the time of such parking, use or occupancy to a period not longer than six weeks from the date of the application therefor. Not more than one permit shall be issued for any one trailer coach or to any one trailer coach operator or occupant in any one 12-months’ period. Every permit shall be displayed in or on the trailer coach for which it is issued on the side nearest to a public street in such manner as to be readily noticeable at all times.
“Sec. 5. Waste water.
“No person shall spill or drain any waste water or liquid waste of any kind upon the ground or upon any paved areas.
“Sec. 6. Removal of wheels or tires—Occupancy limit.
“No person shall remove or cause to be removed the wheels or tires from any trailer coach except for the purpose of repair, nor shall any person elevate, block or stabilize any trailer coach other than with jacks designed, provided and intended for that purpose. No parked trailer coach shall be occupied' for sleeping purposes by a greater number of persons than said vehicle is designed and arranged to accommodate.
“Sec. 7. Inspection.
‘ ‘ The health officer or his authorized representative or any member of the police department of the city shall have the authority to -enter and inspect at any reasonable time any premises upon which a trailer coach is parked, uséd or occupied for the purpose of ascertaining that the owner, operator or occupant thereof is complying with all statutes, ordinances and rules and regulations governing the same.
“Sec. 8. Penalty.
“Any person violating any of the provisions of the ordinance shall on conviction thereof be punished by a fine not exceeding $100 or by imprisonment in the Calhoun county jail for a term not exceeding 90 days or by both such fine and imprisonment in the discretion of the court.
‘ ‘ Each and every day during which a violation of this ordinance is permitted to continue shall be deemed a separate, distinct and independent offense.
“Sec. 9. Effect of ordinance.
1 ‘ The conditions of this ordinance are declared to be severable, and if any clause, sentence, paragraph, section or subscription [subsection?] is declared void or inoperative for any reason by a court of competent jurisdiction, it shall not affect any other part or portion thereof.”
Plaintiffs cite the decision of this Court in the case of Richards v. City of Pontiac, 305 Mich. 666, in which case the 90-day clause in the ordinance conflicted with the State trailer coach park act above referred to. This Court upheld the statute and declared the ordinance void, reciting the conflict of the ordinance with the statute.
Defendant cites Cady v. City of Detroit, 289 Mich. 499. The ordinance in that case was sustained though it prohibited the use of a trailer coach park for more than 90 days. Defendant further claims that as the trailer coach park act did not mention what should or should not be done with one or two trailer coaches on any one lot, by any specific direction, that such use of one or two trailer coaches was a subject matter left open entirely to the discretion of the local municipal authorities. This Court in the Richards Case, supra, comments on the adoption of the trailer coach park act since the decision in the Cady Case, supra. Since the Cady Case this Court has decided in the Richards Case (p. 675) that the operation of a trailer coach park is not a nuisance per se, by which latter decision the rule as to things not evil per se (National Amusement Co. v. Johnson, 270 Mich. 613) must necessarily be considered. As a matter of common sense, if the use of several trailers in a trailer coach park is not a nuisance per se, then neither is the use of one trailer on a lot a nuisance per se. The necessity for use of trailer coaches has been enhanced since the decision in the Cady Case, supra, and before adoption of the ordinance in question, by the war situation and consequent greater need for portable habitations.
The law of this State as to trailer coaches has been changed by statute and subsequent decision of this Court since the Cady Case. That decision should not now be considered as authority to sustain validity of the ordinance in question.
At the hearing there was a written stipulation between the plaintiffs and defendant as follows:
“Plaintiff, Claude Loose, owns and occupies a' trailer on property which he owns and he has the unlimited use of the water, toilet, and other sanitary facilities of a dwelling located on the premises. Plaintiff, Aaron Jones, owns and occupied a trailer on land which he rents from Merle and Margaret Puff and he has the unlimited use of the water, toilet, and other sanitary facilities of the Puff dwelling on the lot adjacent to the premises rented. Neither trailer in itself conforms to. the requirements of the State housing law, Act No. 167, Pub. Acts 1917,. as amended (1 Comp. Laws 1929, § 2487 et seq. [see Comp. Laws Supp. 1940, 1943, § 2487 et seq., Stat. Ann. and Stat. Ann. 1942 Cum. Supp. §5.2771 et seq.]), and neither has applied for nor received an occupancy permit under said1 act or under the zoning ordinance of the city. Neither trailer is directly connected to the sewer or with city water, both of which are in the street in front of the property, but both dwellings providing the sanitary facilities for the trailer occupants are connected with running water and with the sewer.
“The defendant admits that both trailers are better equipped, better suited and more desirable as living quarters than the average trailer and the defendant further does not deny that'the occupants have to the best of their ability kept the trailers and the premises on which they are located clean and that no complaints have been made to the effect that the trailers or premises were not at all times kept in a neat and tidy condition. ’ ’
Trailers are recognized as not being subject to the housing act. The trailer park act recited the need for the use of trailer coaches, saying, “The trailer coach had become a necessity.” (Section 18 of the act as added by Act No. 255, Pub. Acts 1941.) It is not within the power of a city to forbid the use of that which has been determined by statute to be a necessity. The court is not driven to a doubtful determination of the existence of this necessity in considering the validity of the ordinance in question and may take judicial notice of the necessity as a matter of common experience without the recital of the statute. But as long as the trailer coach act remains' a statute the courts must take notice of the necessity for the use of trailer coaches as habitations.
The trailer park act regulates the use of three or more trailer coaches on one tract of land for residential purposes so as to prevent danger to the public health because of insanitary conditions. A trailer park occupied by three or more trailer coaches is likely to be more objectionable than the well-regulated use of a single house trailer. It will readily be observed that the legislature did not consider one or two trailer coaches on a lot as constituting a menace that needed regulation by the State;otherwise no doubt the regulation would have been provided. This does not leave open the subject of forbidding the use of one or two trailer coaches on a lot for 46 weeks of the year to any municipality.
The statute is law in the city of Battle Creek and the ordinance, if permitted to be given the full scope and effect the city contends for, would be inconsistent with the quoted recital of the statute as to necessity for the trailer coach. Under these circumstances the statute will be given its full force and effect and1 so far as the ordinance is contrary thereto it is invalid.
Plaintiffs also appropriately cite National Amusement Co. v. Johnson, supra, p. 616:
“It is the rule that, in the absence of specific statutory or charter power in the municipality, the provisions of an ordinance which contravene a, State law are void. People v. McGraw, 184 Mich. 233; 43 C. J. p. 215. What the legislature permits, the city cannot suppress, without express authority therefor. State v. Brittain, 89 N. C. 574. * * * Where an amusement, which has been lawful and unregulated, is not evil per se but may be conducted in a good or bad manner, is the subject of legislation, regulatory, not prohibitory, it would seem clear that the legislature intended to permit continuance of the amusement, subject to statutory conditions. The statute makes it unlawful to conduct a walkathon only in violation of certain conditions. This is merely a common legislative manner, of saying that it is lawful to conduct it if the regulations are observed. Schneiderman v. Sesanstein, 121 Ohio St. 80 (167 N. E. 158, 64 A. L. R. 981). Assuming the city may add to the conditions, nevertheless the ordinance attempts to prohibit what the statute permits. Both statute and ordinance cannot stand1. Therefore, the ordinance is void.”
Section 2, excepting subsection (d), of the ordinance in question is upheld. Such regulations are proper in the city’s discretion for adoption and enforcement. Section 3 and the following portion of section 4, “which permit shall limit the time of such parking, use or occupancy to a period not longer than six weeks from the date of the application therefor. Not more than one permit shall be issued for any one trailer coach or to any one trailer coach operator or occupant in any one 12-months’ period,” for the foregoing reasons are held invalid1. Section 6 is obviously intended to cause temporary use only and is similarly invalid.
The ordinance in question does not point out the more objectionable features of the use of a trailer coach as a habitation which the city would desire to obviate. Defendant in its brief claims that the ordinance in its judgment will subserve the purposes of public morals, health and welfare and very appropriately says, “The commission of the city of Battle Creek is presumed to have, a greater knowledge of local problems and local affairs.” There fore as far as consistent with statute and common experience the city’s ordinances should be sustained.
There may be many valid regulations not forbidding the habitation that could be thought of as being in the minds of the city commission, but the ordinance in question applies to trailer coaches lawfully placed in the situation where they now are, still lawful under the recital of the statute cited, and then forbids them to be occupied for 46 weeks of the year. This is such a broad and sweeping destruction of the rights of the plaintiffs that such portions of the ordinance are invalid.
The city has a right reasonably to regulate the use of one or two trailer coaches on any lot or tract but not to prohibit their use and any regulation aimed at prohibiting would be invalid.
Section 3 is obscure. It may be construed as expressing the intent to forbid the parking, use, or occupancy of more than one trailer coach on any site, lot, field or tract of land except on the premises of a dwelling, and then only if occupants of the trailer coach have free access and unlimited use of the sanitary facilities of the dwelling, and obtain a permit.
The ordinance is invalid wherein by necessary inference it forbids parking on a vacant site, lot or tract by either one or two trailer coaches and by more than one trailer coach on the premises of a dwelling. The provisions concerning a permit are not severable from the invalid portions of the ordinance.
Sections 2(d), 3, 4, 6 and 7 are invalid. The city will be enjoined by the decree of this Court from enforcing the same, the decree appealed from being to that extent reversed. The provisions of section 2(a), (b), and (c) are severable and are within the proper exercise of the police powers of the city to enact and to enforce. As to section 2(a), see Constitution (1908), art. 8, §28. The decree appealed from is to that extent affirmed. No costs are awarded, this being a matter of public interest.
Sharpe, J. The ordinance in question does not contravene the general law of the State regulating trailer parks. The State law regulating trailer parks defines a trailer park as any site upon which three or more occupied trailer coaches are parked. Act No. 143, § 2, Pub. Acts 1939, as amended by Act No. 255, Pub. Acts 1941 (Comp. Laws Supp. 1943, §1098-22, Stat. Ann. 1943 Cum. Supp. § 5.278 [2]). The State has not enacted legislation governing “trailer parks” where less than three traile'r coaches are parked. The Battle Creek ordinance does not purport to regulate parks as such, but applies to the parking of trailers in numbers less than three. An examination of the ordinance justifies this conclusion. Section 2 of the ordinance prohibits the parking or use of a trailer anywhere within the city “not specifically licensed as a trailer coach park, except only as provided in this' ordinance. ’ ’
Section 3 of the ordinance reads as follows:
“Parking on dwelling premises.
“Not more than one trailer coach may be parked, used and occupied on the premises of any dwelling as hereinafter limited, provided the occupants of the trailer coach have free access to and the unlimited use of the sanitary facilities of the dwelling of said premises and the operator of such trailer coach secures a permit as provided in this ordinance.”
The above section of the ordinance speaks in terms of parking one trailer coach and provides that the operator secure a permit as distinguished from a license referred to in the State law. Moreover, the ordinance provides that “not more than one trailer coach may be parked, used and occupied on the premises of any dwelling.”
In Bowerman v. Sheehan, 242 Mich. 95 (61 A. L. R. 859), the following rule is stated:
«11 rppg ru¡e ps settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. ’ ’ ’
In my opinion' the ordinance occupies only the field left unoccupied by the State trailer coach park act and cannot be held invalid- because of conflict with that act. The rule that what the legislature permits, the city cannot suppress, as stated in National Amusement Co. v. Johnson, 270 Mich. 613, has no application to the facts in the instant case as the city has not entered into a field already occupied by the State trailer act. •
Nor is there any conflict between the ordinance and the State housing law, Act No. 167, Pub. Acts 1917, being 1 Comp. Laws 1929, § 2487 et seq., as last amended by Act No. 303, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 2487 et seq., Stat. Ann. and Stat. Ann. 1940 Cum. Supp. § 5.2771 et seq.). The housing-law includes trailers within the definition of a dwelling (Comp. Laws Supp. 1940, § 2488 [1], Stat. Ann. 1943 Cum. Supp. § 5.2772 [1]), but excepts them from operation of the housing law under certain circumstances. This exception shows that the State is not attempting to occupy the whole field of regulating the use of trailers as dwelling’s under all circumstances. This section reads in part as follows:
“A house trailer or other vehicle, when occupied or used as a dwelling, shall be subject to all the provisions of this act, except that house trailers or other vehicles, duly licensed as vehicles, may he occupied or used as a dwelling for reasonable periods or lengths of time, without being otherwise subject to the provisions of this act for dwellings, when located in a park or place designated1 or licensed for the purpose by the corporate community within which they are located: Provided, That such parking sites are equipped with adequate safety and sanitary facilities.”
The ordinance in question covers the same subject matter as the State housing law which specifically makes an exception of trailers “when located in a park or place designated or licensed for the purpose by the corporate community within which they are located,” leaving a municipality the .right to exercise reasonable control over the use and occupancy of trailers by licensing or designating the places for parking.
Plaintiffs urge that because section 4 of the ordinance permits the use of a trailer coach on dwelling-premises for not more than six weeks during each 12 months, the ordinance is unreasonable and discriminatory. In view of the fact that the ordinance applies to all citizens, it cannot be held to be discriminatory. The six-weeks ’ use of a trailer coach as defined in the ordinance does not prevent the parking of trailer coaches on dwelling premises when not used1 for residence purposes. The length of time that a trailer coach may be used as á dwelling is a matter for the local law-making- body to determine. I am not prepared to say that the limitation of time so determined is an unreasonable exercise of the police power. In my opinion the ordinance is a reasonable exercise of the police power in the promotion of health, morals, safety and1 general welfare.
The decree of the trial court is affirmed, but without costs as a public question is involved.
North, C. J., and Stake, Butzel, and Bushnell, JJ., concurred with Shabpb, J. | [
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] |
Reid, J.
Plaintiffs sue for unauthorized mining, removal and sale of 52,000 tons of iron ore from a 60-acre tract in Iron county known as the Minckler mine, in which plaintiffs have an undivided 1/24 interest.
On January 15, 1913, Minckler, the owner of the tract, made a lease to Woodworth for a term of 50 years, with unconditional right of termination -on 60-days’ notice. The tract had not then been mined. Plaintiffs acquired their interest December 4, 1936, expressly subject to the lease.
Defendant acquired all of the lessee interest besides 1/6 of the fee, and thereafter made an agreement with all the other owners of interests in the title, except plaintiff's, extending the term to January, 1987, increasing the minimum royalty, doing away with weighing by the railroad company and providing for mixingthe ore before weighing.
The original lease, among other things, provided:
“The iron ore removed from said lands shall be weighed by the railroad company transporting the same from said lands, which weights shall prima facie determine the quantity as between the parties hereto. Said party of the second part also agrees to furnish or cause to be furnished said Paul N. Minck ler on or before tbe 20th day of each calendar month, statements showing * * * weights.”
Lessor had a right to test and correct statement of weights.
Besides the unconditional termination clause hereinbefore referred to, the lease provided:
“It is further provided and the present lease is granted upon the express condition that if the said party of the second part shall fail to perform or observe any covenants, conditions or provisions of this lease on his part to be observed or performed and such nonobservance or nonperformance shall continue for the period of 60 days after written notice, specifying the particular default complained of, shall have been served upon the said party of the second part, then it shall be lawful, immediately thereafter and while 'such default continues, and without further or other notice, or demand, for the parties of the first part or those then having their estate in the premises, to enter into and upon said premises or any part thereof in the name of the whole, and repossess the same as of their first and former estates therein, and the second party, his personal representatives or assigns, wholly to exclude therefrom.”
Plaintiffs served written notice on defendant January 31j 1941, claiming a violation of the covenants, conditions and provisions of the lease by removing ore underground from the premises without weighing by the railroad company and mixing with other ores contrary to the lease, improperly disposing of lean ore, and reciting: .■
“If said defaults or any of them continue for a period of 60 days after service of this notice, the undersigned will declare said lease and agreement terminated and will immediately reenter upon said interest in said lands and repossess the same.”
Defendant claims this is a conditional notice and not an absolute forfeiture of the lease unless a sub sequent notice or assertion of forfeiture were made, citing Maday v. Roth, 160 Mich. 289 (136 Am. St. Rep. 441), and Hupp Farm Corp. v. Neef, 294 Mich. 160.
Defendant continued the method of weighing complained of from the service of notice to date of trial. No other or further notice is necessary under the express terms of the lease. The notice served conformed with the forfeiture clause. Plaintiff refused and, on April 20, 1941, returned the check for minimum royalty for the ensuing period. Defendant further claims that the method of weighing the ore was merely optional with the lessee and further, that the matter complained of did not constitute a violation of any express covenant in the lease, and correctly asserts that no forfeiture could be maintained on violation of an implied covenant, citing DeGrasse v. Verona Mining Co., 185 Mich. 514, 537. However, in the instant case the lease itself expressly provided forfeiture not only for violation of a covenant but of any condition or provision of the lease. The method of weighing by a disinterested party expressly set forth in the lease was a valuable right to the lessor not to be ignored at the convenience or caprice of the lessee. Without this method, plaintiffs would need to employ an agent to check weights in order to obtain a disinterested statement of weights. Plaintiffs had a right to terminate the lease for this violation. The termination was effective April 1, 1941. Plaintiffs and defendant on that date became tenants in common.
In order to escape liability to plaintiffs for their proportionate share of the value of ore mined and sold by them, defendant ignores its denial of co-tenancy, and in effect claims that as long as 1/24 of the total ore not removed or not mined at all on April 1,1941, is still left, it is not liable to plaintiffs, and cites Fiquet v. Allison, 12 Mich. 328, 331 (86 Am. Dec. 54), as to sale of proportionate share of wheat which has been harvested and amount and quality precisely determined. The distinction lies in the fact that iron ore in its natural situation is not capable of precise determination as to either quality or amount. Lean ore unsalable in one period may later be in demand. The tenant in common who takes possession is not vested with any superior right to choose what ore is to him most convenient to mine, select what is more profitable and remove and sell without accounting. Hennes v. Charles Hebard & Sons, 169 Mich. 670, 675; Cecil v. Clark, 47 W. Va. 402 (35 S. E. 11, 81 Am. St. Rep. 802).
■Defendant cites Ward v. Carp River Iron Co., 47 Mich. 65, which was trover brought by assignee of creditor of a mining company, which creditor had obtained a judgment, levy and sale of the mine but the time for redemption had not expired when suit was brought alleging that defendant bought wrongfully converted ore taken from'the’mine. In his opinion in that case Mr. Justice Cooley says, at page 69:
“The debtor’s rights are certainly not less than those of a tenant for years in any particular. He may not open new mines, but the old mines he may continue to work in the customary and reasonable way * * # He (plaintiff) has not therefore brought his case within the statute.” (Italics supplied.)
That case did not involve rights of tenants in common. The questions were raised on demurrer and there was no claim in the declaration that the interest of plaintiff suffered by the mining done. The action was brought under a statute and the allegations failed to bring the case within the statute. See, also, Silver King Coalition Mines Com- pony of Nevada v. Silver King Consolidated Mining Company of Utah, 122 C. C. A. 402 (204 Fed. 166, Ann. Cas. 1918 B, 571).
Defendant is liable in this action to plaintiff for 1/24 of tbe. value of the ore taken without agreement.
Defendant denies plaintiffs’ claim that the basis for allowance is 1/24 of the gross sum received for the ore without deducting the cost of mining. Defendant as a tenant in common was entitled to mine the ore and to deduct the cost though such cost might not be deductible to a mere wilful trespasser without any right or claim of title. Grant v. Fletcher, 283 Fed. 243.
A further contention was that one tenant in- common cannot forfeit a lease. Suffice it to say that after all the other interested parties signed the amended lease, the plaintiffs, who therefore are the sole remaining lessors under the original lease, need no one’s consent to terminate it for lessee’s default.
The parties agreed that the total amount of ore mined from April 1, 1941-, to commencement of suit was 63,166 tons. The value of the ore was $2.67 per ton, cost of mining $1.67 per ton, and value of plaintiffs’ interest $.041 2/3 per ton. Cbn this basis plaintiffs are entitled to a judgment for damages in the amount of $2,631.91, with interest at 5 per cent, per annum computed from the date defendant received payment for plaintiffs’ share of the ore to the date of entering a judgment. The circuit judge, who heard this case without a jury, entered judgment in favor of the defendant with costs to be taxed. That judgment is vacated and the case remanded to the circuit court with direction to enter judgment in favor of plaintiffs in accord with our determination herein. Plaintiff will have costs of both courts.
North, C. J., and Starr, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred with Reid, J. .Wiest, J., concurred in the result. ■ | [
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] |
Sharpe, J.
Defendant, one of the county auditors of Wayne county, was arrested, charged and convicted of the crime of accepting a bribe, contrary to the provisions of section 118 óf the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-118, Stat. Ann. § 28.313). The information charged defendant with receiving money from Edgar M. Robbins in pursuance of an unlawful agreement and1 understanding that his vote, opinion, judgment or influence would favor the awarding of contracts of insurance to the said Edgar M. Robbins. The cause was set for trial for September 16, 1942, but a mistrial was declared on September 21, 1942, by reason of the following article appearing in the Detroit Free Press, a newspaper published in the city of Detroit :
“GOOD MONEY AFTER BAD'
“Ray D. Schneider, ousted Wayne county auditor charged with accepting bribes, has been brought to trial. A great deal of public money has been spent to establish that evidence against him warrants presentation of the case to the jury. A further substantial sum must go out of the tax-supported coffers to determine his guilt or innocence.
“Nor is there ground to hope that should the present jury convict Schneider it would terminate this outlay. If he chooses, the ex-auditor can protract the processes of justice indefinitely—as witness former Prosecutor Duncan C. McCrea, and former Sheriff Thomas C. Wilcox. Long since convicted of betraying the public’s trust, they still are free men by reason of appeal processes.
“Other Wayne county officials and appointees— among them another former auditor, Edward H. Williams—accepted jury findings without taking recourse to further court fights and are now in prison. Having cheated Wayne county’s taxpayers out of scores of thousands of dollars by their malfeasances, having put the State and county to the cost of trying them, they are now being supported by the State as inmates of institutions.
“Altogether, Michigan’s taxpayers have taken a thorough financial drubbing from corrupt officials in this county. With the opportunities for pilfering Wayne’s present governmental form offers, it is inevitable that sooner or later another gang of rogues will take it over. Then the whole costly, shameful process will have to be gone through again—with every taxpayer in Michigan as the ultimate sucker.”
On October 4, 1942, a day before the trial of defendant was to commence, the Detroit News, a newspaper published in the city of Detroit, published the following editorial:
“MICHIGAN VOTERS ARE ASKED TO HELP WAYNE’S PROGRAM' • •
“Once again we appeal to all decent, law-respecting out-State voters for their support of Proposal No. 2, the amendment to give Wayne county a chance to reform its government.
“Voters like you often have been disgusted by political goings-on in Wayne.
“Rest assured you have not been alone in that feeling, which is shared here in Wayne county by good citizens like yourselves. Long ago the decent citizens of Wayne recognized1 the need for reform, as well as the kind of reform needed. Two attempts have been made to get a more responsible form of government, both wrecked by political shysters aided, as it developed, by your indifference out-State.
“With the present attempt, we in Wayne county feel it is now or never. The Judge Ferguson grand jury just has finished turning up evidence of county graft that is a stench in the nostrils of all Michigan. Two auditors, a sheriff and a prosecutor have been convicted, as well as a number of lesser officials and former officials.
“We in Wayne county feel that if this will not arouse the out-State voter to come to our assistance, nothing will. Here is the clinching evidence that our big industrial county, with its more than 2,000,000 population, simply can not have proper government with the present governmental forms.
“Maybe the present form gives reasonable satisfaction in YOUR county. It doesn’t here. Here it means a board of supervisors bigger than most State legislatures. It means a dozen ‘executives’ to be voted on, whom not one voter in a thousand can name, let alone keep track of. Here in Wayne this is a set-up for corrupt machine government, and that is what we get.
“The amendment we ask you to support as proposal No. 2 provides for a simplified government, with only one county executive and a small legislative body. It calls for nonpartisan voting and the hiring of county employees under civil service restrictions. It provides, in short, for the kind of government Wayne can hope to hold responsible. * * *
“People are,going to tell you, perhaps in the last days of the campaign, that this is all right but why not leave it to the legislature. We’ve tried that and failed, because machine politicians were strong enough to sabotage the legislation. People are going to tell you that, even if an amendment is necessary, voting on it is Wayne’s problem, not yours.
“Ask those people why, then, they are so eager to beat Wayne’s amendment!
“The truth is, this is your problem. Only your votes, plus ours, can put the amendment over, against the combined opposition of the machine out-State ánd the county machine here. It is your problem because Wayne is a part of Michigan and what dirties Wayne politics dirties politics the State over.
“The decent citizens of Wayne county are counting on you in this, their greatest and final effort to clean up Wayne county. Will you help?”
On October 5, 1942, counsel for defendant moved for an adjournment because of the proximity of the date of the trial to the date of the Detroit Free Press article and the Detroit News editorial. At the request of the trial court all members of the jury were questioned in their voir dire examination with regard to the above articles, and all denied any prejudice as a result of reading or hearing about the articles. The motion for adjournment was denied and1 the cause proceeded to trial, resulting in conviction of defendant. Defendant appeals and complains that he was not accorded a fair trial by reason of the trial having taken place so soon after the publication of the above articles; that it was error to offer and receive in evidence certain exhibits which were expense accounts of defendant as a candidate for county auditor; and for failure to give an instruction, later referred to.'
It is to be noted that before a jury was selected the trial judge made the following statement:
^The court will not proceed with the trial if we cannot find a jury of twelve people who are fair and impartial, but first I want to find out whether we can or whether we can’t.”
The record shows that there was no challenge to the array, no motion for change of venue, nor did defendant’s counsel exhaust his peremptory challenges.
The general rule in Michigan is that a change of venue, a mistrial or a new trial will be granted when a community is so aroused that a fair and impartial trial cannot be had. ■
In People v. Swift, 172 Mich. 473, we quoted with approval from 24 Cyc. p. 298, where the rule is announced :
“Newspaper reports are ordinarily regarded as too unreliable to influence a fair-minded man when called upon to pass upon the merits of a case in the light of. evidencie given under oath; and it is how a well-settled rule that a juror, although he may have formed an opinion from reading such reports, is competent if he states that he is without prejudice and can try the case impartially according to the evidence, and the court is satisfied that he will do so.”
In People v. Raider, 256 Mich. 131, counsel had requested a continuance after the three leading newspapers of the city of Detroit had carried articles of the 'arrest of some of the witnesses charged with perjury and had mentioned that defendant was to have an early trial. We there said:
“Continuance was within the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. Prejudice to defendant must be apparent or proved to have been at least probable.”
In the ease at bar, defendant’s counsel paving announced that he was satisfied with the jurors selected, after the jurors had been questioned concerning their fitness to sit as jurors in this particular case, we find no abuse of discretion on the part of the trial court in denying the motion for a continuance.
It is also urged that the admission of exhibits 20, 21 and 22 was reversible error. The exhibits referred to were the signed and verified statements of campaign expenses of defendant, Ray D. Schneider, for the office of county auditor of Wayne county, and of the treasurer of defendant’s campaign committee, and were introduced by the prosecution after the people’s witness, E. M. Robbins, testified that he had an agreement with defendant to contribute a portion of his commission to defendant’s campaign fund1 in return for county business. The exhibits failed to1 show that E. M. Robbins made any contribution to the campaign expenses of Ray D. Schneider, defendant, as a candidate for the office of county auditor.
Under the foregoing section of the penal code, the gist of the offense is the acceptance of a bribe. The purpose for which bribe money is used has no bearing upon the guilt or innocence of one so charged.
The admission of these exhibits in evidence was at most a harmless error.
In People v. O’Hara, 278 Mich. 281, 306, we said:
“The test is not whether there were some irregularities, but instead did the defendants have a fair and impartial trial.”
It is also urged that the trial court was in error in failing to give the following requested charge:
“I charge you further that before you can find that the defendant corruptly exercised or agreed to exercise his vote in a particular manner on the ques tion of awarding contracts for insurance to Edgar M. Robbins, doing business as Robbins Insurance Agency, it is incumbent upon tbe State to show tbe proper official records of the board of Wayne county auditors to establish what action was taken by such board in tbe matter. ’ ’
In People v. Hammond, 132 Mich. 422, we held that tbe soliciting of a bribe is a complete common-law offense, though tbe person solicited refused to cooperate.
In 8 Am. Jur. p. 890, tbe rule is stated to be:
“Tbe fact that an agreement involving bribery is not carried out does not make it any tbe less bribery. Tbe agreement is tbe essence of tbe offense; when that is consummated, tbe offense is complete. Failure of an executive officer to abide by bis agreement upon a money consideration not to take official action in a certain case does not relieve bis agreement not to do so from tbe character of bribery. ’ ’
In State v. Lehman, 182 Mo. 424 (81 S. W. 1118, 66 L. R. A. 490, 103 Am. St. Rep. 670), it is said:
“It is not necessary, in order to constitute bribery, that tbe vote of tbe public official bribed should be on a measure that could be enforced. Tbe crucial test may thus be stated: Ms a matter pending before the officer in bis official capacity, or one that may be brought before him in such capacity?’ It is not a question as to tbe force and vitality of tbe ordinance pending; it was a subject that the municipal assembly bad tbe right to legislate upon; tbe ordinance was pending before it; defendant was a member of that assembly; be was not only authorized to vote upon it, but it was bis duty to do so, and any corrupt agreement or promise, which bad for its purpose an improper influence upon bis action in respect to said measure, has all the elements of bribery under tbe statute, and it makes no difference whether tbe measure is a valid one or not.”
Section 118 of tlie penal code (Comp. Laws Supp. 1940, §17115-118, Stat. Ann. §28.313) reads as follows :
“ Any executive, legislative or judicial officer who shall corruptly accept any gift or gratuity, or any promise to 'make any gift, or to do any act beneficial to such officer, under an agreement, or with an understanding that his vote, opinion or judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or that in such capacity, he shall make any particular nomination or appointment, shall forfeit his office, and be forever disqualified to hold any public office, trust or appointment under the Constitution or laws of this State, and shall be guilty of a felony, punishable by imprisonment in the State prison not more than ten years, or by fine of not more than five thousand dollars.
Under the above section of the penal code the action taken by the board of auditors of Wayne county is not an element of the offense charged. The trial court was right in refusing to give the requested instruction.
It is also urged that the verdict is against the great weight of the evidence. We have examined the record carefully and conclude that there was competent evidence upon which a jury could find the defendant guilty of the crime charged.
The judgment is affirmed1.
North, C. J., and Starr, Wiest, Btjtzel, Bushnell, Boyles, and Reid, JJ., concurred. | [
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Per Curiam.
These negligence actions are based on the second of two successive impacts. There is no dispute that the plaintiffs were injured. The question is whether the evidence could support a reasonable inference that their injuries were aggravated by the second impact.
I
At approximately 11 p.m. on October 23, 1970, Marsha Brownell was driving her father’s vehicle northbound on a rural road in Ionia County. There were five passengers, Iva Brownell and Patrick McGraw in the front, and David Lee, Mary Flores, and Richard Spaans in the rear. The speed of the Brownell vehicle was estimated at from 35 to 50 mph when Ms. Brownell lost control, apparently because of a blowout. The car’s speed decreased, but eventually it went off the east edge of the road and struck a tree.
All were injured and stunned or unconscious. Spaans and Lee were able to extricate themselves from the car and pulled Ms. Flores out as well. The Brownell car was pointing northeast, with its front end up against the tree and the rear extending into the northbound lane.
Meanwhile, Douglas Brown was proceeding north on the same road in his vehicle. Spaans saw the Brown vehicle approach at 60 to 65 mph. He waved in an attempt to warn the oncoming vehicle. When Spaans realized that Brown would not stop, he ran to the left side of the Brownell vehicle. Brown struck the Brownell vehicle in the right rear; damage to the Brown vehicle went from the right rear door to the rear. Spaans testified that the collision caused the Brownell vehicle to crash into the tree again and rotate. He was struck by the rotating vehicle, fell and broke his ankle.
Marsha Brownell and Iva Brownell sued Brown and his mother, who owned the car, for damages for their injuries, and their father sought recompense for his minor daughters’ medical bills. After several days of jury trial, the circuit judge directed a verdict in the defendants’ favor; he said:
"The record is completely devoid of evidence to indicate a causal relationship between the collision and the subsequent suffered injuries by the plaintiffs.”
The Court of Appeals affirmed.
II
The law to be applied is clear:
"It is our conclusion that if there is competent testimony, adduced either by plaintiff or defendant, that the injuries are factually and medically separable, and that the liability for all such injuries and damages, or parts thereof, may be allocated with reasonable certainty to the impacts in turn, the jury will be instructed accordingly and mere difficulty in so doing will not relieve the triers of the facts of this responsibility. This merely follows the general rule that 'where the independent concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident, the courts gener ally will not hold the tort-feasors jointly and severally liable.’
"But if, on the other hand, the triers of the facts conclude that they cannot reasonably make the division of liability between the tort-feasors, this is the point where the road of authority divides. Much ancient authority, not in truth precedent, would say that the case is now over, and that plaintiff shall take nothing. Some modern courts, as well, hold that this is merely the case of the marauding dogs and the helpless sheep [Adams v Hall, 2 Vt 9 (1829)] relitigated in the setting of a modern highway. The conclusion is erroneous. Such precedents are not apt. When the triers of the facts decide that they cannot make a division of injuries we have, by their own finding, nothing more or less than an indivisible injury, and the precedents as to indivisible injuries will control.” Maddux v Donaldson, 362 Mich 425, 432-433; 108 NW2d 33 (1961).
Justice Black added:
"Now we affirm that, where the trier or triers of fact find they cannot ascertain the amount of damages each wrongdoer has inflicted, then such trier or triers are authorized to assess the plaintiff’s damages against any one or all of such wrongdoers on ground that the latter have — in law — participated in the infliction of 'a single, indivisible injury.’ ” 362 Mich 450-451.
Earlier, Chief Justice Dethmers in Meier v Holt, 347 Mich 430, 448; 80 NW2d 207 (1956), said for the Court:
"If there is competent evidence showing, or from which a reasonable inference may be drawn, that the negligence of the second tort-feasor was a proximate cause of plaintiffs’ injuries or any part or aggravation of them, that evidence should go to the trier of facts for determination, no matter how difficult, of that question of fact and, if it finds in the affirmative, for determining which or what part of them and fixing the amount of the damages. (Cases above cited.) If there is no such evidence, the case should not go to a jury to guess or speculate on the question, but, instead, the case should be dismissed by the court as to the second tort-feasor. Whether there is such evidence is not a question of fact for the jury, but of law for the court.” (Citations omitted.)
Ill
Thus a plaintiff need only prove that the second impact contributed to or aggravated the injury; that is, he must present proofs from which the jury could reasonably infer that this is the case. He need not show the extent of the aggravation. The plaintiffs in this case offered those proofs and the directed verdict should not have entered.
We must look at the evidence in a light most favorable to the plaintiffs. The Brownell car crashed into the tree at a moderate speed, the back-seat passengers were able to extricate themselves and go for help. The front-seat passengers were unable to assess their injuries. The Brown vehicle was traveling fast. The collision caused the Brownell vehicle to crash into the tree a second time and to rotate. Photographs of Brown’s vehicle show substantial damage to the right rear of the car, from which the jury could infer that the vehicle hit with great force and the impact was substantial. From these proofs the jury could have reasonably inferred that at least some of the substantial injuries which the plaintiffs were later found to have suffered were caused by Brown’s negligence.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgments of the Court of Appeals and the circuit court and remand the case to the Ionia Circuit Court for a new trial.
Costs to the plaintiffs.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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] |
Sharpe, J.
The parties to this appeal were formerly husband and wife. They were divorced August 28, 1941. About a month prior to the granting of the divorce, they entered into a property settlement whereby the husband'assigned1 certain personal property to the wife, transferred the home to her subject to a mortgage, and assigned to her his interest in a $1,500 life insurance policy; and both parties agreed to the disposition of a summer cottage held by them as tenants by the entireties. The agreement also provided:
“6—It is agreed that until either the husband or the wife dies (and if the said husband and wife are hereafter divorced and the wife thereafter marries again, then until her remarriage) the husband will pay the wife the sum of $85 a month in equal semimonthly instalments of $42.50 each on the 1st and 1,6th of each month. * * *
“9—The wife agrees that in the event the parties hereto are hereafter divorced, she will accept and does hereby, in such event, accept the above-described property and the terms hereof as a complete property settlement and for permanent and temporary alimony, attorney fees and other expenses in any divorce proceeding; and in lieu of her dower in the husband’s property and in full satisfaction of all claims whatsoever which she may have in any property which the husband now or may hereafter own or in which he may now or hereafter have any interest. As further consideration for said property and for the making of this agreement by the husband,- the wife hereby releases and forever discharges the husband from any and all further obligation or liability for her support, temporary and permanent alimony, dower, attorney fees and other expenses in any divorce proceeding, and from any and all claims, rights and duties whatsoever hy reason of or arising out of the marital relation between the said parties.”
The divorce decree provided:
“Property Settlement
“It is further ordered, adjudged and decreed that the said agreement, copy of which is hereto attached, be and it hereby is approved and confirmed as a complete property settlement between the parties hereto, and that such settlement shall be in lieu of the defendant’s dower in the plaintiff’s lands and shall be in full satisfaction of all claims which the defendant may have in any property which the de~fendant owns or may hereafter own, or in which he has or may hereafter have any interest.
“Alimony
“And it is further ordered, adjudged and decreed, in view of the said property settlement made between the parties, that the defendant have from the plaintiff no alimony, permanent or temporary. ’ ’
Sometime after the parties were divorced, the husband remarried, but continued to make payments of $85 per month for approximately two years. Later Alvah V.- Frohnapel failed to make the required payments in accordance with the agreement and Caroline K. Frohnapel filed a petition to have Alvah Y. Frohnapel adjudged in contempt of court for failure to pay alimony. An order to show cause was issued and Alvah Y. Frohnapel filed an answer in which he contended that the divorce decree did not provide for permanent alimony.
The cause was heard by the trial court who found that neither the decree nor the property settlement provided for alimony; and he dismissed the order to show cause. Caroline K. Frohnapel appeals and urges that paragraph 6' of the agreement provides for alimony; and that the agreement requires the husband to make semimonthly payments of a specified sum of money to the wife for a period terminable only by death or remarriage of the wife.
In Harner v. Harner, 255 Mich. 515, we held that a divorce decree may join an award for alimony with an award in lieu of dower, but if so awarded in a lump sum contempt for nonpayment thereof may not be adjudged.
It is to be noted that the decree provided, “the wife hereby releases and forever discharges the husband from any and all further obligation or liability for her support, temporary and permanent alimony, dower * * * and from any and all claims, rights and duties whatsoever by reason of or arising out of the marital relation between the said parties.” Moreover, the decree provided:
“Alimony
“And it is further ordered, adjudged and decreed, in view of the said property settlement made between the parties, that the defendant have from the plaintiff no alimony, permanent or temporary.”
The decree conforms to Court Rule No. 51 (1933, as amended in 1938). The provision for payment of $85 a month is a part of the property settlement and is in lieu of dower. It follows that contempt proceedings will not.lie for its enforcement.
The order of the trial court is affirmed, with costs to plaintiff,
North, C. J., and Starr, Wiest, Butzel, Bushnell, Boyles, and Reid, JJ., concurred. | [
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Per Curiam.
In this application for leave to appeal, plaintiff Gary Grice presents an issue left unanswered by White v Weinberger Builders, Inc, 397 Mich 23; 242 NW2d 427 (1976). In White, the Court held that a claimant would be precluded from proceeding against the Second Injury Fund for differential benefits if the employer and employee had redeemed all alleged employer liability prior to an admission or adjudication of liability. The issue raised in this case is whether claimant is precluded from proceeding against the Second Injury Fund for differential benefits when the employer and claimant have redeemed all employer liability after a finding by the referee that claimant was totally and permanently disabled as a result of an occupational injury, but while an appeal of this finding was pending before the Worker’s Compensation Appeal Board (WCAB).
Subsequent to the conclusion of the redemption agreement, the WCAB granted the Fund’s motion to dismiss plaintiff’s claim for differential benefits. The Court of Appeals denied plaintiff’s application for leave to appeal on December 6, 1978. Pursuant to GCR 1963, 853.2(4), 865.1(7), for reasons set forth below, in lieu of granting leave to appeal, we vacate the WCAB’s order dismissing plaintiffs claim for differential benefits and remand to the WCAB. We hold solely that, because the redemption occurred after an adjudication of General Motors’ liability, plaintiff is not precluded from continuing to seek differential benefits. We express no opinion regarding the merits of the Fund’s appeal.
I
Only a brief statement of facts is necessary to the resolution of this issue. Plaintiff filed a claim for workers’ compensation benefits alleging total and permanent disability arising from work-related injuries. Following a hearing, the referee determined that:
"Plaintiff is totally and permanently disabled by reason of loss of industrial use of both legs, in that use of the legs causes pain and cramping of the legs, and produces pain in the back and hips.”
Benefits were awarded after a finding of occupational nexus.
The employer and the Fund appealed to the WCAB attacking the finding of a causal relationship between the work-related injury and the alleged total and permanent disability, as well as the conclusion that the disability was sufficiently catastrophic to be characterized as total and permanent. While the appeals were pending, the employer and plaintiff entered into a redemption agreement (negotiated settlement). Subsequently, the Fund filed a motion to dismiss plaintiffs claim against it. The WCAB granted the motion and the Court of Appeals denied leave to appeal.
II
The central thrust of the White decision was that, because the Fund’s potential liability is derivative of the employer’s liability, the Fund should not be subjected to a separate hearing on its liability once the employer and employee have redeemed the employer’s potential liability. Plaintiff contends that White is distinguishable because General Motors was found liable by the referee before the redemption occurred. The Fund argues that because this determination was not final (because of the appeals) at the time the redemption occurred, the White rationale applies to foreclose its liability. Resolution of this dispute depends on whether the referee’s decision was a sufficient adjudication of liability.
The fact that an appeal followed does not diminish the impact of the referee’s finding of liability. In the workers’ compensation setting, the referee’s decision is an adjudication of liability. This is sufficient to remove the considerations which motivated the White majority. We see no difference between these facts (where the employer has abandoned its appeal) and a case where only the Fund appeals the referee’s decision.
We intimate no opinion as to whether the Fund is liable to plaintiff. Such a decision is for the WCAB, provided the Fund continues to pursue its appeal. Our decision today only affects the dismissal of plaintiff’s claim.
The WCAB’s order dismissing plaintiff’s claim against the Second Injury Fund is vacated and the case is remanded to the WCAB for proceedings consistent with this opinion.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., . JJ., concurred. | [
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North, J.
Plaintiff, a resident of Gogebic county, Michigan, brought suit at law in the circuit court of Gogebic county to recover damages for his personal injuries sustained in an automobile accident which happened in Wisconsin. The sole defendant, a New York corporation, is the insurer of the owner of an automobile involved in the accident. Defendant’s policy was delivered in Wisconsin to the insured. The validity of the service of the court’s process on the defendant insurance company is not questioned. Defendant entered a special appearance. Subsequent to defendant’s appearance plaintiff’s declaration and an amendment thereto were filed. Defendant thereafter made a motion to dismiss. The reasons in support of defendant’s motion are confined solely to challenging the court’s jurisdiction of. the subject' matter of the suit. Defendant’s motion to dismiss was granted by the circuit judge, and plaintiff has appealed.
The purport of defendant’s motion appears from the following reasons which, among others, were assigned in support of the motion to dismiss.
“No cause of action exists in Michigan against this defendant.
‘ ‘ The situs of the cause of action alleged in plaintiff’s declaration exists only in the State of Wisconsin.
“If, as plaintiff claims in his declaration, substantive rights are created by' the statutes of Wisconsin, then those rights and any and all claims of the plaintiff that he is entitled to maintain this suit in this Court, are contrary to the public policy of the laws of the State of Michigan and particularly 3 Comp. Laws 1929, § 12460 (Stat. Ann. 1943 Rev. § 24.296).
The parties agree that plaintiff could prosecute his suit in Wisconsin against the insurer as a sole defendant- notwithstanding judgment has not been obtained against the insured. Such is the case because of statutory provisions in Wisconsin and under decisions of the supreme court of that State. Since there is no controversy between the parties in this respect, we forego citation of the applicable statutory provisions and decisions in that State.
While there is some controversy between plaintiff and defendant as to whether the Wisconsin law, affording plaintiff the right in that State to bring Ids suit against the insurance company as sole defendant, is procedural in character or substantive law, we deem it unnecessary to pass upon that, question because we are of the opinion that decision herein is controlled by another principle of law applicable to the instant case, even though it be assumed that the phase of the Wisconsin law above noted is substantive in character rather than procedural. However, an interesting decision bearing upon the question as to whether the law is procedural or substantive in character will be found in McArthur v. Maryland Casualty Co., 184 Miss. 663 (186 South. 305, 120 A. L. R. 846).
Even though, as plaintiff, asserts, the provision of the Wisconsin statute authorizing* suit against the insurer as a sole defendant in this type of case vested plaintiff with a substantive rig’ht, and therefore normally should be recognized as a matter of comity in Michigan, nonetheless if such provision of law is contrary -to the public policy of this State it will not be recognized or enforced in' the courts of this State. ■ .
“Much has been written on the enforcement of transitory actions and the theory underlying decisions in such matters has been variously explained on the grounds of ‘comity’ and ‘vested rights.’ (Citing numerous authorities.)
“Under any theory of enforcement there is the well-established exception that the foreign law will not be recognized if contrary to the public policy of the forum.” Eskovitz v. Berger, 276 Mich. 536, 540.
“By comity, citizens of Illinois may sue in the courts of Michigan, but the law of Illinois has no extraterritorial force. The courts of this State may. not be used to prosecute to effect a cause of action in a' manner contrary to the laws of Michigan.” Walton School of Commerce v. Stroud, 248 Mich. 85, 89.
“While the general rule is that a contract valid where made is valid in the courts of any other country or State wThere it is sought to be enforced, there are exceptions to the rule, and one of them is where the contract violates the public policy of the State of the forum. 9 Cyc. p. 674; Seamans v. Temple Co., 105 Mich. 400 (28 L. R. A. 430, 55 Am. St. Rep. 457).” Curtis v. Mueller, 184 Mich. 148, 152.
Notwithstanding plaintiff could prosecute his suit in Wisconsin, the question arises — Is it contrary to public policy in Michigan that a suit of this character should be prosecuted against the tortfeasor’s insurer as a sole defendant? Public policy of a State is fixed by its Constitution, its statutory law, and the decisions of its courts; and when the legislature enacts a law'within the limits of the Constitution, the enactment insofar as it bears upon the matter of public policy, is conclusive. See In re McKee’s Estate, 71 N. D. 545 (3 N. W. [2d] 797), wherein, quoting from an earlier case, it is said: “Public policy is but the manifest will of the State. * * * And when the legislature has spoken and enacted a law embodying a certain principle, the policy is determined.” Michigan’s public policy touching the phase of the law under consideration has been definitely fixed by statute. As to bringing an insurance company into a suit of this character as a defendant, the following is provided in our statutory law.
“In such original action (including personal injuries caused by a motor vehicle), such insurance company (authorized to do business in Michigan), or other insurer, shall not be made, or joined as a party defendant, nor shall any reference whatever be made to such an insurance company, or other insurer, or to the question of carrying of such insurance during the course of trial.’’’ 3 Comp. Laws 1929, § 12460 (Stat. Ann. § 24.296).
In accord .with the above provision, we have repeatedly held in substance: “There was prejudicial error. in bringing before the jury, in the subtle method employed, the suggestion that defendant carried liability insurance.” Janse v. Maywood, 270 Mich. 632.
“It is a fact of which we calino t but take judicial notice that, in cases where jurors obtain information that the damages as fixed by them will be paid by insurance companies, the amount thereof is usually greatly enhanced.” Holman v. Cole, 242 Mich. 402.
“We do not condone what appears to have been a studied effort to get the matter of insurance before the jury.” Nicewander v. Diamond, 302 Mich. 239.
See, also, Kerr v. National Fulton Brass Manfg. Co., 155 Mich. 191; and Dewey v. Perkins, 295 Mich. 611.
The public policy sought to be sustained in this State by the statute and judicial decisions is that a plaintiff shall not be permitted to inject into his suit the element of insurance and thereby obtain an excessive and unjust verdict.
We are not in accord with appellant’s contention that: “If the above statute does declare a public policy for Michigan the letter of the declaration (statute) limits it to such suits on a policy ‘issued or delivered in this State.’ ” We think the statute prohibiting a plaintiff from making the insurer a party defendant or referring to the insurer in the course of the trial, as a matter of public policy is not only applicable to the insurers who issue or deliver policies in this State but likewise to the insurer who delivered a policy in another State and is sued in a court in this State. • Twice in the quoted portion of the statute the expression “or other insurer” is used, and evidently means an insurer other than one authorized to do business in Michigan. And further, it may he noted that the defendant in the instant case was authorized to -do business in Michigan and to deliver its policies in this State.
We cannot escape the conclusion that plaintiff’s attempt to prosecute his suit in Michigan against the insurer as a sole defendant is contrary to Michigan law, and for that reason' a Michigan court may not assume jurisdiction as a matter of comity. The instant case does not fall within Kaiser v. North, 292 Mich. 49, 57, wherein we said:
“The fact Michigan statutory regulations of the rights of a motor vehicle guest passenger may differ from Ontario statutory provisions, or even the provisions of the common law governing like rights, is not a reason for holding the statute of the foreign jurisdiction contravenes public policy here. ’ ’
In effect the above is only a holding that a mere difference in statutory provisions of a foreign jurisdiction and those of this State is not sufficient alone to result in contravention of our public policy. In stead of being comparable to the Kaiser Case, the case at bar falls within the same field of law as Walton School of Commerce v. Stroud and Curtis v. Mueller, supra. And in point of law the instant case cannot be distinguished from Kircher v. Kircher, 288 Mich. 669 (7 N. C. C. A. [N. S.] 72), where, notwithstanding the suit could have been maintained in a Colorado court, we said:
“Plaintiff invokes the doctrine of comity. To recognize comity in this instance would contravene the public policy of this forum.
“As has been stated, it is contrary to public policy in this State to permit one spouse to sue the other for negligent injury, and this closes the court to the action at bar brought by a resident of Michigan against her husband for a tort committed in Colorado.”
In general it may be said that the test as to whether courts of this State will entertain jurisdiction is not whether the law of another State under which the right of action is asserted differs from Michigan law; but rather is the prosecution of the suit in violation of the settled law of this State — i. e., the law of the forum. Prosecution of the instant suit would be in direct violation of our statutory law and judicial decisions which establish in that respect public policy in this jurisdiction.'
“It is true that, under rules of law generally applicable, these courts (in the forum jurisdiction) may refuse to enforce a mere right of contract if it provides for doing within the District (of Columbia where suit was pending) things prohibited by its-laws.” Loughran v. Loughran, 292 U. S. 216, 227 (54 Sup. Ct. 684, 78 L. Ed. 1219).
“Under rules of law generally applicable a State may refuse to enforce a contract which provides for doing -within it an act prohibited by its laws. ’ ’ Bothwell v. Buckbee, Mears Co., 275 U. S. 274 (48 Sup. Ct. 124, 72 L. Ed. 277).
To the same effect, see The Kensington, 183 U. S. 263, 269 (22 Sup. Ct. 102, 46 L. Ed. 190) and Bond v. Hume, 243 U. S. 15, 21 (37 Sup. Ct. 366, 61 L. Ed. 565).
The result would be the same in the instant case regardless of whether the pertinent law of Wisconsin is held to be procedural or substantive. Nor, for the purpose of determining defendant’s motion to dismiss on the ground that the Michigan court could not entertain jurisdiction of the subject matter ■— i. e., of a suit brought against the insurer as a sole defendant, is it at all material whether the appearance of defendant was special, or general as claimed by plaintiff. See Michigan Court Rule No. 18, § 1 (b) (1945). Under the practice in this jurisdiction one who has entered a general appearance may thereafter make a motion to dismiss on the ground that the court does not have jurisdiction of the subject matter. In the instant case the subject matter, in a material part at least, is the right of the plaintiff in this type of case to bring suit against the insurer.
The trial court was not in error in granting defendant’s motion to dismiss. In so holding we are mindful of Kertson v. Johnson, 185 Minn. 591 (242 N. W. 329, 85 A. L. R. 1), cited by appellant. But it does not appear in the Kertson Case that Minnesota has an express statutory provision comparable to 3 Comp. Laws 1929, § 12460- (Stat. Ann. § 24.296) above quoted. A decision more in point, and which was controlled by Michigan law, will be found in Pitcairn v. Rumsey, 32 Fed. Supp. 146, where a headnote reads:
“Where liability insurer was wrongfully, joined as defendant in original action against assured by receivers, insurer would be dismissed.”
Mr. Justice Btjtzel, in an opinion for reversal in the instant case, has cited numerous cases in support of plaintiff’s contention that the Michigan court should entertain jurisdiction. Among them is Kertson v. Johnson, supra, which, as above noted, is not in point for the reason that so far as appears from the reported case the State of Minnesota, unlike Michigan, has not, as a part of its public policy, embodied in its statutory law a provision forbidding in a case of this character making the insurer of a tortfeasor a party defendant. The same may be said of each and every one of the other cases cited by my Brother to the point under consideration. In none of the jurisdictions where the respective cited decisions were rendered is it made to appear that in the statutory law of the forum there was a provision comparable to 3 Comp. Laws 1929, § 12460 (Stat. Ann. § 24.296), above quoted.
Burkett v. Globe Indemnity Co., 182 Miss. 423 (181 South. 316), noted in my Brother’s opinion went so far as to hold that an .action-of this character could not be maintained in the Mississippi courts because in that State there was no statutory provision authorizing such a suit. Thus the holding went much further than our conclusion in the instant case, since in Michigan there is the express statutory provision against making the insurer a party defendant in a case of this character.
Justice Btjtzel’s opinion notes that in Larabell v. Schuknecht, 308 Mich. 419, the suit was instituted not only against a tavern keeper but his bondsman was also joined as a party defendant; however, as is noted in my Brother’s opinion, in that type of case there is a specific provision in the Michigan statute for so joining the bondsmen or surety. See Act No. 8, § 22, subd. 2, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 281, Pub. Acts 1937 (Comp. Laws Supp. 1940, §9209-37, Stat. Ann. 1946 Cum. Supp. § 18.993). Obviously the Larabell Case is not a precedent for holding- that in violation of our express statutory provision forbidding it, an insurer may be made either a sole defendant or a joint defendant with a tortfeasor in a case such as that under consideration.
Because we .are not in accord therewith, we do not review in detail appellant’s contention that Michigan’s so-called third-party beneficiary contracts statute (Act No. 296, Pub. Acts 1937 [Comp. Laws. Supp. 1940, § 14063-1 et seq., Stat. Ann. 1946 Cum. Supp. § 26.1231 et seq.)), affords ground for holding plaintiff may maintain his suit against the insurer. We decline to hold that the third-party beneficiary statute repeals by implication 3 Comp. Laws 1929, § 12460 (Stat. Ann. § 24.296).
The judgment entered in the circuit court is affirmed, with costs to appellee.
Carr, and Sharpe, JJ., concurred with North, J.
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Carr, J.
This is an action on a health and accident insurance policy issued by defendant to Robert TV. Turner under date of April 3, 1944. At that time the assured was 19 years of age and was resid ing with Ms parents who were the beneficiaries under the policy and are the plaintiffs herein. The policy provided for the payment of $1,250' for loss of life “resulting directly and independently of all other causes, from bodily injuries sustained during any term of this policy, through purely accidental means (suicide, sane. or insane is not covered).” The application for the policy was taken by defendant’s soliciting agent, Mrs. Ora Adams, who came to the home for the purpose of obtaining <an application for a policy from plaintiff Raymond E. Turner. The record indicates that Mrs. Adams asked Robert certain questions contained in the application, and based the answers to other questions on her knowledge or observation. At the time, Robert was employed by the Sutherland Paper Company of Kalamazoo, Michigan, and Mrs. Adams was so informed. The application was signed by Robert, was forwarded to defendant’company by’its agent,- and a copy was attached to the policy in question at the time it was delivered to the assured.
Robert continued to work for the paper company until October 14, 1944, at which time he suffered injuries resulting in his death. Thereafter defendant undertook to rescind the policy, claiming- that information contained in the application as to the assured’s physical condition was not correct. A check for the premiums paid was sent to the beneficiaries, acceptance thereof being refused. Such tender was renewed at the time of the trial.
At the conclusion of the proofs counsel for defendant moved for a directed verdict, claiming that plaintiffs had failed to sustain the burden of proof on the question whether death resulted from purely accidental means; and that the assured was, as a matter of law, bound to know the contents of the application, and that plaintiffs were precluded from recovering because certain answers therein were not 'true. , Decision on the motion was reserved under the provisions of Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1929, § 14531 et seq. [Stat. Ann. § 27.1461 et seq.]), as amended by Act No. 44, Pub. Acts 1939 (Comp. Laws Gupp. 1540, § 14531 et seq. [Stat. Ann. 1946 Cum. Supp. §27.1461 et seq.]), commonly referred to as the Enipson act. The jury returned a verdict in favor of plaintiffs for •the amount of the policy,. together with interest. Thereafter defendant moved for judgment notwithstanding the verdict, relying oh the reasons' advanced in support of the motion for directed verdict, and also on certain additional grounds which will be referred to later. This motion was denied and defendant has appealed, asking that the judgment entered on the verdict be vacated and judgment for defendant ordered to be entered. The question presented is whether defendant was entitled to judgment as ,a matter of law for the reasons, or any of them, advanced by it.
The burden of proving that the death of the assured resulted from purely accidental means rested on plaintiffs. The testimony indicates that on the morning of October 14,1944, Robert was at his place of employment, changed his clothes, in the dressing room provided for that purpose, and then jumped from the floor where he was at the time, to a moving freight elevator that was descending and had passed the floor by approximately two and one-half feet. A witness described this .elevator as being approximately 6 by 8 feet, with wood panels ■ along the sides and with open ends. The operator of the elevator testified that he saw Robert jump down on the elevator, that his attention was then called to something else, and that he was not aware anything had happened to Robert until another employee called to him, whereupon he stopped the elevator. He testified further that Robert made no outcry of any kind. Another employee of the paper company was on the main floor, saw Robert falling, and saw him strike the concrete floor,. In describing the incident this witness said:
“Well, as near as I know it, I saw him coming' down through the air. I heard the noise first and looking up I saw his body come tumbling out of the shaft, over the tie bar, and he landed right at my feet; I should judge probably about 2 or 3 feet away from me,- and one leg extended inside the elevator shaft; and I hollered to the operator to stop the elevator immediately, not knowing how bad he was hurt, so that it wouldn’t cut off his leg’. It was hanging on the inside; so I dragged him out of the shaft, as soon as I had hold of him, and took him immediately to the first aid room. ’ ’
A physician who attended Robert testified, in substance, that the assured had sustained a severe head injury, which, in the opinion of the witness, caused tlie death. He further testified that Robert did not regain consciousness after he first attended him. The testimony of the witness before referred to who saw Robert strike the main floor indicated that he was unconscious immediately following the impact.
It further appears from the evidence that the elevator was loaded with ice cream pails, with a space between a foot and two feet on the ends and approximately one foot on the sides. The controls were on the southwest corner of the elevator, and the load interfered with the operator observing what happened to Robert. The testimony does not' show the rate of speed of the elevator, but it was described by a witness as “slow moving.”
The evidence rather clearly indicates that the death of the assured resulted from the head injury referred to by plaintiffs’ medical witness. There is no testimony suggesting a different theory. Neither is there any basis for an inference that the fall was due to heart failure or apoplexy, or other natural cause. As a general rule death resulting from external and violent means gives rise to an inference or presumption that it was accidental. 46 C. J. S. p. 428. New York Life Ins. Co. v. Gamer, 303 U. S. 161 (58 Sup. Ct. 500, 82 L. Ed. 726, 114 A. L. R. 1218) .
In support of its. contention that plaintiffs did not sustain the burden of proof resting on them defendant cites and relies on Dimmer v. Mutual Life Ins. Co. of New York, 287 Mich. 168, and Koycheff v. Mutual Benefit Health & Accident Assn., 305 Mich. 660. In both of these cases there was evidence tending to show that death was caused by suicide rather than by accidental means. In the case at bar, however, there is nothing’ to suggest that Robert Turner had any thought of talcing his own life, or that he had any motive for doing so. Apparently, save for the physical defect hereinafter noted, he was a normal young man. Neither is there anything in the proofs, relating to the manner in which the injury was sustained, to justify an inference of an intent to commit suicide.
It is further claimed by defendant that because Robert voluntarily jumped down upon the elevator his subsequent injury and death cannot be said to have resulted from accidental means. Attention is called to the case of Whitehead v. Railway Mail Assn. (C. C. A.), 269 Fed. 25. There, however, the insured got off a moving railroad train while it was crossing a bridge over a creek. Recovery was denied on the ground that death resulting from such an act was not accidental, within the meaning of the insurance contract there involved. Sizemore v. National Casualty Co., 108 W. Va. 550 (151 S. E. 841) is also cited. There the insured, who was a deputy sheriff, jumped from an automobile going between 25 and 30 miles an hour, in an attempt to prevent a prisoner .from escaping. Under tbe terms of the policy, liability based on a traffic .accident of such character, depended on the insured being “accidentally thrown” from a vehicle. It was held that there could be no recovery under the terms of the policy involved.
In view of the claim advanced by defendant the decision in United States Mutual Accident Assn. v. Barry, 131 U. S. 100 (9 Sup. Ct. 755, 33 L. Ed. 60), is squarely in point. There the certificate issued to the assured obligated the insurer to pay to the beneficiary the sum of $5,000 if death of the assured resulted from “bodily injuries effected through external, violent and accidental means.” The testimony established that the assured voluntarily jumped from a platform, approximately four feet in height, to the ground. A witness who was in the company of the assured described it as a “heavy jump,” as though the assured struck the ground on his heels., Internal injuries resulted, causing’ the death of the assured several days later. In sustaining a verdict of the jury in favor of the beneficiary, it was said:
“It is further urged that there was no evidence to support the verdict because, no accident was shown. We do nqt concur in this view. The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not. The court properly instructed them that the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was, whether there was anything acci dental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground; that the term 'accidental’ was used in the policy in its ordinary, popular sense, as “meaning ‘happening by chance.; unexpectedly taking place; not according to the usual course of things; or not as expected;’ that, if a. result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.”
This decision was cited with approval in Ashley v. Agricultural Life Insurance Company of America, 241 Mich. 441 (58 A. L. R. 1208). There-the insured was lost while hunting and froze to death in a swamp. Commenting on the situation i t was said:
"Insured’s becoming lost was not by design, volition, or intent. It was not an expected or usual incident of hunting. It was unusual and unexpected, fortuitous. He became lost accidentally. 1 C. J. p. 390. His death was caused by accidental exposure (o storm and frost. Freezing brand of itself is not an accident. Sherman v. Flint Spring Water Ice Co., 229 Mich. 648. But if joined with a, fortuitous, unusual, unexpected circumstance or'event, it may constitute an accident. Mauch v. Bennett & Brown Lumber Co., 235 Mich. 496. Deceased suffered an accidental death.”
Of like import are Wheeler v. Title Guaranty & Casualty Company of America, 265 Mich. 296, and Hoff v. Mutual Life Insurance Company of New York, 266 Mich. 380. See, also, Taylor v. New York Life Ins. Co., 176 Minn. 171 (222 N. W. 912, 60 A. L. R. 959).
In the instant case it cannot be said that because the assured jumped down upon the elevator and thereafter sustained the fatal head injury, death was not caused by accidental means. It does not follow' as a matter of law, that he intended or designed the ultimate consequences of his action. Contributory negligence on the part of the assured is jiot a bar to recovery on the policy. Hunt v. United States Accident Assn., 146 Mich. 521 (7 L. R. A. [N. S.] 938, 117 Am. St. Rep. 655, 10 Ann. Cas. 449). The trial court properly submitted to the jury the question whether plaintiffs had sustained the burden of proof of showing that death resulted through purely accidental means; .and it was for the jury to decide what inferences might fairly - and reasonably be drawn from the evidence. It cannot be said that the proofs did not fairly support the finding indicated by the verdict. Defendant was not entitled to judgment on this ground.
' Defendant further contends that false statements of a material character were made in the application for the policy, that it was entitled to rescind the contract on that basis, and was entitled to judgment in its favor as a matter of law. It is conceded by appellees that assured’s right.arm was smaller than his left arm and that such condition had existed from infancy. Apparently, however, the arm developed so that, at the time the policy was written, it was approximately three-fourths normal size, as indicated by the testimony of one of plaintiffs’ witnesses. The proofs do not show the extent to which the usefulness of the arm was impaired. It further appears that the right leg of the assured was somewhat smaller than his left leg, and that he limped slightly in walking. No testimony was offered as to the extent to which the development of the leg was retarded.
It was plaintiffs’ Claim on the trial that Robert was not prevented from indulging in most normal activities common among yonng men of Ms age, that he played ball, ran, bowled, and rode a bicycle. As before noted, he was working at the time the policy was written and continued in the same employment until the time of his injury.
Among other questions in the application was, “Are you maimed or deformed? Answer as to each.” To this question defendant’s agent wrote the answer “No.” Mrs. Adams was not a witness on the trial and it is undisputed that she did not read the question to Robert but simply wrote the answer after looking at him. Counsel for defendant concede in their brief that the agent should have noticed Robert’s arm. No claim is made, however, that Mrs. Adams was actuated by any fraudulent intent to deceive defendant. Obviously, she had an opportunity to observe Robert’s physical appearance and,the testimony indicates that she did so. At the time he signed the application at her request Mrs. Adams could scarcely have failed to nóte the condition of Ms arm. It is contended, however, that the answer as written was untrue, and that because a copy of the application was attached to the policy when delivered to the assured, the latter was bound by the falsity, and intent on his part to deceive must, as a matter of law, be presumed.
In this connection the provisions of 3 Comp. Laws 1929, § 12444 (Stat. Ann. § 24.280), become material. Said section reads:
“The falsity of any statement in the application for any policy covered by this chapter shall not bar the right to recovery thereunder unless such false' statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer. ’ ’
The trial court submitted to the jury the question as to whether the answers in the application were false, and if so, whether they were made by the assured with intent to deceive. Special questions were not, however, submitted and it does not appear that any request therefor was made. Defendant does not allege error either in the charge of the court or in the admission of evidence. Bather it is claimed that defendant was entitled to judgment as a matter of law. "With such claim we are unable to agree.
In the determination of defendant’s motion it was the duty of the court to construe the testimony most favorably to plaintiffs. This rule has been repeatedly stated by this Court in prior decisions. Thus, in Butzin v. Bonk, 303 Mich. 522, in holding that the trial court properly denied defendant’s motion for judgment notwithstanding the verdict, it was said:
“In disposing of defendants’ motions and on this appeal the testimony must be construed most favorably to plaintiff. Gayden v. Arabais, 292 Mich. 651.”
It was held that on the record issues were presented for the determination of the jury. See, also, Kane v. Detroit Life Insurance Co., 214 Mich. 329.
In Anderson v. Kearly, 312 Mich. 566, in affirming a judgment for the plaintiff, the court quoted with approval from Brown v. Arnold, 303 Mich. 616, 623, as follows:
“ ‘The facts we have recited were established by the testimony, and we have repeatedly held that a jury may draw reasonable and legitimate inferences from established, facts. ’ ’ ’
The court further commented:
“Having in mind that upon a motion to direct a verdict against plaintiff, the testimony and all legitimate inferences which may be drawn from it most favorable to plaintiff must be accepted, we are of the opinion that, plaintiff established a prima facie case.”
Under the evidence relating to the physical condition of the fissured at the time the application for the policy was made the court would not have been justified in holding, as a matter of law, that the statements in question in such application were materially false, or that they were made with intent to deceive. New York Life Insurance Co. v. Newman, 311 Mich. 368; Eastern District Piece Dye Works, Inc., v. Travelers’ Ins. Co., 234 N. Y. 441 (138 N. E. 401, 26 A. L. R. 1505); Service Life Ins. Co. of Omaha v. McCullough, 234 Iowa, 817 (13 N. W. [2d] 440, 153 A. L. R. 697); Cotten v. Fidelity & Casualty Co., 41 Fed. 506; Druhl v. Equitable Life Assurance Society, 56 N. D. 517 (218 N. W. 220, 60 A. L. R. 962); Commercial Casualty Ins. Co. v. Mathews, 57 Ga. App. 446 (195 S. E. 887).
Assuming that the assured was charged with notice of what appeared in the application because of the fact that it was attached to and made a part of the policy, the conclusion does not necessarily follow that there was any intent on his part to deceive. The facts in the case are somewhat unusual. As before noted, assured was 19 years of age at the time the policy was written, had just 'finished high school, and there is nothing in the record 'to show that he had greater experience in business matters than the ordinary young* man of that age. He did not take the initiative in making the application for the policy. The record indicates that lie took -such action at the suggestion of defendant’s agent. Apparently he assumed that she understood the situation and, that she was able to fill out the application properly. Had he read the. applica tion at the time he signed it, or after receiving the policy, he might logically have concluded tha.t the agent understood the interpretation placed by the company on the questions in the application and had written answers accordingly. The burden of showing that false answers in a material respect were made with an intent to deceive rested on the defendant. It will be noted in this connection that the statute uses the expression “actual intent.” Such expression must be‘given its ordinary meaning. The proper method for determining actual intent is by a consideration of the circumstances surrounding the transaction. Bentley v. Caille, 289 Mich. 74; Farrell v. Paulus, 309 Mich. 441; Brydges v. Emmendorfer, 311 Mich. 274.
Claim is made that the trial court assumed that the. knowledge of Mrs. Adams was imputed to defendant. It does not appear that in denying the motion for judgment notwithstanding* the verdict the court made any specific finding in this regard. The general rule is that knowledge of an agent on a material matter, acquired within' the. scope of the agency, is imputed to the principal. 45 C. J. S. pp. 644, 6Í6. This rule is applicable to a soliciting agent who is authorized to obtain applications. In Serbinoff v. Wolverine Mutual Motor Insurance Co., 242 Mich. 394, it was said in discussing a situation of' this character:
“It is conceded that Sparks was a soliciting agent for the Holden Agency at the time he secured the application for the insurance from Matey. His acts at that time ‘will be held the acts of the company, and his knowledge the knowledge of the company.’ Russell v. Detroit Mutual Fire Ins. Co., 80 Mich. 407, 413. The defendant company is chargeable with full knowledge of any facts then known to him which might have influenced it in the issue of the policy or affected the rights of the insured in its enforcement. Steele v. German Ins. Co., 93 Mich. 81 (18 L. R. A. 85); Blake v. Farmers Mutual Lightning Protected Fire Ins. Co., 194 Mich. 589; Ames v. Auto Owners Ins. Co., 225 Mich. 44.”
The provisions of Act No. 256, pt. 3, chap. 2, § 28, . Pub. Acts. 1917 (3 Comp. Laws 1929, § 12455 [Stat. Ann. § 24.291]), are pertinent. Said section reads as follows:
“Any person who shall solicit' an application for insurance upon the life of another shall, in any controversy between the assured or his beneficiary and the company issuing’ any policy upon such application, be regarded as the agent of the company and not the agent of the assured.”
See, also, Van Houten v. Metropolitan Life Ins. Co., 110 Mich. 682; Power v. Monitor Insurance Co., 121 Mich. 364; Northern Assurance Co. of Michigan v. Kelly, 217 Mich. 1; Schaefer v. East & West Insurance Co., 260 Mich. 220.
Counsel for defendant have called attention to Ruggirello v. Detroit Automobile Inter-Insurance Exchange, 272 Mich. 44; Ketcham v. American Mutual Accident Assn., 117 Mich. 521, and other decisions recognizing the rule that knowledge of the agent should not be imputed to the insurance company where actual fraud is indicated by the proofs, and particularly if collusion between the agent and the assured appears. In the case at b'ar,' however, actual fraud on the part of either Mrs. Adams or Robert Turner was not shown. Clearly, there was no collusion between them and none is claimed. Neither, as before noted, is it urged.specifically that Mrs. Adams was guilty of any fraudulent intent to deceive defendant. Under the facts here presented, defendant was charged with the knowledge its agent acquired at the time the application was prepared.
The motion for judgment notwithstanding the verdict alleged that defendant was entitled to judgment as a matter of law for the reasons covered -by the motion for a directed verdict and for the further reasons, not raised by the prior motion, that the alleged false representations in the application materially affected the acceptance of the risk by the insurance company and, likewise, the hazard assumed by it. It was further alleged that plaintiffs admitted, by their failure to deny certain averments in the supplemental answer filed by defendant, that the policy would not have been issued if the answers in the application had been correct.
The answer to the declaration referred to certain questions in the application, alleged that they were falsely answered, and that in consequence plaintiffs were not entitled to recover. Among the questions so referred to the inquiry as to the existence of a deformity was not in eluded. Plaintiffs filed a reply to the answer, denying that the policy was void for the reasons alleged by defendant. Subsequently, defendant filed a supplemental answer, referring specifically to the question as to deformity and the answer thereto, and averring that, had said question been answered correctly and truthfully, the policy would not have been issued, “because the risk would not have been commensurate with the amount of premium charged for such a policy.” Plaintiffs did not file a reply to the supplemental answer. Defendant insists, in consequence, that the matters of fact alleged in the supplemental answer were admitted by. plaintiffs.
On behalf of plaintiffs it is argued that the denials contained in the reply to the original answer to the declaration were sufficient in form and substance to cover the allegations in the supplemental answer. The motion for a directed verdict made no reference to the alleged admission, and it does not ap pear that it was in any way Called to the attention of the trial court, except by defendant’s supplement to its motion for judgment notwithstanding- the verdict. Plaintiffs’ contention is not without merit and finds support in .defendant’s failure to raise the question on the trial. It is quite probable that had it been so raised plaintiffs would have sought and obtained leave to file a reply to the supplemental answer, thus obviating the question now sought to be raised on the pleading’. In Shoemaker v. Standard Oil Co., 135 Ohio St. 262 (20 N. E. [2d] 520), in commenting on a similar situation, the court said:
“In our judgment the situation is the same as in a case where there is no reply to the new matter set up in the answer as constituting a defense. When, in such a case, the cause is tried as if the new matter were denied by a reply, a demand for judgment on the pleadings after each party has introduced its evidence comes too late. Lovell v. Wentworth, 39 Ohio St. 614.
“The plaintiffs, having permitted the trial to proceed upon the theory that there was an issue of fact and having raised no question as to the defendant’s answer until the evidence was in and the verdict returned, should not be permitted to prevail now in their contention. The objections of the plaintiffs to the form of answer did not come in time to be of any avail.”
In the case at bar defendant not only failed to raise, on the trial, the • question of the alleged admission, but offered testimony relating to the subject-matter of the alleged admission. Under the circumstances plaintiffs, and the trial court as well, were entitled to assume that defendant considered' that the denials in the reply to the original answer to the declaration were sufficient to cover the averments in the supplemental answer. Without refer ence to the legal sufficiency of such denials we hold that defendant was not entitled to raise the question for the first time after the verdict of the jury had been returned.
Commenting on the claim that the alleged false answers in the application materially affected, as a matter of law, the acceptanée of the risk, and the hazard assumed by defendant, the trial court said:
“This contention was not made, during the trial. The motion for a directed verdict did not embrace it. Defendant should not now be permitted the benefit of it. Without including this in the motion for a directed verdict, defendant recognized this question as one of fact by offering the testimony of its witness Wood, and in the second paragraph of its first request for an instruction. This question was properly submitted to the jury.”
It is the position of counsel for defendant that under the provisions of the Empson act, above cited, a motion for judgment notwithstanding the verdict may properly include matters not covered by the motion for a directed verdict. The determination of the question raised rests primarily on the interpretation of the statute referred to, which reads in part:
“Hereafter in all civil actions at law, in courts of 'record, if the defendant at the close of the plaintiff’s case or if either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case. After the case is thus submitted to the jury, or after receiving and recording the verdict of the jury and before judgment is entered in said case, the court may hear arguments of counsel for and against said request, but in all such cases shall receive and record the verdict of the jury as rendered. If the court shall then ‘decide as a matter of law, that the party requesting the directed verdict was entitled thereto, and if the verdict of the jury is adverse to the party making such request, the court shall enter its decision on the record and order judgment in accordance with such decision notwithstanding the verdict entered. ’ ’
This language -clearly indicates that the legisla-, ture intended that the decision of the trial court; as to whether the party making the -motion for a directed verdict is entitled to judgment as a matter of law, involves a decision of such motion. - In other words, the statute does not contemplate passing on a subsequent motion made after the verdict of the jury is returned, presenting questions other than those raised by the motion for a directed verdict, or a determination based on such added grounds. If defendant’s contention is correct the conclusion necessarily follows that a motion for judgment notwithstanding the 'verdict may be predicated wholly on grounds not covered by the motion for a directed verdict. However, it is the latter motion on which the court reserves his decision and it is that motion which the statute contemplates shall be decided if the verdict of the jury is against the moving party. It is fair to assume that if the legislature intended' any such result as is involved in defendant’s contention, such intent would have been clearly expressed. As indicated, the language of the statute is at variance with defendant’s theory.
We are concerned in the case at bar solely with the procedure authorized by the Empson act. The previously established practice as recognized in Plunkett v. Railway Co., 140 Mich. 299, is not in volved; nor is it intended to imply herein that such practice is in any way modified.
If in any case the trial court concludes that a motion for a directed verdict, made as contemplated by the Empson act, is well founded, proper practice requires that he assign his reason, or reasons, for granting such motion. Parsille v. Brown, 188 Mich. 485, 487. Likewise, the party claiming to be entitled • to judgment as a matter of law should, at the time of making the request, state the grounds upon which he relies. Counsel for defendant recognized this duty in the instant case, and assigned specific reasons, in support of the request, on which they based their claim. The trial court, and the plaintiffs as well, had a right to assume that all the grounds relied on were stated. In opposing the motion plaintiffs were entitled to assert the right to meet the claims advanced in support of the motion by a further showing, if such was deemed necessary.
In Smalley v. Railway Co., 34 Utah, 423, 442 (98 Pac. 311, 316), it was said:
“We think the reasons given by courts, requiring the grounds upon which a motion for nonsuit is based to be specified, in order that the court may know upon what question of law the case is asked to be taken from the jury, and the party against whom the motion is directed may be afforded opportunity to correct the defects, if they admit of correction, and can be obviated by additional evidence, apply with equal force to a motion for a direction of a verdict. If such opportunity should be afforded him on a motion of nonsuit, which, if granted, not being an adjudication on the merits, and not a bar to another action, for much stronger reasons should such opportunity be given him on a motion for a direction of a verdict, which, if granted, would be a bar to another action.”
In reaching such conclusion the court cited with approval Demill v. Moffat, 45 Mich. 410; Rayl v. Estate of Hammond, 95 Mich. 22; Tillotson v. Webber, 96 Mich. 144; Hanley v. Balch, 106 Mich. 46; and Tanderup v. Hansen, 8 S. D. 375 (66 N. W. 1073).
In Estate of Easton, 118 Cal. App. 659 (5 Pac. [2d] 635), the court, in discussing a provision of the California code, somewhat analogous to the Empson act, said:
“Evidently, therefore, the main purpose of the statute in requiring such a motion to be made as a condition precedent to the exercise of the court’s power-to render judgment non obstante veredicto is to give the party against whom the motion is directed an opportunity to introduce whatever further and additional evidence he may have at hand to overcome the grounds of the motion.”
See, also, Estate of Caldwell, 216 Cal. 694 (16 Pac. [2d] 139).
It does not appear that the precise question raised in the case at bar has heretofore been passed on squarely by this Court. However, the language used in the determination of cases involving the Empson act tends to support the conclusion of the trial court. Thus, in Yacobian v. Vartanian, 221 Mich. 25, it was said:
“The order for such judgment may be made upon a reserved decision of a motion to direct a verdict. The same considerations obtain as upon the decision of a motion to direct a verdict. The evidence must be viewed in the light most favorable to the party against whom the direction is sought.”
Likewise, in Davis v. Belmont Creamery Co., 281 Mich. 165, it was said:
‘ ‘ The judgment non obstante veredicto was based upon the court’s decision on a reserved motion for a directed verdict, and in determining said motion the same considerations are applicable as are pertinent to the determination of a motion for a directed verdict.. A verdict cannot properly be directed for one party when an issue of fact, as in the instant case, is presented for the jury’s determination.”
See, also, Fidelity & Deposit Co. of Maryland v. Verheyden, 243 Mich. 544, Vandenberg v. Kaat, 252 Mich. 187; Burt v. Railway Co., 262 Mich. 204; Strausser v. Sovereign Camp of the Woodmen of the World, 283 Mich. 370, and Forman v. Prudential Insurance Company of America, 310 Mich. 145.
For the reasons above stated we hold that the Empson act may not be construed as authorizing the inclusion in a motion for judgment notwithstanding the verdict of grounds not fairly covered by the motion for a directed verdict as presented prior to the submission of the case to the jury. Under the express terms of the statute it is the latter motion that counsel are permitted to argue and which the trial court is required to determine if the verdict is against the moving party. In the case at bar the trial court was correct in his interpretation of the statute.
Counsel on both sides have argued at some length in their briefs on the merits of defendant’s claims that the alleged incorrect answers in the application affected the issuance of the policy and also increased the hazard of the insurer. On the record before us, we think that such claims presented questions, of fact which plaintiffs were entitled to have determined by the jury. The inclusion thereof in a motion for a directed verdict would not have entitled defendant to judgment as a matter of law. The conclusions above stated with reference to defendant’s claim, based on the assumption that representations materially false were contained in the application, that assured was bound thereby, that .the knowledge of defendant’s agent was not imputable to it, and that the presumption of fraud involving actual intent to deceive necessarily followed, are equally applicable to the added claims in question. Defendant’s introduction of testimony in an attempt to show that the policy would not have been issued had the questions in the application -been correctly answered, and the requests to charge presented in its behalf, indicate that on the trial the issues referred to were regarded as questions of fact. The inferences to be drawn from the evidence were for the jury to determine.
Other matters raised on the record do not call for specific discussion. They are in substance covered by the determination of the questions above considered. The motion for judgment notwithstanding the verdict was properly denied. The judgment entered on the verdict is affirmed, with costs to plaintiffs.
Btjtzel, C. ■ J., and Bushnell, Sharpe, Boyles, Reid, and North, JJ., concurred. Starr, J., took no part in the decision'of this case. | [
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] |
Bushnell, J.
Plaintiffs are assignees of certain persons who were employed in the fire department, the department of public works, and various other departments of the city of Detroit during the year-1932.
The common council of the city of Detroit, confronted with an economic depression which had retarded and reduced the collection of taxes, deemed it necessary to curtail the expenditures of the city. By an ordinance, (166-C, approved April 30, 1932, and effective May 2, 1932) the employees of the city were required to contribute, without pay, a sufficient number of days ’ work during each pay period, so that the amount of such contribution would equal one-half of the salary of each employee in the months of May and June, 1932. One-half of such salaries were withheld, but upon subsequent collection of delinquent taxes the city, on May 12, 1937, paid to the plaintiffs’ assignors, and all other employees affected by the ordinance, one-half of the moneys that had been retained.'
On May 11, 1943, plaintiffs, as assignees, instituted an action at law to recover the sum. of $90,852.38, computed as follows:
“Total principal for firemen, including Ballantine ............... $40,968.62
Interest 6/8/32 to 1/14/46, including Ballantine *.................... 27,910.97
Interest on like amount 6/8/32 to 5/12/37, including Ballantine * .. 10,113.69
Total principal for other city employees ........*................. 6,127.31
Interest 6/8/32 to 1/14/46 1 Interest on like amount 6/8/32 to [ 5,731.79 5/12/37 J
Total for which judgment is claimed...................... $90,852.38
Total principal for firemen ____ 40,968.62
Total interest firemen.......... 38,024.66
Total ....................... $78,993.28
Total principal, other employees.. 6,127.31
Total interest, other employees.. 5,731.79
$11,859.10
Total principal, all employees ... 47,095.93
Total interest, all employees .... .43,756.45
Total for which judgment is claimed •.................... $90,852.38” ■
Plaintiffs’ claims were thus threefold in nature: (1) one-fourth of the salary of plaintiffs’ assignors for the months of May and June, 1932; (2) interest on such amounts from June 8, 1932, to the date of judgment, January 15, 1946; (3) interest from June 8, 1932, to May 12, 1937, upon one-fourth of such employees’ salaries for the months of May and June, 1932, which had been paid to plaintiffs’ assignors.
Defendant city admits in its brief that on June 26, 1945, payment of the remaining withheld salaries, without interest, was authorized and subsequently tendered in the form of a warrant upon the treasurer of the city. The following release was indorsed thereon:
“In consideration of the within payment, the undersigned hereby releases and waives any and all causes of action for loss or damages for deductions from salary or compensation in the calendar year 1932 to 1936, both inclusive, which may have accrued prior to the indorsement of this check.”
Plaintiffs’ assignors refused to accept payment under these conditions.
The questions submitted to the circuit court of Wayne county were with respect to interest, the principal amount of salary withheld not being in dispute, and the failure of plaintiffs or their assignors to present their claims to the common council for audit and allowance. The city insisted that non-compliance with the requirements of the charter of the city of Detroit (Title 6, chap. 7, § 11 charter of the City of Detroit), was an effectual har to plaintiffs’ canse óf action.
The trial judge sitting without a jury,’after hearing proofs and considering the arguments of counsel, held against defendant city on all the questions submitted, and a judgment was entered in' favor of plaintiffs in the sum of $90,852.38 on January 15, 1946.
In Detroit Municipal Employees Ass'n v. City of Detroit, 310 Mich. 480, a similar problem was considered regarding the necessity of presenting claims to the common' council as a condition precedent to maintaining an action thereon. In that case the Court said:
‘ ‘ The payment in 1937 of one-half of the claims of plaintiff’s assignors waived or obviated need of subsequent presentation for the other half of the same claims to the common council for audit. ’ ’
Decision there is controlling and neither plaintiffs nor their assignors were required to present their claims for audit or allowance.
Other questions presented in the instant appeal are controlled by our decision in the companion case involving employees of the board of education, decided on December 2, 1946. See Thal v. Detroit Board of Education, ante, 351.
The judgment is affirmed, with costs to appellees.
Carr, C. J., and Butzel, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred.
Ballantine’s claim and his assignment thereof were considered to be typical of all other claims and assignments. | [
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North, J.
This is an appeal by the employer and the insurer from an award of compensation to the second-injury fund in this State. See Act No. 10, pt. 2, § 8a, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8424-1, Stat. Ann. 1946 Cum. Supp. § 17.158 [1]). For convenience we herein refer to the employee, Frank D. Riley, as plaintiff. While in the employ of the defendant furniture company Riley came to his death October 20, 1944. He left no dependents. After a hearing in response to its order to show cause, the department found: “the evidence is sufficient to support the finding of the deputy commissioner that the fatal injury arose out of and in the course of the employment,” and ordered the defendant furniture, company “to pay $1,000 into the State treasury for the second-injury fund.” Two contentions are made by appellants. (1) That there is no evidence of a personal injury within' the meaning of the compensation act, (2) that there is no evidence that the employee’s death resulted from a personal injury or evidence from which that inference may be drawn. .
At the outset it may be noted that there is no claim that the employee’s death resulted from an occupational disease. So the controlling question on this appeal narrows down to a determination of whether there is any competent testimony from which the inference may be reasonably drawn that plaintiff suffered a personal injury arising out of and in the course of his employment, which injury caused his death.
Plaintiff was employed as a truck driver by defendant furniture company, and in part his duties involved the delivery of its merchandise. On October 20, 1944, with the assistance of one Steve Szabo, plaintiff undertook to deliver some furniture and a mattress. While carrying the mattress upstairs with Szabo’s assistance, plaintiff fell backward and down about seven steps of the stairway. The record disclosed nothing on or about the stairway to which the fall could be attributed and Szabo testified that he did not have any idea what caused plaintiff to fall. Szabo heard the noise of the deceased rolling down the stairs' and thereupon went to the foot of the stairs and picked plaintiff up. The latter was either dead at the time or died within a space of two minutes. After the fall there was a cut over the right frontal area of plaintiff’s forehead about one and a half inches and there were abrasions over his left forehead, on the' left cheek and the left upper lip. An autopsy was performed from which it was found there existed the cuts and abrasions above noted, that plaintiff’s heart was very large and dilated, no valvular lesion, that the coronaries were patent, that the myocardium exhibited' some diffuse fibrosis, that the kidneys were congested, that there was edema of the lungs, and there was no evidence of skull fracture. Further, “There is some edema of the brain with atrophy of the evolutions. No hemorrhage anywhere within the cranial cavity. No evidence of fracture of cervical vertebrae.”
The ’ cause of death was given as: “ Terminal cardiac failure, and chronic myocarditis; ” and there was testimony that this type of heart failure could occur with or without physical exertion, and that deceased’s condition was such that his chronic condition could cause a heart attack or heart failure at any time. In appellee’s brief it is pointed out that the employer’s basic report of an industrial injury stated: “While carrying mattress, injured employee fell downstairs. Cause of fall unknown.”
Since by recent amendments to the workmen’s compensation act injuries and deaths resulting from occupational diseases have been made compensable, many borderline cases, of which the instant case is typical, have been presented. In deciding such controversies it seems imperative that three principles be kept in mind. (1) The burden of proving a right to compensation is on the party asserting that right. Pucilowski v. Packard Motor Car Co., 278 Mich. 240; Veek v. Wesley Freight Co., 306 Mich. 485. (2) In awarding compensation to a plaintiff, the department may not indulge in the assumption of a mere possibility in the nature of a guess as to whether plaintiff is entitled to compensation. Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 137; Marman v. Detroit Edison Co., 268 Mich. 166. (3) Workmen’s compensation provided by the act is not intended to be either sickness, health, or life insurance or to provide benefits for employees suffering from ordinary diseases of life. Rector v. Ragnar-Benson, Inc., 313 Mich. 277; Act No. 10, pt. 7, § 1, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8485-1, Stat. Ann. 1946 Cum. Supp. § 17.220).
Notwithstanding in a case where compensation, if payable at all, is payable to the second-injury fund it is permissible practice to institute the proceedings by an order to show cause (Criss v. Taylor Produce Co., 313 Mich. 457), nonetheless such procedure does not alter the long-established rule of burden of proof. That burden still remains upon the party seeking an award of compensation; and in this type of case, since the State treasurer is the custodian of the fund, the burden of proof must be considered • to be upon the State treasurer or his representative.
Admittedly, the department in deciding a case of this character is justified in drawing reasonable inference from established facts. In Marman v. Detroit Edison Co., cited above, we said:
‘ ‘ The department of labor and industry may draw reasonable inferences from established facts and circumstances, but may not indulge in the assumption of a possibility based on a possibility and a consequent guess. See Standard Drug Store v. A. E. Wood & Co., 227 Mich. 333. ’ ’
But in Ginsberg v. Burroughs Adding Machine Co., supra, we held:
“If an inference favorable to the applicant'can only be arrived at by conjecture or speculation the applicant may not recover. So if there are two or more ‘inferences equally consistent with the facts, arising out of the established facts, the applicant must fail.”
Again in Chaudier v. Stearns & Culver Lumber Co., 206 Mich. 433, 442 (5 A. L. R. 1673), we said:
“And where two inferences equally consistent with the facts arise out of established facts, one involving liability on the part of the employer under the act and the other relieving him from liability, the applicant must fail.”
Viewed in the light of the foregoing authorities, and others to the same effect which plight be cited, we are of the opinion that the department was in error in. awarding compensation in the instant case. As we review the record it is a matter of pure speculation or guess as to whether the employee died as a result of his heart ailment, which admittedly is an ordinary disease of life to which the public is generally exposed and not compensable, or whether his death was occasioned by some sort of personal injury arising out of and in the course of his employment. The law applicable to cases wherein the employee’s death results from heart disease in the course of his employment is well stated in Lohndorf v. Peper Bros. Paint Co., 134 N. J. Law, 156 (46 Atl. [2d] 439). We quote:
“T^ere is a presumption that any death from heart disease is the result of natural causes. Coronary thrombosis ‘ordinarily ensues from coronary sclerosis or other morbid state. * * * The onus is on claimant to establish that the asserted accident ivas at least a contributory cause without which the occlusion would not have occurred.’ Schlegel v. H. Baron & Co., 130 N. J. Law, 611 (34 Atl. [2d] 132). * * * ‘ The law places the burden of proof on the petitioner for compensation. * * * That must be a rational inference, i. e., based upon a preponderance of probabilities according to the common experiences of mankind. It is required to be a probable or more probable hypothesis with reference to the possibility of other hypotheses.’ ”
Under the record in this case it is a matter of pure guess or mere speculation as to whether a heart seizure caused plaintiff’s death and the attendant fall down the stairs, or whether in the' course of his employment from some unknown cause he fell, sustained personal injuries, and a fatal heart attack was thereby precipitated. Under the latter assumption the department awarded compensation, hut if death resulted from heart disease compensation should he denied. Upon the record before us, it cannot he said that the party seeking the award of compensation has established a right thereto.
The award of $1,000 to the State treasury for the second-injury fund is vacated. No costs on this appeal.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. Dethmers, J., did not sit.
See 2 Comp. Laws 1929, § 8417, as amended by Aet No¡ 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8417, Stat. Ann. 1946 Cum. Supp. §17.151).—Reporter. | [
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Per Curiam.
The issue for decision in this matter is whether the plaintiff’s asserted cause of action is barred by the applicable statutes of limitations. We hold that to the extent the plaintiff’s claim can be construed as based on medical malpractice it is barred, but that to the extent it can be construed as a claim for ordinary negligence it is not. Accordingly, we reverse in part the decisions of the circuit court and the Court of Appeals.
I
The plaintiff was born on December 3, 1954. She was born prematurely and was treated for complications caused by that fact at defendant hospital. The treatment involved the administration of oxygen to the plaintiff. It is claimed that the plaintiff was administered excessive amounts of oxygen sometime between December of 1954 and February of 1955. It is further alleged that as a result of the administration of excessive amounts of oxygen, the plaintiff suffered total and permanent blindness.
The plaintiff filed suit against defendant hospital on October 16, 1975. In her complaint, the plaintiff accused the defendant hospital and its agents and employees of negligence. Defendant hospital countered with a motion for accelerated judgment, claiming that the applicable statute of limitations had run. The circuit court agreed with defendant hospital and granted the motion for accelerated judgment.
Plaintiff pursued an appeal to the Court of Appeals. The Court of Appeals, in an unpublished per curiam opinion, affirmed.
II
The statute of limitations applicable at the time the plaintiff was injured allowed two years to bring a suit based on malpractice and three years to bring a negligence action. 1948 CL 609.13, subds (2) and (3); MSA 27.605, subds (2) and (3).
However, where, as here, the plaintiff was a minor at the time the cause of action allegedly arose, the running of the aforementioned statute of limitations was tolled until the attainment of the age of majority. Plaintiff was entitled to bring a malpractice suit within two years after attaining the age of majority and to bring a negligence action within three years after attaining the age of majority. When the plaintiff sustained her injuries, the age of majority was 21. At that time, calculating prospectively, she would have had until December 3, 1977 to file any malpractice claim and until December 3, 1978 to bring any negligence claim. 1948 CL 609.15; MSA 27.607.
Subsequently, the Legislature reduced the amount of time which a plaintiff, after attaining majority, could wait to bring suit upon a claim accruing during infancy to one year. 1961 PA 236, § 5851(1); MCL 600.5851(1); MSA 27A.5851(1). Also, on January 1, 1972, the Age of Majority Act became effective, reducing the age of majority from 21 to 18. 1971 PA 79; MCL 722.52; MSA 25.244(52). If these changes were applicable to the plaintiff, the time within which she could have instituted suit for malpractice would have been reduced by four years, and the reduction as to a cause of action for negligence would have been five years. Both the circuit court and the Court of Appeals concluded that these changes were applicable to the plaintiff and barred her suit.
However, when the Legislature reduced the amount of time which a plaintiff could wait to bring suit after attaining age 21 to one year, it also enacted a saving clause which mandated that the limitation of actions would be governed by the law in effect at the time the cause of action accrued. MCL 600.5869; MSA 27A.5869. See, also, MCL 600.9905; MSA 27A.9905.
In addition, when the Legislature reduced the age of majority from 21 to 18, it again enacted a saving clause, MCL 722.54; MSA 25.244(54), which provides:
"This act does not impair or affect any act done, offense committed or right accruing, accrued or acquired, or a liability, penalty, forfeiture or punishment incurred before this act takes effect, but the same may be enjoyed, asserted and enforced, as fully and to the same extent as if this act had not been passed.”
In March of 1972, MCL 600.5851; MSA 27A.5851 was amended to conform to the Age of Majority Act. 1972 PA 87. A new subsection was added which provides:
"With respect to a claim accruing before the effective date of Act No. 79 of the Public Acts of 1971, being sections 722.51 to 722.55 of the Compiled Laws of 1948, disability of infancy shall be considered removed as of the effective date of Act No. 79 as to persons who were at least 18 years of age but less than 21 years of age on January 1, 1972 and shall be considered removed as of the eighteenth birthday of a person who was under 18 years of age on January 1, 1972.” MCL 600.5851(6); MSA 27A.585K6).
The plaintiff was under 18 years of age on January 1, 1972. Accordingly, the disability of infancy was removed as of her eighteenth birthday —December 3, 1972. However, the two-, and three-year post-age-of-majority limitation periods available to the plaintiff on the date when the injury occurred were not affected because these periods were preserved by the aforementioned saving clauses. MCL 600.5869, 722.54; MSA 27A.5869, 25.244(54).
The Court of Appeals regarded this case as controlled by Tyner v Fishman, 56 Mich App 240; 223 NW2d 651 (1974), Smith v Bordelove, 63 Mich App 384; 234 NW2d 535 (1975), lv den 395 Mich 772 (1975), and Foster v Woods, 71 Mich App 147; 246 NW2d 387 (1976), lv den 399 Mich 805 (1977). These cases are distinguishable because each plaintiffs cause of action arose after the January 1, 1963 effective date of MCL 600.5851(1); MSA 27A.5851(1) and the saving provision of MCL 600.5869; MSA 27A.5869 therefore could not apply. Because the Court of Appeals had no occasion to consider the effect of this saving clause on the period of limitations applicable to a claim accruing to an infant prior to January 1, 1963, Tyner and succeeding cases failed to note that such claims were not subject to the one-year rule of MCL 600.5851(1); MSA 27A.5851(1).
Thus we conclude that by virtue of the operation of the aforementioned saving clauses, the plaintiff could permissibly file a negligence claim within three years of her eighteenth birthday. A malpractice claim would have to be filed within two years of the plaintiffs eighteenth birthday. As noted, the complaint in the instant case was filed oii October 16, 1975. To the extent that the plaintiffs claim alleges other than medical malpractice negligence on the part of defendant hospital, it was not subject to dismissal based on the contention that it was barred by the statute of limitations.
Therefore, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgments of the circuit court and the Court of Appeals and remand the matter to the circuit court for further proceedings consistent with this opinion.
Costs to plaintiff.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Boyles, J.
On October 18,1944, plaintiff Ernest J. Benson, as assignee of the other persons ■ named in the caption, filed in the court of claims a state-: ment .of claim against the State of Michigan, the State hospital commission, and the Lapeer State home and training school. In it the plaintiff asked for damages alleged to have been caused to the property of plaintiff’s assignors by certain inmates of said home and training school. The statement of claim alleges that plaintiff’s assignors are the owners of certain cottages located on elevated grounds near the State home and training school (for feeble-minded) at Lapeer; that on December 10 and 11,1943, a certain number of the inmates of said home and training school escaped therefrom, trespassed upon and damaged the property of plaintiff’s assignors. Plaintiff’s statement of claim further alleges that the home and training school is a State agency to confine feeble-minded persons, many of whom are unsafe persons to be at large, that it was the duty'of its officers, doctors, superintendents and agents to prevent their inmates from escaping, entering upon the property of plaintiff’s assignors and committing vandalism, that they were fully aware of the tendencies of such inmates and their mental deficiencies, that they knew that inmates had previously escaped, trespassed on plaintiff’s assignors’ property and committed acts of vandalism, that it was the duty of the State and the State hospital commission, to engage careful and competent officers, agents and employees, and for them to take the necessary precautions to prevent such escapes and damage to property, all of which duties plaintiff Claims have been breached by the defendants, wherefore plaintiff’s assignors have suffered the damage for which recovery is sought. It was stated that the cause of action was based on Act No. 135, Pub. Acts 1939. (Comp. Laws Supp. 1940, §§ 13862-1— 13862-25, Stat. Ann: 1940 Cum. Supp. §§ 27.3548 [1]- ■ 27.3548 [25]), as amended by Act No. 137, Pnb. Acts 1941, and Act No. 237, Pub. Acts 1943 (Comp. Laws Supp. 1943, §§ 13862-4 et seq., Stat. Ami. 1944 Cum. Supp. §§ 27.3548 [1] — 27.3548 [25]).
The last mentioned (1943) act purports to waive •the State’s defense of governmental immunity from liability for torts of its officers and employees, and the sole question presented in the instant case is whether this act is constitutional. Upon the filing of plaintiff’s statement in the court of claims, the defendants filed' a motion to dismiss on the ground that the 1943 act was not covered by the title of the court of claims act, was unconstitutional, and that as a matter of law the defendants could not be held to respond in damages for the tortious acts complained of. The circuit judge, presiding in the court of claims, held with, the State and dismissed the claim. Plaintiff appeals.
The precise question for decision is whether Act No. 237, Pub. Acts 1943, supra, purporting to amend section 24 of the court of claims act, thereby waiving the defense of governmental immunity, violates that. part of article 5, § 21, of the State Constitution (1908), wherein it is provided:
“No law shall embrace more than one object, which shall be expressed in its title.”
The title of Act No. 135, Pub. Acts 1939 (court of claims act), has never been amended. It provides:
“An act to create a court of claims; and to prescribe its jurisdiction, powers and duties, the practice and procedure therein, and the time within which actions against the State and any department, commission, board, institution, arm or agency thereof may be brought. ’ ’
There is no question but that the State, by enact- ■ ing the court of claims act, thereby consented that the State, and its departments, commissions, boards, institutions, arms and agencies might be sued in the court of claims on claims and demands, liquidated and unliquidated, ex contractu and ex delicto. Section 8 of the act so provides,'and the right has been recognized by this Court in subsequent decisions. Manion v. State Highway Commissioner, 303 Mich. 1; Abbott v. Michigan State Industries, 303 Mich. 575; McNair v. State Highway Department, 305 Mich. 181; Hersey Gravel Co. v. State Highway Department, 305 Mich. 333; Detroit Club v. State of Michigan, 309 Mich. 721; W. H. Knapp Co. v. State Highway Department, 311 Mich. 186; Western Electric Co, v. Department of Revenue, 312 Mich. 582,
As originally enacted in 1939, section 24 of the court of claims act provided:
“This act shall in no manner be construed as enlarging the present liabilities of the State and any of its departments, commissions, boards, institutions, arms or agencies. ’ ’
Under the above provision, it has been held that the State might avail itself of the defense of governmental immunity, in an action brought against it in the court of claims.
“Under provision of the court of claims act that it should in no manner be construed as enlarging the present liabilities of the State, the State’s immunity from liability while engaged in a governmental function is preserved because the waiver of such defense would enlarge the present liabilitie.s of the State (Act No. 135, § 24, Pub. Acts 1939).
“Since the existing liabilities of the State were not enlarged by the court of claims act, all those defenses which might have been interposed in actions at law and chancery remain unchanged save only tlie immunity from suit (Act No. 135, § 24, Pub. Acts 1939).” Manion v. State Highway Commissioner . (syllabi), supra.
1 ‘ The doctrine of sovereign immunity exists under the common law of the State and may not be held to* have been waived or abrogated except that the result has been accomplished by an express statutory enactment or by necessary inference from a statute.
“Statutes relating to claims for damages arising from negligence, malfeasance or misfeasance of State officers, departments, subdivisions or employees, relating to negligence in construction or maintenance of trunk line highways or relating to court of claims did not expressly or impliedly evince an intent to abolish defense of sovereign immunity as to claim against State highway department for alleged negligent maintenance of former United States highway then being repaved (1 Comp. Laws 1929, §§ 237, 238; Act No. 135, Pub. Acts 1939).
“The authority to waive defense of sovereign immunity is in the legislature and. until there is legislative action authorizing an officer or agent of the State to waive such defense, it may not be done by any officer or agent.” McNair v. State Highway Department (syllabi), supra.
However, the precise question involved in the instant case, as to whether section 24 of the 1943 amendment is unconstitutional as being in violation of article 5, • § 21, of the State Constitution, has not heretofore been raised or decided. In 1943 the legislature amended section 24 of the court of claims act, and, with certain exceptions, thereby abolished the defense of governmental immunity in actions brought in the court of claims. Section 24 was amended by Act No. 237, Pub. Acts 1943. (Comp. Laws Supp. 1943, § 13862-24, Stat. Ann. 1944 Cum. Supp. § 27.3548 [24]), to read as follows:
“Upon the happening of any event subsequent to November 1, 1943, which gives rise to a cause of action, .the State hereby waives its immunity from liability for the torts of its officer's and employees and consents to have its liability for such torts' determined in accordance with the same rules of law as apply to an action in the circuit court against an individual or a corporation, and the State hereby assumes liability for such acts, and jurisdiction is hereby conferred upon the court of claims to hear and determine all claims against the State to recover damages for injuries to property or for personal injury caused by the misfeasance or negligence of the officers or employees of the State while acting as such officer or employee. Such claim must be submitted pursuant to procedural provisions of the court of claims act. The provisions of this act shall not apply to (a) any claim for injury to or death of a prisoner, or for services rendered while an inmate of a penal institution; (b) any claim arising out of the injury to or death of an inmate of any State institution in connection with the rendition of medical or surgical treatment; (c) any claim for property damage or personal injury caused by the Michigan State troops and/or the national guard when called into the service of the State.”.
Under and by virtue of this waiver of the defense of governmental immunity plaintiff brought the present suit in the court of claims. In moving to dismiss, the State admits the enactment of the amendment, but claims it is void, being in violation of article 5, § 21, of the State Constitution. Does the court of claims act, as thus amended by Act No. 237, Pub. Acts 1943, embrace more than one object, not expressed in its title?
At the outset, we must, recognize certain fundamental rules of law which govern decision, where the question of the constitutionality of a statute is involved. These have recently been stated as follows:
“ ‘No rule of construction is better settled in this country, both upon principle and authority, than that the acts of a State legislature are to be presumed constitutional until the contrary is shown; and it is only when they manifestly infringe some provision of the Constitution that they can be declared void for that reason. In eases of doubt, every possible presumption, not clearly inconsistent with the language and the subject matter, is to be made in favor of the constitutionality of the act.
“ ‘The power of declaring laws unconstitutional should be exercised with extreme caution, and never where serious doubt exists as to the conflict. ’
‘ ‘ This rule has been repeatedly quoted and applied in subsequent decisions in this State. Bowerman v. Sheehan, 242 Mich. 95 (61 A. L. R. 859); Cady v. City of Detroit, 289 Mich. 499; In re Phillips, 305 Mich. 636.” Johnson v. Commissioner of Agriculture, 314 Mich. 548, 557.
“If there is any invalidity in section 5a, supra, it must appear so clearly as to leave no room for any reasonable doubt that it violates the Constitution, for every reasonable presumption and intendment must be resolved in favor of the constitutionality of the act. Cady v. City of Detroit, 289 Mich. 499; In re Brewster Street Housing Site, 291 Mich. 313.” Case v. Liquor Control Commission, 314 Mich. 632, 638.
Plaintiff has planted his right to sue the State, on Act No. 135, Pub. Acts 1939. By virtue of this act, the State has consented that it may be sued, in the court of claims. That court has jurisdiction of the instant suit. Conceding that the court of claims has jurisdiction over suits against the State, expressly referred to in the title of the act, it is rather difficult to understand why the court should be excluded from having jurisdiction over a defense which may be asserted in such suits, as a bar to recover}. The title of the court of claims act broadly refers to the jurisdiction of the court over all claims that may be asserted against the State, and, in a general way, to the powers and duties of the court. Immunity of the State from liability, for torts alleged to have been committed by its officers and employees, on the ground that the alleged tortfeasors were engaged in a governmental function, is a matter of defense which the State, in the absence of any statute to the contrary, may interpose in any suit brought against the State in the court of claims. It is a matter of defense which, if and when interposed by the State, must be considered and passed upon by the presiding judge in the court of claims. This is an essential part of the powers and duties granted to or imposed upon the court, to consider, and determine, whether the.defense is a bar to the suit. Plainly this fact is recognized by the Stkte when it seeks to interpose the defense of governmental immunity in the instant case to prevent recovery by the plaintiff, by claiming thal Act No. 237, Pub. Acts 1943, is unconstitutional, wherefore the State may interpose the defense. Iii effect, the State now argues that the determination of this question- is not within the powers' and duties of the court of claims because the-title is not broad-enough to include it, although at the same time the State submits 'the question to the court of claims, for decision.
General rules have been announced by this Court, where the claim is made that a statute is void as contravening article 5, § 21, of the State Constitution (1908).
“It is the contention of appellant that this amendment is unconstitutional, for the reason that the title to the act is not broad enough to cover the matter ombracéd in the amendment, and is therefore in violation of section 20, art. 4, of the Constitution (1850). This Court has frequently held that, .if the amendment might have been incorporated in the act under its original title, this section is not violated. # # *
“Any provisions germane to the subject expressed in the title may properly be included in the act, or added thereto by amendment. It is sufficient if the title fairly expresses the subject, or is sufficiently comprehensive to include the several provisions relating to or connected with that subject. Cooley on Constitutional Limitations (6th Ech), p. 172; People, ex rel. Drake, v. Mahaney, 13 Mich. 481; People v. Kelly, 99 Mich. 82; Soukup v. Van Dyke, 109 Mich. 679; Fortin v. Bay City Traction & Electric Co., 154 Mich. 316. We think the title in question is clearly broad enough to comprehend the subject matter of the amendment.” Westgate v. Township of Adrian, 161 Mich. 333, 334, 335.
“The title need not serve as an index; it is sufficient if it fairly expresses the subject of the legislation and conveys comprehension of its germane provisions. Westgate v. Township of Adrian, 161 Mich. 333.” Krench v. State of Michigan, 277 Mich. 168, 175.
“Appellant-s remaining constitutional objection is that the title fails to express the subject matter set forth in the body of the act.
“It is suggested that the public was not honestly informed by the title that the construction of an international bridge was authorized over the St. Clair river and that ferries might be acquired by the commission; that while the title indicates a program of public works, the body of the act does not provide such action, but merely thé erection of a single bridge.
“A similar argument was made in Young v. City of Ann Arbor, 267 Mich. 241. We said in that case:
“ ‘It is contended the act violates article 5, § 21, of the Constitution which provides:
“ ‘ “No law shall embrace more than one object, which shall be expressed in its title.”
“ ‘(a) “A title is but a descriptive caption, directing attention to the subject matter which follows.” Loomis v. Rogers, 197 Mich. 265.
“‘(b) “If the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions .in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met.” Loomis v. Rogers, supra.’
“The general object of the act is ‘certain public works;’ and a ‘State bridge commission’ is created. One reading the title might have reason to suppose that the act included bridges and a reading of the act by one whose attention was challenged by the title would lead to information that the ‘works’ embraced an ‘international bridge,’ et cetera.
“The remainder of the statute is germane to its main object and the title does not offend the consti-. tutional provision quoted. Regents of University of Michigan v. Pray, 264 Mich. 693, and People v. Carroll, 274 Mich. 451.” Attorney General, ex rel. Eaves, v. State Bridge Commission, 277 Mich. 373, 384, 385.
For obvious reasons the question whether a law embraces more than one object, and whether it is within the scope of its title, must depend upon the circumstances peculiar to each individual case. However, there are two early decisions of this Court which have considerable similarity to the circumstances of the instant case.
Act No. 10.8, Laws of 1871, was titled merely: -
“An act to establish an insurance bureau.”
Besides establishing the bureau and setting forth its powers and duties, the act (in section 7) changed the basis of taxation ©f insurance companies.. In People, ex rel. Connecticut Mutual Life Ins. Co., v. State Treasurer (1875), 31 Mich. 6, the Court held that this change in the duty of insurance companies was within the scope of the title. The Court said (pp. 17,18):
“The constitutional provision, in regard to the titles of acts, and in regard to the union of separate subjects in the same act, has been so often and so fully considered in this and other States, as to render it quite unnecessary to enter upon a general discussion of the subject in connection with this act of 1871.
“There is nothing in the nature or framework of the law to suggest any real ground for excluding it from the class of enactments uniformly sustained against such objections as are raised here.
“If this act is subject to these objections, the prior one of 1869 must certainly be so, and we do not understand that counsel regard that law as open to them.
“The provisions in the act of 1871 relating to taxation appear to be neither foreign to the object of the residue of the statute, or insufficiently expressed in the title.
“In declaring in the language of the title that the act was one ‘to establish an insurance bureau,’ the legislature must be understood as saying, that it was made up of such provisions and details as were deemed suitable for the object; and under such title, and in keeping with, and in furtherance of, the single object expressed, it was competent to go further than to enact mere organic provisions. It was certainly admissible to include any just and pertinent regulations respecting the course of action to be observed by the bureau as a State agency, towards those engaged in the business of insurance; and it was equally admissible to include any just and appropriate provisions for prescribing the duty due to the State in the matter of taxation from insurance companies. The fundamental principle of the law was, the marking out the reciprocal rights and duties of the State and those carrying on insurance, and to provide the machinery for administration, in so far as the State by a political agency might properly supervise.”
In the case now under consideration the 1943 statute reversed the rule originally enacted in the court of claims act, and in its place substantially abolished the defense of governmental immunity ‘in suits brought in the court of claims. Similarly, in the case of First National Bank of Ovid v. Steel, 136 Mich. 588, a statute made a change in the defendants’ liability, incident to the enactment of a new means of bringing suit. Act No. 195, Pub. Acts 1897 (3 Comp. Laws 1897, § 10421), was entitled:
“An act to provide for bringing actions of assumpsit in certain cases, and to provide that in such cases the cause of action shall survive.”
In First National Bank of Ovid v. Steel, supra, it was urged that because the act also changed some of 'the incidents of a tort judgment into those of an action on contract, the act embraced more than one object, and that this latter object was not within the title. The Court held that the change in defendants’ liability was within the 'scope of the title. The Court said (p. 591):
“It is also insisted that, if one who pays a judgment obtained for fraud under this statute has a right to contribution from his codefendants, the statute accomplishes two objects, viz., (a) it permits an action for fraud to be enforced by a declaration in assumpsit, and (b) it gives to the judgment thus obtained some of tbe incidents of a judgment in an action founded on contract,' and foy that reason tbe statute violates .section 20 of article 4 of tbe State Constitution (1850). We do not think this point well taken. The statute has only one general object. It relates only to .actions for fraud, and provides that assumpsit may be brought to recover damages, and that the cause of action shall survive. ’ There is necessarily involved in . this object the legislative purpose to give to the judgments rendered on such causes of action some of the incidents of judgments in assumpsit. That, however, is the same, and not a different, object.
“It results from the same reasoning that the act is not, as defendants insist, broader than its title.”
The question as to whether the State might interpose the defense of governmental immunity from liability as a bar to recovery in a suit against the State in the court of claims, is essential to the jurisdiction of that court, and the powers and duties of the presiding judge. In the court of claims act as originally enacted in 1939, section 24 was inserted by the legislature for the obvious purpose of guiding the court in those cases in,which the State might seek to defeat the claim by interposing the defense of governmental immunity. The legislature, in section 24 as originally enacted, declared that the State was not waiving the defense of governmental immunity. In 1943 the legislature reversed the rule-such defense was specifically waived, the State definitely assumed liability for the torts of its officers and employees, and declared that “jurisdiction is hereby conferred upon ‘the court of claims to hear and determine all claims against the State to recover damages for injuries to property or for personal injury caused by the misfeasauce' or negligence of the officers or employees of the State while acting as such officer or employee.”
We conclude that Act No. 135, Pub. Acts 1939, as amended by Act No. 237, Pub. Acts 1943, is not unconstitutional on the grounds asserted by the State in the present case.
We do not overlook the fact that Act No. 135, § 24, Pub. Acts 1939, as amended by Act No. 237, Pub. Acts 1943, has since been repealed by Act No. 87, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 13862-26 et seq., Stat. Ann. 1946 Cum. Supp. § 27.3548 (41) tet seq.) and a different rule of law enacted governing the defense of governmental immunity in certain cases. However, plaintiff’s cause of action, if any, arose after the effective date of Act No. 237, Pub. Acts 1943, and before the effective date of the repeal by Act No. 87, Pub. Acts 1945.
The order dismissing plaintiff’s suit is set aside and the case remanded to the court of claims for further proceedings. No costs, a public question being involved.
Butzel, C. J., and Cakr, Bushnell, Sharpe, Reid, and North, JJ., concurred.' Dethmers, J., did not sit.
Superseded by Act No. 314, chap. 11, §1, Pub. Acts 1915 (3 Comp. Laws 1929, § 14007 [Stat. Ann. § 27.651]); and repealed by the judicature act (Act No. 314, chap. 81, §1, Pub. Acts 1915 [3 Comp. Laws 1929, § 16287 (Stat. Ann. § 27.3545)]). | [
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] |
North, J.
On March 22, 1944, three agents of the Michigan department of conservation visited the premises of defendant Clare Thomas, a licensed commercial fisherman in Tuscola county. With the permission of defendant, the agents inspected the fishing equipment and in one net shed, found 199 gill nets with mesh of more than 2% inches and less than 4% inches, averaging about 3% inches. A portion of these nets had been used and the balance were new and unused. The officers (agents) seized these nets as being illegally possessed. A petition was filed in the circuit court of Tuscola county for their confiscation. Hearing was had on May 9, 1944, with the result that the trial court determined the seized nets were not subject to confiscation as being illegally possessed and ordered them returned to the defendant. It is from this determination that the plaintiff has appealed.
The action is predicated upon Act No. 84, Pub. Acts 1929 (2 Comp. Laws 1929, § 6307 et seq.), as amended by Act No. 339, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 6307 et seq., Stat. Ann. and Stat. Ann. 1944 Cum.’Supp. §13.1491 et seq.). It may be noted that Act No. 323, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 6311, Stat. Ann. 1946 Cum. Supp. § 13.1496), amended Act No. 84, as amended in 1939, by adding, among other changes, the words “It shall be unlawful to use or possess any gill net having meshes over 2% inches but less than 4% inches. ” However, Act No. 339, Pub. Acts 1939, without this 1945 amendment must be applied in determining the present controversy, since Thomas’ nets were seized prior to the 1945 amendment.
In the course of wise protection of the natural resources of the State, the legislature has enacted various laws, including laws governing the size of gill nets which may be used by licensed commercial fishermen for the talcing of the various fish in the Great Lakes. A gill net has been described as follows:
“A gill net is much like a seine, except in its method of use. Its meshes are made of a proper size to permit the head of the fish to pass through beyond the gills, which prevents the fish from withdrawing it, and it is thereby trapped and captured.” Hilborn v. Smith, 148 Mich. 474.
It is obvious therefore that the regulation of the size of the fish to be caught may be attained by regulating the size of mesh which may be used.
Section 5 of Act No. 339, Pub. Acts 1939, is of considerable length and in detail regulates the size of mesh of gill nets depending on the kind of fish to be caught. In some subsections, both a, maximum and minimum size of mesh is established, for example, “(b) Grill nets with meshes of not less than 2% inches or more than 2% inches shall be used for the purpose of taking herring” et cetera. See, also, subsection (e). Such maximum and minimum limitations of size would indicate that the catching of fish either too" large or too small to become trapped in such mesh is not desirable under the theories of good fish conservation.
But the statute contains such provisions as the following:
“(b) * * * ' Provided further, That in Lake Huron gill nets having meshes not less than 2% inches may be used for taking chubs and herring. # * #
“(c) Grill nets with meshes of not less than 2% inches may be used for the purpose of- taking blue back herring wherever they will not interfere with or take whitefish or lake trout.”
Subdivision (d) also contains a provision for the use of gill nets with meshes not less than 2% inches without any requirement as to maximum size. It is important to note that in some of the provisions of the statute, such as those last above noted, no maximum size of mesh is specified. Instead, those provisions of the statute merely fix the minimum. It seems too clear for argument that the words used in the statute “not less than 2% inches” is merely á negative way of saying at least 2% inches or 2% inches or more. It is apparent that in specifying only such minimum sizes of mesh, the legislature merely determined that the catching of fish too small to be trapped in such a net is not desirable or lawful. However, there is nothing in the subsections last above noted to prevent a commercial fisherman from ‘ using in the manner provided in the statute a net of larger mesh than the specified minimum. Hence under the strict reading of this penal statute, since the fisherman’s use of nets with a mesh of not less than 2% inches without limitation as to the maximum size of the mesh was permitted, obviously Thomas’ possession of such nets was permissible and not unlawful at the date of their seizure.
The language of section 5 (i) of the act as amended by Act No. 339, Pub. Acts 1939, “All illegal mesh twine, in use or possession, shall be confiscated by the director of conservation” has not been overlooked in arriving at the above conclusion. While the 1945 amendment above referred to now makes it illegal to possess nets of the mesh size taken from defendant Thomas, yet under the act prior to that amendment and at the time of seizure the illegality of such nets was predicated only on the use to which they were put. In this qase no illegal use having been shown, plaintiff’s action must fail. The determination of the trial court is affirmed, with costs to the defendant, and defendant allowed a reasonable time to dispose of these nets after their return to him as ordered by the trial court.
Buteel, C. J., and Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. Dethmers, J., did not sit. | [
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] |
Boyles, J.
This is a companion ease to the appeal of Laura H. Cristy in the above condemnation proceedings, in which Mr. Justice Sharpe, wrote for the Court for reversal in an opinion handed down December 2, 1946. See In re Memorial Hall Site (City of Detroit v. Cristy), ante, 215. The first question urged in the instant case for reversal is the same as in the Cristy Case, namely, that the court erred in excluding proof of the 1945 assessed valuation. In the present case this applies to parcel No. 15. In the above case we have held that this testimony should have been admitted. Real estate is supposedly assessed at its true cash value. The Detroit city charter, title 6, chap. 2, § 1, so requires. The city fixed a current 1945 assessed valuation for parcel No. 15 as the basis for obtaining tax money for governmental purposes. The city now seeks to obtain the land itself, for public purposes. While the 1945 assessed valuation does not determine with finality the fair market value in this condemnation case, it. does have a material bearing .on the issue as to what is the 1945 fair market value of the property. When offered hy the defendants in condemnation proceedings, the assessed valuation for the current year placed by the city on the property in question is in the nature of an admission against interest. Refusal to admit this proof when offered by the defendants was prejudicial to them and the .award in this case must be set aside.
Counsel for opposite parties rely on two different decisions here which they claim are in conflict. Mr. Justice Sharpe, in the companion (Cristy) case, quotes from Chamberlin v. Wagar, 272 Mich. 594, 598, as follows:
“While the amount property is assessed at is not determinative of its true worth, it nevertheless has some probative force.”
Counsel for plaintiff rely on O’Donnell v. Oliver Iron Mining Co., 273 Mich. 27, 39, where the Court said:
“For tax purposes the property was assessed for $3,650 although this is not proof of real value.”
When read in connection with the cpntext, the apparent inconsistency between these statements disappears. In both case§, proof of assessed valuation was received and the assessed values were considered, along with other testimony, in determining the true cash or market value. Although the question of admissibility apparently was not raised, in both eases a precedent was laid in holding that such testimony is admissible.
In the present case the principal witness, offered by the city to proye 1945 market values of each of the 28 parcels involved in the case, was* a qualified real estate broker and appraiser of many years’ experience in estimating real estate values in Detroit. He testified that in arriving at such values he took into consideration, among other things, the taxes. The court had previously ruled, following argument by counsel for the owners of the respective parcels, that none of such owners would be permitted to introduce evidence of the assessed valuation of the respective parcels, either for 1945 or for previous years. -Counsel for the defendants were also excluded from cross-examining this witness as to the city’s assessed valuation for 1944. Such cross-examination should have been permitted, for the purpose of testing the credibility of the witness. Counsel' for defendants also attempted to cross-examine this witness as to the city’s assessed valuations for the preceding 20 years. He was not the city assessor and there was no indication that he had anything to do with assessing the property in question for taxes. The record shows that counsel agreed that the assessed valuation on parcel No. 15 ranged in successive years from $10,030 in 1925 to $3,830 in 1944, and that it was assessed for $4,050 in 1945. The comparison between the assessed valuations for 1944 and 1945 might well have been considered a proper subject for such cross-examination, within the discretion of the court. It was not error to exclude the defendants from placing before the jury the assessed valuations beginning in 1925, to be used in cross-examination. The question for consideration by the jury was as to the -value of parcel No. 15 in 1945, not for the previous 20 years. Proof of assessed valuations as far remote as 1925 and the ensuing years would necessarily open debate as to changed conditions, nation-wide depression or prosperity, inflation or depreciation of values for many reasons which would not have any material relevancy to the issue as to the fair market value in 1945. Such testimony is considered too remote to have any material probative value. It was not error for the court to refuse to allow it for the purpose of cross-examination. For the same reason, the court did not err in excluding reference to an appraisal made in 1924 by a local committee of the Detroit real estate board.
Appellants also claim that the court erred in excluding proof of a bona fide offer to purchase the property. A witness for appellants was asked:
“What discussions have you had with prospective purchasers with respect to this particular parcel?”
This would have been hearsay. No proper foundation was laid for receiving any testimony of a bona fide offer to ptírchase. City of Kalamazoo v. Balkema, 252 Mich. 308. The testimony as it was offered was inadmissible.
Appellants also attempted to offer in evidence a 'transcript of probate proceedings showing who owned the property in 1927, mainly for the purpose of showing an appraisal of the property in probate court in 1927. There was no dispute as to ownership, and the transcript was properly excluded for reasons hereinbefore stated.
For the reason given in the Cristy Case, supra, the award is set aside and. a new trial granted, with costs to appellants.
Carr, C. J., and Butzel, Bushnelh, Sharpe, Reid, North, and Dethmers, JJ., concurred. | [
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] |
Boyles, J.
Plaintiffs are female bartenders in Detroit who filed the instant bill of complaint to enjoin the liquor control commission from attempting to enforce section 19a of the liquor control act as added by Act No. 133, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 9209-34a. Stat. Ann. 1946 Cum. Supp. § 18.990 [1]). The case was heard by Judge John Y. Brennan on a motion to dismiss which was filed by the defendant commission, and which motion was granted. From the order dismissing their bill of complaint plaintiffs appeal. The motion to dismiss was based on the following grounds:
“1. That the bill of complaint fails to state a cause of action entitling plaintiffs to any relief;
“2. That the regulation and control of liquor traffic is within the police power of the State, and neither the plaintiffs herein nor any other persons have acquired any vested rights, nor may such persons acquire any vested rights in any regulation or privilege granted by the State;
“3. That the regulation complained of, to-wit, Act No. 8, § 19a, Pub. Acts 1933 (Ex. Sess.), as added by Act No. 133, Pub. Acts 1945 is a valid exercise of the legislative power of the State under the Constitution of the State.”
Section 19a of the liquor control act, added by Act No. 133, Pub; Acts 1945 (Comp. Laws Supp. 1945, § 9209-34a, Stat. Ann. 1946 Cum. Supp. § 18.990 [1]), provides that no person shall act as bartender in any establishment in cities of 50,000 population or over which is licensed to sell alcoholic liquor for consumption on the premises, unless such person is licensed by the commission. It further provides that each applicant for a bartender’s license shall be a male person 21 years of age or older, with certain exceptions. Shortly after the amendment went into effect plaintiffs filed this bill of complaint, in which they allege that they have been bartenders for many years, challenge the constitutionality of .said section 19a, and seek an injunction to prevent its enforcement.
There is no dispute as to the facts. Under the circumstances well-pleaded allegations of fact in the bill of complaint must be taken as true. Plaintiffs are experienced female bartenders, over 21 years of age, who do not come within the exceptions allowed by the amendment. The material part of the amendment is as follows:
“No, person shall act as bartender in any establishment licensed under this act to sell alcoholic liquor for consumption on the premises in any city now or hereafter having a population of 50,000 or more, unless such person shall be licensed by the commission under the provisions of this section: Provided, That the commission may adopt rules and regulations governing the licensing of bartenders in other political subdivisions of the State. Such licenses shall expire on the thirtieth day of April following the issuance -thereof. An annual license fee of $2.00 shall be paid by each applicant, which shall be credited to the general fund of the State. Each applicant for license shall be a male person 21 years of age or over, shall submit a certificate from his local board of health or health officer showing that such person is not affected with any infectious or communicable disease, and shall meet the requirements of the commission: Provided, That the wife or daughter of the male owner of any establishment licensed to sell alcoholic liquor for consumption on the premises may be licensed as a bartender by the commission under such rules and regulations as the commission may establish. * * * For the purpose of this act a bartender shall he construed to mean a person who mixes or pours alcoholic liquor behind a bar.” Act No. 8, § 19a, Pub. Acts 1933 (Ex. Sess.), as added by Act No. 133, Pub. Acts 1945.
It is plain that the foregoing section 19a limits the licensing of female bartenders to the wife and daughters of the male owner of a licensed liquor establishment. By it plaintiffs are excluded from obtaining bartenders’ licenses. They claim that this section is unconstitutional, that it bears no reasonable relation to the object of the legislation, that it is discriminatory as to them, class legislation, therefore, void.
Michigan Constitution (1908), art. 16, § 11, as ratified at the November election in 1932, provides as follows:
“The legislature may by law establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this State, including the retail sales thereof; and the legislature may also provide for an' excise tax on such sales: Providing, however, that neither the legislature nor such commission may authorize thé manufacture or sale of alcoholic beverages in any county in which the electors thereof, by a majority vote, shall prohibit the same.”
Pursuant to this authority the legislature enacted Act No. 8, Pub. Acts 1933 (Ex. Sess.) (Comp. Laws Supp. 1935, §§ 9209-16 — 9209-72, Stat. Ann. §§ 18.971-18.1028), creating the liquor control commission. Section 1 of the act (Comp. Laws Supp. 1940, § 9209-16, Stat. Ann. § 18.971) provides in part:
“Except as by this act otherwise provided, the commission shall have the sole right, power and duty to control the alcoholic beverage traffic and traffic in other alcoholic liquor within the State of Michigan, including the manufacture, importation, possession, transportation and sale thereof.”
In considering the powers of the liquor control commission under the Constitution, the Court has said:
“Except as limited or defined by statute, the Constitution itself vests the statutory commission with plenary power to control alcoholic beverage traffic in this State. This appears from the constitutional provision hereinbefore quoted. And such is our holding in Scott v. Township Board of Arcada Township, 268 Mich. 170; Noey v. City of Saginaw, 271 Mich. 595. * * *
‘ ‘ The constitutional provision that the commission ‘shall exercise complete control of all alcoholic beverage traffic within this State, including the retail sales thereof,’ is limited only by express provisions or necessary implications embodied in the legislative act (as amended) by which the commission was created and its powers, duties and limitations prescribed.” Terre Haute Brewing Co., Inc., v. Liquor Control Commission, 291 Mich. 73, 78, 79.
Section 19a gives the liquor control commission the authority to license bartenders in establishments which are licensed to sell alcoholic liquor for con sumption on the premises, and excludes from acting as such bartenders all persons who have not been so licensed by the commission. Plaintiffs claim (and it must be admitted) that in so doing the legislature has discriminated between male and female licensees, as to who may act as bartenders. The first ground on which plaintiffs claim that such discrimination is unconstitutional is that it has no reasonable relation to the object of tbe legislation, although the object is stated in the title of the act to be, in part, “to provide for the control of the alcoholic liquor traffic within the State of Michigan.” We are not in accord with this claim. The licensing of bartenders, to act as such in places where alcoholic liquor is sold, does have a reasonable relation to the control of the alcoholic liquor traffic and the sale of intoxicating liquor for consumption on the premises. Bartenders are frequently in charge of such places, contact the liquor-consuming public, are allowed to sell alcoholic liquor by the glass, and generally must decide whether the prospective purchaser is a minor or otherwise a proper person who can lawfully make the purchase and consume the liquor on the premises. Supervision over the activities of bartenders must be considered as essential to a proper control of alcoholic liquor traffic. Such supervision is within the purview of legislative powers conferred by the'amendment and has a reasonable relation to the object of the legislation. See Benson v. State Hospital Commission, ante, 66, and cases therein referred to.
Plaintiffs further challenge the constitutionality of section 19a on the grounds (1) that it deprives plaintiffs of the right to continue their occupation as bartenders, i. e., deprives them of rights without due process of law, and (2) that it is discriminatory, therefore void, as class legislation.' These claims are based, in part, on article 2, §§ 1 and 16, of the Michigan Constitution (1908), and amendment 14, § 1, of the United States Constitution, which are commonly referred to as the due process and equal protection provisions of the State and Federal Constitutions. The essence of plaintiffs’ claim in that regard is that they are deprived of equal protection of the law, and that the amendment by section 19a is unconstitutional class legislation.
Plaintiffs have not been deprived of any property rights. In this State no one has any property right in an employment so directly associated with traffic in alcoholic liquor that they may mix and pour alcoholic drinks behind the bar of a place where they are sold and consumed, decide who may buy and consume the liquor, sell it by the glass for consumption on the premises, entirely outside of and beyond the control of the law. The control of the sale, use, transportation and consumption'of intoxicating liquor is peculiarly within the province of legislative powers, and the regulation, or even prohibition thereof, in many instances, does not deprive an individual of property without due process of law, or deny him equal protection of the laws. Whitney v. Grand Rapids Township Board, 71 Mich. 234; Sherlock v. Stuart, 96 Mich. 193 (21 L. R. A. 580); Quay v. Cheboygan Circuit Judge, 150 Mich. 457; People v. Eberle, 167 Mich. 477 (affirmed 232 U. S. 700 [34 Sup. Ct. 464, 58 L. Ed. 803]); People v. Wheeler, 185 Mich. 164; Indianapolis Brewing Co. v. Liquor Control Commission (Mich.), 305 U. S. 391 (59 Sup. Ct. 254, 83 L. Ed. 243).
A license to engage in traffic in alcoholic liquor is not a contract in the sense that the licensee has thereby acquired any vested, or property rights. It is in the nature of a permit and the traffic is at all times subject to the control of the State in the exercise of its police power. People v. Schafran, 168 Mich. 324; Case v. Liquor Control Commission, 314 Mich. 632, 643.
Plaintiffs further contend that section 19a is class legislation in that it discriminates (1) between the wives or daughters of male licensees and the daughters of female licensees, or other women, and (2) between women employed as bartenders and women employed in other capacities in licensed retail liquor establishments. Obviously section 19a does not apply to all women alike, nor to all persons alike, except perhaps in the requirement that no person shall act as bartender in any establishment licensed by the commission to sell alcoholic liquor for consumption on the premises (in cities of 50,000 population or more) without a license by the commission. It does require every licensed bartender to be 21 years of age or over, requires every applicant for a license to submit a certificate showing that such person is not affected with any infectious or communicable disease, and every applicant must meet the requirements of the commission. Plaintiffs claim that discrimination appears in the fact that only the wife or daughters of the male owner of a licensed establishment may be licensed as female bartenders. It is true that under section 19a no female may be licensed to tend bar in a retail liquor establishment except the wife or daughter of the male owner of the licensed establishment, and who otherwise meets the requirements of the act and the rules and regulations of the commission. In a sense, this may be called class legislation, inasmuch as it excludes all other women from being licensed as bartenders. However, all discrimination, or so- called class legislation, is not unconstitutional. 1426 Woodward Avenue Corp. v. Wolff, 312 Mich. 352, 374.
“The fundamental rule of classification for the purpose of legislation is that it shall not he arbitrary; and it is not reviewable unless palpably arbitrary and unreasonable. Haynes v. Lapeer Circuit Judge, 201 Mich. 138 (L. R. A. 1918 D, 233); Straus v. Elless Co., 245 Mich. 558. * * * In German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 418 (34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915 C, 1189), it is said:
“ ‘A legislative classification may rest on narrow distinctions. Legislation is addressed to evils as they may appear, and even degrees of evil may determine its exercise.’
“If any state of facts reasonably can be conceived that would sustain statutory classification, its existence must be assumed. Naudzius v. Lahr, 253 Mich. 216 (74 A. L. R., 1189, 30 N. C. C. A. 179).
“In Borden’s Farm Products Co., Inc., v. Baldwin, 293 U. S. 194, 209 (55 Sup. Ct. 187, 79 L. Ed. 281), it is said:
“ ‘"When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912 C, 160); Ohio, ex rel. Clarke, v. Deckebach, 274 U. S. 392, 397 (47 Sup. Ct. 630, 71 L. Ed. 1115); Lawrence v. State Tax Commission of Mississippi, 286 U. S. 276, 283 (52 Sup. Ct. 556, 76 L. Ed. 1102, 87 A. L. R, 374).’
“ 'It is established that a distinction, in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed. * * * It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in .such contrariety.’ Rast v. Van Deman & Lewis Co., 240 U. S. 342, 357 (36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917 A, 421, Ann. Cas. 1917B, 455).” Baker v. State Land Office Board, 294 Mich. 587, 602-605.
“Act No. 507, Local Acts 1907, giving the village council of Tower authority to accept liquor dealers’ bonds with a surety company as surety, but not requiring them to do so, leaving it to their discretion to either accept or reject such bonds, is not unconstitutional in that it empowers the council to discriminate between dealers by rejecting the bonds of some and accepting others.” Quay v. Cheboygan Circuit Judge (syllabus), 150 Mich. 457.
“A classification is sufficient if it is practical and reasonable, and is not reviewable unless palpably arbitrary and unreasonable.” Tribbett v. Village of Marcellus, 294 Mich. 607, 612.
“In Tribbett v. Village of Marcellus, 294 Mich. 607, 615, we quoted the following from Borden’s Farm Products Co., Inc., v. Baldwin, 293 U. S. 194, 209 (55 Sup. Ct. 187, 79 L. Ed. 281):
“ 'When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary.’
“We said In re Brewster Street Housing Site, 291 Mich. 313, 335, 339:
“ ‘All presumptions are in favor of the constitutionality of the legislation and before it may be declared unconstitutional, it is necessary to point out the limitation upon the power of the legislature which the legislation in question transcends. * * * Legislation is not unconstitutional because it is legislation of a particular kind and character, or because it benefits a particular class. If the object and purpose of the legislation is legitimate and within the terms of the Constitution, the mere fact that there is a classification, so long as the law operates equally upon those within the particular class, does not render it unconstitutional.’
“We also said in Tribbett v. Village of Marcellus, supra, p. 617:
‘ ‘ ‘ Courts, however, cannot review legislative discretion and declare a given classification arbitrary simply because they differ with the legislature as to the propriety of the classification and the sufficiency of the reasons upon which it is based; for the law-making power is vested in the legislature. It must not be lightly assumed that legislators are less wise, or less mindful of the mandates of the Constitution, than judges are. Therefore, it is only in cases where it is manifest upon the face of a statute that a classification therein is based upon no reason, but is purely an arbitrary act, that courts may and must, for that reason, declare unconstitutional.’ ” In re Phillips, 305 Mich. 636, 641, 642.
The legislature has seen fit to impose restraints and limitations upon the liquor traffic more drastic than might appear to be necessary if applied to traffic in such ordinary commodities as corn, wheat, shoes, groceries, and similar articles of commerce and trade. The danger inherent in the excessive use of intoxicating liquor and its effect on health, morals and public safety is recognized by many laws seeking to regulate and control its use, for example, drunk driving, intoxication in public places, sale of intoxicating liquor to minors. In 1909 the legislature, in creating a department of labor, declared:
“No person shall employ or permit any girl or woman to- act as barkeeper, or to serve liquor, or to furnish music, or for dancing in any saloon or barroom where spirituous or intoxicating liquors, or malt, brewed or fermented liquors are sold or kept for sale.” Act No. 285, § 25, Pub. Acts 1909 (2 Comp. Laws 1929, § 8340).
Further back in the course of such legislation the legislature declared that the wife and bona fide female members of the family of a saloonkeeper might tend bar in his saloon, notwithstanding even more drastic restrictions were then imposed against the employment of women in saloons than at the present day. Act No. 170, §§ 1-3, Pub. Acts 1897 (2 Comp. Laws 1897, §§ 5361-5363), provided:
“No person shall employ any girl or woman as barkeeper, or to serve liquors, or to furnish music, or for dancing in any saloon, or barroom where spirituous or intoxicating liquors, or malt, brewed or fermented liquors are sold or kept for sale.
“No girl or woman shall be employed to tend bar, serve liquors, to, dance or furnish music in any saloon or barroom where spirituous or intoxicating liquors, or malt, brewed or fermented liquors are sold or kept for sale.
“No keeper or proprietor of a saloon where spirituous or intoxicating liquors or malt, brewed or fermented liquors are sold or kept for sale shall permit any girl or woman to tend bar, serve liquors, dance or furnish music for hire in his saloon or barroom: Provided, That this act shall not be so construed as to prevent the wife or other females who are bona fide members of the family of a proprietor of a saloon from tending bar or serving liquors in his saloon. ’ ’
In People v. Case, 153 Mich. 98 (18 L. R. A. [N. S.] 657), where the question arose as to the constitutionality of the following provision in an ordinance :
“Sec. 5. No person licensed under-this ordinance shall harbor or employ any females in or about his or her place of business, or permit females to resort to his or her place of business for the purpose of ■ drinking, ’ ’
the Court said (p. 99):
_ ‘ ‘ The question is whether the ordinance, and particularly section 5, under which respondent was convicted, is in contravention of the Constitution and laws of the State of Michigan.
“The theory of .counsel for respondent, and upon which the principal contention seems to be based, is that the ordinance in question is an unwarranted discrimination against the rights of, females, that women are granted equal rights, privileges and immunities by the Constitution; and that the ordinance in question is an infringement on these constitutional rights, and therefore void.”
The Court rejected this theory and upheld the validity of the ordinance.
Plaintiffs challenge the constitutionality of sec- ' tion 19a mainly'on the ground that it discriminates between different classes of women, as well as between men and women. In City of Hoboken v. Goodman, 68 N. J. Law, 217 (51 Atl. 1092), the Court had under consideration an ordinance which forbade the employment of any female in any public place where intoxicating liquors were sold, but provided that “nothing therein ‘shall be so construed as to prevent the wife of any person having such a license from selling or distributing the aforesaid liquors.’ ”
It was argued, among other things, that the ordinance denied to those employed the equal protection of the laws, because “(1) it prohibits a citizen conducting a lawful business from engaging the services of females; (2) it prohibits females from' engaging in a lawful employment, and (3) it makes an unjust and unreasonable.discrimination between females.”
The Court said (p. 221):
“The objection is that of discrimination. It is pointed out that the wife of a licensee may be employed in the place where the employment of other women is forbidden, and that women are not debarred from proprietorship under license. That classes of women are privileged works no injury to others; but apart from that, it seems to me that there is just ground for the discrimination of this ordinance. The supposed evil aimed at is the employment of women in connection with a traffic likely to induce vice and immorality. The wife of the proprietor of a place of public entertainment is not in any fair sense an employee, and her presence may fairly be deemed to be deterrent of impropriety. The policy of licensing women as proprietors is questionable, but such licensees are not within the mischief which the ordinance seeks to remedy. We cannot say that the exceptions ought to nullify a regulation that we must concede is a wise one, namely, the debarring of women from forming part of the allurements of drinking places.”
A case quite in point with the case at bar is People v. Jemnez, 49 Cal. App. (2d) 739 (121 Pac. [2d] 543), decided by the appellate department of the superior court, Los Angeles county, California,” in 1942. The pertinent portion of the alcoholic beverage control ordinance under consideration provided:
“Every person who uses the services of a *femaie in mixing alcoholic beverages * * on any premises used for the sale of alcoholic beverages for consumption on the premises, or any female who renders such services on such premises, is guilty of a misdemeanor. * * *
“The provisions of this section shall not apply to the mixing of alcoholic beverages * * * by any on-sale licensee nor to the mixing of such beverages by the wife of any licensee on the premises for which her husband holds an on-sale license.”
The constitutionality of the above provision was attacked 'on the ground, among others, that it abridged the privileges of citizens, denied equal protection of the laws, and that it was unreasonable and arbitrary. The opinion so clearly applies to the situation now before us that we quote from it with approval, as follows (pp. 741-743):
“It has long been uniformly held that there is no inherent right in a citizen to engage in the business of selling alcoholic beverages. * * ‘ The regulation of that business is governed by legal principles different from those which apply to what may be termed. inherently lawful avocations. ’ * * * The governing authority may, therefore, in the exercise. of the police power for the protection of the public morals, health and safety, grant the privilege of selling alcoholic beverages upon such terms and conditions as it may determine. * * The ordinance under attack in this case and which was sustained by the court provided, among other things, that no license should be granted to sell intoxicating liquors in any place where women were employed to wait on the patrons. * * *
“The argument that the section forbidding women employees to mix drinks abridges the privileges and immunities of citizens and denies equal protection of the laws to those whose employment is prohibited, overlooks two fundamental propositions: (1) that the business here involved is one of privilege and not of right; and (2) that the classification of women with respect to mixing drinks is reasonable. * * *
“Furthermore, a particular class of women has no constitutional right to be employed in a particular business when the effect of such employment would be detrimental to society. The section of the _alcoholic beverage control act under consideration divides women into three different classes with respect to the privilege of mixing drinks in a place having an on-sale license, and gives the privilege to two of these groups while denying it to the third. It seems to us that there is a fair and substantial basis for the classification. As to the group of women who are licensees, the board of equalization has direct supervision over them with the power to revoke or suspend their licenses, so it is not reasonable to assume that such a licensee is going to do' anything improper and thus lose her license and business. As to the wife of a licensee, she is more nearly in the position of a licensee than in that of an employee and her presence may fairly be considered to be a restraint upon impropriety. A mere employee would not have the same incentive to prevent improprieties that either a licensee or the wife of a licensee would naturally have. Furthermore, the legislature may well have concluded that it would be an unwholesome influence upon the women themselves, the general public, and upon our young people, to permit women generally to act as bartenders. * * *
* ‘ The final argument that the section is invalid on the ground that it is unreasonable and arbitrary to impose a penalty upon the ‘mixing’ only of alcoholic beverages is without merit. The fact that the section might have gone further and prohibited women employees from serving as well as mixing drinks does not render it invalid. It is not necessary for a penal statute to cover the entire legally permissible field in order to be valid.”
It was early settled in this State that the right to regulate or prohibit traffic in intoxicating liquor is based on the police power of the State and that restrictions and conditions which may be imposed upon the liquor traffic are entirely within the discretion of the people, acting through the legislature. In so holding, the Court said:
“The principle upon which is based the regulation of the liquor traffic is found in the police power of the State. No one possesses a natural, inalienable, or constitutional right to keep a saloon for the sale of intoxicating liquors. ‘ To sell intoxicating liquor at retail is not a natural right to pursue an ordinary calling.’ Black, Intoxicating Liquors, §§ 46, 48. By the Constitution of 1850 such sales were absolutely prohibited. By the amendment of 1876 the prohibitory clause was removed from the Constitution, and the power vested in the legislature to deal with the traffic as it deemed expedient and wise. * * * The restrictions and conditions upon it are entirely within the discretion of the people, through the legislature.
“ ‘It is not for the courts to determine its expediency, or, as said by Mr. Cooley in his work on Constitutional Limitations, “to run a race of right, reason, and expediency with the legislative branch of the State government. ’ ’ ’ Robison v. Rang, 71 Mich. 38, 42; Cooley, Constitutional Limitations, 597.
“ ‘If the governing power can prohibit a thing altogether, it can impose such conditions upon its existence as it pleases.’ Ex parte Christensen, 85 Cal. 208 (24 Pac. 747); Crowley v. Christensen, 137 U. S. 86 (11 Sup. Ct. 13, 34 L. Ed. 620). # * *
“Mr. Cooley says:
“ ‘The State has also a right to determine what employments shall be permitted, and to forbid those which are deemed prejudicial to the public good. * * * The general rule, undoubtedly, is that any. person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This general right cannot be taken away. It is not competent, therefore, to forbid any person, or class of persons, whether citizens or resident aliens, offering their services in lawful business, or to subject others to penalties for employing them. But here, as elsewhere, it is proper to recognize distinctions that exist in the nature of things, and under some circumstances to inhibit employments to some one class, while leaving them- open to others. Some employments, for example, may be admissible for males, and improper for females; and regulations recognizing the impropriety, and forbidding women engaging in them, would be open to no reasonable objection.’ ” Sherlock v. Stuart, 96 Mich. 193, 196-199 (21 L. R. A. 580).
“In determining the constitutionality of an enactment, the court must remember that intoxicating liquor, in its nature, is dangerous to the morals, good order, health, and safety of the people, and is not to' be placed on the same footing with the ordinary commodities of life, such as corn, wheat, cotton, tobacco, potatoes, et cetera. Restraints and limita-' tions upon the liquor traffic may be upheld which might not be sustained as to callings that may be pursued as of common right.’’ 30 Am. Jur. p. 278.
In enacting section 19a, supra, we must assume that the legislature concluded that women generally should not be allowed to act as bartenders in places where alcoholic liquor was sold for consumption on the premises. It is reasonable to assume that the legislature concluded that the male owner of a licensed liquor establishment would have such a measure of control over his immediate family that suf ficient safeguards would be imposed by him, to the extent that his wife or daughter might properly be allowed to mix and pour drinks behind the bar in his establishment, and serve them to his customers, while other women should be excluded from such employment. The male'owner, responsible for the support of his wife and family, would naturally have a financial interest in obtaining the help of his wife or daughters in the conduct of his business. The legislature may even have considered that preventing. women (except members of the owner’s family) from acting as bartenders in places where intoxicating liquor is sold for consumption, would be conducive of good morals — either those of women themselves or the morals of the customers in such places. It could be that chivalry toward women might still exist in legislative minds indicating a concern for the protection of women.
. We need not speculate further on the reasons which might have prompted the legislature to enact section 19a in the form here presented for consideration. We agree with what was said in Nelson v. State, ex rel. Gross, 157 Fla. 412 (26 South. [2d] 60), decided May 7, 1946, as follows:
“The first question presented is whether or not the city of Miami had power to enact a law prohibiting the employment of women as barmaids to serve liquor by the drink over the bar. * * *
“On constitutional grounds, appellee contends that the regulation drawn in question is void because it has no reasonable relation to the public health, peace, safety, morals, or welfare.
“It is settled law that a police regulation must be reasonable and bear some substantial relation to the public health, peace, safety, morals, or welfare. The courts of this country have repeatedly upheld police regulations forbidding the labor or presence of women in saloons or limiting the hours of work for women in liquor establishments. * * *
“It may be said that the position here taken is out of rapprochement with modern liquor trends, and it may be said that, in upholding the provision of the city code drawn in question, we are clinging to a dogma that is outmoded; that we should refurbish our thinking and clothe it in present day concepts. The answer to these charges is that they should be addressed to the legislature. Courts may extend a statute to new conditions as they arise, they may adjust constitutional and statutory provisions to fit changing social concepts, but, in doing this, they are not permitted to remake or distort the statute so as to change its meaning. The legislature and not the courts must, therefore, determine whether or not and to what extent females shall be permitted to dispense grog across the bar. The voice of the legislature and not the voice of the public is the legal barometer by which the court must determine liquor trends. ’ ’
We need only to repeat what has been often said in decisions of this Court, that the wisdom of legislation is not for the court. The extent to which the legislature may be influenced by a newer conception claimed by counsel for appellants here, as to the rights' of women in employment and in social life, and particularly to act as bartenders in licensed liquor establishments, is for the legislature, and it only, to decide. The regulation and control of traffic in alcoholic liquor, particularly with reference to who may act as bartenders, is within the police power of the legislature. Section 19a, supra, is not unconstitutional on the grounds asserted by appellants. The decree dismissing the bill of complaint is affirmed, but without costs, a public question being involved.
Butzel, C. J.; and Carr, Bushnell, Sharpe, Reid, and North, JJ., concurred. Dethmers, J., did not sit.
Act No. 8, Pub. Acts 1933 (Ex. Sess.) (Comp. Laws Supp. 1940, 9209-16 et seq., Stat. Aim. § Í8.971 et seq.).
.Repealed by Aet No. 8, § 52, Pub. Acts 1933 (Ex. Sess.) (Comp. Laws Supp. 1940, §9209-67, Stat. Ann. § 18.1023).
Repealed by Aet No. 240, Pub. Acts 1915 (1 Comp. Laws 1929, §120 [Stat. Ann. §2.321]). | [
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Bushnell, J.
The original stockholders of defendant Lashley-Cox Land Company, except for those holding a few shares, were the late Harry M. Nimmo, J. C. Lashley and defendant Edgar C. Cox. In 1932, Nimmo borrowed $20,000 from the Guardian National Bank of Commerce and pledged 150 shares of Lashley-Cox Land Company stock as collateral security. As additional security for this loan the bank required a guarantee of payment from James S. Holden, John S. Newberry, Murray W. Sales and Frederick M. Alger, Sr. The Nimmo loan was paid by the guarantors and the stock, which had been pledged as collateral, subsequently came into their possession. At the time plaintiffs filed their bill of ' complaint they owned shares of common stock of the defendant company as follows:
Shares
Truman IT. Newberry, Executor of the Estate of John S. Newberry,
Deceased 37-%
James S. Holden 37-%
Murray W. Sales ’ 37-%.
Máry E. A. Murphy 1-2-%
Frederick M. Alger, Jr. 12-%
Frances Alger Boyer 12-%
Total 150
Plaintiffs alleged fraud and misrepresentation on the part of the defendant corporate officers and asserted that they were exercising control of the corporation to plaintiffs detriment, and that the annual reports filed with the State of Michigan on behalf of the corporation were different from those furnished plaintiffs. They also asserted that the assets of the corporation “were steadily being dissipated,” no dividends had been earned or declared for more than six years, and that the corporation was being operated by the individual defendants, who were its officers and directors, solely for their own. benefit. The plaintiffs sought an accounting, a determination of insolvency, the appointment of a receiver, the liquidation of the corporate assets, and the distribution of the proceeds thereof to the stockholders.
The matter was referred to a circuit court commissioner who, after making findings of fact and law, recommended that plaintiffs ’ bill of complaint be dismissed. Plaintiffs filed objections to the report of the commissioner, which were first, considered by Honorable Lestér M. Moll, who retired from the circuit bench before determining the matter. The cause was then assigned to the Honorable Robert M. Toms, circuit judge, who, after hearing counsel for the respective parties and attempting a settlement of their dispute, filed a written opinion, in which he found ■ substantially for the plaintiffs on all their allegations and, entered a decree dissolving the corporation and appointing a liquidating receiver. In this decree, defendant Bruce E. Cox was ordered to pay to the corporation the sum of $2,385; defendant Amelia E. Cox was ordered to pay the sum of $850; and defendant Edgar C. Cox, was ordered to pay the sum of $2,887.50.
With respect to plaintiffs’ claim that the defendant officers of the corporation were guilty of overreaching and of operating the company for their sole benefit, the trial court found as follows :
“Bruce E. Cox, secretary and treasurer of defendant corporation, occupied a house belonging to the company, located at 11635 Faust avenue, from July 24, 1938 to December of 1942. Similar houses owned by the company and adjacent thereto rented ' during this period for $45 per month. He paid no rental to the company during all of this period. No corporate resolution authorizing this occupation is shown and while Mr. Cox, Sr., testified that his son rendered legal services in exchange .for this rental, no evidence of any legal service performed for the company was offered at the trial. The court therefore finds that Bruce E. Cox should be required to make restitution-to the company by paying for the reasonable value of such rent, namely, $2,385.
“In 1939 Bruce E. Cox claims to have loaned the company for building purposes the sum of $11,100. Between that date and December of 1942 the company apparently repaid all but $6,150 for which amount a check was given to him. He immediately indorsed this check to his mother, Amelia E. Cox, one of the defendant officers and directors, who, in turn, gave it back to the company for a deed to the property known as 11635 Faust avenue, a house owned by defendant corporation. This land and building had cost the corporation $6,500 at an early date, and at the time of this transfer there was a rising real estate market in the Detroit area. The testimony of defendants (sic) is to the effect that this property was well worth $7,000 at the time of the transfer. The court is of the opinion that the burden of showing the fairness of this transaction is on the defendants, and having failed in this regard that defendant, Amelia E. Cox, should be required forthwith to make restitution to the corporation in the sum of $850.
“In relation to the foregoing conveyance by the corporation to Amelia E. Cox, Edgar C. Cox, president, charged the corporation a sales commission of five per cent, on $6,150 and also a collection fee of five per cent. It is apparent that this transaction was not a sale in the ordinary sense, yet giving it its broadest construction and allowing Edgar C. Cox a sales commission of five per cent. upon, the sale price, there was no justification or practice in this area which would permit an additional five per cent, eollection fee on a cash sale, and Edgar C. Cox shall forthwith pay to the corporation the sum of $307.50, .being the collection fee improperly taken by him in this transaction.
“Defendants complain that Mr. Cox was receiving very little compensation for the work which he was doing on behalf of the company, but the record shows that in certain years there was very little business, for-which there should be relatively smaller compensation. For instance, in the year 1941, although the total revenue received by the company was $3,223.40, of this amount $2,478.65 was paid to Edgar C. Cox for sales commission, collection fees and office expense, and $800 for attending sales of the State Land Board.
“In this same connection, from the balance sheet and operating statement of the company for 1944 which, was offered in evidence in the case in March, 1944, and received by the court, it appears that the sales made during the year 1944 aggregated $155,350, with revenues for the year of $28,735.37 and expenses of $28,338.09, the company’s gain for the year being the small sum of $397.28. The reason for this is apparent, as it appears that while the company-only made a gain of $397.28, Edgar C. Cox paid himself sales commissions of $8,242.50 and a collection fee of $7,655.93 or a total of $15,898.43.
“Of the collection fee of $7,655.93, the court finds as follows:
“At least $51,600 represented cash payments or down payments, upon which no practice of the Detroit Beal Estate Board or in the Detroit area, so far as the record shows, would justify five per cent, collection fee of this amount, so this collection fee of $7,655.93 should be reduced to cover only the collections made on installment payments, and Edgar C. Cox shall forthwith pay to the corporation, $2,580, being the refund of the five per cent, collection fee on the cash payments or down payments made on sales.”
In the face of plaintiffs’ charge the burden was upon the individual defendants to show that their dealings with the corporation were fair and honest. As directors, they stood in a fiduciary position and their dealings with the corporation were required to be on the basis of good faith. Barber v. Kolowich, 283 Mich. 97, 104, and Wiseman v. Musgrave, 309 Mich. 523.
In our de novo review of the evidence, we agree with the conclusions reached by the trial judge, and, likewise, find that the corporation was being operated for the sole benefit of the individual'defendants who were its directors and officers.
The record is conclusive that from 1937 to 1941 defendants gave false information to plaintiffs respect ing the financial condition of the corporation. The company’s assets, as stated in the reports to plaintiff stockholders, were so greatly in excess of the assets reported at the same time to the State that plaintiffs were lulled into a false sense of security. These false representations amounted to . constructive fraud. The accounting methods employed by the defendants were neither fair to the company and its stockholders nor were they accurate in fact. The conclusions reached by the trial judge are amply supported by the record, and the fraud charge is established not by presumption or inference, as claimed by appellants, but by a preponderance of the evidence. Fahey v. Pell, 310 Mich. 280.
It is apparent that a corporation so conducted could not accomplish the purposes for which it was organized, and it was therefore the duty of its directors to wind up its affairs. Miner v. Belle Isle Ice Co., 93 Mich. 97 (17 L. R. A. 412). Théir failure to do so, coupled with improper payments to themselves, was a breach of trust imposed in them by the stockholders, and, hence, a constructive fraud. Plaintiff stockholders are entitled to equitable relief to the extent of the appointment of a liquidating receiver, a dissolution of the corporation, and distribution of the assets to its stockholders. Edison v. Fleckenstein Pump Co., 249 Mich. 234.
Appellants’ contention that such relief cannot be granted upon the complaint of minority stockholders unless it is first presented to the directors, is fully answered in Miner v. Belle Isle Ice Co., supra, 111, as follows:
“Where the majority of stock of a corporation was held by one family, who voted away the corporate profits for salaries, the minority may call upon a court of equity to remedy the fraud. Sellers v. Phoenix Iron Co., 13 Fed. 20.”
See, also, Witter v. LeVeque, 244 Mich. 83; Burch v. Norton Hotel Co., 261 Mich. 311; and Ayres v. Hadaway, 303 Mich. 589.
The decree of the trial court is affirmed, with costs to appellees.
Carr, C./ J., and Butzel, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Dethmers, J.
The defendants are the building-inspector and the members of the board of appeals, respectively, under the zoning ordinance, of the city of East Lansing. Upon review, they seek reversal of an order of the Ingham circuit court granting plaintiffs a writ of mandamus compelling defendants to issue a building- permit to the plaintiffs.
The plaintiffs are the owners of a lot located at 520 Linden street, East Lansing, Michigan, which is classified under the zoning ordinance of said city as being within the “C” multiple dwelling district. They made application to the building inspector for a permit to build on said premises a multiple dwelling of a type permissible under the ordinance in the zone in which the premises are situate. The parties have agreed by stipulation that the application and the plans and specifications submitted therewith are adequate and sufficient and in conformity with all requirements. The building inspector referred the application to the board of appeals which, after a public hearing, determined that the erection of the building contemplated by plaintiffs on said premises would be' harmful to the public health, safety and general welfare and that, because of the unusual local conditions in the area in question, it would create practical difficulties and unnecessary hardships in complying.with the terms of the ordinance. Accordingly, the board denied the application.
The question for determination is whether it is competent for the board of appeals to refuse an application for a building permit, made in due conformity with all the requirements, for a multiple dwelling in an area where the erection of such a structure is permitted by the provisions of the zoning ordinance.
Defendants cite Welch v. Swasey, 214 U.S. 91, 103 (29 Sup. Ct. 567, 53 L. Ed. 923), Beardsley v. Evangelical Lutheran Bethlehem Church, 261 Mich. 458 and Austin v. Older, 278 Mich. 518, as upholding the authority given to boards of appeals by zoning ordinances to vary the regulations thereof. In each of these cases the application was for a permit for a nonconforming use. None is determinative of the question of whether the appeal board may prohibit a use permitted by the zoning ordinance.
Plaintiffs rely on Ralston Purina Co. v. Zoning Board of Town of Westerly, 64 R. I. 197 (12 Atl. [2d] 219) and Leonard Investment Co. v. Board of Adjustment of the City of Trenton, 122 N. J. Law, 308 (4 Atl. [2d] 768). These cases present factual situations similar to the instant case, and the opinions contain language that tends to support .plaintiff’s position. Defendants, however, point out that in both case's the statute or ordinance therein construed imposes restrictions on the power of the board to vary the regulations of the ordinance which are not to be found in the ordinance involved in the case at bar, and defendants suggest that “when our Court has passed upon the question of the right of a zoning board to exercise discretion, decisions of other States are of value only to the student dealing in abstractions.” This Court has passed upon the power of a board of appeals, in the exercise of its discretion, to vary the. regulations of a zoning ordinance, and upheld the .same in cases where the power was expressly conferred by ordinance and was not exercised arbitrarily or with fraud or bad faith. Beardsley v. Evangelical Lutheran Bethlehem Church, supra; Austin v. Older, supra.
But plaintiffs, in turn, contend that, in the instant case, it is not a question whether the board acted arbitrarily, fraudulently or in bad faith in the exercise of powers duly conferred upon it by the ordinance but, rather, whether the power has. been conferred upon the board to do what it here has done. With this position we are in accord. What are the. relevant powers of the board under the ordinance?
Section 9 of the ordinance, creating and defining the powers of the board, provides, in part, as follows:
“Sec. 9. Board of appeals. * * *
“Jurisdiction: The board of appeals may, in specific cases after public notice and hearings, and subject to appropriate conditions and safeguard, determine and vary the application of the use, height and area district regulations herein established in harmony with their general purpose and intent as follows: * * *
“(8) Where there are practical difficulties, unnecessary hardships in complying .with the provisions of this ordinance, or unusual local conditions, the board of appeals may, in specific cases, adjust any such condition in harmony with the general purpose and intent of this ordinance so that the public health, safety and general welfare may be secured and substantial justice done.”
Defendants assert that these provisions constitute a general grant of power and thereon they predicate the right to deny plaintiffs ’ application, finding, as they did, that the erection of the building contemplated by plaintiffs, in the language of the above subsection 8, would create practical difficulties and unnecessary hardships in complying with the provisions of the ordinance. It is apparent from the record that what the hoard had in mind was that the erection of a four-story multiple dwelling by plaintiffs on said premises would create practical difficulties and unnecessary hardships for the neighbors who complained that such a building would be an unsightly structure in a neighborhood of single family residences. But are such difficulties and hardships occasioned by “complying with the provisions of this ordinance?” Would they not have existed were there no zoning ordinance in effect whatsoever? Is it such difficulties and hardships that the board is empowered to alleviate by varying the application of the regulations of the ordinance?
In the absence of the zoning ordinance plaintiffs would have the right to make any desired use of their premises not amounting to a nuisance. The erection of a multiple dwelling would in such case be the exercise of a legal right in the use and enjoyment of property. The ordinance places restrictions on the freedom to use property as desired. Such restrictions may, in specific cases, create situations in which “there are practical difficulties, unnecessary hardships in complying with the provisions of this ordinance.” In such cases the board is empowered to vary the application of the regulations of the ordinance. Clearly, the board is not empowered to vary the regulations of the ordinance to meet a situation of difficulty or hardship which would have existed in the absence of the ordinance and which is not occasioned by it, inasmuch as said section 9 and subsection 8 thereof refer to hardships and difficulties in complying with the provisions of the ordinance.' From this it inevitably follows that the board may not prohibit a use permissible in the absence of tbe ordinance and equally permissible by tbe express terms of tbe ordinance.
That the board has no such power further appears 'from section 10 of the ordinance, which reads, in part:
‘ ‘ Sec. 10. Building permits. * * * When the plans submitted have been found to conform with the requirements of this ordinance, the building inspector shall issue a permit and affix to the plans an official stamp of approval.”
The discretion vested in the board to vary the application 'of the regulations of the zoning ordinance is confined to the instances enumerated in section 9 thereof relating to nonconforming use and construction. No power reposes in the board to make restrictions on the use of specific property more severe than those imposed bythe ordinance itself.
Affirmed, with costs to plaintiffs.
Btjtzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Reid, and North, JJ., concurred. | [
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] |
Btjshnell, J.
Plaintiff Massody Nemer, as administratrix of the estate of Wady Nemer, her deceased hnshand, instituted an action against defendants, Dr. John O. Green, a dentist, and his anesthetist, Katherine Cronk, seeking damages on the claim that their negligence resulted in her husband’s death. The case was heard by a circuit judge sitting without a jury.
'Wady Nemer had been experiencing difficulty in the use of his legs and feet. His physician, Dr. Howard R. Coll, diagnosed his ailment as rheumatic neuritis. Later, on May 11, 1942, Nemer called at the dental office of Dr. Norbert F. Blaskewitz, who took X-rays and discussed Nemer’s condition with Dr. Coll. This resulted in a determination that extractions might be helpful. On May 15th Dr. Blaskewitz extracted eight teeth, and three days later he extracted five more. On May 22d, Nemer was still experiencing pain and was advised by Dr. Blaskewitz to consult an oral surgeon. Nemer did not consult the surgeon recommended by Dr. Blaskewitz but instead went to the office of defendant Dr. John O. Green: On May 25th, Dr. Green extracted two lower teeth, being assisted by Dr. Kruszka, a chiropractor, who administered gas.
On May 27th, according to the testimony of Mrs. Nemer, the deceased returned to Dr. Green’s office at about 6 o’clock, p.m., to have the remaining 16 upper teeth extracted. As to what happened on this occasion, the testimony of Mrs. Nemer is to the effect that her son took her to Dr. Green’s office about 20 minutes after six. She said she was not permitted to go into the room where her husband was, but in a few minutes Dr. Green came out and called the police, saying, “Come over and take my patient; I can’t wake him up. ’ ’ Mrs. Nemer testified that §he accompanied the police when they took her husband to the hospital and that he “looked like dead.” The record is silent as to what occurred in Dr. Green’s office between 6 and 6:20 p.m., except his statement that defendant Cronk assisted him by administering the gas. He was not asked, nor did he state, how many teeth he extracted nor how the death occurred.
Dr. Coll testified that at the time he examined Nemer he found Nemer’s heart condition normal. He expressed the opinion that the greater the number of tgeth extracted the greater the shock to the system. However, in answer to a hypothetical question he stated that Nemer’s death could have resulted from any one of a number of causes.
Considering the evidence in the light most favorable to the plaintiff, can it be said that Nemer’s death resulted from the surgical shock following the extraction of 16 teeth or from the improper administration of gas?
In Voss v. Adams, 271 Mich. 203, there was testimony to the effect that, according to local standards, it was not proper practice to extract more than 8 teeth at one sitting, because of the increased danger of surgical shock and the increased infection let loose in the system. In the instant case, however, there is no testimony in the record as to standard practice in the locality and no showing of the cause of death. The mere proof that 16 teeth had been extracted at one sitting, in the absence of testimony showing that this was not' the usual and ordinary practice of dentists in the locality, is not of itself sufficient to establish negligence. ■ Plaintiff had the burden of showing that Nemer’s death was brought about by defendants’ failure “to exercise tbe reasonable and ordinary care, skill, and diligence possessed by others in the same line of practice and work in similar localities.” Ballance v. Dunnington, 243 Mich. 383 (57 A. L. R. 262). See, also, Loveland v. Nelson, 235 Mich. 623; Zoski v. Gaines, 271 Mich. 1; Dunbar v. Adams, 283 Mich. 48; and authorities annotated in 69 A. L. R. p. 1142 et seq., and 129 A. L. R. p. 101 et seq.
We are compelled to agree with the trial judge that plaintiff failed to establish negligence on the part of the defendants. Therefore, the judgment of no cause of action must be affirmed, with costs to appellees.
Butzel, C. J., and Carr, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Per Curiam.
Charged with breaking and entering with the intent to commit larceny, the defendant was convicted by a jury of entering without breaking with the intent to commit larceny. Because the record discloses that the prosecutor utilized a portion of his closing argument to improperly comment upon the defendant’s exercise of his right to remain silent at the time of his arrest, we reverse.
Two policemen, having been called by a postman, went to the back door of a four-family dwelling and observed the defendant and his son, in the words of the policeman, "disassembling the stove”. The building was a vacant one, and its owner was rehabilitating it for future rentals. The arresting officer had watched the two men work with the stove for three to five minutes before he entered the building and made the arrests.
The defendant did not testify. However, the defense presented evidence from defendant’s son, Michael Sain, to the effect that he and the defendant had been driving in the neighborhood, that they saw the abandoned building, heard noises emanating from it, and went inside in hope of buying a door jamb from persons who were working in the building.
During the course of the examination of one of the arresting officers, the prosecutor asked the following question and received the following response:
”Q. [Assistant Prosecutor]: What occurred once you entered the building?
"A. We discovered the two defendants in the kitchen. We asked them whether or not they had — whether or not it’s their property, they had permission from the property owner to be in there; [if] in fact they did know who owned the building. Neither of them responded to my questions and I advised them at that time they were under arrest.” (Emphasis added.)
Later, during the prosecutor’s closing argument, it was stated:
"* * * and once they [the police] went into the house the noise only stopped when they entered the kitchen, just prior to them entering the kitchen. The only people that were in the kitchen they testified were Misters Sain. At that time they had no tools in their hands because they probably heard both the officers approach. Then they stood up and started to walk out or attempted to walk out when the police officers saw them and they asked them to stop. They did. They were both asked explanation why were they on the premises. No one said I was given permission. No one said I owned the premises; No one said we were just here to look and see if we could get a door jamb. They did talk to the police officer later but not at the scene there.” (Emphasis added.)
The defendant argues that the above-quoted colloquy and closing argument violated the rule an nounced in People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973). In Bobo we stated:
"We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Nonutterances’ are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.”
The Court of Appeals majority, in affirming the defendant’s conviction, noted first of all that no objections were lodged at trial with regard to the examination of the police officer or the prosecutor’s closing argument. Nevertheless, the majority found Bobo error but concluded that upon the record it was harmless. Judge Kaufman, in dissent, also found Bobo error but could not agree that the error was harmless. Judge Kaufman indicated that it was his opinion that the evidence was not so overwhelming as to offset the prejudicial effect of the prosecutor’s remarks. He also opined that Bobo error is offensive to the maintenance of a sound judicial process and thus should not be the subject of a harmless error inquiry.
Were the only question before us the propriety of the colloquy between the prosecutor and the police officer, we might not reverse. The question posed by the prosecutor did not solicit a comment upon the defendant’s silence at the time of his arrest. The officer’s unresponsive answer to a general question does not appear to have been a studied attempt by the prosecution to place this matter before the jury.
However, the same cannot be said of the prosecutor’s closing argument. Even a cursory perusal of the prosecutor’s remarks, set forth earlier in this opinion, reveals that the prosecutor seized upon the response of the police officer and used it to maximum advantage. The prosecutor clearly and repeatedly asked the jury to consider, as a factor in favor of a finding of guilt, that the defendant, when confronted by the police at the time of his arrest, remained silent. We are persuaded that this argument denied the defendant a fair trial.
Therefore, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgments of the Court of Appeals and Recorder’s Court and remand the case to Recorder’s Court for a new trial.
Coleman, C.J., and Kavanagh, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
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] |
Memorandum Opinion. These consolidated cases, arising out of prosecutions for felonious assault, concern jury instructions on the mental element of the common-law offense of assault and the statutory offense of felonious assault.
The people’s proofs at trial in Johnson and at the preliminary examination in Ring tended to show that in each case the defendant pointed a gun at the complainant but no shot was fired. The defendants claim that they had no intention to injure and that the jury must be instructed that it may not convict unless it finds such intent. The instruction was refused in Johnson; before trial in Ring the judge agreed to so instruct.
A majority of the Justices are of the opinion that
1) a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery”, People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978),
2) the jury should be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery,
3) the instruction in Johnson was deficient in two respects: it failed adequately to inform the jury of the intent requirement and it neglected to present the alternative "reasonable apprehension of receiving an immediate battery” form of felonious assault; the jurors in Ring should be instructed that defendant can be convicted if he intended to injure the victim or put him in reasonable apprehension of receiving an immediate battery.
We reverse Johnson and remand for a new trial and affirm the trial court’s decision in Ring as modified and remand for trial.
Johnson did not raise an intoxication defense and the question whether assault or felonious assault are specific intent crimes for the purpose of the voluntary intoxication defense is not raised by the facts and has not been briefed or argued and is not before us; we intimate no opinion on that question.
This memorandum opinion is signed by seven Justices. There are separate concurring and dissenting opinions. However, at least four Justices concur in every holding, statement and disposition of this memorandum opinion.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Williams, J.
Leave to appeal was granted in these cases to consider a single question: "whether felonious assault includes a specific intent as an element.” MCL 750.82; MSA 28.277. 402 Mich 855 (1978).
We granted leave because the precedents in this Court do not give a clear answer to the question and, until recently, the same situation prevailed in the Court of Appeals.
Our answer is that speciñc intent is not an element in MCL 750.82; MSA 28.277:
"Felonious assault — Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.”
We hold specific intent is not an element for these reasons:
(1) There is no specific intent written into the section while two forms of specific intent are particularly excluded from the section.
(2) MCL 750.82; MSA 28.277 is one of a number of assault sections in Chapter XI of the penal code. MCL 750.82; MSA 28.277 does not particularly define a specific intent, whereas most of the others do.
(3) The structure and history of MCL 750.82; MSA 28.277 demonstrate that this section entitled felonious assault should more properly be called assault with a dangerous weapon. It is just that, a simple assault aggravated by the use of a dangerous weapon. The only intent necessary is the general intent necessary for an assault.
(4) The controlling case law, People v Burk, 238 Mich 485; 213 NW 717 (1927); People v Sanford, 402 Mich 460; 265 NW2d 1 (1978); People v Richard Johnson, 42 Mich App 544; 202 NW2d 340 (1972), holds that specific intent is not an element of felonious assault.
In People v Johnson the trial court refused to give a separate instruction on criminal intent for felonious assault, but did instruct that the prosecution must prove an intentional assault. The Court of Appeals affirmed. We affirm the Court of Appeals in People v Johnson.
In People v Ring the trial court agreed to instruct the jury that the "intent to do bodily injury” was a necessary element of felonious assault. The Court of Appeals denied leave to appeal. We reverse the decision of the trial court to give the "intent to do bodily injury” instruction and remand for instructions consistent with this opinion.
I. Facts
A. People v Johnson
On June 1, 1974, at about 3 a.m. complainant, Ramone Jefferson, delivered a pizza to a motel room in Highland Park. He received a ten-dollar bill in payment from his customers and returned to his automobile for change. When complainant returned he was met outside the motel room by-defendant Joeseype Johnson, who pointed a pistol at him and ordered him not to move. The customers slammed the door. While pointing the gun at Jefferson, Johnson attempted to force the door open. This went on for about ten minutes. Defendant then told Jefferson to "stay right there”. Complainant remained in front of the motel room while Johnson walked out to a nearby terrace. When Johnson returned he again attempted to gain entrance to the motel room. When the customers refused to open the door, defendant told complainant that he could go.
Complainant went immediately to the manager’s office and reported the incident. After leaving the manager’s office the complainant saw Johnson walking toward his (complainant’s) car. Complainant then returned to the manager’s office. After a few minutes Johnson entered the manager’s office, pulled up his shirt, indicating that he did not have a pistol and said, "See, I’m legal now.” Jefferson left, drove to a police station and reported the incident. He returned to the manager’s office with a police officer. Johnson was still standing in the manager’s office. The complainant identified Johnson and Johnson was promptly arrested.
Defendant was charged with felonious assault, a violation of MCL 750.82; MSA 28.277. At trial, defense counsel requested "a separate instruction on criminal intent”. The trial judge stated that People v Clark, 48 Mich App 645; 210 NW2d 906 (1973), "indicated that specific intent is not an element of crime — of felonious assault. * * * '[T]he only elements necessary to prove and sustain a conviction of felonious assault are assault and that a dangerous weapon was used in making the assault.’”
The judge gave the following instruction on felonious assault:
"In this case, the defendant is charged with an offense which is commonly known as felonious assault; the statute from which the information is drawn, so far as the same [is] material provides as follows: any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon but without intending to commit the crime of murder and without intending to commit great bodily harm less than murder shall be deemed guilty of a felony. An assault is an attempt or offer with force and violence to harm another.
"If you are satisfied from the testimony that Mr. Johnson committed an intentional assault with a revolver which is a dangerous weapon likely to produce great bodily injury or is one more accurately described in the manner in which it is attempted to be used to commit great bodily harm.”
The Court of Appeals affirmed defendant’s conviction on March 10, 1976 in an unpublished per curiam opinion (Docket No. 22311). We granted leave to appeal January 20, 1978, 402 Mich 855 (1978), "limited to the following issue: whether felonious assault includes a specific intent as an element.”
B. People v Ring
On the morning of March 7, 1977, a roofing company’s work crew was temporarily blocking traffic while backing a truck into a driveway. One of the company’s employees, Tom Heney, was directing traffic around the truck. Defendant David Ring approached the stopped traffic.
The testimony presented at the preliminary examination offers two interpretations of the events that followed. Defendant testified that he stopped and was directed around the truck by Heney. While passing the truck, defendant heard a loud thud coming from the side of his automobile. He stopped and got out of his car. The person direct-, ing traffic was very angry with defendant and made obscene gestures and comments. Defendant got back in his car and left.
Members of the working crew presented a different version of the incident. They testified that defendant ignored the signal to stop, wove in and out of traffic and forced his way through the bottleneck, nearly striking Heney. The truck was subsequently parked off the street. About 20 minutes later the company personnel noticed defendant’s automobile returning and came down from the roof to obtain his license-plate number. Defendant stopped on the street. Complainant, Roger VorenKamp, was the first to reach the street. He approached defendant’s automobile. Defendant and VorenKamp exchanged words. Ring then produced a pistol from the seat beside him and pointed it at VorenKamp and then sped away. The employees noted defendant’s license-plate number and called the police.
Defendant testified he returned to the work site to get the truck license number and that the complainant, carrying his roofing tools, approached within a foot or two of defendant’s car and shouted loud and obscene comments at defendant. When complainant told defendant to pull into the driveway so that the matter could be settled, defendant picked up a toy pistol from the front seat of his automobile and pointed it at the complainant. Complainant left immediately and defendant drove off.
The police traced the vehicle registration supplied by the work crew to defendant and attempted to find him. Subsequently defendant went to police headquarters of his own volition. He acknowledged the confrontation with VorenKamp but claimed that it was only a toy pistol he had used. Ring handed the police a plastic pistol. The officer showed the toy gun to VorenKamp who stated that it was not the gun which defendant had pointed at him. The police checked the pistol safety inspection records and found that defendant had presented a .38-caliber revolver for safety inspection on June 21, 1976. They confiscated this weapon. The complainant was unable to identify the confiscated gun as the one pointed at him. About five weeks later defendant was charged with assault with a dangerous weapon, MCL 750.82; MSA 28.277.
Prior to trial defendant requested a jury instruction on the elements of assault with a dangerous weapon.
Defendant’s Proposed Instruction "A” reads:
"The defendant, David Ring, is charged with the crime of assault with a dangerous weapon. This crime is very often referred to as felonious assault.
"To establish the crime of felonious assault and to establish David Ring’s guilt of that crime, the prosecution must prove all three of the following elements beyond a reasonable doubt:
"(1) That David Ring deliberately pointed a dangerous weapon at the complainant;
"(2) That, when he did so, if he did so, David Ring intended to do bodily harm to complainant although harm less than murder and less than great bodily harm, and
"(3) That David Ring acted without excuse or justification.
"The second necessary element is intent to do bodily harm. Intent is a decision of the mind to knowingly do an act with a conscious and fully formed [objective] of accomplishing a certain result. The intent with which a person does an act is known by the way he expresses it or by the way he indicates it by his conduct. When certain intent is a necessary element of a crime, that crime cannot have been committed if the intent did not exist. Accordingly, there can be no crime of felonious assault where there is no intent to do bodily harm.”
The trial court found,
"It is hereby ordered that defendant’s Proposed Instruction 'A’ be given, this court having ruled that, contrary to the Michigan Criminal Jury Instructions and Commentary with respect to the crime of felonious assault, specific intent to do bodily injury to the complainant is an element of the crime of felonious assault which the people must prove beyond a reasonable doubt.”
The prosecution filed an application for leave to appeal the decision requiring the giving of the requested instruction, with the Court of Appeals. The application was denied September 30, 1977 (Docket No. 77-3295). The prosecution then filed an application for leave to appeal with the Supreme Court. We granted leave to appeal January 20, 1978, 402 Mich 855 (1978), "limited to the following issue: whether felonious assault includes a specific intent as an element”.
II. No Specific Intent in MCL 750.82; MSA 28.277
MCL 750.82; MSA 28.277 states:
"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.” (Emphasis added.)
The statutory language does not require any specific intent, it simply requires an assault with a dangerous weapon. In fact the language negates the requirement of two types of specific intent, i.e., intent to commit murder and intent to inflict great bodily harm less than murder. Consequently, the wording of the statute cannot support the allegation that a specific intent is an element of felonious assault. The only intent necessary is the general intent to do acts involved in the assault. The statute is clear in requiring only an assault and with a dangerous weapon.
Generally assault with a dangerous weapon is interpreted as a general intent crime.
"No specific intent is necessary to constitute the-crime, other than such as may be embraced in the act of making an assault with a dangerous weapon. This embraces simply the intentional and unlawful use of a dangerous weapon, by means of which an assault is committed with such weapon upon the person of another.” 1 Anderson, Wharton’s Criminal Law and Procedure (1957 ed), § 361, p 720.
III. Other Assault Sections Have Particular Reference to Specific Intent
"Chapter XI. Assaults” of the penal code, MCL 750.81 et seq.; MSA 28.276 et seq., derives from 1931 PA 328, which in turn was based on prior enactments. "Chapter XI. Assaults” lists a series of assaults punishable as either misdemeanors or felonies depending on the severity of the offense.
The points of importance to the issue in the instant case are: first, felonious assault is but one of a number of assault offenses listed in successive sections of 1931 PA 328, and second, the language of the felonious assault section does not include a specific intent to harm another either in the catch-line title or in the text setting forth the offense and punishment, whereas a number of the other sections deal with assault offenses where the intent to harm another is specifically set forth in both the catchline title and in the text of the offense.
The assault offenses listed in "Chapter XI. Assaults” follow:
1. assault and assault and battery, 1931 PA 328; MCL 750.81; MSA 28.276
2. assault and infliction of serious injury, 1931 PA 328, as added by 1939 PA 237; MCL 750.81a; MSA 28.276(1)
3. felonious assault, 1931 PA 328; MCL 750.82; MSA 28.277
4. assault with intent to commit murder, 1931 PA 328; MCL 750.83; MSA 28.278
5. assault with intent to do gréat bodily harm less than murder, 1931 PA 328; MCL 750.84; MSA 28.279
6. assault with intent to maim, 1931 PA 328; MCL 750.86; MSA 28.281
7. assault with intent to commit felony not otherwise punished, 1931 PA 328; MCL 750.87; MSA 28.282
8. assault with intent to rob and steal being unarmed, 1931 PA 328; MCL 750.88; MSA 28.283
9. assault with intent to rob and steal being armed, 1931 PA 328, as amended by 1939 PA 94; MCL 750.89; MSA 28.284.
The sections which require a specific intent list the intent as an element, for example assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279:
"Assault with intent to do great bodily harm less than murder — Any person who shall assault another with intent to do great bodily harm, less than the crime of murder, shall be guilty of a felony punishable by imprisonment in the state prison not more than 10 years, or by fine of not more than 5,000 dollars.” (Emphasis added.)
This is to be compared with the felonious assault section, which reads as follows:
"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.” (Emphasis added.)
Comparison of those sections of "Chapter XI. Assaults” which specifically set forth the requirement of a specific intent to harm another with the felonious assault section demonstrates two points. First, the Legislature demonstrates beyond peradventure that when it intends a particular offense to require a specific intent, it knows how to, and does, require that specific intent. Second, the Legislature demonstrates that in the case of felonious assault it does not intend to require a specific intent. As a consequence, this Court should follow the legislative intent and not require a specific intent for felonious assault.
IV. MCL 750.82; MSA 28.277 Is Only Simple Assault Plus a Dangerous Weapon
At common law assault and battery were misdemeanors. When codifying the criminal law, the Legislature created a series of more serious or "aggravated” offenses which did not exist as sepa rate crimes at common law. Although based partly on common-law crimes of assault and battery, some of the aggravated offenses are now felonies.
"Although the common law created the twin crimes (misdemeanors) of assault and battery, in modern times legislatures everywhere have added the more serious crimes (felonies) of aggravated assaults and batteries (e.g., assault, battery with intent to kill, rob, rape; assault, battery with a dangerous weapon).” LaFave & Scott, Criminal Law, § 80, p 603.
The 1931 codification, The Michigan Penal Code, contains Chapter XI which lists "aggravated” assaults. It has remained essentially unchanged to this day.
The basis of the offenses listed in Chapter XI is an assault; this is evident from the catchlines and text of the particular sections. The obvious intent of the Legislature is to punish more severely those assaults accompanied by some degree of aggravation, e.g., serious injury, use of a dangerous weapon or a specific intent. Therefore, the basic assault must be established, accompanied by the aggravating circumstances to meet requirements of the particular sections.
MCL 750.82; MSA 28.277 requires an "assault * * * with a * * * dangerous weapon”, in other words an assault aggravated by the use of a dangerous weapon. In People v Goolsby, 284 Mich 375; 279 NW 867 (1938), a prosecution for felonious assault with an automobile, the Court said:
"Construction or interpretation of a penal statute requires consideration of the evil sought to be penalized. The evil, under legislative consideration, was that of assaults, aggravated by use of dangerous weapons.” 284 Mich 375, 379.
This analysis of the legislative concerns demonstrates that the elements of felonious assault are (1) an assault and (2) employment of a dangerous weapon.
In Burk, supra, this Court again listed the elements of felonious assault as "an assault with a dangerous weapon” without the intent to murder or the intent to do great bodily harm less than murder. The Court said, "If defendant assaulted Foster with a dangerous weapon he would be guilty of the offense charged, regardless of his intent to injure him.” 238 Mich 485, 489.
We conclude that felonious assault is, as the statute states, assault with a dangerous weapon. There is no support for the allegation that the offense requires more than those elements.
Simple criminal assault is acknowledged as a general intent crime. In other words, it is only necessary to show an intent to commit an unlawful act to satisfy the intent element of simple assault. Since felonious assault is assault with a dangerous weapon, the intent element of felonious assault is shown by the same type of act, i.e., an intentional unlawful act. There is no specific intent necessary for felonious assault, only the general intent needed for simple assault.
V. Present Case Law
There are four critical cases to consider in reviewing the position of this Court on the question "whether felonious assault includes a specific intent as an element”. They are chronologically:
People v Doud, 223 Mich 120; 193 NW 884 (1923); People v Burk, 238 Mich 485; 213 NW 717 (1927); People v Counts, 318 Mich 45; 27 NW2d 338 (1947); People v Sanford, 402 Mich 460; 265 NW2d 1 (1978).
Doud and the subsequent Burk both considered the giving or not giving of a specific intent charge. Doud required it, but the later Burk ruled it was neither required nor appropriate. Counts indirectly considered felonious assault a specific intent crime by holding evidence of intoxication was admissible to negate the required intent. Sanford, the most recent case, in considering the definition of criminal assault which is the basis of felonious assault ruled that " 'a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery” ’ ”, 402 Mich 460, 479. The significance of this holding, obviously, is that the second kind of criminal assault focuses on whether the assaultee was by defendant’s acts put "in reasonable apprehension of receiving an immediate battery”, and, if he was, it would be immaterial whether or not the defendant intended to do bodily injury to the assaultee.
Doud is a particularly interesting case in light of both Burk and Sanford as we shall develop. The critical facts in Doud were that Doud confronted men trying to put up a boundary fence, on what Doud claimed was his property, by ordering them off and showing his revolver. The case report continues:
"At the trial defendant was permitted to testify fully as to his intent and claimed he entertained no purpose to inflict injury. Even though such claim was refuted by his acts, demeanor and words, defendant had a right to go to the jury with what he claimed to have been his purpose. The trial judge gave the jury no instruction upon the issue of defendant’s intent, although requested to do so, but charged:
" 'The people say that he pointed the gun at Davenport; and the people say that he pointed the gun under such circumstances as imported an intent to fire his gun off. The people do not say that he did intend to (it is not necessary that they should say it or prove it), but if he pointed a gun under such circumstances that Davenport had reasonable grounds to believe that he intended to fire it off, and it was pointed at Davenport at the time, then he is guilty of the offense charged.’
"While the fear of one assaulted, arising from reasonable apprehension of bodily hurt, threatened by another having means and ability to inflict the same, is mentioned in some of the books as proper evidence to go to the jury, we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute. We think defendant was entitled to have the following portion of his sixth request to charge given:
" 'As to what his intention actually was you must determine that, if you are able to, from the evidence in the case, considering what he did, what he said, and what he testifies to as his intent.’” 223 Mich 120, 124-125.
This Court reversed and granted a new trial.
In Burk, the defendant, as in Doud, was convicted of felonious assault and had requested a charge including "[t]o convict the defendant, you must find that * * * [defendant] did intend to inflict bodily harm upon him”. This Court replied, "We think the instruction asked is objectionable in that it assumed that intent was a necessary element of the offense charged. * * * If defendant assaulted Foster with a dangerous weapon he would be guilty of the offense charged, regardless of his intent to injure him * * 238 Mich 485, 489. The conviction was affirmed.
Burk did not specifically overrule Doud. In fact, it did not even refer to it. But the Burk rule is diametrically opposite the Doud rule on the necessity of charging specific intent, so Burk supersedes Doud on that point.
But the trial court charge in Doud is interesting from another point of view. The charge states in part:
"if he pointed the gun under such circumstances that Davenport [the assaultee] had reasonable grounds to believe that he intended to fire it off, and it was pointed at Davenport at that time, then he is guilty of the offense charged.” 223 Mich 120, 124-125.
This charge anticipates the ruling in Sanford — " 'a simple criminal assault "is made out from * * * an unlawful act which places another in reasonable apprehension of receiving an immediate battery” ’ ”, 402 Mich 460, 479.
As quoted above, this Court in Doud said:
"While the fear of one assaulted, arising from reasonable apprehension of bodily hurt, threatened by another having means and ability to inflict the same, is mentioned in some of the books as proper evidence to go to the jury, we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute.” 223 Mich 120, 125.
As a consequence, it must be recognized that the rule of law as stated by this Court in Doud as to an assault not existing if the victim is merely put in reasonable fear or apprehension of what the defendant is doing has changed, too, and Doud is overruled here also.
This leaves only Counts out of line with the rule that specific intent is not an element of felonious assault. It is true that this Court in that case said:
"The offense charged in the information, as well as the lesser and included offense of which defendant was convicted [felonious assault], involved a specific intent as an essential element. Presumably the testimony indicating that defendant had been drinking was offered for such bearing as it might legitimately have on defendant’s mental condition, and on the reason or reasons for his conduct as disclosed by the testimony of the various witnesses in the case.” 318 Mich 45, 47-48.
However, the opinion does not indicate that the issue whether specific intent is an element of felonious attempt was a direct issue in that case. Even if it were, at this point, we hold that the Burk-Sanford precedent supersedes.
As supporting this conclusion, it is of interest that the Court of Appeals, beginning with People v Richard Johnson, 42 Mich App 544; 202 NW2d 340 (1972), has followed the rule of Burk. The Court of Appeals in Johnson said:
"By the clear language of the [felonious assault] statute the crime is merely a simple assault committed with a dangerous weapon. While the statute specifically excludes certain types of specific intent, the only intent that would appear to be required is the intent necessary to constitute a simple assault.
"Since assault and battery is not a specific intent crime that is excused by voluntary drunkenness, and felonious assault as defined by MCL 750.82, supra, is but an assault committed with a dangerous weapon, felonious assault is not a specific intent crime to which the defense of voluntary intoxication is available.” 42 Mich App 544,.546-547.
In addition, it is noteworthy that the proposed Michigan Criminal Jury Instructions follow the Burk rule, CJI 17:4:01.
VI. Application to Johnson and Ring
A. People v Johnson
The instruction given by the trial court informed the jury of the elements of felonious assault in two ways. First the pertinent parts of the statute were read to the jury:
"[T]he statute from which the information is drawn, so far as the same [is] material provides as follows: any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon but without intending to commit the crime of murder and without intending to commit great bodily harm less than murder shall be deemed guilty of a felony.”
Second, the jury was also told:
"If you are satisfied from the testimony that Mr. Johnson committed an intentional assault with a revolver which is a dangerous weapon.”
We find this instruction was sufficient to apprise the jury of the elements necessary for felonious assault, i.e., one, an assault; two, with a dangerous weapon.
B. People v Ring
The instruction that the trial court had agreed to give is in error. It requires an "intent to do bodily injury” as a mandatory element of felonious assault. A specific intent is not an element of felonious assault. The prosecution need only show the general criminal intent to commit an unlawful act necessary for simple assault.
VII. Conclusion
We granted leave to appeal in these cases to determine whether felonious assault includes specific intent as an element. We conclude that specific intent is not an element of felonious assault.
Therefore, the instruction given by the trial court in Johnson defining intentional assault as an element of -felonious assault was sufficient. We affirm the Court of Appeals in Johnson.
However, the instruction the trial court has agreed to give in Ring requiring an intent to injure is erroneous. We reverse the trial court’s decision to give that instruction and remand for instructions consistent with this opinion.
Coleman, C.J., and Blair Moody, Jr., J., concurred with Williams, J.
Ryan, J.
We agree with Justice Levin’s reasoning in disposing of the only issue upon which leave to appeal was granted in this case — whether felonious assault includes specific intent to do bodily harm as an element.
We disagree, however, with Justice Levin’s reading of this Court’s opinion in People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), regarding the definition of criminal assault and his conclusion that in Michigan unlawfully putting another in reasonable apprehension of injury is not a crime. In Sanfordfour members of the presently seated Court adopted the reasoning and accepted the conclusion of Justice Williams that a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery”. 402 Mich 460, 479.
That was not this Court’s first pronouncement on the matter. This Court said as much in People v Carlson, 160 Mich 426; 125 NW 361 (1910).
In contrast to my brother’s suggestion that in Sanford Justice Williams adopted a definition of criminal assault different from that which was noted in Carlson, we read Sanford as merely clarifying and restating the Carlson observation that there are two kinds of criminal assault — attempted battery and putting in fear.
In Carlson, admittedly with something less than model clarity, this Court stated that there are two definitions of criminal assault which, "taken together, may be said to include all necessary elements”:
" 'An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.’ 3 Cyc, p 1020.”
" 'An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.’ 2 Bishop on Criminal Law (7th ed), § 23.” 160 Mich 426, 429.
In Sanford, while quoting the definitions of criminal assault as they were stated in Perkins on Criminal Law (2d ed), p 117, we noted that Carlson acknowledged the existence of at least two forms of criminal assault:
"We also hold that either the Cyclopedia or the Bishop definition in Carlson is an adequate definition of a form of assault and that both forms are actionable in the criminal laws.” Sanford, supra, 479.
My brother further suggests that even conceding arguendo that Carlson established the existence of the two forms of criminal assault here in question, the viability of the two definitions set forth there was undermined by this Court’s intervening decision in People v Doud, 223 Mich 120, 125; 193 NW 884 (1923), and that in Doud the Court held that felonious assault cannot be established by proof of conduct putting another in apprehension of injury. He concludes, therefrom, that defendants Ring and Johnson, who were charged with pre-Sanford misconduct, cannot be convicted of the menacing type of criminal assault of which the Carlson and Sanford opinions spoke.
We disagree.
The Court in Doud was concerned only with the correctness of the challenged jury instructions which shifted the inquiry away from the intent of the defendant and focused instead upon the belief or fear of the victim that the defendant intended to fire a weapon at him. That Court properly concluded that "we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute”. 223 Mich 120, 125. (Emphasis added.) The Doud Court did not say that the accused’s intent or purpose to put the victim in reasonable apprehension of an immediate battery would not support an assault conviction.
The jury in Johnson was instructed that the defendant could be convicted if he attempted to injure the victim and the assault was "intentional”, but there was no instruction that defendant may alternatively be convicted of intentionally putting the victim in reasonable fear or appre hension of an immediate injury. The instruction was deficient in two respects: it failed adequately to inform the jury of the specific intent requirement and it neglected to present the alternative form of felonious assault.
The jurors in Ring should be instructed that defendant could be convicted if he specifically intended to injure the victim, but they were not to be instructed on the alternative form of assault— the intent to put the victim in apprehension of an immediate battery. The jury should be instructed on both forms of felonious assault.
In summary, the juries in each of the cases before us should be instructed on the definitions of assault outlined in Sanford, along with a specific intent instruction that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery.
We would reverse Johnson and remand for a new trial and affirm the trial court’s decision in Ring as modified and remand for trial.
Fitzgerald, J., concurred with Ryan, J.
This is acknowledged in relation to the intoxication defense. Generally intoxication is a defense only in specific intent crimes. In this context, it has been found that the defense is not available to one charged with simple assault, People v Comstock, 115 Mich 305, 312; 73 NW 245 (1897).
Justice Williams’ opinion was signed by Chief Justice Coleman and Justice Moody. In a separate opinion Justice Fitzgerald and I concurred in the result reached by Justice Williams and the disposition of the assault issue.
The Court of Appeals in Sanford had misinterpreted the Carlson definition in the conjunctive to include a requirement that "the victim be put in reasonable fear of immediate harm” before a conviction of criminal assault would lie. We concluded that they had been framed in the disjunctive and that either definition could stand alone. See Sanford, supra, 475, citing People v Sanford, 65 Mich App 101, 105; 237 NW2d 201 (1975).
"At the trial defendant was permitted to testify fully as to his intent and claimed he entertained no purpose to inflict injury. Even though such claim was refuted by his acts, demeanor and words, defendant had a right to go to the jury with what he claimed to have been his purpose. The trial judge gave the jury no instruction upon the issue of defendant’s intent, although requested to do so, but charged:
" 'The people say that he pointed the gun at Davenport; and the people say that he pointed the gun under such circumstances as imported an intent to fire his gun off. The people do not say that he did intend to (it is not necessary that they should say it or prove it), but if he pointed a gun under such circumstances that Davenport had reasonable grounds to believe that he intended to fire it off, and it was pointed at Davenport at the time, then he is guilty of the offense charged.’
"While the fear of one assaulted, arising from reasonable apprehension of bodily hurt, threatened by another having means and ability to inflict the same, is mentioned in some of the books as proper evidence to go to the jury, we do not understand that such fear governs upon the question of the intent or purpose of an accused under this statute. We think defendant was entitled to have the following portion of his sixth request to charge given:
" 'As to what his intention actually was you must determine that, if you are able to, from the evidence in the case, considering what he did, what he said, and what he testifies to as his intent.’ ” Doud, supra, 124-125.
In Doud, the defendant requested that the jury be instructed that:
"Applying this definition to the facts in this case, I instruct you that pointing a loaded gun at another within shooting distance, if the person pointing the gun intends to discharge it, is an assault. But it is not an assault to point a loaded gun at another if there is no intention to do bodily harm.”
The trial judge denied defendant’s request. On appeal, the defendant claimed that the failure to give his requested instruction was a reversible error (see Michigan Supreme Court Records and Briefs [112-128 April Term, 1923], Docket No 121, Appellant’s Brief, p 8), but this Court did not refer to this requested instruction or hold that the failure to give it was reversible error. Accordingly, we conclude that Doud did not hold that an intent to injure or batter is required in every criminal assault case. | [
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] |
Brickley, J.
The defendants appeal from a 1981
Court of Appeals affirmance of a Wayne Circuit Court summary judgment which held that a statutory one percent collection fee upon property taxes voluntarily paid before February 15 of the year following the issuance of the tax bill, MCL 211.44; MSA 7.87, violates the Equal Protection Clause of the Michigan Constitution. Const 1963, art 1, § 2.
The plaintiffs, who are commercial property owners, claim that the prescribed fee, which is calculated as a percentage of their property taxes, results in their paying more than most taxpayers for a service — the billing for and receipt of taxes— that is unrelated to the value of the property, and that such a result constitutes an irrational and arbitrary classification.
The defendant municipalities contend that the only classification provided by the statute distinguishes between those who pay by February 15 and those who do not and that this is a valid distinction. They do not agree that a flat percentage fee results in a classification since all property owners under similar circumstances and conditions are treated equally. They argue that the courts below have "artificially imposed ... a sub-classification within the legislative class of taxpayers paying their taxes before February 15.”
In the alternative, defendants argue that even if the statute imposes classifications based upon the value of the taxable property, such classifications are constitutionally permissible. They read the statute in question, as it is and as it has developed, as intending that the fee cover the cost of administering the entire property tax program including the assessment process, which, it was alleged by affidavit, requires greater effort and expense, in direct relationship to the higher value of property. In support thereof, they argue that even though it is called a "collection” fee, it goes to the contingent fund of the local unit of government from which come all funds for the entire cost of taxing and assessing.
In May of 1977, when this suit was commenced, the provision in question, § 44 of the Property Tax Act, 1968 PA 277, provided:
On receiving such tax roll the township treasurer or other collector shall proceed to collect such taxes. The township treasurer or other collector shall mail to each taxpayer at his last known address on his tax roll, on the receipt of such tax roll, a statement showing the description of the property against which the tax is levied, the assessed valuation of such property and the amount of the tax thereon. The tax statement shall set forth the state equalized valuation. The expense of preparing and mailing such statement shall be paid from the county, township, city or village funds. Failure to send or receive such notice shall not in any way prejudice the right to collect or enforce the payment of any tax. The township treasurer shall remain in his office at some convenient place in his township on every Friday in the month of December from 9 a.m. to 5 p.m. to receive taxes, but he shall receive taxes upon any week day when they may be offered. On all sums voluntarily paid before February 15 of the succeeding year, he shall add 1% for collection fees, and upon all taxes paid on or after February 15 he may add to the tax and 1% fee an additional collection fee equal to 3% of the tax. Taxes collected by the township treasurer after the last day of February and before settlement with the county treasurer shall have added thereto a 4% collection fee and interest on the tax at the rate of Vi of 1% per month, which payment shall be treated as though collected by the county treasurer. Collection fees for years prior to 1964 on taxes which have been paid in full and which have not been heretofore collected by the township treasurer are deemed waived. If the treasurer shall not mail the statements hereinabove required to be mailed on or before December 30, he shall be limited to 1% for collection fees with respect to taxes collected by him on and after February 15. In townships in which the treasurer receives a salary, the township board only may waive all or part of the collection fees on taxes paid on or before February 15. All fees collected by the township treasurer in townships where the treasurer receives a salary shall be credited to the contingent fund of the township. In a city in which the treasurer receives a salary the city commission or council may waive all or part of the collection fee on taxes paid on or before the due date established for the collection of taxes. When the bond of the treasurer, as provided in section 43, is furnished by a surety company, the cost of the bond shall be paid by the township from the contingent fund of the township. If the township treasurer is apprehensive of the loss of any personal tax assessed upon his roll, he may enforce its collection at any time, and if compelled to seize property or bring suit in December may add 4% for collection fees.[ ] [Emphasis added.]
The trial court traced the evolution of this legislation, beginning with a territorial act of 1820 (1 Territorial Laws 661, 668), which allowed the tax collector to collect as a fee a sum not exceeding six percent of the taxes collected. In 1843, the compensation was shifted from a percentage of the amount collected to the amount paid by the taxpayer by way of a fee "not exceeding four percent . . . for his collection fees . . . .” 1843 PA 49. Subsequent statutory changes referred to "collection expenses” and, again, "collection fees.” In time, salaries for treasurers were allowed, and subsequent amendments provided variously for no fees where there was a salary and later for optional waiver of the fee or its diversion, to the local government’s contingent fund.
This historical perusal and the present wording of the statute led the trial court to the conclusion that "the only purpose for the 1% collection fee offered by the statute is to compensate for the cost connected with collecting tax bills voluntarily paid.” This, in turn, led the trial court to further conclude that the plaintiffs were treated differently, since, because the cost of preparing and mailing the tax bills is constant regardless of the value of a given piece of property, they must pay more than "their share” of collection costs.
The Court of Appeals affirmed. 131 Mich App 631; 346 NW2d 849 (1984).
The United States Supreme Court set forth the federal standard for equal protection where taxation is concerned in Lehnhausen v Lake Shore Auto Parts Co, 410 US 356, 359; 93 S Ct 1001; 35 L Ed 2d 351 (1973). In that case, the Court upheld an Illinois statute that had relieved individuals of the personal property tax while continuing it for corporations:
The Equal Protection Clause does not mean that a State may not draw lines that treat one class of individuals or entities differently from the others. The test is whether the difference in treatment is an invidious discrimination. Harper v Virginia Bd of Elections, 383 US 663, 666 [86 S Ct 1079; 16 L Ed 2d 169 (1966)]. Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation. As stated in Allied Stores of Ohio v Bowers, 358 US 522, 526-527 [79 S Ct 437; 3 L Ed 2d 480 (1959)]:
"The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the ñexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.”
In that case we used the phrase "palpably arbitrary” or "invidious” as defining the limits placed by the Equal Protection Clause on state power. Id., at 530. State taxes which have the collateral effect of restricting or even destroying an occupation or a business have been sustained, so long as the regulatory power asserted is properly within the limits of the federal-state regime created by the Constitution. Magnano Co v Hamilton, 292 US 40, 44-47 [54 S Ct 599; 78 L Ed 1109 (1934)]. When it comes to taxes on corporations and taxes on individuals, great leeway is permissible so far as equal protection is concerned. They may be classified differently with respect to their right to receive or earn income. In Lawrence v State Tax Comm, 286 US 276, 283 [52 S Ct 556; 76 L Ed 1102; 87 ALR 374 (1932)], a state statute relieved domestic corporations of an income tax derived from activities carried on outside the State, but imposed the tax on individuals obtaining such income. We upheld the tax against the claim that it violated the Equal Protection Clause saying:
"We cannot say that investigation in these fields would not disclose a basis for the legislation which would lead reasonable men to conclude that there is just ground for the difference here made. The existence, unchallenged, of differences between the taxation of incomes of individuals and of corporations in every federal revenue act since the adoption of the Sixteenth Amendment, demonstrates that there may be.” Id., at 283-284. [Emphasis added.]
This Court, in Alexander v Detroit, 392 Mich 30, 35-36; 219 NW2d 41 (1974), articulated two tests against which suspect legislation must be measured:
(1) Are the enactment’s classifications based on natural distinguishing characteristics and do they bear a reasonable relationship to the object of the legislation?
(2) Are all persons of the same class included and affected alike or are immunities and privileges extended to an arbitrary or unreasonable class while denied to others of like kind? [Citations omitted.]
Applying the standards of Alexander, the trial court held that "the disparate fees bear [no] reasonable relationship to the actual costs of collection.” And, the "taxpayers in the same class are not treated alike but, rather, are separated accord ing to the sum of the taxes owed, an unreasonable and arbitrary distinction in view of the object of the collection fee.”
As a foundation for deciding that it was necessary to determine the purpose of the collection fee, the trial court made brief reference to the fact that "[tjhere is nothing unusual about imposing upon citizens the costs of the functions of government nor in allocating that burden among them in unequal degrees.” It pointed out, however, that that would have to be accomplished by taxation, rather than by fee. It concluded that it was not a tax, but, if it were, it would violate Const 1963, art 4, § 32.
We have on occasion opined on the necessity to distinguish between a fee and a tax, but in most instances we needed to do so only in order to determine the applicability of a constitutional or statutory limitation on a "tax.” In doing so, we have announced the rule that to pass the test of a "regulatory fee,” an exaction must not produce revenue in excess of the cost of the regulation. Bray v Dep’t of State, 418 Mich 149, 160; 341 NW2d 92 (1983). However, we have never held that the costs of a given regulation must be shared equally by all, i.e., that it is impermissible to charge someone more than their pro-rata share of the cost. Even if the distinction between a fee and a tax were relevant to our analysis here, there has been no discussion in the record or in arguments advanced here that the total revenues collected exceeded the cost of either the collection or the administration of the "collection fee.” Furthermore, we fail to see how this revenue-raising measure could be described as regulatory in nature. It does not purport in any way to regulate an activity such as would be the case with construction permits, hunting, or professional licenses. Similarly, this exaction does not purport in any way to charge for discretionary services such as admission fees, tuition, and so forth.
We agree with the trial court that it is well- established that the burdens of government do not have to be shared by the taxpayers on a pro-rata basis. What has not been shown is why the same concept would not similarly apply to the exaction in this case, whether it be called a tax or a fee.
Also, whether the one percent fee here is for the collection of taxes or for the total tax administration, including assessments, seems not only immaterial, but undiscoverable. The fee goes to the local unit’s contingent fund, where it apparently loses its identity. What is material and obvious is that, unlike fees for specialized and optional government services, the receipts of this exaction went to local government for one of the most elementary (and inevitable) functions of government. The suggestion that constitutional fairness requires that such a revenue-raising measure must be apportioned to the fee payer in proportion to the purported cost to that payer strikes us no differently than an assertion that the property tax itself must be levied according to the property owners’ proportion of use of local government services. If the government can, as it most often does, spread the cost of the collection of taxes to the general fund and, accordingly, to the taxpayers who pay, often progressively, most of their taxes on a percentage basis without constitutional invalidity, why then can it not raise funds in the course of raising taxes to cover the same costs by way of the same taxing principles?
An equal protection analysis, particularly where there is no suggestion of a suspect classification such as race, begins with the principle that the "burden is on the person challenging the classification to show that it is without reasonable justification,” Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975), and "[statutes are cloaked with a presumption of constitu tional validity.” Id., p 667. A statute will be upheld against an equal protection challenge if it contains a classification rationally related to a legitimate governmental interest. Shavers v Attorney General, 402 Mich 554, 613; 267 NW2d 72 (1978).
Alexander, supra, involved a refuse collection fee ordinance that charged a higher fee for multiple dwellings of more than four units, except for condominiums and cooperatives. That enactment on its face patently drew a distinction between two classifications which could not be satisfactorily explained by the record in that case. The legislation before us clearly does not on its face draw lines or distinguish between groups. It treats all property taxpayers alike in charging a flat percentage fee on the value of the property, those paying their property tax in a timely fashion being the only group discussed here. However, in concluding that the purpose of the collection fee is to cover costs that do not vary among this class of taxpayers, the lower courts have found an equal protection violation.
It has not been stated by the lower courts, nor argued by the plaintiffs, that we should apply a stricter standard in this case under Michigan’s Equal Protection Clause than has been enunciated by the federal courts, and we find nothing in the facts of this case which urges us to do so. We find the revenue raising procedure in this case to be within "the flexibility and variety that are appropriate to reasonable schemes of state taxation,” as set forth in Allied Stores of Ohio v Bowers, supra. Also, as appellants point out, a fiat percentage of a taxpayer’s property tax is not an arbitrary decision. A percentage fee of the value of the property grows with inflation and the amount of taxable property, thus making unnecessary occasional reevaluation and adjustment of the fee. We also take note of the fact that the flat percentage exaction, whether a tax or a fee, is a frequently used method of raising funds for the various costs of government. This one percent collection fee is no exception. A fee or tax based on the fee payer’s or taxpayer’s pro-rata share of the cost of the instant government service was certainly reasonable, but it is not the only reasonable principle or basis on which to assess such an exaction.
We find that § 44 of the statute in question does not, on its face, create separate classifications that invoke an equal protection challenge and that the plaintiffs have not met their burden of showing that the effect of the provision on individual taxpayers is arbitrary or unreasonable under Michigan’s Equal Protection Clause.
The judgments of the Court of Appeals and of the trial court are reversed, and the cause is remanded to the Wayne Circuit Court for further proceedings not inconsistent herewith.
No costs, a statutory interpretation being involved.
Levin, Ryan, and Boyle, JJ., concurred with Brickley, J.
The Legislature has since amended the portion of the statute which is the subject of the plaintiffs’ complaint. 1982 PA 503 changed the term "collection fee” to "property tax administration fee.”
See n 1.
1893 PA 206; 1915 PA 187; 1929 PA 217; 1931 PA 88; 1932 PA 21; 1945 PA 8; 1951 PA 85; 1952 PA 251; 1959 PA 216; 1961 PA 144; 1964 PA 275; 1965 PA 411.
Const 1963, art 4, § 32 provides:
"Every law which imposes, continues or revives a tax shall distinctly state the tax.”
Because we find it unnecessary for equal protection purposes to determine whether this exaction is a fee or a tax, we do not pass on the merits of this conclusion. Also, it has never been an issue on appeal that the collection fee would be unlawful as a tax.
Our brother Williams, in dissent, cites several cases for the proposition that distinguishing between a fee and a tax makes a difference for equal protection purposes. In Merrelli v St Clair Shores, 355 Mich 575, 583; 96 NW2d 144 (1959), our Court said that revenue could not be raised under the guise of a regulatory fee that exceeded the costs of the regulation, in that case, building permits. There was no reference in that case to any disparity between the fee payers or to any equal protection constitutional infringement. In Vemor v Secretary of State, 179 Mich 157, 168-169; 146 NW 338 (1914), this Court held that a license fee that raises more money than is needed to administer that program — the registration and identification of motor vehicles — is a tax rather than a fee, and, as such, it violates the title-object requirement of the Michigan Constitution because the title of the enacting statute did not identify it as a tax. Again, there was no reference to a disparity between fee payers. In Dearborn v State Tax Comm, 368 Mich 460, 472; 118 NW2d 296 (1962), a fifty cent license fee assessed on Detroit city buses was held to be not a tax, but a fee. That holding resulted in a finding that those vehicles were thereby not paying a state tax and therefore were not exempt from the local property tax of several adjoining cities where the vehicles were used and stored. In all three of these cases, it was important to distinguish between a fee and a tax in order to determine if some provision of the constitution or a statute was offended because the exaction was a tax disguised as a fee. But that is not the issue in this case; here, the result must be the same regardless of what label is applied to the one percent exaction.
The only case cited in dissent that is apposite is Foreman v Oakland Co Treasurer, 57 Mich App 231; 226 NW2d 67 (1974), lv den 394 Mich 815 (1975). There the Court of Appeals found that a probate fee based upon the value of an estate was not a violation of equal protection or due process, because the graduated fee was related to the cost of administering different-sized estates.
We certainly agree that the fee designed to coincide with the cost of administering the fee payer’s estate was reasonably based, but, as we conclude here, we do not agree that any other basis would necessarily be unreasonable.
Because we reverse the judgment of the Court of Appeals on the constitutional question, we do not address at this time the question what period of limitations would apply to plaintiffs’ recovery and the propriety of the denial of their motion to certify a class action.
Classic examples are the discriminatory taxes on newspapers struck down under the First Amendment (Grosjean v American Press Co, 297 US 233 [56 S Ct 444; 80 L Ed 660 (1936)]) or by reason of the fact that they discriminated against interstate commerce or required license taxes to engage in interstate commerce. See Michigan-Wisconsin Pipe Line Co v Calvert, 347 US 157 [74 S Ct 396; 98 L Ed 583 (1954)]. | [
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Riley, J.
In each of these cases the Michigan Citizens Lobby sought to engage in the solicitation of signatures for an initiative petition in the mall areas of privately owned shopping centers, over the objection of their owners, claiming that the denial or restriction of this activity is violative of the Michigan Constitution.
The issue presented is whether the Michigan Constitution’s Declaration of Rights provisions which guarantee the rights of free expression, assembly, and petition, art 1, §§ 3, 5, and the powers of initiative with respect to legislation, art 2, § 9, and to amend the constitution, art 12, § 2, prohibit the owners of large private malls from denying or restricting access to private individuals seeking to exercise these rights. We hold that they do not.
Woodland v Michigan Citizens Lobby
Woodland, a Michigan copartnership, is the owner and operator of Woodland Mall, a retail shopping center located in Kentwood, near Grand Rapids in Paris Township, Michigan. Woodland Mall consists of a wholly enclosed mall, three department stores, and a surrounding parking area. The enclosed mall of the shopping center is comprised of approximately eighty stores leased to individual tenants as well as common areas through which shoppers travel from store to store. The common areas are designed and maintained to facilitate travel within the mall and to accommodate shoppers by providing numerous seating facilities, art works, and fountains. Woodland Mall maintains a strict written trespass policy prohibiting any activity in the shopping center that is not directly related to the enhancement of commercial retail sales, which the tenants and merchants rely upon and expect Woodland to enforce, including soliciting, petitioning, securing signatures, speech making, distributing handbills, and similar activity.
The Michigan Citizens Lobby is a nonprofit Michigan corporation which advocates consumer interests. In March of 1982, the Citizens Lobby was seeking to qualify a petition to initiate state legislation and to qualify the proposal for the November 1982 ballot.
On April 1, 1982, the director of the Citizens Lobby notified the management of Woodland Mall that members of the Michigan Citizens Lobby would gather signatures at the mall on April 3, 1982. The mall informed him of its policy against such activity, but, on April 3, the director and other members of the Citizens Lobby entered the Woodland Mall to solicit signatures for the initiative petition. They were met at the entrance by a security guard who told them that they were not permitted to enter the shopping center for soliciting purposes. They were also met by the center manager who denied them access to the mall for their intended activities. Nevertheless, the Citizens Lobby entered the mall and set up three card tables, and signs announcing their presence and purpose, in the center of the mall, and began soliciting signatures. The mall manager informed them that they were on private property and asked them to leave. They refused to leave, and members of the Citizens Lobby continued soliciting signatures until 6:00 p.m. and announced that they would return on April 9 and 10 and thereafter for the same purpose.
On April 6, 1982, Woodland filed a verified complaint against the Michigan Citizens Lobby in the Kent Circuit Court, seeking a temporary restraining order, a preliminary injunction, and a permanent injunction, to prevent the Michigan Citizens Lobby from soliciting shoppers, gathering signatures, or otherwise entering and remaining on the Woodland Mall premises in violation of mall policy. The trial judge issued an ex parte restraining order on that same day. Following a hearing at which oral arguments were heard, the trial judge, on April 15, 1982, issued a preliminary injunction against the Michigan Citizens Lobby which was made permanent, by stipulation and agreement of the parties, on April 27, 1982. In relevant part, the order and final judgment read:
[T]he defendant, Michigan Citizans [sic] Lobby, [is] permanently enjoined from any time soliciting shoppers, gathering signatures, distributing handbills or other literature, securing signatures on petitions, making speeches, and engaging in any other expressive activity on any of the property owned by the plaintiff, Woodland, a Michigan co-partnership, including the common areas, court yards, and corridors of Woodland Mall, a retail shopping center located in the Township of Paris, County of Kent, and State of Michigan.
The Michigan Citizens Lobby appealed, and the Court of Appeals affirmed the trial court’s order. 128 Mich App 649; 341 NW2d 174 (1983).
Equitable Life Assurance v Michigan Citizens Lobby
Equitable Life is the owner of the Genesee Valley Center located in Flint Township, Michigan. The Genesee Valley Center is an enclosed mall consisting of three department stores and approximately ninety-two smaller stores. Like Woodland Mall, the Genesee Valley Center has common areas which are designed to facilitate travel within the complex as well as to promote rest and relaxation. The area is kept aesthetically pleasing to encourage such activity. Equitable Life maintains a strict policy regulating and restricting noncommercial activity on its premises.
On February 17, 1982, the Michigan Citizens Lobby contacted the Genesee Valley Center and informed the personnel there that it desired to come into the center to solicit signatures for a petition initiating legislation. The Citizens Lobby was told that the center had a written policy concerning the regulation of noncommercial and political activities and that the organization would be permitted to circulate its petitions in accordance with that policy. The Citizens Lobby was given a date in March 1982 on which it could engage in petitioning activity at the Genesee Valley Center.
The following day, February 18, 1982, the Michigan Citizens Lobby informed the center that their regulations violated Michigan law and that the Citizens Lobby would not comply with them. Latér the center learned that the Citizens Lobby intended to circulate petitions in the mall on February 20, 1982, and that local authorities would not intercede. The center contacted the Citizens Lobby and agreed to permit them to gather signatures on February 20, 1982, on a one-time-only basis, subject to less severe restrictions than those ordinarily imposed under the center’s policy._
On February 20, 1982, the Citizens Lobby conducted its initiative activity on the center premises. The Citizens Lobby informed the center that they intended to return to the center on each successive Saturday and perhaps more often until their petitioning campaign was completed and that they did not intend to comply with the center’s written policy. Subsequently, the Citizens Lobby informed Equitable Life that it intended to pursue solicitation activities at Equitable Life’s other Michigan shopping centers, and intended not to comply with the written policy at those centers either.
On February 24, 1982, Equitable Life Assurance Society, and others, filed a verified complaint in the Genesee Circuit Court, seeking a declaratory judgment and preliminary and permanent injunctions, to prevent the Michigan Citizens Lobby and others from entering onto Equitable Life’s properties for the purpose of engaging in noncommercial activity of any nature or, in the alternative, to declare that Equitable Life’s policy permitting limited noncommercial activity constituted reasonable time, place, and manner restrictions with which the Michigan Citizens Lobby must comply. On the same date, Equitable Life also filed a motion for an ex parte temporary restraining order enjoining any noncommercial activities by the Michigan Citizens Lobby on Equitable Life’s properties. The trial judge did not grant the motion, but instead scheduled a hearing for February 26, 1982 on the propriety of issuing a temporary restraining order. Following the hearing, the trial judge issued a temporary restraining order in favor of the Citizens Lobby.
On March 3, 1982, the Michigan Citizens Lobby answered Equitable Life’s complaint and filed a counterclaim for declaratory relief and preliminary and permanent injunctions barring Equitable Life from interfering with its rights of petition, assembly, expression, press, and the initiation of legislation in the general public areas, including interior mall areas, of all shopping centers owned or managed by Equitable Life in Michigan, subject to reasonable time, place, and manner restrictions. Both sides moved for summary judgment and a preliminary injunction. The Michigan Citizens Lobby also requested permanent injunctive relief. An evidentiary hearing took place on April 8, 1982. At the conclusion of the hearing, because the parties sought relief with respect to all five of Equitable Life’s shopping centers, the trial court indicated that it would take jurisdiction to consider injunctive relief with respect to all five shopping centers so far as the legal and factual issues presented at those centers were identical to those raised in the Genesee Valley Center litigation. On March 14, 1983, the trial court rendered an opinion. The court neither granted nor denied the motions, but rendered an opinion on the controlling question of law, and stated:
[U]nder the Michigan Constitution, a right of access in the mall area of a large private shopping center can exist for the purpose of soliciting signatures on an initiative proposal where the activity comports with the public nature of the property and does not unreasonably impair the value or use of the property as a shopping center.
The trial court stated that this determination must be made on a case-by-case basis and that an evidentiary hearing would be conducted to determine the public nature of Equitable Life’s shopping malls and the detrimental effect that the Citizens Lobby’s activities would have on Equitable Life’s interests. On May 16, 1983, the trial judge issued an order in accordance with his opinion.
The Court of Appeals granted Equitable Life’s application for leave to appeal. This Court granted Equitable Life’s application for leave to appeal prior to a decision by the Court of Appeals, and also granted leave to appeal in the Woodland case, 418 Mich 955 (1984).
I
The issue present in these appeals is not simply whether the provisions of the Michigan Constitution involved authorize initiative activity at large private malls. Nor is it accurate to frame the issue presently considered as whether the Michigan Constitution provides greater protection for expressive activity than the federal constitution. Rather, because private property and private conduct is involved, the primary question is whether the provisions of the Michigan Constitution involved reach such private conduct and property at all. This threshold issue must be directly confronted and adequately resolved before the merits of an alleged constitutional violation may be considered.
Our disposition of these cases makes it unnecessary to decide whether, if interpreted as protecting a constitutionally mandated right of access to the mall areas of large private shopping centers, the provisions of the Michigan Constitution here in question would infringe upon the mall owners’ private property, free speech, and association rights protected by the federal and state constitutions. US Const, Ams I, V, XIV; Const 1963, art 1, §§ 3, 5, 17, and art 10, § 2. We note however, that unlike other more difficult issues presented by these cases, there is established and well-reasoned constitutional doctrine with which to analyze and decide this issue.
That a state may, through the valid exercise of its police power, adopt reasonable restrictions on the use of private property is well-established. Writing for the United States Supreme Court in PruneYard Shopping Center v Robins, 447 US 74, 81; 100 S Ct 2035; 64 L Ed 2d 741 (1980), Justice Rehnquist said:
It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. [Citation omitted.]
The PruneYard Court directly addressed, within the factually similar circumstances of that case, whether the appellant’s (shopping center) constitutionally protected private property, free speech, and association rights had been unreasonably infringed upon because of the right of access granted to the appellees by the California Constitution to exercise the rights of expression and petition on appellants’ property. The Court concluded that "neither appellants’ federally recognized property rights nor their First Amendment rights [had] been infringed . . . .” Id., 88.
That the state constitution may afford greater protections than the federal constitution is also well-established and is based on fundamental constitutional doctrine and principles of federalism. The Michigan Constitution has been interpreted as affording broader protection of some individual rights also guaranteed by the federal constitution’s Bill of Rights. The Michigan Constitution has never been so interpreted in the free expression and petition context. Nevertheless, it is clear that the Michigan Constitution may afford broader free expression and petition protections against government infringements. Moreover, Michigan may, consistent with the federal constitution, extend protection against private interference as well, by statute or the state constitution, including the granting of an affirmative right of access to private property in some circumstances. The issue in these cases, however, is not whether the Michigan Constitution may afford such an affirmative right, but whether it does.
II
After some doctrinal development, the United States Supreme Court decisively held that large private shopping centers are not subject to the prohibitions of the First Amendment. Hudgens v NLRB, 424 US 507; 96 S Ct 1029; 47 L Ed 2d 196 (1976); Lloyd Corp, Ltd v Tanner, 407 US 551; 92 S Ct 2219; 33 L Ed 2d 131 (1972). The Court rejected the contention that a privately owned retail shopping center was the "functional equivalent” of the business district in Marsh v Alabama, 326 US 501; 66 S Ct 276; 90 L Ed 265 (1946).
The Citizens Lobby contends that, unlike the First Amendment to the United States Constitution, the free speech, assembly, and petition provisions of the Michigan Declaration of Rights are not limited to protection only against state or governmental action.
Const 1963, art 1, § 3 reads:
The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances.[ ]
Art 1, § 5 reads:_
Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.[ ]
The Citizens Lobby asserts that § 3, and the first clause of § 5, are not expressly limited to protection against government abridgments, in contrast to the free speech, assembly, and petition provisions of the First Amendment:
Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [US Const, Am I.]
The primary issue presented, therefore, requires a determination concerning whether these provisions of the Michigan Constitution include an implied state action limitation or are directly applicable against private entities as well.
The firmly established doctrine that constitutionally guaranteed individual rights are drawn to restrict governmental conduct and to provide protection from governmental infringement and excesses is not unique to the federal Bill of Rights. This has generally been the view with respect to state bills of rights as well. See Rottschaefer, American Constitutional Law, § 305 (1939); McLain, Constitutional Law (2d ed), § 205, p 294 (1910); Cooley, Constitutional Law (3d ed), ch 12, p 219 (1898). This fundamental concept concerning the reach of constitutionally guaranteed individual rights is deeply roc' ' “ itional tradition constitutional democracy. The Michigan Constitution’s Declaration of Rights provisions have never been interpreted as extending to purely private conduct; these provisions have consistently been interpreted as limited to protection against state action. See, e.g., Cramer v Metropolitan Savings & Loan Ass’n, 401 Mich 252; 258 NW2d 20 (1977) (due process), cert den 436 US 958 (1978); Harvey v Aetna Life Ins Co, 72 Mich App 285; 252 NW2d 471 (1976) (equal protection).
The Citizens Lobby, in dismissing the relevance of the state action argument, distinguishes the phraseology of the Michigan Constitution’s provisions from those of the federal constitution because the latter express a "negative right” and use "prohibitory language,” while the former grant a "positive right” and use "declaratory language.” This distinction is less than persuasive in reaching the conclusion that the state action argument is irrelevant. In interpreting provisions of the Michigan Constitution to determine whether these provisions afford broader protection than their federal counterparts, this Court has not been persuaded by textual differences. For example, although the freedom of religious belief provision, art 1, §4, is textually dissimilar from the religion clauses of the First Amendment, this Court has held that the state provision is "an expanded and more explicit statement of the establishment and free exercise clauses of the First Amendment” and, "accordingly, subject to similar interpretation.” Advisory Opinion re Constitutionality of 1970 PA 100, 384 Mich 82, 105; 180 NW2d 265 (1970).
In contrast, other provisions of the Michigan Constitution which are worded identically to their federal counterparts have been interpreted to be substantively different. The double jeopardy provision of the Michigan Constitution, art 1, § 15, for example, has been interpreted as affording broader protection than the Fifth Amendment Double Jeopardy Clause. These variations in phraseology are not dispositive of the state action issue.
In Bloss v Paris Twp, 380 Mich 466, 472; 157 NW2d 260 (1968), this Court quoted the following passage with approval from 16 CJS, Constitutional Law, § 213, p 1108 (since revised and renumbered, see CJS, volume 16B):
The constitutional provisions do not add anything to the rights of one citizen as against another and do not inhibit action by individuals with respect to their property. So the right to speak freely does not sanction a trespass, and does not imply the right to make a speech or distribute literature on another’s private premises without his permission. In other words, the right to free speech and writing is not one to force speech and writing on an unwilling audience or readers, and the constitutional guaranty does not authorize a citizen to appropriate to his own use public or private property in a community for the purpose of exercising that guaranty.
The passage was quoted in Bloss in response to a claim of protection under the United States Constitution’s First Amendment. Although this Court has not directly considered whether the rights of free expression and petition protected in the Michigan Constitution’s Declaration of Rights include the requirement of state action, it has implied that this requirement or limitation exists. In Book Tower Garage, Inc v UAW Local No 415, 295 Mich 580, 587; 295 NW 320 (1940), this Court said that "[t]he same liberty of speech ... is secured by the Constitution of the State of Michigan” as is guaranteed by the First Amendment.
The history of Michigan’s Constitutional Convention supports the proposition that, generally, the reach of individual rights afforded by the Michigan Constitution is limited to protection against government. A debate concerning the state action requirement took place during the Constitutional Convention that preceded the adoption of the Michigan Constitution of 1963. The debate specifically concerned the necessity of the state action requirement with regard to art 1, § 2 (the equal protection provision). Addressing whether this section regulates the actions of private parties as well as the government, the Chairman of the Committee on Rights, Suffrage and Elections, James Kerr Pollock, stated:
This is not a directly enforceable provision in regard to private persons. . . . The majority of the committee considered this preferable, both because, as a general proposition, constitutional limitations should serve to restrain governmental action and not to define private duties, and because the areas in which private discrimination should be forbidden, the extent to which discrimination is prohibited, and the sanctions to be applied are matters that we think are appropriately left for legislation. [1 Official Record, Constitutional Convention 1961, p 742.]
A minority proposal was introduced which would have extended the reach of this provision to cover disputes between private parties. This minority proposal was rejected by the convention. Id., p 750. The majority proposal was then unanimously adopted. Id., p 760. Although the focus of the above exchange was art 1, § 2, it indicates the support of the drafters for the general proposition that the state Declaration of Rights is concerned with governmental infringement and leaves regulation of private conduct to the Legislature.
Although there are obvious differences in nature between the federal and state constitutions, some of the underlying purposes and rationale supporting the requirement of state action are equally applicable. State constitutions and governments are not subject to the same inherent constraints that limit the federal constitution and government. The United States Constitution grants limited authority to the federal government to exercise only those powers that have been expressly or impliedly delegated to it. State constitutions, by contrast, serve as limitations on the otherwise plenary power of state governments.
Therefore, the federalism concern, which is a primary principle supporting the state action requirement of the federal constitution, is, obviously, not a concern with respect to the state constitution. Other concerns thaf have been said to support the federal state action requirement, however, are directly applicable to the state constitution: the doctrines of private autonomy and separation of powers.
Professor Lawrence Tribe, in his noted treatise, Constitutional Law, has explained:
[B]y exempting private action from the reach of the Constitution’s prohibitions, it stops the Constitution short of preempting individual liberty — of denying to individuals the freedom to make certain choices. . . . Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution’s demands. [Tribe, American Constitutional Law, p 1149.]
A fundamental philosophical tenet underlying our constitutional system is that the preservation of the personal freedom of the individual is an important function of our federal and state governments and one of the primary reasons for limiting their activity. See Burke & Reber, State action, congressional power and creditors’ rights: An essay on the Fourteenth Amendment, 46 S Cal LR 1003, 1016 (1973):
It is at the heart of the American libertarian tradition that the individual be given wide rein in structuring his relationships with other individuals, if only because the alternative of close governmental control threatens liberty itself.
The state action limitation is supported and reinforced by the separation of powers doctrine because of the recognition that the courts are inherently limited, because of their institutional character and role, to accomplish goals which are essentially legislative and political. This element of the state action requirement is supported by logic and practical considerations as well.
In light of traditionally accepted notions of the limited reach of constitutionally guaranteed individual rights, the past decisions of this Court, the documented history of Michigan’s most recent constitutional convention, and the underlying rationale of the state action limitation, it may not be presumed that the constitutional provisions here in question are intended to apply against private individuals or entities. If any presumption is to be raised it is to the contrary: that unless otherwise expressed, constitutionally guaranteed protections are applicable only against government. We find no indication or warrant that the people of this state, in adopting our constitution, intended either of these provisions to apply against private parties. Accordingly, we interpret Const 1963, art 1, § 3 and § 5 as implicitly limited to protection against state action. If the citizens of Michigan wish their constitution, in addition to serving as a shield against the actions of the state, to be used as a sword by individuals against individuals, there is a means by which this can be done. Art 12, § 2.
Ill
The Citizens Lobby also places heavy reliance directly on art 2, § 9, to support its claim of a right of access. The power of initiative and referendum with respect to laws is reserved to the people in art 2, § 9, which provides, in part:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. ... To invoke the initiative . . . petitions signed by a number of registered electors, not less than eight percent ... of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature.
If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection. . . . The legislature may reject any measure so proposed by initiative petition and propose a different measure upon the same subject . . . and in such event both measures shall be submitted by such state officer to the electors for approval or rejection at the next general election.
The final provision of art 2, § 9, states that "[t]he legislature shall implement the provisions of this section.” Nevertheless, it is clear that art 2, § 9, is self-executing. As one author commenting on the Michigan initiative and referendum process has observed:
The drafters of the [provision], concerned because the rights of the initiative and referendum were reserved in derogation of the legislature, expressly stated that . . . art 2, §9, [was] to be self-executing and that "the legislature could not thwart the popular will by refusing to act.” [Gross-man, The initiative and referendum process: The Michigan experience, 28 Wayne LR 77, 83, n 35 (1981) (citing Address to the People 21, 2 Official Record, Constitutional Convention 1961, p 3367).]
The initiative provision set forth in art 2, § 9, is not expressed in terms of an individual right, but is reserved to the people collectively, and serves as an express limitation on the authority of the Legislature. This reservation of legislative authority by the people, which reserves to the people the right to "legislate,” does not make them a part of the government. In Decher v Secretary of State, 209 Mich 565, 572; 177 NW 388 (1920), this Court, in distinguishing between the legislative power vested in the Legislature and the right of initiative and referendum reserved to the people, said that
[u]nder the provisions ... as to initiative and referendum, the people have no power to enact legislation until the proposal therefor has been submitted by petition to the legislature for action thereon. The right of the people to thus legislate in no way makes them a part of the legislature
The interpretation of this provision of the state constitution that the Citizens Lobby urges us to adopt is premised upon a number of presumptions. First, it presumes that art 2, § 9 is concerned with protecting an individual’s right to gather signatures. Second, it presumes that this individual right protected by art 2, § 9, proscribes the conduct of private entities and implicitly confers a right of access to private property over the objection of its owner.
This interpretation stretches too far. The individual right to solicit signatures to qualify an initiative petition is protected by the rights of free expression, assembly, and petition, guaranteed in sections 3 and 5 of article 1, "The Declaration of Rights.” The provisions of art 2, § 9 are not invoked until the requirements set forth therein have been complied with. This section of article 2, "Elections,” is not concerned with protecting the individual right to solicit signatures or to petition government generally. If art 2, § 9 was intended to include a substantive right to gather signatures it would have been expressed, especially if it was intended to afford greater individual rights in this regard than are already protected by article 1. There is no such indication within the text of this constitutional provision. Art 2, § 9, is a reservation of legislative authority which serves as a limitation on the powers of the Legislature. This reservation of power is constitutionally protected from government infringement once invoked; once the petition requirements have been complied with, the state may not refuse to act. But even under the most liberal interpretation, this provision cannot be construed as conferring a right to be exercised by one private individual or entity against another. In Leininger v Secretary of State, 316 Mich 644, 653; 26 NW2d 348 (1947), this Court said the following with respect to the right of initiative:
Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution.
The Citizens Lobby argues that it is unreasonably difficult to obtain the required number of signatures to qualify an initiative petition (i.e., eight percent of the total vote cast in the last gubernatorial election) without access to large shopping malls, because there are no adequate alternatives to reach the same people it seeks to reach in the malls and, therefore, that without a constitutional right of access to shopping malls the power of initiative is eviscerated. While there may be no similarly convenient alternate avenues, the practical difficulties of obtaining signatures without constitutionally mandated access to the malls has not been shown.
The initiative process of art 2, § 9, was not intended to be easy to fulfill. During the Constitutional Convention, an effort to reduce the requisite number of signatures from eight percent to five percent was strongly resisted and ultimately defeated. During the debate on the proposed reduction, delegate Kuhn observed of the procedure eventually adopted:
It’s tough. We want to make it tough. It should not be easy. The people should not be writing the laws. That’s what we have a senate and house of representatives for. [2 Official Record, Constitutional Convention 1961, p 2394.]
Indeed, the initiative process has been described as "assuring] the citizenry of a gun-behind-the-door to be taken up on those occasions when the legislature itself does not respond to popular demands.” Lederle, "The Legislative Article,” in Pealy (Ed), The Voter and the Michigan Constitution in 1958, p 47. This "gun-behind-the-door” was intended as a threat to the Legislature, not to private property owners. Nowhere in the convention record is there any evidence of an intent to grant rights of access to privately owned businesses as a means of effectuating art 2, § 9. Instead, the initiative process is intended as a last resort for the people when the Legislature fails to act on issues which so inflame the citizenry on a grass-roots level that there is no need to trespass upon privately owned property to reach disinterested and unknowing citizens.
Nothing in the history or interpretation of the precursor to art 2, § 9, provides a basis for a different construction. In 1913, the people amended the 1908 Constitution to provide a statutory initiative, Const 1908, art 5, § 1, and a constitutional amendatory initiative, Const 1908, art 17, §2, that was less restrictive than that originally provided. These 1913 constitutional amendments reflected the popular distrust of the legislative branch of our state government. In construing art 17, §2, the constitutional amendatory initiative provision, this Court said in 1924:
The initiative found its birth in the fact that political parties repeatedly made promises to the electorate both in and out of their platforms to favor and pass certain legislation for which there was a popular demand. As soon as election was over their promises were forgotten, and no effort was made to redeem them. These promises were made so often and then forgotten that the electorate at last through sheer desperation took matters into its own hands and constructed a constitutional procedure by which it could effect changes in the Constitution and bring about desired legislation without the aid of the legislature. [Hamilton v Secretary of State, 227 Mich 111, 130; 198 NW 843 (1924).]
An even earlier Court said in 1918 that the people’s right to propose constitutional amendments through the art 17, § 2, initiative process could "be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises.” Scott v Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918). Thus, just five years after the statutory and amendatory initiatives were adopted by the people, this Court discussed the resultant restrictions solely in terms of governmental actors. The purpose of Const 1963, art 2, § 9, from its inception in 1913 as Const 1908, art 5, § 1, was to limit the legislative branch of state government, not private individuals’ use of privately owned property.
We are cognizant of the importance of the right of initiative in Michigan’s constitutional scheme. We are also cognizant, however, of the role and importance of this Court in Michigan’s constitutional scheme. Within this context, Justice Cooley wrote:
Constitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action .... They [the courts] must construe them as the people did in their adoption, if the means of arriving at that construction are within their power. [Bay City v State Treasurer, 23 Mich 499, 506 (1871) (cited in Decher v Secretary of State, 209 Mich 565, 569; 177 NW 388 (1920).]
The people, in adopting art 2, § 9, and art 12, § 2 of the Michigan Constitution of 1963 did not intend to regulate the conduct or property of private parties.
IV
The Citizens Lobby argues, alternatively, that if this Court is not inclined to completely dispense with a state action requirement, it should adapt the "public function” concept of Marsh v Alabama, supra, to apply the state constitution to Michigan shopping centers. While we agree that the state action limitation implicit in the state constitution may be interpreted independently, we are not inclined to adopt this subterfuge.
The Citizens Lobby cites the opinion of Justices Black and Smith in Amalgamated Clothing Workers v Wonderland Shopping Center, 370 Mich 547; 122 NW2d 785 (1963), to support both the propositions that no state action limitation exists within the provisions of the Michigan Constitution, and that the "public function” concept of Marsh is applicable to shopping centers. Although Amalgamated Clothing Workers does not support the former proposition, it is relevant to the latter and, therefore, warrants some discussion.
In Amalgamated Clothing Workers, this Court divided equally (four to four) when considering whether the rationale of Marsh was applicable to a shopping center. The Court, thus, affirmed the lower court’s decree enjoining interference with the union’s distribution of handbills urging people not to buy nonunion shirts, in front of the particular store and on the exterior sidewalk of the shopping center. Amalgamated Clothing Workers is of limited applicability, however, because the three opinions delivered in that case were based on the application of the First Amendment and federal constitutional doctrine (the state free speech provision was not interpreted independently). Furthermore, Amalgamated Clothing Workers was decided before Hudgens, supra, and Lloyd, supra, in which the United States Supreme Court held that private shopping centers, unlike the company-owned town in Marsh, were not subject to the prohibitions of the First Amendment.
The opinion in Amalgamated Clothing Workers, in which Citizens Lobby wishes to find support, was based on an extension of the federal "public function” theory and constitutional analysis of Marsh. The opinion of Justices Black and Smith analogized the shopping center in that case to the company-owned town in Marsh, stating:
The facts in the case herein presented are similar to those in the Marsh Case, supra. The law contained therein is controlling. The defendants operate a shopping area which, although privately owned, is quasi-public in nature. [Amalgamated Clothing Workers, supra, 564 (Black and Smith, JJ., for modiñcation and affirmance).]
Justices Black and Smith stated that the crux of the Marsh decision was that the company-owned town in that case lost its original identity as private property because of the extent and purpose of its invited and accepted public use. Id., 565. To justify their conclusion that the shopping center should be treated as "public” property for purposes of the First Amendment and free speech provision of the state constitution, Justices Black and Smith discussed the doctrine of common-law dedication "as an augmentive attestant of due applicability of the Marsh Case . . . .” Id. Summarizing the rules of common-law dedication, they stated:
Private property may, by unceremonious act and implication from act on the part of the landowner, and like act and implication from act on the part of the public, become subject to public easement by means of common-law dedication. The public right in such instance does not depend upon acceptance and use for any particular period of years. The fact of dedication and acceptance, and the extent of the dedicated use, must be determined from the intent of the dedicators and acceptors and the legal significations thereof. No particular form is necessary to such dedication. The fee does not pass. An easement does. There may be a public abandonment after acceptance, and reversion to the original owner, when the use for which the dedication was made becomes impossible of execution or where the object of the use fails. [Id., 567.]
They were for affirming, in substance, the ruling of the lower court that
[t]he change from the operation of a single store by a storekeeper to a large, complex, multiple shopping center, alters the very nature of the operation from one of a purely private character to one of public or quasi-public character. The single storekeeper would still be entitled to prevent any unauthorized intrusion on his private property. The defendants ... no longer can claim the same rights to their property. The property of the defendants has lost its identity as private property. [Id., 564-565. Emphasis added.]
Chief Justice Carr, in contrast, found that the factual situation in Amalgamated Clothing Workers was not analogous to that of Marsh. Justice Carr stated:
We are not concerned here with a company-owned town exercising and performing in practical effect the powers and functions of a municipal corporation .... It performs no governmental functions .... Its property, privately owned, is devoted to the carrying on of private business. [Amalgamated Clothing Workers, supra, 553. (Carr, C. J., for reversal).]
Justice Carr found, therefore:
[T]he means of access to such businesses as are conducted by the tenants therein have been provided for the use of those who desire for business reasons to visit the stores, shops, and other business places. In view of the apparent theory on which the decision of the majority of the court in Marsh was based, we are not in accord with the claim that the holding is controlling in the instant controversy. [Id.]
Justice Carr concluded:
In the instant case plaintiff is seeking the aid of equity to enable it to send its representatives upon the property of defendants, and upon other properties of like nature, in connection with the promotional campaign in which it is engaged. The cases cited in support of its position do not support a conclusion that the property of defendants, the shopping center in question here, is so dedicated to use by the public generally as to vest in plaintiff, or others, the right to make use thereof in connection with the promotion of interests sought to be advanced. [Id., 561.]
Justice O’Hara concurred in the result reached by Chief Justice Carr, but wrote separately to express his opinion that the right of free speech was not involved at all. Id., 574 (O’Hara, J., for reversal).
Other state supreme courts had considered extending the "public function” doctrine of Marsh to subject large shopping centers to the prohibitions of the First Amendment prior to the United States Supreme Court having done so in Amalgamated Food Employees Local 590 v Logan Valley Plaza, Inc, 391 US 308; 88 S Ct 1601; 20 L Ed 2d 603 (1968), by reasoning that the shopping center complex in that case was the "functional equivalent of the business district ... in Marsh,” id., 318, over the strong dissent of Justice Black, who authored the Court’s opinion in Marsh, supra. See Cohen, PruneYard Shopping Center v Robins: Past, present and future, 57 Chicago Kent L R 373, 381, n 46 (1981).
Shortly after its decision in Logan Valley, however, the Supreme Court declined such an extension in Lloyd Corp v Tanner, supra, and then expressly rejected Logan Valley’s rationale in Hudgens v NLRB, supra. In Hudgens the Court said:
It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. [Citation omitted.] Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself. [Hudgens, supra, 513.]
After limiting Marsh to situations in which a company-owned town has assumed all of the characteristics of a municipality, the Court held that the protections afforded by the First Amendment do not apply against the private owners of private shopping centers. Id., 518. See also Flagg Brothers, Inc v Brooks, 436 US 149; 98 S Ct 1729; 56 L Ed 2d 185 (1978).
We recognize that adapting the federal "public function” doctrine to the shopping centers in these cases would be a limited exception to the state action requirement as opposed to a complete dispensation of it; this approach would simply treat the shopping centers as if they were the state for purposes of the state constitution’s free speech and petition provisions. As the Connecticut Supreme Court noted in Cologne v Westfarms Associates, 192 Conn 48, 64; 469 A2d 1201 (1984), however, there is no legal basis to distinguish shopping malls from other places where large numbers of people congregate, thereby affording superior opportunities for political activities, such as sport stadiums, convention halls, theaters, private parks, large office or apartment buildings, factories, supermarkets, department stores, or similar places. We find the reasoning of Chief Justice Carr in Amalgamated Clothing Workers, supra, compelling. As the United States Supreme Court stated in Lloyd, supra, 569:
[Property [does not] lose its private character merely because the public is generally invited to use it for designated purposes. Few would argue that a free-standing store, with abutting parking space for customers, assumes significant public attributes merely because the public is invited to shop there. Nor is size alone the controlling factor. The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.
V
A number of other jurisdictions have recently considered similar issues with regard to their state constitutions. These cases have resulted in some remarkably close decisions and have spurred a great deal of commentary. Although many have come out in favor of granting a limited right of access to certain types of private property and for certain types of activity, their reasoning has not been consistent.
In Robins v PruneYard Shopping Center, 23 Cal 3d 899; 153 Cal Rptr 854; 592 P2d 341 (1979), the California Supreme Court held that the free speech and petition provisions of the California Constitution protected a right of access in the common areas of a privately owned shopping mall. The California Court, in Robins, did not directly address whether the California Constitution’s Bill of Rights included a state action limitation. Instead, the majority and dissenting opinions in Robins focused on whether interpreting the state constitution as protecting a right of access to private shopping malls was violative of the mall owners federally guaranteed constitutional rights. The majority in Robins, 908, concluded that the state constitution’s rights of free speech and petition "justified reasonable restrictions on private property rights.” In reaching its decision the majority seems to have applied a balancing of the conflicting private interests involved.
In Alderwood Associates v Washington Environmental Council, 96 Wash 2d 230; 635 P2d 108 (1981), the Washington Supreme Court sharply divided in deciding the issue whether the free speech, petition, and initiative provisions of the Washington Constitution protected a right of access to privately owned shopping centers.
A plurality of four justices, in adopting a balancing of the competing private interests approach, did address the state action issue and concluded that no such limitation exists in the Washington Constitution. Alderwood, 239-246. See Utter, The right to speak, write, and publish freely: State constitutional protection against private abridgement, 8 U Puget Sound L R 157, 181 (1985).
In distinguishing the Alderwood plurality’s balancing approach from the "public function” doctrine of Marsh, supra, Justice Utter explained:
Under the federal public function doctrine, the court will find "state action” only when the private person or entity is engaged in an activity that is a traditional and exclusive function of government.
In contrast, the plurality’s analysis [in Alder- wood] does not require any such government-like activity. Rather, the . . . test simply allows the court to consider as one factor the extent to which private property resembles a public place. Not only may speech rights be protected on property that is used for activities that have never been traditional or exclusive functions of government, but the property need not even be particularly public for speech to be protected thereon if other factors militate in favor of protection. [Id., 185. Emphasis in original.]
Justice Utter contrasted this balancing approach under the Washington Constitution with the applicable standards of the federal constitution. He stated that the Alderwood plurality’s balancing approach is also applicable to cases involving governmental infringement, and, thus, no higher level of scrutiny is required. Id., 182-183.
The claim, upon which the Alderwood plurality’s balancing approach is premised, that there is no state action limitation in the Washington Constitution’s Declaration of Rights, was rejected by a majority of the Alderwood court itself.
Justice Dolliver dissented vehemently to the constitutional analysis adopted by the plurality in Alderwood, but, nevertheless, concurred in result through a separate analysis based solely on Washington’s initiative provision. Dissenting to the open-ended “balancing of interests” constitutional analysis adopted by the plurality in Alderwood because it totally disregarded the Washington Constitution’s state action limitation, Justice Dolliver said:
While this court has in the past declared the substance of the Washington Constitution may differ from that of similar provisions of the United States Constitution . . . this is the first time the court has held the Declaration of Rights in our constitution is designed not just to protect the individual from government but that it may also be used by one individual against the other. It is constitution making by the judiciary of the most egregious sort.
This court . . . should not expand its views of the fundamental meaning of the constitution — and thus the power of the court — at the expense of the will of the people. See G. Deukmejian & C. Thompson, All Sail and No Anchor-Judicial Review Under the California Constitution, 6 Hastings Const LQ 975 (1979). As it articulates constitutional rights it "chooses” to declare, the majority also arrogates to the court powers undreamed of by those who wrote and those who adopted our constitution.
The majority opinion represents a determination by the court that it, instead of the legislature, will settle conflicting interests among citizens and that it will accomplish this by what it chooses to call a constitutional basis .... Now the court will be able to dispense with the inconvenience and cumbersomeness of legislative activity.
Now there is no limit to the range of wrongs which this court may right — subject only to the court’s notion of balancing interests. [Alderwood, supra, 248-251 (Dolliver, J., concurring in result).]
Justice Dolliver based his decision on the police power and Washington statutes and case law which have implemented and construed amendment 7 of the Washington Constitution, the initiative provision. Justice Dolliver distinguished Washington’s initiative provision by characterizing initiative activity as quasi governmental and equating the gathering of signatures to the governmental act of "legislating.”
The dissent in Alderwood (four justices), agreed with the objections of the concurrence to the plurality’s application of a "balancing test” in resolving that case. The dissent also disagreed, for many of the same reasons, with the concurrence’s analysis. The dissent agreed that a state may adopt reasonable restrictions on private property in the exercise of its police power, but said that no right had been given, by either Washington’s Constitution or statutes, authorizing persons to collect initiative signatures on private property against the will of its owners. Alderwood, supra, 253 (Stafford, J., dissenting).__
We agree with the dissent in Alderwood that the regulation of private property analysis is misplaced in resolving these issues, and we therefore find it inapplicable to the present cases.
Furthermore, we reject the Citizens Lobby’s suggestion that we adopt a "balancing of the competing interests” constitutional analysis in these cases by which the importance of the rights of free speech, petition, and initiative, are balanced against the rights of the shopping centers in controlling and operating their private property. In addition to completely ignoring the state action limitation in our state’s constitution, this open-ended balancing approach has far reaching implications and is flawed for reasons that are both theoretical and practical in nature.
We find the reasoning of the Connecticut Supreme Court in Cologne v Westfarms Associates, supra, to be sound. The Connecticut Supreme Court rejected a claim that the free speech, assembly, and petition provisions of the Connecticut Constitution protected a right of access to privately owned shopping centers. The court, after reviewing the history surrounding the enactment of the Connecticut Constitution, stated that the concern which led to the adoption of the state constitutional provisions at issue was the protection of individual liberties from governmental interference, not the prevention of private interference with those liberties. In declining to apply a "balancing of interests” approach, the Connecticut Supreme Court stated:
It is not the role of this court to strike precise balances among the fluctuating interests of com peting private groups which then become rigidified in the granite of constitutional adjudication. That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications which may arise from the exercise of constitutional rights by some in diminution of those of others. [Id., 65.]
VI
Property rights and economic interests have always been subject to reasonable regulation in promotion of the general welfare. That function, however, has traditionally been performed by the Legislature, which, because of its institutional role and character, is far more competent to deal with such matters. As the Connecticut Supreme Court stated in Cologne, supra, 65:
For the court to assume such a regulatory function . . . would relegate the legislature to a subordinate role in our governmental scheme. Statutes would become largely obsolete if courts in every instance of the assertion of conflicting constitutional rights should presume to carve out in the immutable form of constitutional adjudication the precise configuration needed to reconcile the conflict.
Conflicting evidence was presented in these cases concerning the necessity of a legal right of access to large private malls and the interference with the proprietary interests of the mall owners and their lessees that would result. This is an appropriate concern for the Legislature. The Legislature, because of its superior fact-finding ability and general legislative authority, can more adequately deal with these problems concerning the conflicting interests of private individuals. This is the function of that body, and we may not presume that the Legislature has any less concern for these issues than this Court.
We are aware of the extensive development of large shopping malls and the opportunities for individuals and groups to engage in activities such as the gathering of signatures for initiative petitions therein. But, we cannot in judicial conscience reinterpret our state constitution in a way that is contradictory to its fundamental purposes, its history, the intentions of its authors, the past decisions of this Court, and, most importantly, the understanding with which it was adopted by the people of this state.
We affirm the decision of the Court of Appeals in Woodland v Michigan Citizens Lobby, and we reverse the decision of the trial court in Equitable Life Assurance v Michigan Citizens Lobby.
No costs, a public question being involved.
Ryan, Brickley, and Boyle, JJ., concurred with Riley, J.
The tenants and merchants pay for maintenance of the common areas. None of the tenants and merchants of Woodland Mall may solicit business or distribute handbills or other advertising matter in the common areas.
The Citizens Lobby was seeking to qualify a petition initiating legislation that would forbid the automatic pass-through of utility rate increases and require prior Public Service Commission approval of rate adjustments. The Citizens Lobby was successful in collecting the nearly 230,000 valid signatures necessary to qualify the proposal.
Prior to April 1, 1982, representatives of the Citizens Lobby were informed that Woodland Mall had a strict policy against any expressive activity, and that no petition-gathering would be permitted at the mall, in response to an inquiry by the Citizens Lobby in March of 1982.
Equitable Life also owns four other shopping facilities in southeastern Michigan: Eastland Center in Harper Woods, Westland Shopping Center in Westland, Northland Center in Southfield, and South-field Shopping Center in Taylor.
Factually, the confrontation here centers on Equitable Life’s Gene-see Valley Center. Equitable Life sought relief from the Michigan Citizens Lobby’s activities with respect to its "properties,” and the Michigan Citizens Lobby sought affirmative relief in its counterclaim with respect to all five shopping centers, specifically naming each.
From the record, it appears that there was ongoing litigation involving at least one of the other Equitable Life properties, between the same parties, in Wayne County. Both parties expressed a desire for the Genesee circuit judge to assume sole and total jurisdiction with respect to all five of Equitable Life’s properties. It seems that the Wayne circuit judge and the trial judge here were amenable to such an arrangement. The record does not reflect any further action in this regard, except that the Genesee circuit judge’s order and opinion addressed all five of Equitable Life’s properties.
The trial judge summed up the major limitations as follows:
"Plaintiff would only permit defendant to solicit in accordance with plaintiff’s established policy regulating noncommercial and political activities. That policy, which plaintiffs assert is uniformly enforced, includes the following: each organization must register five working days in advance of the day which they wish to solicit petition signatures including a detailed description of the proposed activity; the noncommercial activity must be conducted from a booth in a prescribed area of the mall and all activities must be carried on within two feet within any direction of the booth; no more than two representatives may be present at any given time; and the organization is limited to conducting its activities two hours per day on consecutive days, twice per year. A $100.00 security deposit to cover possible cleanup must be posted.”
The center was informed by the Flint Township Police Department that the Citizens Lobby intended to come into the shopping areas of the center to circulate petitions. The Flint Township Police further indicated that they would not enforce the Michigan trespassing statute, MCL 750.552; MSA 28.820(1).
See n 4.
On February 24, 1982, Equitable Life also filed an action against the Flint Township Police Department, the Genesee County Sheriffs Department, and the Genesee Prosecuting Attorney, seeking a writ of mandamus compelling the enforcement of Michigan’s trespass statute, MCL 750.552; MSA 28.820(1), against any persons coming onto Equitable Life’s Genesee Valley Center property for the purpose of petitioning or engaging in other noncommercial activity in violation of the center’s policy. The trial judge consolidated this action with Equitable Life’s action against the Michigan Citizen’s Lobby.
See n 4.
In its order and partial declaratory judgment, the trial court ordered an evidentiary hearing to determine the public nature of Equitable Life’s shopping centers and the detrimental effect that the Citizens Lobby’s activities would have on Equitable Life’s interests.
See, e.g., Village of Euclid v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926); Young v American Mini Theatres, Inc, 427 US 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976).
447 US 74, 82-88.
The appellant in PruneYard challenged the decision of the California Supreme Court as violative of the Takings Clause of the Fifth Amendment, the due process requirement of the Fourteenth Amendment, and the free speech and association provisions of the First Amendment of the United States Constitution.
See, e.g., Oregon v Hass, 420 US 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975); Cooper v California, 386 US 58; 87 S Ct 788; 17 L Ed 2d 730 (1967).
See, e.g., People v Beavers, 393 Mich 554; 227 NW2d 511 (1975); People v Moore, 391 Mich 426; 216 NW2d 770 (1975); see also n 22, and cases and commentary cited therein.
See Kelman, Forward: Rediscovering the state constitutional bill of rights, 27 Wayne L R 413, 416, n 10, and cases cited therein and accompanying text. See also, e.g., Book Tower Garage, Inc v UAW Local No 415, 295 Mich 580; 295 NW 320 (1940); People v Neumayer, 405 Mich 341; 275 NW2d 230 (1979).
The dissent’s focus is misplaced to this extent. By interposing and discussing the issue whether a state constitution may protect such an affirmative right of access to private property first, the dissent tends to obscure the primary issue (at least chronologically) of whether the Michigan Constitution does afford such a right.
In Marsh, the United States Supreme Court held that the First Amendment protected a right to distribute religious literature on the streets of a company-owned town.
Art 1, § 3, has remained basically the same since 1835. Const 1835, art 1, § 20; Const 1850, art 18, § 10; Const 1908, art 2, § 2.
In 1835, the provision was written with the structure it now has: the first clause recognized in every person a right of free speech; the second clause prohibited laws that abridged this right. Const 1835, art 1, § 7. In 1850, the order of the clauses was reversed, with the prohibition on laws abridging speech appearing first. Const 1850, art 4, § 42. In 1908, the origins! 1835 order of the clauses was again adopted, Const 1908, art 2, § 4, and this order was maintained in the 1963 Constitution.
In 1963, some minor changes were made in the free speech provision. While the 1908 Constitution stated that "[e]very person may freely speak, write and publish his sentiments on all subjects,” Const 1908, art 2, § 4, the new language states that "[e]very person may freely speak, write, express and publish his views on all subjects . . . .” Const 1963, art 1, § 5. (Emphasis added.)
See also, e.g., Grand Rapids v Impens, 414 Mich 667; 327 NW2d 278 (1982) (Miranda warnings); People v Holloway, 82 Mich App 629; 267 NW2d 454 (1978) (search and seizure); Dow v Michigan, 396 Mich 192; 240 NW2d 450 (1976) (due process); Commodities Export v Detroit, 116 Mich App 57; 321 NW2d 842 (1982); People v Hubbard, 115 Mich App 73; 320 NW2d 294 (1982). See generally Note, PostPruneYard access to Michigan shopping centers: the "mailing” of constitutional rights, 30 Wayne L R 93 (1983).
Art 1, § 4 reads:
"Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.”
Ci. the religious freedom provisions of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” US Const, Am I.
See People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980); People v White, 390 Mich 245; 212 NW2d 222 (1973). See generally Note, People v Carter, 61 Det J Urb L 505 (1984). But see People v Robideau, 419 Mich 458; 355 NW2d 592 (1984).
The double jeopardy provision of the Michigan Constitution reads: "No person shall be subject for the same offense to be twice put in jeopardy. Const 1963, art 1, § 15. Cf. the Double Jeopardy Clause of the Fifth Amendment: "Nor shall any person be subject for the same offense to be twice put in jeopardy . . . .” US Const, Am V.
It has been noted, by at least one commentator, that the Michigan Constitution’s equal protection provision, Const 1963, art 1, § 2, which is worded substantially the same as its federal counterpart, has been interpreted differently than the Equal Protection Clause of the Fourteenth Amendment. See Kelman, n 17 supra, pp 427-428, ns 60-69, and accompanying text.
In its recent decision in Delta Charter Twp v Dinolfo, 419 Mich 253; 351 NW2d 831 (1984), this Court, in addressing a due process challenge to a zoning ordinance, interpreted the due process protections of the Michigan Constitution differently than the requirements of the federal constitution.
It has been noted that in the area of free expression this Court has closely followed the United States Constitution’s First Amendment protections. See Kelman, n 15 supra at 416, n 10 and accompanying text.
Art 1, § 2 states: "No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin.”
Other evidence that an implicit state action limitation to the provisions of the Michigan Constitution is generally recognized was advanced in these cases. Appellant Equitable Life quoted a passage from some materials circulated by the Citizens Research Council prior to the constitution’s ratification:
" 'The enumeration and definition of rights in the field of individual relations have traditionally rested, however, with statute law (legislative prescription) and have not commonly been taken note of in constitutional law. Thus, the reluctance of the Convention to enter the fields of social and economic rights of individuals leaving this to the legislature, extends the reliánce on a traditional solution . . . .’ Citizens Research Council, A Digest of the Proposed Constitutional Report, No 213 at 10-11 (Nov, 1961).”
Appellant Equitable Life also quoted a statement made by the Committee on Declaration of Rights in presenting art 1, § 5 (free speech), to the Convention:
" 'Here again is a traditional guarantee of American liberty, now covered largely by the extension of federal constitutional guarantees against the states, which the Committee nonetheless believes it wise to continue to incorporate in Michigan’s fundamental law.’ ” 1 Official Record, Constitutional Convention 1961, p 466.
Similarly, appellee Woodland quotes from University of Michigan Professor Paul G. Kauper’s research paper for the Convention, noting that his comments applied to the entire Declaration of Rights:
" 'The classic concept of basic rights in the American constitutional tradition is that these rights are retained by the people as against limitations and infringements by actions of the government. The rights a person has against third persons are defined by common law and statute. These are not ordinarily regarded as constitutional matters. The principle that a state shall not deprive a person of his life without due process of law is a constitutional matter, but constitutions do not make it a crime for an individual to take another’s life. This is governed by the criminal laws.
" 'If all civil rights, in the sense of rights which a person may assert against his fellow citizens, were to be incorporated in the constitution, the distinction between the constitution as fundamental law — defining the frame of government and the relation of the government to the citizen — and the general laws of the state — defining rights and obligations arising out of private relationships — would be lost.’ Kauper, The State Constitution, Its Nature and Purpose (Con-Con Research Paper No 2, Citizens Research Council of Michigan, October 1961), p 21.”
See Note, n 20 supra, for a good general discussion concerning the underlying values of the state action doctrine and how they support the state action limitation implicit in the Michigan Constitution.
The significance of this major difference is that the state action limitation implicit in the state constitution does not limit the reach of state legislation in the same way that federal legislation may be restricted by express limitations in provisions of the federal constitution.
See Const 1963, art 3, § 2. Referring to the doctrine of separation of powers Justice Coleman wrote:
"We speak of that balance wheel built into our United States Constitution at its 1789 beginning and since preserved and known generally as the Separation of Powers doctrine. It has been a specific provision of all of Michigan’s Constitutions commencing in 1835.” Manistee Bank & Trust Co v McGowan, 394 Mich 655, 681-682; 232 NW2d 636 (1975) (Coleman, J., dissenting).
The state action limitation reinforces this doctrine by limiting the reach of constitutional provisions, generally, to conflicts between people and those who represent government in all its manifestations. This limitation stops the court from encroaching upon what is primarily a function of the Legislature acting pursuant to its police power and other constitutional powers. The regulation of the relationships between individuals or groups of individuals is not, generally, a concern of the constitution. The fundamental role of the constitution is to regulate the relationship between the government and the people.
Limited to the adversary setting in adjudicating particular disputes, and to granting specific legal and equitable remedies, the court is less competent than legislative bodies to perform the factfinding and legislative functions. In the area of constitutional adjudication, these limitations become even more apparent.
The Michigan Constitution reserves to the people the power of initiative and referendum with respect to constitutional amendments as well. Const 1963, art 12, § 1 (referendum); art 12, § 2 (initiative).
Compare art 2, § 9, with the individual rights protected in art 1, §§ 1-21, the "Declaration of Rights.”
Actually, the Michigan citizenry has engaged in a substantial amount of initiatory activity, albeit primarily in the area of constitutional amendments requiring the signature of ten percent of the electorate rather than the eight percent required for statutory initiatives. However, since 1970, there has been substantial statutory initiative activity which has met with success at the polls.
There have been sixteen proposed amendments to the 1963 Constitution which originated by initiatory petition under Const 1963, art 12, § 2. Of these sixteen, five were approved by the voters. Michigan’s use of the constitutional initiative was favorably commented upon in Grossman, The initiative and referendum process: The Michigan experience, 28 Wayne L R 77, 79-80, n 11 (1981):
"In terms of its use of the constitutional initiative process, Michigan is one of the more active states. Between 1970 and 1979, 11 constitutional amendments were proposed by initiative petition in this state. Only Colorado, with 12 initiated amendments during this period, exceeded Michigan; Ohio also had 11 initiated proposals. Further, throughout the entire country, only six constitutional initiatives were adopted by the voters in 1978-79. Three of those were passed in Michigan. Council op State Governments, the Book op the States 1980-81 4-5 (1981).”
There have been six statutory initiatives under Const 1963, art 2, § 9, which were submitted to the voters. Of these, five were approved by the people and enacted into law. These statutes enacted by the people include such areas as legislation to prohibit nonreturnable bottles and cans, 1976 PA, Initiated Law, MCL 445.571-445.576; MSA 18.1206(11)-18.1206(16), and legislation to restrict the parole of persons convicted of violent crimes, 1978 PA, Initiated Law, MCL 791.233; MSA 28.2303. The contemporary use of the statutory initiative under art 2, §9, compares quite favorably with earlier usage. Under Const 1908, art 5, § 1, the statutory initiative was invoked only once. See Grossman, supra, p 79, n 11. Thus, during the same time period in which large shopping malls have proliferated, the use of the statutory initiative under art 2, §9 has increased rather than decreased.
The proponents of the reduction wanted to encourage the use of the statutory initiative over the constitutional amendment. Their reasoning was that since the amendatory initiative requires ten percent, while the statutory initiative requires eight percent, most initiative seekers obtain the additional signatures required for the amendatory process rather than stopping at the eight percent required for the statutory initiative. 2 Official Record, Constitutional Convention 1961, pp 2392-2394.
At this point in the Michigan Supreme Court’s history, there were eight justices sitting on the Court. See 1948 CL 601.1; MSA 27.1. See also Const 1963, schedule 6.
Of the constitutional guarantee of freedom of speech, Justice O’Hara wrote:
"Freedom of speech is a constitutional safeguard against the growth of tyranny which has historically followed the suppression of the right to speak out on all subjects of man’s intellectual inquiry. Secured earlier it would have protected Galileo against ecclesiastical tyranny, Voltaire from governmental tyranny. It permitted Robert Ingersol to stand on the public platform and invite the God he professed not to believe in to strike him dead. It secured to organized labor the right to publicize the existence of controversy between employer and employee by peaceful picketing. Its absence doomed Socrates to the hemlock and Copernicus to the posthumous publication of his astronomical observations.” Amalgamated Clothing Workers, supra, 574 (O’Hara, J., for reversal).
The California Supreme Court’s decision in Robins v PruneYard Shopping Center, 23 Cal 3d 899; 153 Cal Rptr 854; 592 P2d 341 (1979), was reached on a vote of four-three. The Washington Supreme Court in Alderwood Associates v Washington Environmental Council, 96 Wash 2d 230; 635 P2d 108 (1981), divided four-one-four in reaching a decision.
The Supreme Judicial Court of Massachusetts recently considered a similar issue in Batchelder v Allied Stores Int’l, Inc, 388 Mass 83; 445 NE2d 590 (1983). The Massachusetts court’s decision in Batchelder was not based upon the state free speech provision, but was expressly limited to the "free election” provision of the Massachusetts Constitution which states:
"All elections ought to be free; and all the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.” Id., 88, n 6 (citing Mass Const, art 9).
In a four to three decision the Court held that article 9 of the Massachusetts Constitution does not include a state action requirement and, therefore, protects the right of a candidate to solicit signatures in private shopping centers in support of his nomination to run for public office.
In Cologne v Westfarms Associates, 192 Conn 48; 469 A2d 1201 (1984), the Connecticut Supreme Court, in a three to two decision, held that the free speech and petition provisions of that state’s constitution are not applicable to private shopping centers. The North Carolina Supreme Court was unanimous in rejecting such a claim with respect to the Constitution of North Carolina in State v Felmet, 302 NC 173; 273 SE2d 708 (1981).
Two state supreme courts have considered related issues with regard to a private university and college. In State v Schmid, 84 NJ 535; 423 A2d 615 (1980), the New Jersey Supreme Court held that its state constitution protected the rights of free speech and assembly on the campus of a private university. Similarly, the Supreme Court of Pennsylvania reached the same result in Commonwealth v Tate, 495 Pa 158; 432 A2d 1382 (1981). Both of these decisions emphasized the dedicated use of university or college property as a forum for the exchange of opinions and ideas.
See, e.g., Cohen, supra; Utter, The right to speak, write, and publish freely: State constitutional protection against private abridgement, 8 U Puget Sound L R 157 (1985); Wachs, Access to private fora and state constitutions: A proposed speech and property analysis, 46 Alb L R 1501 (1982); Simon, Independent but inadequate: State constitutions and protection of freedom of expression, 33 U Kan LR 305 (1985); Note, Post-PruneYard access to Michigan shopping centers: The "mailing” of constitutional rights, 30 Wayne LR 93 (1983); Developments in the law, the interpretation of state constitutional rights, 95 Harv L R 1324 (1982); Note, Private abridgment of speech and the state constitutions, 90 Yale L J 165 (1980); Barnett, A private mall becomes a public hall, 26 Loyola L R 739 (1980).
In PruneYard, a group of high school students sought access to a large shopping center to solicit signatures in support of a petition protesting a United Nations resolution concerning Zionism.
The California courts, it seems, have now extended the Robins decision to apply to small shopping centers as well as large ones. See Bill Press v Lucky Stores, Inc, 34 Cal 3d 311; 193 Cal Rptr 900; 667 P2d 704 (1983).
Alderwood involved a citizens group seeking to gather signatures for an initiative petition.
This article was written by the author of the plurality opinion in Alderwood.
Justice Utter explained, however, that even when a governmental interest prevails over free speech rights under the Washington Constitution, the governmental activity in question would also be subject to the First Amendment because "state courts must also rely on the federal Constitution and provide the amount of protection required under that document,” in situations in which the Washington Constitution provides less protection than is provided under the federal constitution. Id., 184, n 140.
Four justices joined in the plurality opinion; four dissented. Justice Dolliver concurred in result only and expressly rejected the plurality’s claim that the Washington Constitution does not require state action.
Justice Dolliver stated:
"It should be noted that the initiative process is not a 'right’ against government .... Rather, amendment 7 [the right of initiative] is a declaration by the people in their constitution that they are part of the legislative process. Amendment 7 declares not that the people have a right against government but that the people are part of the apparatus of government — the legislative branch. As a part of government the initiative process may be exercised, as may other aspects of government, only in such a way as not to restrict the use of private property so as to amount to a taking.” Alderwood, supra, 253 (Dolliver, J., concurring in result).
"One problem with the constitutional interpretation by both the majority and the concurrence is that neither seems to have a logical stopping point. Counsel for the defendants (petitioners) conceded in oral argument that, if a private person’s home was on the busiest corner of the city and hence the best available place from which to gather signatures, the collector’s alleged constitutional right would compel the homeowner to allow a card table to be set up on his front lawn. Neither the majority nor the concurrence’s resolution of this case appears to preclude such an absurd extension of the new found right to collect signatures on private property (and the concomitant reduction in basic property rights).” Alderwood, supra, 254, n 10 (Stafford, J., dissenting).
In Cologne, the Connecticut National Organization for Women sought access to the mall to solicit signatures for petitions in support of the Equal Rights Amendment to the federal constitution.
The Citizens Lobby makes the factual assertion that the development of private shopping centers has adversely affected the ability of individuals to exercise the rights of free speech, assembly, and petition, because these shopping centers have replaced the traditional public retail districts. Although the Citizens Lobby has not presented any evidence to support this contention, it analogizes these private shopping centers to the "public markets” of yesteryear, tracing their origin to those of ancient Greece. As the malls note, however, the validity of this factual assertion is questionable. The development of shopping centers has not occurred in a vacuum. While the ability to communicate may have been largely restricted to the public market place many years ago in a less technological era, it is clearly not so inhibited any longer. Today there are radios and television, newspapers, telephones, numerous other public forums and other alternative means of expression. Furthermore, contrary to the assertion of the Citizens Lobby that initiative activity is being stifled by shopping centers that maintain access policies similar to those of Woodland and Equitable Life, the documented recent history in Michigan tends to reflect that citizen-initiated petition drives have gained popularity and success during the same years that witnessed the proliferation of private shopping centers. See n 34.
The malls argue, on the other hand, that mandated political access would impose unreasonable harm on shopping centers. Equitable Life, for example, presented a consumer attitude market survey and expert testimony concerning the adverse effect of compelled access on the shopping center’s proprietary and constitutional interests. Woodland asserts that the seriousness of the economic harm would increase as political activity increased in frequency, and that an increase in such activity would also entail an increased risk of violent confrontation. Woodland cites the factual experience that took place in Cologne, supra, as illustrative. In Cologne, a violent demonstration erupted at the mall involved, when the Ku Klux Klan sought to take advantage of a prior decision of the superior court granting access to the National Organization for Women for expressive purposes. Anti-Klan groups protested and engaged in a heated demonstration which resulted in a major disturbance.
While this evidence is less than conclusive, it tends to show that a legally mandated right of access could present some complex problems and result in some harm to private shopping centers. The Citizens Lobby asserts that the right of access to shopping centers would be subject to reasonable time, place, and manner restrictions, and that any potential harm could be minimized by imposing such reasonable restrictions. Furthermore, the Citizens Lobby asserts that in situations in which a shopping center is threatened with the risk of a violent confrontation (e.g., counter-demonstrators appearing likely to cause substantial damage), a court of equity could presumably grant relief.
It should be noted that there are no established standards by which to determine the reasonableness of time, place, and manner restrictions when access to private property is concerned. Limits exist on the state’s power to impose such regulations. See Heffron v Int’l Society for Krishna Consciousness, Inc, 452 US 640, 647-648; 101 S Ct 2559; 69 L Ed 2d 298 (1981); United States v O’Brien, 391 US 367, 377; 88 S Ct 1673; 20 L Ed 2d 672 (1968). The standards applicable to governmental restrictions of expressive activity on public property, however, is not easily adaptable because of the entirely different nature of the interests involved. | [
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] |
Cavanagh, J.
Plaintiffs contest the propriety of allowing four adult foster care (afc) small group homes for six or less developmentally disabled or mentally ill adults to operate in several residential areas of Livonia and Southfield, Michigan. They raise a variety of challenges to the 1979 Adult Foster Care Facility Licensing Act (afcfla), 1979 PA 218, MCL 400.701 et seq.; MSA 16.610(51) et seq., and § 3b of the City and Village Zoning Act (cvza), 1921 PA 207, as amended by 1976 PA 396, MCL 125.583b; MSA 5.2933(2). We reject each of plaintiffs’ challenges.
I
Livonia v DSS
Three of these cases involve afc small group homes located in residential areas of Livonia, Michigan. Defendants R. Roberts Residential Services, Inc., Brant Homes, Inc., and Human Services and Aftercare, Inc., are nonprofit corporations. Each corporation filed an unrelated application with the Department of Social Services (dss) for a temporary license to operate an afc small group home for six or less developmentally disabled persons. In January and February, 1981, the dss notified the City of Livonia Bureau of Inspection of these applications and its intent to issue three temporary licenses. On March 19, 1981, the city attorney filed three separate complaints with the dss requesting that the licenses be denied because of alleged noncompliance with the afcfla, Livonia zoning ordinances and building code, and restrictive covenants in the homeowners’ deeds. On May 4, 1981, the Director of the dss responded that there was no basis to deny any of the applications.
In response to this decision, the city submitted a written objection with the dss on May 11, 1981, and requested an administrative hearing. In addition, the city and several homeowners filed three separate suits in the Wayne Circuit Court on April 1 and 2, 1981, seeking to permanently enjoin the licensure and operation of the homes. Temporary restraining orders were entered in each case prohibiting the dss from issuing the licenses. However, by July, 1981, defendants’ motions for summary judgment had been granted in each case, and the temporary restraining orders were dissolved. Plaintiffs appealed these decisions to the Court of Appeals.
The administrative proceedings continued while the appeals were pending. Pursuant to MCL 400.723(3); MSA 16.610(73)(3), temporary licenses were issued to the afc small group homes prior to the resolution of the administrative proceedings. In an opinion dated November 25, 1981, a hearing officer rejected or declined to address most of the city’s challenges. He nevertheless recommended that the licenses be rescinded without prejudice because the Department of Mental Health (dmh) had failed to notify the city of its plan to establish the homes until after the site-selection process was completed and had failed to give the city an oppor tunity to present suggestions or objections. On December 17, 1981, the Director of the dss adopted the hearing officer’s findings of fact and conclusions of law, except insofar as the hearing officer had recommended rescission. The director found that the dss had "no legal obligation” to withhold licensure pending cooperation between the dmh and local units of government. The licensures were therefore upheld. Plaintiffs apparently did not appeal this administrative decision to the circuit court.
The Court of Appeals upheld the circuit court decisions concerning the Roberts and Brant homes in City of Livonia v Dep’t of Social Services, 119 Mich App 806; 328 NW2d 1 (1982) (hereinafter Livonia I). However, the Court believed that the cases should be remanded to determine whether the dss had failed to comply with the afcfla on prior occasions. As to the Human Services home, the Court of Appeals, in an opinion by Justice Riley, affirmed in all respects. City of Livonia v Dep’t of Social Services, 123 Mich App 1; 333 NW2d 151 (1983) (hereinafter Livonia II). We granted plaintiffs’ applications for leave to appeal. 418 Mich 874 (1983).
Greentrees Civic Ass’n v Pignatiello
Defendant Victory Wisdom Nonprofit Housing, Inc., a nonprofit corporation, applied to the dss for a license to operate an afc small group home for six or less women in a residential neighborhood of Southfield, Michigan. The women were to be selected from the residents of Clinton Valley Center, a state psychiatric facility, after appropriate screenings. The home is adjacent to the Greentrees subdivision. Plaintiff Greentrees Civic Association is a group of subdivision homeowners.
The dss notified the City of Southfield of the proposed licensure in August, 1980. Defendants and representatives of the dss, the city, and the association met several times to discuss the intended use of the home, but could not reach a mutually agreeable solution. On September 19, 1980, the city attorney filed a complaint with the dss, alleging that the proposed licensure would violate the afcfla. The Director of the dss responded on November 6, 1980, that there was no basis to deny defendants’ application.
In response, plaintiff association filed suit in the Oakland Circuit Court on November 21, 1980, seeking to permanently enjoin the operation of the home. A temporary restraining order was entered prohibiting defendants from operating any type of afc facility. The City of Southfield was subsequently allowed to intervene. The restraining order was modified on March 31, 1981, to allow defendants to operate an afc small group home, but prohibited the placement of mentally ill adults therein.
In the meantime, the city attorney submitted a written objection with the dss on December 1, 1980, contesting the director’s decision and requesting an administrative hearing. In an opinion dated May 4, 1981, the hearing officer rejected two of the city’s challenges, but agreed that mentally ill persons could not be placed in the home. On June 16, 1981, the Director of the dss adopted the hearing officer's recommendation that the home should be licensed. However, he concluded that the afcfla permitted placement of mentally ill per sons in afc small group homes because the terms "emotionally disturbed” and "mentally ill” are used synonymously in the act. The city appealed this administrative decision to the Oakland Circuit Court on June 29, 1981. The circuit court subsequently affirmed after Oxford Twp v Dep’t of Social Services, 120 Mich App 103; 327 NW2d 409 (1982), was issued. The city’s appeal of that decision is currently pending in the Court of Appeals.
Shortly after the Director of the dss issued his decision, the independent injunctive action was resolved. The circuit court ruled that defendants could operate an afc small group home, but could not provide foster care to mentally ill persons. A permanent injunction to that effect was issued on July 1, 1981. Defendants appealed the injunctive order and plaintiffs cross-appealed the decision permitting plaintiffs to operate the home.
While that appeal was pending, plaintiffs filed a petition for an order to show cause with the circuit court, alleging that defendants had violated the July 1, 1981, injunction by placing mentally ill adults in the home. On January 15, 1982, the circuit court ordered an independent psychiatric evaluation of the five resident women. The psychiatrist concluded that each resident was both developmentally disabled and suffering from some degree of mental illness. The Director of Community Placement for the dmh had previously concluded that the women were only developmentally disabled. Apparently no hearings have been conducted to resolve this dispute.
The Court of Appeals subsequently upheld the licensure of the home. The majority also concluded that the circuit court had erred in enjoining the placement of mentally ill adults therein. Greentrees Civic Ass’n v Pignatiello, 123 Mich App 767; 333 NW2d 350 (1983). We granted plaintiffs’ application for leave to appeal. 418 Mich 880 (1983).
II
We begin our analysis with an overview of the movement toward deinstitutionalization and community placement of adults requiring foster care. Prior to the early 1960’s, mentally retarded and other developmentally disabled persons were routinely institutionalized. Institutionalization was initially designed to shelter such persons from the risks of society. By the early twentieth century, however, the rationale for institutionalization changed to that of protecting society from these persons. By the 1960’s, a "distinct humanistic renaissance” had occurred, which stressed the "normalization” of disabled individuals. According to this approach, disabled persons who are unable to live with their families are allowed to reside in homes of normal size, located in normal neighborhoods, that provide opportunities for normal societal integration and interaction. Such community placement permits disabled persons to reach their full potential and become contributing, productive members of society.
Some communities, however, were and are reluctant to allow "community,” "group,” or "foster care” homes in residential areas. Zoning ordinances and practices have been used either to exclude such homes entirely or to restrict them to commercial areas. The result frequently is the creation of "ghettos” of foster care homes, particularly in transitional residential areas, business, or institutional zones. Such concentrations of foster care homes often change the character of the neighborhoods, thus undercutting the purposes behind normalization and provoking negative reactions by area residents.
Many states have enacted statutes governing community residential facilities for developmentally disabled, physically handicapped, mentally ill, or aged persons. 1972 PA 287, MCL 331.681 et seq.; MSA 16.610(1) et seq. (hereinafter 1972 afcfla), was this state’s initial effort to license and regulate afc facilities that provide alternative care services to adults who do not require institutional medical or nursing care. The 1972 afcfla did not categorize afc facilities by the number of persons who resided therein, nor did it designate the types of disabled persons for whom care could be provided. The administrative rules promul gated by the Director of the dss, however, defined three classes of afc facilities:
1) family homes, which provided care to no more than six adults with at least one caretaker being required to reside in the home, 1979 AC, R 400.2103(3), 400.2202(2);
2) group homes, which provided care to more than six but no more than twenty adults, 1979 AC, R 400.2103(5); and
3) congregate facilities, which provided care to more than twenty adults. 1979 AC, R 400.2102(5).
In addition, the rules allowed placement of mentally ill adults in afc family homes. See 1979 AC, R 400.2211(e), (g).
To prevent municipalities from using zoning ordinances as a basis for excluding or segregating afc facilities, the Legislature in 1976 added § 16a to the County Rural Zoning Enabling Act, MCL 125.216a; MSA 5.2961(16a), § 16a to the Township Rural Zoning Act, MCL 125.286a; MSA 5.2963(16a), and § 3b to the City and Village Zoning Act, MCL 125.583b; MSA 5.2933(2). These sections each provide that a state-licensed residential facility, as defined in 1972 PA 287, which provides supervision or care to six or. less persons shall be considered a residential use of property for zoning purposes and a permitted use in all residential zones. The amendments also: require notification of the appropriate county, township, city, or village as to the location of the proposed afc facility; prevent facilities from being located in proximity to each other; and forbid licensure of a proposed facility if it will "substantially contribute to an excessive concentration of state licensed residential facilities” within that particular community.
In 1979, the Legislature repealed 1972 PA 287 and replaced it with a more extensive act — 1979 PA 218, MCL 400.701 et seq.; MSA 16.610(51) et seq. (hereinafter 1979 afcfla). The House Legislative Analysis of HB 4104, which became 1979 PA 218, reveals that the 1979 afcfla was designed to provide more specificity and to deal with circumstances which had not been foreseen at the time the original afcfla was enacted. In addition, the Legislature wished to classify, license, and regulate homes for the aged as afc facilities.
Under the 1979 afcfla, "adult foster care facility” is defined as an establishment having as its principal function the receiving of adults for foster care. It includes facilities and homes for aged, emotionally disturbed, developmentally disabled, or physically handicapped adults who require ongoing supervision, but not continuous nursing care. As in the prior act, certain institutions are not considered afc facilities. These include nursing homes, homes for the aged, general hospitals, hospitals for the mentally ill, facilities for the developmentally disabled, county infirmaries, child care institutions, children’s camps, foster family homes, foster family group homes, alcohol or substance abuse rehabilitation centers, residential facilities for persons released from or assigned to adult correctional institutions, maternity homes, and hotels or rooming houses which do not provide or offer foster care. As of March 27, 1984, homes for the aged were to be categorized as afc facilities. MCL 400.703(4); MSA 16.610(53)(4).
In addition, the 1979 afcfla established five categories of afc facilities:
1) camps, which provide care to more than four adults in a facility located in a natural or rural environment, MCL 400.703(2); MSA 16.610(53X2);
2) family homes, which provide care to six or fewer adults in private residences, the licensee of a family home being required to be a member of the household and an occupant of the residence, MCL 400.703(5); MSA 16.610(53)(5);
3) small group homes, which provide care to twelve or fewer adults, MCL 400.703(7); MSA 16.610(53X7);
4) large group homes, which provide care to at least thirteen but not more than twenty adults, MCL 400.703(6); MSA 16.610(53X6); and
5) congregate facilities, which provide care to more than twenty adults, MCL 400.703(3); MSA 16.610(53X3).
Beginning on March 27, 1984, large group homes and congregate facilities would have been required to elect between accepting adults who were aged and adults who were mentally ill, developmentally disabled or physically handicapped. See 1979 PA 218, § 3(3), (6), codified at MCL 400.703(3), (6); MSA 16.610(53X3), (6). However, 1984 PA 40, effective March 26, 1984, dropped this requirement, as well as other provisions relating to the licensing of homes for the aged as afc facilities.
As of the date of this opinion, the Legislature has not amended the references to 1972 PA 287 contained in the three aforementioned zoning acts to reflect the passage of the 1979 afcfla.
Ill
In Livonia v DSS, plaintiffs city and homeowners assert:
1) The repeal of the 1972 afcfla by the 1979 afcfla, coupled with the Legislature’s failure to change the reference to 1972 PA 287 in § 3b of the City and Village Zoning Act (cvza), means that afc facilities are no longer exempt from local zoning ordinances.
2) Even if afc facilities which care for six or less adults need not comply with local zoning ordinances under § 3b of the cvza, the afc small group homes at issue here have a capacity of up to twelve adults and therefore must comply with applicable zoning ordinances.
3) Section 3b of the cvza impermissibly divests home rule cities of their constitutional and statutory authority to enact zoning ordinances.
4) Section 3b of the cvza violates the Title-Object Clause of Const 1963, art 4, § 24.
5) Section 33 of the 1979 afcfla violates the Title-Object Clause of Const 1963, art 4, § 24.
6) Section 16(1) of the 1979 afcfla and § 3b of the cvza are unconstitutional because they do not provide sufficient standards for the dss to determine what constitutes an "excessive concentration” of afc facilities in a community.
7) The 1979 afcfla and cvza violate the Due Process Clause because they provide inadequate notice and opportunity for a hearing prior to licensure and deprive parties of a fair and impartial decisionmaker.
8) The dss failed to comply with the notice requirements of § 32 of the 1979 afcfla and § 3b of the cvza.
9) Additional statutory and ordinance violations preclude the licensure of the houses as afc small group homes.
10) Under the 1979 afcfla, mentally ill adults cannot be placed in afc small group homes.
11) The operation of an afc small group home in these houses would violate building and use restrictions contained in the owners’ deeds.
12) Defendants’ motions for summary judgment should have been denied under GCR 1963, 117.2(3).
In Greentrees Civic Ass’n v Pignatiello, plaintiffs city and homeowners present three issues which correspond to Issues 1, 5, and 10 above.
IV
Applicability of § 3b of the cvza (Issues 1 and 2)
Section 3b of the cvza presently provides:
(1) As used in this section, "state licensed residential facility” means a structure constructed for residential purposes that is licensed by the state pursuant to Act No. 287 of the Public Acts of 1972, as amended, being sections 331.681 to 331.694 of the Michigan Compiled Laws, or Act No. 116 of the Public Acts of 1973, as amended, being sections 722.111 to 722.128 of the Michigan Compiled Laws, which provides resident services for 6 or less persons under 24-hour supervision or care for persons in need of that supervision or care.
(2) In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone. [MCL 125.583b; MSA 5.2933(2). Emphasis supplied.]
Plaintiffs argue that since 1972 PA 287 was repealed by § 35 of the 1979 afcfla, MCL 400.735; MSA 16.610(85), and §3b(l) of the cvza has not been amended to include a reference to 1979 PA 218, the afc small group homes at issue here cannot be considered a residential use of property under § 3b(2) of the cvza. Plaintiffs believe that this legislative inaction evidences an intent that all new afc facilities must now conform to local zoning ordinances. In the instant case, the respective Livonia and Southfield zoning ordinances would allegedly prohibit defendants from establishing afc small group homes for six or less adults in residential neighborhoods.
The goal of statutory construction is to ascertain and give effect to the intent of the Legislature. If the language of a statute is clear and unambiguous, the intent must be determined accordingly and no judicial interpretation is warranted. Dussia v Monroe Co Employees Retirement System, 386 Mich 244, 248; 191 NW2d 307 (1971); Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). Viewed in isolation, § 3b(l) does limit the definition of "state licensed residential facility” to those facilities licensed under 1972 PA 287 or 1973 PA 116. However, such a limited view is not appropriate here. Section 3b of the cvza and the 1972 afcfla both related to the regulation of afc facilities caring for six or less adults and have always been read in pari materia. Although the 1979 afcfla contains significant revisions, it is still concerned with the regulation of afc facilities for six or less adults. Thus, § 3b(l) should be read in connection with and interpreted in light of the 1979 afcfla, even though they were enacted at different times. A strict construction of § 3b(l) cannot be followed if that construction would defeat an important purpose of the 1979 afcfla. See County Rd Ass’n of Michigan v Bd of State Canvassers, 407 Mich 101, 109; 282 NW2d 774 (1979); Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558, 560; 132 NW2d 660 (1965), cert den 382 US 107 (1965).
An examination of the 1979 afcfla and its legislative history reveals no legislative intent to subject afc facilities caring for six or less adults to local zoning restrictions. In response to an argument that family homes and small group homes for six or less adults should not be treated differently under the 1979 afcfla, the House Legislative Analysis of HB 4104 noted:
The differences between a foster care home occupied by the licensee . . . and a nonprofit home occupied by a resident manager are significant enough to warrant placing them in separate categories. . . . [However, bjeing classified as a small group home will not be burdensome to nonprofit homes with six or fewer clients. . . . [A]ZZ adult foster care homes with six or fewer adults are [presently] protected against zoning restrictions, regardless of whether they are private residences or nonprofit adult foster care facilities; there is no suggestion that that will change with a change in the categories of homes. [Emphasis added.]
Furthermore, § 16(2) of the 1979 afcfla, MCL 400.716(2); MSA 16.610(66)(2), states that a temporary license to operate an afc facility for more than six adults shall not be granted if the proposed facility has not obtained zoning approval or a special or conditional use permit if required by local ordinance. By negative implication, facilities for six or less adults need not obtain such approval. In addition, § 16(3) specifically incorporates by reference § 3b of the cvza, as well as the other pertinent sections of the County and Township Rural Zoning Acts:
The department shall not issue a temporary license to an adult foster care facility which does not comply with section 16a of Act No. 183 of the Public Acts of 1943, as amended, being section 125.216a of the Michigan Compiled Laws, Section 16a of Act No. 184 of the Public Acts of 1943, as amended, being section 125.286a of the Michigan Compiled Laws, and section 3b of Act No. 207 of the Public Acts of 1921, as amended, being section 125.583b of the Michigan Compiled Laws. [MCL 400.716(3); MSA 16.610(66)(3). Emphasis added.] ■
Finally, we note that MCL 8.3u; MSA 2.212(21) allows us to update the reference to the afcfla:
The provisions of any law or statute which is reenacted, amended or revised, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws and not as new enactments. If any provision of a law is repealed and in substance re-enacted, a reference in any other law to the repealed provision shall be deemed a reference to the re-enacted provision.
The reference in § 3b(l) is to the entire 1972 afcfla. Although there are significant revisions in the 1979 afcfla, it was intended to cover the same subject matter as the prior act and retains many of the prior provisions and departmental rules promulgated thereunder. We agree with Justice Riley’s observations that the reference to 1972 PA 287 "was only necessary for the informational purpose of indicating under what statute such facilities were then state licensed” and that the failure to change the reference must be viewed as a "legislative oversight.” Livonia II, 123 Mich App 7-8. If plaintiffs’ literal interpretation were adopted, the placement of disabled persons into the community could be significantly impaired, a result not intended by the Legislature.
Plaintiffs further contend that even if § 3b of the cvza permits afc facilities for six or less adults to operate in residential areas regardless of zoning restrictions, it is inapplicable to afc small group homes. They reason that at the time § 3b was enacted, there was no "small group home” category — only family homes were authorized to care for six or less adults. Although the afc small group homes at issue here are licensed to care for no more than six adults, plaintiffs note that such homes are statutorily authorized by definition to receive up to twelve adults.
Regardless of the circumstances existing at the time §3b was enacted, the plain language of § 3b(2) and the 1979 afcfla indicate no legislative intention to limit the applicability of § 3b(2) to afc family homes. We agree with Justice Riley’s reasoning on this point:
Section 3b of 1921 PA 207 as amended requires that a state licensed residential care facility "providing supervision or care, or both, to 6 or less persons” be considered a residential use by local governments. Plaintiffs’ argument overlooks the fact that this statute does not provide that facilities must be 'licensed” for the care of six or fewer to be considered residential uses; rather, the criterion is whether a facility is actually providing care to six or fewer persons. The exemption is obviously concerned with the number of residents actually living in the facility, not the number of potential residents. See Brandon Twp [v North-Oakland Residential Services, Inc, 110 Mich App 300, 309; 312 NW2d 238 (1981), lv den 412 Mich 900 (1982)]. Moreover, the applicant in the case at bar only sought a license for a facility to care for six or fewer persons and, therefore, the small group home license issued by defendant department was restricted to six or fewer persons. Our conclusion in this regard is supported by the statutory provisions under the new Adult Foster Care Facility Licensing Act. MCL 400.713(5); MSA 16.610(63X5) requires a license for an adult foster care facility to state the maximum number of persons to be received for foster care at one time. Any increase beyond six in the number of persons to be received for foster care at one time in a small group home requires application for a temporary license. MCL 400.719(3); MSA 16.610(69X3). A proposed adult foster care facility for more than six adults must obtain zoning approval or obtain a special or conditional use permit if required by a local ordinance before a temporary license can be granted. MCL 400.716(2); MSA 16.610(66)(2). Thus, if a structure has the capacity for more than six residents, it may not expand beyond six without conforming to local zoning ordinances. Therefore, limiting the exemption to family homes is not necessary to insure that facilities with more than six residents will comply with zoning ordinances. [Livonia, II, 123 Mich App 9-10. Emphasis added.]
We also note that the previously quoted portion of the House Legislative Analysis of HB 4104 also supports the conclusion that afc family homes and small group homes for six or less adults are to be treated identically vis-á-vis zoning restrictions.
Section 3b’s Limitation on a City’s Power to Zone (Issue 3)
Plaintiffs argue that a municipality’s power to enact zoning ordinances is derived from Const 1963, art 7, § 22 and the Home Rule Cities Act, MCL 117.1 et seq.; MSA 5.2071 et seq. Pursuant to that power, the City of Livonia enacted zoning ordinances which would prevent afc small group homes from operating in residential areas without prior approval from the city. Section 3b of the cvza conflicts with these ordinances since it requires that state-licensed residential facilities for six or less persons be treated as a permitted use in all residential zones. Plaintiffs conclude that this conflict impermissibly "divests” or limits a city’s constitutional and statutory right to zone.
Plaintiffs concede that Clements v McCabe, 210 Mich 207; 177 NW 722 (1920), squarely held that a city’s power to enact zoning ordinances is not derived from the state constitution or the Home Rule Cities Act. They note, however, that Clements was decided prior to Village of Euclid v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926). Plaintiffs believe that Euclid impliedly overruled Clements and rendered "nugatory, though not invalid,” the cvza.
In Euclid, an aggrieved property owner maintained that the village’s zoning scheme was unreasonable and confiscatory. The United States Supreme Court upheld the zoning plan as a reasonable exercise of the municipality’s police power. However, the Supreme Court did not have to address where or how the village had obtained its zoning power; the focus was on the reasonableness of the exercise thereof.
In contrast, Clements addressed the source of a city’s power to zone. This Court noted that the "police power” is an inherent attribute of the state which belongs to subordinate governmental divisions only when and as conferred by the state through the constitution or statute. Incorporation invests a city with limited police powers, but the power to zone is not one of them. After examining the 1908 Constitution and the then-existing Home Rule Cities Act, 1909 PA 279, this Court concluded that they contained no express or implied mention of the power to zone. 210 Mich 215-218. Since Clements, this Court has repeatedly held that, in the absence of state enabling legislation, a political subdivision has no inherent power to zone. See, e.g., Delta Charter Twp v Dinolfo, 419 Mich 253, 260, n 2; 351 NW2d 831 (1984); Detroit Osteopathic Hospital v City of Southfield, 377 Mich 128, 132; 139 NW2d 728 (1966); Krajenke Buick Sales v Hamtramck City Engineer, 322 Mich 250, 254-255; 33 NW2d 781 (1948). In response to Clements, the Legislature enacted the cvza, 1921 PA 207.
Plaintiffs also contend that Clements is no longer viable because it was based upon an interpretation of the 1908 Constitution. Although Const 1963, art 7, § 22 is similar to Const 1908, art 8, § 21, plaintiffs note that the former provision contains a specific reference to "property” as a matter upon which ordinances can be enacted. Neverthe less, the Convention Comments to Const 1963, art 7, § 22 clearly indicate that the new language was intended to give home rule cities full power over their own property, rather than private property within their boundaries. There is no evidence that any of the homes in these cases is owned by the cities.
We note that after Clements was decided, § 4i was added to the Home Rule Cities Act. See 1929 PA 126, MCL 117.4Í; MSA 5.2082. Subsection (3) specifically allows a city to provide in its charter for the establishment of districts or zones within which the use of land and structures may be regulated by ordinance. We do not find this statute to be in conflict with § 3b of the cvza, since it merely authorizes a city to adopt charter provisions and ordinances related to zoning. Moreover, local ordinances must give way to conflicting constitutional and statutory provisions. See Const 1963, art 7, § 22; MCL 117.2, 117.36; MSA 5.2072, 5.2116; Dearden v Detroit, 403 Mich 257, 264; 269 NW2d 139 (1978).
We recognize that prior to 1976, the cvza permitted cities to enact reasonable zoning ordinances restricting the placement of afc facilities in residential areas. Once a power has been granted to a political subdivision, it should not be artificially limited. Delta Charter Twp, supra, 419 Mich 260, n 2; Const 1963, art 7, § 34. This has not occurred here. Section 3b was enacted "to implement the policy of this state that persons in need of commu nity residential care shall not be excluded by zoning from the benefits of normal residential surroundings . . . MCL 125.583b(2); MSA 5.2933(2)(2). This policy furthers the goals of Const 1963, art 8, § 8:
Institutions, programs and services for the care, treatment, education, or rehabilitation of those inhabitants who are physically, mentally, or otherwise seriously handicapped shall always be fostered and supported.
As the Convention Comments note, this constitutional provision was revised because the prior language was "not only too restrictive in scope, but in certain cases ha[d become] outmoded by recent developments in the field of physical and mental rehabilitation. The words 'programs and services’ [were] added as broader concepts not necessarily confined to institutional treatment.”
Title-Object Clause Challenges to § 3b of the cvza and § 33 of the 1979 afcfla (.Issues 4 and 5)
Const 1963, art 4, § 24 provides in pertinent part:
No law shall embrace more than one object, which shall be expressed in its title.
This constitutional provision requires that 1) a law shall not embrace more than one object, and 2) the object of a law must be expressed in its title. Advisory Opinion re Constitutionality of 1975 PA 227, 396 Mich 123, 128; 240 NW2d 193 (1976).
Plaintiffs maintain that § 3b of the cvza and §33 of the 1979 afcfla violate the Title-Object Clause of Const 1963, art 4, § 24. As to the former statute, plaintiffs concede that the title of the cvza accurately reflects the purpose of § 3b, i.e., "to designate the use of certain state licensed residential facilities . . . Thus, the second constitutional requirement has been satisfied. Plaintiffs argue, however, that the addition of § 3b by 1976 PA 396 impermissibly created a second object within the cvza. They reason that prior to the addition of § 3b, the sole object of the cvza was to grant to cities and villages the power to enact zoning ordinances. In contrast, § 3b limits that grant of power by requiring cities and villages to treat state-licensed residential facilities as permissible residential uses of property.
The Court of Appeals in Greentrees succinctly summarized the applicable rules of law:
The purpose of the ["one object”] constitutional limitation is to insure that both the legislators and the public have proper notice of legislative content and to prevent deceit and subterfuge. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). However, in effectuating these purposes, the "one object” provision is to be construed reasonably and not in so narrow or technical a manner as to frustrate the legislative intent. Kuhn v Dep’t of Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971). An act may contain all matters germane to its object and any provisions which "directly relate to, carry out and implement the principal object.” Advisory Opinion, supra, pp 465-467. [123 Mich App 771.]
The "object” of a law is its general purpose or aim. Local No 1644, AFSCME v Oakwood Hospital Corp, 367 Mich 79, 91; 116 NW2d 314 (1962). The object of the cvza is to enable cities and villages to regulate in a reasonable manner the use of land and structures within their boundaries. However, a city’s power to zone is not unfettered — its zoning regulations must further certain legislatively des ignated goals. Section 1 of the cvza, MCL 125.581; MSA 5.2931, states:
(1) The legislative body of a city or village may regulate and restrict the use of land and structures; ... to insure that uses of the land shall be situated in appropriate locations and relationships; ... to facilitate adequate and efficient provision for . . . education, recreation, and other public service and facility needs; and to promote public health, safety, and welfare, and for those purposes may divide a city or village into districts of the number, shape, and areas considered best suited to carry out this section. . . .
(2) The land development regulations and districts authorized by this act shall be made in accordance with a plan designed to promote and accomplish the objectives of this act.
Section 3b merely defines and furthers the explicit statutory goal of providing for the health, education, and welfare of persons in need of community residential care. We agree with the Court of Appeals conclusion that "[a] restriction on a municipality’s zoning power clearly belongs in the act granting that power.” Livonia % 119 Mich App 809.
Plaintiffs attack § 33 of the 1979 afcfla on two grounds. First, they believe that § 33 impermissibly creates a second object, i.e., to preempt local ordinances, regulations, and construction codes regulating institutions. This objective allegedly does not fall within the act’s stated object of licensing and regulating afc facilities. Second, plaintiffs believe that the purpose of § 33 is not expressed in the title of the afcfla.
The title to the 1979 afcfla states that it is
An act to provide for the licensing and regulation of adult foster care facilities; to provide for the establishment of standards of care for adult foster care facilities; to prescribe powers and duties of the department of social services and other departments, to prescribe penalties; and to repeal certain acts and parts of acts.
Section 33 provides:
This act supersedes all local regulations applicable specifically to adult foster care facilities. Local ordinances, regulations, or construction codes regulating institutions shall not be applied to adult foster care large group homes, adult foster care small group homes, or adult foster care family homes. This section shall not be construed to exempt adult foster care facilities from local construction codes which are applicable to private residences. [MCL 400.733; MSA 16.610(83).]
As previously noted, an act may contain any provision which directly relates to, carries out, and implements the principal object of the act. Legislation should not be invalidated merely because it contains more than one means of attaining its primary object. Local No 1644, supra. However, if the act contains "subjects diverse in their nature, and having no necessary connection,” it violates Const 1963, art 4, §24. Advisory Opinion, 396 Mich 131, quoting People ex rel Drake v Mahaney, 13 Mich 481, 494-495 (1865).
For the reasons stated by the intervenor-defendants, we conclude that the 1979 afcfla does not contain more than one object:
[Section] 33 of the act simply precludes a municipality from inappropriately applying the construction code provisions intended to govern institutions to the subject foster care residences. The provision is certainly germane to the general purpose of providing for the licensing and regulation of foster care homes. In the absence of the super-session clause, some municipalities may be inclined to treat adult foster care homes, which are intended to be "normalized residential settings,” as hospitals, and thus impose numerous requirements which are not imposed on private residential dwellings. The legislative intent is clear that the subject homes be regarded as homes; the expression of that intent so as to prohibit the practical exclusion of such homes from residential neighborhoods by municipalities acting under the guise of [local construction and fire ordinances] is logical and entirely relevant to the act and its title.
Plaintiffs suggest that the restrictions on the applicability of the State Construction Code Act of 1972, MCL 125.1501 et seq.; MSA 5.2949(1) et seq., should have been added to that act, rather than the afcfla. However, the Legislature is free either to enact an entirely new act or to amend any act to which the subject of the new legislation is germane, auxiliary, or incidental. This legislative choice will not be invalidated merely because an alternative location for the new legislation might appear to some to be more appropriate. People v Milton, 393 Mich 234, 241; 224 NW2d 266 (1974).
Contrary to plaintiffs’ assertions, § 33 will not jeopardize the lives, safety, and welfare of the residents of afc homes by eliminating all construction and fire safety requirements. Section 33 specifically allows municipalities to enforce local construction codes which are applicable to private residences. Moreover, §§ 10, 11, and 20 of the afcfla require the Department of Social Services to promulgate and enforce adequate fire prevention and safety rules governing afc facilities. See MCL 400.710, 400.711, 400.720; MSA 16.610(60), 16.610(61), 16.610(70).
As to plaintiffs’ contention that the title of the afcfla does not adequately reflect the provisions of § 33, it is not necessary that a title be an index of all of an act’s provisions. It is sufficient that "the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose . . . .” Milton, 393 Mich 246-247, quoting Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917). In light of our conclusion that § 33 is germane to the act’s stated purpose of licensing and regulating afc facilities, we find that the title is sufficiently comprehensive.
Adequacy of Standards for Determining What Constitutes an "Excessive Concentration of State-Licensed Residential Facilities” (Issue 6)
Section 16(1) of the afcfla, MCL 400.716(1); MSA 16.610(66)(1), states that the dss cannot issue a temporary license to a proposed afc facility without local approval if the issuance "would substantially contribute to an excessive concentration of community residential facilities within a city, village, or township.” Section 3b(4) of the cvza, MCL 125.583b(4); MSA 5.2933(2)(4), contains a similar provision. Plaintiffs note that neither the Legislature nor the dss has defined the term "excessive concentration” or provided any standards or guidelines to aid the dss in making its licensing determinations. Plaintiffs believe that the term is a subjective one and that its interpretation "can vary from case-to-case, from community-to-community, and from one interpreter of the phrase to another,” thus resulting in arbitrary and discriminatory treatment. They therefore conclude that the entire afcfla and § 3b of the cvza should be declared unconstitutional since the "excessive concentration” standard is not as reasonably precise as the legislation requires.
In determining whether legislative standards, or lack thereof, constitute an unconstitutional delegation of legislative authority to an administrative agency, the following observations and rules of law must be applied:
The rule with regard to delegation was simply and aptly stated in the leading case of Locke’s Appeal, 72 Pa 491, 498-499 (1873):
"The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.”
The difficulty, as this Court on a previous occasion suggested, "is in determining whether the limits [on the exercise of discretion conferred on the administrative official] are sufficiently defined to avoid delegation of legislative powers.” Argo Oil Corp v Atwood, 274 Mich 47, 52; 264 NW 285 (1935).
In making this determination whether the statute contains sufficient limits or standards we must be mindful of the fact that such standards must be sufficiently broad to permit efficient administration in order to properly carry out the policy of the Legislature but not so broad as to leave the people unprotected from uncontrolled, arbitrary power in the hands of administrative officials.
While no hard and fast rule exists for determining whether a given statute has provided sufficient standards, a number of guiding principles have evolved in Michigan jurisprudence to assist in making a determination in this case.
First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. . . .
Second, the standard should be "as reasonably precise as the subject matter requires or permits.”
The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. . . .
Third, if possible the statute must be construed in such a way as to "render it valid, not invalid,” as conferring "administrative, not legislative” power and as vesting "discretionary, not arbitrary, authority.” [Dep’t of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976).]
Looking at the afcfla, § 16(1) requires that the determination of excessive concentration be made with reference to the particular city, village, or township in which the proposed afc facility is to be located. In other words, the dss cannot look to the number of facilities or residents located in another municipality. Furthermore, § 16(3) states that a temporary license cannot be issued to an afc facility which does not comply with § 3b of the cvza. Section 3b(4) provides in pertinent part:
A state licensing agency shall not license a proposed residential facility when another state licensed residential facility exists within the 1,500 foot radius, unless permitted by local zoning ordinances, of the proposed location or when the issuance of the license would substantially contribute to an excessive concentration of state licensed residential facilities within the city or village. In a city with a population of 1,000,000 or more a state licensing agency shall not license a proposed residential facility when another state licensed residential facility exists within a 3,000 foot radius of the proposed location.
Thus, the dss must also consider the physical proximity of the proposed facility to other residential facilities as one factor in deciding whether to issue a license. Finally, § 3b(2) provides that persons in need of community residential care are entitled to "the benefits of normal residential surroundings . . . .” The dss therefore must consider the overall residential character of the surrounding neighborhood as it exists and how that character will be changed, if at all, by the addition of an afc facility. Such an inquiry also protects resident homeowners from the creation of foster care home "ghettos” which would destroy the residential character of the neighborhood.
As to the second and third Seaman tests, we adopt Justice Riley’s analysis and conclusion that the standards enunciated in the afcfla and § 3b of the cvza are sufficiently precise:
[I]t is clear that the licensing and regulation of adult foster care residential facilities is a subject that requires some degree of flexibility. The Legislature has established, by statute, a specific maximum density for adult foster care facilities. The "excessive concentration” criteria is only applicable to situations where the concentration of homes is allegedly excessive even though it satisfies the statutory maximum density. Any attempt to specifically set forth further criteria for determining whether excessive concentration has occurred would be impractical as the level of permissible concentration may well vary according to the constantly changing demographic characteristics of a particular community. Such a determination inherently requires the exercise of some limited discretion. We hold that, under the present scenario, the defendant department is permitted to exercise such discretion while it is prohibited from acting arbitrarily and, therefore, we find that these statutes are valid as they confer administrative and not legislative power and as they vest discretionary and not arbitrary authority. Our conclusion in this regard is bolstered by the rule of statutory construction which requires this Court to afford a statute the presumption of constitutionality and to construe it as constitutional unless the contrary clearly appears. People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974). [Livonia II, 123 Mich App 16-17.]
We note that even where the Legislature has properly delegated authority to an administrative agency, the agency cannot act arbitrarily and must provide adequate procedural due process to the parties involved. Where legislative standards are by necessity somewhat general in nature, this Court must determine whether the parties had adequate notice, opportunity to be heard, and review of an adverse decision. Seaman, 396 Mich 313-314. See also Dukesherer Farms, Inc v Director of Dep’t of Agriculture (After Remand), 405 Mich 1, 30, n 8; 273 NW2d 877 (1979); Westervelt v Natural Resources Comm, 402 Mich 412, 447-449, 458-459; 263 NW2d 564 (1978) (opinions of Williams, J., and Ryan, J.). These due process considerations are the basis of plaintiffs’ next challenge.
Due Process Challenges (Issue 7)
Plaintiffs raise three arguments, the first two of which are interrelated. First, plaintiffs believe that the issuance of a license pursuant to § 23(3) of the afcfla, MCL 400.723(3); MSA 16.610(73)(3), prior to an administrative hearing violates the Due Process Clause. Second, plaintiff homeowners contend that the afcfla’s failure to provide them with adequate notice and any opportunity for a hearing prior to the licensure of an afc facility similarly deprives them of their property rights without dúe process of law. Finally, plaintiffs argue that the final decisionmaker in the adminis trative process — the Director of the dss — was not impartial because of his prior roles in these cases.
We begin our analysis with an overview of the afcfla’s procedures for licensing an afc facility. Before issuing a license, the dss must investigate the applicant and facility. MCL 400.713(3); MSA 16.610(63X3). If the dss decides that it will issue a license, it must notify the city of its plans at least forty-five days before the licensure. MCL 125.583b(4); MSA 5.2933(2X4), MCL 400.732(1); MSA 16.610(82)(1). The city in turn must notify all residents whose property lines are within a 1500-foot radius of the proposed facility. MCL 125.583b(4); MSA 5.2933(2)(4).
A city that wishes to contest the dss’ decision to issue a license may file a complaint with the dss. Within forty-five days, the dss must resolve the issues raised in the complaint. If the city disagrees with the response, it must submit a written objection to the dss within thirty days after receiving the response. The Director of the dss, or a designated representative, must then conduct a hearing. The dss may nevertheless issue the license pending resolution of the administrative proceedings. MCL 400.723; MSA 16.610(73). A person aggrieved by the decision of the Director of the dss must appeal to the circuit court within ten days after receipt of the decision. MCL 400.725; MSA 16.610(75).
Turning to plaintiffs’ arguments concerning the adequacy of notice and hearing, we initially conclude that the afcfla provides adequate notice to a city and nearby property owners prior to a proposed licensure. The remaining question is whether the city and owners here were entitled to a hearing before the licenses were issued. The short answer is that plaintiffs received a hearing during the injunctive action. The licensures of the Livonia homes did not occur until after the circuit court had decided plaintiffs’ case on the merits and dissolved the temporary restraining orders prohibiting the licensures.
The long answer is that plaintiffs were not entitled under the Fourteenth Amendment Due Process Clause to a hearing prior to the licensures. Except in emergency situations, the state cannot deprive a person of a protected liberty or property interest without affording the person notice and an opportunity for a hearing before the termination becomes effective. Bd of Regents of State Colleges v Roth, 408 US 564, 570, n 7; 92 S Ct 2701; 33 L Ed 2d 548 (1972); Bell v Burson, 402 US 535, 542; 91 S Ct 1586; 29 L Ed 2d 90 (1971). However, these procedural due process requirements apply only if there is to be a deprivation of interests which constitute "liberty” or "property.” Roth, 408 US 569.
We cannot find any liberty or property interest of which the city would have been deprived by the issuance of the licenses prior to the administrative hearing. Any limitation on the city’s power to regulate afc facilities for six or less adults was validly imposed by the Legislature through the cvza and afcfla (see Issues 3-5, above), not by the
DSS.
We recognize that plaintiff homeowners have a protected property interest in the value, use, and enjoyment of their property, as well as a contractual right to enforce the restrictive covenants in their deeds. Nevertheless, plaintiffs failed to suffi ciently allege any deprivation of these property rights. Contrary to plaintiffs’ repeated assertions, the issuance of a license does not rezone any property. The neighborhoods and lots on which the afc small group homes are situated are still zoned for single-family, residential use. Section 3b(2) of the cvza merely states that an afc facility for six or less adults is a residential use of property. As will be more fully explained in Issue 11, below, the operation of these homes does not constitute a multifamily or commercial use; nor does it violate any restrictive covenants. Finally, plaintiffs failed to allege sufficient facts concerning any diminution in the value, or interference with the use and enjoyment, of their property caused by the licensures.
As to plaintiffs’ final argument concerning the partiality of the Director of the dss, we initially . note that the right to a hearing before an unbiased and impartial decisionmaker is a basic requirement of due process. Withrow v Larkin, 421 US 35, 46; 95 S Ct 1456; 43 L Ed 2d 712 (1975); Crampton v Dep’t of State, 395 Mich 347, 350-351; 235 NW2d 352 (1975). Moreover, the Administra tive Procedures Act requires that administrative hearings be conducted in an impartial manner before an unbiased officer. MCL 24.279; MSA 3.560(179). Actual bias need not be shown. If the situation is one in which "experience teaches that the probability of actual bias on the part of a decisionmaker is too high to be constitutionally tolerable,” the decisionmaker must be disqualified. Withrow, 421 US 47; Crampton, 395 Mich 351.
Among the situations identified by the [With-row] Court as presenting that risk are where the judge or decisionmaker
(1) has a pecuniary interest in the outcome;
(2) "has been the target of personal abuse or criticism from the party before him”;
(3) is "enmeshed in [other] matters involving petitioner . . .”; or
(4) might have prejudged the case because of prior participation as an accuser, investigator, factfinder or initial decisionmaker. [Crampton, supra.]
The first situation is not applicable. As to the second, plaintiffs briefly assert that the Director of the dss "has been the target of substantial public criticism . . . .” If plaintiffs are merely referring to the fact that communities and citizens, including plaintiffs, have publicly disagreed with the dss’ decisions to allow afc facilities to operate in residential areas, we do not find that these comments rise to the level of "personal abuse or criticism.” Cf. Mayberry v Pennsylvania, 400 US 455; 91 S Ct 499; 27 L Ed 2d 532 (1971).
As to the third situation, plaintiffs incorrectly assert that the director and the dss were parties in the administrative proceedings. The adverse parties there were the city on one hand and the owners and operators of the afc small group homes on the other. The dss, through the director and the hearing officer, was the decisionmaker.
Nevertheless, the director and the nss were joined as defendants in the injunctive action which was initiated while the administrative proceedings were pending. However, that action had terminated in defendants’ favor several months before the administrative hearing was held and the final decision was rendered. Although an appeal of the injunctive action was pending at that time, under the particular facts of this case we conclude that the director was not so immediately and personally "enmeshed” in the appellate proceedings as to automatically preclude him from rendering an impartial administrative decision. Cf. Johnson v Mississippi, 403 US 212; 91 S Ct 1778; 29 L Ed 2d 423 (1971).
As to the last situation, the director did not personally conduct the initial investigation of the applicants and facilities; nor did he preside as the factfinder during the administrative hearing. However, he did review the city’s initial complaints and issued the final decision after reviewing the hearing officer’s findings. Nevertheless, mere familiarity with the facts of a case obtained during the performance of a statutory duty does not disqualify a decisionmaker. Nor is disqualification required because the decisionmaker has taken a public position on an issue, unless there is a specific showing of incapability of judging that particular case fairly. Hortonville Joint School Dist No 1 v Hortonville Ed Ass’n, 426 US 482, 493; 96 S Ct 2308; 49 L Ed 2d 1 (1976).
In Withrow, supra, the United States Supreme Court discussed the propriety of allowing a state examining board to investigate a doctor and later suspend him on the basis of charges uncovered by the initial investigation. In upholding this combination of investigatory and adjudicative roles against a procedural due process challenge, the Court made analogy to situations where a decision-maker is involved in both the initial and final adjudicative proceedings:
Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge’s presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence. Nor has it been thought that a judge is disqualified from presiding over injunction proceedings because he has initially assessed the facts in issuing or denying a temporary restraining order or a preliminary injunction. . . .
The initial . . . determination of probable cause and the ultimate adjudication have different bases and purposes. The fact that the same agency makes them in tandem and that they relate to the same issues does not result in a procedural due process violation. Clearly, if the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised. But in our view, that is not this case. [421 US 56, 58.]
Here, the director was not required to reevaluate his initial decision. Rather, his review was limited to the findings of fact and conclusions of law made by the hearing officer after an adversarial hearing. Although special facts and circumstances in a particular case may require disqualifi cation because of prior involvement, id., p 58, plaintiffs have not alleged such facts.
The dss’ Failure to Comply With Statutory Notice Provisions (Issue 8)
Section 32(1) of the afcfla, MCL 400.732(1); MSA 16.610(82)(1), requires the dss to notify the clerk of a city, village, or township as to where a proposed afc facility will be located at least forty-five days before a license is issued. Section 3b(4) of the cvza, MCL 125.583b(4); MSA 5.2933(2X4), similarly requires a state licensing agency to notify the council or designated agent of a city or village.
It is undisputed that the dss notified the Livonia Bureau of Inspection in January and February, 1981, concerning the licensure of the three Livonia afc small group homes. However, the bureau is not a designated agent of the city clerk or council for notification purposes. Nevertheless, city officials and concerned residents met on March 16, 1981, to discuss the proposed licensure. Moreover, the city attorney, on behalf of "the legislative body of the City of Livonia,” sent letters of complaint to the dss on March 19 and 20, 1981, and copies thereof to the council and city clerk. Plaintiffs filed the instant suits on April 1 and 2, 1981, and obtained temporary restraining orders preventing the proposed licensures. These orders were not dissolved until May 11, May 28, and July 20, 1981. Licensure in each case therefore occurred over forty-five days after the council and city clerk received actual, albeit indirect, knowledge of the dss’ plans._
Plaintiffs submit that the statutory notice requirements are mandatory and jurisdictional in nature. Therefore, they believe that the licenses should be rescinded because of the dss’ technical noncompliance. We disagree. Although mandatory notice provisions cannot be ignored, Krajenke Buick Sales, 322 Mich 255, substantial compliance is sufficient. Meredith v City of Melvindale, 381 Mich 572, 579-580; 165 NW2d 7 (1969). Plaintiffs have not alleged, nor does the record reveal, that they were prejudiced by the noncompliance. See Lisee v Secretary of State, 388 Mich 32, 45; 199 NW2d 188 (1972); Montiy v East Detroit Civil Service Bd, 54 Mich App 510, 515-516; 221 NW2d 248 (1974).
Additional Statutory and Ordinance Violations (Issue 9)
Plaintiffs allege four additional violations of law which allegedly would preclude licensure of the Livonia homes. First, they maintain that the dss has acted with "complete indifference to the views of the City of Livonia and its citizens” in processing defendants’ license applications, in violation of § 9(2) of the afcfla. That section provides in pertinent part:
The department [dss] shall cooperate with other state departments and agencies and local units of government in administering this act. [MCL 400.709(2); MSA 16.610(59)(2)J
The only allegation of noncooperation appears in ¶ 39(e) of plaintiffs’ complaints. That paragraph states that representatives of the dss or the dmh did not attend a March 16, 1981, meeting of city officials and concerned residents regarding the locations of the three afc homes. The Director of the dss responded that the dss was not aware of, or invited to attend this meeting. Nevertheless, representatives of the dss and the dmh did attend an April 2, 1981, meeting. The hearing officer found that the evidence presented did not establish that the dss had failed to cooperate with the city. Since this finding is supported by competent, material, and substantial evidence, MCL 24.306(l)(e); MSA 3.560(206)(l)(e), we agree that no violation of § 9(2) occurred.
Second, plaintiffs believe that the dss violated §13(4) of the afcfla, MCL 400.713(4); MSA 16.610(63X4), because it did not include the names of any lessors of the Livonia homes in the notices of application for licensure sent to the city. Section 13(4) requires an applicant to disclose to the dss the names of any lessors of the real estate on or in which the afc facility will be located. Section 12(3), MCL 400.712(3); MSA 16.610(62X3), states that the application for licensure and material submitted therewith shall be confidential. However, § 12(3) further provides that these materials shall be open to a party in a contested case involving the facility. Therefore, the names of any lessors were properly omitted from the notices of application sent to the city, but plaintiffs were entitled to this information under § 12(3) once they contested the proposed licensures.
Third, plaintiffs maintain that each of the Livonia homes are in violation of several building, plumbing, electrical, heating, and fire code regulations and ordinances. As noted in Issue 5, § 33 of the afcfla allows the city to enforce local construction codes which are applicable to private residences. All other local regulations and ordinances are superseded. The dss nevertheless has promulgated extensive fire and safety rules for afc small group homes providing care to six or less adults. See 1984 AACS, R 400.1601-400.1613. At the time the licenses were issued to the Livonia homes, 1979 AC, R 400.2113(1) allowed the dss to issue a temporary license to a new applicant if a preliminary investigation indicated that the applicant had the capacity to meet licensing requirements. Items of noncompliance could not constitute "an immediate clear and present threat to the health, safety or well-being of any resident.” These deficiencies nevertheless had to be corrected within a reasonable period of time. 1979 AC, R 400.2112(8). None of the violations mentioned by plaintiffs constituted an immediate clear and present danger to the residents, and defendant licens ees apparently had the capacity to remedy them. However, if any remaining violations exist which may be legitimately enforced, they should be remedied forthwith.
Finally, plaintiffs believe that the operation of the afc small group homes should have been permanently enjoined under § 7 of the cvza, MCL 125.587; MSA 5.2937. Section 7 states that uses which violate local zoning ordinances constitute nuisances per se which may be abated by an injunction. However, since afc small group homes for six or less adults constitute a residential use of property under § 3b(2) of the cvza, no local zoning ordinances have been violated.
Placement of Mentally Ill Persons in afc Small Group Homes (Issue 10)
Plaintiffs maintain that mentally ill adults cannot be placed in afc small group homes under the 1979 afcfla. The Court of Appeals in Livonia I and II correctly declined to address this issue, since the parties have stipulated that no mentally ill adults would be placed in any of the three Livonia homes. However, the issue is squarely presented in Greentrees, since there is evidence that the residents of the Southfield home are mentally ill as well as developmentally disabled. The dss maintains that it has consistently interpreted both the 1972 and 1979 afcfla to allow placement of mentally ill adults in all afc facilities.
The 1972 afcfla did not designate the categories of adults who could reside in afc facilities. It merely defined an afc facility as "an establishment which provides supervision, assistance, protection or personal care, in addition to room and board, to adults.” 1972 PA 287, § 2(b), former MCL 331.682(b); MSA 16.610(2)(b). The 1979 afcfla definition is significantly more detailed:
"Adult foster care facility” means a governmental or nongovernmental establishment having as its principal function the receiving of adults for foster care. It includes facilities and foster care family homes for adults who are aged, emotionally disturbed, developmental^ disabled, or physically handicapped who require supervision on an ongoing basis but who do not require continuous nursing care. Adult foster care facility does not include any of the following:
(d) A hospital for the mentally ill . . . operated by the department of mental health under Act No. 258 of the Public Acts of 1974, as amended, being sections 330.1001 to 330.2106 of the Michigan Compiled Laws. [MCL 400.703(4); MSA 16.610(53)(4). Emphasis added.]
An afc small group home is simply defined as "an adult foster care facility with the approved capacity to receive 12 or fewer adults . . . .” MCL 700.703(7); MSA 16.610(53X7) (emphasis added). Similarly, the definitions of afc camps and family homes do not specifically refer to the categories of adults who may reside therein. See MCL 400.703(2), (5); MSA 16.610(53X2), (5). In contrast, the original definitions of afc large group homes and congregate facilities did contain such references. After defining the capacity of each of these afc facilities, the following provision appeared:
Beginning 4 years after the effective date of this act, an adult foster care congregate facility [or large group home] which is licensed by the department to provide foster care in each respective category may receive only those adults in a category whose primary need for services is based upon only 1 of the following categories:
(a) Aged condition.
(b) Mental illness, developmental disability, or physical handicap, or a combination of mental illness, developmental disability, or physical handicap. [1979 PA 218, §3(3), (6), codified at MCL 400.703(3), (6); MSA 16.610(53)(3), (6). Emphasis added.]
Finally, the 1979 afcfla does not define the term "emotionally disturbed,” but it does define "mental illness”:
"Mental illness” means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. [MCL 400.705(4); MSA 16.610(55X4).]
This definition is identical to the definition of "mental illness” contained in § 400a of the Mental Health Code, MCL 330.1400a; MSA 14.800(400a).
Plaintiffs argue that the terms "emotionally disturbed” and "mentally ill” are mutually exclusive — the former term describes a person with psychological problems that do not rise to the level of a substantial impairment of thought or mood which significantly impairs certain aspects of a person’s life. The inclusion of the term "mental illness” in the definitions of afc large group homes and congregate facilities means that mentally ill adults may reside only in these larger facilities. Plaintiffs conclude that since an afc small group home is defined only as an "afc facility” and the general definition of "afc facility” refers only to emotionally disturbed adults, mentally ill adults cannot be placed in afc small group homes. (Similar logic would also preclude the placement of mentally ill adults in afc family homes and adult camps.)
The majority of the Greentrees Court rejected plaintiffs’ arguments for the reasons stated in Oxford Twp v Dep’t of Social Services, supra. We need not examine the validity of the Court’s reasoning since an examination of recent legislation and the Mental Health Code makes it clear that all afc facilities may provide foster care to mentally ill persons.
The provision requiring large group homes and congregate facilities to choose the type of adult to whom they would provide services reflected the Legislature’s original intent to place homes for the aged under the control of the dss and the licensing provisions of the 1979 afcfla by March 27, 1984 (the fourth anniversary of the enactment of the 1979 afcfla). See House Legislative Analysis of HB 4104. However, the Legislature subsequently decided against this change and struck from the afcfla all references to homes for the aged. See 1984 PA 40 and House Legislative Analysis of HB 5410. The aforequoted provision contained in § 3(3) and (6) was one of these deletions.
Thus, as presently written, the only reference to "emotionally disturbed” in the afcfla appears in the general definition of afc facility in § 3(4). The only reference to "mentally ill,” apart from the statutory definition in § 5(3), appears in the exclusion of hospitals for the mentally ill from the definition of afc facility in § 3(4)(d). There is now no statutory basis for concluding that mentally ill adults can be placed only in larger afc facilities. If mentally ill adults can be placed in one kind of afc facility, they can be placed in any size facility.
Although there is no statutory definition of "emotionally disturbed” for purposes of placing adults into afc facilities, the Legislature contemplated that afc facilities could be used as a "mainstreaming” mechanism for persons who have been hospitalized for their psychological problems. The Mental Health Code requires county mental health programs and state facilities to "develop an individualized pre-release plan for appropriate community placement and a prerelease plan for aftercare services appropriate for each individual” who has been hospitalized. MCL 330.1209a(l); MSA 14.800(209a)(l). MCL 330.1209b; MSA 14.800(209b) contains a specific reference to placement of individuals "in a supervised community living arrangement, such as a foster home, group care home, nursing home, or other facility . . . .” The House Legislative Analysis of HB 5256 (the bill which added the prerelease planning sections to the Mental Health Code), clearly shows the Legislature’s preference for community-based care of mentally ill persons:
The apparent problem:
With the emphasis now placed on transferring persons from state mental health institutions to community treatment programs, the need for better pre-release planning of aftercare services for persons in community placements has become apparent. Of critical importance in this process are the 55 county and multi-county community mental health programs in the state, whose job it is to provide mental health services to persons living in their areas. . . .
"Each local mental health authority will assure the delivery of.. . residential, and inpatient programs to all persons in its service area who are impaired by or at risk of developmental disability, emotional disturbance, or mental illness . . . .”
Arguments:
For:
The bill would ensure continuity of care for most persons released from state mental health institutions into the community and would facilitate the process of deinstitutionalization. The bill would enhance the long-term effectiveness of mental health treatment for these individuals by providing planning for appropriate community placement and aftercare services, and could thereby decrease the number of them who might otherwise be Institutionalized again in the future.
For
The knowledge that a plan for aftercare services existed for mental health services recipients living in the community, and that the local county program was responsible for regularly reviewing the appropriateness of such treatment, could eliminate some of the opposition to community mental health facilities and enhance the prospects for public acceptance of community-based mental health treatment. [Emphasis added.]
We note, however, that although mentally ill persons may be placed in afc facilities, not every mentally ill person is a proper candidate for such placement. Afc facilities are not designed to render "treatment” to persons with psychological problems. The principal function of an afc facility is providing foster care. "Foster care” is defined in § 4(5) of the afcfla as "the provision of supervision, personal care, and protection in addition to room and board . . . .” MCL 400.704(5); MSA 16.610(54)(5). "Supervision,” "personal care,” and "protection” are also specifically defined in the act:
"Supervision” means guidance of a resident in the activities of daily living, including all of the following:
(a) Reminding a resident to maintain his or her medication schedule, as directed by the resident’s physician.
(b) Reminding a resident of important activities to be carried out.
(c) Assisting a resident in keeping appointments.
(d) Being aware of a resident’s general whereabouts even though the resident may travel independently about the community. [MCL 400.707(5); MSA 16.610(57)(5).]
"Personal care” means personal assistance provided by the licensee or an agent or employee of the licensee to a resident who requires assistance with dressing, personal hygiene, grooming, maintenance of a medication schedule as directed and supervised by the resident’s physician, or the development of those personal and social skills required to live in the least restrictive environment. [MCL 400.706(1); MSA 16.610(56)(1).]
"Protection” means the continual responsibility of the licensee to take reasonable action to insure the health, safety, and well-being of a resident, including protection from physical harm, humiliation, intimidation, and social, moral, financial, and personal exploitation while on the premises, while under the supervision of the licensee or an agent or employee of the licensee, or when the resident’s assessment plan states that the resident needs continuous supervision. [MCL 400.706(4); MSA 16.610(56X4).]
Noticeably absent from the afcfla is any reference to "treatment.” "Treatment” is defined in the Mental Health Code as "care, diagnostic, and therapeutic. services including the administration of drugs, and any other service for the treatment of an individual.” MCL 330.1400(e); MSA 14.800(400)(e). A mentally ill individual who is adjudicated to be a "person requiring treatment” pursuant to the Mental Health Code can be involuntarily hospitalized. MCL 330.1468, 330.1476(2); MSA 14.800(468), 14.800(476X2). "Person requiring treatment” is defined as a person who, in addition to being mentally ill, may injure himself or others, or is unable to attend to his basic physical needs. MCL 330.1401; MSA 14.800(401). An individual can be voluntarily hospitalized if he is deemed to be clinically suitable for hospitalization. MCL 330.1411, 330.1415; MSA 14.800(411), 14.800(415). Neither type of person can be initially placed in an afc facility because of his treatment needs. The Legislature did not intend that placement in an afc facility could take the place of hospitalization. Nor were afc facilities designed to provide treatment to their residents.
Once an individual is no longer deemed a person requiring treatment or a person suitable for hospitalization, the individual may be a suitable candidate for placement in an afc facility. However, afc small group homes for six or less adults cannot "accept or keep a person whose behavior requires isolation or restraint and shall not admit a person whose present care requirements and service needs are incompatible with those of other residents in the group home.” 1984 AACS, R 400.2303(4).
Violations of Building and Use Restrictions in Homeowners’ Deeds (Issue 11)
Plaintiffs claim that restrictive covenants contained in the deeds of the homes operated by defendants Human Services and Aftercare, Inc., and R. Roberts Residential Services effectively prohibit the operation of afc small group homes in these houses. The pertinent covenants concerning the Human Services home are:
No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any Lot other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars.
No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon which may become an annoyance or nuisance to the neighborhood.
The relevant covenant concerning the Roberts home states:
No noxious or offensive trade nor any manufacturing shall be carried on upon any lot, nor any second hand merchandising or wrecking business be maintained upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.[ ]
Plaintiffs allege that a single family is not residing in either home and that the operation of an afc small group home is a commercial, albeit nonprofit, use of the property. They point to the hearing officer’s finding that traffic has increased in the neighborhood, that there are parking problems, and that the operation of the homes constitutes a commercial or business use.
We initially note that neither the afcfla nor the cvza purport to regulate private restrictive covenants. "Zoning laws determine property owners’ obligations to the community at large, but do not determine the rights and obligations of parties to a private contract. These are separate obligations, both of which may be enforceable.” Rofe v Robinson, 415 Mich 345, 351; 329 NW2d 704 (1982).
Restrictive covenants in deeds are strictly construed against parties seeking to enforce them. All doubts are resolved in favor of the free use of property. Boston-Edison Protective Ass’n v Paulist Fathers, Inc, 306 Mich 253, 258-259; 10 NW2d 847 (1943); Wood v Blancke, 304 Mich 283, 287; 8 NW2d 67 (1943). Nevertheless, restrictions which are clear on their face, reasonable in scope, and do not violate public policy will be upheld. Oosterhouse v Brummel, 343 Mich 283, 287; 72 NW2d 6 (1955); Grant v Craigie, 292 Mich 658, 661; 291 NW 44 (1940). Restrictions for residence purposes are particularly favored by public policy and are valuable property rights. Oosterhouse, supra; Wood, 304 Mich 288.
Only the covenants pertaining to the Human Services home specifically limit the type of structure that can be built (single family dwelling) and the purposes to which the structure can be put (residential). There is no dispute that the Human Services house is a single family dwelling. Nevertheless, restrictive covenants regulating the type of permissible structures that can be erected also contemplate that the use and occupancy of the property will be similarly restricted. Basset Building Co v Jehovah Evangelical Lutheran Church, 371 Mich 459, 463; 124 NW2d 236 (1963); Wood, 304 Mich 287. Thus, we must determine whether the six developmentally disabled adults, plus any resident caretakers, living in the Human Services home constitute a single family and whether the house is being used for residential purposes.
"Family” is not defined in the covenant. However, this Court has construed the term to include more than just a nuclear or extended family whose members are related by consanguinity, marriage, or adoption. As early as 1883, this Court stated:
Now this word "family,” contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shakers. [Carmichael v Northwestern Mutual Benefit Ass’n, 51 Mich 494, 496; 16 NW 871 (1883).][ ]
We have construed the term "family” in a restrictive covenant to include a household of five priests, Boston-Edison, supra, and have struck down a zoning ordinance which arbitrarily defined "family” to include only a traditional family unit plus one unrelated adult. Delta Charter Twp v Dinolfo, supra.
The adults who reside in the Human Services home function as a fixed housekeeping and social unit. For the reasons stated in Malcolm v Shamie, 95 Mich App 132, 136-137; 290 NW2d 101 (1980), we conclude that the home is being occupied by a single family and is being used for residential purposes:
Five mentally retarded women living with a foster parent in an environment therapeutically designed to emulate a more conventional family environment should also be considered a family, and such use of the property, an appropriate family residential use. The residents are more than a group of unrelated individuals sharing a common roof. They do not have natural families on which to rely .... The substitute family provided by the group home allows the residents to lead more normal and meaningful lives within the community than would be feasible were they institutionalized.
The facts in the case at bar do not connote a temporary living arrangement. . . . [T]he inhabitants of the foster care facility will live there on a permanent, year-round basis and will, other than a blood relationship, comprise all the elements of a family.
Numerous decisions from other states have similarly concluded that persons living together in residential group homes constitute a "single family” or that the operation of such homes constitutes a residential use of property. See, e.g., Concord Estates Homeowners Ass’n, Inc v Special Children’s Foundation, Inc, 459 So 2d 1242 (La App, 1984); Knudtson v Trainor, 216 Neb 653; 345 NW2d 4 (1984); Crane Neck Ass’n, Inc v NYC/Long Island Co Services Group, 92 AD2d 119; 460 NYS2d 69 (1983), aff’d 61 NY2d 154; 472 NYS2d 901; 460 NE2d 1336 (1984), cert den 469 US 804 (1984); Welsch v Goswick, 130 Cal App 3d 398; 181 Cal Rptr 703 (1982); Costley v Caromin House, Inc, 313 NW2d 21 (Minn, 1981); J T Hobby & Son, Inc v Family Homes of Wake Co, 302 NC 64; 274 SE2d 174 (1981); Crowley v Knapp, 94 Wis 2d 42; 288 NW2d 815 (1980); State ex rel Region II Child & Family Services, Inc v Eighth Judicial Dist Court, 187 Mont 126; 609 P2d 245 (1980); Berger v State, 71 NJ 206; 364 A2d 993 (1976).
We reject plaintiffs’ attempt to characterize the operation of an afc small group home as a business or commercial use of property. Since these homes are not allowed to provide continuous nursing care or psychiatric treatment, they are not institutional in nature. The fact that the adults may be required to pay for certain items and services, see MCL 400.727(2)(b); MSA 16.610(77)(2)(b), does not of itself transform the nature of the activities conducted in the home from residential to commercial. Concord Estates, 459 So 2d 1244; Costley, 313 NW2d 26; J T Hobby, 302 NC 72-73. The only fact plaintiffs point to is the increased traffic and parking problems. These concerns fall more within the covenant in each home’s deed prohibiting activities which constitute an annoyance or nuisance. However, the same problems could have arisen if a large traditional family with several cars and numerous visitors had moved into the homes. See Dinolfo, 419 Mich 273. The covenants contemplate more than just traffic problems. Cf. Wood, supra (breeding and raising racing pigeons in a garage).
We therefore find no violation of any restrictive covenants.
Propriety of Summary Judgment for Defendants (Issue 12)
In all three Livonia cases, defendants were granted summary judgment pursuant to GCR 1963, 117.2(3). Under this former court rule, a trial court could grant summary judgment to a moving party if there was no genuine issue of material fact and that party was entitled to judgment as a matter of law. This determination was made upon a review of all affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties and all reasonable inferences that could be drawn therefrom. GCR 1963, 117.3. Although courts are liberal in finding a genuine issue of material fact and will give the opposing party the benefit of any reasonable doubt, Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973), plaintiffs have failed to point out, and we cannot find, any material factual dispute. All of the issues presented by plaintiffs involved disputes of law which were correctly resolved in defendants’ favor.
V
The decision of the Court of Appeals in Livonia I is affirmed, except insofar as a remand for further proceedings was ordered.
The decision of the Court of Appeals in Livonia II is affirmed.
The decision of the Court of Appeals in Green-trees is affirmed.
Williams, C.J., and Levin, Ryan, Brickley, and Boyle, JJ., concurred with Cavanagh, J.
Riley, J., took no part in the decision of these cases.
The dmh is the state agency which contracts with public or private entities to provide care for persons with mental health problems. See MCL 330.1116(j), 330.1152; MSA 14.800(116)®, 14.800(152). Once the dmh has decided to establish an afc small group home, the home must be approved and licensed by the dss under the afcfla.
The dss was not joined as a defendant in this litigation.
This Court denied the city’s emergency delayed application for leave to appeal prior to decision by the Court of Appeals on February 28, 1984 (Docket No. 73246).
Mason & Menolascino, The right to treatment for mentally retarded citizens: An evolving legal & scientiñc interface, 10 Creighton LB 124, 127-138 (1976).
Zoning for community homes serving developmentally disabled persons, 2 Mental Disability L Rptr 794, 795 (May-June 1978).
Id., pp 795-796.
See State laws & programs serving elderly persons & disabled adults, 7 Mental Disability L Rptr 158 (March-April 1983). In addition, the American Bar Association’s Commission on Legal Problems of the Elderly and the Commission on the Mentally Disabled have drafted a model act for regulating “board and care” homes for the aged and disabled. See Beyer, Bulkley & Hopkins, A model act regulating board & care homes: Guidelines for states, 8 Mental Disability L Rptr 150 (March-April 1984).
In an effort to upgrade conditions in facilities providing foster care, the Social Security Act was amended by 90 Stat 2687; 42 USC 1382e, effective October 1, 1977, to require state certification of homes which serve a significant number of Supplemental Security Income (ssi) recipients. The only sanction for failure to comply, however, is a reduction of the recipient’s ssi benefits paid to the facility. See 42 USC 1382e(e).
The title of 1972 PA 287 stated that it was
"An act to provide for the licensing and regulation of adult foster care facilities providing alternate care services including room and board, supervision, assistance, protection and personal care to adults not requiring organized institutional medical or nursing care . . . .”
"Adult foster care facility” was defined as "an establishment which provides supervision, assistance, protection or personal care, in addition to room and board, to adults.” Homes for the aged, nursing homes, mental hospitals, child caring institutions, children’s camps, foster family homes, and foster family group homes were not considered to be afc facilities. 1972 PA 287, § 2, as amended by 1978 PA 435; codified at former MCL 331.682; MSA 16.610(2).
The administrative rules governing afc facilities were significantly revised in 1984. See 1984 AACS, R 400.1401 et seq.
However, an afc family home could not accept or keep any person whose behavior required isolation or restraint, or whose care requirements and program needs were incompatible with the other residents’ needs. 1979 AC, R 400.2203(3).
See 1976 PA 394, 395, and 396.
The City of Livonia admits that an afc facility for six or less which was properly licensed under the 1972 afcfla and § 3b of the cvza can continue operating in a residential area without conforming to local zoning ordinances, since it would qualify as a valid prior nonconforming use.
The neighborhoods in which the Livonia afc small group homes are located are zoned R-l-A. The Livonia zoning ordinances preclude the utilization of R-l-A property for any business or commercial use. The neighborhood in which the Southfield afc small group home is located is zoned R-2. Under the Southfield zoning ordinances, R-2 land can be used only for one-family dwellings occupied by a single family which cannot include more than five unrelated persons. No commercial or boarding house uses are permitted. Both cities believe that the operation of. an afc small group home constitutes a non-family commercial use of property.
Plaintiffs further argue that if §3b of the cvza was impliedly amended by the passage of the 1979 afcfla, Const 1963, art 4, § 25 has been violated. That constitutional provision states:
"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.”
We reject plaintiffs’ argument for the reasons stated in Dearborn v Dep’t of Social Services, 120 Mich App 125, 133-134; 327 NW2d 419 (1982), lv den 417 Mich 1078 (1983):
"It is undisputed that the Legislature did not reenact and republish MCL 125.583b; MSA 5.2933(2) following the passage of the Adult Foster Care Facility Licensing Act, 1979 PA 218; MCL 400.701 et seq.; MSA 16.610(51) et seq. Nevertheless, Const 1963, art 4, § 25 is not violated unless the statute amending the act which has not been reenacted or published dispenses with or changes any provision of the amended act. Midland Twp v State Boundary Comm, 401 Mich 641, 659; 259 NW2d 326 (1977). As noted above, we believe the Legislature intended, with the passage of the new adult foster care statute, that the zoning exemption in MCL 125.583b; MSA 5.2933(2) apply to facilities licensed under the new act. However, we are not convinced that in doing so the Legislature actually dispensed with or changed any provision of the statute. Although under the new foster care act the licensee of a facility need not be a member of the facility household, the threshold requirement of MCL 125.583b; MSA 5.2933(2) remains unchanged. To benefit from the zoning exemption the facilities must, in any case, provide 24-hour care for [six or less] residents. Thus, the enactment of 1979 PA 218 did not dispense with or change the statute provisions so as to violate Const 1963, art 4, §25.”
The Supreme Court noted that Euclid was a politically separate municipality "with powers of its own and authority to govern itself as it sees fit within the limits of the organic law of its creation and the State and Federal Constitutions.” 272 US 389. (Emphasis added.)
This Court has consistently followed the principles enunciated in Euclid. See, e.g., Detroit Edison Co v City of Wixom, 382 Mich 673, 686-687; 172 NW2d 382 (1969), and cases cited therein; Anderson v City of Holland, 344 Mich 706, 709; 74 NW2d 894 (1956).
Plaintiffs urge us to follow the reasoning of Garcia v Siffrin Residential Ass’n, 63 Ohio St 2d 259; 17 Ohio Op 3d 167; 407 NE2d 1369 (1980), cert den 450 US 911 (1981). The Ohio Supreme Court in that case invalidated a statute analogous to § 3b of the cvza which purportedly superseded a local zoning ordinance barring facilities for the mentally retarded from residential areas. We do not view Garcia as persuasive authority, since the relevant Ohio constitutional provisions and case law are sufficiently dissimilar to our own constitution and jurisprudence. The Garcia Court noted that § 3, art XVIII of the Ohio Constitution directly conferred the power to zone upon municipalities and therefore further enabling statutes were unnecessary. However, Euclid was not cited as authority for this proposition of law, but Pritz v Messer, 112 Ohio St 628; 149 NE 30 (1925), which was decided prior to Euclid was cited.
Const 1963, art 7, § 22 provides:
"Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter,'and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section.” (Emphasis added.)
Const 1908, art 8, § 21 provides:
"Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this state.” (Emphasis added.)
The 1963 Convention Comments state:
"The new language is a more positive statement of municipal powers, giving home rule cities and villages full power over their own property and government, subject to the constitution and law.”
The most recent administrative rules governing fire safety in afc small group homes for six or less adults appear in 1984 AACS, R 400.1601-400.1613.
The hearing must be conducted in accordance with Chapter 4 of the Administrative Procedures Act, MCL 24.271-24.287; MSA 3.560(171)-3.560(187).
In light of our conclusion in Issue 8, below, that the city received adequate notice, any failure to notify the homeowners lies with the city.
Plaintiff homeowners did not submit any evidence that the value of their property has or will decline, or that they have been unable to sell their property, because of their proximity to an afc small group home. Defendants and amici curiae note that some studies of residential areas with AFC-type facilities reveal no significant long-term change in property values.
Plaintiffs alleged increased traffic and parking problems near the afc small group homes, but did not allege that such problems had interfered with the value, use, or enjoyment of their property.
Plaintiff homeowners also argue that the afcfla (presumably § 23) violates the Fourteenth Amendment’s Equal Protection Clause because only the city is allowed to contest the proposed licensure of an afc facility and receive a hearing. This argument overlooks § 24 of the afcfla, MCL 400.724; MSA 16.610(74). This section allows an individual who believes that the afcfla or rules promulgated thereunder may have been violated to request an investigation, obtain an administrative hearing, and appeal an adverse decision to circuit court.
We reject plaintiffs’ argument that the director’s decision did not adequately state the reasons for rejecting the hearing officer’s recommendation that the licenses be rescinded without prejudice. The director sufficiently stated that the dss had "no legal obligation” (i.e., no statutory or regulatory duty) to withhold licensure pending cooperation between the dmh and local units of government.
The hearing officer nevertheless found that the dmh had not cooperated with the city, in accordance with its departmental guidelines and procedures. We note that MCL 330.1244(g); MSA 14.800(244)(g), added by 1980 PA 423, effective March 31, 1981, similarly requires the dmh to seek the advice and consultation of a city prior to planning and locating a "specialized residential service” in the community. However, this section became effective after the site-selection process was completed in each case and therefore is inapplicable. More importantly, plaintiffs did not name the dmh as a defendant and relied solely on the dss’ alleged violation of § 9(2) of the afcfla. We agree with the conclusion of the Director of the dss that nothing in the afcfla or rules promulgated thereunder requires the dss to withhold licensure until the dmh complies with its departmental procedures. This conclusion, however, does not mean that the city cannot initiate an action to compel the dss or the dmh to fulfill their statutory duty to cooperate.
The Court of Appeals in Livonia I, 119 Mich 811, concluded that the dss could be permanently enjoined from issuing licenses, including the instant licenses, if it had repeatedly failed to cooperate with other municipalities. Since past compliance was a question of fact and the evidence presented by the parties was insufficient to decide the question on review, the case was remanded for further proceedings.
Remand was an inappropriate disposition. Plaintiffs never alleged that the dss had previously failed to comply with § 9(2); nor did they seek to enjoin the dss from issuing any future licenses. Plaintiffs merely sought to enjoin the issuance of the three licenses at issue here on the basis of the dss’ alleged noncompliance with § 9(2) in these cases.
Under the present rules, the dss may grant an exemption from an administrative rule if there is clear and convincing evidence that the alternative complies with the intent of the rule. The dss may include conditions under which the exemption is granted. 1984 AACS, R 400.1613.
Homes for the aged were and are under the control of the Department of Public Health, pursuant to part 213 of the Public Health Code, MCL 333.21301 et seq.; MSA 14.15(21301) et seq.
1984 PA 186, which added Chapter 4A to the Mental Health Code, MCL 330.1498a-s; MSA 14.800(498a-s), does contain a definition of "emotional disturbance”:
" 'Emotional disturbance’ means mental illness as defined in section 400a, or a severe or persistent emotional condition characterized by seriously impaired personality development, individual adjustment, social adjustment, or emotional growth, which is demonstrated in behavior symptomatic of that impairment.” 1984 PA 186, § 498b(9), MCL 330.1498b(9); MSA 14.800(498b)(9). (Emphasis added.)
This definition seriously undercuts plaintiffs’ argument that the Legislature intended that the terms "emotionally disturbed” and "mentally ill” describe mutually exclusive states of mind. We do not base our decision on this statutory definition, however, because it appears in a chapter which addresses the procedures for civil admission and discharge of emotionally disturbed minors. Minors cannot be placed in afc facilities. See MCL 400.703(1); MSA 16.610(53X1).
HB 5256 was enacted as 1980 PA 409.
Plaintiffs do not raise this issue as to the Brant home, since it was litigated in a separate lawsuit which is not before us. The Southfield home is not governed by any restrictive covenants.
There is also a covenant applicable to both homes which forbids using a basement as a residence. Since there is no record evidence to support plaintiffs’ allegation that the basements in these homes will be used as residences, we will not address this argument.
Cf. § 1566.5 of the California Community Facilities Act, ás discussed in Welsch v Goswick, 130 Cal App 3d 398, 406-407; 181 Cal Rptr 703 (1982).
In McMillan v Iserman, 120 Mich App 785, 793-795; 327 NW2d 559 (1982), the restrictive covenant at issue specifically prohibited the use of lots for state-licensed group residential facilities. This author concluded that the covenant was unenforceable because it violated this state’s public policy of promoting quality programs and facilities for the mentally handicapped. Similarly, in Craig v Bossenbery, 134 Mich App 543, 553; 351 NW2d 596 (1984), the Court of Appeals, on the basis of McMillan, struck down on public policy grounds a covenant which defined "family” in such a way as to exclude residents of afc small group homes.
Nevertheless, where fraud, bad faith, or a violation of public policy is inherent in a particular situation, we have defined "family” narrowly. See McDonald v Kelly Coal Co, 335 Mich 325; 55 NW2d 851 (1952); Mutual Benefit Ass’n of Michigan v Hoyt, 46 Mich 473; 9 NW 497 (1881).
Contrary conclusions were reached in London v Handicapped Facilities Bd of St Charles Co, 637 SW2d 212 (Mo App, 1982), and Shaver v Hunter, 626 SW2d 574 (Tex App, 1981), cert den 459 US 1016 (1982), primarily because prior case law in those states had construed the term "family” to include only nuclear or extended family units. In Omega Corp of Chesterfield v Malloy, 228 Va 12; 319 SE2d 728 (1984), cert den 469 US 1192 (1985), the parties agreed that group homes for the mentally retarded constituted a residential use of property. The Virginia Supreme Court held that although the mentally retarded adults could be considered a single family, the presence of counselors and their constant supervision of the occupants destroyed the familial nature of the use.
Since our decision is based upon an interpretation of the covenants, rather than a finding that the afcfla or cvza conflicts with the covenants, we need not consider plaintiffs’ "impairment of contract” argument.
See n 29. | [
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T. Gillespie, J.
This is a case of first impression in this jurisdiction and arose from the following facts.
On January 18, 1983, in Oakland County Probate Court, Juvenile Division, Donald E. Chapel, Jr., a juvenile, pled guilty to breaking and entering an occupied dwelling. MCL 750.110; MSA 28.305. This was the result of a plea agreement whereby other charges against Chapel were dropped and the disposition of his case was to occur immediately after the acceptance of the plea. A jury trial had been formally set to hear this case but was unneeded after the plea.
After the formal taking of the plea on the record, Chapel moved for immediate disposition. The only evidence on the record was testimony by Officer DeClercq, one of the investigating officers.
DeClercq’s testimony was that he was involved in Chapel’s arrest, that Chapel had given a statement incriminating another person, and that Chapel was cooperative. DeClercq’s testimony was put on the record for purposes of evaluating the disposition of the case.
When DeClercq had testified, the court recessed and retired to chambers to speak with the juvenile court caseworker, prosecutor, Chapel’s counsel, Chapel’s parents, and a representative from the Oakland County Children’s Village about the disposition.
After the recess, the court was reconvened and Chapel was summarily made a temporary ward of the court and turned over to the Department of Social Services.
The issue raised on appeal is whether the probate court abused its discretion in disposing of the case in the above described manner. The answer depends upon the application of the Juvenile Court Rules of 1969 (JCR).
The cornerstone in American jurisprudence of due process rights for juveniles is in In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967). In Gault the Court held that under the 14th Amendment a juvenile’s right to counsel and notice were essential to a fair adjudication. The Court also analogized that the possible deprivation of liberty was comparable to a felony prosecution and that minimal due process standards apply. Those standards are reflected in the Juvenile Court Rules.
The Juvenile Court Rules are to be applied in juvenile proceedings in probate court. The JCR provide for a bifurcated proceeding. The first phase is adjudication and the second is disposition. These phases are analogous to the standard criminal trial and sentencing. The JCR were adopted to provide juveniles with basic rights of due process including the right to counsel and trial by jury. However, the right to a jury does not apply in the dispositional phase.
The rule for recording formal calendar proceedings is found in JCR 1969, 8.4 which provides:
".4 Recording. A record of proceedings at the hearings on the formal calendar shall be made and preserved by Stenographic recording or by mechanical or electronic recording as provided by law or Probate Court Rule.”
Once a case is on the formal calendar the full panoply of rights under the JCR vest. To get on the formal calendar a petition is filed to acquire formal jurisdiction. JCR 1969, 4.3(D). Once on the formal calendar, the rights to notice as per JCR 1969, 7.2(A)-(E) come into play. This includes notice of summons and hearings, right to jury, notice of charges, persons to be summoned, and additional processes. The procedure is comparable to standard criminal procedure in the adult courts.
Once formal calendar process has begun and hearings have been held, additional obligations of the court and prosecutor are mandated by the Juvenile Court Rules. Of particular relevance to the case at bar is JCR 1969, 8.2(E), which states that the court shall:
"Determine issues relative to the adjudicative and dispositional phases, respectively, upon statements and proofs properly and legally presented. Witnesses shall affirm or be sworn by the judge or other duly authorized officer of the court.” (Emphasis added.)
Further, in the disposition phase, only relevant and material evidence is to be considered by the court. JCR 1969, 8.3(B). The probate court proceedings in this case were processed on the formal calendar. A petition was filed, formal notices of all summons and hearings were filed, a jury demand had been made, the judge proceeded formally on the record with a recitation of Chapel’s rights in taking the plea and establishing a factual basis for such, and the judge did put the disposition on the record.
The judge ordered that Chapel be made a ward of the court and committed to the Department of Social Services.
The court’s actions through adjudication, i.e., taking of the plea, were procedurally correct. However, there are three areas of concern in the procedures of the court.
First, the only evidence formally on the record to determine what disposition was to be made on the case as required by JCR 1969, 8.2(E) was the plea of guilty and the officer’s statement that the boy cooperated. The basis for making the boy a ward of the court and committing him to the Department of Social Services is not revealed.
Second, there is no record of relevant and material evidence to support the disposition of this case. This is required by JCR 1969, 8.3(B).
Third, as the prosecutor admits, and Chapel complains, all testimony relevant and material to the disposition was given off the record in chambers. This is in clear contravention of the mandate concerning formal calendar proceedings under JCR 1969, 8.1-8.4. This Court cannot review a formal disposition without a formal record which shows the relevant and material statements and proofs properly and legally presented upon which the judge made his disposition decision.
The Supreme Court in October, 1983, decided People v Coles, 417 Mich 523; 339 NW2d 440 (1983). This case sets a standard for sentence review. In Coles, the Supreme Court set forth the history of appellate review and recognized that there has always existed a right of review, however, Coles expanded that right of review to require trial courts to articulate on the record the reasons for imposing the sentence given.
The case at bar preceded Coles. Further, Coles was directed primarily at circuit and recorder’s courts. However, nothing in Coles exempts any court where the power to sentence exists.
We believe that Coles applies to juvenile criminal matters. We further believe that limited appellate review of sentencing has always existed. A concomitant to the right of appellate review must be a record to review.
The proper course for the court in the dispositional phase would have been to swear the caseworker, the Oakland County Children’s Village representative, the parents, the police, and any other witnesses and take their testimony on the record. Then to allow counsel, also on the record, to argue for disposition. The judge then should articulate on the record the reasons for his disposition of the case.
Since this Court has no record which reflects the evidence and reasons for the disposition of this case, it is remanded for proceedings consistent with this opinion. | [
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Per Curiam.
After being arrested for driving while intoxicated, the defendant allegedly assaulted a police officer. He was charged under the statute that prohibits obstructing an officer’s efforts to keep the peace. The circuit court granted a motion to quash, evidently concluding that the statute only applies to obstructive behavior that precedes or accompanies an arrest. The Court of Appeals affirmed. We reverse, because the plain language of the statute covers the events that are said to have taken place in this case.
i
In the early morning hours of June 1, 1988, a uniformed Oakland County Sheriff’s deputy stopped the defendant’s pickup truck because the defendant was driving erratically. After the defendant failed field sobriety tests, and after a preliminary breath test indicated a blood-alcohol level of 0.237 percent, the deputy arrested the defendant. The defendant did not resist arrest. He was transported to the Walled Lake police station, where a second uniformed officer was waiting to administer a Breathalyzer test.
At the station, the defendant was verbally abusive. He also spat upon the officer who was attempting to administer the Breathalyzer test. As the defendant prepared to spit on the officer again, the officer raised a hand toward the defendant. At that point, the defendant kicked the officer twice in the groin area.
The defendant was charged with a violation of MCL 750.479; MSA 28.747, which is sometimes referred to as the resisting-arrest statute. The complaint and warrant (and later the information) alleged that the defendant obstructed the officer’s attempts to keep the peace.
ii
At the conclusion of the defendant’s preliminary examination, the assistant prosecutor moved that the defendant be bound over for trial, as charged. Defense counsel’s response included an argument that MCL 750.479; MSA 28.747 was inapplicable to these facts. Counsel said that the defendant had been overcharged, and that this case should instead be prosecuted as a simple assault and battery.
The district judge rejected the argument, and bound the defendant over on the original charge.
In circuit court, the defendant moved that the information be quashed. In his motion, he relied upon a case in which the Court of Appeals had described the elements of the crime in terms of events that take place at the time of an arrest. In answering the motion, the prosecutor relied upon a case in which the Court of Appeals described the offense more broadly.
The circuit court’s decision was that the information should be quashed, and that the case should be remanded to district court for trial on a charge of assault and battery. The circuit judge explained:
I think that if you take a look at the legislative intent in terms of the resisting a police officer in the performance of his duties, the purpose is to be able to maintain the peace, and I think that’s the maintaining the peace in the public. So that when we take a look at the broad scope and the definition of the obstruction, the resistance of a public officer in the performance of his duties, the reason they raised that from a misdemeanor to a high misdemeanor in essence was so that the public officer could not be interfered with in the public in terms of preserving the peace. That they would be able to continue their duties, that they would not be resisted in that and that they would not be preyed upon as in [People v John Weatherspoon, 6 Mich App 229; 148 NW2d 889 (1967)].
But here you have someone who is already arrested and is incarcerated and it’s a matter of being able to maintain control within the Jail setting. And I don’t think that that’s what that statute is for, and I will grant the motion of the Defendant and remand the matter to the District Court for trial on assault and battery.
After granting the prosecutor’s application for leave to appeal, the Court of Appeals affirmed the order of the circuit court. 179 Mich App 445; 446 NW2d 309 (1989).
In stating its analysis, the Court of Appeals acknowledged some merit to the prosecutor’s argument:
The stated purpose of § 479 seems to support the people’s application of the statute, the purpose being to punish an assault upon a public officer in the discharge of his duty by a penalty more severe than that imposed for assaults on private citizens, People v Tompkins, 121 Mich 431; 80 NW 126 (1899), United States v Feola, 420 US 671; 95 S Ct 1255; 43 L Ed 2d 541 (1975), and protect officers from physical violence and harm. People v Kretchmer, 404 Mich 59; 272 NW2d 558 (1978), People v Baker, 127 Mich App 297; 338 NW2d 391 (1983). Additionally, in Weatherspoon, supra, a panel of this Court found the broad statutory clause "maintain, preserve and keep the peace” to include all duties legally executed by a police officer. In so finding, the Court relied on People v Krum, 374 Mich 356, 361; 132 NW2d 69 (1965) [cert den 381 US 935 (1965)], wherein our Supreme Court recognized the statute’s tie to the common-law crime of obstructing an officer, and acknowledged the general rule: " 'Thé obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.’ (39 Am Jur, Obstructing Justice, § 8, p 506.)” [Id. at 448.]
However, the Court of Appeals then indicated that its research had "failed to uncover precedent wherein the statute in question has been applied to a postarrest in-custody defendant.” Id. at 448-449.
The Court of Appeals further noted that the Legislature has provided in MCL 750.506a; MSA 28.774(1) that a sentence for simple assault may be enhanced under the circumstances found in the present case. In reliance upon that statute, the Court of Appeals concluded that "the instant defendant should have been charged under MCL 750.506a; MSA 28.774(1),” and thus the Court of Appeals found "no abuse of discretion in the trial court’s dismissal of the resisting and obstructing charge.” Id. at 449.
The prosecutor has applied to this Court for leave to appeal.
hi
The Court of Appeals is correct that no previously reported decision is on point. However, it is clear that the events alleged in this case fall within the plain language of the statute.
Such an application of the statute accords with its purpose, which is to protect officers from physical harm. People v Kretchmer, supra at 64. Moreover, there is ample authority that an officer’s efforts to "keep the peace” include ordinary police functions that do not directly involve placing a person under arrest. People v Krum, supra at 362, People v John Weatherspoon, supra at 232.
The Court of Appeals acknowledged the general applicability of these principles. It nevertheless concluded that the circuit court was correct, largely in reliance upon the existence of a sentence- enhancement provision that permits the imposition of a consecutive sentence when an assault is committed by a person who is already under arrest. MCL 750.506a; MSA 28.774(1). The Court of Appeals said that because this defendant "should” have been charged under that sentence-enhancement provision, the trial court did not abuse its discretion.
We disagree. The Legislature’s enactment of MCL 750.506a; MSA 28.774(1) does not indicate any legislative intent to limit the prosecutor’s charging discretion. As we explained in People v Ford, 417 Mich 66; 331 NW2d 878 (1982), the enactment of a statutory provision governing a set of facts does not automatically preclude the prosecutor from proceeding under a different statutory provision that also encompasses the alleged facts. See also, generally, People v Petrella, 424 Mich 221, 261-263; 380 NW2d 11 (1985), and People v Johnson, 427 Mich 98, 113-114; 398 NW2d 219 (1986) (opinion of Boyle, J.).
In deciding this case, it is not necessary for us to consider further the nature and extent of a prosecutor’s charging discretion. As the prosecutor has observed in his argument to this Court, MCL 750.506a; MSA 28.774(1) is a sentence-enhancement measure, not a prohibition of particular conduct. We therefore believe it clear under Ford that the legislative enactment of MCL 750.506a; MSA 28.774(1) does not prevent the prosecutor from making the discretionary decision to prosecute this case under MCL 750.479; MSA 28.747.
In lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the circuit court, and we remand this case to the circuit court for trial on the information. MCR 7.302(F)(1).
Riley, C.J., and Brickley, Cavanagh, Boyle, and Griffin, JJ., concurred.
Archer, J. I concur in the result only.
To date, the only testimonial record is the transcript of the preliminary examination, at which two police officers testified. The defendant has yet to provide his account. For purposes of this opinion, we accept the testimony of the officers.
Any person who shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township treasurer, constable or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or who shall resist any officer in the execution of any ordinance, by law, or any rule, order or resolution made, issued, or passed by the common council of any city board of trustees, or common council or village council of any incorporated village, or township board of any township or who shall assault, beat or wound any sheriff, coroner, township treasurer, constable or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served, or attempted to serve or execute the same, or who shall so obstruct, resist, oppose, assault, beat or wound any of the above named officers, or any other person or persons authorized by law to maintain and preserve the peace, in their lawful acts, attempts and efforts to maintain, preserve and keep the peace, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than two years, or by a fine of not more than one thousand dollars. [MCL 750.479; MSA 28.747. Emphasis supplied.]
These documents allege that the defendant "did knowingly and wilfully obstruct, resist, oppose, assault, beat or wound [the officer], while [he] was engaged in lawful acts, attempts and efforts to maintain, preserve and keep the peace, to-wit: assisting in taking of breathalyzer . . . .”
MCL 750.81; MSA 28.276.
The elements of the crime of resisting arrest are: (1) the defendant must have resisted arrest; (2) the arrest must be lawful; (3) the person making the arrest must have been at the time an officer of the law; (4) at the time of the arrest, the defendant must have intended to have resisted such officer; (5) at the time of the arrest, the defendant must have known that the person he was resisting was an officer; and (6) at the time of the arrest, the defendant must have known that the officer was making an arrest. See CJI 13:1:02. [People v Julkowski, 124 Mich App 379, 383; 335 NW2d 47 (1983).]
In People v John Weatherspoon, 6 Mich App 229; 148 NW2d 889 (1967), a police officer was sitting in his patrol car doing some paperwork, when the defendant opened the door of the police car and assaulted the officer. The Court of Appeals then offered this analysis of the statute’s applicability:
The position of the defendant is that the legislature did not intend this statute to punish offenders who commit a simple assault on any police officer while on duty. More simply stated, the argument is that when the officer was assaulted, he was not engaged in preserving the peace.
In People v Krum (1965), 374 Mich 356 [132 NW2d 69], the Supreme Court upheld a conviction based on the above quoted statutory excerpt where the accused interfered with a State trooper’s duty to inspect automobiles as they arrived at a blockade set up as part of a search for prison escapees. From a factual analysis, [the] "acts, attempts and efforts” [of the officer in John Weatherspoon] seem comparable to those being executed by the State trooper in People v Krum, supra. But more important than this parallel, is that on page 361 of the Krum Case, supra, the Court recognized the relationship between the statute and the general rule which provides:
" 'The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.’ (39 Am Jur, Obstructing Justice, § 8, p 506.)” (Emphasis supplied [by the Court of Appeals].)
The emphasized language leads us to conclude that the broad statutory clause "maintain, preserve and keep the peace” includes all of the duties legally executed by a police officer. A police officer is expected to be, and should be, in a constant state of readiness to quell any disturbance. [The officer] had parked his automobile at the intersection to watch for [John Weatherspoon’s brother] who was wanted for assault. The mere fact that this officer was not in the act of making an arrest when he was assaulted does not necessarily mean that he was not preserving the peace. [John Weatherspoon, 6 Mich App 231-232.]
(1) If a person, lawfully imprisoned in a jail or other place of confinement established by law, for any crime or offense, or lawfully imprisoned in a jail or other place of confinement after being sentenced for a crime or offense and awaiting or in transit to or from a prison or other place of confinement, commits any offense defined in [MCL 750.81 through 750.86; MSA 28.276 through 28.281], the court may impose the appropriate penalties prescribed in [MCL 750.81 through 750.86; MSA 28.276 through 28.281] to run consecutively with any sentence which the person is already serving.
(2) If a person, lawfully detained in a jail or other place of confinement established by law, and awaiting arraignment, examination, trial or sentencing for any crime or offense, commits a subsequent offense defined in [MCL 750.81 through 750.86; MSA 28.276 through 28.281], if convicted of the crime or offense for which he was detained at the time he committed the subsequent offense, any sentences imposed for conviction of the prior offense and for conviction of the subsequent offense under [MCL 750.81 through 750.86; MSA 28.276 through 28.281] may run consecutively.
As noted above, the defendant has relied upon People v Julkowski, n 5 supra at 383, in which the Court of Appeals described the elements of the crime in terms that suggested that the offense can take place only in conjunction with a lawful arrest. For the Court of Appeals to have framed the elements in that fashion is quite understandable, in light of the facts of Julkowski, but those facts are quite unlike those of the present case. We observe that the Court of Appeals panel in Julkowski included a reference to CJI 13:1:02 which describes the elements in terms similar to those used by the Court of Appeals in Julkowski. But CJI 13:1:02 is only one of four alternatives to be employed in different factual scenarios. CJI 13:1:03 more closely corresponds to the facts of the present case, and we see no indication that the Court of Appeals meant in Julkowski that CJI 13:1:02 was the only correct account of the elements of this statutory offense.
An example of a clear legislative expression of its intent to limit prosecutorial charging discretion is found in 1988 PA 20, which established the offenses of first- and second-degree retail fraud. See MCL 750.356c(3), 750.356d(2); MSA 28.588(3X3), 28.588(4X2). | [
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AFTER REMAND
Riley, C.J.
These cases were consolidated for purposes of appeal to decide whether defendants are immune from liability on the basis of their status as governmental entities on the facts of these cases. We hold that defendants are immune for an intentional nuisance because intentional nuisance is not a recognized common-law exception to governmental immunity.
i
A. LI V FELDT
On May 5, 1983, defendant Chou Yu-Feng Wong was driving on Pontiac Trail in Ann Arbor. In the front passenger seat was plaintiff Chen Li. In the back seat was the owner of the car, defendant Chu-Fen Wong. Chou Yu-Feng Wong ran a red light at the corner of Pontiac Trail and Barton Drive and collided with another vehicle driven by defendant Becky Belknap. Plaintiff suffered injuries.
Plaintiff filed a complaint on March 11, 1986. Among the defendants were the City of Ann Arbor and two of its traffic engineers, Kenneth Feldt and John Robbins. Plaintiff alleged negligence on the part of the city and its engineers in the timing of the traffic signals.
The city moved for summary disposition, which was granted by the trial court because the statute of limitation had run with respect to the negligence claim. Plaintiff filed an amended complaint, asserting that the city intentionally created a nuisance in setting the cycle for the traffic light. The court found that the new complaint simply restated the negligence claim, and the complaint was dismissed.
Plaintiff appealed in the Court of Appeals, which affirmed in part and reversed in part the decision of the trial court, finding that plaintiff had stated a valid intentional-nuisance claim, and that intentional nuisance was an exception to governmental immunity. 162 Mich App 767; 413 NW2d 493 (1987) .
Defendants applied for leave to appeal in this Court. On May 31, 1988, this Court remanded the case to the Court of Appeals for reconsideration in light of the decision in Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988) . On remand, the Court of Appeals held that the intentional-nuisance exception to governmental immunity had not been abrogated by Hadfield. 170 Mich App 256; 428 NW2d 36 (1988).
B. GARCIA v CITY OF JACKSON
Defendant City of Jackson is the owner of the Holton Dam. One of the purposes of the dam is to control flooding on the Grand River. To accomplish this goal, there is an underground conduit or pipe which draws water from a retention pond above the dam, and diverts the river underneath downtown Jackson.
On June 15, 1981, a young boy drowned when he was swimming in the pond and was pulled into the pipe by the current. Thereafter, in response to citizen action, the city contracted with a company to conduct a safety-enhancement study of the dam. Also, the city posted three signs. Two stated, "No Swimming,” and one stated, "No Swimming by Order of City of Jackson/Undertow to River Conduit Entrance.”
On February 26, 1983, before further safety enhancements were undertaken, Javier Garcia and William Sisk were at the pond upstream from the dam. Garcia decided to go swimming, despite warnings from Sisk and despite the posted signs. After jumping into the water a second time, Garcia was drawn by the undertow into the pipe and drowned.
On June 23, 1983, Javier Garcia’s family and the personal representative of his estate filed suit against the City of Jackson. Plaintiffs’ first complaint alleged nuisance per se and nuisance in fact. Plaintiffs also asserted that defendant knew of the danger and should have taken more precautions after the first drowning. The trial court granted a motion for summary disposition in favor of defendant, but allowed plaintiffs to file an amended complaint. Plaintiffs’ amended complaint alleged only nuisance per se. After summary disposition for defendant again was granted, plaintiffs filed a second amended complaint, alleging only wilful and wanton misconduct. The court once again ordered summary disposition in favor of defendant because plaintiffs failed to allege ele ments of a claim in avoidance of governmental immunity.
The Court of Appeals reversed, holding that although nuisance was not expressly asserted in the complaint, plaintiffs had sufficiently pled intentional nuisance, a claim not barred by governmental immunity. 152 Mich App 254; 393 NW2d 599 (1986). The Court of Appeals certified a conflict, and this Court held this case in abeyance pending a decision in Hadfield, supra. Once Hadfield was decided, this Court remanded the instant case to the Court of Appeals for reconsideration in light of Hadñeld. After remand, the Court of Appeals found that intentional nuisance had been pled and that Hadñeld did not overrule the intentional-nuisance exception to governmental immunity.
On April 7, 1989, we granted leave to appeal in the instant case, consolidating it with Li to determine whether defendants are immune from liability on the basis of their status as governmental entities.
ii
The dispute in Li and Garcia centers on the limited issue of the scope of the nuisance exception to governmental immunity; specifically, whether it entails intentional nuisance. A majority of this Court in Hadñeld found that § 7 of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., mandates an historical approach to defining the proper scope of the nuisance exception. Section 7 of the governmental tort liability act states:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. [MCL 691.1407; MSA 3.996(107). Emphasis added.]
A majority in Hadñeld agreed that the second sentence of § 7 preserved judicially created exceptions to immunity which were formulated before July 1, 1965. Accordingly, any case-law exceptions devised after this date would not escape govern mental immunity. We adopt the historical approach endorsed by a majority of this Court in Hadñeld.
The plurality opinion in Hadñeld undertook to explore the extent of judicially created nuisance exceptions prior to July 1, 1965. A clearly recognized exception was the "intruding-nuisance” or "trespass-nuisance” exception. Hadfield, supra, p 169, defined trespass-nuisance as a "trespass or interference with the use or enjoyment of land caused by a physical intrusion that is set in motion by the government or its agents and resulting in personal or property damage.” Trespass-nuisance was the only common-law exception specifically acknowledged by the Hadñeld plurality.
After recognizing the trespass-nuisance cause of action, the plurality in Hadñeld applied the historical analysis test to intentional nuisance and rejected it as a common-law exception to governmental immunity._
The two cases which initially formulated an intentional-nuisance exception are Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Hwys, 403 Mich 149; 268 NW2d 525 (1978). In applying the historical analysis, we note that prior to July 1, 1965, there was no recognized intentional-nuisance claim which could escape governmental immunity. Since there was no recognized pre-1965 intentional-nuisance exception, there is no basis for finding such an exception at this time. Thus, assuming that the Court of Appeals was correct in both cases in finding that plaintiffs had pled intentional nuisance, the panels improperly found an exception to governmental immunity on the basis of intentional nuisance. We hold that the historical approach defining the scope of the nuisance exception to governmental immunity mandates a finding that intentional nuisance is not an exception to governmental immunity._
The Hadfield plurality left undecided whether nuisance per se and limited public nuisance claims are exceptions to governmental immunity. We remand these cases to the Court of Appeals to consider the existence of nuisance per se and public nuisance exceptions to immunity, and their applicability to these cases if, and to the extent that, they were properly raised before the Court of Appeals.
Accordingly, the decisions of the Court of Appeals in both Li and Garcia are reversed. We remand to the Court of Appeals for further consideration.
Brickley, Cavanagh, and Boyle, JJ., concurred with Riley, C. J.
Archer, J., concurred only in the result.
The claim was brought pursuant to the highway liability exception, MCL 691.1402; MSA 3.996(102), to the governmental tort liability act.
430 Mich 882 (1988).
As in Garcia v City of Jackson (On Remand), 174 Mich App 373; 435 NW2d 796 (1989), the Court of Appeals found that a three-justice plurality finding no intentional-nuisance exception was not enough to overrule prior precedent. The Court would not lend Justice Boyle’s concurring vote to the section of the plurality opinion overruling the intentional-nuisance exception.
430 Mich 877 (1988).
The Court of Appeals stated:
It is difficult to extract the conclusion that there is no intentional nuisance exception to governmental immunity since in Hadñeld, which is the last word on the matter, the majority of the justices did not vote to override prior precedent concerning the intentional nuisance exception to governmental immunity so as to establish any new binding precedent for future cases. There was a majority for the result only. [174 Mich App 376.]
432 Mich 891 (1989).
In Hadñeld, a majority of this Court found that the governmental tort liability act preserved common-law exceptions to immunity. Including the three-justice plurality which adopted the historical analysis, six participating justices agreed that the Legislature intended to codify common-law exceptions. Justice Boyle stated:
The basic premise of the lead opinion is that §7 of the governmental tort liability act requires a continuation of the nuisance exception as formulated prior to its enactment in 1964 and as amended by 1970 PA 155. I agree that the Legislature intended to codify the common law of governmental immunity .... [Hadfield, p 204. Emphasis added.]
Justice Levin, in a separate opinion, also agreed that at least the trespass-nuisance exception survived the enactment of the governmental tort liability act. Id., p 209.
In yet another opinion, Justice Archer stated:
I agree with the lead opinion that under the second sentence of § 7 the exceptions to governmental immunity which existed prior to the enactment of the statute are retained. [Id., p 214. Emphasis added.]
Thus, a majority of this Court has settled on an interpretation of the second sentence of § 7 as recently as March 29, 1988. In his concurrence/dissent, Justice Griffin reads § 7 not to include common-law exceptions to immunity. Justice Griffin urges an interpretation of § 7 which would undercut the studied effort manifested in the Hadñeld opinions.
Even if the legislative intent behind this sentence were not clear, it has been said:
Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. [Burnet v Coronado Oil & Gas Co, 285 US 393, 406; 52 S Ct 443; 76 L Ed 815 (1932) (Brandeis, J., dissenting), quoted in Abendschein v Farrell, 382 Mich 510, 517; 170 NW2d 137 (1969).]
With reference to the second sentence of § 7, Thomas v Dep’t of State Hwys, 398 Mich 1, 11; 247 NW2d 530 (1976), states in part, "[o]bviously this language must be construed as an 'affirmation’ of case-law precedent on the subject of the state’s immunity.”
Justice Ryan adopted this interpretation in his dissenting opinion in Rosario v City of Lansing, 403 Mich 124, 146; 268 NW2d 230 (1978):
P]n order to determine the scope of the now codified immunity, we must determine the scope of its antecedent "existing immunity.” Since the common-law or "existing immunity” doctrine included certain judicially created exceptions which defined its limits, the legislatively codified immunity is limited and defined by the same exceptions. One of these exceptions is here in issue: the doctrine of "nuisance.”
In the instant case, the concurrence/dissent suggests that the "legislative intent underlying the second sentence of § 7 could merely have been to 'affirm’ the state’s preexisting absolute [no governmental function limitation] sovereign immunity . . . .” Post, p 601. However, in Ross v Consumers Power (On Rehearing), 420 Mich 567, 606; 363 NW2d 641 (1984), this Court stated:
[A]t the time § 7 was enacted, the state was immune from tort liability when it was engaged in the exercise or discharge of a governmental function .... [See also id., p 602, n. 15.]
Further support for the view that the state did not have absolute immunity prior to the enactment of the statute can be found in Thomas v Dep’t of State Hwys, supra, p 11; Manion v State Hwy Comm’r, 303 Mich 1, 19; 5 NW2d 527 (1942); Daszkiewicz v Detroit Bd of Ed, 301 Mich 212, 220; 3 NW2d 71 (1942).
The concurrence/dissent also suggests that the Legislature intended to treat sovereign (state) and nonsovereign entities differently with respect to immunity. However, the stated purpose of the governmental tort liability act is to "make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function . . . .” Preamble to MCL 691.1401 et seq.; MSA 3.996(101) et seq. Also, a member of the special committee which drafted the act stated that the committee "sought to achieve legislation that would put all government on the same basis .... This statute puts all agencies of government on the same footing with regard to tort liability.” Abels, Report of committee on tort liability, 28 NIMLO Municipal LR 432, 464 (1965). Therefore, §7 should be read to give effect to the stated purpose of the act.
Furthermore, the nature of governmental immunity is such that there is no reason to treat the state and local entities differently. The reasoning behind governmental immunity was set forth in Nicholson v Detroit, 129 Mich 246, 258-259; 88 NW 695 (1902):
The true theory is that the township or city represents the State in causing these things to be done, and, like the State, it enjoys immunity from responsibility in case of injury to individuals . . . [because, in] imparting a portion of its powers, the State also imparts its own immunity.
Another reason to read § 7 as preserving common-law exceptions is set forth in Cooperrider, The court, the legislature, and governmental tort liability in Michigan, 72 Mich LR 187, 279-280 (1973). The trespass-nuisance claim was valid long before the creation of the governmental function defense. Mr. Cooperrider went on to state:
It reflects one of the strongest claims for relief that can be asserted .... There is nothing in their public expressions to indicate that those who drafted the statute had any such change in mind; indeed, one of them summed the statute up in these terms: "The net effect of Act 170, 1964, is to largely return to municipal corporations the position they enjoyed prior to the decision of the Williams [v Detroit, 364 Mich 231; 111 NW2d 1 (1961) (abrogating governmental immunity for municipalities)] case.” This is surely a situation where the legislature should be expected to express an intent to make an important change in the law in words incapable of being misunderstood, rather than relying upon implication. . . . [The governmental function defense] has never been applied by the Michigan court to protect any governmental agency against liability in a situation recognized to be within the nuisance-trespass category. [The first sentence], I submit, should be seen as a restoration of the governmental-function defense as it existed in the case law, alongside the nuisance-trespass head of liability.
Justice Brickley wrote the plurality opinion joined by Chief Justice Riley and Justice Cavanagh.
The Taking Clause of the constitution rests at the foundation of the trespass-nuisance exception. Justice Ryan wrote about the taking rationale in his dissent in Gerzeski v Dep’t of State Hwys, 403 Mich 149, 170; 268 NW2d 525 (1978), which is cited in Hadfield, supra, p 165:
In [intruding-nuisance] cases the potentially dangerous instrumentality or condition literally moves from government-owned land onto adjacent property. Consequently, the neighboring premises and its occupants are subject to either the creation of a risk foreign to the premises or direct and immediate injury. When this transpires the government effectively deprives an owner of the useful possession of that which he owns. This Court views such action as a public taking. Under this analysis the state is obliged to pay reasonable compensation for damages ensuing from such "taking” in accordance with the Constitution of the State of Michigan, Const 1963, art 10, § 2. [Citations omitted.]
Note that in its definition of trespass-nuisance, the Hadñeld Court did not restrict the source of the intrusion to government-owned land.
In Rosario, a nineteen-month-old child drowned after falling into an open sewer drain on city property. Justice Fitzgerald, joined by Chief Justice Kavanagh and Justice Levin, found a broad nuisance-in-fact exception to governmental immunity. A concurrence written by Justice Blair Moody, Jr., and joined by Justice Williams, found that only intentional nuisance in fact was an exception, not negligent nuisance in fact.
Justice Moody defined intentional nuisance as the "intent[] to bring about the conditions which are in fact found to be a nuisance.” Rosario, p 142.
However, there is confusion in the Court of Appeals concerning the elements of intentional nuisance. Most Court of Appeals panels find intentional nuisance when a defendant either acted for the purpose of causing harm or knew that harm was substantially certain to follow. See Hadfield, supra, p 172, n 14. Since neither interpretation of intentional nuisance was recognized prior to 1965, we find it unnecessary to resolve this conflict.
In Gerzeski, two young boys drowned after falling through the ice on an artificial pond owned by the Highway Department. While looking for the children, the father of one of the boys fell through the ice and drowned. The same three-justice plurality as in Rosario again held in favor of an expanded nuisance exception. In the concurrence, Justice Moody and Justice Williams would have limited the nuisance-in-fact exception to intentional nuisance. | [
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Per Curiam.
Plaintiff was injured when the bicycle she was riding was struck by defendant’s automobile. Plaintiff suffered cuts on both elbows and on her right knee. In addition, one of plaintiff’s front teeth was broken and two other teeth were cracked. Plaintiff was not treated in a hospital emergency room for her injuries, but she immediately went to see her dentist, who capped her broken tooth._
Plaintiff filed suit in Wayne County Circuit Court seeking damages for severe personal injuries and permanent disfigurement as well as for great mental anquish. Defendant in his answer pointed out that plaintiff’s right to recovery was limited by MCL 500.3135; MSA 24.13135.
Defendant deposed plaintiff and soon thereafter filed a motion for summary judgment under GCR 1963, 117.2(3), alleging that, as a matter of law, plaintiff had not suffered a serious impairment of body function, permanent serious disfigurement, or death, and that he was therefore entitled to judgment as a matter of law, there being no genuine issue as to any material fact. The trial court granted the motion and plaintiff appeals as of right, raising two issues.
I
Was the affidavit in support of defendant’s motion for summary judgment procedurally defective?
Plaintiff argues that the affidavit filed by defendant in support of his motion for summary judgment was insufficient because it was riot made on personal knowledge, as required by GCR 1963, 116.4,117.2(3).
Defendant states that it was not necessary to have a proper affidavit since defendant conceded for purposes of the motion that there was no genuine issue of material fact as to the nature and extent of plaintiff’s injuries and that defendant was relying on plaintiff’s answers to interrogatories and deposition testimony as well as exhibits.
We agree with the defendant for the reasons stated in Brooks v Reed, 93 Mich App 166; 286 NW2d 81 (1979), for it is very clear that both plaintiff and defendant were before the trial judge for the purpose of his deciding the second issue, which we consider now on appeal.
II
Did the trial court err in granting defendant’s motion for summary judgment after concluding that plaintiff did not meet the threshold of a serious impairment of body function as required by MCL 500.3135; MSA 24.13135?
In Cassidy v McGovern, 415 Mich 483, 488; 330 NW2d 22 (1982), the Court ruled:
"We hold that the question what injuries come within the class denominated as the 'serious impairment of body function’ is a question of statutory construction to be decided by the court. When there is no factual dispute regarding the extent of a plaintiffs injuries, or when any factual dispute does not straddle the line demarcating those injuries which constitute the serious impairment of body function, the court is to decide as a matter of law whether plaintiff has suffered a serious impairment of body function.”
Plaintiff’s deposition indicates that at no time immediately following the accident did she visit a hospital emergency room for treatment of her injuries, nor was she ever hospitalized. Plaintiff did not require any medical attention at the scene of the accident, and none of the cuts she received required sutures.
Plaintiff testified that there is no hobby or activity that she has difficulty doing because of the accident. She completed her high-school education on time, as well as her driver education program. In addition, plaintiff’s involvement in a co-op program that ultimately led to a post high-school job continued uninterrupted.
Plaintiff argues that she retains scars on her body as a result of the accident, causing her embarrassment and emotional damage. But in her deposition, she described the one scar on her knee as "faint”. Plaintiff admitted that none of the scars cause her any difficulty, and, furthermore, she has not gone to be examined and treated by a plastic surgeon for these scars.
Plaintiff also contends that the injuries sustained to her teeth, gums, and jaw constitute a serious impairment of body function because she sometimes experiences pain when she eats or moves her jaw. However, she testified that she is not taking any kind of medication for the pain in her jaw. We also note the Cassidy Court’s determination of the legislative intent to predicate recovery on objectively manifested injuries, not on pain and suffering. Cassidy, supra, p 505.
As for lower back pain and the sinus headaches plaintiff claims to suffer from, again, plaintiff testified that they were not a continuous problem and that they did not require anything more than infrequent treatment.
The opinion of plaintiff’s dentist as to whether she will need further treatment is very guarded. He more or less states that plaintiff may never require further treatment, but on the other hand she may.
It is undisputed that plaintiff’s injuries have proven to be irritating and troublesome. But they do not appear to have affected plaintiff in going about her normal daily life. At no time has plaintiff been incapacitated by the accident. The injuries have not really affected any important body function, as required by Cassidy, supra, for since the accident, plaintiff has gone on to complete her high-school education, find employment in her field and live a normal life. Clearly, the injuries have not interfered with her normal life style.
Support for this conclusion comes from a case this Court recently decided. In McDonald v Oberlin, 127 Mich App 73; 338 NW2d 725 (1983), the Court affirmed the trial court’s order granting summary judgment. The Court followed Cassidy, finding that no factual dispute regarding the plaintiffs injuries existed. Therefore, the trial court was free to decide as a matter of law if the plaintiffs injuries met the threshold of serious impairment of a body function. The Court then went on to find that the injuries the plaintiff claimed to have suffered had not interfered with her normal life style and that she had not been incapacitated by her discomfort.
Careful review of the well-written briefs and the law as stated in Cassidy, supra, and McDonald v Oberlin, supra, leads us to believe that the trial judge was correct. We, therefore, affirm.
Affirmed. | [
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] |
Per Curiam.
Defendant appeals as of right, contending that the trial court abused its discretion by denying defendant’s motion to set aside a default judgment entered against defendant for defendant’s failure to comply with a court-ordered deposition. We find no abuse of discretion.
On April 12, 1982, plaintiff filed a notice with the trial court that it would be taking the deposition of Steve Stolaruk, defendant’s president. Although the deposition was originally scheduled for April 20, 1982, the parties later agreed to adjourn the deposition until May 5, 1982.
On or about May 3, 1982, William M. Donovan, defendant’s attorney, advised plaintiff’s attorney that Mr. Stolaruk would not be appearing for the deposition scheduled for May 5, 1982. Thereafter, plaintiff filed a motion with the trial court requesting it to compel Mr. Stolaruk’s attendance at a deposition or to grant plaintiff a default judgment against defendant. The motion was scheduled to be heard on May 19, 1982; however, the parties stipulated beforehand that the trial court should enter an order compelling Mr. Stolaruk’s attendance for a deposition to be held on June 1, 1982, or, upon failing to appear, defendant’s pleadings would be struck and a default judgment entered against defendant. On May 19, 1982, the trial court issued such an order. Before the order was issued, however, defendant and Attorney Donovan became so enmeshed in controversy that defendant retained new counsel. Defendant’s new counsel signed the order, approving it as to form.
On or about May 25, 1982, defendant’s newly retained counsel contacted plaintiff and advised that Mr. Stolaruk would be unable to appear at the court-ordered deposition as scheduled. There is a conflict between the parties over whether or not certain extrajudicial agreements were made regarding the rescheduling of Stolaruk’s deposition a fourth time. Plaintiff claims that when it was advised that Mr. Stolaruk would not appear again, it told defendant’s new counsel that it would file a motion for entry of default judgment against defendant pursuant to the trial court’s order. Plaintiff claims to have told defendant that if Mr. Stolaruk appeared for a deposition any time before the hearing on the default judgment motion, it would dismiss the motion. Defendant, on the other hand, says that its newly retained counsel sought to arrange a new date for the deposition with plaintiff’s counsel and that a 10-day extension beyond the June 1, 1982, court-ordered date was agreed upon. On May 25, 1982, defendant claims to have sent plaintiff’s counsel a letter confirming the extension.
On June 2, 1982, plaintiff filed a motion with the trial court to enter a judgment of default against defendant for defendant’s failure to comply with the court-ordered deposition. On June 9, 1982, the trial court heard oral argument from counsel, and on June 17, 1982, it issued an order granting plaintiff’s request.
On July 8, 1982, defendant filed a motion with the trial court seeking to have the judgment of default set aside. A hearing on the motion was held on July 21, 1982, and, on that date, the trial court issued an order denying the motion. Defendant now appeals as of right to this Court.
The test for setting aside a judgment of default appears in GCR 1963, 520.4, which specifically requires a showing of good cause and a meritorious defense. This Court elucidated some factors which constitute "good cause” in Glasner v Griffin, 102 Mich App 445; 301 NW2d 889 (1980). We find that defendant failed to establish any of the requisite elements here.
Plaintiff took all of the proper steps in trying to obtain Mr. Stolaruk’s deposition. Defendant’s newly obtained counsel knew about and stipulated to the court-ordered deposition. Defendant had an additional nine days within which to make its president available before the hearing date of plaintiffs motion to enter a default judgment against defendant. Moreover, defendant could have asked the trial court within this nine-day period to modify its order, but failed to do so. Defendant claims that the breakdown in the attorney-client relationship made it extremely difficult to schedule the deposition by June 1, 1982. However, the trial court scheduled the deposition for defendant; therefore, if defendant had a calendar conflict, it should have apprised the trial court of the conflict before June 9, 1982 (i.e., the hearing date), to avoid the entering of a default judgment against it.
In Wood v Detroit Automobile Inter-Ins Exchange, 99 Mich App 701; 299 NW2d 370 (1980), modiñed on other grounds 413 Mich 573; 321 NW2d 653 (1982), this Court recognized that the entering of a default judgment against a party is a "drastic step” but it also explained that "if a party willfully, i.e., intentionally, fails to comply with a court order, a default judgment may be appropriate”. Wood, p 706. See also Humphrey v Adams, 69 Mich App 577, 581-582; 245 NW2d 167 (1976).
Defendant was fully aware of the consequences of its failure to comply with the trial court’s order. Defendant never attempted to have that order modified although it had more than enough time to make such a request. Furthermore, the substitution of attorneys is not a valid excuse for setting aside the lower court’s default judgment, especially where the newly retained counsel was fully aware of the court-ordered deposition. This substitution-of-attorneys excuse merely invites further delay on the part of the defense which is precisely why plaintiff obtained a court order to compel Mr. Stolaruk’s deposition in the first place. See Midwest Mental Health Clinic, PC v Blue Cross & Blue Shield of Michigan, 119 Mich App 671, 674-675; 326 NW2d 599 (1982) (defendant’s attorney failed to timely answer plaintiff’s complaint), and Wood v DAIIE, supra, 413 Mich 573, 580-581; 321 NW2d 653 (1982).
Affirmed. Costs to plaintiff. | [
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] |
Connor, J.
In a declaratory judgment action, plaintiff sought to establish defendant’s liability as a corporate successor of polluting corporations for environmental contamination at plaintiff’s manufacturing facility. The trial court granted summary disposition for defendant pursuant to MCR 2.116(0(10). Plaintiff appeals as of right. We affirm.
In 1971, after a series of mergers and name changes, Gulf & Western Industrial Products Company (hereafter gwipco) sold the assets of three companies to Grand Rapids Brass Company (hereafter Brass). As part of this transfer, Brass as sumed the liabilities of the three companies it purchased. The sales agreement, provided that the transfer of assets was "subject, however, to all of Seller’s obligations, indebtedness and liabilities relating to the businesses, assets and properties being transferred hereunder.” In 1976, gwipco, which had changed its name to Gulf & Western Liquidating Company, transferred the assets and liabilities of fourteen other divisions to Young & Ottawa Incorporated. After various mergers and purchases, Young & Ottawa became defendant.
Brass, which had by then changed its name to Crampton Manufacturing Company, sold the manufacturing facility site at issue to Roland Peterson in 1975. In 1976, Crampton Manufacturing Company transferred its remaining assets to Gulf & Western Liquidating Company, which dissolved ten years later. In 1980, Roland Peterson sold the site to plaintiff. While plaintiff was operating a plant at the site, the Department of Natural Resources informed plaintiff that the site was contaminated with various waste materials that were leaching into the soil and ground water. The.DNR alleged that this contamination had been caused by companies that used the site before plaintiff. Plaintiff filed suit against defendant in 1991 as a result of the dnr’s allegations. We find the trial court did not err in granting summary disposition for defendant.
In general, a purchaser of another company’s assets does not become liable for the seller’s obligations. Henn & Alexander, Laws of Corporations, (3rd ed), §341, p 967. However, an exception to this general rule occurs where the purchaser expressly or impliedly assumes the seller’s liabilities. Id. Such a transfer was expressly memorialized in the sales agreement between gwipco and Brass, quoted supra.
Plaintiff contends that this transfer does not defeat third-party claims against the seller, gwipco. Generally, creditors of the seller are not limited to seeking a recovery from the purchaser unless they agree to the transaction. 15 Fletcher, Cyclopedia Corporations (perm ed), § 7116, p 215. However, third-party claims by creditors of the purchaser are not granted the same protection. Plaintiff was never a creditor of either gwipco or Brass. Consequently, the argument has no merit.
Implicit in plaintiffs claim is the assumption that defendant is the successor to gwipco. Some courts have overridden traditional corporate successor law on the basis of the public policy that favors forcing polluters, rather than the public, to pay for environmental contamination. See, e.g., United States v Mexico Feed & Seed Co, 980 F2d 478, 487 (CA 8, 1992). Such courts use the "substantial continuity” test to determine whether a purchaser of the assets is liable for the pollution of a predecessor. Id. at 488. The substantial continuity test involves the following factors: (1) retention of the same employees and supervisory staff; (2) retention of the same production facility at the same site; (3) production of the same product; (4) retention of the same name; (5) continuity of assets and general business operations; and (6) whether the purchaser holds itself out to the public as the continuation of the previous enterprise. United States v Carolina Transformer Co, 978 F2d 832, 838 (CA 4, 1992).
In the present case, it would be impossible to find the factors for substantial continuity. Gwipco sold the property and assets to Brass in 1971. Defendant’s predecessor-in-interest did not purchase the assets and liabilities of the fourteen other companies until January 5, 1976. Brass’ successor sold its assets to gwipco’s successor on December 1, 1976, but it had already sold the site to plaintiffs predecessor on November 15, 1975. Accordingly, the trial court did not err when it declined to embrace any common-law theories of liability.
Next, we find the trial court did not err in construing the "no liability transfer rule” of the Environmental Response Act (era), MCL 299.612d(l); MSA 13.32(12d)(l), to apply only to claims by the state and not to apply in the present matter. Statutory construction is a question of law. Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992). Issues of law are reviewed de novo. Duggan v Clare Co Bd of Comm’rs, 203 Mich App 573, 575; 513 NW2d 192 (1994). A trial court’s primary goal in construing a statute is to ascertain and give effect to the Legislature’s intent. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993).
In explaining its construction of the era, MCL 299.612d; MSA 13.32(12d), the trial court opined:
Because of the similarity between cercla[ ] and mera[ ] and the fact that mera was based on cercla, any deviation from cercla must be interpreted as an intention to create a distinction of signrficanceNn light of this difference, it would be improper to construe MCL 299.612d(l) more broadly than its literal language. By adding the words "to the state,” the legislature intended to create a cause of action only for the state, and not private claimants, against parties who transferred their liability under mera to another.
The relevant provision of the era, MCL 299.612d(l); MSA 13.32(12d)(l), construed by the trial court, provides:
An indemnification, hold harmless, or similar agreement or conveyance is not effective to transfer from a person that may be liable under section 12 to the state for evaluation or response activity costs or damages for a release or threat of release to any other person the liability imposed under this act.
This Court has determined that the intent of the era is similar to that of the cercla, so it is appropriate to examine federal case law interpreting similar issues. Flanders Industries, Inc v Michigan, 203 Mich App 15, 21; 512 NW2d 328 (1993). The analogous federal provision, § 107(e)(1) of the cercla, 42 USC 9607(e)(1), provides in pertinent part:
No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section.
This section has been interpreted to mean that responsible parties may not transfer their cercla liability to another party. See, e.g., United States v Hardage, 985 F2d 1427, 1433 (CA 10, 1993).
In Stolaruk Corp v Central Nat'l Ins Co, 206 Mich App 444, 455; 522 NW2d 670 (1994), this Court adopted the Sixth Circuit Court of Appeals’ interpretation of § 12(6) of the Leaking Underground Storage Tank Act (lusta), MCL 299.842(6); MSA 14.528(272)(6), found in Niecko v Emro Marketing Co, 973 F2d 1296, 1300-1301 (CA 6, 1992). The Stolaruk Court applied this interpretation to § 12d(l) of the era, MCL 299.612d(l); MSA 13.32(12dXD, and held that a party will be liable to the government for cleanup costs, notwithstanding any agreement to the contrary. Stolaruk, supra, 455. However, the Stolaruk Court held that § 12d does not preclude private parties from agreeing with one another to apportion cleanup costs as they see fit. Id. As the Stolaruk Court reasoned, "the Niecko interpretation prevents a party from contracting away its liability as against the government, but allows private parties to allocate the financial responsibility for the costs of the cleanup as between themselves.” Id. at 454-455.
The era’s no transfer of liability rule differs from the cercla model in that the Michigan Legislature added the words, "may be liable under section 12 to the state.” MCL 299.612d(l); MSA 13.32(12d)(l). By adding this language, we believe the Legislature intended to limit the no transfer of liability rule to state claims. If the Legislature had intended § 12d to be a complete ban on transfers of liability, it would have adopted the cercla’s model. The interpretation we adopt is in keeping with the statute’s purpose of ensuring that the state is reimbursed. MCL 299.601(e); MSA 13.32(1) (e). Moreover, any other construction would abolish the common-law principles we already have discussed that allow parties to transfer liabilities. Michigan law does not favor this type of construction. Marquis v Hartford Accident & Indemnity (Añer Remand), 444 Mich 638, 652-653; 513 NW2d 799 (1994). In sum, the trial court’s interpretation of § 12d of the era was correct, and summary disposition was, therefore, proper. Stolaruk, supra.
Plaintiffs claim that a question of. fact existed regarding whether gwipco and Brass’ sales agreement transferred liabilities to Brass is unpreserved because it was not raised below. Vander Bossche v Valley Pub, 203 Mich App 632, 641; 513 NW2d 225 (1994). At any rate, the argument is meritless. The contract between gwipco and Brass provided that the assets transferred were "subject, however, to all of [gwipco’s] obligations, indebtedness and liabilities relating to the businesses, assets and properties being transferred hereunder.” This language clearly and unambiguously reflects that the intent of the parties was for Brass to receive assets subject to all indebtedness, obligations, and liabilities. Plaintiff failed to produce any evidence to the contrary, even though it had the burden of doing so. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). Summary disposition was proper.
Affirmed.
Comprehensive Environmental Response, Compensation, and Liability Act,. 42 US 9601-9657.
Environmental Response Act, MCL 299.601 et seq.; MSA 13.32(1) et seq.
For example, the Legislature adopted a no transfer of liability rule in the lusta, which does not contain the "to the state” language. MCL 299.842(6); MSA 14.528(272X6). | [
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ON REHEARING
Before: Marilyn Kelly, P.J., and J. H. Gillis and M. D. Schwartz, JJ.
Per Curiam.
This case is before us on rehearing. Plaintiff, International Recovery Systems, Inc., appeals from dismissal of its action seeking enforcement of a foreign judgment based upon an underlying gambling debt. We reverse.
It is clear that gambling is contrary to public policy in Michigan, aside from those narrowly circumscribed exceptions created by the Legislature. It is also clear that the enforcement of gambling debts is contrary to the public policy of our state. Such debts are unenforceable in our courts. Gibson v Martin, 308 Mich 178; 13 NW2d 252 (1944); Raymond v Leavitt, 46 Mich 447; 9 NW 525 (1881). The conclusion is amply supported by the language of MCL 600.2939(3); MSA 27A.2939(3), which provides:
All notes, bills, bonds, mortgages, or other securities or conveyances, whatever, in which the whole or any part of the consideration, shall be for any money or goods won by playing at cards, dice, or any other game whatever, or by betting on the sides or hands of such as are gaming, or by any betting or gaming whatever, or for reimbursing or repaying any moneys knowingly lent or advanced for any gaming or betting, shall be void and of no effect, as between the parties to the same, and as to all persons, except such as shall hold or claim under them in good faith, and without notice of the illegality of such contract or conveyance.
In the case before us, further briefing has convinced us that we must treat as irrelevant our state’s public policy and our courts’ long-standing refusal to enforce gambling debts. We are dealing with a fait accompli, a foreign judgment. We are compelled to enforce Nevada’s judgment against this defendant due to accepted construction of the Full Faith and Credit Clause of the federal constitution. US Const, art IV, §1; Fauntleroy v Lum, 210 US 230; 28 S Ct 641; 52 L Ed 1039 (1908).
We note that when the United States Supreme Court issued Fauntleroy four justices were sufficiently troubled by it to dissent, raising issues not unlike those considered in our earlier opinion.
We reflect, in passing, that in times of intense financial stress for the individual states, some have embraced gambling to relieve their financial woes. It is possible to imagine a time in the not-so-distant future when, under the Full Faith and Credit Clause, our courts could be used to enforce similar foreign judgments. Unfortunately, the underlying debts could arise from no-longer-illegal sales of street drugs, prostitution and like goods or services. Some would argue that they, too, hold a promise of quick revenue and prosperity for the individual states.
Reversed.
J. H. Gillis, J. I concur in the result only. | [
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Per Curiam.
Respondent township appeals as of right from a May 12, 1983, Michigan Tax Tribunal decision holding that an airplane hangar built and used by petitioner pursuant to a lease between petitioner and the Tri-City Airport was real property belonging to Tri-City Airport. The township believed the hangar was personal property pursuant to MCL 211.8(d); MSA 7.8(d). Although the dispute between petitioner and respondent goes back to the 1971 assessment, only the 1980 and 1981 assessments are involved in the instant appeal.
Petitioner entered into the lease at issue on May 1, 1973. Under the lease, petitioner agreed to erect a new building to contain a hangar, workshop, offices, waiting room for the public and related facilities, and parking and was required to pay approximately $3,400 per year plus a percentage of petitioner’s gross. The lease term was for 20 years with an option to renew for five more. The airport had a right to adjust rent every three years. However, "if no mutually satisfactory agreement as to the rate and fees is reached” the airport was required to pay petitioner the "undepreciated value of any building or fixed property improvements to the land leased”, applying straight-line depreciation. Likewise, if petitioner were to default the airport had a right to "re-enter and repossess the leasehold premises” but the airport was to pay plaintiff $1,150 for each month that the base term had to run from the date of releasing the facilities to another operator.
Section VI(A) of the lease provided that the lessee shall make no improvements, additions, or alterations to the hangar without the prior written consent of the lessor. Section VI(D) expressly provided:
"All of the structures, improvements and facilities, including the improvements set forth in Exhibit 'B’ shall be part of the land upon which they are erected and title shall vest in the Lessor.”
When petitioner needed financing to construct the facilities demanded by the lease, an addendum to the May 1, 1973, lease was signed August 6, 1973. Under the addendum any financing required by the lessee "may be secured by a mortgage or trust deed on the building to be erected which will be a first lien on the leasehold and Lessor further agrees that any rights to the building or leashold that it may have shall be subordinate to the lien of such mortgage”.
Pursuant to the lease and addendum petitioner did construct a hangar with workshop, offices, waiting rooms, and related facilities. On June 30, 1980, petitioner instituted proceedings with the Michigan Tax Tribunal appealing respondent’s assessment of the leased property as personal property for the tax year 1980. The petition was later amended to include the assessment for the tax year 1981. Petitioner made two arguments before the Tax Tribunal: (1) the hangar and related facilities were not personal property of petitioner but belonged to the Tri-City Airport; and (2) as the hangar was real property under lease, petitioner was exempt from taxation as a concessionaire pursuant to 1953 PA 189, as amended. MCL 211.181; MSA 7.7(5). The Tax Tribunal ruled in petitioner’s favor on both issues.
I
Employing the "bundle of sticks” concept of property as described by the Wisconsin Supreme Court in Mitchell Aero, Inc v Milwaukee, 42 Wis 2d 656; 168 NW2d 183 (1969), respondent argues that the lease agreement gives the majority of the rights of ownership to the petitioner.
"We think the ownership of property by a municipality to qualify for exemption under s.70.11(2), Stats., means real or true ownership and not paper title only. Ownership is often referred to in legal philosophy as a bundle of sticks or rights and one or more of the sticks may be separated from the bundle and the bundle will still be considered ownership. What combination of rights less than the whole bundle will constitute ownership is a question which must be determined in each case in the context of the purpose of the determination. In this case for exemption one needs more than the title stick to constitute ownership.” 42 Wis 2d 662.
In particular, respondent refers to the provision that, upon repossession, the lessor must pay lessee $1,150 per month for each month of the unexpired term, and the provision in the addendum that the lessee may mortgage the building. We disagree.
The Tax Tribunal thoroughly reviewed the lease and concluded that ownership was vested in the Tri-City Airport Commission. In the absence of fraud — and none is alleged in the instant situation —factual determinations of the Tax Tribunal are binding. Thus, unless the tribunal adopted "wrong principles” of law, the tribunal’s determination of ownership should be affirmed. Tatham v Birmingham, 119 Mich App 583, 589; 326 NW2d 568 (1982). We do not find adoption of wrong principles. Both at common law and by statute, buildings placed upon real property become a part of the real property. Pangborn v Continental Ins Co, 62 Mich 638; 29 NW 475 (1886); MCL 211.2; MSA 7.2. We disagree with appellant’s claim that the Tax Tribunal relied too heavily on the lease provision that title to the hangar vested in the lessor.
Even under the "bundle of sticks” theory, we find that the lessor was given the bulk of the rights of ownership. Lessee agreed to provide "the necessary management for the operation of the facilities at all times in a manner and quality acceptable to lessor”; lessee could engage in secondary commercial support services "subject to the approval of the lessor”. Improvements could not be made without the written consent of the lessor. Insurance coverage was required in such amount as may be approved by the lessor and lessor was given the right to adjust the rent every three years and to terminate the lease if agreement on the new rent could not be reached. The lease provision that the lessor would pay plaintiff $1,150 per month for each month remaining in the base term was merely an equitable provision to assure that Tri-County would not realize a windfall by the early termination of the lease. Neither do we agree with appellant that the addendum to the lease made petitioner the beneficial "owner” of the property. Indeed, without the addendum, the hangar would not have been built and would not have become a part of the realty with title vested in the lessor. Viewed in this light, the addendum worked to put title in the lessor rather than the lessee.
We find Mitchell Aero, supra, the case on which respondent mainly relies, distinguishable. Though factually similar in some respect, the lease terms there in other respects were totally different than those in the case before us. No rent was charged for the space in the hangar which the lessee agreed to build, there was no provision for periodic increases in rent, and the lease included an amortization formula which assured the lessee of recovery of its investment. It is not surprising, therefore, that the majority opinion concluded that the arrangement was not a bona fide conveyance of buildings to the airport, but was "a hybrid arrangement, possibly to obtain both a tax exemption and the amortization of the cost of the buildings”. 42 Wis 2d 665. Also, the opinion was not unanimous. A strong dissenting opinion found "only one stick” of the bundle of ownership sticks left with the lessee.
In summary, we find the Tax Tribunal’s decision on issue I to be in accord with the established principles of law and supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; American Legion Memorial Home Ass’n of Grand Rapids v Grand Rapids, 118 Mich App 700, 710; 325 NW2d 543 (1982).
II
Our finding sustaining the Tax Tribunal’s hold ing that the hangar was real property not owned by the petitioner and that, accordingly, it is not taxable as personal property, does not end the matter. Left remaining is the question of whether the leasehold itself is subject to taxation under the provisions of Michigan’s statute governing the taxation of lessees and uses of tax exempt property. 1953 PA 189; MCL 211.181; MSA 7.7(5). At the time the instant litigation commenced, that statute, having been amended by 1976 PA 430, and portions of it having been found unconstitutional in Avis Rent-A-Car System, Inc v Romulus, 400 Mich 337; 254 NW2d 555 (1977), read in pertinent part:
"Sec. 1. (1) When any real property which for any reason is exempt from taxation is leased, loaned, or otherwise made available to and used by a private individual association, or corporation in connection with a business conducted for profit, the lessees or users thereof shall be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of such property.
"(2) Subsection (1) shall not apply to:
"(b) Property which is used as a concession at a public airport.”
Under the above statutory provisions, petitioner , is taxable unless it is a "concessionaire”. Respondent argues that petitioner is not a concessionaire because petitioner does not meet the three-part test set forth when the statute was amended by 1970 PA 174. Under that amendment, a concessionaire was required to meet all of the following:
"(a) It shall have the exclusive right and duty to render a necessary or customary service, based on a contract entered into requiring that it render goods or services either to the grantor or to the general public on behalf of the grantor.
"(b) The service rendered must be available to the general public on a nondiscriminatory basis.
"(c) Use of real property in connection with a service concession must be a necessary and integral part of the concession.”
Specifically, respondent contends that petitioner does not meet the requirement of subdividion (a) because it was not granted the "exclusive right” to act as a fixed-base operator at the Tri-City Airport. It is true, petitioner was not given exclusive rights and the lease makes that very clear. Nevertheless, respondent’s claim is flawed in three respects. First, the amendatory act (1970 PA 174), upon which respondent relies, was only applicable to counties of over 1,000,000 population. Avis-Rent-A-Car, supra. Second, subsection (2) of MCL 211.181; MSA 7.7(5) was declared unconstitutional but subsection 211.181(1), which contained the exemption for a concessionaire, was not invalidated. Third, this Court in Clinton County v Francis, 73 Mich App 102; 250 NW2d 559 (1976), squarely held that an airport lessee can still qualify as a concessionaire without possession of an exclusive right.
"Only the opinion in Detroit v Tygard [381 Mich 271; 161 NW2d 1 (1968)] supports the trial court’s conclusion that the lessees’ uses, since they lacked exclusivity, were not concessions. But Tygard itself cautions against its application to other factual situations. The position taken by the majority in Kent County [v Grand Rapids, 381 Mich 640; 167 NW2d 287 (1969)], and the 1970 amendment of MCLA 211.181; MSA 7.7(5), lead us to conclude that a concession, as the term is used in MCLA 211.181(1); MSA 7.7(5)(1), does not involve the exclusive right to render a service.” 73 Mich App 106.
No claim is made that, except for the element of exclusivity, petitioner does not operate a concession. Under the lease petitioner sold, rented, and leased aircraft including hangar space and made available and operated aircraft for business, pleasure, and industrial purposes. Very clearly, petitioner was a "concessionaire”. Petitioner’s operation meets all the tests for a "concession” laid down in Kent County v Grand Rapids, 381 Mich 640, 651-653; 167 NW2d 287 (1969), and the Tax Tribunal so found. We agree.
Affirmed. No costs, a question of public importance being involved.
Article XV of the lease provided that the lessee would pay all taxes "that may be lawfully levied or charged against the leaseholders’ estate”. Under 1953 PA 189, as amended, the hangar could be taxed, unless the lease property was "used as a concession”. | [
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Per Curiam.
Defendant appeals by leave granted from the order of the Macomb Circuit Court denying defendant’s motion for summary disposition.
Romandus Brinker, Jr., had been employed by defendant for many years when, in 1982, he was presented with a "one-time offer” to participate in defendant’s Supplemental Income Protection Plan. Defendant often used the sipp to encourage voluntary termination of its employees, particularly those eligible for early retirement. Under the plan, plaintiff was permitted to retire before his scheduled retirement date and receive a pension consonant with his years of service plus monthly sipp payments for the following four years. Defendant accepted the plan and retired in April, 1982.
Plaintiff claims that, following his early retirement, defendant offered the same sipp to other employees, contrary to its representation that the sipp was a "one-time offer.” In September, 1984, plaintiffs filed a complaint against defendant claiming that defendant falsely characterized the sipp as a one-time offer and that, as a result of defendant’s misrepresentation, he lost pension benefits by electing early retirement. Plaintiff sought damages for breach of contract, misrepresentation, fraud, deception, improper inducement and interference with an advantageous economic relationship. Nancy Brinker sought derivative damages for loss of consortium.
Defendant removed the action to federal court and subsequently filed a motion for summary judgment, alleging that all of plaintiffs’ claims were preempted by the Federal Employment Retire ment Income Security Act of 1974, 29 USC 1001 et seq. Rather than ruling on the merits of defendant’s motion, the federal district court judge held that there was not sufficient basis to support federal removal jurisdiction and remanded the case to the Macomb Circuit Court.
Upon remand to the trial court, defendant again filed its motion for summary disposition pursuant to MCR 2.116(I) on the basis that plaintiffs’ claims were preempted by erisa. The trial court did not rule on the merits of the preemption issue but denied defendant’s motion.
It is not disputed that the sipp, which is at issue in this action, is considered an employee benefit plan within the meaning of erisa. The question which we must decide is whether plaintiffs’ state common-law causes of action are preempted by erisa.
Erisa was enacted to promote and protect the interests of employees and their beneficiaries in employee benefit plans. Shaw v Delta Air Lines, Inc, 463 US 85, 90; 103 S Ct 2890; 77 L Ed 2d 490 (1983). It applies to all employee benefit plans established by an employer engaged in an industry or activity which affects commerce. 29 USC 1003(a). Save for a few limited exceptions, erisa preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by erisa. 29 USC 1144(a); § 514(a) of erisa.
In Shaw v Delta Air Lines, supra, the United States Supreme Court considered the scope of the erisa’s preemptive provisions in the context of New York’s Human Rights Law and Disability Benefits Law and concluded that Congress intended a broad application:
We have no difficulty in concluding that the Human Rights Law and Disability Benefits Law "relate to” employee benefit plans. The breadth of § 514(a)’s pre-emptive reach is apparent from that section’s language. A law "relates to” an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.
Nor, given the legislative history, can § 514(a) be interpreted to pre-empt only state laws dealing with the subject matters covered by erisa — reporting, disclosure, fiduciary responsibility, and the like. The bill that became erisa originally contained a limited pre-emption clause, applicable only to state laws relating to the specific subjects covered by erisa. The Conference Committee rejected these provisions in favor of the present language, and indicated that the sections’ pre-emptive scope was as broad as its language. [Id., pp 96-98.]
Employing this standard in the present case, we conclude that plaintiffs’ state common-law claims are preempted by erisa. Plaintiffs’ complaint states causes of action for breach of contract, misrepresentation, fraud, deception and improper inducement. Although plaintiffs’ claims are technically based upon Michigan common law, even a state’s general common law is considered preempted by erisa if "state common law is being relied upon to resolve a dispute over the litigants’ rights and obligations that have their genesis in an employee benefit plan.” Hollenback v Falstaff Brewing Corp, 605 F Supp 421, 429 (ED Mo, 1984), aff'd 780 F2d 20 (CA 8, 1985). See also Authier v Ginsberg, 757 F2d 796 (CA 6, 1985); Ogden v Michigan Bell Telephone Co, 571 F Supp 520 (ED Mich, 1983).
Here, all of the common-law causes of action pled by plaintiffs are intimately connected to de fendant’s administration of the sipp and plaintiffs’ receipt of pension benefits. Compare Visioneering, Inc, Profit Sharing Trust v Belle River Joint Venture, 149 Mich App 327; 386 NW2d 185 (1986). No other conclusion can be reached but that the common law which plaintiffs rely on "relates to” the employee benefit plan which is covered by erisa. To hold otherwise would conflict with Congress’s intent to avoid conflicting state regulations and interpretations and to make the regulation of pension plans exclusively a federal matter. Shaw, supra. Moreover, if the alleged violations did occur, plaintiffs may pursue the remedies expressly provided by erisa. See 29 USC 1024(b), 1104, and 1109(a). Ogden, supra. It is in erisa that plaintiffs’ remedies lie.
Since plaintiffs’ state common-law claims are pre-empted by erisa, plaintiffs’ complaint fails to state a cause of action as a matter of law. MCR 2.116(C)(8). The lower court erred in denying defendant’s motion for summary disposition.
Reversed.
We are most concerned that plaintiff may be left without any remedy should plaintiffs claim be barred by the statute of limitations. However, we have been hampered in considering this question by plaintiffs failure to submit a brief on appeal. | [
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Per Curiam.
This case involves a dispute over royalty payments allegedly due to plaintiff under a September 21, 1971, "patent assignment agreement” between plaintiff and Federal Screw Works (FSW). Following a nonjury trial, the trial court held that defendant Hydromechanics Service Corporation (HSC), as assignee of FSW’s rights and obligations under the September, 1971, agreement, was liable to plaintiff for royalties on net receipts from the manufacture, sale and use of the patented device invented by plaintiff. Judgment was entered in favor of plaintiff and against defendants Alfred Brown and HSC in the amount of $73,308.98, including interest. Defendants appeal.
I
Plaintiff is the inventor of a hydraulic cleaning device known as a "gun control”. The patented device is used in connection with a hydroblasting unit (includiDg pump and hoses) to eject water under high pressure against a surface to be cleaned. Plaintiff filed a patent application and, on September 21, 1971, executed a patent assignment agreement with FSW. The agreement gave FSW all of plaintiff’s rights in the invention and patent application, and in consideration FSW agreed to pay plaintiff $25,000 plus 3% royalties "on its annual net receipts from the sale, lease and licensing of Cleaning Devices or the performance of cleaning services for others with the use of Cleaning Devices * * *”. FSW was also required to keep records of its net receipts upon which royalties were payable. The agreement further provided that it was binding upon the successors and assigns of the respective parties.
A patent was issued on September 12, 1972. FSW performed its obligations under the agreement, but in early 1973 decided to cease the service aspect of its hydroblasting business. At that time FSW intended to continue manufacturing the patented device. On March 7, 1973, FSW and defendant Brown entered into an agreement in which Brown purchased 14 hydroblasting units, including patented gun controls, and one large pump for the price of $93,100. In addition to the transfer of property, Brown received the right to use the Hydromechanics name, a customer list and a promise by FSW not to compete in the hydroblasting service business for a period of five years. Brown assumed none of FSW’s obligations and received no express rights under the 1971 patent assignment agreement. FSW paid plaintiff $2,793 in royalties on this transaction.
Shortly thereafter Brown incorporated HSC as a solely owned corporation and transferred the purchased assets to it.
On August 2, 1973, FSW assigned to HSC its entire interest under the 1971 agreement and HSC expressly assumed all of FSW’s rights and obligations thereunder. HSC paid $25,000 in consideration for the assignment. In addition, HSC purchased all of FSW’s assets relating to the business of manufacturing, leasing and selling hydroblasting equipment. Only three of the hydroblasting units transferred to HSC at this time included the patented gun controls.
Plaintiff commenced this action against FSW, Brown and HSC for royalty payments allegedly due. Plaintiff and FSW executed a settlement prior to trial.
The trial court held in pertinent part that: (1) the March, 1973, transaction constituted an assignment to Brown of FSW’s interest in the "use” portion of the 1971 patent assignment agreement; (2) since Brown did not assume any of FSW’s obligations, FSW was liable to plaintiff not only for royalties on the sale of the devices to Brown but also for royalties on HSC’s service income from the devices up to August 2, 1973; (3) the pretrial settlement between plaintiff and FSW extinguished FSW’s royalty obligation; (4) on August 2, 1973, HSC expressly assumed FSW’s obligations under the 1971 agreement, and HSC is therefore liable for royalties on all of its net receipts from and after August 2, 1973, regardless of whether HSC’s service receipts were generated exclusively from the patented devices purchased in the March, 1973, transaction.
Plaintiff agrees with the court’s decision and requests this Court to affirm. HSC concedes that it is liable for royalties on net receipts from sales, leasing and services generated from patented devices which it acquired in, or manufactured after, the August 2, 1973, transaction. HSC argues, however, that the March, 1973, transaction was merely a sale of assets under which FSW was liable for (and paid) the royalties, and that no royalties were due on the service receipts generated by HSC from the use of those assets. According to HSC, the evidence established that all of its service receipts were derived from the assets purchased in March, 1973, and plaintiff is therefore not entitled to royalties on those receipts.
II
Did the trial court err in fínding the March, 1973, transaction to be an assignment of the use portion of the 1971 patent assignment agreement?
While plaintiff characterizes this as a "non-is sue”, we believe the question is crucial to a determination of whether royalties are owed on HSC’s service receipts from and after August 2, 1973.
The assignment of any interest in a patent or patent application must be in writing to fulfill the requirements of 35 USC 261. An instrument assigning an interest in a patent must be unambiguous and show a clear intent to part with such interest. Switzer v Comm’r of Internal Revenue, 226 F2d 329, 330 (CA 6, 1955).
We find that the March, 1973, agreement and bill of sale do not demonstrate a clear intent on the part of FSW to transfer an interest in the 1971 patent assignment agreement. Indeed, patent rights are not even mentioned in the instruments. According to the testimony of FSW’s president, the purchase price of the equipment sold in that transaction was based on book value, and no other consideration was involved. This should be contrasted with the August 2, 1973, transaction, in which patent rights were expressly assigned to HSC for separate consideration in the amount of $25,000.
We believe the trial court placed too much emphasis on the noncompetition clause included in the agreement. Although the parties certainly intended that Brown would engage in the hydroblasting service business and that FSW would cease such operations, it does not follow that an assignment of FSW’s interest in the patent was intended. The 1971 patent assignment agreement permitted, but did not require, FSW to engage in the service industry. The record demonstrates that prior to March, 1973, FSW decided to cease its service operations for legitimate business reasons. In our opinion, FSW’s agreement not to compete with Brown and the transfer of FSW’s customer list and trade name do not show a clear and unambiguous intent to assign an interest in the patent.
The trial court also expressed concern about parties collusively "laundering” use royalties by first selling the property to be used in the service business and later assigning the patent rights. While we can conceive of such fraudulent schemes, there is no evidence of collusive action in this case. To the contrary, FSW’s president testified that as of March, 1973, FSW fully intended to keep its patent interest and continue manufacturing the devices. Both FSW’s president and Brown testified that the negotiations leading up to the March, 1973, agreement contained no discussions of a subsequent assignment of the patent.
We conclude that the March, 1973, transaction was not an assignment of the patent interest.
Ill
Did the trial court err in finding that plaintiff was entitled to royalties on all of HSC’s net receipts after August 2, 1973, including receipts generated from services provided with the patented devices purchased in the March, 1973, transaction?
The trial court essentially held that since HSC stood in the place of FSW after the August, 1973, assignment, and since FSW would have been liable for royalties on all net receipts after that date, HSC was likewise liable. This was error.
The 1971 patent assignment agreement entitled plaintiff to royalties on FSW’s net receipts from the sale, lease, licensing or use of the patented devices. It clearly did not create a royalty obligation on third or subsequent parties who purchased the patented articles from FSW and then used them to generate service income, except, of course, where the third party was an assignee of FSW’s rights and obligations under the 1971 instrument.
Once there is an unconditional sale of a patented item and the patentee or assignee receives all the royalties to which he is entitled, the item passes outside the limits of the patent and the purchaser is free to use it without restriction or further obligation to the patentee or assignee. See United States v Univis Lens Co, 316 US 241; 62 S Ct 1088; 86 L Ed 1408 (1942); Henry v AB Dick Co, 224 US 1; 32 S Ct 364; 56 L Ed 645 (1912), overruled on other grounds, Motion Picture Patents Co v Universal Film Mfg Co, 243 US 502; 37 S Ct 416; 61 L Ed 871 (1917). Therefore, having unconditionally purchased the 14 hydroblasting units, including patented gun controls, in March, 1973, defendants Brown and HSC were entitled to use the patented articles without obligation to plaintiff. The subsequent assignment of FSW’s patent interest to HSC did not operate retroactively to bring the previously purchased items back within the monopoly of the patent. Plaintiff’s sole royalty interest in the items sold in the March, 1973, transaction was satisfied when FSW paid the 3% royalty on the purchase price of those items.
IV
Did defendants carry their burden of proving that all of HSC’s service receipts were generated from cleaning devices purchased in March, 1973, and not from cleaning devices received in, or manufactured after, the August 2, 1973, assignment?
Defendants’ assertion that all service receipts were derived from units purchased in March, 1973, was raised as an affirmative defense and the burden is therefore on defendants to prove it. In addition, the 1971 agreement required FSW (and HSC, as assignee) to "keep records of all its net receipts on which royalties are payable”. Therefore, royalties are deemed payable on all of HSC’s net service receipts except to the extent defendants can prove by. a preponderance of the evidence that such receipts were derived from the patented devices purchased in March, 1973.
It is necessary to remand the case for further findings of fact on this issue. The trial court’s February 27, 1981, opinion states at one point as follows:
"Defendant Hydro claims all revenue from cleaning services resulted in the use of machines from the March 7, 1973, transaction. However it never kept records as to which machines were used on which job and the defendant has not sustained the burden of proof on that point.”
Later in the opinion, however, the court stated:
"It may well be, as Hydro claims, that none of the three patented machines included in the August 2nd transaction were used to generate revenue from Cleaning Services to customers. It is undisputed that most or all of the 'net receipts’ from Cleaning Services to customers after August 2 was from machines which embodied the patented device obtained in the March 7 transaction. This would be sufficient to entitle Tuttle to his royalties from FSW and therefore it is sufficient to require Hydro to do the same. ” (Emphasis added.)
In any event, the trial court believed that it was unnecessary to reach the issue because, as discussed above, the court ruled that FSW would have been liable for royalties on all service receipts and that HSC, as assignee of FSW’s patent rights and obligations, was likewise liable without regard to the specific cleaning devices from which the income derived.
Our review of the record does not resolve the question. Defendants point to the testimony of Brown and to HSC sales invoices in arguing that the service fleet was comprised entirely of units purchased in March, 1973. On the other hand, there is an almost total lack of records as to which cleaning devices were used on particular service jobs.
Larry Bartrow ran the FSW Hydromechanics Division and began as crew foreman for HSC’s service operations in March, 1973. He testified that no records were kept to identify which units were used on particular jobs. He further stated that the units which ran were the ones they used and that several times units manufactured by HSC, as well as those previously purchased from FSW, were used in the service operation.
In addition, Bartrow testified that the handles on the gun controls would frequently break and would have to be replaced with the spare handles in stock. Plaintiff correctly contends that HSC’s implied license to use the patented articles purchased in March, 1973, existed only as long as the identity of the articles was preserved. Whether the handles were in fact replaced by handles purchased in, or made after, the August 2, 1973, transaction, and whether the replacement constituted a reconstruction rather than a mere repairing of the patented gun control, should be considered by the trial court on remand. See, e.g., Aro Manufacturing Co, Inc v Convertible Top Replacement Co, Inc, 365 US 336; 81 S Ct 599; 5 L Ed 2d 592 (1961), reh den 365 US 890; 81 S Ct 1024; 6 L Ed 2d 201 (1961); National-Standard Co v UOP, Inc, 616 F2d 339 (CA 7, 1980).
To summarize, the trial court on remand should determine what amount, if any, of HSC’s service receipts were generated from cleaning units embodying the patented devices purchased by HSC in March, 1973. HSC shall not be liable for royalties on these receipts, but shall be liable for royalties on all other service receipts derived from use of the patented gun controls. The trial court may take additional testimony on this issue.
Defendants concede liability for royalties on receipts from the sale and lease of patented articles purchased in, or made after, the August 2, 1973, assignment. The trial court on remand should also calculate this amount plus appropriate interest and enter judgment accordingly.
Finally, we hold that defendants are not entitled to- any setoff for royalties paid by or on behalf of FSW.
Reversed and remanded. We do not retain jurisdiction. | [
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Per Curiam.
This case involves three insurance carriers disputing liability for personal injury pro tection (PIP) benefits to Jack Ledford, an injured motor vehicle driver. At issue is the coverage to be provided under Michigan’s no-fault scheme to nonresident motorists injured in Michigan while insured under a policy issued in a foreign state.
Facts and Procedural History
On December 6, 1978, Jack Ledford, a Tennessee resident, suffered personal injuries when he was involved in a motor vehicle accident in Monroe County, Michigan. At the time, Ledford was operating a semi-tractor and trailer owned by him and leased on a regular or permanent basis to Mason-Dixon Lines, Inc., which employed him as the driver. Mason-Dixon was not authorized by the Interstate Commerce Commission to operate in Michigan. In order to complete a delivery of merchandise to Detroit, Mason-Dixon "trip-leased” Ledford’s rig to Admiral Merchants Motor Freight, which possessed an I.C.C. permit to haul freight on Michigan roads. Ledford’s rig was never registered to Admiral nor was it registered to operate in Michigan. We note that because the vehicle was in Michigan for less than 30 days, Ledford was not required to maintain no-fault insurance. MCL 500.3102(1); MSA 24.13102(1).
Mason-Dixon had insured Ledford’s rig with third-party plaintiff, Transport Insurance Company, under a policy which included basic automobile liability. Transport’s policy did not provide for PIP benefits and expressly excluded coverage under the policy if the vehicle were used for business purposes. There is no dispute but that Ledford’s rig was being used for business purposes at the time of the accident. Nevertheless, Ledford claimed PIP benefits from Transport under Michi gan’s no-fault statute. Transport denied Ledford’s claim and Ledford instituted what was the original action in this lawsuit naming Transport, Mason-Dixon, and Admiral as defendants. Transport denied liability on the ground that its policy to Mason-Dixon expressly excluded coverage for injuries sustained while using the insured vehicle for any business purpose. Because it was undisputed that at the time of the accident Ledford’s rig was being used for business purposes, Transport asserted that it was not Ledford’s insurer under Michigan’s no-fault insurance scheme.
Ledford filed a motion for partial summary judgment against Transport, which the trial court granted, on the ground that Transport was certified under MCL 500.3163; MSA 24.13163 to issue automobile liability insurance and personal and property protection insurance within the State of Michigan. The court concluded that § 3163 obligated Transport to provide personal and property protection benefits to nonresidents involved in accidents in Michigan and insured under a Transport automobile liability policy.
Following entry of the trial court’s order of summary judgment against Transport, Transport filed a third-party action against Admiral’s insurance carriers claiming that they were liable for Ledford’s PIP benefits. Home Insurance Company insured all vehicles owned or hired by Admiral and Protective Insurance Company provided excess coverage. Transport, Home, and Protective entered into a stipulation of facts and all three moved for summary judgment. The trial court granted third-party defendants’ motions, reaffirming its earlier conclusion that Transport was liable for Ledford’s PIP benefits under § 3163. Transport appeals as of right.
Discussion
Transport first contends that the trial court erred as a matter of law in applying MCL 500.3163; MSA 24.13163 to the undisputed facts of this case. Section 3163 of the no-fault act provides:
"(1) An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, shall be subject to the personal and property protection insurance system set forth in this act.
"(3) When a certification filed under subsections (1) or (2) applies to accidental bodily injury or property damage, the insurer and its insureds with respect to that injury or damage have the rights and immunities under this act for personal and property protection insureds, and claimants have the rights and benefits of personal and property protection insurance claimants, including the right to receive benefits from the electing insurer as if it were an insurer of personal and property protection insurance applicable to the accidental bodily injury or property damage.” (Emphasis added.)
Transport argues that Ledford was not "insured under its automobile liability insurance policies” because the particular policy issued to Ledford and Mason-Dixon specifically excluded coverage if Led-ford’s rig were involved in an accident while being used for business purposes. We do not agree.
Section 3163 requires that the nonresident be insured with the certified carrier "under its automobile liability insurance policies”. There is no dispute in this case but that Transport is certified to sell no-fault insurance in Michigan and that Ledford is insured under a Transport automobile liability policy. Transport seeks to have us construe § 3163 as additionally requiring that the motor vehicle involved in the accident and owned, operated, maintained, or used as a motor vehicle by the nonresident be covered under the terms of the foreign policy.
Under general principles of statutory construction, we must construe a statute according to the plain and ordinary meaning of its words. Arrigo’s Fleet Service, Inc v Michigan, 125 Mich App 790, 792; 337 NW2d 26 (1983). Only if the language is ambiguous do we look to other factors in attempting to ascertain the purpose behind the legislation. A liberal construction in favor of the public and the policyholders is preferred where the statute involved is an insurance law. Michigan Life Ins Co v Comm’r of Ins, 120 Mich App 552, 558; 328 NW2d 82 (1982), lv den 417 Mich 1077 (1983).
Our reading of § 3163 according to the plain and ordinary meaning of its words does not persuade us that the motor vehicle owned, operated, maintained, or used by the nonresident must also be one that is covered under the terms of the foreign policy. In our view, the only conditions of carrier liability imposed under § 3163 are: (1) certification of the carrier in Michigan, (2) existence of an automobile liability policy between the nonresident and the certified carrier, and (3) a sufficient causal relationship between the nonresident’s injuries and his or her ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. Inasmuch as the undisputed facts of this case reveal that these three conditions of liability have been met, we find no error in the trial court’s reliance on § 3163.
While the issue presented here is a first impression question in Michigan, we believe that our construction of § 3163 is indirectly supported by the Supreme Court’s decision in Lee v Detroit Automobile Inter-Ins Exchange 412 Mich 505; 315 NW2d 413 (1982). In Lee, plaintiff was a Michigan resident who sought to collect PIP benefits from the no-fault insurer of his personal motor vehicle for injuries sustained while, in the course of his employment, he was unloading mail from a motor vehicle owned by the federal government. Both this Court and the trial court held that because vehicles owned by the United States were not subject to registration under MCL 500.3101(1); MSA 24.13101(1), injuries arising out of the ownership, operation, maintenance, or use of those vehicles were not intended to be covered under the no-fault scheme.
The Supreme Court reversed. After noting that the underlying policy of Michigan’s no-fault scheme is to insure persons and not motor vehicles, the Court considered the insurer’s liability under MCL 500.3105; MSA 24.13105, which defines the scope of PIP benefits provided under the act, and held that:
"It is noteworthy that the section declares that entitlement to benefits depends, in part, upon 'use of a motor vehicle as a motor vehicle’. There is no language qualifying the right to benefits or the insurer’s duty to pay them with a requirement that such motor vehicle be a 'registered’, 'insured’, or 'covered’ motor vehicle as indeed might easily have been done had the Legislature so intended. The requirement is merely that the vehicle involved be a 'motor vehicle’ used, maintained, operated or owned 'as a motor vehicle’.
"We are not left to speculate about whether the Legislature intended the expression 'motor vehicle’ to mean a covered or registered or insured motor vehicle when it used those words as an expression of art throughout the statute. The meaning of that expression is explicitly set down in the definitional section of the act, § 3101(2), in which, in subsection (c) the Legislature declared:
"' "Motor vehicle” means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels. Motor vehicle does not include a motorcycle or a moped as defined in section 32b of Act No. 300 of the Public Acts of 1949.’ 1980 PA 445.
"Conspicuously absent is any language limiting 'motor vehicle’ to one required to be registered in the state or for which no-fault security must be maintained.” 412 Mich 512-513. (Footnote omitted.)
While we recognize that nonresident coverage under no-fault is not coextensive with resident coverage, Mills v Auto-Owners Ins, Inc, 413 Mich 567; 321 NW2d 651 (1982); Cheatum v Hartford Accident & Indemnity Co, 121 Mich App 761, 764; 329 NW2d 481 (1982), we also believe that Michigan appellate courts should not inject the term "covered” into a provision of the no-fault act which refers simply to motor vehicle. We conclude that under § 3163, the motor vehicle used by the nonresident as a motor vehicle need not be a "covered” motor vehicle absent specific statutory language to that effect. See, also, Cheatum, supra, and Guibord v Farmers Ins Exchange, 110 Mich App 218, 227; 312 NW2d 219 (1981), cited with approval in Mills, supra, where liability for nonresident PIP benefits under § 3163 is analyzed in terms of ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle by a nonresident rather than according to the terms of the foreign policy.
Transport secondly argues that third-party defendants are liable for Ledford’s PIP benefits un der the employer-employee priority provisions of MCL 500.3114(3); MSA 24.13114(3):
"An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.”
Transport contends that because the trip-lease agreement between Mason-Dixon and Admiral gave Admiral "exclusive possession and control” of Ledford’s rig, Admiral was Ledford’s employer at the time of the accident and its insurance carriers are therefore liable for Ledford’s personal injury benefits. However, even assuming an employer-employee relationship between Admiral and Ledford, we do not believe that § 3114(3) is applicable to the facts of this case. Ledford’s rig was neither owned nor registered by Admiral at the time of the accident. Since § 3114(3) applies only to motor vehicles owned or registered by the employer, neither Home nor Protective is liable under that priority provision.
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Smolensk, J.
In these consolidated appeals, respondents, Salem Township, Monterey Township, and Michigan State Tax Commission, appeal as of right from a judgment of the Michigan Tax Tribunal (mtt) finding that “park models” located on land owned by petitioner, Sandy Pines Wilderness Trails, Inc., should not be assessed as real property under the general property tax law. We affirm.
This case was decided on stipulated facts. They indicate that Sandy Pines is a licensed, seasonal, recreational campground. Sandy Pines owns certain real property located in respondent townships. Sandy Pines is available for use only by its members, then-guests, associate members, and members of Coast to Coast. Sandy Pines’ members do not acquire any interest in Sandy Pines’ real property other than a license to use the property. Membership in Sandy Pines allows each member to use one campsite on which the member may keep a “recreational unit,” which is defined as
a vehicle type unit primarily designed for temporary living quarters for recreational, camping, travel or seasonal use, that has its own motive power, or is mounted on, or towed by, another vehicle. The basic vehicles are: camping trailers, fifth-wheel trailers, motor homes, park models, travel trailers and truck campers.
A “park model” is defined as
a temporary dwelling or vehicle having less than 400 square feet of living area; designed as temporary living quarters for recreational, camping, seasonal or travel use; built on a sin gle chassis, mounted on wheels and drawn by another vehicle; unable to be licensed by the State of Michigan for over-the-road travel without a special permit, and able to be titled and registered as a trailer coach under the Motor Vehicle Code.
Sandy Pines does not own any of the park models located on its real property.
Section 1 of the General Property Tax Act (GPTA), MCL 211.1 et seq.-, MSA 7.1 et seq., provides “[t]hat all property, real and personal, within the jurisdiction of this state, not expressly exempted, shall be subject to taxation.” MCL 211.1; MSA 7.1. Subsection 1 of § 2 of the gpta provides in relevant part that “[f]or the purpose of taxation, real property includes all lands within the state, all buildings and fixtures on the land and appurtenances thereto, except as expressly exempted by law____” MCL 211.2(1); MSA 7.2(1). At issue in this case is subsection 1 of § 2a of the GPTA, which provides in relevant part as follows:
For purposes of section 2, a mobile home which is not covered by section 41 of Act No. 243 of the Public Acts of 1959, being section 125.1041 of the Michigan Compiled Laws [hereinafter § 41 of 1959 PA 243], . . . shall be considered real property and shall be assessed as part of the real property upon which the mobile home is located. [MCL 211.2a (1); MSA 7.2(1)(1) (emphasis supplied).[ ]
Section 41 of 1959 PA 243 provides for a $3 specific monthly tax on certain trailer coaches in lieu of any property tax imposed under the GPTA:
Each licensee shall collect and remit a specific tax of $3.00 per month, or major fraction thereof, per occupied trailer coach, which shall be a tax upon the owners or occupants of each occupied trailer coach, including trailer coaches licensed under the provisions of [the Michigan Vehicle Code (mvc), MCL 257.1 et seq.; MSA 9.1801 et seq]. , notwithstanding any provision of [the mvc], as amended, to the contrary, occupying space within the trailer coach park. The specific tax shall be in lieu of any property tax levied upon the trailer coach pursuant to the provisions of [the gpta] upon or on account of the trailer while located in the trailer coach park. The licensee of a trailer coach park shall not collect a monthly tax for any space occupied by a trailer coach accompanied by an automobile when the trailer coach and automobile bear license plates issued by any state other than this state for an accumulated period not to exceed 90 days in any 12-month period, if all the occupants of the trailer coach with accompanying automobiles are tourists or vacationists. When one or more persons occupying a trailer coach bearing a foreign license are employed or are conducting any manner of business or furnishing any service for gain within this state, there shall be no exemption from the specific tax. [MCL 125.1041; MSA 5.278(71) (emphasis supplied).]
Thus, under § 2a of the gpta, a mobile home that is an occupied trailer coach, including trailer coaches licensed under the mvc, occupying space in a trailer coach park is subject to a $3 specific monthly tax in lieu of any property tax. Conversely, a mobile home that is not such a trailer coach shall be considered real property subject to the general property tax.
In this case, respondent townships assessed Sandy Pines’ real property for the tax years 1995 and 1996. Pursuant to a directive by respondent commission, respondent townships included in these real property assessments the park models located on Sandy Pines’ land. Respondents’ rationale for assessing the park models as real property under the GPTA was that for purposes of § 2a of the GPTA the park models were not mobile homes covered by § 41 of 1959 PA 243 and thus not subject to the $3 specific monthly tax imposed on occupied trailer coaches occupying space in trailer coach parks.
Sandy Pines appealed the inclusion of the park models in the real property assessments to the mtt. Sandy Pines contended that for purposes of § 2a of the GPTA the park models were mobile homes covered by § 41 of 1959 PA 243 and thus subject to the $3 specific monthly tax imposed on occupied trailer coaches occupying space in trailer coach parks.
The MTT agreed with Sandy Pines. Noting that the statutory language at issue in this case was “very dubious” and “ripe for legislative clarification,” the MTT turned to an analysis of the legislative policy reflected by § 2a of the GPTA and § 41 of 1959 PA 243:
The Tribunal now analyzes the policy which is reflected from the above-cited statutes. The Tribunal recognizes that the exemption sought in this case would only be effective if located in a licensed park. Licensed parks would include mobile home parks, seasonal mobile home parks, and campgrounds, all of which pay an ad valorem tax on the fair market value for their land and improvements, which include roads, utilities, and out-buildings. Any tax or fee collected from residents of the licensed park would then be in addition to those ad valorem taxes already assessed and collected from the owner of the park. Thus, it would be logical and consistent for the legislature to have intended the exemption, i.e., the $3.00 per month fee, to apply to both mobile homes and park models, i.e. trailer coaches, as long as they are located in a licensed park subject to ad valorem tax for the land and improvements thereto.
Sandy Pines being a licensed campground, the MTT ruled that the park models were “exempt from taxation under MCL 211.2a; MSA 7.2(1) for the tax years 1995 and 1996.”
Respondents appeal as of right this ruling.
In the absence of fraud, judicial review of a determination by the mtt is limited to determining whether the mtt made an error of law or applied a wrong legal principle. Michigan Automotive Research Corp v Dep’t of Treasury (After Remand), 222 Mich App 227, 231; 564 NW2d 503 (1997).
Respondents contend that the mtt incorrectly interpreted § 2a of the gpta. Respondents contend that § 2a of the GPTA should be construed such that the mobile homes subject to the $3 specific monthly tax in lieu of the property tax are only those mobile homes covered by the provisions of The Mobile Home Commission Act (tmhca), 1987 PA 96, MCL 125.2301 et seq.; MSA 19.855(101) et seq., which continued without interruption the provisions of the Mobile Home Commission Act (mhca), 1976 PA 419, MCL 125.1101 et seq.; MSA 19.855(1) et seq. Respondents’ rationale for this argument is that 1959 PA 243 was repealed and replaced by the mhca and the provision of the MHCA were continued in the tmhca. Respon dents note that the tmhca does not apply to “campgrounds,”* ** defined as places “for the establishment of temporary living quarters,” but rather applies to “mobile home parks,” defined as tracts of land on which three or more mobile homes “are located on a continual, nonrecreational basis.” Respondents contend that Sandy Pines is not a “mobile home park” under the tmhca because the stipulated facts indicate the Sandy Pines’ property is not used on “a continual, nonrecreational basis.” Respondents contend that because the park models are not located in a mobile home park as that term is defined in the tmhca, the park models therefore do not qualify for the $3 specific monthly tax.
As explained in Rose Hill Center, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997):
Statutory interpretation is a question of law subject to review de novo on appeal.... The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. . . . Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.... However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate.
In this case, had the Legislature intended the construction of § 2a of the GPTA sought by respondents it could have easily drafted this statute to so provide. However, for purposes of the $3 monthly tax, the specific language of § 2a of the GPTA does not refer to mobile homes “covered by [the tmhca],” but rather plainly refers to mobile homes “covered by [§ 41 of 1959 PA 243],” which in turn refers only to occupied trader coaches occupying space in trader coach parks. The Legislature is presumed to have intended the meaning it plainly expressed. Institute In Basic Life Principles, Inc v Watersmeet Twp (After Remand), 217 Mich App 7, 12; 551 NW2d 199 (1996).
Moreover, fatal to respondents’ argument is the fact that at one time subsection 2a(l) of the GPTA did refer to mobile homes covered by the mhca:
For purposes of section 2, a mobile home which is not covered by Act No. 419 of the Public Acts of 1976, being sections 125.1101 to 125.1147 of the Michigan Compiled Laws) 1 . . . shall be considered real property and shall be assessed as part of the real property upon which the mobile home is located. [Subsection 2a(l) of 1978 PA 379, MCL 211.2a(l); MSA 7.2(1)(1).]
However, the Legislature rejected this language when it amended § 2a of the gpta to its current language in 1982. MCL 211.2a(l); MSA 7.2(1)(1), as amended by 1982 PA 539. Changes in statutory language are generally presumed to reflect a change in meaning. Michigan Automotive, supra at 232.
Thus, in light of the plain language of § 2a of the gpta and the Legislature’s previous rejection of language that would have permitted the construction of this statute sought by respondents, we reject respondents’ argument that the $3 specific monthly tax should be imposed on mobile homes located only in “mobile home parks” operated in accordance with the TMHCA.
Respondents also contend that the $3 specific monthly tax constitutes an exemption to the general property tax. Respondents note that although the MTT found the statutory language at issue in this case “very dubious,” it nevertheless construed this language to find that the park models were exempt from the general property tax. Respondents contend that in so doing, the MTT violated the rule of statutory construction that tax exemption statutes are to be strictly construed against the taxpayer.
Assuming the statutoiy language in this case constitutes a tax “exemption,” we agree with respondents that tax exemptions are to be strictly construed against the taxpayer. Perry Drug Stores, Inc v Dep’t of Treasury, 229 Mich App 453, 461; 582 NW2d 533 (1998). In Howard v Clinton Charter Twp, 230 Mich App 692, 696; 584 NW2d 644 (1998), this Court further explained:
In Detroit v Detroit Commercial College, 322 Mich 142, 148-149; 33 NW2d 737 (1948), our Supreme Court quoted the following from 2 Cooley on Taxation (4th ed), § 672, p 1403:
“An intention on the part of the legislature to grant an exemption from the taxing power of the State will never be implied from language which will admit of any other reasonable construction. . . . Exemptions are never presumed, the burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption will be strictly construed and cannot be made out by inference or implication but must be beyond reasonable doubt. In other words, since taxation is the rule, and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms; it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain; and the burden of establishing it is upon him who claims it.”
However, the rule requiring strict construction of exemptions does not permit a strained construction adverse to the Legislature’s intent. Rose Hill, supra at 32-33.
In determining the Legislature’s intent in this case, we begin by again considering the specific language of the statutory provisions at issue. Id. at 32. Here, the plain language of § 2a of the gpta provides that mobile homes covered by § 41 of 1959 PA 243 shall not be considered real property for real property taxation purposes. A mobile home is covered by § 41 of 1959 PA 243 if it is an
occupied trailer coach, . . . including trailer coaches licensed under the provisions of [the mvc], . . . occupying space within the trailer coach park.
The terms “occupied trailer coach” and “trailer coach park” are not defined in § 41 of 1959 PA 243, and the former definitions of these terms in 1959 PA 243 have been repealed. However, we note that the trailer coaches covered by § 41 of 1959 PA 243, include trailer coaches “licensed under the provisions of [the mvc].” We thus examine what constitutes a trailer coach “licensed under the provisions of [the MVC].
The mvc defines a “trailer coach” as “every vehicle primarily designed and used as temporary living quarters for recreational, camping, or travel purposes and drawn by another vehicle.” MCL 257.74; MSA 9.1874. Certainly, the park models in this case appear to fit this definition.
Under the mvc, a trailer coach is subject to registration and certificate of title requirements when it is to be moved upon a highway. See MCL 257.216; MSA 9.1916. Moreover, trailer coaches exceeding certain size or weight requirements may not be moved on a highway unless a special permit is obtained. See, gen erally, MCL 257.716 et seq.-, MSA 9.2416 et seq. Assuming that satisfaction of these requirements constitutes the licensing necessary under § 41 of 1959 PA 243, we note that the stipulated facts in this case do not indicate that the park models are titled and registered as a trailer coach under the MVC, but rather indicate only that the park models are “able to be titled and registered as a trailer coach” under the MVC. In addition, the stipulated facts indicate only that the park models cannot “be licensed by the State of Michigan for over-the-road travel without a special permit.” No clue is given concerning whether the park models at issue presently have such a special permit. Thus, although it appears that the park models fit the mvc definition of trailer coach, it is not clear whether for purposes of § 41 of 1959 PA 243 the park models are trailer coaches “licensed” under the MVC.
However, we conclude that we need not decide this issue. Again, we note that § 41 of 1959 PA 243 applies to
occupied trailer coach[es], . . . including trailer coaches licensed under the provisions of [the mvc], . . . occupying space within the trailer coach park.
“When used in the text of a statute, the word ‘includes’ can be used as a term of enlargement or of limitation, and the word in and of itself is not determinative of how it is intended to be used.” Frame v Nehls, 452 Mich 171, 178-179; 550 NW2d 739 (1996). In this case, the principal class referred to in § 41 of 1959 PA 243 is trailer coaches, to which is added a subclass of trailer coaches “licensed under the provisions of [the MVC].” Accordingly, we conclude that as used in § 41 of 1959 PA 243 the word “including” is used as a term of enlargement. See Surowitz v Pontiac, 374 Mich 597, 605-606; 132 NW2d 628 (1965). We conclude that the Legislature intended that the trailer coaches covered by § 41 of 1959 PA 243 may include, but are not limited to, trailer coaches “licensed under the provisions of [the MVC].”
Thus, for purposes of § 41 of 1959 PA 243, we are again left with the undefined terms “occupied trailer coach” and “trailer coach park.” However, simply because a phrase is undefined does not render a statute ambiguous. Marcelle v Taubman, 224 Mich App 215, 219; 568 NW2d 393 (1997). Rather, undefined words are given meaning as understood in common language, taking into consideration the text and subject matter relative to which they are employed. Id. Because the nonlegai words “occupied trailer coach” or “trailer coach park” are not defined for purposes of § 41 of 1959 PA 243, resort to a lay dictionary is appropriate. Horace v Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998); Marcelle, supra.
The word “trailer” is defined in relevant part as “a large van or wagon drawn by an automobile, truck, or tractor, used esp. in hauling freight by road” or “a vehicle attached to an automobile and used as a mobile home or place of business, usu. equipped with furniture, kitchen facilities, bathroom, etc.” Random House Webster’s College Dictionary (1992), p 1364. The word “coach” is defined in relevant part as “a large, horse-drawn four-wheeled carriage, usu. enclosed.” Random House Webster’s College Dictionary (1992), p 250. Although the word “coach” appears anachronistic in the present context, we must not treat any word in a statute as surplusage or rendered nugatory. Kiesel Intercounty Drain Drainage Dist v Dep’t of Natural Resources, 227 Mich App 327, 337; 575 NW2d 791 (1998). Rather, we must give meaning to every word of a statute. Id.
The definitions of both “trailer” and “coach” indicate that neither has its own power but rather each must be attached to and drawn by some other power source. The definition of “trailer” indicates that it may be used as a mobile home without regard to whether such use is temporary or permanent, recreational or nonrecreational, while the definition of “coach” indicates that is used for carrying people. A “mobile home” is defined as a moveable residence. Applying the meaning as understood in common language, we conclude that the Legislature intended the term “trailer coach” to mean a moveable residence attached to and drawn by some other power source. Marcelle, supra. An “occupied trailer coach” would therefore be an occupied moveable residence attached to and drawn by some other power source.
The word “park” is defined in relevant part as “a public area of land, usu. in a natural state, having facilities for recreation” or “a space where vehicles, esp. automobiles, may be assembled or stationed.” Random House Webster’s College Dictionary (1992), p 948. Applying the meaning as understood in common language, we conclude that the Legislature intended the term “trailer coach park” to mean an area of land where trailer coaches may be assembled or stationed.
Finally, the mtt concluded that § 41 of 1959 PA 243 applied to parks that are licensed. Again, we note that every word in a statute must be given meaning. Kissel, supra. Here, § 41 of 1959 PA 243 provides that the $3 specific monthly tax imposed on occupied trailer coaches occupying space in trailer coach parks must be collected and remitted by “[e]ach licensee . ...” In addition, § 41 of 1959 PA 243 provides certain circumstances under which “[t]he licensee of a trailer coach park” need not collect the $3 specific monthly tax. Generally, this Court will defer to the mtt’s interpretation of a statute that it is delegated to administer. Rose Hill, supra. Accordingly, we conclude that the mtt did not err in construing § 41 of 1959 PA 243 as applying to parks that are licensed.
In summary, we disagree with the mtt that the statutory provisions in this case are of “dubious” meaning. Rather, for purposes of § 2a of the gpta and § 41 of 1959 PA 243, we conclude that the Legislature clearly and unambiguously intended that the mobile homes subject to the $3 specific monthly tax are occupied moveable residences attached to and drawn by some other power source that are occupying space in licensed areas of land where such moveable residences may be assembled or stationed.
In this case, the stipulated facts indicate that the park models are moveable, drawn by other vehicles and used as dwellings, albeit temporarily. Strictly applying the plain statutoiy language to the stipulated facts as a matter of law, we conclude that the park models are occupied trailer coaches. Howard, supra-, Marcelle, supra at 218. The stipulated facts indicate that Sandy Pines is a licensed campground that allows members one campsite on which they may keep recreational vehicles, including park models. Again, strictly applying the plain statutory language to the stipulated facts as a matter of law, we conclude that Sandy Pines is a licensed trailer coach park. Howard, supra-, Marcelle, supra. Because the park models are occupied trailer coaches occupying space in a trailer coach park, they are therefore subject to the $3 specific monthly tax imposed under § 41 of 1959 PA 243 in lieu of the general property tax under § 2a of the GPTA. The MTT reached the right result in this case, albeit pursuant to different reasoning.
We further note that our construction of the statutes at issue in this case is in keeping with the policy behind § 2a of the GPTA. Kiesel, supra at 334. Specifically, respondents have supplied this Court with a legislative analysis concerning the Legislature’s intent in 1978 when it amended § 2a of the gpta to provide that the type of mobile homes subject to the $3 specific monthly tax were those mobile homes covered by the MHCA:
THE APPARENT PROBLEM:
The Mobile Home Commission Act regulates mobile homes in mobile home parks, and makes a distinction between mobile homes and such recreational vehicles as campers, tent trailers, etc.1 1 The General Property Tax Act exempts from the property tax mobile homes situated in mobile home parks (although it refers to them as “trailer coaches” regulated by a repealed statute),1 1 but specifies that all other mobile homes, i.e., those situated on private lots, must be considered real property and therefore assessable. Because its language is outdated and indefinite, the property tax act has caused problems for owners of licensed campgrounds. Some assessors have been adding the value of recreational vehicles (tent campers, motor homes, travel trailers) situated at campgrounds to the total value of those campgrounds, thereby causing campground owners to pay heavy property taxes. It was the obvious intention of the legislature to permit the property tacc to be levied against “permanent” habitations situated on private property, not against campers which happen to be situated on a private campground on tax day (December 31). Further, some campgrounds rent spaces to owners of recre ational vehicles who leave them at the campsites during the week and then drive home, returning to pick them up on the weekends. This service is especially attractive to persons who want to avoid using excessive amounts of gasoline because they had to haul heavy vehicles back and forth. If the law’s intention is not made clear, many campgrounds will cease offering these services, and the state will lose a great portion of its tourist business.
THE CONTENT OF THE BILL:
The bill would specify that mobile homes not regulated by the Mobile Home Commission Act are subject to the property tax. It would exempt from the tax a travel trailer or camping trailer licensed as a motor vehicle and parked at a licensed campground for no more than 180 days a year or parked on private property for storage purposes. Truck campers, defined as portable structures designed to be loaded onto or attached to the bed of a truck and used as temporary living quarters for recreation, would also be exempt. The bill would also exempt camping trailers (defined as “vehicular, portable, temporary living quarters used for recreational camping or travel”) and travel trailers (portable vehicles mounted on wheels but not requiring special permits when drawn by a car or truck, including those with fifth-wheel hitches) used in temporary recreational camping and traveling. [House Legislative Analysis, HB 4173, October 18, 1978 (emphasis supplied).]
We have already ruled in this opinion that in light of the 1982 amendment of § 2a of the GPTA it is now mobile homes that are not covered by § 41 of 1959 PA 243 that are subject to the property tax. However, what we nevertheless find relevant in the preceding legislative analysis is that the “obvious intention” of § 2a of the gfta is “to permit the property tax to be levied against ‘permanent’ habitations situated on private property . . . Our construction of § 2a of the GPTA and § 41 of 1959 PA 243 is thus consistent with this policy because the park models are temporary habitations situated not on private property, but in a licensed campground.
Finally, we reject respondents’ argument that the mtt’s decision should be reversed because the mtt made a finding of fact not supported by competent, material, and substantial evidence. Even assuming that the mtt’s passing comment about actual current assessment practices with respect to seasonal living units in campgrounds constituted a finding of fact unsupported by the record, the unsupported finding played no role in the outcome of this case. Rather, the issues in this case were questions of law consisting of the interpretation of statutes and the application of such statutes to undisputed facts. See Marcelle, supra.
Affirmed.
The townships are located in Allegan County.
The remainder of § 2a of the gpta provides as follows:
(2) As used in this section, “mobile home” does not include a travel trailer or camping trailer which is either parked in a campground licensed by this state for not more than 180 days in any calendar year, or parked upon private property, including a designated storage area of a licensed campground, for the sole purpose of storage.
(3) As used in this section, “mobile home” does not include a truck camper which is parked in a campground licensed by this state which is a portable structure, designed and constructed to be loaded onto, or affixed to, the bed or chassis of a truck, and which is used to provide temporary living quarters for recreational camping or travel.
(4) For purposes of this section, the following definitions shall apply:
(a) A travel trailer is a vehicular portable structure mounted on wheels and of a size and weight as not to require special highway movement permits when drawn by a stock passenger automobile or when drawn with a fifth wheel hitch mounted on a motor vehicle and is primarily designed, constructed, and used to provide temporary living quarters for recreational camping or travel.
(b) A camping trailer is a vehicular portable temporary living quarters used for recreational camping or travel and of a size and weight as not to require special highway movement permits when drawn by a motor vehicle.
In this case, a park model cannot be a “travel trailer,” “camping trailer,” or “truck camper” because, by stipulated definition, a park model is drawn by another vehicle and requires a special permit for highway travel. Thus, there is no dispute that subsections 2 through 4 of § 2a of the gpta do not apply in this case.
1959 PA 243, MCL 125.1001 et seq.; MSA 5.278(31) et seq., was a comprehensive act enacted for the purpose of regulating trailer coach parks. The act originally defined the terms “trailer coach” and “trailer coach park” without reference to mobile homes or mobile home parks and without regard to whether the trailer coaches were used on a continual or temporary basis or recreational or nonrecreational basis. See subsections 2(a) and 2(d) of 1959 PA 243, MCL 125.1002(a) and (d); MSA 5.278(32)(a) and (d). In 1970, the act was amended, in relevant part, to define the term “trailer coach” as including a “mobile home,” and to define the terms “trailer coach park” and “mobile home park” synonymously as places harboring trailer coaches on “a continual or nonrecreational basis . . . .” See subsections 2(a) and 2(c) of 1959 PA 243, MCL 125.1002(a) and (c); MSA 5.278(32)(a) and (c), as amended by 1970 PA 172.
In 1976, the Legislature enacted the mhca. The 1976 mhca repealed almost all of 1959 PA 243, including the definitions of “trailer coach,” “trailer coach park,” and “mobile home park.” See 1976 PA 419, MCL 125.1146; MSA 19.855(46). The only sections of 1959 PA 243 not repealed by the 1976 mhca were the section at issue in this case, § 41 of 1959 PA 243, and three other sections devoted to the collection of the $3 specific monthly tax imposed under § 41.
The 1976 MHCA expired on January 10, 1987. See § 47 of 1976 PA 419, MCL 125.1147; MSA 19.855(47), as amended by 1981 PA 168; see also OAG, 1987-1988, No 6438, p 80 (May 21, 1987). For the purpose of continuing the mhca without interruption, the Legislature enacted 1987 PA 96, MCL 125.2301 et seq.; MSA 18.855(101) et seq. (the 1987 tmhca). See 1987 PA 96, MCL 125.2349; MSA 19.855(149). Neither the 1976 mhca nor the 1987 tmhca continued the use of the term “trailer coach.” Rather, both the 1976 mhca and the 1987 tmhca have always separately defined the terms “mobile home” and “recreational vehicle.” See subsections 2(g) and 2® of 1987 PA 96, MCL 125.2302(g) and®; MSA 19.855(102)(g) and®; see also subsections 2(f) and 2(k) of 1976 PA 419, MCL 125.1102® and (k); MSA 19.855(2)® and (k).
See § 8 of 1987 PA 96, MCL 125.2308; MSA 19.855(108); see also § 8 of 1976 PA 419, MCL 125.1108; MSA 19.855(8).
See subsection 2(a) of 1987 PA 96, MCL 125.2302(a); MSA 19.855(102)(a); see also subsection 12501(l)(a) of the Public Health Code, MCL 333.12501(l)(a); MSA 14.15(12501)(l)(a).
See subsection 2® of 1987 PA 96, MCL 125.2302®; MSA 19.855(102)®; see also subsection 2(h) of 1976 PA 419, MCL 125.1102(h); MSA 19.855(2)(h).
1976 PA 419 refers to the 1976 mhca that expired on January 10, 1987, pursuant to 1981 PA 168. See note 3, swpra.
We note that the fundamental issue in this ease is the preliminary determination whether the park models should even be considered real property for purposes of the property tax. See MCL 211.2a(l); MSA 7.2(1)(1); cf. Michigan Bell Telephone Co v Dep’t of Treasury, 229 Mich App 200, 208; 581 NW2d 770 (1998).
See note 3, supra.
In other words, we conclude that in light of our preceding analysis the Legislature did not intend to limit § 41 of 1959 PA 243 to those trailer coaches coming within the definition of “trailer coach” in the mvc.
See Random House Webster’s College Dictionary (1992), p 40, defining “anachronistic” as belonging to an earlier time.
See Random House Webster’s College Dictionary (1992), p 201, defining “carriage” in relevant part as “a wheeled vehicle for conveying persons, as one drawn by horses and designed for comfort and elegance.”
See Random House Webster’s College Dictionary (1992), pp 622, 1105-1106, defining “home” and “residence.”
See Random House Webster’s College Dictionary (1992), p 904, defining “occupy” in relevant part as “to be a resident or tenant of; dwell in.”
See note 3, supra.
Before its 1978 amendment, subsection 2a(l) of the gpta provided as follows:
For all purposes of the preceding section, trailer coaches not under the provisions of Act No. 143 of the Public Acts of 1939, as amended, being sections 125.751 to 125.768, inclusive, of the Compiled Laws of 1948, and while located on land otherwise assessable as real property under this act, when such trailer coaches are used as habitations, and whether or not permanently affixed to the soil, shall be deemed to be real property and shall be assessed as part of the real property upon which they are located. [MCL 211.2a; MSA 7.2, before its amendment by 1978 PA 379 and 1982 PA 539. See 1970 CL 211.2a ]
1939 PA 143 as amended by 1941 PA 255, MCL 125.751 et seq.; MSA 5.278(1) et seq., was a comprehensive act devoted to the regulation of trailer coach parks and was repealed by 1959 PA 243. See § 97 of 1959 PA 243, MCL 125.1097; MSA 5.278.(127); see also note 3, supra.
See note 2, supra.
See 1982 PA 539; see also the previous discussion in this opinion.
The mtt noted, in relevant part, that “[a]fter reviewing the file and analyzing the briefs, it appears that many, if not a vast majority of the seasonal living units located in licensed campgrounds and seasonal mobile home parks are currently paying the $3.00 per month fee, thus are considered exempt.” | [
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Kelly, J.
The prosecution appeals as of right from orders granting motions by defendants William Connolly and Ross W. Thibaudeau to dismiss the charges against them on the basis of a finding of entrapment. The charges had been conspiracy to possess with intent to deliver marijuana against both defendants. Connolly additionally had been charged with possession of a firearm during the commission of a felony. We reverse and remand.
BACKGROUND
In May of 1996, Officer Corey Williams of the Livonia Police Department arrested Walter Short and his wife. During a subsequent interview, Short informed Williams of certain persons involved in the trafficking of narcotics. Because Short agreed to cooperate with Williams and give him the names of these persons, he was not charged with a crime. Approximately two weeks after the interview, Short contacted Williams and informed him that defendant Thibaudeau was interested in purchasing marijuana.
On June 19, 1996, Williams instructed Short to call Thibaudeau and inform him that Short knew someone who had marijuana to sell. Thibaudeau did not answer the phone. Short left a message that he should contact him about what they had previously talked about. On June 24, 1996, Williams again instructed Short to contact Thibaudeau by telephone. Short told Williams that he would use the word “machines” in place of marijuana during the conversation. Thibaudeau stated that he was interested and wanted to meet with Short to discuss the transaction. On June 26, 1996, Short called Thibaudeau again to confirm the meeting and told him that he would bring a sample of the forty-nine pounds of the marijuana so that Thibaudeau could “shop it around.”
On June 27, 1996, Short called Thibaudeau to tell him that he wanted to bring the sample to Thibaudeau’s home. He agreed, but was not there when Williams and Short arrived at the address. On July 9, 1996, Williams and Short went to Thibaudeau’s home to deliver the sample. Williams let Thibaudeau see the forty-nine pounds of marijuana and cut off a comer of the bale to let Thibaudeau shop it around to potential financiers of the deal. After this meeting, Williams began dealing directly with Thibaudeau.
On July 10, 1996, Thibaudeau paged Williams. Williams returned the page and was informed that Thibaudeau had a friend, Bill, who was interested in the entire forty-nine pounds of marijuana. Later that day, Williams and Thibaudeau met to discuss the terms of the sale. Thibaudeau stated that he needed another sample to show Bill because he had smoked the first sample. In the evening of the same day, Williams and Thibaudeau met at a local restaurant where Williams gave Thibaudeau another sample of the marijuana.
On July 11, 1996, Thibaudeau called Williams to inform him that Connolly was at his home with the money for the transaction. Williams called Short to inform him that he was going to Thibaudeau’s home. Short then went to Thibaudeau’s home to confirm that the money was there. Short called Williams to tell him the deal was in place. The defendants were then arrested by the Livonia police.
At the evidentiary hearing, the trial court concluded that the police conducted a “fishing expedition” with the forty-nine pounds of marijuana. The trial court found that the police manufactured the crime and “aggravated the illegal use of drugs” when Williams gave Thibaudeau two samples of marijuana without exercising control over the narcotics. As a result, the trial court ruled that defendants had been entrapped by reprehensible police conduct that society could not tolerate. The trial court granted defendants’ motions to dismiss.
THE ISSUE OF ENTRAPMENT
The prosecution argues that the trial court erred in concluding that defendants were entrapped because the police conduct in this case was not so reprehensible as to constitute entrapment. We agree. This Court reviews a trial court’s finding concerning entrapment under the “clearly erroneous” standard. People v Williams, 196 Mich App 656, 661; 493 NW2d 507 (1992). The trial court’s findings are clearly erroneous if, after review of the record, this Court is left with a firm conviction that a mistake has been made. People v Launsburry, 217 Mich App 358, 362; 551 NW2d 460 (1996) .
Entrapment is analyzed according to a two-pronged test, with entrapment existing if either prong is met. People v Ealy, 222 Mich App 508, 510; 564 NW2d 168 (1997) . The trial court must consider whether (1) the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances, or (2) the police engaged in conduct so reprehensible that it cannot be tolerated. Id. Defendants concede that they were not entrapped under the first prong of the entrapment test, specifically arguing that they were entrapped under the second prong of the test because of reprehensible police conduct.
Under the second prong of the test, entrapment exists where “the police conduct is so reprehensible that we cannot tolerate the conduct and will bar prosecution on the basis of that conduct alone.” Williams, supra at 663. Entrapment could also occur under the second prong of the entrapment test if the furnishing of the opportunity for a target to commit an offense “requires the police to commit certain criminal, dangerous, or immoral acts.” People v Jamieson, 436 Mich 61, 95-96; 461 NW2d 884 (1990) (Cavanagh, J., concurring).
The prosecution is correct in its assertion that undercover drug sales conducted by the police do not constitute entrapment per se. People v Butler, 444 Mich 965, 966 (1994). However, the trial court did not rely on the “reverse buy” situation alone in its findings. The prosecution is also correct in its assertion that People v Butler, 199 Mich App 474; 502 NW2d 333 (1993), was reversed by the Michigan Supreme Court. 444 Mich 965. Yet, the trial court did not state that it was relying on this Court’s decision in Butler, supra, but simply stated that, of the narcotics entrapment cases, the facts in Butler, supra, were the “most closely analogous.”
In the instant case, defendants were not immediately arrested after defendant Thibaudeau received marijuana from Officer Williams. Walter Short, Officer Williams’ informant, offered the sample in one of the telephone conversations between Short and defendant Thibaudeau. In addition, Officer Williams was persuaded to give defendant Thibaudeau a second sample to show to his buyer/money man, defendant Connolly, because defendant Thibaudeau said he had smoked the first one. Defendants alleged, and the trial court agreed, that this type of police conduct of placing controlled substances in the societal stream is highly reprehensible and cannot be tolerated. In Peo pie v Forrest, 159 Mich App 329, 336; 406 NW2d 290 (1987), we noted that
[w]e recognize that some jurisdictions have held that the government’s conduct in providing drugs is “reprehensible.” However, we refuse to adopt a similar per se rule. Such a rule would inhibit otherwise legitimate law enforcement techniques which are oftentimes the only way the police can obtain evidence in drug-related offenses.
We also accept the prosecutor’s argument that a law enforcement officer may distribute controlled substances to another person as a means of detecting criminal activity. MCL 333.7304(4); MSA 14.15(7304) (4).* 1 *4Further, we do not believe that giving two small samples from a nearly fifty-pound bale of marijuana to suspected drug traffickers in order for them to find potential buyers amounts to intolerable reprehensible conduct. To do otherwise would give drug traffickers an unfair advantage when the police engage in a “reverse buy” situation. In other words, by affirming the decision of the trial court, we would be encouraging drug dealers to insist on samples when buying narcotics in order to avoid the consequences of dealing with undercover police officers or agents.
We are not persuaded by defendants’ argument that the police failed to exercise control over the samples and thus acted in an intolerable fashion. Had the police engaged in the distribution of a substantial quantity of the marijuana intended as bait in the sting operation, we would be inclined to say the police intended “to commit certain criminal, dangerous, or immoral acts,” which could not be tolerated. Jamie-son, supra at 95-96 (Cavanagh, J., concurring). However, because the quantities involved in this case were of such a small amount and the samples were intended to be used in the routine technique of shopping the drugs around to potential drug traffickers, we will not characterize such activity as intolerably reprehensible police conduct. As such, this Court is left with a firm conviction that a mistake has been made.
Reversed and remanded.
This person, also known as “Wild Bill,” turned out to be defendant Connolly.
MCL 333.7304; MSA 14.15(7304) reads in relevant part:
(1) The requirement of licensure is waived for the following persons in the circumstances described in this section:
(e) An officer or employee of this state, or a political subdivision or agency of this state who is engaged in the enforcement of a state or local law relating to controlled substances and who is authorized to possess controlled substances in the course of that person’s official duties.
(4) a law enforcement officer exempted by this section may distribute a controlled substance to another person in the course of that officer’s duties as a means to detect criminal activity or to conduct a criminal investigation.
Paragraph 4 was added by amendment in 1994. 1994 PA 221, § 1. This appears to be the result of a codification of this Court’s decision in Williams, supra.
The parties described the samples as consisting of handful amounts cut from the comer of the bale of marijuana. | [
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Fellows, J.
This is a bill of interpleader filed to test the rights of the divorced wife of deceased and the administrator of his estate to the amount due under an insurance policy. The wife, Jennie A. Willett, was named beneficiary in the policy. She obtained a decree of divorce with custody of the minor children and allowance for their support a few weeks before decedent’s accidental death. He did not change the beneficiary although authorized so to do by the terms of the policy, nor did he take any steps in that direction.
Counsel have furnished us citation and discussion of numerous cases from other jurisdictions but the question is not an open one in this State. It was before us and settled in Ancient Order of Hibernians v. Mahon, 221 Mich. 213, Mr. Justice WlEST, speaking for the court, there said: .
“Considering this preamble and the by-laws as a part of the contract, we find nothing to prevent Mrs. Mahon from continuing as beneficiary after the divorce. Mr. Mahon was at liberty at any time to change the beneficiary. The by-laws left the designation of the beneficiary and the right to change the same at will to Mr. Mahon. He never elected to make any change of beneficiary but rather indicated by his every disclosed act that he did not care to make a change. In the absence of a controlling statute or by-law or some contract provision on the subject the designation of the wife by name as the beneficiary is not abrogated ipso facto by a subsequent decree of absolute divorce granted the wife. So far as this question is concerned there is no distinction between old line insurance where right to change the beneficiary is reserved and benefit associations where the right to change the beneficiary is a part of the law of the association.”
The decree granted Mrs. Willett did not contain the provisions required by section 11436, 3 Comp. Laws 1915. Pending the case, however, the parties entered into an agreement settling their property matters, the sixth clause of which was substantially in the language of this section. So far as fixing the rights of the parties is here concerned, it was doubtless as effective as though the provisions of the statute had been followed or the provisions of the contract inserted in the decree. No more than this can be claimed for the contract. We have examined the record in the Mahon Case and find that the decree of divorce granted Mrs. Mahon in detail settled the property rights of the parties and- contained the provision required by the statute. That case cannot be distinguished in any way from the one now before us.
The decree will be affirmed. Defendant Jennie A. Willett will recover costs of this court from defendant Fabian Willett, administrator.
Sharpe, C. J.', and Bird, Flannigan, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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NORTH, J.
Suit at law was instituted in the superior court of Grand Rapids against the plaintiffs herein by one John Stanks. There was a cross-action by Walter Ashman. After plaintiff had taken a portion of his proofs, his. counsel consented in open court to a nonsuit without prejudice; and the attorney for the defendants, Walter Ashman and Frances Ashman, consented to a nonsuit of the cross-declaration without prejudice. Thereupon the trial judge announced in •open court “that said actions would be nonsuited without prejudice.” On the same day (August 30, 1927), the court signed a judgment prepared by plaintiff’s counsel which, omitting the formal portions, is as follows:
“The trial of the above entitled cause having opened in due form, all parties being, present by their respective attorneys, and the plaintiff by his attorney having in open court before closing his case consented to a nonsuit of his action against all of the defendants ; and the defendants, Walter Ashman and Frances Ashman, his wife, by their attorney, in open court having consented to a nonsuit of their cross-declaration in the above entitled cause; it is hereby ordered that said plaintiff’s action against all the defendants and said defendants, Walter Ashman and Frances Ash-man’s cross-action be and the same are hereby non-suited without costs to either party. It is further hereby certified that there was reasonable cause for making Michael Garvey, so nonsuited, a defendant in the above action and he, therefore, shall not be and is not entitled to recover costs against the plaintiff.”
Plaintiffs herein assert (and this is not denied) they did not know at the time that, incident to the dismissal 'of the litigation, it was provided it was “without costs to either party,” or that the court included in the record his certificate as to there having been reasonable cause for making Michael Garvey a defendant. See section 13693, 3 Comp. Laws 1915. Seven days after the entry of the above judgment, the defendants made an application to the clerk of the court to have costs taxed against the plaintiff. It was then they first learned that judgment was “without costs to either party.” The clerk denied defendants’ motion for costs. The defendants “appealed to the judge of the court from the refusal of the clerk to tax costs in behalf of said defendants * * * and moved the court to vacate and set aside its order made in which order defendants were denied costs, and to enter an order allowing defendants to tax costs.” Upon hearing this motion the trial judge held that the defendants were not entitled to recover costs, and their motion to vacate was denied. After the hearing of the above motion and before the entry of the order denying the same, the plaintiffs caused to be filed in this court the petition for mandamus now under consideration, wherein they
“pray that a writ of mandamus may issue, commanding said Honorable Leonard D. Verifier (the judge of said court) to set aside and vacate his order made and entered on the 30th day of August, 1927, in which order it was recited that relators are not entitled to recover their costs and the action of said John Stanks against relators be and the same is hereby nonsuited.”
Evidently the scope of this prayer is much broader than the plaintiffs herein intend. It asks that the whole judgment entered on August 30, 1927, be vacated. Obviously such relief could be considered only on writ of error or case-made; and not incident to mandamus proceedings. Evidently all the plaintiffs desire is that this court review by mandamus that portion of the final judgment of the superior court wherein costs were denied to the defendants in the original suit. This cannot be done. The order was a final judgment. Mandamus is the proper remedy by which to determine what items of costs shall be allowed or disallowed after a. judgment for costs has once been rendered. But it has long been the' established law of this State that an erroneous judgment as to costs “should be reviewed on error (or case-made), and in no other way.” Schmidt v. Wayne Circuit Judge, 136 Mich. 658; People v. Wayne Circuit Judge, 14 Mich. 34; Haney v. Muskegon Circuit Judge, 101 Mich. 392; Wood v. Wayne Circuit Judge, 150 Mich. 71; In re Colburn’s Estate, 153 Mich. 206 (18 L. R. A. [N. S.] 149, 126 Am. St. Rep. 479).
The writ is denied, with costs.
Flannigan, C. J., and Fellows, Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, C. J.
The charter of the city of Detroit (tit. 6, chap. 4, § 26) provides:
“All city taxes upon personal property shall become on said fifteenth day of July a lien thereon and so remain until paid, and no transfer of the personal property assessed shall operate to divest or destroy such lien.”
The taxes upon the personalty in what are known as the Lewis Cass apartments for the years 1924 and 1925 were unpaid on June 1,1926. Demand was made therefor, with threat of levy. The plaintiff paid, and in this action was permitted to recover the amount so paid. The city reviews the judgment entered by writ of error.
The only question presented is whether the tax lien takes precedence over a chattel mortgage executed and filed before the lien attached. This question has, we think, been squarely decided by this court in Lucking v. Ballantyne, 132 Mich. 584. It was there held (quoting from the syllabus):
“A charter provision that all city taxes upon personal property shall be a lien thereon until paid, and no transfer of the property assessed shall operate to divest or destroy it, does not give the city a prior lien for taxes over the lien of a chattel mortgage given before the assessment.”
The question was discussed at length by Mr. Justice Carpenter, and the conclusion reached as stated. The city counselor insists that this decision “is in conflict with later holdings of this court and other courts on the same question involved in that case.” We do not so find. Crawford v. Koch, 169 Mich. 372, is, we think, clearly distinguishable. The Lucking Case has been the law of this State since 1903. It states a rule of property by which purchasers may be guided. It also appears that the city charter was thereafter amended, but no change made in the provision above quoted. We have a right to assume that with it the city authorities were content.
The judgment is affirmed.
Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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Per Curiam.
Defendant appeals by leave granted the circuit court’s order, which affirmed the district court’s decision finding defendant responsible for operating an overweight vehicle in violation of MCL 257.722 and 257.724, a civil infraction. We reverse.
On January 14, 2008, defendant hauled a load of pine chips with a tractor-trailer on Maple Valley Road. Defendant had three of his trailer axles raised for approximately two miles through a series of curves. Defendant testified that it would have been impossible to negotiate the curves, at any speed, with his axles down because the dropped axles created too much resistance to make the curves. He asserted that on a prior occasion he forgot to lift the axles on this stretch of road and ended up driving in the other lane, almost in the gravel. Defendant asserted that he could not lower the axles in the straight sections between the curves because it took too long for the air compressor to pump air into the system that supported the axles and the brakes. He testified that his axles were down after he negotiated the curves and when he was stopped by the police officer who had been following him. Defendant alleged that his load was not overweight when all the axles were down. The police officer concluded that five of the six axles were overweight. The officer testified that he weighed the vehicle with the axles in the positions they were in when traveling on the curves in the roadway.
Following a formal hearing, defendant was found responsible for the civil infraction and fined for the violation. The circuit court affirmed the violation, albeit on other grounds. We granted defendant’s application for leave to appeal. The prosecution has not filed a brief in opposition to the appeal.
MCL 257.724a provides in relevant part:
(1) The axle weight requirements of this chapter do not apply to a vehicle equipped with lift axles during the period in which axles are raised to negotiate an intersection, driveway, or other turn and until the lift axles are fully engaged after the period of time or the distance necessary to negotiate that intersection, driveway, or other turn.
(2) If a vehicle is to be weighed to determine whether the vehicle is being operated in violation of this act or a rule promulgated under this act or of a local ordinance substantially corresponding to this act or a rule promulgated under this act and the vehicle is equipped with lift axles that have been raised to allow the vehicle to negotiate an intersection, driveway, or other turn, the vehicle shall be weighed only after the lift axles have been fully lowered and are under operational pressure as provided in subsection (1).
Statutory construction issues present questions of law reviewed de novo. People v Keller, 479 Mich 467, 473; 739 NW2d 505 (2007). When interpreting a statute, courts must ascertain the legislative intent by examining the words of the statute. People v Plunkett, 485 Mich 50, 58; 780 NW2d 280 (2010). Terms in a statute are to be construed reasonably in accordance with their plain and ordinary meaning. People v Yamat, 475 Mich 49, 56; 714 NW2d 335 (2006).
The word “turn” when used as a noun is defined as “a movement of partial or total rotation: a turn of the handle,” or “a place where a road, river, or the like turns[.]” Random House Webster’s College Dictionary (2000), p 1410. In the present case, the police officer testified that he followed defendant through a series of curves in the roadway. Additionally, defendant submitted photographs demonstrating that there were eight curves in the roadway with signs warning drivers of the curves and the applicable speed limit. Defendant reported that the distance between each sign ranged from Vs of a mile to 2h of a mile. Therefore, the axle-weight requirements were inapplicable during the period in which the axles were raised to negotiate the curves in the roadway. MCL 257.724a(l). That is, defendant had to turn the vehicle to negotiate the changes in the roadway. It is important to note that the prosecution did not present any testimony to contradict defendant’s assertions that it was necessary to raise axles to negotiate this stretch of the roadway or regarding the time to restore compression in the braking system. Because defendant raised his axles “to allow the vehicle to negotiate [a] . . . turn,” the officer should have weighed defendant’s vehicle with the axles down. MCL 257.724a(2). In light of the fact that the officer weighed the vehicle with the axles raised, as they had been while defendant negotiated the curves, contrary to MCL 257.724a(2), defendant’s citation was invalid and must be dismissed.
Reversed.
In light of our conclusion regarding the statutory language, we need not address defendant’s challenges to the circuit court’s other rulings. | [
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] |
Murphy, C.J.
Defendants Láveme and Marilyn Dutkavich appeal as of right the trial court’s order granting summary disposition in favor of plaintiff, Robert A. Thomas, with respect to his action to quiet title to real property, a condominium unit, and his claim of slander of title. The order granting summary disposition in favor of Thomas also effectively dismissed a counterclaim filed by the Dutkaviches. This appeal requires us to interpret the Michigan judgment lien act (MJLA), MCL 600.2801 et seq., and to determine whether a judgment lien survives and can be foreclosed on after the judgment debtor’s conveyance of the encumbered real property to a vendee who had record notice of the lien, but no available closing proceeds were distributed to the judgment creditor in whole or partial satisfaction of the underlying judgment. The Dutkaviches, who were the underlying judgment creditors, had sought to levy or foreclose on the property, which Thomas had purchased from the underlying judgment debtor, Steve Pelletier, without any proceeds going to pay off the judgment lien despite sufficient funds being available to discharge the lien. The trial court found that Thomas was not at fault for Pelletier’s failure to use the closing proceeds to pay off the Dutkaviches, and the court ordered the discharge of the judgment lien. We hold that the MJLA, while not permitting the foreclosure of the judgment lien and not giving Thomas any statutory obligation to have made payment to the Dutkaviches, did require that the judgment lien remain attached to the property. We also hold, however, that outside the MJLA, the Dutkaviches may be able to levy on the property pursuant to MCL 600.6018, which is the traditional method of executing on realty to satisfy a judgment. A remand is necessary to explore the issue of levying pursuant to MCL 600.6018. Therefore, the trial court erred by discharging the judgment lien and erred by not considering MCL 600.6018. Consistently with our holding, the Dutkaviches’ counterclaim seeking to hold Thomas personally liable was properly dismissed; Thomas’s slander-of-title claim should have been dismissed; Thomas’s quiet-title count should have been dismissed with regard to his request that the court discharge the judgment lien; and, with regard to levy and foreclosure under the quiet-title count, Thomas was entitled to the favorable ruling relative to the MJLA, but levying under MCL 600.6018 needs to be examined on remand. Accordingly, we affirm in part, reverse in part, and remand.
I., factual and procedural background
On December 6, 2004, in the Delta County Circuit Court, the Dutkaviches obtained a judgment against Steve Pelletier in the amount of $29,183. A warranty deed, executed on December 29, 2006, and recorded on January 24, 2007, indicates that Pelletier purchased the real property at issue, a condominium unit located in Schoolcraft County, from Miller Point Development, L.L.C. Pelletier is the only vendee named in the warranty deed. A future-advances mortgage, executed on December 29, 2006, and recorded on February 7, 2007, reflects that Pelletier, along with his wife Kelly Jo Pelletier, obtained a mortgage on the property from the State Savings Bank of Manistique (mortgagee bank).
On July 20, 2007, the Dutkaviches filed a notice of judgment lien with the register of deeds office in Schoolcraft County with respect to the condominium unit. The notice provided that the balance owing on the judgment had increased to $33,368. On September 12, 2007, a real estate closing was held in which Steve and Kelly Jo Pelletier executed a warranty deed conveying the property to Thomas. The warranty deed was recorded the following day. The mortgage on the property held by the mortgagee bank, with the Pelletiers as mortgagors, was discharged the day before the closing. According to the warranty deed and the closing statement, the sale price for the property was $53,000. The settlement information contained in the closing statement indicates that, after taking into account the payment of taxes, title insurance, and closing fees, the Pelletiers were paid $51,784. None of the proceeds from the sale were distributed to the Dutkaviches; there was no effort to satisfy the judgment lien despite the undisputed fact that the notice of judgment lien had been recorded before the closing. The trial court record does not include any documentary evidence concerning conversations at the closing or how the closing was conducted, let alone evidence revealing why the parties decided to proceed without designating a payment for the Dutkaviches. The closing documentation reflects that Fox Real Estate, Inc., was involved in the transaction.
On January 18, 2008, pursuant to a request by the Dutkaviches, the Delta Circuit Court entered an order to seize property relative to the judgment, which now had grown to $33,556, given accruing interest and postjudgment costs. A report of collection activity under the order to seize property reveals that a deputy sheriff was unable to locate any personal property held by Steve Pelletier that exceeded the statutory exemption. About a week later, in February 2008, a notice of levy on real estate was executed and recorded by a deputy sheriff with the Schoolcraft County Sheriffs Department.
On March 2, 2009, Thomas filed the instant quiet-title action in the Schoolcraft Circuit Court against the Dutkaviches and the Schoolcraft County Sheriff (SCS). Count I of the complaint, which pertained to all defendants, alleged that Thomas had purchased the property from the Pelletiers, that Steve Pelletier, but not his wife Kelly Jo, was subject to the Delta Circuit Court judgment obtained in favor of the Dutkaviches; that , the Dutkaviches had recorded the notice of judgment lien before the sale of the property to Thomas; and that the Dutkaviches, through the efforts of a deputy sheriff employed by the SCS, had recorded the notice of levy on real estate following the sale. Plaintiff further alleged, as part of count I, that he owned the property free and clear of the Dutkaviches’ interest and that, under MCL 600.2819, there could be no foreclosure on the lien and Thomas could not be held liable to the Dutkaviches. MCL 600.2819 provides:
There is no right to foreclose a judgment lien created under this chapter. At the time the judgment debtor makes a conveyance, as that term is defined in section 35 of 1846 RS 65, MCL 565.35, of, sells under an executory contract, or refinances the interest in real property that is subject to the judgment lien, the judgment debtor shall pay the amount due to the judgment creditor, as determined under [MCL 600.2807(3)], to the judgment creditor.
According to Thomas, because the notice of levy was recorded after he purchased the property and after Steve Pelletier no longer held any interest in the property, the notice of levy was invalid under the MJLA. In count II of the complaint, Thomas alleged slander of title against the Dutkaviches, claiming that they had refused to discharge the judgment lien despite his requests for discharge and that their refusal constituted malice. In his prayer for relief, Thomas asked the trial court to declare the judgment lien and notice of levy void and order them discharged, to declare the warranty deed conveying the property to Thomas as superior to any interest held by the Dutkaviches, and to compensate Thomas for the damages and costs that he had incurred as a result of the slander of title.
The Dutkaviches filed a counterclaim, alleging that Thomas had failed to direct a payment to the Dutkaviches from the money being paid by Thomas to the Pelletiers at the closing, as was necessary to discharge the judgment lien. The Dutkaviches maintained that Thomas had paid the Pelletiers $51,784 at the closing and, therefore, there was more than enough money available from which Thomas could and should have paid the Dutkaviches. This claim sought a money judgment against Thomas.
Thomas moved for summary disposition, presenting an argument that paralleled the allegations in his complaint, as previously set forth. He also argued that it was improper for the Dutkaviches to have recorded the notice of judgment lien when the judgment was solely against Steve Pelletier and that property held as a tenancy by the entirety cannot be subject to a lien and levy on the basis of a judgment entered against only one of the spouses. The Dutkaviches responded by contending that the amount due under the judgment lien was not paid to them upon sale of the property as required by the MJLA. According to the Dutkaviches, discharge of the judgment lien would only be proper if the lien had been paid in full from the proceeds of the real estate transaction between Thomas and the Pelletiers. Therefore, Thomas was not entitled to summary disposition. The Dutkaviches also argued that the property had previously been deeded to Steve Pelletier in his name only, and not to Steve and Kelly Jo Pelletier, and thus Thomas’s argument premised on the existence of a tenancy by the entirety was inapplicable. Finally, the Dutkaviches asserted that they could levy on the property pursuant to MCL 600.6018, which is the traditional method to execute on realty. The SCS also moved for summary disposition, arguing in part that, when filing the notice of levy, he was acting in accordance with various statutory requirements and was acting in good faith and without malice.
At the hearing on the motions for summary disposition, the trial court initially entered a stipulated order as between Thomas and the SCS that discharged the notice of levy and resulted in the dismissal of the SCS from the case. .The trial court then proceeded to hold that Thomas had no duty under MCL 600.2819 to make sure that the Dutkaviches were paid out of the sale proceeds. The court, concluding that Thomas was not at fault, granted his motion for summary disposition without any mention of MCL 600.6018. Subsequently, an order was entered that provided that Thomas’s motion for summary disposition was granted, the notice of judgment lien was discharged, and the order could be recorded with the register of deeds to effectuate the discharge.
II. ANALYSIS
A. APPELLATE ARGUMENTS
The Dutkaviches argue that payment in full is a prerequisite to discharging a judgment lien under the MJLA and there was no payment here whatsoever. They contend that the judgment lien was properly recorded before the Pelletiers sold the property to Thomas, that Thomas thus had constructive notice of the lien and was not a bona fide purchaser for value, and that the judgment lien was an appropriate cloud on Thomas’s title, given that Thomas had failed to demand that the lien be discharged with proceeds from the sale. The Dutkaviches, while acknowledging that their underlying judgment was entered solely against Steve Pelletier, also maintain that the judgment lien properly attached to the property because Pelletier had purchased the property in his own name and the property was not held as a tenancy by the entirety. Next, the Dutkaviches assert that they could levy on the property pursuant to MCL 600.6018, even if they could not foreclose under the MJLA. Finally, the Dutkaviches argue that equity requires that they be paid the amount due on the judgment.
Thomas contends that MCL 600.2819 requires the judgment debtor alone to pay the judgment creditor with proceeds from a sale of the property in order to satisfy the judgment; there is no such duty with respect to the purchaser of the property, regardless of whether the purchaser has constructive notice of the judgment lien. Thomas also contends that equity does not favor the Dutkaviches, as they had available the remedy of foreclosing on the property before the sale, yet they failed to act until after Thomas acquired his interest in the condominium unit. Thomas further argues that MCL 600.6018 is not applicable because the levy was recorded after he purchased the property. Finally, and in the alternative, Thomas maintains that the judgment lien did not properly attach to the property because the underlying judgment was solely against Steve Pelletier and the lien attempted to encumber property in which Kelly Jo Pelletier had a dower interest.
B. STANDARD OF REVIEW
This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Manuel v Gill, 481 Mich 637, 643; 753 NW2d 48 (2008). We also review de novo issues of statutory construction. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).
C. PRINCIPLES OF STATUTORY CONSTRUCTION
In McCormick v Carrier, 487 Mich 180, 191-192; 795 NW2d 517 (2010), our Supreme Court recited the well-established principles of statutory construction:
The primary goal of statutory construction is to give effect to the Legislature’s intent. This Court begins by reviewing the language of the statute, and, if the language is clear and unambiguous, it is presumed that the Legislature intended the meaning expressed in the statute. Judicial construction of an unambiguous statute is neither required nor permitted. When reviewing a statute, all non-technical words and phrases shall be construed and understood according to the common and approved usage of the language, and, if a term is not defined in the statute, a court may consult a dictionary to aid it in this goal. A court should consider the plain meaning of a statute’s words and their placement and purpose in the statutory scheme. Where the language used has been subject to judicial interpretation, the legislature is presumed to have used particular words in the sense in which they have been interpreted. [Citations and quotation marks omitted.]
D. DISCUSSION
The MJLA was enacted pursuant to 2004 PA 136 and made effective on September 1, 2004. Under the MJLA, a “judgment” is defined as including “a final judgment” of a “court of record of this state.” MCL 600.2801(a)(i). Thus, the judgment obtained by the Dutkavich.es against Steve Pelletier in the Delta Circuit Court qualified as a judgment for purposes of the MJLA and could be enforced by the recording of a judgment lien on appropriate property. A “judgment lien” is defined as “an encumbrance in favor of a judgment creditor against a judgment debtor’s interest in real property, including, but not limited to, after acquired property.” MCL 600.2801(c). If a judgment creditor records a notice of judgment lien with the register of deeds for the county in which the real property is located, the judgment lien attaches to the judgment debtor’s interest in the real property. MCL 600.2803. “The judgment lien attaches at the time the notice of judgment lien is recorded or, for after acquired property, at the time the judgment debtor acquires the interest in the property.” Id. The notice of judgment lien must conform to the technical requirements of MCL 600.2805(1) and (2) and must be served on the judgment debtor in accordance with either MCL 600.2805(3) or (4).
We shall first address the argument that the judgment lien never properly attached to the property because the judgment was against Steve Pelletier but the lien was recorded against property in which Kelly Jo Pelletier held a dower interest. “A judgment lien does not attach to an interest in real property owned as tenants by the entirety unless the underlying judgment is entered against both the husband and wife.” MCL 600.2807(1). There is no dispute that the Delta County judgment was entered solely against Steve Pelletier and that the warranty deed reflecting a conveyance of the property listed only Steve Pelletier as the purchaser or vendee.
“[A]n estate by entireties refers to a form of co-ownership held by husband and wife with right of survivorship[.]” Lilly v Schmock, 297 Mich 513, 517; 298 NW 116 (1941). “Our longstanding common law provides that, when a deed is conveyed to a husband and wife, the property is held as a tenancy by the entirety.” Walters v Leech, 279 Mich App 707, 711; 761 NW2d 143 (2008) (emphasis added). A tenancy by the entirety may be created by a deed conveying property to a husband and wife “jointly,” by a deed conveying property to a husband and wife as “joint tenants,” or by a deed conveying property to a husband and wife “jointly and not as tenants in commonf.]” 1 Cameron, Michigan Real Property Law (3d ed), § 9.13, p 327, citing Goethe v Gmelin, 256 Mich 112; 239 NW 347 (1931), Dutcher v Van Duine, 242 Mich 477; 219 NW 651 (1928), and Hoyt v Winstanley, 221 Mich 515; 191 NW 213 (1922). Kelly Jo Pelletier was not named in the warranty deed that conveyed the property from Miller Point Development, L.L.C., to Steve Pelletier; therefore, no tenancy by the entirety was created. And there is no deed showing that Steve Pelletier ever subsequently conveyed the property to himself and Kelly Jo jointly. Simply because Kelly Jo Pelletier executed the warranty deed, along with Steve Pelletier, with respect to the later conveyance to Thomas does not mean that the property had been held by Steve and Kelly Jo as tenants by the entirety. Rather, this was likely done because “the statute of frauds requires both the seller and his wife with a dower interest to sign a purchase agreement in order to create a valid contract for the sale of land.” Slater Mgt Corp v Nash, 212 Mich App 30, 32; 536 NW2d 843 (1995).
With respect to the dower-interest argument, “dower is a longstanding historical right that preexisted even the formation of our nation and that has become embedded in Michigan . . . law.” In re Miltenberger, 482 Mich 901, 904 (2008) (CORRIGAN, J., concurring). MCL 558.1 provides, “The widow of every deceased person, shall be entitled to dower, or the use during her natural life, of V3 part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof.”
“Dower may be relinquished or conveyed as provided by law.” Const 1963, art 10, § 1. This constitutional provision “makes it clear that the drafters of the Michigan Constitution intended to recognize dower as a legitimate property interest.” In re Miltenberger Estate, 275 Mich App 47, 56; 737 NW2d 513 (2007). The right of dower is a contingent estate that becomes vested on the death of the husband and is to be protected before and after vesting. Oades v Std S & L Ass’n, 257 Mich 469, 473; 241 NW 262 (1932). When a husband owns an estate of inheritance in real estate, “his wife has a dower interest in that property.” Slater Mgt, 212 Mich App at 31. “The dower interest attaches on marriage and applies to land the husband owned before marriage and brings into the marriage as well as land acquired during the marriage.” 1 Cameron, § 8.3, p 287. No sole act of a husband can prejudice his wife’s right to dower. Oades, 257 Mich at 473. A husband cannot deprive his wife of her dower rights, and she can only be divested of those rights by an act of the state or by or in consequence of her own voluntary actions. Greiner v Klein, 28 Mich 12, 17 (1873).
The Legislature referred only to “tenants by the entirety” in MCL 600.2807(1) without any mention of a wife’s dower interests or rights. Given the extensive statutory and constitutional history of dower rights, we cannot deem the failure by the Legislature to include a reference to dower interests in the MJLA as an oversight but rather as a conscious decision to only protect tenancies by the entirety from the filing of a judgment lien when one spouse was not a judgment debtor. If we were to hold that a judgment lien under the MJLA cannot attach to property in which a wife has only a dower interest when the wife was not subject to the underlying judgment, we would improperly be reading language into the statute that simply does not exist. 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.”).
Furthermore, we fail to see how the recording of the judgment lien on the property, in and of itself, deprived or divested Kelly Jo Pelletier of any dower interest that she held under the law. There was no attempt to foreclose on the judgment lien before the sale of the property to Thomas, and we ultimately hold in this opinion that the judgment lien cannot be foreclosed on under the MJLA, which is consistent with MCL 600.2819. Also, Kelly Jo Pelletier participated in the Pelletier-Thomas closing and executed the warranty deed conveying the property, thereby voluntarily extinguishing or relinquishing her dower interest. Const 1963, art 10, § 1; In re Stroh Estate, 151 Mich App 513, 516; 392 NW2d 192 (1986) (“No contract of sale or conveyance by a husband without his wife’s signature will operate to divest her of her dower.”). Indeed, even when we examine the issue at the point in time at which the judgment lien attached to the property, which was before the sale to Thomas, the worst case scenario from Mrs. Pelletier’s perspective would be a sale or refinancing of the property resulting in a payment to the Dutkaviches under MCL 600.2819. However, she could fully protect her dower interest in either circumstance, as the sale or refinancing could not come to fruition until she was in full agreement with the terms of the transaction and executed the necessary documentation. In sum, we are not prepared to find a divestiture of a dower interest on the basis of the attachment of a judgment lien to property with respect to which a wife has a dower interest, but no liability on the underlying judgment, and when payment to a judgment creditor on a sale or refinancing is the only possible consequence flowing from the lien. Accordingly, the judgment lien here properly attached to the property regardless of any dower interest held by Kelly Jo Pelletier.
Next, we hold that the judgment lien must remain attached to the property and could not have been discharged by the sale of the property to Thomas. As indicated previously, MCL 600.2819 provides that when a judgment debtor sells an interest in the property subject to the judgment lien, “the judgment debtor shall pay the amount due to the judgment creditor, as determined under [MCL 600.2807(3)], to the judgment credi tor.” (Emphasis added.) We first note that, under the clear and unambiguous language of MCL 600.2819, the obligation or duty to pay the judgment creditor from real estate sale proceeds rests solely with the judgment debtor, here Steve Pelletier. Therefore, Thomas had no such obligation, and the Dutkavich.es’ counterclaim seeking to hold him liable on a money judgment fails. The MJLA reflects that the Legislature did not specifically contemplate a judgment debtor capable of making the required payment to the judgment creditor under MCL 600.2819 but failing to do so, let alone directly address the resulting status of the judgment lien upon the failure. However, various statutes within the MJLA aside from MCL 600.2819 effectively answer these questions.
With respect to a sale or refinancing of the property, MCL 600.2807(3), which is cross-referenced in MCL 600.2819, provides:
If property subject to a judgment lien recorded under this chapter is sold or refinanced, proceeds of the sale or refinancing due to a judgment creditor are limited to the judgment debtor’s equity in the property at the time of the sale or refinancing after all liens senior to the judgment lien, property taxes, and costs and fees necessary to close the sale or refinancing are paid or extinguished.
Therefore, MCL 600.2807(3) contemplates situations in which a judgment debtor sells his or her property, but because of the limited equity in the property, the judgment lien may not be fully satisfied. When the funds available following a sale are insufficient to entirely satisfy the judgment lien, the MJLA requires that MCL 600.2807(3) be read in conjunction with MCL 600.2811, which provides in relevant part:
If payment on a judgment lien is made from the judgment debtor’s equity as described in [MCL 600.2807(3)] and is not payment in full of the amount due on the lien, the judgment creditor or the judgment creditor’s attorney shall record a partial discharge of judgment lien for the amount paid. [Emphasis added.]
Accordingly, even after a successful conveyance of the property to a vendee who takes fee simple title and the payment of some monies to the judgment creditor, if an outstanding balance remains on the judgment lien, the lien is only partially discharged and effectively continues to be an encumbrance on the property despite the new ownership. Furthermore, MCL 600.2813(2) also addresses a partial payment of the judgment lien when the equity in the property falls short of the amount owing on the lien:
If a judgment debtor has paid a judgment in full or has made a partial payment from equity as described in section [MCL 600.2807(3)], has sent a request [for discharge] under subsection (1), and is unable, after exercising due diligence, to locate the judgment creditor or the judgment creditor’s attorney, the judgment debtor may record an affidavit that complies with this subsection with the register of deeds with whom the judgment lien is recorded. The judgment debtor shall state in the affidavit that the judgment debtor sent a request under subsection (1) to the judgment creditor or the judgment creditor’s attorney and shall attach to the affidavit a copy of a written instrument that evidences payment of the judgment and a copy of the receipt for the certified mailing of the request. Recording the affidavit, written instrument, and receipt discharges the judgment lien completely or, if payment is made from the judgment debtor’s equity as described in [MCL 600.2807(3)] and is not payment in full of the amount due on the lien, partially to the extent of the amount paid. [Emphasis added.]
Again, this language contemplates the continued attachment of a judgment lien on property despite new ownership when the lien has not been fully discharged. The necessary corollary is that, when no payment whatsoever has been made to the judgment creditor from available real estate sale proceeds, as was the case here, the judgment lien remains attached to the property and is not dischargeable except upon full payment. If partial payment does not result in the full discharge of a judgment lien, no payment at all certainly cannot result in a discharge.
Although this outcome may appear unfair to Thomas at first glance, it is required by the statutory language and, moreover, Thomas had, at a minimum, constructive notice of the recorded judgment lien. See Ameriquest Mortgage Co v Alton, 273 Mich App 84, 93-94; 731 NW2d 99 (2006). Despite the notice, Thomas decided to proceed with the closing without demanding that payment be made to the judgment creditors, the Dutkaviches, so that the lien would be extinguished. Although the onus was on Steve Pelletier under MCL 600.2819 to make the payment to the Dutkaviches, Thomas, as the purchaser, certainly had the ability to direct and dictate where his funds would go as part of the closing settlement, at least to the extent that he could have chosen to walk away from the transaction had it not met with his satisfaction. This might explain the Legislature’s decision to allow judgment liens to remain attached to conveyed property when only partial payment on the lien was made. In such a scenario, the purchaser, having constructive notice of the lien, would have the ability and choice to not proceed with the closing and, if the purchaser decided to proceed, he or she would do so knowing that the judgment lien remained a cloud on the title and could be problematic. In a modern real estate transaction, it is difficult to conceive, given the general demands and requirements of new mortgagees and title insurers and escrow agents, that a transaction would be completed and closed absent full discharge of outstanding liens, yet it did occur here.
Our conclusion is further supported by MCL 600.2809. Under MCL 600.2809(1) through (4), a judgment lien expires five years after the date that it was recorded, unless the judgment itself expires beforehand, at which time the lien would also expire, or unless the lien is rerecorded, which a judgment creditor may only do once, not less than 120 days before the expiration date of the initial judgment lien. MCL 600.2809(6) addresses the extinguishment of a judgment lien, providing:
A judgment lien is extinguished when 1 or more of the following are recorded with the office of the register of deeds where the judgment lien is recorded:
(a) A discharge of judgment lien signed by the judgment creditor or the judgment creditor’s attorney.
(b) A certified copy of a satisfaction of judgment that has been filed with the court that issued the judgment.
(c) A certified copy of a court order that discharges the judgment lien.
(d) A copy of the judgment debtor’s discharge in bankruptcy issued by a United States bankruptcy court and a copy of the bankruptcy schedule listing the judgment debt. This subdivision does not apply if an order entered in the judgment debtor’s bankruptcy case determining that the debt is nondischargeable is recorded with the register of deeds.
Aside from the circumstance described in MCL 600.2809(6)(c), none of these events occurred in this case. With respect to MCL 600.2809(6)(c), there is of course the trial court’s order discharging the judgment lien. However, this provision cannot allow a judgment lien to be and remain discharged simply because the trial court so ordered when the order was subject to appeal and did not otherwise comply with the MJLA, as we have held. Accordingly, there is no statutory basis to discharge the judgment lien.
Despite the fact that the judgment lien must remain attached to the condominium unit, it is clear that the MJLA does not allow foreclosure of the lien. As indicated, MCL 600.2819 provides that “[t]here is no right to foreclose a judgment lien created under this chapter.” The Legislature could not have been any clearer on the subject. Thus, a purchaser may decide to proceed with a real estate transaction when the judgment lien has not been fully discharged, assuming that new mortgagees and title insurers allow this to occur, given that the lien cannot be foreclosed on. But doing so could create problems for the purchaser in the future if he or she seeks to sell the property, considering that a subsequent purchaser would likely be hesitant to buy clouded property. We do note that such a subsequent sale would not implicate MCL 600.2819 and the need to pay the judgment creditor because MCL 600.2819 only applies when the “judgment debtor makes a conveyance.” (Emphasis added.)
The Dutkaviches present an argument under MCL 600.6018, claiming that this provision, which is not part of the MJLA, allows levying on the property if the conveyance between Thomas and the Pelletiers was fraudulent. MCL 600.6018 provides as follows:
All the reed estate of any judgment debtor, including, but not limited to, interests acquired by parties to contracts for the sale of land, whether in possession, reversion or remainder, lands conveyed in fraud of creditors, equities and rights of redemption, leasehold interests including mining licenses, for mining ore or minerals, but not including tenancies at will, and all undivided interests whatever, are subject to execution, levy and sale except as otherwise provided by law. [Emphasis added.]
This provision is part of chapter 60 of the Revised Judicature Act (RJA), MCL 600.6001 et seq., and traditionally governed the collection of judgments and executions against real property. George v Sandor M Gelman, PC, 201 Mich App 474, 477; 506 NW2d 583 (1993). “Under the scheme provided in chapter 60, the creditor must first obtain a judgment for the amount owed, then execute that judgment against the debtor’s property.” Id. We note that the MJLA provides that “[a] judgment lien is in addition to and separate from any other remedy or interest created by law or contract.” MCL 600.2817. The Legislature did not repeal MCL 600.6018 and, therefore, the MJLA and MCL 600.6018 are two different mechanisms by which a judgment creditor can attempt collection on a judgment by going after real property. There are undoubtedly differences between the MJLA and MCL 600.6018, including, most significantly, that the MJLA does not allow foreclosure, but the MJLA also does not contain the many exemptions, restrictions, and procedural requirements associated with levying against real property under MCL 600.6018. See chapter 60 of the RJA, MCL 600.6001 et seq. The trial court never explored the issue of allowing the Dutkaviches to levy on the property under MCL 600.6018. Whether they can levy on the property under MCL 600.6018 and the rest of chapter 60 of the RJA requires a detailed examination of the statutory scheme and proof of a fraudulent transfer. Remand is appropriate for development of the arguments and evidence. In the meantime, the judgment lien must remain attached to the property under the MJLA, although that lien cannot be foreclosed on.
III. CONCLUSION
In sum, we hold that the MJLA, while not permitting foreclosure of the judgment lien and not giving Thomas any statutory obligation to have made payment to the Dutkaviches, requires that the judgment lien remain attached to the property. We also hold, however, that outside the MJLA, the Dutkaviches may be able to levy on the property pursuant to MCL 600.6018, which is the traditional method of executing on realty to satisfy a judgment. Remand is necessary to explore the issue of levying pursuant to MCL 600.6018. Therefore, the trial court erred by discharging the judgment lien and erred by not considering MCL 600.6018. Consistently with our holding, the Dutkaviches’ counterclaim seeking to hold Thomas personally liable on a money judgment was properly dismissed; Thomas’s slander-of-title claim, which pertained to the judgment lien, should have been dismissed; Thomas’s quiet-title count should have been dismissed with regard to his request that the court discharge the judgment lien; and, with regard to levy and foreclosure under the quiet-title count, Thomas was entitled to the favorable ruling relative to the MJLA, but levying under MCL 600.6018 needs to be examined on remand.
Accordingly, we affirm in part, reverse in part, and remand. We do not retain jurisdiction. No party having fully prevailed, taxable costs are not awarded under MCR 7.219.
We note that the notice of judgment lien reflects that the judgment was entered on December 6, 2003; however, the request and order to seize property and the notice of levy on real estate indicate that the judgment was entered on December 6, 2004. The judgment itself is not contained in the lower court record. The discrepancy does not affect our analysis and ruling.
The settlement information does not show that the mortgagee bank received any distribution from the sale proceeds and, as previously noted, the mortgage was discharged the day before the closing.
Thomas’s claim on appeal that the Dutkaviches joined the stipulation is not supported by the record.
The trial court never specifically touched on the Dutkaviches’ counterclaim at the hearing on the motions for summary disposition. But the court’s finding that Thomas was without fault and had no duty relative to MCL 600.2819 would negate the counterclaim that Thomas should be held liable on a money judgment for not having directed payment of the sale proceeds to the Dutkaviches in order to satisfy the judgment lien. The final order subsequently entered by the trial court indicated that it resolved all pending claims and closed the case, which order necessarily encompassed the counterclaim.
Thomas does not argue that the Dutkaviches failed to comply with MCL 600.2805.
Although a conveyance of land made to two or more persons is generally construed to create an estate in common and not a joint tenancy, an exception exists when the conveyance is made to a husband and wife. MCL 554.44 and MCL 554.45.
Dower interests are also addressed in MCL 700.2202, part of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq.
For this reason and given the constructive notice of the judgment lien, Thomas’s argument that his due process rights will be violated if the lien remains attached lacks merit.
For this reason, we reject the argument that resort to equity is proper to allow foreclosure of the judgment lien. When a statute governs resolution of a particular issue, a court lacks the authority to invoke equity in contravention of the statute. Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590 n 65; 702 NW2d 539 (2005). | [
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] |
Murphy, C.J.
In this case involving petitioner’s request for non-duty-related disability retirement status and benefits pursuant to § 24 of the State Employees’ Retirement Act (SERA), MCL 38.1 et seq., respondent, the State Employees’ Retirement System (SERS), appeals by leave granted the circuit court’s order that reversed the decision of the State Employees’ Retirement Board (the Board) to deny petitioner retirement benefits. We vacate the circuit court’s order and remand the case to the Board for further proceedings consistent with this opinion.
I. OVERVIEW
Petitioner, a corrections officer, shattered his right calcaneus or heel bone while on vacation and subsequently submitted an application for retirement benefits to the Office of Retirement Services, which denied the application. Petitioner, seeking to dispute the application denial, then filed a request for a hearing with the State Office of Administrative Hearings and Rules, and a hearing was scheduled pursuant to the Administrative Procedures Act (APA), MCL 24.201 et seq. Following a hearing before a hearing referee, the referee issued a proposal for decision, determining that petitioner had suffered a total and permanent disability, that the disability rendered petitioner unable to adequately and safely perform his job as a corrections officer, and that petitioner was entitled to benefits. The hearing referee recommended that the Board adopt her findings of fact and conclusions of law. The SERS filed exceptions to the proposal for decision, challenging the hearing referee’s recommendation.
The Board, relying on Knauss v State Employees’ Retirement Sys, 143 Mich App 644; 372 NW2d 643 (1985), determined that petitioner was not entitled to retirement status and benefits under § 24 of the SERA, MCL 38.24, because petitioner, on the basis of his past experience and training, was still able to perform jobs other than a corrections officer. On petitioner’s appeal in the circuit court, the court reversed and remanded the case to the Board for entry of a decision awarding petitioner non-duty-related disability retirement benefits. The circuit court placed the focus on petitioner’s experience and training as a corrections officer, reasoning that the Board had “reached too far back into [petitioner’s] employment history . . . before he had any real training and experience . . . .”
We hold that, when read in context, the plain and unambiguous language of MCL 38.24(l)(b), which refers to a member’s “total[] incapacitation] for further performance of duty,” only allows consideration of whether a member can perform the state job from which the member seeks retirement because of the non-duty-related injury or disease, not other employment positions or fields for which the member may be qualified by experience and training. To the extent that Knauss, which is not binding on us, MCR 7.215(J)(1), conflicts with our holding, it is disavowed, given that it did not honor the comparable language in MCL 38.21, the statutory provision that governs duty-related disability retirement status and benefits. Because it is unclear from its decision whether the Board found that petitioner was totally incapacitated relative to his job as a corrections officer, we vacate the circuit court’s order and remand the case to the Board to directly address that issue.
II. UNDERLYING FACTS
At the administrative hearing, petitioner testified that he was 44 years of age, that he was a high school graduate, and that he had taken one semester of criminal justice courses, as required to obtain employment with the Michigan Department of Corrections (DOC). Following graduation from high school, petitioner had worked for Marquette Bottling Works as a truck driver and salesman of Pepsi products for approximately five years. He next worked for Nelson Chevy-Olds selling cars for 2xlz years. Petitioner further testified that he also worked odd jobs, including a job at his parents’ store and selling satellite dishes door to door. He started working with the DOC in April 1989.
In February 2006, petitioner was in Tobago on vacation, and as he was walking out of the ocean, a roughly 15-foot wave crested, picking him up and driving his right heel into the hard sand. Petitioner suffered a shattered right calcaneus. He was placed on long-term disability in March 2006.
Petitioner originally saw an orthopedic surgeon, Dr. Robert H. Blotter, about a month after the accident. As a result of the injury, petitioner underwent various surgeries, with numerous pins and screws being placed in his heel. He had to wear a full cast and was still accommodating his injury at the time of the hearing. Petitioner was told that his injury was permanent and that he would be unable to return to work as a corrections officer. He further testified: “I can’t run. I can’t do steps. The ability to respond to any incident in the prison just isn’t there. I don’t know if I would trust myself letting somebody else being dependent on me after working in the prison for 18 years.”
As of the hearing date, petitioner still suffered from sharp pain while walking, along with discomfort and a tingling ache all day long. Petitioner testified that he was told by Dr. Blotter that he will likely need to have his ankle fused, which would cause him to completely lose mobility but would remove the pain.
In a letter dated a few months before the hearing, Dr. Blotter indicated that petitioner was stable, but he would not be able to walk effectively on uneven surfaces and might need additional surgery in several years if the pain becomes worse. Dr. Blotter stated that he did not believe that petitioner would be able to return to his old job with the DOC. However, on the basis of independent medical examinations, Dr. Russell E. Holmes opined that petitioner’s injury did not render him totally disabled.
On December 13, 2007, the hearing referee issued her proposal for decision. As already indicated, the referee, recommending that the Board adopt her factual findings and legal conclusions, determined that petitioner had suffered a total and permanent disability, that the disability rendered petitioner unable to adequately and safely perform his job as a corrections officer, and that he was entitled to benefits. The hearing referee focused solely on petitioner’s job as a corrections officer with the DOC, observing:
Petitioner!] submitted substantive and material evidence that he has a total and permanent disability, which shows that he has met the criteria for non-duty disability retirement benefits pursuant to Section 24 of the Act. The Petitioner!^] employment history with the State [of] Michigan has been only as a corrections officer. With his current impairment, the Petitioner would not be able to guarantee the safety and security of the prison inmates and his fellow corrections officer [s]. He walks with a limp and sometimes uses a cane when necessary, which makes his impairment apparent and obvious. The Petitioner is unable to stand for long periods of time, run, and walk on uneven surfaces. He could be a target or weak point for the inmates, which would put the other prison inmates and corrections officers at increased risk if he was to return to his job. Finally, the Petitioner’s employer did not make any reasonable accommodations so that he could return to his correction officer position with his limitations.
The SERS filed exceptions with the Board with respect to the hearing referee’s recommendation. The Board, declining to adopt the referee’s recommendation and taking note of petitioner’s work history, issued a decision and order on April 10, 2008, ruling, as follows:
1. In this proceeding Petitioner has the burden of proving, by a preponderance of the evidence, that he is entitled to non-duty disability retirement benefits under Section 24 of the Act. Petitioner must show that he is unable to engage in employment reasonably related to his past experience and training because of a disability that is likely to be permanent. Knauss [143 Mich App 644],
2. While the Petitioner presented documentation from his treating physician, Dr. Blotter, that he will not be able to run or walk effectively on uneven surfaces, the Petitioner can still perform other jobs that he has performed in the past, as he possesses experience and training in a number of occupations that he was employed in prior to working for the state.
3. As the Petitioner has not established by a preponderance of the evidence that he cannot engage in employment reasonably related to his past experience and training, the Petitioner is not eligible for non-duty disability retirement benefits pursuant to MCL 38.24.
Petitioner appealed in the circuit court, arguing that the Board’s ruling was erroneous as a matter of law and that the decision was arbitrary, capricious, and based on a misapplication of the law. At oral argument in the circuit court, the court opined:
I think the question is, is [petitioner] able to return to employment, based on his training and his experience, that he is qualified to perform. And I think we have to look at this in the context of 17 years of employment, much like the 10-year [licensed practical nurse] in the Knauss case, his training, taking courses to qualify to apply for employment, and then training for work with the [DOC], It is a matter of relativity, but I think, frankly, the board reached too far back into .. . [petitioner’s] employment history, all the way to post high school, before he had any real training and experience, to reach the conclusion that he was able to perform some of that work, therefore he did not meet the test of total and permanent incapacity.
I find this to be an error of law by the hoard in application of the Knauss case to the statute, and by reason of that error, I’m going to remand this back to the board for entry of a decision adopting the proposal for decision of the [hearing referee] .... That is the decision of the Court.
In an order subsequently entered by the circuit court, the court reversed the Board’s decision and remanded the case for entry of an order approving petitioner’s application for non-duty-related disability retirement benefits. The SERS appeals by leave granted.
III. ANALYSIS
A. STANDARD OF REVIEW — CIRCUIT COURT
In Dignan v Mich Pub Sch Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002), this Court, setting forth the applicable standard of review relative to a circuit court’s review of a decision of the Board, stated:
A circuit court’s review of an administrative agency’s decision is limited to determining whether the decision was contrary to law, was supported by competent, material, and substantial evidence on the whole record, was arbitrary or capricious, was clearly an abuse of discretion, or was otherwise affected by a substantial and material error of law. “Substantial” means evidence that a reasoning mind would accept as sufficient to support a conclusion. Courts should accord due deference to administrative expertise and not invade administrative fact finding by displacing an agency’s choice between two reasonably differing views. [Citations omitted.]
B. OUR STANDARD OF REVIEW
We review a circuit court’s decision on an administrative appeal to determine whether the circuit court applied correct legal principles and whether the court misapprehended or grossly misapplied the substantial-evidence test to the agency’s factual findings, which essentially constitutes a clearly erroneous standard of review. Jackson-Rabon v State Employees’ Retirement Sys, 266 Mich App 118, 119; 698 NW2d 157 (2005). A finding is clearly erroneous when, after review of the record, this Court is left with a definite and firm conviction that a mistake was made. Id. at 119-120.
Further, we ultimately decide this case on the basis of our interpretation of MCL 38.24, and this Court reviews de novo issues of statutory construction. In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 102; 754 NW2d 259 (2008). “When considering an agency’s statutory construction, the primary question presented is whether the interpretation is consistent with or contrary to the plain language of the statute.” Id. at 108. Although a court must consider an agency’s interpretation of a statute, “the court’s ultimate concern is a proper construction of the plain language of the statute.” Id. We do note that in the case at bar the Board relied on Knauss in regard to the interpretation of MCL 38.24 and not on any independent agency construction of the statute.
C. GOVERNING PRINCIPLES OF STATUTORY CONSTRUCTION
In Zwiers v Growney, 286 Mich App 38, 44; 778 NW2d 81 (2009), this Court recited the well-established principles of statutory construction:
Our primary task in construing a statute is to discern and give effect to the intent of the Legislature. The words contained in a statute provide us with the most reliable evidence of the Legislature’s intent. In ascertaining legislative intent, this Court gives effect to every word, phrase, and clause in the statute. We must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme. This Court must avoid a construction that would render any part of a statute surplusage or nugatory. The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended. If the wording or language of a statute is unambiguous, the Legislature is deemed to have intended the meaning clearly expressed, and we must enforce the statute as written. A necessary corollary of these principles is that 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. [Citations and quotation marks omitted.]
Keeping these principles of statutory construction in mind, we commence our discussion of MCL 38.24.
D. DISCUSSION
Before examining this Court’s decision in Knauss, we shall independently construe § 24 of the SERA without contemplation of Knauss. MCL 38.24(1) provides:
Except as may otherwise be provided in [MCL 38.33 and 38.34], a member who becomes totally incapacitated for duty because of a personal injury or disease that is not the natural and proximate result of the member’s performance of duty may be retired if all of the following apply:
(a) The member, the member’s personal representative or guardian, the member’s department head, or the state personnel director files an application on behalf of the member with the retirement board no later than 1 year after termination of the member’s state employment.
(b) A medical advisor conducts a medical examination of the member and certifies in writing that the member is mentally or physically totally incapacitated for further performance of duty, that the incapacitation is likely to be permanent, and that the member should be retired.
(c) The member has been a state employee for at least 10 years. [Emphasis added.]
According to MCL 38.24(l)(b), the question of total incapacitation is examined in relationship to the further performance of duty. Thus, in general, a member could be considered totally incapacitated if the member’s injury prevents him or her from performing the member’s particular job duties. But another member with a different job, having the exact same injury, might not be considered totally incapacitated if the member is still capable of performing his or her particular job duties. Stated otherwise, an injury that hinders one person in performing his or her job duties might not hinder another person who works in a different field given the uniqueness of tasks related to each particular job. And MCL 38.24(l)(b) requires consideration of the injury-to-duty relationship. The issue then becomes whether it is proper to consider not only the state job and associated duties from which a member wishes to retire because of an injury or disease, but also any other job that the member, taking into consideration his or her past training and experience, may still be capable of performing. In resolving this issue, it is necessary to unravel the meaning and extent of the word “duty” as used in MCL 38.24(l)(b).
For the reasons hereinafter stated, we conclude that “duty” refers or relates solely to the state job from which the member seeks retirement on the basis of a non-duty-related injury or disease; therefore, it is impermissible, in determining whether the member is totally incapacitated, to contemplate other jobs or employment fields that might be suitable for the member.
We initially note that the term “duty” is not defined in the SERA. See MCL 38.1c (definitions of words beginning with the letter “d”). MCL 38.24(1) provides that the injury or disease cannot be “the natural and proximate result of the member’s performance of duty. . . .” MCL 38.21(l)(b), on the other hand, pertains to situations in which the injury or disease “is the natural and proximate result of the member’s performance of duty.” (Emphasis added.) These causation provisions address two different scenarios: one in which a member’s injury or disease arises directly from the performance of duty and one in which the injury or disease does not arise from the performance of duty. In both instances, the language “performance of duty” clearly and unambiguously refers to work-related or job-related activities, which necessarily means that “duty” can only relate to state employment. In other words, the Legislature envisioned occasions when a member is injured at work while on a state job and occasions, like that which occurred here, when the member, although employed in a state job at the time, is injured outside work. Either way, the term “duty” is a reference or relates to a state job held by the member. It would be nonsensical and unworkable to conclude, for purposes of causation under MCL 38.24(1) and 38.21(l)(b) that performance of “duty” related to performance of a job or jobs, unrelated to state employment, for which a member had prior relevant training and experience. And where that identical language, “performance of duty,” is again used in MCL 38.24(l)(b) with regard to total incapacitation, its definition, for purposes of cohesiveness and harmony, must parallel its meaning elsewhere in the statute and the SERA overall. Accordingly, the term “duty” in MCL 38.24(l)(b) refers or relates to state employment, and thus the total incapacitation must relate to the member’s performance as a state employee.
Because a member may have held different state jobs during his or her career, and because a member may have been injured while performing one particular state job with the effect of the injury only becoming disabling later while in a new state job, we next need to address whether MCL 38.24(1) (b) requires contemplation of all previous state jobs or only the one from which a member seeks to retire. The answer to this question is found in the use of the word “further” in MCL 38.24(1) (b) when describing the performance of duty. This indicates that the Legislature was speaking of a duty the performance of which would have been continuing or extended but for the injury or disease suffered by the member. Thus, total incapacitation necessarily relates solely to the incapacity of the member to continue performing, or to further perform, the state job from which the member seeks retirement. Additional support for this conclusion is found in MCL 38.33(a), which is referred to in MCL 38.24(1). MCL 38.33(a) provides for postretirement medical examinations of persons retired under, in part, MCL 38.21 or 38.24. If, upon the medical examination, the medical advisor reports and the Board concurs that the retiree “is physically capable of resuming employment,” the retiree must be restored to active service with the state and the retirement benefits must be terminated. MCL 38.33(a) (emphasis added). To resume employment means that the member would be picking up where he or she left off, i.e., continuing the state job from which the member retired. Determining the physical capacity to work under MCL 38.33(a) is thus related to the capacity to perform the state job from which the member retired.
Furthermore, MCL 38.33(b) also supports our holding in this case, and it provides as follows:
If the secretary reports and certifies to the retirement board that a person retired under ... [MCL 38.24] ... is engaged in a gainful occupation paying more than the difference between his or her disability retirement allowance and his or her final compensation, and if the retirement board concurs in the report, then his or her retirement allowance shall be reduced to an amount which together with the amount earned by him or her shall equal his or her final compensation. Should the earnings of the person retired under . .. [MCL 38.24]... be later changed, the amount of his or her retirement allowance shall be further modified in like manner. [Emphasis added.]
This language clearly and unambiguously contemplates situations in which a member is employed, yet has also retired from state employment because of a non-duty-related injury or disease and is collecting state disability retirement benefits. MCL 38.33(b) is completely consistent with our interpretation of MCL 38.24, given that, under our analysis, a member could be totally incapacitated from performing his or her state job and thus receive disability retirement benefits, but not be totally incapacitated relative to performing a different job and thus be “engaged in a gainful occupation,” MCL 38.33(b). For example, under MCL 38.33(b), if a member’s final compensation (annual rate of pay) was $50,000 at the time of retirement and the member then began receiving $25,000 in annual retirement benefits, the member would still be permitted to work at a new job and earn up to $25,000 a year without loss of any of his or her retirement benefits. Disability retirement benefits are not terminated in full merely because the member may be working at a new job for which he or she has past experience and training.
We now examine this Court’s decision in Knauss. The panel considered whether the petitioner, Teresa Knauss, was eligible for duty-related disability retirement benefits under MCL 38.21, which, as indicated, contains the same language, “performance of duty,” as MCL 38.24. Knauss worked as a licensed practical nurse at a medical facility, and she injured her right knee in the course of her employment. Because of her knee injury, Knauss could no longer perform her nursing duties. The Board denied her request for disability retirement benefits, but the circuit court, for reasons fairly consistent with our analysis in this opinion, including citation of MCL 38.33(b), reversed that ruling and awarded her benefits. The circuit court concluded that the question whether there was a total disability under the statute related to Knauss’s capacity to perform her previous job as a nurse. Knauss, 143 Mich App at 645-648.
The Knauss panel essentially agreed with the circuit court’s construction of the statute, but then deviated from the circuit court’s analysis:
We also read MCL 38.33(b)... as anticipating that a person receiving disability-retirement benefits could be employed in another job. One cannot harmonize the Legislature’s allowing a disabled person to work in another job while receiving benefits with the board’s interpretation of “totally incapacitated for duty..as meaning “totally incapacitated from any duty”.
We disagree, however, with the trial court’s decision that the Legislature intended that a person who cannot perform his or her previous job should always be entitled to disability-retirement benefits. In an analogous situation dealing with total-disability benefits provided by a private insurance company, this Court recognized that there are three ways of interpreting the term “total disability”!.] [Knauss, 143 Mich App at 648.]
The Knauss panel, quoting Chalmers v Metro Life Ins Co, 86 Mich App 25, 30-31; 272 NW2d 188 (1978), proceeded to list the three interpretations or views and then held that the “intermediate view” would control. Knauss, 143 Mich App at 649. The intermediate view examines the question whether there is a total disability by looking at whether a person is able to engage in employment reasonably related to his or her past experience without limiting the examination to looking only at the job that was held when the disability arose, but also without being so expansive as to allow consideration of any job whatsoever. Id. The Knauss Court, which also cited this Court’s decision in Herring v Golden State Mut Life Ins Co, 114 Mich App 148; 318 NW2d 641 (1982), then engaged in the following reasoning:
We recognize that the insurance policies involved in Chalmers and Herring provided for benefits when the insured was unable to engage in any and every gainful occupation for which the insured was fitted by education, training or experience. In other jurisdictions that have also adopted the “intermediate” definition of total disability, the courts have concluded that an insurance policy requiring that the disabled person be unable to engage in any gainful employment should be interpreted as providing benefits when the person is unable to engage in employ ment reasonably related to the person’s past experience and training. [Knauss, 143 Mich App at 649-650 (emphasis added; citations omitted).]
Therefore, the Knauss panel not only entirely ignored the language of MCL 38.21 and MCL 38.33 despite agreeing with the circuit court’s interpretation of those provisions, it then proceeded to rely on cases interpreting language from insurance policies that were all-encompassing — i.e., considered any gainful employment based on past experience and training — and was completely different from and contradictory to the language of MCL 38.21. Knauss is not binding on us, MCR 7.215(J)(1), and we disavow it with respect to the issue presented, given that it did not honor the plain language of MCL 38.21, and by analogy MCL 38.24.
Finally, we acknowledge that in VanZandt v State Employees’ Retirement Sys, 266 Mich App 579, 595-596; 701 NW2d 214 (2005), a case that is binding on us under MCR 7.215(J)(1), this Court placed some reliance on Knauss. However, VanZandt did not cite Knauss in connection with the issue that we are addressing. Rather, VanZandt, in citing Knauss, was addressing the petitioner’s criticism that the Board, in rejecting her claim for benefits, improperly relied on evidence of the petitioner’s lifestyle and her ability to function outside the workplace when making the determination whether she was totally incapacitated (because of depression) relative to performing her job as a youth specialist. VanZandt, 266 Mich App at 594 (“[EJvidence that petitioner was able to function normally in maintaining a home and caring for three small children, two of whom had learning disabilities, is probative relative to whether petitioner could function in a workplace setting in which her primary responsibility was supervising troubled youth.”). Our holding is not in conflict with VanZandt, and to the extent that elements of Knauss supported the ruling in VanZandt, we are not disavowing those elements of Knauss. Indeed, we would agree that here, had there been any evidence showing that petitioner was engaging in physical activities at home that discredited his claim that he could not perform comparable activities at the prison, that evidence would certainly have been admissible.
IV CONCLUSION
We hold that when read in context, the plain and unambiguous language of MCL 38.24, which refers to a member’s “total[] incapacitation] for further performance of duty,” only allows consideration of whether a member can perform the state job from which the member seeks retirement because of the non-duty-related injury or disease, not other employment positions or fields for which the member may be qualified by experience and training. To the extent that Knauss conflicts with our holding, it is disavowed, given that it did not honor the comparable language in MCL 38.21, the statutory provision that governs duty-related disability retirement status and benefits. Because it is unclear from its decision whether the Board found that petitioner was totally incapacitated relative to his job as a corrections officer, we vacate the circuit court’s order and remand the case to the Board to directly address that issue.
Vacated and remanded to the State Employees’ Retirement Board for proceedings consistent with this opinion. We do not retain jurisdiction.
We note that the administrative proceedings initiated by petitioner listed the SERS as the respondent, but in the circuit court appeal the Board was named as the respondent. On appeal in this Court, the filings by respondent-appellant refer to the SERS as the respondent. Because we believe that the SERS is the properly designated respondent, with the Board being the arbiter of the dispute, we shall treat the SERS as the respondent-appellant.
For purposes of the SERA, a “member” is “a state employee included in the membership of the retirement system[.]” MCL 38.1f(l).
We note that the parties stipulated at the hearing that petitioner’s application was filed within one year of his termination from state employment and that petitioner was a state employee for at least 10 years before his termination. See MCL 38.24(l)(a) (an application for benefits must be filed no later than one year after termination of state employment) and (c) (the member must have been a state employee for a minimum of 10 years).
See the definitions contained in MCL 38.1e(2) and MCL 38.1b(2).
We note that the panel ended up affirming the circuit court’s decision, not its analysis, on the basis that under the intermediate standard, Knauss’s only training and experience was as a nurse. Knauss, 143 Mich App at 650. | [
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Per Curiam.
Defendant, Michael Light, appeals by leave granted his prison sentence imposed after plead ing no contest to a charge of unarmed robbery. The trial court sentenced Light to serve a prison term of 4 to 15 years, with credit for 242 days served in jail. We conclude that the trial court did not properly score offense variable (OV) 12 when it sentenced Light. Therefore, we reverse and remand this case to the trial court for resentencing consistent with this opinion.
I. BASIC FACTS
A. OVERVIEW
On December 28, 2007, Light approached the Cherry Bend grocery store and stood outside for approximately 20 minutes. After waiting outside, Light entered the store and took a six-pack of beer from the cooler. Light proceeded to the check-out counter and handed the beer to Daniel Plamondon, the store’s owner. Then, Light pulled out a four- or five-inch knife and held it in a stabbing position. While wielding the knife, Light yelled, “[G]ive me your f— ing money.” Plamondon handed Light approximately $300, and Light fled. Immediately after, Plamondon called 911 and his neighbor, Suttons Bay Police Chief Del Moore.
Chief Moore responded to the scene and followed Light’s footprints in the fresh snow south to a residence. As Chief Moore approached the residence, he observed Light standing outside. Light matched Plamondon’s description of the robber, so Chief Moore gave an oral command to Light. Because Light did not respond to Chief Moore’s oral command and because he appeared to be preparing to escape, Chief Moore drew his gun and arrested Light. Plamondon identified Light in a photo lineup, and two witnesses from the store’s parking lot identified Light in a physical lineup.
B. LIGHT’S PLEA AGREEMENT AND SENTENCING
As previously stated, the prosecutor charged Light with armed robbery. The prosecutor also filed a notice of Light’s status as a second-offense habitual offender. However, as part of a plea agreement, the prosecutor later dismissed the habitual-offender notice.
During sentencing, Light’s attorney objected to the scoring of 5 points for sentencing OV 12. The trial court overruled the objection, finding thát Light had committed two or more contemporaneous felonious acts. The trial court used the carrying of a concealed weapon as one of the two contemporaneous felonious criminal acts because of the knife that Light carried and then used to commit the robbery. For the second contemporaneous act, the trial court considered both larceny from a person and larceny in a building. The trial court may have determined that larceny in a building was an appropriate contemporaneous act because it is a cognate lesser offense of robbery. However, the trial court’s statements on the record were unclear regarding which form of larceny it ultimately chose to use for its scoring decision.
II. TRIAL COURT’S SCORING OF OV 12
A. STANDARD OF REVIEW
When a defendant appeals his or her sentence, we review the trial court’s scoring decision “to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” Because this appeal also involves a question of the interpretation of the statutory sentencing guidelines under MCL 769.34, we review it de novo.
B. THE PLAIN LANGUAGE OF OV 12
Under MCL 777.42, OV 12 establishes the scoring guidelines for the trial court to use “to determine whether [a] defendant engaged in any ‘contemporaneous felonious criminal acts.’ ” “If [the] defendant did not engage in any contemporaneous felonious criminal acts, the trial court [must] score OV 12 at zero points.” “However, if [the] defendant did engage in contemporaneous felonious criminal acts, the trial court [must] evaluate the number of acts and whether the acts constituted crimes against a person or other crimes, see MCL 777.42(l)(a) to (f), and then assign ‘the number of points attributable to the [corresponding subdivision of the statute] that has the highest number of points,’ MCL 777.42(1).” Specifically, if the trial court finds that the defendant committed two contemporaneous felonious criminal acts involving other crimes, then the trial court may allocate 5 points for OV 12.
C. INTERPRETING THE LANGUAGE OF OV 12
This Court interprets sentencing guidelines in accordance with the rules of statutory construction.
The primary goal of statutory construction is to give effect to the intent of the Legislature. If the language of the statute is unambiguous, judicial construction is not permitted because the Legislature is presumed to have intended the meaning it plainly expressed. Judicial construction is appropriate, however, if reasonable minds can differ concerning the meaning of a statute. Where ambiguity exists, this Court seeks to effectuate the Legislature’s intent by applying a reasonable construction based on the purpose of the statute and the object sought to be accomplished. “The court must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute.” In construing a statute, the statutory provisions must be read in the context of the entire statute in order to produce a harmonious whole; courts must avoid a construction that would render statutory language nugatory.[ ]
As stated, MCL 777.42 establishes the scoring guidelines to determine a defendant’s OV 12 sentencing score for any “contemporaneous felonious criminal acts.” “A felonious criminal act is defined to be contemporaneous if the act occurred within 24 hours of the sentencing offense and will not result in a separate conviction.” According to the Michigan Supreme Court, “ ‘the Legislature unambiguously made it known when behavior outside the offense being scored is to be taken into account.’ ” Significantly, OV 12 distinguishes within the same sentence between the “act” that occurred and the “sentencing offense.” This indicates that the Legislature specifically intended to draw a distinction between the two words. There is support for this rationale within the language of two other offense variables, OV 11 and OV 13. OV 11 states, “Multiple sexual penetrations of the victim by the offender extending beyond the sentencing offense may be scored in offense variables 12 or 13.” Thus, the language of OV 11 suggests that the Legislature did not intend for contemporaneous felonious criminal acts to be the same acts that established the sentencing offense. Likewise, the language of OV 13 indicates that a trial court should allocate points when the “[sentencing] offense was part of a pattern of felonious criminal activity ----” OV 13 clearly distinguishes the offense from the activity. Therefore, when scoring OV 12, a court must look beyond the sentencing offense and consider only those separate acts or behavior that did not establish the sentencing offense.
D. APPLYING THE LANGUAGE OF OV 12 TO LIGHT’S UNABMED-ROBBERY CONVICTION
In this case, Light pleaded guilty to a charge of “unarmed robbery” under MCL 750.530. The Legislature defined “unarmed robbery” as follows:
el) A person who, in the course of committing a larceny of any money or other property that may be the subject of larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of a felony punishable by imprisonment for not more than 15 years.
(2) As used in this section, “in the course of committing a larceny” includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.[ ]
Neither party disputes that the trial court scored OV 12 on the basis of the sentencing offense of unarmed robbery. Further, neither party disagrees that carrying a concealed weapon constituted one of the two contemporaneous felonious acts needed to score 5 points for OV 12. However, the parties differ in their views about which form of larceny the trial court properly used as the second contemporaneous felonious act, which allowed the trial court to allocate 5 points for OV 12.
Light argues that the trial court erred by allocating 5 points for his OV 12 score because the trial court incorrectly identified larceny from a person as the second separate contemporaneous felonious act. Light further argues that larceny from a person is a necessarily included lesser offense of robbery and that it cannot be labeled as a contemporaneous felonious act for the purpose of scoring OV 12. Accordingly, Light claims that, at most, the trial court should have only assessed 1 point under OV 12 for carrying a concealed weapon. Light contends that this would result in a total OV level of III, PRV Level C, for a guideline range of 19 to 38 months and that the trial court’s sentence of 48 months falls outside the minimum guideline range.
In contrast, the prosecution argues that the trial court correctly scored 5 points for OV 12 because larceny in a building is not a necessarily included lesser offense of robbeiy, but rather a cognate offense. The prosecution concludes that the trial court properly used larceny in a building and carrying a concealed weapon as two separate contemporaneous felonious acts under OV 12.
Light is correct that larceny from a person is a necessarily included lesser offense of robbery. Likewise, the prosecution is correct that larceny in a building is a cognate offense of robbery because robbeiy does not include the “building” element and larceny does not require the use of force. And, as previously stated, the trial court did not clearly state whether it based its scoring on larceny from a person or larceny in a building. However, for OV 12 scoring purposes, Light’s physical act of wrongfully taking Plamondon’s money while inside a grocery store is the same single act for all forms of larceny — robbery, larceny from a person, and larceny in a building. Therefore, even though the trial court sentenced Light for unarmed robbery, Light’s sentencing offense included all acts “occurring] in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.”
Here, the robbery completely subsumed the larceny. The fact that the larceny occurred in a building, and thus could have subjected Light to multiple convictions, does not change the outcome. Even though the trial court did not convict Light of either form of larceny, both offenses form the basis of Light’s “sentencing offense” of unarmed robbery. Because Light’s sentencing offense was unarmed robbery, neither form of larceny could be used as the contemporaneous felonious act needed to increase Light’s OV 12 score. In other words, the language of OV 12 clearly indicates that the Legislature intended for contemporaneous felonious criminal acts to be acts other than the sentencing offense and not just other methods of classifying the sentencing offense.
III. CONCLUSION
The trial court erred when it determined that larceny from a person or larceny in a building was a contemporaneous felonious act under MCL 777.42. Because both forms of larceny served as the basis of Light’s sentencing offense, the trial court should not have scored 5 points for Light’s unarmed-robbery conviction under OV 12. However, the parties do not dispute that Light’s act of carrying a concealed weapon provides a proper basis for a contemporaneous felonious criminal act for purposes of scoring OV 12. The act of carrying a concealed weapon occurred contemporaneous with the robbery. Accordingly, the trial court should have assessed only 1 point under MCL 777.42(l)(f) for carrying a concealed weapon. This correction reduces Light’s total OV score from level IV to level III (from 35 points to 31 points), which will change the recommended minimum guideline range to 19 to 38 months. Therefore, because the erroneous score would result in a different recommended range when corrected, we reverse and remand this case to the trial court for resentencing consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
MCL 750.530. The prosecution originally charged Light with armed robbery , MCL 750.529, and notified him that he could be sentenced as a second-offense habitual offender, MCL 769.10, but agreed to dismiss the habitual-offender sentence enhancement notice pursuant to a June 23, 2008 plea agreement.
MCL 777.42.
The prosecutor’s presentence investigation report indicated that two young children were present in the store at the time, although subsequent questioning by the police showed that the children had been oblivious to the events that took place.
See MCL 750.529.
See MCL 769.10.
People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003).
People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003); People v Berner, 286 Mich App 26, 31; 777 NW2d 464 (2009).
Bemer, 286 Mich App at 32, quoting MCL 777.42(1).
Id., citing MCL 777.42(l)(g).
Id. (some alteration by Bemer).
MCL 777.42(l)(e).
People v Lyons (After Remand), 222 Mich App 319, 322; 564 NW2d 114 (1997).
McLaughlin, 258 Mich App at 672-673 (citations omitted).
See MCL 777.42(1); Bemer, 286 Mich App at 32.
Bemer, 286 Mich App at 32-33, citing MCL 777.42(2)(a) (emphasis added).
People v McGraw, 484 Mich 120, 125; 771 NW2d 655 (2009), quoting People v Sargent, 481 Mich 346, 349; 750 NW2d 161 (2008) (emphasis added).
MCL 777.42(2)(a)(i).
See United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 14; 795 NW2d 101 (2009) (noting that “[w]hen the Legislature uses different words, the words are generally intended to connote different meanings”).
MCL 777.41(2)(b) (emphasis added).
MCL 777.43(l)(a) through (f) (emphasis added).
MCL 750.530.
People v Adams, 128 Mich App 25, 31; 339 NW2d 687 (1983) (noting that “the larceny which is an element of robbery is a larceny from a person”).
See MCL 777.64.
See also People v Ramsey, 218 Mich App 191, 195; 553 NW2d 360 (1996).
People v Cornell, 466 Mich 335, 356; 646 NW2d 127 (2002) (noting that it is impossible to commit the greater offense without first having committed the included lesser offense).
See People v Stein, 90 Mich App 159, 167; 282 NW2d 269 (1979).
MCL 750.530(2).
See People v Smith, 478 Mich 292, 296, 300-301; 733 NW2d 351 (2007).
See MCL 777.64.
People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). | [
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Per Curiam.
In this tort action alleging excessive use of force by a police officer, defendant Cory Smith appeals as of right the trial court’s order denying his motion for summary disposition based on governmental immunity. This is the second time that this case is before this Court. This Court previously affirmed the trial court’s order denying a previous motion for summary disposition made by defendant. Oliver v Smith, 269 Mich App 560; 715 NW2d 314 (2006). Because the trial court erred by denying defendant’s motion for summary disposition, we reverse.
The facts underlying this appeal were summarized in our previous opinion:
The events giving rise to this appeal occurred on November 9, 2001. On that date, defendant, an officer with the Dearborn Heights Police Department, arrested plaintiff for interfering with a police officer after plaintiff was disruptive and uncooperative while defendant and another officer attempted to administer field sobriety tests to the driver of a vehicle in which plaintiff was a passenger. As a result of the arrest, plaintiff filed a complaint against the city, the police department, and two police officers, including defendant. The complaint contained claims of assault and battery, negligence, and civil rights violations. In the complaint, plaintiff alleged that defendant used excessive force when he arrested him because he intentionally handcuffed plaintiffs wrists too tightly with the intent to inflict harm. The complaint further alleged that defendant’s use of excessive force caused plaintiff to suffer physical and mental injuries. [Id. at 561-562.]
Defendant Smith advanced his previous motion for summary disposition under MCR 2.116(C)(7) and (10), arguing that he was entitled to governmental immunity under the governmental immunity act, MCL 691.1401 et seq., because his conduct did not amount to gross negligence under MCL 691.1407(2)(c) and (7)(a). The trial court denied the motion. In so ruling, the court noted that plaintiff failed to produce documentary evidence to establish a genuine issue of material fact regarding whether defendant’s conduct caused plaintiff to suffer an injury. However, the court, in essence, concluded that summary disposition was premature because discovery was not complete and plaintiff still had time to produce documentary evidence of injury.
Defendant appealed as of right the denial of his previous motion for summary disposition. On appeal, this Court affirmed the trial court’s ruling. In reaching this result, this Court held that handcuffing an individual too tightly may constitute gross negligence for purposes of governmental immunity if physical injury results, and we also held that defendant failed to meet his initial burden of providing evidence in support of his motion for summary disposition. Oliver, 269 Mich App at 566-568. However, this Court indicated that defendant might be entitled to summary disposition at the conclusion of discovery:
Because the trial court denied defendant’s motion for summary disposition without prejudice, both parties will have sufficient opportunity to compile additional evidence, and, if he so desires, defendant can bring another motion for summary disposition at the end of the discovery period. \Id. at 568.]
At the end of the discovery period, defendant filed another motion for summary disposition, which the trial court denied. Defendant has again appealed as of right in this Court.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). “With regard to a motion for summary disposition pursuant to MCR 2.116(C)(7), this Court reviews the affidavits, pleadings, and other documentary evidence presented by the parties and £accept[s] the plaintiffs well-pleaded allegations, except those contradicted by documentary evidence, as true.’ ” Young v Sellers, 254 Mich App 447, 449-450; 657 NW2d 555 (2002), quoting Novak v Nationwide Mut Ins Co, 235 Mich App 675, 681; 599 NW2d 546 (1999). In ruling on a motion for summary disposition under MCR 2.116(C)(10), “a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party.” Scalise v Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858 (2005). Summary disposition is appropriate under MCR 2.116(C)(10) when ££[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.”
The Supreme Court in Odom v Wayne Co, 482 Mich 459, 479-480; 760 NW2d 217 (2008), set forth the following steps that a court must follow when a defendant raises the affirmative defense of individual governmental immunity:
(1) Determine whether the individual is a judge, a legislator, or the highest-ranking appointed executive official at any level of government who is entitled to absolute immunity under MCL 691.1407(5).
(2) If the individual is a lower-ranking governmental employee or official, determine whether the plaintiff pleaded an intentional or a negligent tort.
(3) If the plaintiff pleaded a negligent tort, proceed under MCL 691.1407(2) and determine if the individual caused an injury or damage while acting in the course of employment or service or on behalf of his governmental employer and whether:
(a) the individual was acting or reasonably believed that he was acting within the scope of his authority,
(b) the governmental agency was engaged in the exercise or discharge of a governmental function, and
(c) the individual’s conduct amounted to gross negligence that was the proximate cause of the injury or damage.
(4) If the plaintiff pleaded an intentional tort, determine whether the defendant established that he is entitled to individual governmental immunity under the Ross [v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984)] test by showing the following:
(a) The acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority
(b) the acts were undertaken in good faith, or were not undertaken with malice, and
(c) the acts were discretionary, as opposed to ministerial.
Following the steps provided in Odom, we first observe that defendant is indisputably a lower-level governmental employee not entitled to the absolute immunity provided by MCL 691.1407(5). It is also plain that plaintiff pleaded both negligent and intentional torts. We will address both alleged torts in turn.
As was clarified in Odom, in order to determine whether defendant is entitled to summary disposition under MCR 2.116(C)(7), the proper inquiry is whether defendant has met his burden of proof in establishing that he is entitled to governmental immunity as a matter of law. Odom, 482 Mich at 479. Governmental immunity from negligence claims applies to officers of a governmental agency when they are acting, or reasonably believe they are acting, within the scope of their employment, they are exercising or discharging a governmental function, and their conduct does not amount to gross negligence that is the proximate cause of the injury or damage. Id. at 479-480; MCL 691.1407(2). Here, there is no doubt that defendant was acting within the scope of his authority and was discharging a governmental function during the time he was arresting plaintiff and taking him into police custody. Thus, the only remaining question with regard to the gross-negligence claim is whether defendant’s conduct amounted to gross negligence that was the proximate cause of the injury or damage.
For the purpose of governmental immunity, “gross negligence” by an employee involves “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a); Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 411; 716 NW2d 236 (2006). It has been characterized as a willful disregard of safety measures and a singular disregard for substantial risks. Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). If reasonable jurors could honestly reach different conclusions regarding whether conduct constitutes gross negligence, the issue is a factual question for the jury. However, if reasonable minds could not differ, the issue may be determined by a motion for summary disposition. Jackson v Saginaw Co, 458 Mich 141, 146-147; 580 NW2d 870 (1998). When this case was first before this Court, we held “that a police officer’s conduct of handcuffing an individual too tightly does not constitute gross negligence unless physical injury results,” and the case then continued in the trial court with the completion of discovery. Oliver, 269 Mich App at 566.
In the trial court, plaintiff presented evidence that he suffered from continuing pain and decreased strength and range of motion, as well as wrist abrasions apparent immediately after his arrest. We held in our previous opinion in this case: “Evidence that handcuffing caused some pain but not injury is insufficient to establish excessive force in applying the handcuffs; if injury is minimal or nonexistent, then the force creating it must also be minimal and, therefore, not excessive.” Id. at 566. The evidence presented by plaintiff was generally subjective and difficult to verify. However, if plaintiffs complaints are believed, then he has suffered more than “some pain” and minimal injury and has suffered an injury that affects his ability to work and perform daily activities. Because the question turns on plaintiffs credibility, it would be proper to submit to a jury if the alleged gross negligence was the proximate cause of the injury or damage.
Proximate cause in the context of MCL 691.1407(2) refers to the cause that is “the one most immediate, efficient, and direct cause preceding an injury.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). Taking the evidence in the light most favorable to plaintiff, there was simply no evidence establishing that it was defendant’s acts alone that were “the one most immediate, efficient, and direct cause preceding [plaintiffs] injury.” Id. The record evidence shows that plaintiff got out of the vehicle and began yelling at the officers to let the driver go after the police stopped the vehicle. Plaintiff was belligerent and failed to comply with the officers’ orders to remain in the vehicle, making it unsafe for them to continue the field sobriety tests of the driver. The police attempted to arrest plaintiff for hindering that process but plaintiff refused to place his hands behind his back so that he could be handcuffed. Defendant managed to place one cuff on plaintiffs right wrist, but plaintiff then began to pull away. Accordingly, a second officer had to help defendant pull plaintiffs left arm behind his back in order to handcuff plaintiff. As a result, plaintiff was also arrested for resisting arrest. Plaintiff does not seem to dispute the majority of the police evidentiary account of what occurred during the arrest but adds that defendant threw him to the ground in order to handcuff him.
Under these circumstances, it cannot be said that defendant’s acts alone were “the one most immediate, efficient, and direct cause preceding [plaintiffs] injury.” Robinson, 462 Mich at 459. The wrist and hand injury is not clearly attributable to defendant alone and instead may just as fairly be attributed to plaintiff. The facts as developed clearly indicate that plaintiff was actively resisting arrest and the record indicates that plaintiffs injuries were just as likely caused by his own efforts to thwart the officers’ attempts to restrain him. Plaintiff could have caused his own injuries when he: (1) refused to place his hands behind his back to allow the officers to handcuff him and the officers had no other option but to pull plaintiffs left arm, wrist, and hand behind his back, (2) continued to resist when he pulled away from the officers after defendant was able to affix the first cuff, or (3) forced the officers to restrain him on the ground after he continued to refuse to submit to the officers’ orders. Because, even when reviewing the facts in the light most favorable to plaintiff, it cannot be said that defendant’s acts constituted the proximate cause of plaintiffs injuries, defendant has met his burden of proof in establishing entitlement to governmental immunity under MCL 691.1407(2). The trial court there fore erred by not granting defendant’s motion for summary disposition of plaintiffs “gross negligence” claim under MCR 2.116(C)(7).
In Odom, 482 Mich at 480, our Supreme Court stated that the proper method for determining whether governmental immunity applies to intentional torts (such as assault and battery) is to apply the test set forth in Ross. The Odom Court stated that employees enjoy a qualified right to immunity if (1) the employee’s challenged acts were undertaken during the course of employment and the employee was acting, or reasonably believed he or she was acting, within the scope of his or her authority, (2) the acts were undertaken in good faith, or were not undertaken with malice, and (3) the acts were discretionary, rather than ministerial, in nature. Odom, 482 Mich at 480 citing Ross, 420 Mich at 633.
With regard to the assault and battery claim, defendant was clearly acting during the course of his employment and within the scope of his authority. The parties’ primary disagreement is whether defendant was acting in good faith when he handcuffed plaintiff. “The good-faith element of the Ross test is subjective in nature. It protects a defendant’s honest belief and good-faith conduct with the cloak of immunity while exposing to liability a defendant who acts with malicious intent.” Odom, 482 Mich at 481-482. Here, the trial court concluded that plaintiffs evidence that defendant laughed when he complained that the handcuffs were on too tightly suggested that defendant may not have been acting in good faith, and thus, there was a question of material fact for a jury.
Defendant’s argument in response focuses on whether he honestly believed there was a need to handcuff plaintiff, but that is not the issue in question. Under Ross, what is in question is whether defendant acted in good faith when he selected how tightly to handcuff plaintiff, not whether defendant had a good-faith basis for handcuffing plaintiff. Plaintiff relies solely on defendant’s laughter when plaintiff informed him that the handcuffs were too tight to suggest that defendant’s decision in that regard may not have been made in good faith. But defendant’s laughter after plaintiffs complaint could just as fairly indicate his disbelief of plaintiff, thinking that if he loosened the handcuffs, plaintiff might again endeavor to resist, thereby creating another dangerous situation that defendant was not willing to risk. The laughter could also indicate that defendant was flabbergasted with plaintiff after plaintiffs obstreperous behavior, and had nothing to do with his previous act of cuffing plaintiff. When looking at the situation as a whole, the officers were faced with an unruly individual who was verbally belligerent, actively disturbing a police inquiry, and creating a dangerous situation for the officers involved. Plaintiff was intent on physically resisting arrest and as a result, plaintiffs injuries were just as likely caused by his own repeated efforts to physically thwart the officers’ attempts to restrain him and regain control of the situation. Under these facts, considering the vast array of emotions defendant’s laughter could signify, even when viewing the evidence in the light most favorable to plaintiff, plaintiffs reliance on the laughter alone, without more, did not create a justiciable question of fact with regard to whether defendant acted in good faith when he placed the cuffs on plaintiff.
Defendant also contends that the trial court erred when it concluded that handcuffing was a ministerial, as opposed to a discretionary, act. “ ‘Discretionarydecisional’ acts are those which involve significant decision-making that entails personal deliberation, de cisión, and judgment. ‘Ministerial-operational’ acts involve the execution or implementation of a decision and entail only minor decision-making.” Ross, 420 Mich at 592. In reaching its conclusion, the trial court relied on Watson v Quarles, 146 Mich App 759; 381 NW2d 811 (1985). Citing Ross, Watson held that an officer’s decision concerning what type of action to take, e.g., to make an arrest, issue a warning, or wait for assistance, is a discretionary act entitled to immunity. However, the execution of that decision is merely a ministerial act. Id. at 764-765. This Court has also observed that, “[i]t was generally conceded in Ross that a police officer’s use of excessive force in effectuating an arrest is a ministerial act and not entitled to the cloak of immunity.” Butler v Detroit, 149 Mich App 708, 718; 386 NW2d 645 (1986). Here, defendant was faced with an aggressive individual who was intent on physically and forcefully resisting the officers’ efforts to restrain him. While handcuffing an individual under normal circumstances incident to an arrest without resistance may be a ministerial act, plaintiff’s conduct in this case, given his belligerent attitude, physical resistance to being arrested, and defiant refusal to put his arms behind his back to be handcuffed, together with the concern for the officers’ safety transformed the act of handcuffing plaintiff into a discretionary act. Under these circumstances, defendant’s actions, in deciding how to respond to plaintiff, safely defuse the situation, and effectuate a lawful arrest of plaintiff as he resisted, were clearly discretionary. Accordingly, it is a decision to which governmental immunity applies.
Reversed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
References to “defendant” in the singular are to Smith alone.
The trial court granted summary disposition in favor of all defendants except Smith on plaintiffs state-law claims. The federal issues raised in the case were removed to a federal court. Thus, only the state-law claims against defendant are in dispute here. | [
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Per Curiam.
Petitioners appeal by right an order of the Michigan Tax Tribunal (MTT) affirming respondent’s assessment of their real property. We affirm. This appeal has been decided without oral argument. MCR 7.214(E).
Petitioners are two husband-and-wife couples, Roy and Susan Hackert and Theodore and Joan Schwass. All the real estate at issue was owned by two partnerships, Tero Farms and KaJo Farms, of which Roy Hackert and Theodore Schwass were the only partners. The partnerships deeded the real estate parcels to one or the other of the individual partners and their respective spouses. Following these conveyances, respondent reassessed the parcels and raised the taxable values of the property beginning with tax year 2006. Petitioners asserted that the conveyance of property from the partnerships to the individual partners was not a transfer that would operate to remove the cap on the property’s taxable values. The MTT initially adopted the hearing referee’s proposed opinion in its final order affirming the assessment. However, after petitioners filed their claim of appeal in this Court, the MTT issued a “Corrected Final Opinion and Judgment” in which it concluded that the hearing referee’s statutory basis for deciding the matter was erroneous, but that the error was harmless because the conveyances were not within one of the identified exceptions to uncapping. The MTT therefore affirmed the result that petitioners’ property was subject to uncapping unless an affidavit was filed stating that the property was qualified agricultural property.
We review de novo legal questions decided by the MTT. See Cowles v Bank West, 476 Mich 1, 13; 719 NW2d 94 (2006); see also Blaser v East Bay Twp, 242 Mich App 249, 252; 617 NW2d 742 (2000). Statutory interpretation is a question of law subject to de novo review. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).
The Michigan Constitution and Michigan statutory law permit the taxable value of real property to be reassessed upon the sale or transfer of the property according to the following year’s state equalized value. Const 1963, art 9, § 3; MCL 211.27a(3); Signature Villas, LLC v Ann Arbor, 269 Mich App 694, 696-697; 714 NW2d 392 (2006). This is known as “uncapping” the taxable value. Id. at 697. Uncapping occurs whenever a “transfer of ownership” occurs. MCL 211.27a(3). “[Tjransfer of ownership” is “the conveyance of title to or a present interest in property, including the beneficial use of the property, the value of which is substantially equal to the value of the fee interest.” MCL 211.27a(6). The statute lists several types of conveyances that qualify as a “transfer of ownership,” including “[a] conveyance by deed.” MCL 211.27a(6)(a). The statute also lists certain types of conveyances that are excepted from this definition and do not give rise to uncapping. MCL 211.27a(7).
In the instant case, the property was conveyed by deed. Accordingly, the conveyance was a “transfer of ownership” under MCL 211.27a(6)(a) unless one of the exceptions of MCL 211.27a(7) was applicable. Before the property was conveyed, it was owned by a partnership. Under Michigan law, “[a] partner is a co-owner with his partners of specific partnership property holding as a tenant in partnership[.]” MCL 449.25(1). Petitioners assert that there is no functional difference between a tenancy in partnership, which existed here, and a joint tenancy. Accordingly, they contend that the joint tenancy exception set out in MCL 211.27a(7)(h) should control and the taxable value should not be uncapped.
We disagree. The statutory scheme unambiguously identifies the types of conveyances that do not trigger uncapping, and conveyances involving tenancies in partnership are not among those listed. See MCL 211.27a(7). Nor can we assume that the Legislature intended to include tenancies in partnership when it used the term “joint tenancy” in the exception provided by MCL 211.27a(7)(h). In Wengel v Wengel, 270 Mich App 86, 93; 714 NW2d 371 (2006), this Court identified the five types of coownership in this state, listing joint tenancies and tenancies in partnership separately: “In Michigan, there are five common types or forms of concurrent ownership that are recognized relative to the ownership of real property, and those are tenancies in common, joint tenancies, joint tenancies with full rights of survivorship, tenancies by the entireties, and tenancies in partnership.” Although joint tenancies and tenancies in partnership are similar, they remain legally distinct forms of ownership, and the Uniform Partnership Act does not identify property held by a partnership as property held in “joint tenancy.” Moreover, because MCL 449.25 was enacted by 1917 PA 72, long before the process of uncapping was devised by the Legislature, it cannot be said that the Legislature was unaware of tenancies in partnership at the time it amended MCL 211.27a(7) in 1994 to provide for uncapping. See 1994 PA 415. Petitioners essentially ask this Court to make a policy decision, an argument more properly addressed to the Legislature. It is well settled that “questions of Michigan tax policy are determined by the Legislature, not the courts.” TMW Enterprises Inc v Dep’t of Treasury, 285 Mich App 167, 180; 775 NW2d 342 (2009).
Affirmed. No taxable costs pursuant to MCR 7.219, a public question having been involved.
Because the incorrect statutory basis of the original final order has been vacated, we need not address petitioners’ argument that the decision contained erroneous legal reasoning. | [
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Per Curiam.
Appellant, Tommy Joe Barrow, appeals as of right an opinion and order denying his emergency application for leave to file a complaint for quo warranto. Appellant filed this action for quo warranto in order to challenge the outcome of the November 2009 election of appellee Dave Bing as mayor of the city of Detroit. Because the trial court did not err by denying appellant’s application for leave for the reason that appellant failed to allege specific facts warranting further inquiry by quo warranto, we affirm.
I
This action arises out of the November 3, 2009, general election in which both appellant and Dave Bing appeared on the ballot as candidates for mayor of the city of Detroit. On November 16, 2009, the board of city canvassers declared that appellant had received 50,785 votes and Bing received 70,166 votes in the mayoral election and certified Mayor Bing as the winner. On November 20, 2009, appellant filed a recount petition alleging “fraud, deliberate mistake and electronic manipulation” of the ballots cast in the election. At a meeting on November 23, 2009, the Wayne County Board of Canvassers approved appellant’s recount petition. Thereafter, the Wayne County Board of Canvassers informed appellant that the recount would commence on December 9, 2009.
Before the recount date, on November 24, 2009, appellant sent a letter to the Wayne County Clerk requesting that she secure the ballots pending the recount, alleging that the ballots were “under the sole control of the building Janitor.” On the same day, the Wayne County Board of Canvassers, through its attorney, sent appellant an e-mail informing him that Michigan election law contained procedures for ballot secu rity pending a recount and that “[a]bsent a court order, the statutory procedures will be followed.” It is undisputed that appellant did not seek a court order.
The recount was held on December 9, 2009, as scheduled. Following the recount, the Wayne County Board of Canvassers met and addressed appellant’s various challenges at a series of meetings on December 11, 15,18, 22, and 23, 2009. On December 23, 2009, the Wayne County Board of Canvassers approved a motion to certify the election, despite appellant’s assertion “that there were 49,386 votes that were not recount-able.” The Wayne County Board of Canvassers’ certification of the results of the recount as 47,062 votes for appellant and 65,946 votes for Mayor Bing was filed on December 24, 2009.
On December 30, 2009, appellant wrote letters of complaint to the Wayne County Prosecutor, the Michigan Attorney General, and the Bureau of Elections of the Michigan Secretary of State, asking each to initiate an investigation. On January 5, 2010, appellant again wrote to the Attorney General, asking him to initiate quo warranto proceedings. On January 15, 2010, the prosecutor declined to proceed. On February 9, 2010, the Attorney General informed appellant by letter that he had routed appellant’s letter to the criminal division for review and that review of the appellant’s complaint materials was complete. In the letter, the Attorney General explained that there was a “lack of evidence of criminal intent to defraud,” contrary to appellant’s allegations, and declined to take further action at that time. On February 23, 2010, the Attorney General also declined to seek a writ of quo warranto. On February 23, 2010, the Secretary of State issued a letter informing appellant that she had conducted an inquiry into appellant’s complaint, that the investigation revealed “no evidence to indicate or suggest that any type of fraudulent vote manipulation occurred during or after the administration of the election,” and that the investigation was concluded.
On April 2, 2010, appellant filed an “Emergency Application for Leave to File Quo Warranto Action” in the circuit court, alleging that various election law errors, mistakes, and violations were committed that undermined any confidence in the outcome of the election. The Wayne County appellees filed an answer on April 7, 2010, denying appellant’s allegations that Mayor Bing had usurped the office of mayor and was not entitled to that office on the basis of the election of November 3, 2009. On April 8, 2010, the Wayne County appellees filed a brief in support of their answer, arguing that appellant had failed to make out a prima facie case of fraud or error or show that he was entitled to the mayor’s position. They also argued that appellant’s application was time-barred or barred by laches.
Mayor Bing filed an answer to the application, denying appellant’s allegations on April 9, 2010. On May 3, 2010, Mayor Bing filed a brief in support, arguing that appellant had failed to show factual support for his allegations. The city of Detroit appellees filed an appearance on May 4, 2010, but did not file an answer or a brief in opposition to appellant’s application. On May 7, 2010, appellant filed a reply brief in support of his application, arguing that a “monumental number of irregularities which may have indeed derived from fraud or gross errors” justified inquiry by quo warranto. Appellant also denied that his application was time-barred or barred by laches or would cause harm or undue expense to the public.
At a hearing on May 10, 2010, appellant argued that the trial court should grant his request for leave to proceed in quo warranto because of appellees’ failure to comply with mandatory provisions concerning ballot container seals and calibration of clocks in the voting machines, resulting in 59,135 ballots not being recounted, which were more than enough to change the outcome of the election. Appellant maintained that he was not asserting material fraud or error, which would have been subject to a 30-day limitations period.
The county appellees countered that because propositions B and S were on the same ballot as the mayor’s race, the statutory subsection of MCL 600.4545 dealing with material fraud or error applied and appellant’s application was time-barred. The county appellees argued that if the election were declared invalid, a new election would be required, including a new primary, at substantial public cost. The county appellees argued that appellant had failed to plead specific facts necessary for the court to conclude that fraud or irregularities existed and, instead, had simply promised to develop supporting evidence at a later date. Further, the county appellees argued that appellant’s allegations were unsupported because the Attorney General and the Secretary of State had both investigated the matter and neither had found evidence of fraud or vote manipulation.
Mayor Bing adopted the county appellees’ arguments, noting that appellant had stated in his reply brief that he observed numerous irregularities that “may have indeed derived from fraud or gross errors.” Mayor Bing also observed that such speculation was insufficient to meet the required specificity standard. Mayor Bing then summarized the substantive allegations of appellant’s application and argued that appellant had failed to make allegations that were factually specific enough to justify further inquiry by quo warranto. Mayor Bing noted that approximately 80 out of 100 absentee precincts were counted before those ballots were deemed unrecountable and that the results of that recount (before it was halted) agreed with the original results. Further, there was no evidence that the polls were open fewer hours than required by law, so those 9,649 ballots (while unrecountable) were unremarkable. Moreover, Michigan election law requires that when precincts are deemed unrecountable because of sealing issues, the original results stand.
The city appellees adopted the arguments made by the other attorneys, adding that holding a new election would cost approximately $2 million and would cause “extreme” financial hardship. In reply, appellant’s counsel admitted that “we don’t know how [the irregularities] happened. Could have been inadvertence, incompetence, could have been any number of reasons,” so “[w]e didn’t plead that.” The trial court took the matter under advisement.
On May 11, 2010, the trial court issued an opinion and order denying appellant’s application. The trial court stated that when determining whether to grant leave, it was required to determine “whether the application discloses sufficient apparent merit to justify further inquiry by quo warranto proceedings.” The trial court found that appellant’s essential claim was that
Detroit election officials had made such numerous errors, and mistakes, and had engaged in such numerous violations of Michigan election law that the number of ballots deemed not to be recountable or tainted was more than six (6) times the number necessary to alter the outcome of the city’s general election for mayor.
The trial court observed that appellant claimed in particular that 41,485 absentee ballots and 8,001 other ballots were deemed unrecountable; that another 9,649 ballots had dates and times calling into question whether the precincts were open during the hours required by law; that a total of 59,135 ballots (47.4 percent of the total vote for mayor) were found to be unrecountable; that “ ‘an additional unknown number of countable ballots have likely been tampered with and manipulated, further eliminating any reasonable certainty as to the true outcome of the election’ ”; and, thus, that “ ‘there exists no reasonable certainty that any winner could be determined accurately and with the required legal certainty.’ ”
The trial court specifically found the following:
As the aforementioned portions of Plaintiff s[ ] application illustrate, Plaintiff has failed to allege any specific facts establishing that ballots were tampered with and/or manipulated, or that Defendants engaged in unlawful acts. Even assuming that Plaintiffs action is premised on irregularities as opposed to actual ballot tampering or other illegal acts, he has failed to state facts sufficient to support an inquiry into whether Bing usurped the office of mayor on the basis of those irregularities. Specifically, Plaintiff has failed to allege facts in support of his conclusion that any ballots which were not recounted were not valid as cast. He has also failed to provide factual support for his allegations that the Detroit Board of Canvassers “repeatedly violated statute election law and procedures.”
The trial court concluded that appellant had failed to show that his application had “sufficient apparent merit to justify further inquiry by quo warranto” proceedings into Mayor Bing’s position as mayor of the city of Detroit and denied appellant’s application for leave. This appeal followed.
ii
Appellant’s sole argument on appeal is that the trial court erred by denying his application for leave to file an action for quo warranto because the application disclosed sufficient merit to justify further inquiry by quo warranto proceedings. Appellant asserts that he proceeded under MCL 600.4505 and alleged usurpation due to the massive number of irregularities (i.e., errors, mistakes, and violations of Michigan election laws). Appellant maintains that his application was based on the 59,135 irregular ballots resulting from numerous election law violations that were disclosed by the December 2009 recount and that he did not allege election fraud and did not seek to set aside the entire November 2009 election.
The county appellees, the city appellees, and Mayor Bing all respond that the trial court correctly held that appellant failed to allege specific facts warranting further inquiry by quo warranto and, for that reason, properly denied appellant’s application. The county appellees argue that caselaw requires appellant to offer “critical facts” in support of his applica tion for leave to file an action for quo warranto showing a prima facie case of usurpation and that he did not do so. The county appellees contend that the trial court could not determine from the face of appellant’s application that fraud or errors were committed. Additionally, the county appellees assert that appellant failed to include allegations showing his entitlement to the office of mayor, not mere uncertainty concerning the true outcome.
The city appellees argue that appellant’s application for leave to proceed by quo warranto alleged no facts to support his claims that ballots were tainted, that the winner of the election could not be ascertained, that errors and mistakes were made, or that Detroit election officials engaged in numerous election law violations. Similarly, Mayor Bing asserts that appellant failed to allege, much less offer proof of, any actual facts that would warrant further investigation by quo warranto. Mayor Bing contends that appellant has offered speculation rather than any facts tending to show that the election was improper and simply complains that various authorities failed to take the steps he requested concerning his various concerns.
hi
A court’s decision whether to grant or deny an application for leave to proceed by quo warranto is reviewed for an abuse of discretion. Shoemaker v City of Southgate, 24 Mich App 676, 680-681; 180 NW2d 815 (1970); McDonald v Jackson, 3 Mich App 287, 288-290; 142 NW2d 42 (1966). An abuse of discretion occurs only when the trial court’s decision falls outside the range of “reasonable and principled outcome[s].” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
IV
“Quo warranto” literally means “by what authority.” Black’s Law Dictionary (8th ed), p 1285. It is “[a] common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed.” Id. MCR 3.306 governs actions for quo warranto. The rule provides, in pertinent part:
(A) Jurisdiction.
(1) An action for quo warranto against a person who usurps, intrudes into, or unlawfully holds or exercises a state office, or against a state officer who does or suffers an act that by law works a forfeiture of the office, must be brought in the Court of Appeals.
(2) All other actions for quo warranto must be brought in the circuit court.
(B) Parties.
(1) Actions by Attorney General. An action for quo warranto is to be brought by the Attorney General when the action is against:
(a) a person specified in subrule (A)(1);
(b) a person who usurps, intrudes into, or wrongfully holds or exercises an office in a public corporation created by this state’s authorityl.]
(3) Application to Attorney General.
(a) A person may apply to the Attorney General to have the Attorney General bring an action specified in subrule (B)(1). The Attorney General may require the person to give security to indemnify the state against all costs and expenses of the action. The person making the application, and any other person having the proper interest, may be joined as parties plaintiff.
(b) If, on proper application and offer of security, the Attorney General refuses to bring the action, the person may apply to the appropriate court for leave to bring the action himself or herself.
(C) Person Alleged to be Entitled to Office. If the action is brought against the defendant for usurping an office, the complaint may name the person rightfully entitled to the office, with an allegation of his or her right to it, and that person may be made a party. [Emphasis added.]
MCL 600.4501 echoes the court rule’s provision allowing a private party to bring an action for quo warranto by leave. of court if the Attorney General refuses to act. A quo warranto action may be brought under MCL 600.4505, which provides:
(1) In actions brought against persons for usurpation of office, the judgment may determine the right of the defendant to hold the office. If a party plaintiff alleges that he is entitled to the office, the court may decide which of the parties is entitled to hold the office.
(2) If judgment is rendered in favor of a party who is averred to be entitled to the office, he is entitled, after taking the oath of office, and executing any official bond which is required by law, to take the office. Such party shall be given all the books and papers in the custody of the defendant, or within his power, belonging to the office. [Emphasis added.]
An action under MCL 600.4505 is appropriate when the plaintiff seeks to challenge the defendant’s right to hold office, but fraud or error is not alleged. See People ex rel Wexford Co Prosecuting Attorney v Kearney, 345 Mich 680, 692; 77 NW2d 115 (1956). A plaintiff can prevail under MCL 600.4505 only by showing “his own good title” to the office. Ebright v Buck, 326 Mich 208, 212; 40 NW2d 122 (1949); see also Marian v Beard, 259 Mich 183, 185-187; 242 NW 880 (1932).
“[A]ny damages sustained because of the usurpation” can be recovered under MCL 600.4511, and such a claim may be asserted independently, or as part of the plaintiffs action for quo warranto. Additionally, under MCL 600.4515, a court may award costs and may fine a defendant “found or adjudged guilty of usurping or intruding into or unlawfully holding or exercising any office ... .”
An action in the nature of quo warranto may be brought under MCL 600.4545, which provides:
(1) An action may be brought in the circuit court of any county of this state whenever it appears that material fraud or error has been committed at any election in such county at which there has been submitted any constitutional amendment, question, or proposition to the electors of the state or any county, township, or municipality thereof.
(2) Such action shall be brought within 30 days after such election by the attorney general or the prosecuting attorney of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or a judge thereof. Such action shall be brought against the municipality wherein such fraud or error is alleged to have been committed.
(3) After such action is brought the procedure shall conform as near as may be to that provided by law for actions for quo warranto. [Emphasis added.]
Accordingly, the 30-day limit applies only if the plaintiff alleges material fraud or error under MCL 600.4545. Kearney, 345 Mich at 692. Under MCL 600.4545, “material fraud or error” means fraud or error that “might have affected the outcome of the election.” St Joseph Twp v City of St Joseph, 373 Mich 1, 6; 127 NW2d 858 (1964). While a “but for” showing is not necessary, the plaintiffs “proofs must be sufficient to support a fact finding that enough votes were tainted by the alleged fraud to affect the outcome.” Id.
A traditional quo warranto action under MCL 600.4505 seeks to “try title” to the disputed office. Risk v Lincoln Charter Twp Bd of Trustees, 279 Mich App 389, 390 n 1; 760 NW2d 510 (2008). An action in the nature of quo warranto is brought to challenge the validity of the election itself. Id. MCL 600.4545 “does not apply to quo warranto actions to try title to a particular office, but only to test the validity of an election with regard to a constitutional amendment, question or proposition.” Stokes v Clerk of the Monroe Co Canvassers, 29 Mich App 80, 84; 184 NW2d 746 (1970). “[H]owever, . . . actions in the nature of quo warranto... are functionally equivalent to traditional quo warranto actions and are consequently reviewable in the same manner.” Risk, 279 Mich App at 390-391 n 1.
MCR 3.301(A)(1)(d) and (2) “govern the procedure for seeking the writs or relief formerly obtained by the writs,” including a writ of quo warranto. In that regard, MCR 3.301(A)(3) provides that “[t]he general rules of procedure apply except as otherwise provided in this subchapter.” MCR 2.111(A)(1) requires that allegations made in a pleading be clear, concise, and direct. MCR 2.112(B)(1) requires that fraud and mistake be pleaded with particularity. Other matters, including malice, intent, and knowledge, can be pleaded generally under MCR 2.112(B)(2). MCR 3.301 does not otherwise contain pleading requirements for a petition for leave to proceed by quo warranto. Nonetheless, our Supreme Court has held that an application for leave to file, an action for quo warranto “should be so clear and positive in its statement of facts as to make out a clear case of right; and should be so framed as to sustain a charge of peijury if any material allegation is false.” Boucha v Alger Circuit Judge, 159 Mich 610, 611; 124 NW 532 (1910), citing Cain v Brown, 111 Mich 657, 660; 70 NW 337 (1897); see also Vrooman v Michie, 69 Mich 42, 46; 36 NW 749 (1888).
Vrooman was “the first instance of [quo warranto] proceedings by a private relator.. . .” Vrooman, 69 Mich at 46. On appeal, the Supreme Court held that the trial court had properly dismissed the action because the plaintiff failed to respond substantively to the defendant’s argument that, as supervisor, the plaintiff was disqualified from holding the appointed office in question. Id. at 45-46. Nonetheless, the Supreme Court found it “proper to remark on some peculiarities of the present record.” Id. at 46. In dicta, the Vrooman Court stated that leave had been improperly granted by the trial court because the statute “does not contemplate that leave shall be granted without some showing [that the plaintiff is entitled to the office], as it was in this case.” Id. at 46. The Court stated that when leave of the court is required for a given action, “[c]ourts can never act unless upon some responsible showing, and, as it is contrary to public policy to allow persons to be needlessly annoyed by vexatious claims, the statute .. . does not, as construed, permit a relator to proceed without exacting a very precise and positive showing.” Id. The Court observed that
a chief object in requiring leave is to prevent vexatious prosecutions; and the rule is inflexible that there must be affidavits so full and positive from persons knowing the facts as to make out a clear case of right in such a way that perjury may be brought if any material allegation is false. [MJ
The Court stated that “the relator is not allowed to proceed without showing, not merely a good case in law against respondent, but also that public policy will be subserved by the proceeding.” Id. at 46-47. Finally, the Court stated that “[a]s no showing was made to obtain leave to file the information in the present case, leave should not have been granted.” Id. at 47.
In Boucha, 159 Mich at 610-611, the petition alleged that the election board had failed to count 11 votes in the relator’s favor, allegedly because the ballots contained distinguishing marks when in fact they did not, that the real reason the election board refused to count those votes was that a majority of the board opposed the relator’s election as township supervisor, and that the board had illegally counted “between one and ten ballots” for the relator’s rival even though those ballots contained distinguishing marks and were therefore illegal. The Boucha Court stated that “[t]he law requires a precise and positive showing before the court will interfere” in the results of an election. Id. at 611. It also stated that an application for leave to file a complaint for quo warranto must “make a showing sufficiently clear and definite as to facts, to make out a prima facie case . ...” Id. (quotation marks omitted). The Court also observed that leave should not be granted where the applicant “swears to a conclusion only.” Id.
In Penn Sch Dist No 7 v Lewis Cass Intermediate Sch Dist Bd of Ed, 14 Mich App 109, 117; 165 NW2d 464 (1968), this Court stated that Vrooman and Boucha, among others, did not apply to actions brought under MCL 600.4545. In that case, however, the Court was discussing standing, not pleading requirements, and accordingly concluded that, unlike the plaintiff in an action under MCL 600.4505, a plaintiff in an action under MCL 600.4545 need not show a special interest in, or entitlement to, the position in question. Id. at 117-118. However, the Court agreed with Vrooman and Boucha that the controlling considerations in determining whether to grant leave are whether the applicant made the appropriate request to the Attorney General and “whether the application discloses sufficient apparent merit to justify further inquiry by quo warranto proceedings.” Id. at 118.
In sum, leave to file an action for quo warranto is properly denied (as futile) when the application fails to disclose sufficient facts and grounds, and sufficient apparent merit, to justify further inquiry by quo warranto proceedings. 4 Longhofer & McKenna, Michigan Court Rules Practice (5th ed), pp 444-445; Grand Rapids v Harper, 32 Mich App 324, 329; 188 NW2d 668 (1971).
v
In the present case, appellant’s application alleged that Mayor Bing usurped the office of mayor. Appellant requested leave to file an action for quo warranto under MCL 600.4505, based on the Attorney General’s refusal to proceed. As far as his own entitlement to the office, appellant alleged that “[tjhere is a likelihood that Plaintiff was in fact elected and Defendant David Bing has usurped the office.” (Emphasis added.) Appellant alleged that before the primary election he “suspected” that ballot tampering would occur at the primary and that the authorities refused to act on those concerns before or after the primary. Appellant also alleged in his application that before the general election he was “concerned] ” that “computer manipulation and ballot tampering” would occur at the general election, but the authorities again refused to act before the election. After the general election, appellant sought a recount “based on computer manipulation and absentee ballot tampering,” and his request for a recount was approved.
Appellant further alleged in his application, in particular:
8. The facts of this case and the evidence to be developed will show that:
e. Upon being granted the recount, Plaintiff immediately requested, in writing, that the county impound and secure the ballots as he believed that absentee and other voter ballot tampering would occur before the recount could begin. The county refused to act upon his request.
f. During the recount conducted by the Wayne County Board of Canvassers it was revealed that Detroit election officials had made such numerous errors, and mistakes, and had engaged in such numerous violations of Michigan election law that the number of ballots deemed not to be recountable and or tainted was more than six (6) times than [sic] the number necessary to alter the outcome of the city’s General election for mayor.
g. The recount also revealed that Detroit election officials had failed to perform and enforce numerous procedures and requirements set forth by the State of Michigan designed to ensure the integrity of elections.
h. As a direct and proximate result, the Wayne County Board of Canvassers determined:
i. that 100% of the city’s 41,485 absentee voter ballots were not recountable.
ii. that an additional 8,001 of the city’s polling precincts’ voter ballots were not recountable.
Hi. that no less than an additional 9,649 precinct polling voter ballots had dates and times for which it could not be determined with certainty that they had been cast in compliance with the state law requiring polls to remain open from 7am until 8pm.
iv. [t]hat the total number of ballots tainted and or deemed not recountable by the Board of Canvassers was 59,135. [Emphasis added.]
Appellant also alleged that the official results of the election were 70,166 votes for Mayor Bing and 50,785 votes for appellant, a difference of 19,381 votes. Appellant further specifically alleged:
11. While the Board of Canvassers determined that 59,135 ballots were deemed not recountable and or tainted (47.4% of the total cast for mayor), Plaintiff believed and continues to believe that an additional unknown number of the countable ballots have likely been tampered with and manipulated, further eliminating any reasonable certainty as to the true outcome of the election.
12. The actual number of ballots necessary to change and alter the outcome of the election was only 9,692 (19,381 divided by 2 plus 1).
13. Had a full County canvass resulted in a deduction of 9,692 ballots from Defendant and, of necessity, an addition of 9,692 ballots to Plaintiff, it would have altered the outcome of the election.
14. Insofar as 59,135 ballots were deemed not recount-able or tainted, there exists no reasonable certainty that any winner could be determined accurately and with the required legal certainty.
15. Defendant Wayne County Board of Canvassers erred, breached its duty and abused its authority and discretion when despite having 59,135 out of a total of 124,802 (Defendant’s 70,166, Plaintiffs 50,785, all others 3,851) ballots cast being tainted at [sic] which only 9,692 ballots separated Defendant from Plaintiff, it issued a certificate of election to the Defendant.
16. Defendant Detroit Board of canvassers similarly erred, breached its duty and abused its authority and discretion when it repeatedly violated state election law and procedures in furtherance of the errors and irregularities.
17. As a direct and proximate result of the foregoing, there exists no reasonable certainty as to which candidate received the greatest number of legitimate, valid, and legal votes and thus remediation is required.
Finally, appellant alleged that the trial court had the authority to “see that this challenge to title is heard and resolved.”
Our review of the record reveals that the only specific facts alleged by appellant were the number of ballots deemed unrecountable, the number of votes in the original election, and the number of votes it would take to change the outcome. Appellant “suspected” that ballot tampering occurred in the general election, but did not allege that it did. Appellant alleged that Detroit election officials committed “numerous errors, and mistakes,” and engaged in “numerous violations of Michigan election law,” but did not state what those errors, mistakes, or violations were or whether they were committed before, during, or after the election. Appellant further alleged that, after the election, Detroit election officials “failed to perform and enforce numerous procedures and requirements” to ensure the integrity of the ballots, but did not specify what protocols were violated or how. Appellant alleged that 59,135 ballots were found to be “tainted and or deemed not recountable,” but did not state how or why. Appellant expressed his belief that “an additional unknown number of the countable ballots have likely been tampered with and manipulated,” but again failed to state how or when.
Appellant alleged that, given the number of unrecountable ballots, there was no certainty concerning the outcome. He alleged that, given the uncertainty, the county board of canvassers erred, breached its duty, and abused its authority and discretion by certifying Mayor Bing as the winner. Appellant alleged that the Detroit Board of Canvassers similarly erred, breached its duty, and abused its authority and discretion when it repeatedly violated state election laws and procedures in furtherance of the errors and irregularities, but again failed to state what those errors or violations were, or when and how they occurred.
Since filing his application, appellant has made some effort to specify the particular errors and violations of law of which he complains and discusses them at length on appeal. However, appellant never attempted to amend his application to add any specific, precise, definite, or clear and positive factual allegations. Thus, we conclude that the trial court correctly concluded that appellant’s application failed to disclose sufficient facts and grounds and sufficient apparent merit to justify further inquiry by quo warranto proceedings. Appellant’s conclusory allegations that mistakes, errors, and election law violations occurred were simply insufficient to justify granting leave to file an action for quo warranto.
VI
We conclude that the trial court correctly held that appellant had failed to allege specific facts warranting further inquiry by quo warranto and properly denied appellant’s application. For this reason, we need not reach any of the remaining issues raised by appellant — none of which the trial court decided. Nonetheless, the irregularities appellant alleges do not tend to show that any unrecountable ballots were not valid as originally cast or that Mayor Bing usurped the office of mayor.
Affirmed. Appellees, being the prevailing parties, may tax costs pursuant to MCR 7.219.
The Wayne County appellees consist of the Wayne County Board of Canvassers and its members: Krista Hartounian, Carol Larkin, Joseph Xuereb, and John Doe #2.
The city of Detroit appellees consist of (1) the city of Detroit, (2) the Detroit Board of Canvassers and its members, Dorothy Burrell, Edward Hartounian, and Walter Kroppy, and (3) the Detroit Elections Commission and its members, Daniel Baxter, Edwin Ukagbu, and George Azzuz.
Although no suit was filed in this case, the trial court proceedings consistently refer to appellant as “Plaintiff” and appellees as “Defendants.” For simplicity’s sake, we have not changed these designations in quoted material.
On June 16, 2010, this Court denied appellant’s motion for peremptory reversal. Barrow v Detroit Mayor, unpublished order of the Court of Appeals, entered June 16, 2010 (Docket No. 298128). On June 18, 2010, this Court granted in part the city of Detroit’s motion to expedite this appeal. Barrow v Detroit Mayor, unpublished order of the Court of Appeals, entered June 18, 2010 (Docket No. 298128).
The Court also observed that in the “information” filed after being granted leave of the court, the plaintiff did “not point out the defect supposed to exist in respondent’s title, but simply denies its validity.” Id. at 43. The plaintiff also “does not claim to hold any title himself to the office, except as asserting a right to hold over under an old appointment ....” Id. | [
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Murray, J.
I. INTRODUCTION
The question presented to this panel is whether plaintiff may invoke MCR 2.612(C)(1)(f) to reinstate a case after entry of a final judgment in favor of defendants because of a subsequent change or clarification in the law. In the prior decision in this case, King v McPherson Hosp, 288 Mich App 801 (2010) (King I), the panel held that a plaintiff should be able to prevail under the court rule, but could not because of the prior decision in Farley v Carp, 287 Mich App 1; 782 NW2d 508 (2010), with which it disagreed. Accordingly, the prior panel called for a vote of all members of the Court on whether to convene a conflict panel to resolve this dispute, MCR 7.215(J)(3)(a), which obviously a majority of the judges agreed to do. See King v McPherson Hosp, 288 Mich App 801 (2010) (order vacating prior opinion). For the reasons that follow, we hold that the trial court properly held that plaintiff could not reinstate the case under MCR 2.612(C)(1)(f).
II. BACKGROUND
This case, as well as Farley and another pertinent case, Kidder v Ptacin, 284 Mich App 166; 771 NW2d 806 (2009), involves the Supreme Court’s decision in Mullins v St Joseph Mercy Hosp, 480 Mich 948 (2007), in which the Court held that its prior holding in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), had only limited retroactive application. Specifically, the Mullins Court held in its order:
We reverse the July 11, 2006, judgment of the Court of Appeals. MCR 7.302(G)(1). We conclude that this Court’s decision in Waltz v Wyse, 469 Mich 642 [677 NW2d 813] (2004), does not apply to any causes of action filed after Omelenchuk v City of Warren, 461 Mich 567 [609 NW2d 177] (2000), was decided in which the saving period expired, i.e., two years had elapsed since the personal representative was appointed, sometime between the date that Omelenchuk was decided and within 182 days after Waltz was decided. All other causes of action are controlled by Waltz. In the instant case, because the plaintiff filed this action after Omelenchuk was decided and the saving period expired between the date that Omelenchuk was decided and within 182 days after Waltz was decided, Waltz is not applicable. Accordingly, we remand this case to the Washtenaw Circuit Court for entry of an order denying the defendants’ motion for summary disposition and for further proceedings not inconsistent with this order. [Mullins, 480 Mich at 948.]
Because plaintiffs action fell within the “any causes of action” language and was otherwise within the pertinent time frame as described- in Mullins, and plaintiff had litigated the statute-of-limitations issue up and down the judicial system, the prior panel held that relief should be available under the court rule. King I, 288 Mich App 801. We respectfully disagree.
III. ANALYSIS
As mentioned in the introduction, we hold that plaintiff cannot obtain relief from a final judgment under MCR 2.612(C)(1)(f) based upon a partially retroactive change or clarification in the law because, as explained below, both the Michigan and United States Supreme Court, as well as our Court, have held that even a case given full retroactivity does not apply to a closed case, as this one was when Mullins was decided.
We first have to recall that this case is before us on appeal from a trial court’s grant of a motion for relief from judgment brought pursuant to MCR 2.612(C)(1)(f). As explained in Heugel v Heugel, 237 Mich App 471, 478-479; 603 NW2d 121 (1999):
In order for relief to be granted under MCR 2.612(C)(lKf), the following three requirements must be fulfilled: (1) the reason for setting aside the judgment must not fall under subsections a through e, (2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and (3) extraordinary circumstances must exist that mandate setting aside the judgment in order to achieve justice. Altman v Nelson, 197 Mich App 467, 478; 495 NW2d 826 (1992); McNeil v Caro Community Hosp, 167 Mich App 492, 497; 423 NW2d 241 (1988). Generally, relief is granted under subsection f only when the judgment was obtained by the improper conduct of the party in whose favor it was rendered. Altman, supra; McNeil, supra.
As recently noted in Rose v Rose, 289 Mich App 45, 58; 795 NW2d 611 (2010), “[w]ell-settled policy consider ations favoring finality of judgments circumscribe relief under MCR 2.612(C)(1),” and although relief under subrule (C)(1)(f) is the widest avenue for relief under this court rule, it nonetheless requires “the presence of both extraordinary circumstances and a demonstration that setting aside the judgment will not detrimentally affect the substantial rights of the opposing party.” And our caselaw has long recognized that this court rule “contemplates that extraordinary circumstances warranting relief from a judgment generally arise when the judgment was obtained by the improper conduct of a party.” Id. at 62, citing Heugel, 237 Mich App at 479; see, also, Lark v Detroit Edison Co, 99 Mich App 280, 283; 297 NW2d 653 (1980).
In order to obtain relief under this subsection, then, plaintiff had to prove that keeping in place a final judgment after the caselaw the judgment was based upon was partially retroactively reversed (i.e., the “circumstances”) was so extraordinary that plaintiff should be afforded relief and that doing so would not be detrimental to defendants. Such a conclusion cannot be squared with a clear and unequivocal rule from our Supreme Court, a rule that itself is premised on United States Supreme Court precedent. The rule, plainly and recently set forth in People v Maxson, is that “ c[n]ew legal principles, even when applied retroactively, do not apply to cases already closed.’ ” People v Maxson, 482 Mich 385, 387; 759 NW2d 817 (2008), quoting Reynoldsville Casket Co v Hyde, 514 US 749, 758; 115 S Ct 1745; 131 L Ed 2d 820 (1995) (emphasis supplied). The basis for this longstanding rule is that “at some point, ‘the rights of the parties should be considered frozen’ .. . Reynoldsville Casket, 514 US at 758, quoting United States v Donnelly Estate, 397 US 286, 296; 90 S Ct 1033; 25 L Ed 2d 312 (1970) (Harlan, J., concurring). In Sumner v Gen Motors Corp (On Remand), 245 Mich App 653; 633 NW2d 1 (2001), our Court discussed this very point. Writing for the Court, Judge O’CONNELL explained why an intervening change of law was not a basis upon which to obtain relief from judgment:
In any event, we would not be inclined to grant relief from the judgment in Sumner I [Sumner v Gen Motors Corp, 212 Mich App 694; 538 NW2d 112 (1995)]. An intervening change in law is not an appropriate basis for granting relief from a judgment; indeed, if it were, “it is not clear why gill judgments rendered on the basis of a particular interpretation of law should not be reopened when the interpretation is substantially changed.” 2 Restatement Judgments, 2d, § 73, illustration 4, p 200. [Id. at 667.]
An earlier case coming to the same conclusion is Gillispie v Detroit Housing Comm Bd of Tenant Affairs, 145 Mich App 424; 377 NW2d 864 (1985). There, the parties had agreed that a judgment after a trial should be entered in a particular, agreed-upon amount, and the defendant satisfied the judgment on January 20,1984. Id. at 426. In August of that same year, the plaintiff filed a motion for relief from judgment, arguing that a decision issued just after the judgment was entered (Gage v Ford Motor Co, 133 Mich App 366; 350 NW2d 257 [1984], aff'd in part and rev’d in part 423 Mich 250 [1985]) showed that the interest calculations used for the judgment were the result of a mutual mistake, GCR 1963, 528.3(1), which is now MCR 2.612(C)(1)(a). Id. at 426-427. The trial court denied the motion, and our Court affirmed. In discussing whether a subsequent decision should apply retroactively to a closed case, we stated:
Three considerations are often applied to control retro-activity: (1) the purpose of the new rule, (2) the litigants’ reliance on the old rule, and (3) the impact of the rule on the administration of justice. Consideration of the third factor alone militates in favor of denying the retroactive application of Gage to the present case. As the trial court noted, if Gage were to be applied to cases in which a satisfaction of judgment had already been executed, K[w]e could have 10,000 people coming back here and asking the court to change their judgments”. The court’s concern is not without basis. The application of Gage to an action which is no longer pending could well open the floodgates to other litigants eager to increase their recovery and could lead to disasterous results in relation to matters properly considered closed.
Moreover, even if retroactive application was deemed fitting, it would not extend to cases in which the cause of action is no longer pending. Normally, application of a new rule of law falls within one of three categories. A new rule of law may be (1) applied in all cases in which a cause of action has accrued and which are still lawfully pending, plus all future cases, (2) applied to the case at bar and all future cases, or (3) applied only to future cases. Even the most far reaching category would not encompass the present case. We believe it is clear that retroactive application of Gage would be inappropriate in the present case. [Id. at 429-430 (emphasis added).]
Here, it is undisputed that the case was closed at the time Mullins was decided. No appeal was pending before this Court or the Supreme Court, no motion was pending before the trial court, and the final judgment in favor of defendants had been entered. Under the Michigan Supreme Court decision in Maxson and the United States Supreme Court decision in Reynoldsville Casket, as well as our decisions in Sumner and Gillispie, the partial retroactive application of Waltz that was granted in Mullins could not apply to this closed case. Hence, not reviving this case would not be an extraordinary circumstance under MCR 2.612(C)(1)(f), but instead would be the required course of action under binding precedent. Additionally, defendants’ rights would be substantially detrimentally affected since they would now be required to relitigate a case that had already been through the appellate process, resulting in a final judgment that had been left idle for seven months. There is also no suggestion that defendants did anything inappropriate in obtaining the final judgment. Rose, 289 Mich App at 62. As such, relief was not available under MCR 2.612(C)(1)(f).
In his usual colorful and articulate way, our dissenting colleague argues that the order in Mullins was not a “change in the law,” so the cases upon which we rely for our holding simply do not apply. After careful consideration of this position, there are several reasons why we respectfully conclude otherwise. First, the point of Maxson and the other cases is that when a case — here Waltz — is given some form of retroactive application, the retroactivity does not apply to cases that are no longer pending. The fact that these cases arose in the context of a motion for relief from judgment is because such a motion would only be brought if a new case were released that potentially revives what was already closed.
Second, whether one views the Mullins order as a change in the law or merely a “clarification” of the retroactivity of Waltz is of no moment. For there can be no dispute that prior to the Mullins order there was a conflict panel decision of this Court, see Mullins v St Joseph Mercy Hosp, 271 Mich App 503; 722 NW2d 666 (2006), as well as at least one prior published opinion, see Ousley v McLaren, 264 Mich App 486; 691 NW2d 817 (2004), holding that Waltz had full retroactive application. Thus, the Mullins order was the Supreme Court’s decision clarifying the law on this issue. Because the Mullins order provided an answer different from that of the Mullins conflict panel and a prior published case, plaintiff attempted to use this new, favorable ruling on retroactivity to reopen his closed case. Consequently, we believe this case falls squarely within the cases we have applied here.
Finally, as noted in King I, although “[t]he Supreme Court in its use of the words ‘any causes of action’ did not limit the palliative nature of its order to only those cases still pending,” King I, 288 Mich App at 810, it did not have to be so precise in this case since the law described above already makes clear that a retroactive decision does not apply to closed cases. If the Court had been crafting an exception to this apparently uniform rule, then it would have likely said so, but it did not. Hence, cases such as Maxson, Reynoldsville Casket, Sumner, and Gillispie control the outcome of this appeal. Some will certainly say, as have our dissenting colleagues and the prior King I panel, that this conclusion is “unfair” since plaintiff diligently pursued his rights and arguments up and down the judicial system. Indeed, the dissent adopts the King I panel’s view of failing “to see the fairness in allowing only pending actions to receive the benefit of the Supreme Court’s order ...But “fairness” cannot override our obligation to follow binding decisions from the appellate courts of this state, which without exception indicate that a case given retroactive application only applies to pending cases, i.e., it does not apply to closed cases. In James B Beam Distilling Co v Georgia, 501 US 529, 541-542; 111 S Ct 2439; 115 L Ed 2d 481 (1991), the United States Supreme Court recognized the somewhat arbitrary result in precluding a closed case from being revived through retroactive application of caselaw (even one dismissed on statute-of-limitations grounds), but nonetheless concluded that finality principles overrode any such concerns:
Of course, retroactivity in civil cases must be limited by the need for finality, see Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 [60 S Ct 317; 84 L Ed 329] (1940); once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed. It is true that one might deem the distinction arbitrary, just as some have done in the criminal context with respect to the distinction between direct review and habeas: why should someone whose failure has otherwise become final not enjoy the next day’s new rule, from which victory would otherwise spring? . .. Insofar as equality drives us, it might be argued that the new rule should be applied to those who had toiled and failed, but whose claims are now precluded by res judicata; and that it should not be applied to those who only exploit others’ efforts by litigating in the new rule’s wake.
As to the former, independent interests are at stake; and with respect to the latter, the distinction would be too readily and unnecessarily overcome. While those whose claims have been adjudicated may seek equality, a second chance for them could only be purchased at the expense of another principle. “ ‘Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of that contest, and that matters once tried shall be considered forever settled as between the parties. ’ ” Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 401 [101 S Ct 2424; 69 L Ed 2d 103] (1981) (quoting Baldwin v. Iowa State Traveling Men’s Assn., 283 U.S. 522, 525 [51 S Ct 517; 75 L Ed 1244] (1931)). Finality must thus delimit equality in a temporal sense, and we must accept as a fact that the argument for uniformity loses force over time. [Emphasis added.]
Because this case was closed when Mullins was decided, we affirm the trial court’s denial of the motion for relief from judgment, as the ruling did not constitute an abuse of discretion.
Affirmed.
K. F. Kelly, EJ., and Markey, Talbot, and Wilder, JJ., concurred with MURRAY, J.
Even more recently, a plurality of the Court noted that its decision reversing the retroactive application of a prior case would apply to any injuries inflicted prior to its earlier decision, but only “as long as the claim has not already reached final resolution in the court system.” Bezeau v Palace Sports & Entertainment, Inc, 487 Mich 455, 468; 795 NW2d 797 (2010) (opinion by Weaver, J.).
Indeed, the Supreme Court’s Mullins order is analogous to a decision from the United States Supreme Court that resolves a conflict among the federal circuit courts of appeals. The federal courts have held that a Supreme Court decision breaking a conflict is not an extraordinary-circumstance sufficient to reopen a case. See, e.g., United States ex rel Garibaldi v Orleans Parish Sch Bd, 397 F3d 334, 337-340 (CA 5, 2005); see, also, Smith v Arbella Mut Ins Co, 49 Mass App 53, 55-56; 725 NE2d 1080 (2000).
The usual “limited” retroactive application typically applies to pending cases in which a challenge has been raised and preserved. Devillers v Auto Club Ins Ass’n, 473 Mich 562, 586; 702 NW2d 539 (2005); People v Cornell, 466 Mich 335, 367; 646 NW2d 127 (2002).
Interestingly, neither the dissent in Farley, nor the dissent in this case, nor the panel in King I even give lip service to the standards articulated in cases like Rose, which entails a multi-faceted inquiry. There is no doubt that plaintiff would have had a timely suit had a final judgment not been entered at the time Mullins was decided, but again the fact is that it was over, and no caselaw, statute, or court rule has been pointed out by the parties or prior courts that would authorize disregarding Maxson and similar cases in the name of fairness. Additionally, were we to agree with the dissent in this case, what would be the objective rule to apply in determining how long a case needs to have been final and closed before it cannot be revived by application of a retroactive case? One year, two years? Perhaps no limitation? This is an important question, and one the dissent has not answered. | [
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Per Curiam.
CMS Energy Corporation, defendant, appeals by leave granted the trial court’s opinion and order denying its motion for summary disposition. We reverse and remand.
I. BASIC FACTS AND PROCEDURE
Elaintiff, Dutton Fartners, LLC, owns a 177-acre development, known as “Stonegate Ravines,” located in Orion Township, Michigan. An easement across the property contains an underground pipeline, which is used for the transportation and distribution of natural gas. On May 1, 2005, part of the pipeline ruptured and allegedly exploded, or at least caused natural gas to be released into the atmosphere. At the time, plaintiff was still working on the development of Stonegate Ravines and, as a result of the pipe’s rupture, had to temporarily cease its construction on the project.
On April 30, 2008, plaintiff filed a two-count complaint alleging that defendant was negligent and that its conduct, which allegedly caused the pipe to explode, had created a nuisance and trespass on plaintiffs property. Plaintiffs complaint was filed one day before the period of limitations expired. See MCL 600.5805(10) (setting the limitations period for ordinary negligence actions at three years). In its answer to the complaint, defendant asserted that plaintiff had sued the wrong party.
A. DEFENDANT’S CORPORATE STRUCTURE
Defendant is a corporation organized under Michigan’s laws and is a utility holding company. Defendant does not have any daily operations and has no employees; instead, it derives income from the holdings of its subsidiaries in the form of dividends received on securities. Its subsidiaries are involved in various sectors of the power and energy industries. A majority of defendant’s income derives from only one of its subsidiaries, Consumers Energy Company.
Consumers owns, operates, and maintains the pipeline involved in the underlying incident. However, defendant and Consumers are separate Michigan corporations, allegedly each with its own officers and board of directors. And although defendant owns 100 percent of Consumers, defendant does not own or operate any of Consumers’ gas pipelines or related infrastructure. Consumers controls its own day-to-day operations, while defendant only concerns itself with regard to major policy issues affecting Consumers. Further, the two companies allegedly keep separate books and records, their financial results are reported separately, and each entity’s board of directors has its own meetings and separate minutes are kept.
Other attributes of the two corporations, however, are not so distinct. Consumers and defendant share the same physical address; Consumers’ universal resource locator (URL), or its website domain, is registered to defendant; the two share the same in-house counsel; all of Consumers’ and defendant’s filings with the Securities and Exchange Commission (SEC) are filed jointly; the two entities share the same code of conduct, ethics manual, and set of governing principles; and defendant includes all of Consumers’ assets, including its pipelines, on its balance sheets and depreciates those assets for its accounting purposes.
B. MOTION FOR SUMMARY DISPOSITION
On September 24, 2008, defendant moved for summary disposition under MCR 2.116(0(10), arguing that plaintiff had sued the incorrect party. In its brief in support, defendant argued that it is a utility holding company separate from Consumers. Defendant relied on the affidavits of Catherine Reynolds, who testified that defendant’s corporate structure is separate from Consumers’ structure, and David Montague, who explained Consumers’ role pre- and postinvestigation of the ruptured pipeline.
Plaintiff countered that its suit against defendant was appropriate because defendant allegedly is the alter ego of Consumers. Plaintiff supported its position that Consumers and defendant are the same entity by relying on publicly available information showing, among other things, that the two share the same corporate address and had made joint filings to the SEC. Further, contrary to Reynolds’s affidavit, plaintiff asserted that Consumers and defendant shared the same board of directors and corporate executives, relying on information from defendant’s 2007 annual report and defendant’s website. Plaintiff asserted that summary disposition should be denied because a question of material fact remained regarding whether defendant is the alter ego of Consumers. It also contended that that it should be allowed further discovery because defendant’s liability was not limited to “ownership” of the pipeline, but included maintenance, repair, and inspection of the pipeline.
Before the trial court could rule on defendant’s motion for summary disposition, plaintiff moved to amend the pleadings to add Consumers as a party. Defendant countered that leave to amend should be denied because the period of limitations had expired on plaintiffs claims.
The trial court, Judge Fred M. Mester presiding, denied defendant’s motion for summary disposition and also denied plaintiffs motion to amend the complaint. In denying plaintiffs motion to amend, the court found that Consumers did not have notice of the lawsuit within the limitations period and, thus, granting the motion to amend would be futile. With regard to defendant’s motion for summary disposition, the court explained: “[T]his Court finds that because the allegation of the Complaint [sic] are not limited to liability based on ownership of the line but also as to the maintenance, repair and inspection of the pipeline, defendant may be liable to the Plaintiff in other capacities than as the owner.” The trial court made no explicit ruling regarding plaintiffs alter-ego theory.
C. RENEWED MOTION FOR SUMMARY DISPOSITION
After further discovery, defendant renewed its motion for summary disposition. In its renewed motion, defendant argued that there was no question of fact that defendant does not own and is not responsible for maintenance of the pipeline at issue. In its view, the only question left to pursue was whether defendant had any of those responsibilities; it interpreted Judge Mester’s order as precluding plaintiffs alter-ego theory of liability. Defendant relied on a second affidavit prepared by Montague, which indicated that defendant has no responsibilities for maintenance and repair of the pipeline.
Plaintiff responded, arguing that Judge Mester’s ruling had not precluded its alter-ego theory. It reaffirmed its original position that defendant was an appropriate party because it is the alter ego of Consumers. Plaintiff did not provide any evidence that defendant was responsible for the pipeline’s maintenance, repair, or inspection.
In the interim, a new trial judge, Judge Lisa Gorcyca, was assigned to the case. After oral argument, the trial court issued a written opinion and order denying defendant’s renewed motion for summary disposition, concluding that defendant misinterpreted Judge Mester’s ruling. The court stated:
[T]he undisputed evidence presents material factual questions regarding whether the two entities are alter egos of one another: (1) The CMS Energy 2007 Annual Report identifies “gas pipelines” of Consumers Energy as an asset of CMS Energy; (2) Both companies have the same physical address and phone number; (3) In the Internet Universal Resource Locator, www.consumersenergy.com has been registered to “CMS Energy,” not to Consumers Energy; (4) Both entities share the same in-house counsel; (5) Consum ers Energy’s letterhead describes Consumers Energy as “A CMS Energy Company;” (6) CMS enjoys the accounting benefit of depreciating the gas pipelines which are supposedly owned by its subsidiary.
In sum, this Court finds that Judge Mester’s previous ruling were [sic] appropriate. Defendant has not presented any basis to set aside that ruling.
Defendant now appeals this order in this Court.
II. STANDARD OF REVIEW
We review de novo the trial court’s decision on defendant’s renewed motion for summary disposition. Fries v Mavrick Metal Stamping, Inc, 285 Mich App 706, 712; 777 NW2d 205 (2009). A motion brought under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Woodman v Kera, LLC, 280 Mich App 125, 134; 760 NW2d 641 (2008). We must review all the evidence in a light most favorable to the nonmoving party. Houdek v Centerville Twp, 276 Mich App 568, 572-573; 741 NW2d 587 (2007). Summary disposition is appropriate when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Woodman, 280 Mich App at 134. A genuine issue of material fact exists if the record leaves open an issue upon which reasonable minds could differ. Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429, 443; 761 NW2d 846 (2008).
III. ANALYSIS
Defendant argues that the trial court, Judge Gorcyca presiding, erred by finding that factual questions remained with respect to plaintiffs alter-ego theory of liability. We agree with defendant. At the outset, we note that the propriety of the trial court’s ruling was questionable in the first instance. Plaintiff never pleaded facts supporting its alter-ego theory in its complaint and never moved to amend to add such facts; thus, plaintiffs complaint likely could have been dismissed for failure to state a claim. However, because the trial court treated the alter-ego theory of liability as if it had been properly pleaded and raised, and ultimately denied defendant’s renewed motion on the basis of plaintiffs alter-ego theory, we will treat the matter as if it had been properly presented and preserved.
Plaintiffs suit seeks to pierce the corporate veil and hold defendant liable for the acts of its subsidiary, Consumers. “[I]n order to state a claim for tort liability based on an alleged parent-subsidiary relationship, a plaintiff would have to allege: (1) the existence of a parent-subsidiary relationship, and (2) facts that justify piercing the corporate veil.” Seasword v Hilti, Inc (After Remand), 449 Mich 542, 548; 537 NW2d 221 (1995).
It is undisputed in this case that Consumers is defendant’s subsidiary. Thus, the pertinent question is whether plaintiff has alleged sufficient facts to justify piercing the corporate veil. It is well settled under Michigan law that “absent some abuse of corporate form, parent and subsidiary corporations are separate and distinct entities.” Id. at 547. However, the courts may ignore this presumption and the corporate veil may be pierced if, under the circumstances, respecting an otherwise separate corporate existence will “subvert justice or cause a result that would he contrary to some other clearly overriding public policy.” Wells v Firestone Tire & Rubber Co, 421 Mich 641, 650; 364 NW2d 670 (1984). For the corporate veil to be pierced, the plaintiff must aver facts that show (1) that the corporate entity is a mere instrumentality of another entity or individual, (2) that the corporate entity was used to commit fraud or a wrong, and (3) that, as a result, the plaintiff suffered an unjust injury or loss. RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 715; 762 NW2d 529 (2008).
At least in the context of tort liability, relevant factors in showing that a subsidiary is a “mere instrumentality” of its parent might be that the parent and subsidiary shared principal offices, or had interlocking boards of directors or frequent interchanges of employees, that the subsidiary is the parent’s exclusive distributing arm, or the parent’s revenues are entirely derived from sales by the subsidiary. [Seasword, 449 Mich at 548 n 10.]
The trial court denied defendant’s renewed motion for summary disposition, finding that material questions of fact existed regarding “whether the two entities are alter egos of one another,” including:
(1) The CMS Energy 2007 Annual Report identifies “gas pipelines” of Consumers Energy as an asset of CMS Energy; (2) Both companies have the same physical address and phone number; (3) In the Internet Universal Resource Locator, www.consumersenergy.com has been registered to “CMS Energy,” not to Consumers Energy; (4) Both entities share the same in-house counsel; (5) Consumers Energy’s letterhead describes Consumers Energy as “A CMS Energy Company;” (6) CMS enjoys the accounting benefit of depreciating the gas pipelines which are supposedly owned by its subsidiary.
We do not disagree with the trial court’s ruling in this regard. Legitimate questions exist regarding whether Consumers is a mere instrumentality of defendant, given the conflicting evidence presented below. However, the trial court erred by denying summary disposition because plaintiff failed to demonstrate any evidence of fraud, wrongdoing, or misuse of the corporate form. And after our review of the record, we cannot find any factual evidence showing that defendant merely used Consumers to commit fraudulent or otherwise wrongful acts. Nothing in the record demonstrates that Consumers was so controlled or manipulated by defendant in relation to Consumers’ maintenance, ownership, and repair of the pipeline that defendant was somehow abusing its corporate shield for its own purposes. Thus, given the absence of any evidence of fraud or misuse, summary disposition for defendant should have been granted.
Significantly, plaintiff does not identify in its brief on appeal any evidence of fraud, wrongdoing, or misuse. Rather, it simply argues that Michigan law does not require such a showing in order for a parent corporation to be held liable for the acts of its subsidiary. We disagree. Plaintiff has cited no binding authority for its proposition that it is sufficient to show merely that CMS and Consumers are alter egos.
Further, defendant’s reliance on CMS Energy Corp v Attorney General, 190 Mich App 220; 475 NW2d 451 (1991), for the same proposition is unavailing. In CMS Energy Corp, this Court affirmed a decision of the Michigan Public Service Commission (PSC) that disregarded the separate corporate identities of Consumers and CMS Energy in a ruling that subjected certain Consumers’ proceeds received from its own assets to the PSC’s regulations. Id. at 231-233. Consumers had transferred the proceeds at issue to its nonregulated subsidiaries for purposes of insulating those funds from regulation, and those subsidiaries were subsequently transferred to CMS Energy’s control. Id. at 223-226. Although the panel cited the proposition that fraud need not be shown to consider the entities as one, it did not rely on that proposition alone for its conclusion that the PSC appropriately “pierce[d] the corporate veil of the nonregulated corporate entities.” Id. at 232. The Court explicitly cited some misuse of the corporate form that did occur under the circumstances; specifically, the subsidiaries held by Consumers were transferred to CMS Energy for the sole purpose of “avoiding] regulation of the proceeds to be generated by those assets.” Id. Thus, CMS Energy Corp does not support plaintiffs position, but refutes it.
Because a showing of fraud, wrongdoing, or misuse is required under Michigan law in order to prevail on an alter-ego theory of liability and because plaintiff proffered no such evidence, the trial court erred by denying defendant’s renewed motion for summary disposition. Plaintiff has not presented sufficient facts in support of its alter-ego theory of liability, and the case cannot go forward on this basis. The matter also cannot proceed against defendant in its individual capacity. Plaintiff concedes in its brief on appeal that “ownership as well as responsibility for repair, maintenance, and inspections of [the pipeline] rests with Consumers . . . and not [defendant].” Thus, there is no genuine question of material fact that defendant was not negligent and did not otherwise trespass on plaintiffs property. On remand, the trial court shall enter an order in defendant’s favor dismissing the case with prejudice.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Dutton Partners, LLC v CMS Energy Corp, unpublished order of the Court of Appeals, entered August 24, 2009 (Docket No. 292094).
We note that a successor judge has the authority to enter whatever orders his or her predecessor could have entered. MCR 2.613(B).
Despite this deficiency, defendant never moved to dismiss on this basis under MCR 2.116(C)(8); rather, both of its motions were based solely on MCR 2.116(C)(10). Defendant does argue on appeal, however, that plaintiff failed to plead specific facts seeking to have the trial court disregard defendant’s corporate form and suggests that plaintiffs alter-ego argument was therefore waived and should have been dismissed for failure to state a claim. Defendant could have raised this basis for dismissal in its renewed motion for summary disposition, but failed to do so. Rather, it continued to defend itself against plaintiffs alter-ego theory, in effect forfeiting its own waiver argument. Thus, we consider defendant’s argument under MCR 2.116(C)(8) to be unpreserved, and we will not dispose of this appeal on (C)(8) grounds.
Plaintiffs case differs from the traditional lawsuit in which a party seeks to pierce the corporate veil because plaintiff is not attempting to hold hable defendant’s individual corporate executives or shareholders. See Rymal v Baergen, 262 Mich App 274, 293; 686 NW2d 241 (2004) (“The traditional basis for piercing the corporate veil has been to protect a corporation’s creditors where there is a unity of interest of the stockholders and the corporation and where the stockholders have used the corporate structure in an attempt to avoid legal obligations.”) (citation and quotation marks omitted).
We were unable to locate any binding Michigan case that has held that the corporate veil may be disregarded absent a showing of fraud, wrongdoing, or some misuse of the corporate form. | [
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Cavanagh, J.
Respondent, the city of Detroit, appeals as of right an order of the Michigan Tax Tribunal granting petitioner’s motion for summary disposition under MCR 2.116(0(10). We affirm.
Fetitioner, Lafarge Midwest, Inc., was responsible for the payment of ad valorem property taxes on three parcels of land that are the site of its cement plant, which is located within the Delray Renaissance Zone in Detroit. In 2005, 2006, and 2007 petitioner’s real property tax bills included a school debt service tax of 13 mills, consistent with the school district electors’ approval of $116,156,390 in school building and site bonds. The 13-mill property tax was levied by the Detroit Public School District for retirement of bonded debt. Petitioner filed a petition with the Michigan Tax Tribunal, challenging the tax on the ground that the property was subject to the Michigan Renaissance Zone Act (RZA), MCL 125.2681 et seq., and exempt from this school debt service tax.
Subsequently, petitioner moved for summary disposition, arguing that the property was exempt from the school debt service tax because none of the exceptions to the general exemption set forth in MCL 211.7ff applied to the property. First, petitioner argued, the tax levied was not a special assessment under the exception set forth in MCL 211.7ff(2)(a). Second, because the school debt service tax was not levied by a “local governmental unit,” i.e., a county, city, village, or township, the exception to the general exemption set forth in MCL 211.7ff(2)(b) did not apply. Third, the tax was not levied pursuant to any of the Revised School Code sections listed under the exception set forth in MCL 211.7ff(2)(c). And, fourth, a casino was not being operated on the property, so the exception set forth under MCL 211.7ff(3) did not apply.
More particularly, with regard to the second exception to the exemption, petitioner argued that a “school district” is not considered a “local governmental unit” under the definition provided in the RZA, MCL 125.2683(g). And contrary to respondent’s anticipated claim, the definition of “local governmental unit” pro vided in the General Property Tax Act was inapplicable to this case involving the RZA. In support of its position, petitioner cited the case of Kinder Morgan Mich, LLC v City of Jackson, 277 Mich App 159, 166; 744 NW2d 184 (2007), which held that MCL 211.7ff must be liberally construed to effectuate the purposes of the RZA— securing tax relief for properties located in renaissance zones. Accordingly, petitioner argued, because the debt obligations were approved by school district electors and not electors “of the local governmental unit,” this exception to the general exemption did not apply. Thus, petitioner’s property was exempt from the tax, and it was entitled to a refund of the overpaid tax as well as an order granting summary disposition in its favor.
In response to petitioner’s motion for summary disposition, the city argued that MCL 211.7ff(2)(b) actually contains two separate and independent clauses. The statute provides that property in a renaissance zone is not exempt from the collection of “[a]d valorem property taxes specifically levied for the payment of principal and interest of obligations approved by the electors or obligations pledging the unlimited taxing power of the local governmental unit.” MCL 211.7ff(2)(b) (emphasis added). At issue in the Kinder case was the second clause, not the first clause, and because the first clause was at issue in this case, Kinder provides no guidance. The city claimed that the tax was levied “to satisfy the indebtedness of the School District of the City of Detroit.” Thus, the fact that the school district is not a “local governmental unit” as that term is defined in the RZA is irrelevant; the tax was levied for the repayment of principal and interest of obligations approved by the electors. The city argued that if the “Legislature [had] intended for the limiting term ‘local governmental unit’ to apply to both clauses of MCL 211.7ff(2)(b) it could have easily done so by the simple placement of a couple of commas.” Accordingly, the city requested that the tribunal deny petitioner’s motion for summary disposition and enter a judgment in the city’s favor.
The Tax Tribunal agreed with petitioner, holding that the definition of “local governmental unit” does not include school districts and that the city’s “stance of the Legislature’s intent [is] unconvincing.” The tribunal concluded that, in light of the clear definition of “local governmental unit,” as well as the mandate to read the property tax act in conjunction with the RZA, a clerical error or mutual mistake of fact existed and resulted in an error on petitioner’s tax bills. Accordingly, petitioner’s motion for summary disposition was granted, and the city was ordered to remove the school debt tax from the taxes charged to the property and refund any overpaid taxes. This appeal followed.
On appeal, the city argues that the general exemption set forth in MCL 211.7ff(l) did not apply to petitioner’s property; rather, the exception to that exemption set forth in MCL 211.7ff(2)(b) applied because the tax at issue was approved by the school district electors for payment of school debt principal and interest. We disagree.
In the absence of fraud, our review of the Tax Tribunal’s decision is limited to determining whether the tribunal misapplied the law or adopted a wrong principle. Wexford Med Group v City of Cadillac, 474 Mich 192, 201; 713 NW2d 734 (2006). The tribunal’s interpretation of a statute, however, presents a question of law that is reviewed de novo on appeal. Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 707; 664 NW2d 193 (2003).
MCL 125.2682 of the RZA provides:
The legislature of this state finds and declares that there exists in this state continuing need for programs to assist certain local governmental units in encouraging economic development, the consequent job creation and retention, and ancillary economic growth in this state. To achieve these purposes, it is necessary to assist and encourage the creation of renaissance zones and provide temporary relief from certain taxes within the renaissance zones.
In accord, MCL 125.2689(2)(a) of the RZA states that, except as provided in MCL 125.2690, property in a renaissance zone is exempt from the collection of taxes under MCL 211.7ff of the General Property Tax Act. And MCL 211.7ff provides in part as follows:
(1) For taxes levied after 1996, except as otherwise provided in subsections (2) and (3) and except as limited in subsections (4), (5), and (6), real property in a renaissance zone and personal property located in a renaissance zone is exempt from taxes collected under this act to the extent and for the duration provided pursuant to the Michigan renaissance zone act, 1996 PA 376, MCL 125.2681 to 125.2696.
(2) Real and personal property in a renaissance zone is not exempt from collection of the following:
(a) A special assessment levied by the local tax collecting unit in which the property is located.
(h) Ad valorem property taxes specifically levied for the payment of principal and interest of obligations approved by the electors or obligations pledging the unlimited taxing power of the local governmental unit.
(c) A tax levied under section 705, 1211c, or 1212 of the revised school code, 1976 PA 451, MCL 380.705, 380.1211c, and 380.1212.
The dispute between the parties came to be centered on the interpretation of MCL 211.7ff(2)(b). The city argues that this exception to the general exemption applied to petitioner’s property because the taxes were “levied for the payment of principal and interest of obligations approved by the electors.” The taxes were not levied for “obligations pledging the unlimited taxing power of the local governmental unit.” The city argues that the statute details two separate debt obligations that are excepted from the exemption and that the modifying phrase “of the local governmental unit” only applies — consistently with the rule of the last antecedent — to the second type of debt obligation for which taxes may be levied, not the first type of debt obligation, which is the one at issue here. In contrast, petitioner argues that the phrase “of the local governmental unit” applies and modifies both types of debt obligations, consistently with the plain language and purpose of the RZA. Thus, petitioner argues, because the statute itself requires a different interpretation than would be accorded by the application of the rule of the last antecedent, that rule does not apply. See Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999).
The primary goal in construing a statute is to discern and give effect to the intent of the Legislature. Murphy v Mich Bell Tel Co, 447 Mich 93, 98; 523 NW2d 310 (1994). The first criterion in determining intent is the specific language of the statute. United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). The fair and natural import of the terms employed, in view of the subject matter of the law, governs. People v McGraw, 484 Mich 120, 124; 771 NW2d 655 (2009). If the plain and ordinary meaning of the statutory language is clear, i.e., unambiguous, the Legislative intent is clear. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005); Lansing Mayor v Pub Serv Comm, 470 Mich 154, 157; 680 NW2d 840 (2004). In such a case, the Legislature is presumed to have intended the meaning it plainly expressed; thus, no further judicial construction is required or permitted, and the statute must be enforced as written. Nastal, 471 Mich at 720.
With regard to the issue of statutory ambiguity, the Lansing Mayor Court held that “a provision of the law is ambiguous only if it ‘irreconcilably conflicts] ’ with another provision, [Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003)], or when it is equally susceptible to more than a single meaning.” Lansing Mayor, 470 Mich at 166 (first alteration in Lansing Mayor). When is a provision equally susceptible to more than a single meaning? The Lansing Mayor Court held that a “reasonable disagreement” is not the standard for identifying ambiguity. Id. at 168. That is, “[a] provision is not ambiguous just because ‘reasonable minds can differ regarding’ the meaning of the provision.” People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008), quoting Lansing Mayor, 470 Mich at 165. The Lansing Mayor Court concluded that “a finding of ambiguity is to be reached only after ‘all other conventional means of [ ] interpretation’ have been applied and found wanting.” Lansing Mayor, 470 Mich at 165, quoting Klapp, 468 Mich at 474 (alteration in Lansing Mayor). That is, “ambiguity is a finding of last resort.” Lansing Mayor, 470 Mich at 165 n 6.
The provision at issue in this case is MCL 211.7ff(2)(b), which provides for the collection of
[a]d valorem property taxes specifically levied for the payment of principal and interest of obligations approved by the electors or obligations pledging the unlimited taxing power of the local governmental unit.
According to the city, the phrase should be read as follows: “Ad valorem property taxes specifically levied for the payment of principal and interest of [(1)] obligations approved by the electors or [(2)] obligations pledging the unlimited taxing power of the local governmental unit.” Thus the phrase “principal and interest of” would apply to both types of obligations, but the phrase “of the local governmental unit” would apply only to the second type of obligation, in accordance with the rule of the last antecedent. However, the statutory provision could also be read in the following manner: “Ad valorem property taxes specifically levied for the payment of [(1)] principal and interest of obligations approved by the electors or [(2)] obligations pledging the unlimited taxing power of the local governmental unit.” Thus the phrase “principal and interest of” would only apply to obligations approved by the electors and not the obligations pledging the unlimited taxing power of the local governmental unit. In Kinder, 277 Mich App at 168-169, the respondent, the city of Jackson, made such an argument. In this case, the city of Detroit declines to take that position, claiming that the phrase “principal and interest of” “clearly” applies to both obligations, although it fails to identify why this interpretation is “clearly” accurate.
Petitioner offers the following construction of the statutory provision: “Ad valorem property taxes specifically levied for the payment of principal and interest of [(1)] obligations approved by the electors or [(2)] obligations pledging the unlimited taxing power[,] of the local governmental unit.” The phrase “principal and interest of” would apply to both types of obligations, and the phrase “of the local governmental unit” would apply to both types of obligations. It follows, then, that another possible construction of the statutory provision is the following: “Ad valorem property taxes specifically levied for the payment of [(1)] principal and interest of obligations approved by the electors or [(2)] obligations pledging the unlimited taxing power[,] of the local governmental unit.” The phrase “principal and interest of” would only apply to obligations approved by the electors and not obligations pledging the unlimited taxing power, and the phrase “of the local governmental unit” would apply to both types of obligations.
As set forth earlier, to construe a statute we must first examine its language, according every word and phrase its plain and ordinary meaning and considering the grammatical context. MCL 8.3a; United States Fidelity, 484 Mich at 13. First, we turn to the phrase “principal and interest of.” The issue whether this phrase applies only to “obligations approved by the electors” or whether it also applies to “obligations pledging the unlimited taxing power of the local governmental unit” has not been raised in this case. This issue was raised in Kinder, but the Kinder Court was not required to construe the provision on the facts of that case. Kinder, 277 Mich App at 168-169. Because this issue was not raised by the parties, we need not construe this statutoiy language but will assume for purposes of this case that the phrase applies to both obligations.
Next, we consider whether the phrase “of the local governmental unit” applies to “obligations approved by the electors,” as held by the Tax Tribunal. Guidance is gleaned from the statutory language. The Legislature used the word “the” with respect to “electors.” “The” is a definite article that, when used especially before a noun — like “electors” — has a specifying or particularizing effect. See Robinson v City of Lansing, 486 Mich 1, 14; 782 NW2d 171 (2010). Following the rationale of Robinson, because MCL 211.7ff(2)(b) refers to “the electors,” we must determine to which “specific or particular” electors it refers. If the provision had simply said “electors,” it might have referred to electors generally, as the dissent opines. However, because the phrase “of the local governmental unit” is within the same statutory provision, we conclude that “the electors” must be the electors of the local governmental unit. This interpretation recognizes that the Legislature is presumed to be familiar with the rules of statutory construction, as well as the rules of grammar. See In re Messer Trust, 457 Mich 371, 380; 579 NW2d 73 (1998); Greater Bethesda Healing Springs Ministry v Evangel Builders & Constr Managers, LLC, 282 Mich App 410, 414; 766 NW2d 874 (2009). This construction is also in compliance with the mandate to “ ‘give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.’ ” Klapp, 468 Mich at 468, quoting State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). The dissent’s interpretation of the provision ignores, and thereby renders surplusage or nugatory, the word “the” in “the electors.” Accordingly, we also reject the dissent’s claim that “[njothing in the plain language of MCL 211.7ff(2)(b) specifies or limits which ‘electors’ must approve the obligation.”
The city argues that, under the rule of the last antecedent, the modifying clause “of the local governmental unit” should only apply to the antecedent “obligations pledging the unlimited taxing power” and not to “obligations approved by the electors.” Clearly, the rule of the last antecedent does not apply when its application results in a construction that is contrary to the plain language of the statute. See Sun Valley Foods, 460 Mich at 237. As discussed earlier, the statutory provision itself refers to “the electors,” not merely “electors” in general.
Further, as our Supreme Court noted in Robinson, 486 Mich at 15, “to discern the Legislature’s intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.” Therefore, we turn to MCL 211.7ff(2), which provides in relevant part:
Real and personal property in a renaissance zone is not exempt from collection of the following:
(a) A special assessment levied by the local tax collecting unit in which the property is located.
(b) Ad valorem property taxes specifically levied for the payment of principal and interest of obligations approved by the electors or obligations pledging the unlimited taxing power of the local governmental unit.
(c) A tax levied under section 705, 1211c, or 1212 of the revised school code, 1976 PA 451, MCL 380.705, 380.1211c, and 380.1212.
The statute clearly states that the exemption does not apply to “[a] special assessment levied by the local tax collecting unit” or to “[a]d valorem property taxes levied for payment of.. . obligations pledging the unlimited taxing power of the local governmental unit” MCL 211.7ff(2)(a) and (b) (emphasis added). It would be inherently inconsistent to construe the statute so as to require the payment of ad valorem property taxes levied for obligations approved by any group of “electors” rather than, consistent with the statutory language and overall scheme, just “the electors” of the local governmental unit. This construction (1) complies with the mandate that “[e]ffect is to be given to every provision, and the whole statute is to be considered in order to achieve a harmonious and consistent result,” Ferguson v Pioneer State Mut Ins Co, 273 Mich App 47, 52; 731 NW2d 94 (2006), and (2) recognizes the fact that the Legislature is under no “obligation to cumbersomely repeat language that is sufficiently incorporated into a statute by the use of such terms as ‘the,’ ‘such,’ and ‘that,’ ” Robinson, 486 Mich at 17.
In summary, we agree with the Tax Tribunal’s conclusion, albeit for different reasons, that the levy of the tax on petitioner’s property was improper in that the taxes were not levied for the payment of “obligations approved by the electors” within the meaning of MCL 211.7ff(2)(b). After applying conventional means of statutory interpretation, we conclude that the phrase “of the local governmental unit” clearly applies to both the “obligations approved by the electors” and the “obligations pledging the unlimited taxing power.” There is no ambiguity. Thus, the Tax Tribunal properly granted petitioner’s motion for summary disposition and properly ordered the removal of the school debt service taxes from the taxes charged to petitioner’s property, as well as a refund of any overpaid taxes.
Affirmed.
JANSEN, EJ., concurred.
This is the current citation. At other times relevant in this case, the definition has appeared in other subdivisions of this section.
The Robinson Court construed the “two-inch rule” set forth in MCL 691.1402a(2) of the governmental tort liability act, MCL 691.1401 et seq. Robinson, 486 Mich at 3, 5. | [
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] |
Per Curiam.
Flaintiff appeals as of right the circuit court order granting defendant’s motion for summary disposition. We dismiss the appeal as moot.
Flaintiff was a student at defendant law school when she failed to attend her intraschool moot court class and turn in an assignment worth 10 points. The following week, she reported that she had not turned in the assignment because she was not proud of it. When instructed to e-mail the assignment immediately after class so that it could be determined if points could be awarded, plaintiff admitted that she had been dishonest with her professor about the status of the assignment. The professor referred the matter to the assistant dean of students for review under the school’s honor code. After attempts to resolve the matter informally failed because plaintiff refused to cooperate, formal proceedings for lying and for failing to cooperate (termed “toleration”) in violation of the law school’s honor code were commenced. Plaintiff filed a complaint seeking injunctive relief to prevent the hearing from occurring. The trial court denied the motion, but allowed plaintiff to amend her complaint to raise claims of breach of contract and arbitrary and capricious conduct. Despite the amended complaint, plaintiff continued to request injunctive relief to prevent damage to her reputation, her academic record, and her admission to the bar. Plaintiff did not identify monetary damages arising from any alleged breach of contract.
After the hearing was completed, the panel concluded that there was clear and convincing evidence to support the honor-code violation of lying, but did not find clear and convincing evidence to support the honor-code violation of toleration. With regard to the penalty for the violation, the panel concluded that three hours of counseling and instruction in civility, ethics, and stress management was appropriate. More importantly, the panel held that a summary of the decision would be placed in plaintiffs file, but expressly concluded that the nature and circumstances of the violation would not prevent plaintiffs admission to the bar.
After the panel rendered its decision, plaintiff attempted to pursue her lawsuit, but the trial court granted defendant’s motion for summary disposition and denied plaintiffs motion for application of judicial estoppel. The trial court held that the honor code did not give rise to an enforceable contract and that the law school had not engaged in arbitrary and capricious conduct. After the trial court’s decision, plaintiff graduated from defendant law school and was admitted to the Illinois bar. Nonetheless, plaintiff filed an appeal of the order granting defendant’s motion for summary disposition.
In order to appeal, a party must be an aggrieved party. MCR 7.203(A). “It is a cardinal principle, which applies alike to every person desiring to appeal, that he must have an interest in the subject-matter of the litigation. Otherwise he can have no standing to appeal.” Allen v Soule, 191 Mich 194, 197; 157 NW 383 (1916). On appeal, the litigant must demonstrate that he or she is affected by the decision of the trial court. George Realty Co v Paragon Refining Co of Mich, 282 Mich 297, 300; 276 NW 455 (1937); see also Ford Motor Co v Jackson (On Rehearing), 399 Mich 213, 226 n 9; 249 NW2d 29 (1976) (stating that a party is entitled to appeal when it is interested in the subject matter of the controversy and is injuriously affected or aggrieved by the lower court’s judgment or order) (citation omitted). An issue becomes moot when a subsequent event renders it impossible for the appellate court to fashion a remedy. In re Contempt of Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003).
The summary of the facts of this case demonstrates that we cannot provide a remedy from the trial court’s decision. Defendant sought to investigate an incident between plaintiff, who was a student, and a professor wherein the professor accused plaintiff of lying in violation of the student honor code. Defendant sought to informally resolve the matter, but plaintiff refused to cooperate. Consequently, defendant commenced formal proceedings against plaintiff. Plaintiff was found to have violated the honor code and ordered to complete three hours of counseling. After the hearing was held and the sanction was imposed, plaintiff pursued her claims of breach of contract and arbitrary and capricious conduct. However, plaintiff has since graduated from defendant law school. In light of plaintiffs graduation, we cannot fashion a remedy, and her appeal is moot. Id.
Dismissed as moot. Defendant, as the prevailing party, may tax costs. MCR 7.219.
Plaintiffs brief on appeal does not comply with the requirements of MCR 7.212(C)(6) because it does not contain a statement of all the material facts, both favorable and unfavorable. In fact, it does not identify the underlying factual basis for the honor-code violations.
At oral argument, plaintiff refused to answer questions regarding the underlying incident. Moreover, plaintiff alleged that she had incurred damages, but could not identify harm flowing from any alleged breach of contract or to her reputation. See Alan Custom, Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003). Indeed, but for the filing of this appeal, the underlying incident would have merely remained part of the plaintiffs law school file.
For purposes of completeness, we note that the student honor code did not create a contract, see Cuddihy v Wayne State Univ Bd of Governors, 163 Mich App 153, 156-158; 413 NW2d 692 (1987), and plaintiff failed to establish a genuine issue of material fact regarding the alleged arbitrary and capricious conduct, see Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). | [
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Murphy, C.J.
Defendants appeal by leave granted the trial court’s order denying their motions to file a notice of nonparties at fault and to amend their affirmative defenses, along with the court’s order denying defendants’ motion for reconsideration. This premises-liability case arose from injuries to his finger suffered by plaintiff, Chadwick Vandonkelaar (Chad), a minor, at defendants’ daycare center. And defendants, while admitting liability, contended that some fault should be allocated to Chad’s parents because they were negligent in failing to follow a prescribed course of medical treatment after surgical repair of the finger. The trial court, relying on Romain v Frankenmuth Mut Ins Co, 483 Mich 18; 762 NW2d 911 (2009), held that there could be no allocation of fault in regard to the parents because they were immune from suit, which necessarily meant that they had no “legal duty” to obtain proper medical care, a prerequisite under Romain before any fault could be attributed to them under the comparative-fault statutes. We affirm, although for reasons different from those offered by the trial court. We conclude that the comparative-fault statutes have no application in this case because, as a matter of law and indisputably, defendants were the only parties at fault and there were no other tortfeasors with respect to the conduct that was the factual and proximate cause of the injuries to Chad’s finger that occurred at the daycare center. Any presumed negligence by the parents in regard to Chad’s medical treatment after the injuries occurred at the daycare center did not trigger the need to assess their fault for purposes of the comparative-fault statutes, given that such negligence was not part of the causal chain in regard to his finger’s becoming crushed and lacerated in the first place. Rather, any negligent conduct by the parents constituted a subsequent, separate tort that initiated a new causal chain leading to its own set of damages, which, we note, would not be recoverable by Chad because of parental immunity. See Plumley v Klein, 388 Mich 1, 8; 199 NW2d 169 (1972).
I. BACKGROUND
Chad, six years old at the time, sustained injuries while at defendants’ daycare center in May 2007. Chad placed his right middle finger into the end of a metal pipe that held a large roll of paper, and the pipe dislodged from the paper-roller frame, crushing and lacerating Chad’s finger. The preoperative diagnosis indicated that Chad suffered a “middle finger extensor tendon injury” and an “[o]pen distal interphalangeal joint injury.” Surgery on the finger was performed by Dr. Donald Condit, and the surgical procedure entailed repair of the extensor tendon, along with “middle finger debridement and repair with pinning of distal interphalangeal joint injury.”
Defendants admitted their liability in relation to a premises-liability claim pursued by Chad, through his mother, Tonya L. Slager, as next friend, in October 2008, but defendants contested the extent of the damages.
The trial court limited discovery “to the question of the mechanics of the injury” and to Chad’s “reaction, pain, and other damages.”
In April 2009, defense counsel had the opportunity to meet with Dr. Condit, and they discussed the doctor’s findings and opinions concerning Chad’s injuries, treatment, and prognosis. Defense counsel averred, on the basis of the conversation at this meeting, that Dr. Condit had prescribed physical therapy once a week for four weeks following the surgery, but Chad had only attended an initial evaluation and one therapy session. Defense counsel further averred that Dr. Condit had indicated that it was his intent to have Chad attend at least 8 to 12 physical therapy sessions over a three-month period in order to improve the finger’s range of motion as well as to alleviate stiffness and swelling in the fingertip. According to the affidavit filed by defense counsel, Dr. Condit informed counsel that the failure to continue with the therapy had a “very significant” effect on Chad’s recovery.
On the basis of this information, defendants moved for leave to file a notice of nonparties at fault and to amend their affirmative defenses. Defendants sought to designate Chad’s parents as nonparties at fault for their failure to follow Dr. Condit’s advice and failure to ensure Chad’s attendance at follow-up physician appointments and physical therapy. Defendants also sought to add affirmative defenses, alleging that Chad’s injuries were caused by acts or omissions by his parents that were beyond the control of defendants and reserving the right to have the trier of fact allocate fault under MCR 2.112(K).
At the hearing on the motions, the parties agreed that Chad’s parents were immune from civil liability, considering that their alleged inaction and failures pertained to Chad’s medical care. Indeed, in Plumley, 388 Mich at 8, our Supreme Court abolished general intrafamily tort immunity, but with some exceptions, holding:
A child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent. Like our sister states, however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.
See also Spikes v Banks, 231 Mich App 341, 348; 586 NW2d 106 (1998).
Even though there was agreement that Chad’s parents were protected by immunity, the parties vigorously disagreed about the effect of that immunity on the question whether fault could be allocated to the parents as nonparties, thereby potentially minimizing the extent of the damages that could be the responsibility of defendants. More specifically, the crux of the question in the trial court focused on whether a person or entity protected by immunity could nonetheless be named as a nonparty at fault. In answering that question, our Supreme Court’s holding in Romain made it necessary to determine whether the nonparty owed a “legal duty” to the injured person. In Romain, 483 Mich at 20-22, the Michigan Supreme Court ruled as follows concerning the comparative-fault statutes:
We write briefly to eliminate a conflict between two published Court of Appeals opinions. Specifically, we overrule the statement in Kopp v Zigich [268 Mich App 258, 260; 707 NW2d 601 (2005)] that “a plain reading of the comparative fault statutes does not require proof of a duty before fault can be apportioned and liability allocated.” That is an incorrect statement of Michigan law. In Jones v Enertel, Inc [254 Mich App 432, 437; 656 NW2d 870 (2002)], the Court of Appeals held that “a duty must first be proved before the issue of fault or proximate cause can be considered.” Under the “first out” rule of MCR 7.215(J)(1), the Kopp panel should have followed Jones or declared a conflict under MCR 7.215(J)(2). Because the Kopp panel did not declare a conflict, Jones is the controlling precedent and proof of a duty is required “before fault can be apportioned and liability allocated” under the comparative fault statutes, MCL 600.2957 and MCL 600.6304.
In addition to being the controlling precedent under the court rules, Jones correctly stated Michigan negligence law; Kopp did not. As noted by this Court in Riddle v McLouth Steel Products Corp [440 Mich 85, 99; 485 NW2d 676 (1992)]:
“ ‘In a common law negligence action, before a plaintiffs fault can be compared with that of the defendant, it obviously must first be determined that the defendant was negligent. It is fundamental tort law that before a defendant can be found to have been negligent, it must first be determined that the defendant owed a legal duty to the plaintiff.’ ”
The same calculus applies to negligent actors under the comparative fault statutes. A common-law negligence claim requires proof of (1) duty; (2) breach of that duty; (3) causation, both cause in fact and proximate causation; and (4) damages. Therefore, under Michigan law, a legal duty is a threshold requirement before there can be any consideration of whether a person was negligent by breaching that duty and causing injury to another. Thus, when the Legislature refers to the common-law term “proximate cause” in the comparative fault statutes, it is clear that for claims based on negligence “ ‘it must first be determined that the [person] owed a legal duty to the plaintiff.’ ” Additionally, MCL 600.6304(8) includes in the definition of fault “a breach of a legal duty... that is a proximate cause of damage sustained hy a party.” Before there can be “a breach of a legal duty,” there must be a legal duty. Without owing a duty to the injured party, the “negligent” actor could not have proximately caused the injury and could not be at “fault” for purposes of the comparative fault statutes. [Citations omitted; some alterations in original.]
The trial court concluded that the immunity enjoyed by Chad’s parents precluded defendants from naming them as nonparties at fault because their immunity exempted them from having any legal duty to obtain medical care for Chad. Accordingly, the trial court denied defendants’ motion and the subsequent motion for reconsideration. This Court then granted defendants’ application for leave to appeal. Slager v Kids Court, LLC, unpublished order of the Court of Appeals, entered July 14, 2009 (Docket No. 292856).
II. ANALYSIS
For the reasons set forth later in this opinion, we find it unnecessary to determine whether Chad’s parents had a legal duty to obtain medical care for him despite their immunity from liability because we conclude that the comparative-fault statutes are simply not implicated regardless of any parental duty.
A. STANDARD OF REVIEW
The issue on which we base our holding concerns interpretation of the comparative-fault statutes. Statutory construction is a question of law subject to review de novo. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).
B. JOINT AND SEVERAL LIABILITY BEFORE ENACTMENT OF THE COMPARATIVE-FAULT STATUTES
In Kaiser v Allen, 480 Mich 31, 37; 746 NW2d 92 (2008), our Supreme Court, examining MCL 600.2957 and MCL 600.6304, stated:
The tort-reform statutes have abolished joint and several liability in cases in which there is more than one tortfeasor actively at fault. Traditionally, before tort reform, under established principles of joint and several liability, when the negligence of multiple tortfeasors produced a single indivisible injury, the tortfeasors were held jointly and severally liable. Watts v Smith, 375 Mich 120, 125; 134 NW2d 194 (1965); Maddux v Donaldson, 362 Mich 425, 433; 108 NW2d 33 (1961).
In Watts, 375 Mich at 125, the Michigan Supreme Court, quoting Meier v Holt, 347 Mich 430, 438-439; 80 NW2d 207 (1956), observed:
“ ‘Although it is not always definitely so stated the rule seems to have become generally established that, although there is no concert of action between tort-feasors, if the cumulative effect of their acts is a single, indivisible injury, which it cannot certainly be said would have resulted but for the concurrence of such acts, the actors are to be held liable as joint tort-feasors; whereas, if the results, as well as the acts, are separable, in theory at least, so that it can be said that the act of each would have resulted in some injury, however difficult it may be as a practical matter to establish the exact proportion of injury caused thereby, each can be held liable only for so much of the injury as was caused by his act.’ (1 Cooley on Torts [4th ed], § 86, pp 279, 280).” [Alteration in original.]
Under the principles of joint and several liability, tortfeasors could be held jointly and severally liable despite there being no common duty, common design, or concert of action as long as their negligence produced a single, indivisible injury. Markley v Oak Health Care Investors of Coldwater, Inc, 255 Mich App 245, 252; 660 NW2d 344 (2003).
Here, it cannot be concluded that defendants’ negligence and the parents’ presumed negligence produced a single, indivisible injury, the injuries being a “middle finger extensor tendon injury” and an “[o]pen distal interphalangeal joint injury.” Any negligence by the parents was not a cause of the tendon and joint injuries brought about by the occurrence at the daycare center. Rather, the acts of defendants, as well as the results of their tortious conduct, are separable from the acts of the parents, as well as the results of the parents’ assumed tortious conduct, so that “ ‘ “it can be said that the act[s] of each would have resulted in some injury, however difficult it may be as a practical matter to establish the exact proportion of injury caused thereby.” ’ ” Watts, 375 Mich at 125 (citations omitted). Therefore, under the principles of joint and several liability that existed before the enactment of the comparative-fault statutes, defendants and the parents in the instant case could only have been held severally liable, i.e., liable “ ‘ “only for so much of the injury as was caused by his act.” ’ ” Id. (citations omitted). A court could not have imposed joint and several liability.
C. THE COMPARATIVE-FAULT STATUTES
As indicated in Kaiser, 480 Mich at 37, the “tort-reform statutes . . . abolished joint and several liability in cases in which there is more than one tortfeasor actively at fault.” Indeed, the Legislature expressed that sentiment in MCL 600.2956, wherein it is provided:
Except as provided in [MCL 600.6304 (an exception not applicable here)], in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint. However, this section does not abolish an employer’s vicarious liability for an act or omission of the employer’s employee.
Accordingly, because the purpose of enacting the comparative-fault statutes was to eliminate joint and several liability in situations in which that liability existed, and because the case at bar is not one in which there would have been joint and several liability before enactment of the statutes, the comparative-fault statutes are not applicable here. There was no need for the legislation to address situations in which there would solely be several liability based on existing common law, considering that simple causation-damage principles would effectively result in a tortfeasor’s only being held responsible for injuries caused by his or her tortious conduct. However, it is necessary to examine the language in MCL 600.2957 and MCL 600.6304 to see if they are consistent with our conclusion. MCL 600.2957 provides, in relevant part:
(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to [MCL 600.6304], in direct proportion to the person’s per centage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.
(3) Sections 2956 to 2960 [MCL 600.2956 to 600.2960] do not eliminate or diminish a defense or immunity that currently exists, except as expressly provided in those sections. Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action.
We find nothing in MCL 600.2957 that conflicts with our assessment that the comparative-fault statutes are inapplicable with respect to fact patterns entailing multiple torts separated in time, multiple torts separated by individual causal chains, and multiple torts that did not produce a single, indivisible injury.
MCL 600.6304 provides, in pertinent part:
(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:
(a) The total amount of each plaintiffs damages.
(b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under [MCL 600.2925d], regardless of whether the person was or could have been named as a party to the action.
(2) In determining the percentages of fault under subsection (l)(b), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed.
(3) The court shall determine the award of damages to each plaintiff in accordance with the findings under subsection (1),... and shall enter judgment against each party, including a third-party defendant....
(4) Liability in an action to which this section applies is several only and not joint. Except as otherwise provided in subsection (6) [medical malpractice cases], a person shall not be required to pay damages in an amount greater than his or her percentage of fault as found under subsection (1). • • •
(8) As used in this section, “fault” includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.
As indicated already, MCL 600.6304(l)(b) requires the trier of fact to allocate the “percentage of the total fault of all persons that contributed to the death or injury . . . ,” (Emphasis added.) Again, there is no dispute that Chad’s parents did not contribute to the cause of Chad’s injuries, i.e., the tendon and joint injuries produced by the underlying occurrence at the daycare center, although their inaction may have caused Chad to later suffer separate, more extensive, and divisible damage. At this point, it is appropriate to note, for purposes of the comparative-fault statutes, that the concepts of “injury” and “damages,” while interrelated, are two distinct concepts. In Shinholster v Annapolis Hosp, 471 Mich 540, 552 n 6; 685 NW2d 275 (2004), the Court, construing MCL 600.6304, indicated that “damage cannot arise on its own, but must flow from an injury” and that “[d]amage can only be the result of an injury.” The Shinholster Court continued, stating, “[F]irst an injury to plaintiff must exist and the trier of fact must then determine whether plaintiff[ ] constituted a proximate cause of such injury before there is any need for the trier of fact to focus on plaintiffs damages.” Id. (emphasis added).
As indicated already, MCL 600.6304(2) requires the trier of fact, in “determining the percentages of fault under subsection (l)(b),” to “consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed.” (Emphasis added.) This language is simply to be incorporated into and made a part of the assessment that must be undertaken in regard to MCL 600.6304(l)(b), which, again, focuses on contribution to the “injury.” Accordingly, when subsections (l)(b) and (2) of MCL 600.6304 are read together, consideration of the causal relation between the conduct and the claimed damages means consideration of conduct that jointly contributed to the injury and the damages flowing from that particular conduct and resulting injury. Those statutory subsections, when read together, do not direct a trier of fact to consider damages unrelated to conduct that produced or caused the underlying injury. Once again, the conduct or inaction of Chad’s parents played no role in causing the tendon and joint injuries or the incident producing those injuries. Therefore, MCL 600.6304 would not even permit the trier of fact to consider any injuries that the parents may have caused Chad to suffer. The parents’ conduct constituted a possible subsequent, separate tort that was not part of the causal chain with respect to the finger injuries and the occurrence at the daycare center.
Finally, we examine MCL 600.6304(8), which defines “fault” as conduct “that is a proximate cause of damage sustained by a party.” This provision must also be read in the context of the “fault” allocation that the trier of fact must make under MCL 600.6304(l)(b). Accordingly, the examination of whether a person’s conduct was a “proximate cause of damage sustained by a party,” MCL 600.6304(8), necessarily means conduct that contributed to the injury and the damages flowing from that particular conduct and resulting injury. The conduct or inaction of Chad’s parents was not the factual or proximate cause of Chad’s tendon and joint injuries that he suffered at the daycare center. Accordingly, their conduct could not constitute fault for purposes of the statutory definition of “fault” found in MCL 600.6304(8).
In sum, the comparative-fault statutes are not implicated under the circumstances of this case. However, on remand, and under general principles of tort law, plaintiff will have to prove by a preponderance of the evidence that any claimed damages were the factual and proximate result of defendants’ negligence, and defendants’ negligence alone, which will potentially afford defendants some protection from being assessed damages that they did not cause. See Wischmeyer v Schanz, 449 Mich 469, 484; 536 NW2d 760 (1995); Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977).
III. CONCLUSION
We hold that the comparative-fault statutes have no application in this case because, as a matter of law and indisputably, defendants were the only parties at fault and there were no other tortfeasors with respect to the conduct that was the factual and proximate cause of the injuries to Chad’s finger in the occurrence at the daycare center. Any presumed negligence by the parents in regard to Chad’s medical treatment after the injuries occurred at the daycare center did not trigger the need to assess their fault for purposes of the comparative-fault statutes, given that such negligence was not part of the causal chain in regard to his finger’s becoming crushed and lacerated in the first place. Rather, any negligent conduct by the parents constituted a subsequent, separate tort that initiated a new causal chain leading to its own set of damages. However, on remand, and under general principles of tort law, plaintiff will have to prove by a preponderance of the evidence that any claimed damages were caused solely by defendants’ negligence.
Affirmed and remanded. Given our resolution of this appeal on grounds not addressed by the parties, we decline to award any party taxable costs. MCR 7.219(A).
Sawyer, J., concurred.
When we speak of the comparative-fault statutes, we refer to MCL 600.2956, MCL 600.2957, and MCL 600.6304.
The trial court dismissed the claims of gross negligence and nuisance on defendants’ motion for summary disposition.
MCR 2.112® incorporates MCL 600.2957 and MCL 600.6304 and addresses procedural and notice requirements with respect to fault allocation.
In determining whether a defendant was exercising reasonable parental authority, the question to be answered is not whether the defendant acted negligently, but whether the alleged act reasonably fell within one of the Plumley exceptions. Spikes, 231 Mich App at 348-349; Phillips v Deihm, 213 Mich App 389, 395; 541 NW2d 566 (1995). Here, the inaction at issue reasonably fell within one of the Plumley exceptions because Chad’s parents were clearly exercising their discretion with respect to the provision of medical services and care. Again, there was and is no dispute on this matter.
For purposes of this opinion and our analysis, we are effectively treating the two defendants as a single unit and the two parents as a single unit.
Because the instant case involves an injury and not a death, we shall solely use the term “injury” for the remainder of this opinion when discussing the statutory language.
Shinholster concerned whether any fault could be allocated to the plaintiffs decedent for causing her own death; however, the quoted language would he equally applicable to any other party or nonparty alleged to he at fault for causing an injury or death.
The dissent takes us to task for deciding this case on a theory that was neither raised in the trial court nor raised or briefed on appeal. We do note that the broad issue raised on appeal and addressed by us concerns whether the comparative-fault statutes are applicable, although we acknowledge that our analysis and approach with respect to that issue differs entirely from the arguments presented by the parties. In Mack v Detroit, 467 Mich 186, 206; 649 NW2d 47 (2002), our Supreme Court addressed and analyzed a governmental-immunity issue that was neither raised nor briefed by the parties, but the issue was a topic of discussion at oral argument. The Mack Court adamantly opposed the “position that although a controlling legal issue is squarely before this Court,... the parties’ failure ... to offer correct solutions to the issue limits this Court’s ability to probe for and provide the correct solution.” Id. at 207. The Court continued by noting that “[sjuch an approach would seriously curtail the ability of this Court to function effectively and .. . actually make oral argument a moot practice.” Id. At oral argument here, counsel for both parties were questioned regarding whether it could be argued that the comparative-fault statutes were not implicated because there was clearly no fault on the part of Chad’s parents in connection with the injury-producing incident. Were we to decide this case on the duty-versus-immunity arguments under the facts presented, we would implicitly be conveying to the bench and bar that the comparative-fault statutes are indeed generally implicated in circumstances in which a party or non-party was not the proximate cause of a plaintiffs injury or the injury-producing incident. In our estimation, however, this is not a correct legal conclusion for the reasons already stated. Consistently with Mack, we find that a controlling legal issue is squarely before us and must be analyzed regardless of the lack of briefing and the failure to raise the issue. | [
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Per Curiam.
In this probate case, we must decide whether the probate court properly entered an order pursuant to MCR 2.602(B)(2) and correctly interpreted and applied the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., and its simultaneous-death provision, MCL 700.2702. Appellant, Frederick D. Leete iy would have us conclude that the summary disposition order in favor of appellee, Cynthia K. Sherman, is void and that EPIC is inapplicable. We disagree and we affirm the probate court’s order.
I. BASIC FACTS
In 2008, Frederick DeLand Leete III and Barbara R. Leete, 80 and 75 years old respectively, had been married for 34 years and lived in Brownsburg, Indiana. They had no children from their marriage, but each had children from previous marriages. The Leetes owned, as tenants by the entirety, a cottage located in Mackinaw City in Emmet County, Michigan, which is the property that is the subject of this dispute. Apparently, Frederick had inherited this property, which had been in the Leete family for about 100 years. Nonetheless, Frederick and Barbara executed a quitclaim deed, dated October 29, 1996, which indicated that Frederick and Barbara would own, as tenants by the entirety,
[a]ll those portion of lots 59 and 60 of Block A in the Village of Mackinaw City, according to the recorded plat thereof, as lie North of the 15 ft. alley or service roadway bisecting said lots,
ALSO
Lot 61 of Block A in the Village of Mackinaw City, according to the recorded plat thereof, including all of said lot lying on both sides of the existing service road;
TOGETHER WITH ALL TANGIBLE PERSONAL PROPERTY IN OR ON SAID PREMISESL]
On February 28, 2008, at an unknown time, Frederick allegedly left his vehicle running in the garage after returning from the store. That same day, Barbara’s daughter went to Barbara and Frederick’s home and discovered Barbara dead and Frederick unconscious. At the time, the car’s engine was still warm, but it was no longer running because it had run out of gas. Frederick was taken to the hospital, but he expired on March 3, 2008, at 9:10 p.m. Barbara’s death certificate lists her date of death as February 28, 2008, time “unknown.” The cause of their deaths was carbon monoxide poisoning. Barbara died intestate, but Frederick had a will, dated September 20, 1974.
On May 23, 2008, appellant, who was Frederick’s son, filed a petition for probate and appointment as the personal representative of Frederick’s estate. Accordingly, Frederick’s will was submitted to probate, and appellant was appointed personal representative to administer Frederick’s estate. With regard to the disputed property, Frederick’s will provided:
I give and bequeath to my wife, Barbara R. Leete, if she shall survive me for a period of more than thirty (30) days, all real estate and improvements thereon of which I may die the owner or parr [sic] owner, specifically including the real estate and improvements located on Lot 62, Block “A”, Mackinaw City, Emmett County, Michigan. In the event my said wife shall not survive me for a period of more than thirty (30) days, then I give and bequeath such real estate to my aforenamed children who survive me for a period of more than thirty (30) days, per stirpes and not per capita.
Appellant filed an inventory of Frederick’s estate, listing among Frederick’s assets the property located in Mackinaw City.
On November 24, 2008, appellee, who was Barbara’s daughter and the personal representative of Barbara’s estate, filed an appearance in the case, giving notice to Frederick’s estate that Barbara’s estate sought a one-half interest in all jointly owned property because Frederick had not survived Barbara by more than 120 hours. The legal basis for appellee’s claim is MCL 700.2702(3) of EPIC, which provides:
Except as provided in subsection (4), if it is not established by clear and convincing evidence that 1 of 2 co-owners with right of survivorship survived the other co-owner by 120 hours, 1l2 of the co-owned property passes as if 1 had survived by 120 hours and 1h as if the other had survived by 120 hours. If there are more than 2 co-owners and it is not established by clear and convincing evidence that at least 1 of them survived the others by 120 hours, the property passes in the proportion that 1 bears to the whole number of co-owners. For the purposes of this subsection, “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles 1 or more to the whole of the property or account on the death of the other or others. [Emphasis added.]
Accordingly, on February 23, 2009, appellee filed a petition for a determination of the rights of Barbara’s estate and requested appellant to amend the inventory of Frederick’s estate in conformance with the statute.
In response, appellant asserted that MCL 700.2702(3) was inapplicable and asked that the Mackinaw City property be distributed according to Frederick’s will, as if Frederick had survived Barbara. Appellant alleged that Barbara died on February 27, 2008, and that Frederick, thus, died more than 120 hours after Barbara’s death. Appellant did not provide any evidence in support of this allegation. Appellant also argued that even if MCL 700.2702(3) was applicable, an exception in MCL 700.2702(4) applied and required that the property be divided according to the “governing instrument,” Frederick’s will. Appellant requested the court to adjourn the proceedings for appellant to substantiate his claim that Barbara died more than 120 hours before Frederick’s death.
The probate court granted appellant’s request for an adjournment. However, instead of producing evidence related to the time of Barbara’s death, appellant moved for summary disposition under MCR 2.116(C)(8) and (10). Appellant asserted that the property should be distributed consistently with Frederick’s will and that even if the will were not the “governing instrument,” MCL 700.2702(3) was inapplicable because it became effective four years after the deed was executed. In appellant’s view, once Barbara died the property passed, in whole, to Frederick and his will precluded the property’s division.
Appellee countered that Barbara’s estate was entitled to summary disposition based on MCR 2.116(1)(2) and (C)(10). Appellee argued that EPIC explicitly applies to the factual circumstances at issue and that the deed, not Frederick’s will, was the governing instrument at issue. Appellee further asserted that because Frederick and Barbara died within 120 hours of each other, one-half the interest of the Mackinaw City property vested in Barbara’s estate under MCL 700.2702(3). In response, appellant argued that his interpretation of EPIC was correct. However, appellant asked for additional time to pursue factual evidence with regard to the time of Barbara’s death.
At the motion hearing, the probate court initially denied both parties’ motions for summary disposition. However, appellee’s attorney presented to the court an order that the court indicated it would “follow” and sign if both parties agreed to “the form of that order.” The order provided, in relevant part:
IT IS HEREBY ORDERED that unless Frederick D. Leete IY Personal Representative of the Estate of Frederick Deland Leete III, Deceased, within [90] days from the date hereof, submits evidence that Frederick Deland Leete, III, survived Barbara R. Leete by 120 hours, the relief requested by the Petition and Motion For Summary Disposition filed by Cynthia K. Sherman, Personal Representative of the Estate of Barbara R. Leete, Deceased, shall be GRANTED, and the attached proposed Order shall be entered.
In the event such evidence of survival is submitted, Petitioner shall have [90] days to respond to such evidence, and the Court, if necessary, may schedule an evidentiary hearing to resolve the dispute.
Both attorneys for the parties signed the order “approved as to form,” and the probate court entered the order on May 19, 2009.
Ninety days later, on August 20, 2009, the court entered an order granting summary disposition in appellee’s favor. It found “no clear and convincing evidence” that Frederick had survived Barbara by 120 hours and that Barbara’s estate was entitled to half of any coowned property pursuant to MCL 700.2702(3). It ordered appellant to amend his inventory accordingly. This appeal followed.
II. ENTRY OF THE ORDER
Appellant first argues that the probate court’s August 20 order is void because it did not meet the requirements of MCR 2.602(B). We disagree. Appellant never raised this issue below, the probate court did not consider or decide this issue, and the matter is unpreserved for appeal. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). Thus, this Court is not required to consider appellant’s argument. See Royal Prop Group, LLC v Prime Ins Syndicate, Inc, 267 Mich App 708, 720-721; 706 NW2d 426 (2005). We also note that a party may not successfully obtain appellate relief on the basis of a position contrary to that which the party advanced in the lower court. Phinney v Perlmutter, 222 Mich App 513, 544; 564 NW2d 532 (1997). Arguably, we should thus dismiss appellant’s argument at the outset because appellant affirmatively agreed to the entry of the May 19 order, which, by its operation, resulted in the entry of the August 20 order that he now claims is void. Nonetheless, we will review appellant’s argument because this Court may review an unpreserved issue if it presents a question of law and all the facts necessary for its resolution are before the Court. Rudolph Steiner Sch of Ann Arbor v Ann Arbor Charter Twp, 237 Mich App 721, 740; 605 NW2d 18 (1999).
A trial court’s interpretation and application of a court rule is a question of law that this Court reviews de novo. See Marketos v American Employers Ins Co, 465 Mich 407, 412; 633 NW2d 371 (2001). Court rules are subject to the same rules of construction as statutes. Vyletel-Rivard v Rivard, 286 Mich App 13, 21; 777 NW2d 722 (2009). Our goal in interpreting the meaning of a court rule is to give effect to the intent of the drafters. Id. We first examine the language used. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 458; 733 NW2d 766 (2006). The drafters are assumed to have intended the effect of the language plainly expressed, and we must give every word its plain and ordinary meaning. Brausch v Brausch, 283 Mich App 339, 348; 770 NW2d 77 (2009). If the language is plain and unambiguous, then we must apply the language as written. Vyletel-Rivard, 286 Mich App at 22. In such instances, judicial construction is neither necessary nor permitted. Kloian, 273 Mich App at 458.
At issue in the present matter is MCR 2.602, which governs the “entry of judgments and orders.” MCR 2.602(B), titled “Procedure of Entry of Judgments and Orders,” provides:
An order or judgment shall be entered by one of the following methods:
(1) The court may sign the judgment or order at the time it grants the relief provided by the judgment or order.
(2) The court shall sign the judgment or order when its form is approved by all the parties and if, in the court’s determination, it comports with the court’s decision.
(3) Within 7 days after the granting of the judgment or order, or later if the court allows, a party may serve a copy of the proposed judgment or order on the other parties, with a notice to them that it will be submitted to the court for signing if no written objections to its accuracy or completeness are filed with the court clerk within 7 days after service of the notice. The party must file with the court clerk the original of the proposed judgment or order and proof of its service on the other parties.
(4) A party may prepare a proposed judgment or order and notice it for settlement before the court. [Emphasis added.]
Thus, under MCR 2.602(B), for an order to be valid, it must be entered in one of four ways: it may be signed at the time relief is granted; it may be signed when its “form” is approved by all the parties and if, in the court’s determination, it comports with the court’s decision; it may be entered pursuant to the “seven-day rule”; or, it may be prepared and noticed for settlement before the court.
The only relevant subrule of MCR 2.602(B) for purposes of this appeal is MCR 2.602(B)(2). The language of that provision is plain and unambiguous. An order must be signed and entered if two requirements are met: (1) the order’s “form” is approved by all the parties and (2) in the court’s determination, the order is in conformity with the court’s decision. The term “form” is not defined by the court rule and, in such instances, this Court may rely on dictionary definitions to give terms their plain and ordinary meanings. See Kloian, 273 Mich App at 458-459. Black’s Law Dictionary (9th ed) defines “form” as “[t]he outer shape or structure of something, as distinguished from its substance or matter,” or as an “[established ... procedure.” Thus, for the first condition of MCR 2.602(B)(2) to be met, the parties must agree regarding the order’s structure or, if relevant, any procedure that it may establish for the disposition of the matter before the court.
Although the probate court initially denied both parties’ motions for summary disposition at the motion hearing on May 19, 2009, indicating that the case needed “to be developed a little more,” it retracted this initial disposition and adopted the parties’ suggested course of proceeding with the matter. Specifically, appellee’s counsel informed the court that he had presented appellant’s counsel with a proposed form and order, indicating that if, within 90 days of the motion hearing, appellant did not present clear and convincing evidence that Frederick had died more than 120 hours after Barbara, appellee’s motion for summary disposition would be granted. The probate court then stated that it would follow this suggestion and would sign the proposed order if “both [parties] agree to the form of th[e] order. . . Subsequently, the court signed an order consistent with appellee’s suggestion, which both parties’ counsels also signed, each writing above his or her signature, “approved as to form.”
Given these facts, the probate court entered the May 19 order consistently with MCR 2.602(B)(2). The first requirement of MCR 2.602(B)(2) was met: both parties agreed to the form of the order, which in this case involved the entry of a subsequent order granting summary disposition for appellee if certain conditions were not met. Counsels’ signatures on the order, juxtaposed with the phrase “approved as to form” above each signature, are evidence that the order’s form was approved by all parties. Moreover, the second requirement of MCR 2.602(B)(2) was also met, given the court’s unequivocal statement at the motion hearing that it would follow appellee’s suggested course of action so long as “both [parties] agree to the form of th[e] order. . . .” The parties did so agree, and the court signed the order. In addition, because a court speaks through its written orders, the court’s signature on the May 19 order implies that the substance of the order was in conformity with its decision to follow appellee’s suggested course of action. Accordingly, the May 19 order was properly entered under MCR 2.602(B)(2).
Further, because the May 19 order was validly entered and the August 20 order was entered pursuant to the procedure established in the May 19 order, we also conclude that the August 20 order was validly entered under the same subrule. As already explained, the August 20 order was entered by operation of the procedure set forth in the May 19 order. It would be illogical for us to conclude that the August 20 order was not validly entered pursuant to MCR 2.602(B)(2), given that the parties agreed to the form of the May 19 order, which specifically contemplated entry of the August 20 order and was signed by the court consistently with its decision. In other words, under the circumstances of this case, the parties’ initial agreement about form in the first order was imputed to all subsequent orders entered consistently with that original agreement. Thus, because the parties agreed with respect to form and the order was consistent with the court’s decision, the August 20 order was validly entered pursuant to MCR 2.602(B)(2).
Lastly, for us to declare that the August 20 order was invalidly entered would allow litigants to haphazardly agree to the entry of orders that envision the entry of additional orders and later escape the effect of those subsequently entered orders on appeal by declaring the later orders void. The outcome would be a waste of judicial resources and would unnecessarily increase the cost of litigation to the parties’ detriment. Moreover, we note, contrary to appellant’s argument, that nothing in the plain language of MCR 2.602(B)(2) explicitly prohibits the type of conditional order that was entered in this matter. Nor do we agree with appellant’s argument that the order was not in conformity with the probate court’s decision. Accordingly, we conclude that both the May 19 and August 20 orders were validly entered pursuant to MCR 2.602(B)(2).
III. SUMMARY DISPOSITION
Appellant next contends that the probate court erred by granting appellee summary disposition. We review de novo a trial court’s decision on a motion for summary disposition. Royal Prop Group, 267 Mich App at 713. Because the probate court’s August 20 order necessarily relied on facts outside the pleadings, we will treat the court’s grant of summary disposition as based on MCR 2.116(0(10). A motion is properly granted under this subrule if no genuine issue of material facts exists and the moving party is entitled to judgment as a matter of law. Royal Prop Group, 267 Mich App at 713. In reviewing a lower court’s decision, we must view all the submitted admissible evidence in a light most favorable to the nonmoving party. In re Smith Estate, 252 Mich App 120, 123; 651 NW2d 153 (2002). “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.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
At the outset, we note that appellant’s argument on appeal is responsive not to the existence of a factual question, but to an interpretation of the applicable law. Specifically, appellant posits that we should reverse the probate court’s August 20 order because it made no findings about the applicability and effect of Indiana law, whether EPIC applied, whether a contrary intent precluded the application of MCL 700.2702(3), and whether an exception to the 120-hour rule applied, see MCL 700.2702(4). Appellant also asserts that the probate court applied the incorrect standard of proof.
We disagree that reversal is required on the basis of the probate court’s alleged failure to make any conclusions with regard to the applicable law. This position is without support in the record. Rather, the probate court — by adopting appellee’s suggested course of action at the May 19 motion hearing, which appellant agreed to in form only, and by entering the August 20 order in conformity therewith — concluded that appellee’s interpretation of the relevant statutes was correct and narrowed the dispositive issue to whether Frederick passed away more than 120 hours after Barbara under MCL 700.2702(3). Thus, our review is limited to whether the probate court’s interpretation of EPIC was correct, which is a question of law we review de novo. In re Clarence W Temple & Florence A Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). The same rules of construction apply as those discussed earlier in reference to court rules.
A. DOES MICHIGAN PROBATE LAW APPLY?
In 1998, the Michigan Legislature enacted EPIC, 1998 PA 386, which became effective April 1, 2000. The new law, which repealed and replaced the Revised Probate Code, 1978 PA 642, MCL 700.1 et seq., was intended to modernize probate practice by simplifying and clarifying the law concerning decedents’ affairs and by creating a more efficient probate system. MCL 700.1201; MCL 700.1303(3). Consistently with this purpose, the Legislature expanded the probate court’s powers and included “provisions designed to reduce court involvement in trusts and estates.” In re Nestorovski Estate, 283 Mich App 177, 190; 769 NW2d 720 (2009). Accordingly, EPIC confers on Michigan probate courts the exclusive legal and equitable jurisdiction of matters that “relateG to the settlement of a deceased individual’s estate, whether [the decedent died] testate or intestate, [if the decedent] was at the time of death domiciled in the county or was at the time of death domiciled out of state leaving an estate within the county to be administered....’” MCL 700.1302; Nestorovski, 283 Mich App at 189. In addition, MCL 700.1303(1) provides probate courts with further jurisdictional authority, which includes, in part, concurrent legal and equitable jurisdiction to determine a property right or interest, authorize the partition of property, authorize or compel specific performance of a contract in a joint or mutual will, and ascertain if individuals have survived. EPIC also explicitly states that it applies to “[a] nonresident’s property that is located in this state ....” MCL 700.1301(b).
Appellant contends that the probate court’s failure to consider the effect and application of Indiana laws of survivorship requires reversal and remand. We disagree. Implicit in the probate court’s decision was the conclusion that Indiana law was inapplicable to the administration of Frederick’s estate and that Michigan law was the correct choice of law. We see no error in this ruling. Although Frederick had a residence, and died, in Indiana, appellant filed an affidavit of domicile with the probate court that listed Frederick’s domicile as 804 Lakeside Drive, Mackinaw City, Michigan. Thus, application of EPIC to the administration of Frederick’s estate was appropriate. See MCL 700.1301(a).
Even if we were to assume that Frederick was an Indiana resident, we would reach the same conclusion. Michigan probate courts have jurisdiction over property located in this state, including property that is owned by a nonresident decedent, MCL 700.1302, and EPIC explicitly applies to a nonresident’s property located in Michigan, MCL 700.1301(b). Moreover, neither Frederick’s will nor any other documentary evidence evinces an intent that Indiana law should apply to the administration of his estate. And while Indiana undoubtedly has some interest in the administration of the estates of its deceased residents, Michigan’s interest in the present matter is greater, given the fact that the property at issue is located in Michigan and in value comprises the bulk of the assets of Frederick’s estate. See Frydrych v Wentland, 252 Mich App 360, 363-364; 652 NW2d 483 (2002) (explaining choice-of-law analysis). Thus, application of EPIC, as opposed to Indiana law, was appropriate.
B. DOES EPIC OR FORMER LAW APPLY?
Appellant next argues that EPIC is inapplicable because the deed and Frederick’s will predate EPIC’s effective date and because its application would affect an “accrued right.” We disagree. EPIC specifically “applies to a governing instrument executed by a decedent dying after [April 1, 2000, as long as it does not] impair an accrued right. . . .” MCL 700.8101(2)(a) and (d). Further, “[a] rule of construction ... provided in this act applies to a governing instrument executed before [April 1, 2000] unless there is a clear indication of a contrary intent.” MCL 700.8101(2)(e). Thus, EPIC applies to a governing instrument executed before EPIC came into effect, as long as it does not affect an accrued right and as long as the governing instrument does not contain a contrary intent. See Temple Marital Trust, 278 Mich App at 127-128. Under EPIC, “governing instrument” is defined as including both a will and a deed. MCL 700.1104(k).
The governing instrument here, be it Frederick’s will or the deed, was created before EPIC became effective, but neither instrument contains an explicit intent that EPIC should not apply. There is no mention in either instrument that some other law or rule should be enforced. And although both instruments were created before EPIC’s effective date of April 1, 2000, no accrued right therein would be impaired by applying EPIC. This Court has recognized that an accrued right is similar to one that has vested. Smith Estate, 252 Mich App at 127-128. However, in the context of EPIC, “an ‘accrued right’ . . . mean[s] something other than a right under a will upon the testator’s death .. . [and] is a legal right to the exclusion of any other right or claim to it.” Id. at 128-129. In other words, even though a devise under a will vests upon the death of the testator, it is not an accrued right under EPIC because “it is not so fixed that it cannot be changed.” Id. at 128. This understanding of the term “accrued right” is consistent with MCL 700.8101(2)(d), which states, in part, “If a right is acquired . . . upon the expiration of a prescribed period of time that commences to run by the provision of a statute before [April 1, 2000], the provision remains in force with respect to that right.” Appellant obtained no fixed or accrued right by way of Frederick’s will before April 1, 2000. See MCL 700.8101(2)(d). Nor did he acquire such a right at the time of Frederick’s and Barbara’s deaths because his interest in the Mackinaw City property was still subject to change. Accordingly, EPIC governs the present matter, and the probate court did not err by concluding the same.
C. DOES EPIC’S 120-HOUR RULE APPLY?
At the outset, we note that the 120-hour rule, or simultaneous-death provision, is not new to Michigan probate law. Its origin is related to the problematic administration of the common-law rule that an heir or devisee had to survive the testator by only an instant in order to receive a donative transfer under the testator’s will. 1 Restatement Property, 3d, Wills and Other Donative Transfers, § 1.2, pp 32-33. Administration of this common-law concept became problematic in the early twentieth century when vehicular accidents resulting in simultaneous deaths became more common. Id. at 33. Thus, in the context of simultaneous deaths, some new rule was necessary to ensure that each decedent’s property passed to his or her heirs and avoid the expense of double probate administration. Id. Michigan first adopted a survival requirement in 1941, see Uniform Simultaneous Death Act, 1941 PA 73, former MCL 720.101 through 720.108; and a survival-period requirement of 120 hours in 1978, see Revised Probate Code, 1978 PA 642, specifically former MCL 700.107 and 700.132. The latter requirement is meant to ensure that a decedent’s property passes to a beneficiary who can personally benefit, as opposed to a beneficiary who became deceased a short time later, meaning that the property would ultimately pass to that beneficiary’s heirs. 1 Restatement, § 1.2, p 34.
In Michigan, the 120-hour survival requirement did not always apply to nonprobate transfers, such as joint estates with rights of survivorship. In re VanConett Estate, 262 Mich App 660, 667-668; 687 NW2d 167 (2004) (explaining that jointly held property with rights of survivorship typically passes automatically to the surviving tenant upon one tenant’s death and is not subject to devise under a will). While the 120-hour rule was only applicable to wills under the Revised Probate Code, see former MCL 700.132, EPIC expanded the 120-hour rule to cover all events, governing instruments, and coownerships. Jacobs, EPIC 386 PA 1998 — Rules of construction and interpretation for transfers upon death, 79 Mich B J 345 (2000); compare former MCL 700.107, former MCL 700.132, and MCL 700.2702.
Appellant asserts that EPIC’s 120-hour rule is inapplicable because (1) a “contrary intention” exists, embodied in Frederick’s will, see MCL 700.2701, and (2) an exception to the 120-hour rule applies, see MCL 700.2702(4).
1. MCL 700.2701
The provisions appellant relies on, MCL 700.2701 and MCL 700.2702, are in EPIC’s article II (regarding intestacy, wills, and donative transfers) part 7 (regarding rules of construction applicable to governing instruments). MCL 700.2701 provides:
In the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a governing instrument. The rules of construction in this part apply to a governing instrument unless the application of a particular section is limited by its terms to a specific type of provision or governing instrument. [Emphasis added.]
MCL 700.1104(k) defines “governing instrument” as used in EPIC to mean
a deed; will; trust; insurance or annuity policy; account with POD [pay on death] designation; security registered in beneficiary form (TOD [transfer on death]); pension, profit-sharing, retirement, or similar benefit plan; instrument creating or exercising a power of appointment or a power of attorney; or dispositive, appointive, or nominative instrument of any similar type. [Emphasis added.]
Clearly, EPIC defines “governing instrument” broadly. The term includes both a will and a deed. MCL 700.2701 is plain and unambiguous. It indicates that the rules of construction articulated in part 7 of EPIC, as they pertain to governing instruments, will not apply if the relevant governing instrument contains a contrary intent. Thus, there must be some explicit recognition in that instrument that EPIC will not apply. This intent may be manifested, for example, by a specific directive that EPIC does not apply or that other rules apply, such as those articulated in the former Revised Probate Code or in another state’s probate code. In this case, neither the deed nor the will, nor any other instrument, declares such a contrary intent. Both instruments are silent on the matter. Thus, MCL 700.2701 does not function to preclude application of part 7 of EPIC, which includes the simultaneous-death provision articulated in MCL 700.2702.
2. MCL 700.2702
The section immediately following MCL 700.2701 is EPIC’s simultaneous-death provision. MCL 700.2702(3), provides, in relevant part:
Except as provided in subsection (4), if it is not established, by clear and convincing evidence that 1 of 2 co-owners with right of survivorship survived the other co-owner by 120 hours, 1h of the co-owned property passes as if 1 had survived by 120 hours and 1h as if the other had survived by 120 hours. If there are more than 2 co-owners and it is not established by clear and convincing evidence that at least 1 of them survived the others by 120 hours, the property passes in the proportion that 1 bears to the whole number of co-owners. For the purposes of this subsection, “co-owners with right of survivorship” includes joint tenants, tenants hy the entireties, and other co-owners of property or accounts held under circumstances that entitles 1 or more to the whole of the property or account on the death of the other or others. [Emphasis added.]
There is no dispute between the parties regarding the meaning of this language and, indeed, we are of the view that this language is clear. If two coowners with rights of survivorship die within 120 hours of one another, then the property does not pass in whole to the last surviving coowner but is divided in equal shares between each coowner’s estate. Conversely, if clear and convincing evidence shows that one coowner survived the other by 120 hours or more, then the estate of the longer surviving coowner receives the whole property consistently with his or her right of survivorship.
MCL 700.2702(4) provides a list of exceptions to the general rule established in MCL 700.2702(3). It states:
Survival by 120 hours is not required under any of the following circumstances:
(a) The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case. Language dealing explicitly with simultaneous deaths includes language in a governing instrument that creates a presumption that applies if the evidence is not sufficient to determine the order of deaths.
(b) The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period. Survival of the event or the specified period, however, must be established by clear and convincing evidence.
(c) The imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under section 2(l)(a), (2)(a), or (3)(a) of the uniform statutory rule against perpetuities, 1988 PA 418, MCL 554.72, or to become invalid under section 2(l)(b), (2)(b), or (3)(b) of the uniform statutory rule against perpetuities, 1988 PA 418, MCL 554.72.
(d) The application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition. Survival, however, must be established by clear and convincing evidence.
Thus, under these limited, articulated circumstances, the 120-hour rule is inapplicable.
Because there is no evidence in the present case demonstrating that Frederick survived Barbara by more than 120 hours — and appellant identifies no such evidence on appeal, in the record or otherwise, and makes no argument relating to the substance of this issue — the 120-hour rule applies and one-half of the Mackinaw City property vested in Barbara’s estate, unless appellant can substantiate that one of the exceptions in MCL 700.2702(4) is applicable. The only exception that appellant argues is applicable is MCL 700.2702(4)(d). However, we disagree. While this case does involve multiple governing instruments— Frederick’s 1974 will and the 1996 deed — we are not of the view that application of the 120-hour rule would result in an “unintended failure ... of a disposition.” Certainly, Frederick indicated in his 1974 will that Barbara must survive him by more than 30 days in order to receive a full ownership interest in the Mackinaw City property. At the time, Frederick was presumably the sole owner of the property. However, Frederick and Barbara executed a quitclaim deed in 1996 that conveyed the Mackinaw City property to Barbara and Frederick as tenants by the entirety. Clearly, as is evident from the execution of the deed, Frederick’s intent with respect to the disposition of the Mackinaw City property changed in 1996. “A conveyance by a testator of. . . his property after making his will revokes the will.” In re Smith, 191 Mich 694, 701; 158 NW 148 (1916); cf. MCL 700.2507. Thus, a portion of Frederick’s will was effectively revoked with respect to this particular property because the conveyance was inconsistent with the will’s provision regarding the disposition of the Mackinaw City property at Frederick’s death. And, accordingly, it cannot be said that the application of the 120-hour rule under the present circumstances would result in an unintended failure of disposition. Rather, adherence to the 1974 will would have that effect.
Accordingly, appellant has failed to show that any of the exceptions to the 120-hour rule are applicable. The trial court did not err by applying the 120-hour rule to the present circumstances. And because clear and convincing evidence does not show that Frederick survived Barbara by 120 hours or more, the Mackinaw City property is properly divided between their respective estates consistently with MCL 700.2702(3).
D. DID THE PROBATE COURT APPLY THE WRONG STANDARD OF PROOF?
Finally, we also reject appellant’s last argument that the probate court applied the incorrect standard of proof. Appellant takes issues with the court’s written statement in its August 20 order, which stated, “There is no clear and convincing evidence that Frederick Deland Leete, III, survived Barbara R. Leete by 120 hours . ...” However, appellants’s allegation takes the probate court’s statement out of context. The clear and convincing evidentiary burden is mandated by MCL 700.2702(1), which provides, in part: “[A]n individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is considered to have predeceased the event.” This provision establishes a party’s burden of proof with regard to the 120-hour rule. Thus, when the probate court’s order is read as a whole, it means that appellant failed to bring forth any clear and convincing evidence, as required by the statute, that would create a question of fact, when viewed in a light most favorable to appellant, that Frederick survived Barbara by 120 hours. There is no indication in the probate court’s August 20 order that it applied the incorrect standard of proof. The trial court properly-granted summary disposition in appellee’s favor.
Affirmed.
The exact time Barbara and Frederick were discovered is unclear. The police report indicates that the event was reported about 1:40 p.m.
The year 2008 was a leap year and, thus, the dates between Barbara’s and Frederick’s deaths included February 28 and 29, and March 1, 2, and 3. The longest length of time possible between Barbara’s and Frederick’s deaths would be 117 hours and 10 minutes. This calculation assumes that Barbara died at the earliest time possible on February 28, i.e., immediately after the day began at midnight.
The “clear and convincing” evidence standard in the context of the simultaneous-death provision was newly included under EPIC. Compare former MCL 700.107 and former MCL 700.132 with MCL 700.2702. This evidentiary burden serves to resolve doubtful questions in favor of nonsurvival and better serves the decedent’s intent that his or her property pass to heirs and only to persons who can personally benefit from it. 1 Restatement, § 1.2, p 35. | [
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Wilder, P.J.
Flaintiff appeals as of right the circuit court’s order denying her motion to shift her attorney fees and costs to defendant. We reverse and remand. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
The parties’ 2005 divorce judgment granted plaintiff primary physical custody of the parties’ two minor children and required defendant to pay child support in the amount of $682.88 a month for two children and $449.51 a month for one child “until Defendant returns to his employment from Disability,” after which the obligation would be $785.27 a month for two children and $516.67 a month for one child.
In 2008, plaintiff moved to increase defendant’s support obligations. At the hearing in July 2008, both parties proceeded without assistance of counsel. Defendant stated that his biweekly gross income was $1,594.56 (which would generate an annual income of $41,458.56) and produced a letter from his employer that mirrored his representations. Defendant explained that his gross income was based on his “usual[]” work schedule of 36 hours in one week and 48 hours the next week at his hourly pay rate of $17.84. After inquiring about plaintiffs income and the parties’ sundry expenses, the referee recommended that defendant’s general care assessment be $734 a month for the two children and $481 a month for one child.
Plaintiff filed objections on the grounds that the referee did not ask defendant what his income was in 2007 and that defendant had not provided his W-2 Form for that year. Nonetheless, the referee’s recommendation was adopted in a court order. Plaintiff moved to set aside that order. The circuit court granted the motion and reserved the question of attorney fees. The matter was referred to the Friend of the Court for the purpose of calculating child support for two minor children in accordance with the true incomes of the parties.
A new recommendation followed, this time for support in the amount of $1,090 a month for two children and $709 a month for one child. Plaintiff moved for entry of an order consistent with that recommendation and for sanctions.
The parties appeared for an evidentiary hearing and settled the support issue. Plaintiffs attorney reported that in addition to agreements concerning health-care expenses, “[t]he parties have come to agreement regarding the Uniform Child Support Order by modifying it retroactive to April 29th, 2008 wherein [defendant] will pay to [plaintiff] child support for two children in the amount of $1,175, and for one child the amount of $800.” The hearing continued on the issue of sanctions. Plaintiff argued that defendant had misrepresented his income at the initial hearing on the motion to increase his support obligations, thereby requiring numerous court appearances that would have otherwise been unnecessary.
Defendant admitted that, by the time of the first hearing in July 2008, at which he reported a biweekly gross income that would have totaled $41,458.56 for the year, he had already earned $40,000 and that he ultimately earned $81,808.32 in 2008. Defendant’s attorney averred that defendant excluded voluntary overtime when reporting his usual work schedule because he had reduced expectations of similar future income as a result of the economy and a health condition that caused a doctor to recommend that he work 60 hours a week or less. Defendant’s attorney also averred that expenses from the divorce had made it difficult for defendant to get back on his feet.
At the conclusion, the circuit court held as follows:
[TJhere was not an intentional or deliberate act or motive on the part of the Defendant which could... give rise to a consideration that is lack of or intended... misleading information to the Friend of the Court, particularly in reviewing the transcript of the Friend of the Court hearing on July 7th, 2008, which would cause the Court to conclude that... there should be leveled ... the reimbursement of an attorney fees or costs in this case and, therefore the request by the Plaintiff for ... attorney fees and/or cost[s] is denied.
On appeal, plaintiff argues that she is entitled to costs and attorney fees on the grounds that she was the prevailing party and that defendant caused unnecessary court appearances and delayed resolution of the case by maintaining positions with no reasonable basis in law or fact.
This Court reviews a trial court’s ruling on a motion for costs and attorney fees for an abuse of discretion. Klinke v Mitsubishi Motors Corp, 219 Mich App 500, 518; 556 NW2d 528 (1996); In re Condemnation of Private Prop for Hwy Purposes, 221 Mich App 136, 139-140; 561 NW2d 459 (1997). An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes. Radeljak v DaimlerChrysler Corp, 475 Mich 598, 603; 719 NW2d 40 (2006). A trial court’s findings of fact, such as whether a party’s position was frivolous, may not be set aside unless they are clearly erroneous. MCR 2.613(C); see Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002).
“Awards of costs and attorney fees are recoverable only where specifically authorized by a statute, a court rule, or a recognized exception.” Phinney v Perlmutter, 222 Mich App 513, 560; 564 NW2d 532 (1997). MCL 600.2591(1) grants a court the authority to award sanctions in the form of attorney fees and costs to a prevailing party if an action or defense is deemed “frivolous.” For an action or defense to be considered “frivolous,” at least one of the following conditions must be met:
(i) The party’s primary purpose in initiating the action . .. was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.
(Hi) The party’s legal position was devoid of arguable legal merit. [MCL 600.2591(3)(a).]
Plaintiff first argues that she was a “prevailing party” for purposes of MCL 600.2591(1). The circuit court did not resolve this question, instead concluding that the defense was not frivolous. Nevertheless, according to MCL 600.2591(3) (b), a “prevailing party” is “a party who wins on the entire record.” Because the parties’ settlement resulted in a higher support award, we agree with plaintiff that she was the prevailing party on her motion.
Defendant relies on MRE 408 to argue that consideration of the parties’ settlement should be precluded. MRE 408 provides:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.... This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Because the settlement is not offered to prove defendant’s liability for the amount of child support to which the parties agreed, but is offered to prove whether plaintiff is a prevailing party, we reject defendant’s argument.
Plaintiff next argues that defendant deceived the referee by offering evidence that his biweekly gross income was $1,594.56 when he knew that he actually earned more, thereby requiring additional proceedings, including those on the motion to set aside the order resulting from the referee’s recommendation, and delaying resolution of the matter. We agree. In light of defendant’s admission that he had already earned $40,000 by the time of the July 2008 hearing and that he ultimately earned $81,808.32 in 2008, defendant had no reasonable basis to believe that the biweekly gross income he reported to the referee, which would have totaled $41,458.56 annually, was true. Consequently, we agree with plaintiff that defendant’s initial opposition to the motion to increase child support was frivolous.
Defendant explains that his self-serving omission of evidence regarding his voluntary overtime was made in light of an anticipated loss of that overtime in the future. Defendant then correctly argues that a trial court has discretion to deviate from the child support formula when application of the formula would be unjust or inappropriate. See MCL 552.605(2). However, even if the anticipated loss of overtime would have made application of the formula using his actual income in July 2008 unjust, defendant had no reasonable basis to believe that the biweekly gross income he reported to the referee was true. Moreover, it would have been in the referee’s discretion, not defendant’s, to recommend a deviation from the formula after child support was calculated using accurate facts.
Because plaintiff was the prevailing party and defendant asserted a frivolous defense, we conclude that the circuit court abused its discretion by denying plaintiffs motion for attorney fees and costs pursuant to MCL 600.2591(1). We reverse and remand to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs pursuant to MCR 7.219.
We also note that trial courts possess the inherent authority to sanction litigants and their attorneys. “This power is not governed so much by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Maldonado v Ford Motor Co, 476 Mich 372, 376; 719 NW2d 809 (2006). | [
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Borrello, J.
In these consolidated appeals, both defendants appeal their convictions arising out of the shooting death of Stephanie McClure in 2007.
In Docket No. 286960, defendant, Paula Renai Bennett, appeals as of right her conviction by a jury of first-degree murder, MCL 750.316. Bennett was sentenced to life in prison. For the reasons set forth in this opinion, we affirm.
In Docket No. 287768, defendant, Kyron Darell Benson, appeals as of right his convictions by a jury of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, possession of a firearm by a felon, MCL 750.224f, and first-degree murder, MCL 750.316. Benson was sentenced to two years in prison for the felony-firearm conviction, one to five years in prison for the felon-in-possession conviction, and life in prison for the first-degree-murder conviction. For the reasons set forth in this opinion, we affirm.
I. FACTS
Defendants lived together in Bennett’s apartment. The victim, Stephanie McClure, was Bennett’s friend and sometimes stayed at Bennett’s apartment. In October 2007, defendants discovered that several items, including a PlayStation 2, clothes, and shoes, had been stolen from Bennett’s apartment. Benson became angry over the stolen items and began to blame McClure for stealing them. Benson started making threatening comments to several people about McClure, including commenting that he wanted to kill McClure for stealing the items. Benson told one of the persons to whom he had indicated that he wanted to kill McClure, Breanna Kandler, one of Bennett’s friends, that he would kill Kandler too if she “[said] anything” about his threats. Benson wanted Kandler to drive him to McClure’s trailer to get the apartment key back from McClure. Kandler testified that she took Benson’s threats seriously and, accordingly, refused to take Benson to McClure’s trailer.
Later in the evening, defendants and several of their friends were at Bennett’s apartment. They noticed that defendants’ puppy was missing and were looking around the apartment for the dog. Benson joked that maybe the dog was in the freezer, and when he checked in the freezer, he did indeed find the puppy, which was dead. Benson immediately accused McClure of killing the dog as well. Two of Bennett’s friends testified that they thought Benson had killed the dog because of the way he reacted to finding it. After the dead dog was disposed of, defendants and their friends went to a Dairy Mart. While at the Dairy Mart, Kandler saw Benson take a gun out of his car and put it in his pants. Another friend, Jessica Fritz, testified that she had previously seen her boyfriend sell a gun to Benson. Later that evening, Bennett and Benson left their friends, stating that they were going to “get [their] stuff back.”
Benson then called his friend Michael Larvaidan and asked him to meet defendants at a Kroger store. Larvaidan had spoken to Benson about the stolen items several times in the preceding days. He testified that he tried to get Benson to calm down about the incident. According to Larvaidan, while at Kroger, Benson was angry and “going on about trying to get his stuff back,... talking about going to kill [McClure].” Benson showed Larvaidan a gun while he was talking about this. After Larvaidan got into the car with defendants, Bennett directed Benson to go to “Holiday West,” the trailer park where McClure lived. Benson drove according to Bennett’s directions. Once they reached the trailer park, Bennett specifically directed Benson to McClure’s trailer. They saw McClure standing outside by the trailer, in front of a car. Benson said, “That’s her.”
Larvaidan testified that he told Benson, “[D]rive off.” Benson drove around the trailer park and then parked the car. Larvaidan told him “just to talk to her. Don’t do nothing stupid.” Benson got out of the car and walked toward McClure’s trailer. Bennett moved to the driver’s seat, and she and Larvaidan continued to drive around the trailer park. While they were driving around, Larvaidan saw Benson talking to McClure. After several minutes they heard three or four gunshots and then saw Benson running away. Bennett started crying as soon as they heard the gunshots. Bennett drove toward where Benson was running, and Benson got back in the car. Larvaidan asked Benson, “Why?” Benson responded that “he would have lost respect in the. . . hood.” Larvaidan also said, “[You] better hope she’s dead . . . ’cause if she’s not, [you’re] going to jail.”
Because Bennett was charged with murder on a theory of aiding and abetting Benson, several witnesses testified regarding the interactions between defendants and Bennett’s conduct toward Benson. The evidence presented demonstrated that Bennett was present when Benson started making threats about killing McClure, as well as threats toward Kandler. Benson was also yelling at Bennett at this time, telling her that she “was dumb for giving [McClure] a key.” Kandler testified before Bennett’s jury only that Bennett told her that she thought Benson “looked pretty serious” about killing McClure, although Kandler testified that she never witnessed Bennett agree to kill McClure.
Fritz testified that she heard defendants arguing for an extended period before they went to McClure’s trailer; Benson was again yelling at Bennett because she had given a key to McClure. Bennett told Benson that she had filed a report with the police and that the police would take care of it. Fritz could not recall Benson’s response to Bennett. After the argument, Bennett told Fritz that she and Benson were “leaving to get their stuff back.”
Finally, Larvaidan testified that Benson was talking openly in the car about shooting McClure just before Bennett gave Benson directions to McClure’s trailer. Bennett did not respond to these comments. Larvaidan also testified that after they heard gunshots, Bennett immediately began crying and drove back around toward McClure’s trailer, where they observed Benson running away.
Following numerous seemingly erroneous leads, the police eventually arrested defendants for the murder of Stephanie McClure. After defendants were arrested, Benson was observed telling Bennett under the door between their jail cells, “Don’t talk.” Following trial, defendants were found guilty on all counts and sentenced as previously stated. These appeals ensued.
II. DOCKET NO. 286960: PEOPLE v BENNETT
Bennett’s first argument on appeal is that there was insufficient evidence to prove that she aided and abetted Benson in the commission of first-degree murder.
This Court reviews de novo claims of insufficient evidence, viewing the evidence in the light most favorable to the prosecution, to determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005) (opinion by KELLY, J.). Further, this Court must defer to the fact-finder’s role in determining the weight of the evidence and the credibility of the witnesses. People v Fletcher, 260 Mich App 531, 561; 679 NW2d 127 (2004). “[C]onflicts in the evidence must be resolved in favor of the prosecution.” Id. at 562. Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of the crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).
The elements of first-degree murder are (1) the intentional killing of a human (2) with premeditation and deliberation. People v Taylor, 275 Mich App 177, 179; 737 NW2d 790 (2007); MCL 750.316(1)(a). A defendant may be vicariously liable for murder on a theory of aiding and abetting. People v Usher, 196 Mich App 228, 232-233; 492 NW2d 786 (1992), overruled in part on other grounds by People v Perry, 460 Mich 55, 64-65 (1999). The elements of aiding and abetting are
(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encouragement. [People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006) (quotation marks and citations omitted).]
See also MCL 767.39. Bennett asserts that the prosecution did not prove the third element of aiding and abetting — that Bennett knew Benson intended to kill the victim at the time she directed him to where the victim lived.
There was evidence presented to the jury that demonstrated Bennett’s desire to let the police resolve the issue of the victim’s alleged theft of items from Bennett and Benson. Testimony elicited at trial clearly indicated that Bennett went to the police station to report the theft. Fritz testified that Bennett and Benson fought about the theft and that Benson blamed Bennett for giving the victim a key to their apartment. When Bennett and Benson left to go to the victim’s trailer, Bennett told Fritz only that they were going to retrieve the stolen items. Nobody heard Bennett agree to help Benson kill the victim. Fritz testified that Bennett told Benson at one point while he was making his threats, “No, I can’t do it.” Finally, Bennett acted shocked and upset after the victim was shot.
There was also evidence presented at trial from three witnesses who testified that during the day preceding the murder, Benson threatened, in Bennett’s presence, to kill the victim. Kandler testified that she took Benson’s threats seriously enough to refuse to drive Benson to see the victim. Kandler also testified that Bennett told her that Benson seemed serious when he was making his threats. After Bennett’s statement to Fritz about retrieving the stolen items, Benson repeated his threat in Bennett’s presence, and Bennett saw Benson show a gun to Larvaidan just before the murder. Bennett agreed to direct Benson directly to the victim’s trailer even after Bennett saw Benson with the gun and heard his threats to kill McClure and even though she took the threats seriously. Larvaidan also testified that Benson talked openly in the car about shooting the victim just before Bennett gave Benson directions to the victim’s trailer. Testimony further indicated that after Bennett had directed Benson to the victim’s trailer and Benson had got out of the vehicle after positively identifying the victim, Bennett then assumed the wheel of the car, drove around the trailer park, and drove the car back around toward the victim’s trailer after she and Larvaidan heard shots and observed Benson running away.
Pursuant to Robinson, 475 Mich at 6, in order for the prosecution to prevail on the element of aiding and abetting raised in Bennett’s appeal, the prosecution must prove that the defendant either intended the commission of the crime or had knowledge that the principal intended its commission at the time that the defendant gave aid and encouragement. To the extent that Bennett directs this Court to conflicts in the testimony, we note that it is the jury’s role to weigh the evidence and resolve any conflicts. Fletcher, 260 Mich App at 561-562. An aider and abetter’s knowledge of the principal’s intent can be inferred from the facts and circumstances surrounding an event. People v Turner, 213 Mich App 558, 568; 540 NW2d 728 (1995), disapproved in part on other grounds in People v Mass, 464 Mich 615, 628 (2001). Despite Bennett’s directing this Court’s attention to some evidence that suggests that it was not Bennett’s desire to kill the victim, there was considerable evidence from which the jury could have inferred that Bennett knew of Benson’s intent. She observed and heard Benson make multiple and serious threats to kill the victim. She saw him with a gun immediately before directing him to the location of the shooting and driving there with him. Consequently, the evidence presented at trial belies Bennett’s argument on appeal that she did not want Benson to kill the victim. However, even if we concluded that the evidence established that Bennett may have been reluctant to have Benson kill the victim, that evidence does not negate the critical element of Bennett’s knowledge of Benson’s specific intent to kill the victim. The evidence proffered by Bennett on appeal merely demonstrates that Bennett may have been unenthusiastic about the prospect of Benson’s killing the victim. Such evidence does not negate the fact that Bennett was aware of Benson’s specific intent to kill the victim. Thus, we find that there was sufficient evidence from which the jury could conclude that Bennett was guilty of first-degree murder on a theory of aiding and abetting.
Bennett next argues that the prosecutor committed misconduct by failing to adequately plumb the depths of the investigation by the officer in charge into prior suspects in the case. Bennett also argues that the prosecutor bolstered the officer’s testimony in her closing argument.
In order to preserve an issue of prosecutorial misconduct, a defendant must contemporaneously object and request a curative instruction. People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). Bennett’s trial counsel objected to the prosecutor’s questioning in one instance, with respect to whether the officer’s investigation changed his recommendation of whom to charge in this case. Thus, with respect to this alleged error, this issue was preserved. Bennett’s trial counsel did not raise any other objections concerning this issue; therefore, the issue was not preserved with respect to other alleged errors.
Issues of prosecutorial misconduct are reviewed de novo to determine whether the defendant was denied a fair and impartial trial. People v Akins, 259 Mich App 545, 562; 675 NW2d 863 (2003). Further, allegations of prosecutorial misconduct are considered on a case-by-case basis, and the reviewing court must consider the prosecutor’s remarks in context. Id.
Unpreserved issues are reviewed for plain error affecting substantial rights. Carines, 460 Mich at 763. “Reversal is warranted only when plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings.” People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). “Further, [this Court] cannot find error requiring reversal where a curative instruction could have alleviated any prejudicial effect.” Id. at 329-330.
Bennett argues that the prosecutor “vouched [for] or bolstered” Officer John Toth’s testimony by eliciting answers from him about the nature of his investigation and the exoneration of prior suspects. Bennett argues that the prosecutor asked Toth whether his investigation eliminated possible suspects other than defendants but did not provide corroborating evidence to support Toth’s conclusions. Bennett cites United States v Francis, 170 F3d 546, 551 (CA 6, 1999), which stated, in relevant part:
A prosecutor may ask a government agent or other witnesses whether he was able to corroborate what he learned in the course of a criminal investigation. However, if the prosecutor pursues this line of questioning, she must also draw out testimony explaining how the information was corroborated and where it originated.
The Francis court also discussed the rationale underlying this discussion: “The prosecutor’s failure to introduce to the jury whether the information was corroborated via documents, searches, conversations, or other means, would lead a reasonable juror to believe that the prosecutor was implying a guarantee of truthfulness based on facts outside the record.” Id.
This underlying rationale is echoed in Michigan caselaw: “Included in the list of improper prosecutorial commentary or questioning is the maxim that the prosecutor cannot vouch for the credibility of his witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness.” People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). The danger is that the jury will be persuaded by the implication that the prosecutor has knowledge that the jury does not and decide the case on this basis rather than on the evidence presented. Id.; People v Matuszak, 263 Mich App 42, 54-55; 687 NW2d 342 (2004).
In this case, the prosecutor took Toth through a lengthy discussion of his investigation of multiple suspects and drew out the chain of interviews and the investigation that led to suspicion of defendants. The questioning about which Bennett complains relates to the exoneration of the prior suspects. Bennett argues that the prosecutor left the jury with the impression that the prosecutor had special knowledge regarding the innocence of the prior suspects by failing to elicit details regarding their alibis or other exonerating details.
Bennett’s entire argument relies on an analogy to the Francis case. However, the facts presented in this case differ substantially from the circumstances in Francis. In Francis, the officer was testifying about statements he received from a witness about the defendant. Francis, 170 F3d at 551. He testified that he corroborated the statements without indicating how he had done so. Id. In this case, the testimony Bennett questions pertained merely to the exoneration of other suspects, none of whom were on trial or witnesses against defendants in this case. The credibility of other suspects’ alibis was not directly relevant to defendants’ guilt or innocence. The purpose of the prosecutor’s line of questioning did not pertain to evidence regarding the guilt or innocence of defendants, but merely provided a context for the jury of the officer’s investigation and how it eventually led to defendants. Further, the prosecution is not required to disprove everyone else’s guilt; rather, the prosecution is only required to present evidence of the defendant’s guilt. Because the truth or falsity of the prior suspects’ alibis was not directly relevant to defendants’ guilt, the failure to pursue the question did not raise an inference of special knowledge regarding the truth of Toth’s testimony. Bahoda, 448 Mich at 276.
Bennett also argues that the prosecutor improperly bolstered Toth’s testimony in her closing argument. A prosecutor may not vouch for the credibility of his or her witnesses. People v Schutte, 240 Mich App 713, 722; 613 NW2d 370 (2000), overruled in part on other grounds by Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). However, a prosecutor may comment on his or her own witnesses’ credibility, especially when credibility is at issue. People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004); Schutte, 240 Mich App at 721-722. The prosecutor is free to argue from the evidence and its reasonable inferences in support of a witness’s credibility. Schutte, 240 Mich App at 721. The prosecutor must refrain from commenting on his or her “personal knowledge or belief regarding the truthfulness of the ... witnesses,” Thomas, 260 Mich App at 455, or “conveying] a message to the jury that the prosecutor had some special knowledge or facts indicating the witness’ truthfulness,” Bahoda, 448 Mich at 277.
The prosecutor argued that the jury should focus on the evidence against defendants rather than consider the possibilities raised by defense counsel that someone else could have committed the crime and that the police did not adequately rule out other suspects. She stated, “[Fjrankly, Martians from outer space might have done it, too. But that’s not what happened. That’s not what the evidence shows.” Additionally, the prosecutor argued that the police conducted a proper investigation by not jumping to conclusions about possible suspects.
We cannot identify in the prosecutor’s closing argument any intimation that she had special knowledge regarding Toth’s investigation or that she put a “stamp of approval” on the testimony. She merely summarized Toth’s testimony that the police investigated several leads before identifying defendants as suspects to rebut the suggestion that the police haphazardly identified defendants. She made no comments about the substance of Toth’s investigation. The closest she came to putting her “stamp of approval” on the testimony was by stating that the officers did the investigation “to the best of their ability” and that Toth “did what an officer should do and try to get to the truth.” These statements were innocuous and unspecific, again simply rebutting the suggestion that the officers did not do an adequate investigation. Further, the statements developed an argument based on the evidence and the reasonable inferences arising from the evidence. Schutte, 240 Mich App at 721. Finally, the prosecutor did not claim to know anything about the investigation beyond what was shown by the evidence — that the police investigated multiple leads before focusing on defendants. Bahoda, 448 Mich at 277. The prosecutor’s remarks were proper.
We affirm the conviction and sentence of defendant Paula Renai Bennett.
III. DOCKET NO. 287768: PEOPLE v BENSON
Benson initially argues that the trial court erred when it denied his motion to quash the district court’s bindover decision. “A circuit court’s decision to grant or deny a motion to quash charges is reviewed de novo to determine if the district court abused its discretion in binding over a defendant for trial.” People v Jenkins, 244 Mich App 1, 14; 624 NW2d 457 (2000). Questions of constitutional law are reviewed de novo. People v Davis, 472 Mich 156, 159; 695 NW2d 45 (2005).
At the preliminary examination, Fritz and Kandler testified against both defendants. Fritz testified that Bennett told her after the murder that Benson “did it.” This testimony was admitted only against Bennett. Benson argues that, absent this testimony, the prosecution failed to produce sufficient evidence to bind him over on the charges at his preliminary examination.
“The purpose of a preliminary examination is to determine whether probable cause exists to believe that a crime was committed and that the defendant committed it.” People v Lowery, 274 Mich App 684, 685; 736 NW2d 586 (2007). Accordingly, the prosecutor need not demonstrate guilt beyond a reasonable doubt at the preliminary-examination stage. Id. Probable cause is established if “a person of ordinary caution and prudence [could] conscientiously entertain a reasonable belief of the defendant’s guilt.” Id. (quotation marks and citation omitted).
At the preliminary examination, Fritz testified that Benson was angry at the victim for stealing the items and he threatened to kill the victim. Fritz testified that she witnessed Benson and Bennett leave together to find the victim just before the killing. She testified that Bennett returned from that trip and looked upset. Kandler also testified that she had heard Benson threatening to kill the victim earlier in the day before she was killed. Thus, multiple witnesses heard Benson threaten to kill the victim, Benson was observed leaving to look for the victim just before her death, and Bennett returned from the trip crying and upset. Benson argues that the district court must necessarily have considered Fritz’s further testimony that Bennett told her that Benson killed the victim because this other evidence was insufficient to establish probable cause. However, we conclude that even without Bennett’s statements, there was legally sufficient evidence for a “person of ordinary caution and prudence” to have a reasonable belief that Benson committed the crime of murdering the victim. Moreover, the presentation of sufficient evidence to convict at trial renders any erroneous bindover decision harmless. People v Libbett, 251 Mich App 353, 357; 650 NW2d 407 (2002).
Benson next argues that the trial court erred when it admitted on several occasions testimonial hearsay that violated his right of confrontation. Benson raised these issues in a motion for a new trial and argues on appeal that the trial court should have granted a new trial. The decision whether to grant a new trial is within the trial court’s discretion and is, therefore, reviewed for an abuse of discretion. People v Brown, 279 Mich App 116, 144; 755 NW2d 664 (2008); People v Lester, 232 Mich App 262, 271; 591 NW2d 267 (1998). Questions of constitutional law are reviewed de novo. Davis, 472 Mich at 159.
“The Confrontation Clause of the Sixth Amendment bars the admission of ‘testimonial’ statements of a witness who did not appear at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.” People v Walker (On Remand), 273 Mich App 56, 60-61; 728 NW2d 902 (2006). In People v Taylor, 482 Mich 368, 378-379; 759 NW2d 361 (2008), our Supreme Court held with regard to whether a statement is testimonial:
The overruling of [Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980)] by the United States Supreme Court in Crawford and Davis [v Washington, 547 US 813; 126 S Ct 2266; 165 L Ed 2d 224 (2006)] undermines the analytical underpinnings of this Court’s decision in [People v Poole, 444 Mich 151; 506 NW2d 505 (1993)], which was entirely predicated on Roberts. Thus, the holding in Poole that a codefendant’s nontestimonial statement is governed by both MRE 804(b)(3) and the Confrontation Clause is no longer good law.... Accordingly, the admissibility of the statements in this case is governed solely by MRE 804(b)(3). This Court’s MRE 804(b)(3) analysis in Poole remains valid, however, and provides the applicable standard for determining the admissibility of a codefendant’s statement under the hearsay exception for statements against a declarant’s penal interest. MRE 804(b)(3) provides:
“(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
In Poole [444 Mich at 161], this Court held:
“[W]here, as here, the declarant’s inculpation of an accomplice is made in the context of a narrative of events, at the declarant’s initiative without any prompting or inquiry, that as a whole is clearly against the declarant’s penal interest and as such is reliable, the whole statement — including portions that inculpate another- — is admissible as substantive evidence at trial pursuant to MRE 804(b)(3).”
Thus, our Supreme Court has ruled that a statement made to an acquaintance, outside a formal proceeding, is a nontestimonial statement and may be admitted as substantive evidence at trial pursuant to MRE 804(b)(3). Taylor, 482 Mich at 378-379. Benson argues that Fritz’s testimony that Bennett told her that Benson killed the victim violated his right of confrontation. Bennett’s statements were made to Fritz, a friend, and not within a formal proceeding. Thus, they were non-testimonial and do not implicate the Confrontation Clause. Id. Benson next argues that Kandler’s testimony that Bennett told her cousin that Benson was threatening to kill the victim was a Confrontation Clause violation. Because this statement was to an acquaintance and there is no indication that it was made for the purposes of identifying the perpetrator of a crime, the statement was nontestimonial and did not implicate the Confrontation Clause. Id. at 378; Walker, 273 Mich App at 63.
Benson next argues that Larvaidan’s testimony about a conversation he had with his father about whether to talk to the police violated his right of confrontation. Larvaidan’s father told Larvaidan to “tell the truth.” This statement was not hearsay because it did not contain an assertion; it was a command. MRE 801; People v Jones (On Rehearing After Remand), 228 Mich App 191, 204-205; 579 NW2d 82 (1998), mod 458 Mich 862 (1998). Moreover, the statement was nontestimonial because it had nothing to do with Benson or his alleged conduct and it was not made for testimonial purposes. Taylor, 482 Mich at 378; Walker, 273 Mich App at 63.
Finally, Benson argues that Kathleen McIntyre’s testimony that her mother told her “to leave the room” while she spoke to Bennett on the phone also violated his right of confrontation. Like Larvaidan’s testimony, this statement was not even an assertion, let alone testimonial. Taylor, 482 Mich at 378; Walker, 273 Mich App at 63; Jones, 228 Mich App at 204-205.
Benson also argues that the prosecutor committed misconduct by referring in her opening statement to Fritz’s testimony regarding Bennett’s statements. However, because the statements were in fact admitted, and we have concluded that they were properly admitted, the prosecutor did not err. People v King, 215 Mich App 301, 307; 544 NW2d 765 (1996).
Benson finally makes the same argument as Bennett that the prosecutor improperly vouched for and bolstered Toth’s testimony through her questioning and closing remarks. We have already concluded that the questioning of Toth did not constitute misconduct. Further, the prosecutor’s argument to Benson’s jury was largely the same as her argument to Bennett’s jury, and we conclude that she was not bolstering Toth’s testimony or intimating to the jury that she had special knowledge regarding Toth’s investigations.
We affirm the convictions and sentences of defendant Kyron Darell Benson.
Affirmed.
Meter, EJ., concurred.
Defendants were tried together before separate juries. This Court consolidated the appeals in the interest of the “efficient administration of the appellate process.” People v Bennett, unpublished order of the Court of Appeals, entered July 23, 2009 (Docket Nos. 286960 and 287768).
This evidence was presented to Benson’s jury only.
At trial, the testimony was admitted against Benson as an excited utterance.
Benson also raises in his statement of questions presented the argument that Fritz’s testimony was inadmissible hearsay erroneously admitted. Benson waived this argument because he failed to provide any support for the contention. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims----” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Benson also argued that the same testimony was a violation of the Confrontation Clause, but neglected to present the issue in his statement of questions presented. Thus, this argument is also waived. English v Blue Cross Blue Sheild of Mich, 263 Mich App 449, 459; 688 NW2d 523 (2004). | [
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Saad, J.
Defendant appeals by leave granted a circuit court order that compelled arbitration of this dispute over retiree health benefits. For the reasons set forth below, we reverse and remand for further proceedings.
Defendant argues that it is not required to arbitrate this dispute because the contract in question provides for arbitration only of those claims that arose during the term of the parties’ collective-bargaining agreement (CBA). There exists “a strong presumption in favor of using negotiated grievance procedures for resolving disputes over the interpretation or application of a collective bargaining agreement.” AFSCME v Highland Park Bd of Ed, 457 Mich 74, 84; 577 NW2d 79 (1998). Notwithstanding this presumption, no duty to arbitrate a labor dispute arises solely by operation of law. Litton Fin Printing Div v NLRB, 501 US 190, 200; 111 S Ct 2215; 115 L Ed 2d 177 (1991). “The duty to arbitrate grievances arises from [the] contractual agreement between an employer and its employees. Absent such an agreement, neither party is obliged to submit to binding arbitration.” Ottawa Co v Jaklinski, 423 Mich 1, 22; 377 NW2d 668 (1985) (opinion by WILLIAMS, C.J.).
Though, contrary to defendant’s arguments, the plain language of article 10.03 of the CBA does not preclude arbitration in this case, arbitration is plainly precluded under article 10.01, which provides: “In the event differences should arise between the Employer and the Union during the term of this Agreement as to the interpretation and application of any of its provisions, the parties shall act in good faith to promptly resolve such differences in accordance with the following procedures ....” (Emphasis added.) The dispute at issue is a “difference” that arose between plaintiffs and defendant regarding the interpretation and application of article 30.11(B) of the CBA, which allows eligible employees retiring after December 1, 1997, to select a medical-benefit plan from available plans offered during open enrollment. Thus, if the dispute had arisen “during the term of [the] Agreement,” article 10.01 would seemingly require that the parties employ the grievance procedure of the CBA, including arbitration. However, because the dispute arose after the agreement expired, plaintiffs are not entitled to arbitration.
It is undisputed that the 2000-2004 CBA expired on July 31, 2008, when a successor agreement was executed. It is also undisputed that the “difference” involved in this case did not arise until September 3, 2008, at the earliest, when defendant notified retirees of the modifications to their prescription-drug benefits scheduled to take effect on October 1, 2008. Thus, the dispute arose after the expiration of the 2000-2004 CBA and not “during the term of [the] Agreement. . ..” Accordingly, under the plain language of article 10.01, the dispute is not arbitrable.
Plaintiffs argue that because the retirees’ health benefits are “vested” rights, the right to arbitration continued after the expiration of the 2000-2004 CBA. In Jaklinski, 423 Mich at 22 (opinion by WILLIAMS, C.J.), our Supreme Court held that “the right to grievance arbitration survives the expiration of the collective bargaining agreement when the dispute concerns the kinds of rights which could accrue or vest during the term of the contract.” The Court noted, however, that this rule does not negate explicit language in a CBA that contravenes the rule of postexpiration arbitrability. Id. at 24-25. The Court stated:
Nothing stated here should he interpreted to mean that the parties to a collective bargaining agreement cannot explicitly agree to terms which depart from any rule announced here. They may agree to their own definition of “accrued” or “vested” rights. They may explicitly agree to extend beyond contract expiration any substantive or procedural rights. They may explicitly agree that accrued and vested rights and the right to arbitrate concerning them also extinguish at contract termination. [Id.]
As already discussed, the language of article 10.01 reflects the parties’ agreement that the right to arbitration under the CBA was extinguished when the CBA expired.
This Court analyzed a similar arbitration provision in Highland Park v Mich Law Enforcement Union, Teamsters Local No 129, 148 Mich App 821, 823; 385 NW2d 701 (1986), which involved a CBA between the city of Highland Park and a union representing patrolmen and corporals in the city’s police department. The CBA expired on June 30,1982. Thereafter, six command officers unexpectedly retired and, on August 6, 1982, the mayor appointed six people to fill the vacancies. The union contended that the appointments failed to comply with the CBA and ultimately demanded arbitration. The city asserted that the dispute was not arbitrable. Id.
This Court acknowledged that the right to arbitration may survive the expiration of a CBA when the dispute involves accrued or vested rights. Highland Park, 148 Mich App at 825. However, this Court ruled that the specific language in the CBA did not provide for arbitration when the grievance did not arise during the term of the agreement. The arbitration clause provided as follows: “ Tt is mutually agreed that all grievances, arising under and during the life of the Agreement, shall be settled in accordance with the procedure herein provided.’ ” Id. This Court noted that the grievances at issue were based on events that occurred after the expiration of the CBA and held that “[although the grievances would have been arbitrable had they arisen during the life of the agreement, under the terms of the agreement they are not arbitrable after expiration.” Id. The language of the CBA in Highland Park is similar to the language in the CBA before us.
Plaintiffs correctly argue that there is a presumption of arbitrability when a CBA contains an arbitration clause. See Cleveland Electric Illuminating Co v Utility Workers Union of America, Local 270, 440 F3d 809, 814 (CA 6, 2006). “An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 582-583; 80 S Ct 1347; 4 L Ed 2d 1409 (1960). Because the arbitration clause here limited the grievance procedure to differences arising “during the term of [the] Agreement,” and it is undisputed that the differences at issue in this case did not arise during the term of the 2000-2004 CBA, the clause is not susceptible of an interpretation that covers this dispute. Thus, defendant has rebutted the presumption of arbitrability.
To summarize, because the dispute in this case arose after the expiration of the 2000-2004 CBA, and the contractual language limits the right of arbitration to disputes arising “during the term of [the] Agreement,” the dispute is not arbitrable and the trial court erred by ordering arbitration.
Because plaintiffs filed this action simply to enforce the arbitration provision of the CBA, and because we hold that this dispute is not arbitrable, we need not decide defendant’s argument that plaintiffs lack standing to bring claims on behalf of retirees. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
The trial court’s order also denied plaintiffs’ motion for a preliminary injunction, but no party has appealed that ruling.
We review de novo a trial court’s determination whether an issue is subject to arbitration. Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App 146, 152; 742 NW2d 409 (2007). We also review de novo as a question of law issues involving contract interpretation. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006).
When interpreting a contract, we examine the contractual language to determine the intent of the parties. Quality Prod & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). This Court must examine the language of the contract and accord the words their ordinary and plain meanings if such meanings are apparent. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003). If the language is unambiguous, courts must interpret and enforce the contract as written. Quality Prod, 469 Mich at 375. “[A]n unambiguous contractual provision is reflective of the parties’ intent as a matter of law.” Id.
See also Litton, 501 US at 205-206 (recognizing that there exists a presumption of arbitrability when an action taken after the expiration of a CBA infringes on a right that accrued or vested under the CBA).
We further note that the language here is different from that at issue in Litton, 501 US at 205, which the Court characterized as an “unlimited arbitration clause ....” The clause in Litton provided: “ ‘Differences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, the construction to be placed on any clause or clauses of the Agreement shall be determined by arbitration in the manner hereinafter set forth.’ ” Id. at 194. Notably absent is any language limiting the right of arbitration to the duration of the agreement. Thus, the Court held that any dispute arising under the agreement was subject to arbitration even after the expiration of the agreement. Id. at 205. Again, the CBA at issue here does not contain language similar to that in Litton. | [
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Borrello, P.J.
Plaintiffs Donald and Eva Beebe appeal as of right the trial court’s order granting a motion for dismissal pursuant to MCL 600.2955a by defendants Christina Sheely, D.O., and Family Practice & Orthopedic Care Center, PL.L.C. For the reasons set forth in this opinion, we reverse.
I. FACTS AND PROCEDURAL HISTORY
On August 26, 2004, plaintiff was celebrating his thirty-third birthday at his home while working on his snowmobile with a friend. As he worked, plaintiff consumed about 11 cans of beer between noon and 8:00 p.m. At about 8:00 p.m., plaintiff drove the snowmobile across his lawn. According to plaintiff, as he was driving the snowmobile, he “grabbed ahold of the throttle, and I just stood straight up and it dumped me off.” Plaintiff put his right leg down to catch himself and injured it. He was transported to the emergency room at defendant Community Health Center of Branch County where defendant Richard J. Hartman, Jr., D.O., diagnosed him as having fractures of the tibia and fibula in his right leg. Blood alcohol testing from a sample taken at 9:10 p.m. at Community Health Center indicated that plaintiff had a blood alcohol content of 0.13 percent. On August 27, 2004, Dr. Sheely performed surgery on plaintiff’s right leg, and Dr. Hartman assisted. The surgery entailed a “[cjlosed reduction of right tibia and fibula with intramedullary nailing of the tibia locked both proximally and distally.” Plaintiff suffered from intense postsurgical pain in his right leg, as well as numbness and swelling in his right foot. He was discharged from the hospital the day after surgery. In January 2005, plaintiff sought medical care from Dr. Tudor Tien, who concluded that plaintiff had “sustained flexion contractures of his toes in his right foot” and that “[t]he cause of his symptoms are most likely from a deep compartment syndrome in his leg.” In May 2005, Dr. Tien performed extensive reconstructive surgery of plaintiffs right leg.
In February 2007, plaintiff filed a medical malpractice complaint against defendants, alleging that defendants failed to diagnose and treat him for compartment syndrome in his lower right leg after they performed surgery on the leg and that as a result, he “has been and remains lame and disabled from many vocational, recreational, household and personal activities and in pain.” According to the complaint, defendants failed to appreciate and understand the signs and symptoms of compartment syndrome, failed to recognize plaintiffs symptoms as consistent with compartment syndrome, failed to perform examinations or testing to confirm or rule out compartment syndrome, failed to diagnose and treat compartment syndrome, and failed to consult with or refer plaintiff to a physician who could recognize the signs and symptoms of compartment syndrome.
In December 2007, Community Health Center moved for summary disposition under MCR 2.116(0(10), arguing that plaintiffs complaint for damages was barred by MCL 600.2955a because plaintiff was intoxicated at the time of the snowmobile accident and plaintiff was 50 percent or more the cause of the snowmobile accident that resulted in his leg injuries. Drs. Hartman and Sheely and Family Practice & Orthopedic Care Center filed a concurrence in Community Health Center’s motion for summary disposition. On April 16, 2008, the trial court ruled that in light of Harbour v Correctional Med Servs, Inc, 266 Mich App 452; 702 NW2d 671 (2005), the applicable “event” under MCL 600.2955a was the snowmobile accident and not defendants5 medical treatment of plaintiff’s leg. However, the trial court denied defendants summary disposition “because questions of fact remain regarding whether Mr. Beebe’s intoxication was 50% or more the cause” of the snowmobile accident that resulted in his injury.
On April 21, 2009, Dr. Sheely and Family Practice & Orthopedic Care Center moved to dismiss plaintiff’s cause of action. Anticipating the parties’ stipulation that plaintiff’s consumption of alcohol was more than 50 percent the cause of the snowmobile accident that resulted in plaintiff’s injury, defendants asserted that there was now no issue of material fact regarding whether plaintiff’s intoxication was more than 50 percent the cause of his injury and that summary disposition was therefore proper under MCL 600.2955a. On May 5, 2009, the trial court entered the parties’ order stipulating that plaintiff’s “impaired ability to function due to the influence of intoxicating liquor was 50% or more the cause of the snowmobile accident of August 26, 2004 which resulted in fractures to his right tibia and fibula pursuant to MCL 600.2955(a) [sic].” On that same date, the trial court granted defendants’ motion to dismiss “because [plaintiff] had an impaired ability to function due to the influence of intoxicating liquor and that as a result of that impaired ability, [plaintiff] was fifty percent or more the cause of the event that resulted in Plaintiffs’ injuries as alleged in the Complaint.” Plaintiffs appeal as of right the trial court’s dismissal of his medical malpractice action.
II. STANDARD OF REVIEW
This Court’s review of a trial court’s grant of summary disposition pursuant to MCR 2.116(C) (10) is as follows:
This Court reviews de novo a trial court’s grant or denial of summary disposition under MCR 2.116(0(10). Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(0(10) tests the factual support for a claim. Downey v Charlevoix Co Rd Comm’rs, 227 Mich App 621, 625; 576 NW2d 712 (1998). The pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted by the parties must be considered by the court when ruling on a motion brought under MCR 2.116(0(10). Downey, supra at 626; MCR 2.116(G)(5). When reviewing a decision on a motion for summary disposition under MCR 2.116(0(10), this Court “must consider the documentary evidence presented to the trial court ‘in the light most favorable to the nonmoving party.’ ” DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836 (2001), quoting Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999). A trial court has properly granted a motion for summary disposition under MCR 2.116(0(10) “if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.” Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). [Clerc v Chippewa Co War Mem. Hosp, 267 Mich App 597, 601; 705 NW2d 703 (2005), remanded on other grounds 477 Mich 1067 (2007).]
This case involves the construction of MCL 600.2955a. This Court reviews de novo the interpretation of a statute. Manske v Dep’t of Treasury, 282 Mich App 464, 468; 766 NW2d 300 (2009).
III. ANALYSIS
At issue in this case is the interpretation and application of MCL 600.2955a. MCL 600.2955a provides an absolute defense when impairment from alcohol is 50 percent or more the cause of the accident or event that resulted in the plaintiffs injury;
(1) It is an absolute defense in an action for the death of an individual or for injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was 50% or more the cause of the accident or event that resulted in the death or injury. If the individual described in this subsection was less than 50% the cause of the accident or event, an award of damages shall be reduced by that percentage.
(2) As used in this section:
(a) “Controlled substance” means that term as defined in section 7104 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.7104 of the Michigan Compiled Laws.
(b) “Impaired ability to function due to the influence of intoxicating liquor or a controlled substance” means that, as a result of an individual drinking, ingesting, smoking, or otherwise consuming intoxicating liquor or a controlled substance, the individual’s senses are impaired to the point that the ability to react is diminished from what it would be had the individual not consumed liquor or a controlled substance. An individual is presumed under this section to have an impaired ability to function due to the influence of intoxicating liquor or a controlled substance if, under a standard prescribed by section 625a of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being section 257.625a of the Michigan Compiled Laws, a presumption would arise that the individual’s ability to operate a vehicle was impaired.
“[T]he absolute defense of impairment provided by MCL 600.2955a serves a unique legislative purpose.” Harbour, 266 Mich App at 460. By enacting the statute, the Legislature “ ‘sought to place more responsibility on intoxicated plaintiffs who are equally or more to blame for their injuries, therefore marking a shift toward personal responsibility envisioned by overall tort reform.’ ” Id. at 461, quoting Wysocki v Felt, 248 Mich App 346, 358-359; 639 NW2d 572 (2001).
The primary objective in construing a statute is to discern and give effect to the Legislature’s intent. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). The words used in a statute provide the most reliable evidence of the Legislature’s intent. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). “Every word or phrase of a statute will be assigned its plain and ordinary meaning unless defined in the statute.” Piccalo v Nix (On Remand), 252 Mich App 675, 679; 653 NW2d 447 (2002). If the language of the statute is clear and unambiguous, the Court must follow it, and further judicial construction is neither permitted nor required. Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000).
MCL 600.2955a provides an absolute defense in this case if plaintiff “was 50% or more the cause of the accident or event that resulted in the death or injury.” MCL 600.2955a(l). The trial court ruled that the applicable “event” under MCL 600.2955a(l) that resulted in plaintiffs injury was the snowmobile accident and not defendants’ medical treatment of plaintiffs leg. In Piccalo, this Court interpreted the word “event” in MCL 600.2955a(l) broadly, meaning “ ‘something that happens or is regarded as happening; an occurrence, especially one of some importance’ or ‘the outcome, issue, or result of anything.’ ” Piccalo, 252 Mich App at 680, quoting The Random House Dictionary of the English Language: Second Edition Unabridged, p 671.
Analogous caselaw arising from this Court’s and our Supreme Court’s interpretations and applications of the governmental tort liability act is instructive. MCL 691.1407(2) provides that when certain conditions are met, governmental employees are immune from tort liability for damages they caused. For purposes of our discussion, the relevant language of MCL 691.1407(2) states that a governmental employee is immune from tort liability if, among other conditions, “[t]he . . . employee’s .. . conduct does not amount to gross negligence that is the proximate cause of the injury or damage.” MCL 691.1407(2)(c) (emphasis added).
In 1994, our Supreme Court held that the word “the” preceding “proximate cause” in MCL 691.1407(2)(c) did not indicate that the conduct was required to be the sole proximate cause of the injury in order to overcome immunity. Dedes v Asch, 446 Mich 99, 107; 521 NW2d 488 (1994). Six years later, the Supreme Court overruled Dedes in part in Robinson, 462 Mich at 458-459. According to our Supreme Court’s decision in Robinson, the Legislature’s use of the definite article indicated the Legislature’s intent to limit tort liability except when the governmental employee’s gross negligence was “the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause.” Robinson, 462 Mich at 462. This Court has followed Robinson in strictly limiting tort liability when a governmental employee’s negligence is merely a cause, rather than the cause of the plaintiffs injuries. See Costa v Community Emergency Med Servs, Inc, 263 Mich App 572, 579; 689 NW2d 712 (2004).
A. THE INJURY
Applying the same analysis used by our Supreme Court in its interpretation and application of the governmental tort liability act to MCL 600.2955a(l), we first must identify “the injury.” Here, the trial court failed to properly identify “the injury” that was the basis for the action. Under MCL 600.2955a(l), a plaintiffs impaired ability to function because of intoxicating liquor is an absolute defense if the plaintiff’s impaired ability to function “was 50% or more the cause of the accident or event that resulted in the death or injury.” (Emphasis added.) “[T]he Legislature is presumed to understand the meaning of the language it enacts into law . . . .” Robinson, 462 Mich at 459. Furthermore, “[ejach word of a statute is presumed to be used for a purpose.” Id. As previously discussed, the Legislature’s repeated use of the word “the” rather than “a” in MCL 600.2955a(l) is significant. Thus, in order for the absolute defense of impairment statute to apply, the plaintiff’s impairment from alcohol must have been “the cause of the accident or event,” and the particular accident or event must have resulted in the particular injury. The one particular accident or event that resulted in the pain and the contracture of the toes of plaintiff’s right foot was defendants’ alleged medical malpractice, not the snowmobile accident. Furthermore, the one specific result of defendants’ alleged medical malpractice was the pain in plaintiff’s right leg and the contracture of the toes of his right foot.
In this case, there were two distinct injuries that were the result of two separate accidents or events. The first accident or event was plaintiff’s snowmobile accident; the injuries that resulted from this accident or event were tibia and fibula fractures in plaintiff’s right leg. The second accident or event was defendants’ alleged medical malpractice in failing to diagnose and treat plaintiff’s compartment syndrome; the injuries from this accident or event included pain and the contracture of the toes of plaintiffs right foot. The basis of a medical malpractice action is an injury to an individual that is the proximate result of alleged medical malpractice. See MCL 600.2912a. The relevant injury for purposes of plaintiff’s medical malpractice action was not the fractures of the bones in his right leg, but the separate and distinct injury to plaintiff that resulted from defendants’ alleged medical malpractice. According to plaintiff, defendants’ medical malpractice in failing to diagnose and treat the compartment syndrome that developed in his right leg after Drs. Sheely and Hartman performed surgery on the leg caused injury in the form of pain and contracture of the toes on plaintiff’s right foot. Hence, the injury giving rise to plaintiff’s complaint is based on plaintiff’s medical malpractice action, which was a separate and distinct injury from those suffered as a result of plaintiffs intoxication.
B. THE CAUSE
Under the plain language of MCL 600.2955a(l), the plaintiffs impairment from alcohol must have been “the cause,” meaning the proximate cause that resulted in the particular injury. MCL 600.2955a(l). Causation includes both cause in fact and legal, or proximate, causation. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). Cause in fact requires a showing that but for the defendant’s actions, the plaintiffs injury would not have occurred, while legal causation relates to the foreseeability of the consequences of the defendant’s conduct. Id. at 163.
As noted previously, when considering a decision on a motion for summary disposition under MCR 2.116(C)(10), we must review “ ‘the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.’ ” Odom v Wayne Co, 482 Mich 459, 466-467; 760 NW2d 217 (2008), quoting Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). Viewing the evidence in a light most favorable to plaintiff, plaintiff was not the “proximate cause” of the pain in his right leg and the contracture of the toes of his right foot. Robinson, 462 Mich at 462. For this reason alone, summary disposition based on the absolute defense of impairment provided by MCL 600.2955a would be improper.
For the absolute defense of impairment provided by the statute to apply, plaintiffs impairment from alcohol must also have been the one proximate cause of plaintiffs injuries suffered as a result of compartment syndrome. “[L]egal cause or ‘proximate cause’ normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.” Skinner, 445 Mich at 163. “To establish legal cause, the plaintiff must show that it was foreseeable that the defendant’s conduct ‘may create a risk of harm to the victim, and . .. [that] the result of that conduct and intervening causes were foreseeable.’ ” Weymers v Khera, 454 Mich 639, 648; 563 NW2d 647 (1997), quoting Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977). There may be more than one proximate cause of an injury. Brisboy v Fibreboard Corp, 429 Mich 540, 547; 418 NW2d 650 (1988). Frequently, two causes will operate concurrently so that both constitute a direct proximate cause of the injury that results. Id.
Even assuming that plaintiffs impairment because of the influence of intoxicating liquor was a proximate cause of the leg injuries that resulted from the compartment syndrome, defendants would also be a proximate cause of those injuries if the evidence is viewed in a light most favorable to plaintiff. There was evidence that compartment syndrome can be a complication of fractures of the tibia and fibula and that plaintiff developed a deep compartment syndrome in his right leg after defendants performed surgery on the leg. There was also evidence that defendants did not diagnose or treat plaintiffs compartment syndrome and that plaintiff suffered pain and contracture in the toes of his right foot as a result of the compartment syndrome. In this case, we do not decide whether both plaintiff and defendants were proximate causes of the pain or the contracture of the toes of plaintiffs right foot and, if they both were proximate causes, whether plaintiffs impairment was a substantial factor in producing the pain and the contractures. We also do not decide whether defendants’ alleged medical malpractice was foreseeable or whether it was an independent, intervening cause sufficient to sever the causal connection between plaintiffs impairment from alcohol and the injuries that resulted from defendants’ alleged malpractice. Generally, proximate cause is a factual issue to be decided by the trier of fact. Nichols v Dobler, 253 Mich App 530, 532; 655 NW2d 787 (2002). Our task in this case is limited to determining whether plaintiff was the proximate cause of the pain and the contracture of the toes of his right foot under MCL 600.2955a(l). Viewing the evidence in a light most favorable to plaintiff, we conclude that defendants may have been the proximate cause of the injuries plaintiff suffered as a result of the compartment syndrome; consequently, MCL 600.2955a does not apply to the facts of this case.
C. POLICY CONSIDERATIONS
Policy reasons support our construction of MCL 600.2955a. Concluding that the applicable accident or event in this case was the snowmobile accident rather than the alleged medical malpractice would effectively provide a blanket shield to medical care providers from medical malpractice actions in all cases in which the plaintiff patient was impaired when he or she sought treatment even if the medical care providers committed medical malpractice and caused a separate and discrete injury to the impaired plaintiff. Any construction of MCL 600.2955a that would result in such a blanket shield from liability for medical care providers is contrary to the policy in this state that allows patients injured by medical malpractice to seek recourse for their injuries in the form of a medical malpractice action. Moreover, interpreting MCL 600.2955a in a manner that would shield medical care providers from liability when the patient was impaired would not further the purposes and policies underlying the defense. Although the Legislature’s purpose in enacting MCL 600.2955a was “ ‘to place more responsibility on intoxicated plaintiffs who are equally or more to blame for their injuries’ ” by “ ‘marking a shift toward personal responsibility,’ ” Harbour, 266 Mich App at 461, quoting Wysocki, 248 Mich App at 358-359, this purpose would not be served if a plaintiff, albeit an intoxicated plaintiff, were precluded from bringing an action to recover for separate and discrete injuries that were the result of medical malpractice and not the plaintiffs intoxication. Such an outcome would result in an inequitable shifting of the blame that would favor a negligent medical care provider who was more at fault for the injury than the intoxicated plaintiff.
D. HARBOUR IS DISTINGUISHABLE
Furthermore, our decision in Harbour does not require a contrary result in this case because Harbour is distinguishable both factually and legally from the instant case. In Harbour, the plaintiffs decedent was arrested for driving while under the influence of intoxicating liquor and taken to jail. Harbour, 266 Mich App at 454. At the jail, a nurse assessed him and placed him on “sick call” in a holding cell. Id. Approximately two hours after the nurse assessed him, the plaintiffs decedent “died as a result of irregular heart rhythms caused by acute alcohol withdrawal.” Id. This Court ruled that alcohol withdrawal meets the broad definition of an “event” under MCL 600.2955a(l). Id. at 459. Because the decedent’s alcohol-related impairment caused the acute withdrawal that was the most immediate, efficient and direct cause of the decedent’s death, the defendant was entitled to the absolute defense of impairment provided by MCL 600.2955a. Id. at 463.
Unlike the facts of this case, there was only one injury in Harbour, the decedent’s death. In the instant case, there were two distinct injuries: plaintiffs fractured tibia and fibula and the injuries to plaintiffs right leg that resulted from the compartment syndrome. Significantly, the causal connection between the decedent’s impairment from alcohol and his death was unusually strong in Harbour because the decedent literally drank himself to death. In Harbour it was difficult for the plaintiff to dispute that the decedent’s impairment from alcohol resulted in his death when “[p]laintiffs own evidence was unequivocal that the decedent’s chronic alcohol abuse and . . . his alcohol-related impairment caused the acute withdrawal that was the ‘most immediate, efficient, and direct cause’ of his death.” Id., quoting Robinson, 462 Mich at 446. Furthermore, the plaintiffs expert witness in Harbour admitted that what might have happened if the decedent had been treated differently by the nurse was “pure speculation.” Id. In contrast to Harbour, the causal connection between plaintiffs impairment in this case and the pain and contracture of the toes in his right foot was not as clear-cut because viewing the evidence in a light most favorable to plaintiff, there may have been more than one cause that resulted in the pain and contractures, and for MCL 600.2955a to apply, plaintiffs impairment from alcohol must have been the one cause that resulted in the pain and the contracture of the toes of his right foot. Harbour is also distinguishable on the basis that the alleged medical malpractice was not a discrete injurious event because the decedent’s own consumption of alcohol resulted in his death from acute alcohol withdrawal, whereas in the instant case, the injuries that plaintiff suffered as a result of compartment syndrome were discrete injuries that were not influenced by plaintiffs impairment from alcohol.
In sum, we hold that the applicable “accident or event” under MCL 600.2955a(l) was defendants’ alleged medical malpractice. Viewing the evidence in a light most favorable to plaintiff, there was more than one cause that resulted in the pain and the contracture of the toes in plaintiffs right foot. Therefore, MCL 600.2955a(l) does not apply to the facts of this case.
Reversed.
JANSEN, J., concurred.
Eva Beebe’s claim is for loss of society, services, companionship, comfort and consortium, which is a derivative action. Wilson v Alpena Co Rd Comm, 474 Mich 161, 163 n 1; 713 NW2d 717 (2006). Therefore, this opinion refers to Donald Beebe as “plaintiff.”
By this time, Community Health Center and Dr. Hartman had been dismissed from the case by stipulation. We will refer to Dr. Sheely and Family Practice & Orthopedic Care Center as “defendants” for the remainder of this opinion
For review purposes, we treat the trial court’s granting of defendants’ motion to dismiss as a granting of summary disposition under MCR 2.116(0(10). The trial court originally denied defendants’ motion for summary disposition pursuant to MCL 600.2955a because it concluded that there was a question of material fact regarding whether plaintiffs intoxication was 50 percent or more the cause of his injury. The trial court’s granting of defendants’ motion to dismiss in light of the parties’ stipulation that plaintiffs intoxication was 50 percent or more the cause of the snowmobile accident that resulted in the fractures to plaintiffs right tibia and fibula was tantamount to a ruling that there was no genuine issue of material fact regarding whether plaintiffs intoxication was 50 percent or more the cause of his injuries.
Plaintiff argues on appeal that MCL 600.2955a does not apply to medical malpractice actions. We decline to address this issue because plaintiff did not raise the issue below and the trial court did not address it; therefore, it is unpreserved. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). For purposes of this case, we presume, without deciding, that MCL 600.2955a applies to medical malpractice actions.
We recognize that the proper standard for proximate causation in a negligence action is that the negligence must be “a proximate cause” not “the proximate cause.” Kirby v Larson, 400 Mich 585, 605-606; 256 NW2d 400 (1977). However, we are analyzing causation in the context of the language used in the statute providing an absolute defense for impairment, and the language in the statute requires that the impairment be “the” one “cause of the accident or event that resulted in the ... injury.” MCL 600.2955a(l).
The court should decide proximate causation as a matter of law only if reasonable minds could not differ regarding the proximate cause of the plaintiffs injury. Nichols v Dobler, 253 Mich App 530, 532; 655 NW2d 787 (2002).
Plaintiff asserts that this Court’s decision in Harbour was wrongly-decided and requests this Court to convene a conflict panel pursuant to MCR 7.215(J)(3). We decline to do so. | [
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Saad, J.
Respondent, Dalton Township, appeals an order of the Michigan Tax Tribunal that vacated a special assessment respondent had imposed on property owned by petitioner, Michigan’s Adventure, Inc. Respondent also appeals the tribunal’s order that denied its motion for summary disposition. For the reasons set forth in this opinion, we affirm.
I. MOTION FOR SUMMARY DISPOSITION
Respondent argues that the tribunal should have granted it summary disposition under MCR 2.116(C)(4). Respondent maintains that petitioner failed to file a written protest of the special assessment as required by MCL 123.754 and failed to file a timely appeal to the tribunal. We review de novo the Tax Tribunal’s decision regarding a motion for summary disposition. Signature Villas, LLC v Ann Arbor, 269 Mich App 694, 698; 714 NW2d 392 (2006).
A. WRITTEN PROTEST
In this case, three townships entered into an agreement with Muskegon County to facilitate various sewer projects. See MCL 123.731 et seq. In such an undertaking, a municipality may raise funds through any of the following methods: imposing service charges, imposing special assessments, exacting charges, setting aside state funds, or setting aside other available money. MCL 123.742(2). “The governing body shall cause a special assessment roll to be prepared and the proceedings of the special assessment roll and the making and collection of the special assessments shall be in accordance with the provisions of the statute or charter governing special assessments in the municipality.. . .” MCL 123.743(3). Pursuant to MCL 123.731(k), the “governing body” of a township is “the township board[.]” With respect to special assessments under MCL 123.743(2), our Supreme Court has stated that one hearing is required. Gaut v City of Southfield, 388 Mich 189, 200; 200 NW2d 76 (1972).
As noted, respondent complains that petitioner failed to file a written objection to the special assessment under MCL 123.754. Respondent is mistaken because the procedures under MCL 123.751 et seq. are applicable only if the board of public works imposes an assessment under MCL 123.743(1). That was not the case here because respondent imposed a special assessment under MCL 123.743(2) and (3), which provide, in part:
(2) If a municipality other than a county operating under this act elects to raise moneys to pay all or any portion of its share of the cost of a project by assessing the cost upon benefited lands, its governing body shall do so by resolution and fix the district for assessment.
(3) The governing body shall cause a special assessment roll to be prepared and the proceedings of the special assessment roll and the making and collection of the special assessments shall be in accordance with the provisions of the statute or charter governing special assessments in the municipality....
Under MCL 123.743(4), any person assessed has the right to raise an objection to the special assessment district. Unlike MCL 123.754, MCL 123.743(4) does not state that the person objecting must submit a written objection in writing or file an appeal before the tribunal within 30 days. We construe the Legislature’s omissions as intentional. GMAC LLC v Dep’t of Treasury, 286 Mich App 365, 372; 781 NW2d 310 (2009). MCL 123.754 is not applicable, and therefore petitioner was obliged only to protest at the hearing held for the purpose of confirming the special assessment roll. MCL 205.735(2) (“For a special assessment dispute, the special assessment must be protested at the hearing held for the purpose of confirming the special assessment roll before the tribunal acquires jurisdiction of the dispute.”). Respondent set a meeting for May 30, 2006, to provide a forum for residents, property owners, and interested persons to discuss the improvement, the special assessment district, and the special assessment roll. The record demonstrates that petitioner’s representative attended the meeting on May 30, 2006, and, according to both the meeting minutes and the representative’s affidavit, petitioner’s representative objected to the special assessment district and the special assessment. Because petitioner raised an objection to the special assessment district and its inclusion on the special assessment roll in order to invoke the tribunal’s jurisdiction in this matter, respondent was not entitled to summary disposition as a matter of law. MCL 123.743(4); MCL 205.735(2).
B. TIMING OF PETITIONER’S APPEAL TO THE TRIBUNAL
With respect to respondent’s claim that petitioner’s appeal to the tribunal was untimely, we hold that respondent’s claim lacks merit. MCL 123.743(4) does not contain a deadline for filing an appeal before the tribunal. The filing deadline in MCL 123.754 is inapplicable because, as discussed, there was no hearing before the board of public works. Under MCL 205.735(3), a party must file an appeal with the tribunal within 35 days of the final decision. “Final decision” has not been defined by our courts in cases involving a township board’s final decision on a special assessment. Black’s Law Dictionary (7th ed) equates “final decision” with “final judgment,” which has the following relevant definition: “A court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment.” Additionally, under the Administrative Procedures Act, a decision without further proceedings becomes the final decision. MCL 24.281(3). Thus, the final decision on the assessment is the date that triggers the timing for filing an appeal.
The record reflects that the Dalton Township board did not render a final decision at the May 30, 2006, meeting on the special assessment. Rather, the record shows that as of May 30, respondent’s board continued to consider corrections to the special assessment roll. While respondent’s board ordered and directed its treasurer to collect the special assessments as identified on the special assessment roll, respondent’s supervisor later informed certain business owners that respondent’s board would be reconfirming the special assessment roll at its next regular meeting. There is little indication of what occurred at the subsequent hearing, other than a discussion of the sewer-line projects. However, respondent’s supervisor subsequently informed business owners, including petitioner, that their assessment amounts had been recalculated and that respondent’s board would be reconfirming the special assessment roll at its next meeting, on July 10, 2006. Later, respondent’s counsel sent an undated letter to business owners, including petitioner, stating that “it was the recommenda tion and final determination not to make any adjustments in the proposed assessments.” Petitioner’s representative claimed that petitioner received this letter on July 26, 2006, and no evidence contradicts this assertion. Thus, it appears from the record that respondent did not confirm the special assessment roll until some time after the July 10, 2006, regular meeting of respondent’s board. Accordingly, respondent did not render a final decision regarding petitioner’s special assessment until some time after the July 10, 2006, regular meeting. Therefore, petitioner’s August 8, 2006, petition was timely filed within the 35-day period provided under MCL 205.735(3). Respondent was not entitled to summary disposition for failure of petitioner to file a timely appeal to the tribunal.
In so ruling, we note that the tribunal improperly held that MCL 123.752 and MCL 123.754 applied here. The tribunal, nonetheless, denied respondent’s motion for summary disposition. Because the tribunal reached the right result, we will not disturb the ruling. See Gleason v Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003).
II. THE TRIBUNAL’S DECISION TO VACATE THE SPECIAL ASSESSMENT
Respondent claims that the tribunal’s ruling that vacated the special assessment was not supported by competent, material, and substantial evidence. Absent fraud, we review a decision by the tribunal to determine whether it erred in applying the law or adopted a wrong legal principle. Ford Motor Co v City of Woodhaven, 475 Mich 425, 438; 716 NW2d 247 (2006). “All factual findings are final if supported by competent, material, and substantial evidence.” Wayne Co v State Tax Comm, 261 Mich App 174, 186; 682 NW2d 100 (2004).
“[S]pecial assessments are presumed to be valid.” Kadzban v City of Grandville, 442 Mich 495, 505; 502 NW2d 299 (1993). Accordingly, a municipality’s decision regarding a special assessment will be upheld unless “there is a substantial or unreasonable disproportionality between the amount assessed and the value which accrues to the land as a result of the improvements.” Dixon Rd Group v City of Novi, 426 Mich 390, 403; 395 NW2d 211 (1986). A special assessment will be deemed valid if it meets two requirements: (1) the improvement subject to the special assessment must confer a benefit on the assessed property and not just the community as a whole and (2) the amount of the special assessment must be reasonably proportionate to the benefit derived from the improvement. Kadzban, 442 Mich at 500-502. A key question is whether the market value of the property was increased as a result of the improvement. Id. at 501.
Common sense dictates that in order to determine whether the market value of an assessed property has been increased as a result of an improvement, the relevant comparison is not between the market value of the assessed property after the improvement and the market value of the assessed property before the improvement, but rather it is between the market value of the assessed property with the improvement and the market value of the assessed property without the improvement. [Ahearn v Bloomfield Charter Twp, 235 Mich App 486, 496; 597 NW2d 858 (1999).]
The testimony and valuation report of petitioner’s expert witness constituted competent, material and substantial evidence on which the tribunal properly based its decision. Petitioner’s expert opined that the installation of a sewer line in a rural setting would not increase a property’s value, and respondent’s expert did not refute the findings or conclusions of petitioner’s expert. Further, the sewer line would not benefit petitioner’s property because the property does not require a sewer line — petitioner disposes of its sewage by means of operational sewage lagoons. Moreover, connecting to the sewer line would constitute a substantial expense to petitioner, while its continued maintenance of the sewage lagoons is relatively simple, and petitioner’s costs associated with operating the sewage lagoons appear to be relatively modest. Evidence also showed that petitioner’s property would not benefit from the sewer line in the future. Development of the property is not necessarily limited because of petitioner’s use of sewage lagoons, but is constricted as a result of the Department of Environmental Quality’s wetlands protections and because the soil on the property is not well suited for development. And although the sewer line may somehow benefit the property in the future, that is not a valid basis for finding a benefit to the property justifying an assessment imposed by the township on the property owner at this time. Oneida Twp v Eaton Co Drain Comm’r, 198 Mich App 523, 528; 499 NW2d 390 (1993).
Importantly, to protect private property rights, Michigan law also requires that the total amount of the assessment must be no greater than what was reasonably necessary to cover the cost of the work. Id. at 528 n 5. The special assessment at issue here fails to meet that requirment because it was undisputed that the total cost of the sewer line in front of petitioner’s property would be $60,000 to $80,000, whereas petitioner’s special assessment was $600,000.
We hold that a reasonable person would accept the foregoing record evidence as sufficient to support the tribunal’s ruling. Ultimately, the tribunal’s key finding— that the property’s value was not enhanced by the sewer-line improvement — was supported by competent, material, and substantial evidence. The sewer line at issue conferred little or no benefit on petitioner, resulted in no increase in the value of the land assessed, and consequently furnished no basis for this special assessment. See Kadzban, 442 Mich at 500-502.
Affirmed.
Petitioner incorrectly claims that this issue was not preserved. This issue was preserved because it was raised before and addressed and decided by the tribunal. Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). Petitioner also incorrectly asserts that respondent’s appeal is moot on the ground that respondent satisfied the judgment ordered by the tribunal. However, because neither the tribunal nor the Court of Appeals granted a stay, respondent was obligated to comply with the tribunal’s judgment. MCR 7.209(A)(1). The fact of compliance does not render moot an appeal of the substantive issue.
A sewage lagoon, also called a wastewater stabilization lagoon, is “a type of treatment system constructed of ponds or basins designed to receive, hold, and treat sanitary wastewater for a predetermined amount of time through a combination of physical, biological, and chemical processes.” MCL 324.3120(ll)(o).
Respondent also claims that the tribunal failed to set forth “a viable rendition of factual findings and conclusions of law” necessary for this Court to engage in appellate review. Respondent failed to include this argument in its statement of questions presented and, therefore, this argument was not properly presented for appellate consideration. MCR 7.212(C)(5). Nonetheless, the record reflects that the tribunal complied with the requirements of MCL 205.751(1) and MCL 24.285, though it did not separately identify the “findings of fact” and “conclusions of law.” The tribunal provided a concise statement of facts and conclusions of law on the record, based its decision on the evidence, and correctly applied the law. | [
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Donofrio, J.
In this medical-malpractice action, plaintiff appeals as of right an order granting defendants summary disposition pursuant to MCR 2.116(C)(7) on the bases that plaintiff failed to file a notice of intent (NOI) in accordance with MCL 600.2912b and the period of limitations had expired. The issue on appeal involves the timing of plaintiffs notices of intent and the filing of plaintiffs complaint. Because perfect notice is not required, any subsequent amended NOI filings can be aggregated with the original NOI, and plaintiff gave written notice not less than 182 days before she commenced the action, we vacate the trial court’s order granting defendants’ motions for summary disposition and remand for further proceedings.
i
The pertinent facts relevant to this appeal are not in dispute. Plaintiffs complaint alleges that she went to a hospital of defendant Mercy Memorial Hospital System (Mercy Hospital) because of problems with an arteriovenous fistula. Defendant Dr. Manoo Boonsiri performed surgery on February 24, 2006. While plaintiff was at Mercy Hospital, she suffered severe ischemic changes to her left hand and arm that went untreated until she was transferred to another hospital. She underwent emergency surgery, which was unsuccessful because of the delay, and now has permanent injury to her left upper extremity. The only issue on appeal involves the timing of plaintiffs notices of intent and the filing of plaintiffs complaint. The relevant dates are as follows:
February 24 to 27, 2006 = Dates of alleged malpractice
August 9, 2007 = NOI sent
February 21, 2008 = First amended NOI sent
June 23, 2008 = Complaint filed
The timing of these actions implicates plaintiffs ability to comply with both the two-year statutory limitations period and the notice waiting period. Plaintiff filed her complaint more than two years after the alleged malpractice. Therefore, for the action to be considered timely, plaintiff must be able to obtain the benefit of the tolling of the limitations period afforded by the filing of the amended NOI. With respect to the amended NOI, however, the complaint was arguably filed prematurely because the 182-day notice waiting period had not expired. Thus, for purposes of complying with the required waiting period, plaintiff relies on the original NOI. In response, defendants argue that because plaintiff did not wait the requisite period after filing the amended NOI, she is not entitled to the tolling that would otherwise result from an amended NOI.
In the trial court, defendants moved for summary disposition pursuant to MCR 2.116(C)(7), asserting that plaintiffs complaint was filed only 123 days after she sent the amended NOI. MCL 600.2912b(l) provides that a person shall not commence an action alleging medical malpractice unless the person has given written notice “not less than 182 days before the action is commenced.” Citing Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005), defendants argued that the prematurely filed complaint was insufficient to commence a cause of action. Defendants contended that the 182-day tolling of the limitations period that resulted from the filing of the amended NOI ended, at the latest, on August 27, 2008. According to defendants, because plaintiff failed to timely commence an action before the expiration of the limitations period, plaintiffs claims were barred and defendants were entitled to summary disposition pursuant to MCR 2.116(C)(7).
In response, plaintiff contended that she complied with MCL 600.2912b(l) because she filed the complaint 319 days after she sent the original NOI, far exceeding the 182-day requirement. She contended that the amended NOI tolled the limitations period and that the complaint was filed before the limitations period expired. The Boonsiri defendants countered that although plaintiff had not added a new defendant in the amended NOI, she had added new allegations and “when you add new allegations we’re entitled to another 182 days to investigate those allegations.” They maintained that although Mayberry v Gen Orthopedics, PC, 474 Mich 1; 704 NW2d 69 (2005), did not address the situation, the case illustrated that when a second NOI is filed, a new waiting period is applied.
After entertaining oral argument on the motions, the trial court took the matter under advisement and issued a written opinion that incorporated a separate memorandum of law. The trial court stated that Mayberry, 474 Mich at 9-10, indicated that tolling from a second NOI only applied if the notice otherwise complied with the requirements of MCL 600.2912b. The trial court concluded that there was “no legal basis for Plaintiff’s belief that when filing a second NOI the statutory requirements do not have to be followed.” The trial court then compared the original and the amended NOI and noted plaintiffs contention that they were essentially the same:
Whether or not this is true, unfortunately, the first NOI had already expired, and under the application of the Mayberry case, the second NOI could not be used to give the Plaintiff the ability to tack an additional or successive 182 days so as to ‘[enjoy] the benefit of multiple tolling periods’. Mayberry, supra at 6, 7 and 10; MCL 600.2912b(6).
Accordingly, the trial court granted defendants’ motions for summary disposition pursuant to MCR 2.116(C)(7). Plaintiff now appeals as of right.
II
This Court reviews de novo a trial court’s decision on a motion for summary disposition under MCR 2.116(C)(7) (claim is barred by statute of limitations). DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46-47; 631 NW2d 59 (2001). When reviewing a motion for summary disposition under MCR 2.116(C)(7), the trial court must accept the nonmoving party’s well-pleaded allegations as true and construe the allegations in the nonmovant’s favor to determine whether any factual development could provide a basis for recovery. Amburgey v Sauder, 238 Mich App 228, 231; 605 NW2d 84 (1999). Further, we review de novo a question of statutory interpretation. Bush v Shabahang, 484 Mich 156, 164; 772 NW2d 272 (2009).
hi
On appeal, plaintiff argues that the trial court erred by concluding that defendants were entitled to summary disposition on the ground that plaintiff failed to comply with the mandatory waiting period provided in MCL 600.2912b. Plaintiff contends that her complaint was prematurely filed if the waiting period is measured from the time that the amended NOI was filed, but not if the period is measured from the mailing of the original NOI. Plaintiff further maintains that MCL 600.2912b(l) requires a plaintiff to give written notice not less than 182 days before the action is commenced, and because she mailed the first NOI 319 days before she filed the complaint, she fully complied with MCL 600.2912b(l).
A medical-malpractice action that is not commenced within the time prescribed by MCL 600.5838a is barred. MCL 600.5838a(2). In the present case, there is no dispute that the two-year period in MCL 600.5805(6) is applicable:
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued... the action is commenced within the periods of time prescribed by this section.
(6)... [T]he period of limitations is 2 years for an action charging malpractice. [MCL 600.5805(1) and (6).]
Because plaintiff did not file a complaint within two years after the claim accrued she relies on the tolling of the statute of limitations provided in MCL 600.5856(c). MCL 600.5856(c) states as follows:
The statutes of limitations or repose are tolled in any of the following circumstances:
(c) 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.
Before it was amended by 2004 PA 87, effective April 22, 2004, MCL 600.5856 provided, in pertinent part:
The statutes of limitations or repose are tolled:
(d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b.
The referenced section, MCL 600.2912b, governs the written notice of intent to file a claim. The statute sets forth requirements with respect to the timing of the notice and its content. MCL 600.2912b(l) states:
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.
Although the language of the preamendment version of MCL 600.5856(d) is very similar to the current version of MCL 600.5856(c), in Bush, 484 Mich at 169, our Supreme Court explained that the change clarified the focus of the operative language: “Thus, pursuant to the clear language of § 2912b and the new § 5856(c), if a plaintiff complies with the applicable notice period before commencing a medical malpractice action, the statute of limitations is tolled.”
The effect of a potential plaintiffs failure to comply with the applicable notice period was addressed in Burton, 471 Mich 745. The Burton Court compared the prohibition in MCL 600.2912b(l) (“a person shall not commence an action . . . unless .. .”) to the directive in MCL 600.2912d(l) that requires an affidavit of merit to be filed with a complaint. According to the Court, just as a complaint without an affidavit of merit is insufficient to commence a suit, Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000), the filing of a complaint before the expiration of the notice period is not effective to commence an action. Burton, 471 Mich at 753-754. “In each instance, the failure to comply with the statutory requirement renders the complaint insufficient to commence the action.” Id. at 754. We note that in Burton, the plaintiff only provided a total of 115 days of notice before filing his complaint. Id. at 748.
In Ellout v Detroit Med Ctr, 285 Mich App 695, 698; 777 NW2d 199 (2009), this Court stated that “[t]he law is abundantly clear that where a plaintiff has failed to comply with [MCL 600.2912b] by prematurely filing suit, the appropriate remedy is dismissal without prejudice.” When a case is dismissed for noncompliance with the notice provisions of MCL 600.2912b, the plaintiff must still comply with the applicable statute of limitations. Burton, 471 Mich at 753.
Caselaw interpreting former MCL 600.5856(d) indicated that the tolling from the filing of an NOI applied only when the limitations period would otherwise expire during the notice period. In Omelenchuk, 461 Mich at 574, our Supreme Court concluded that the phrase “[i]f, during the applicable notice period under [MCL 600.2912b], a claim would be barred by the statute of limitations or repose” in former MCL 600.5856(d) indicated that former MCL 600.5856(d) was not applicable if the interval during which a potential plaintiff was not allowed to sue ended before the limitations period expired. The current version of MCL 600.5856(c) states, in part, that the statutes of limitations or repose are tolled “[a]t 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 . . ..” The current version essentially reordered the pertinent phrases from the former version. Therefore, we conclude that this particular holding in Omelenchuk is still valid.
MCL 600.2912b(6) addresses subsequent notices and provides:
After the initial notice is given to a health professional or health facility under this section, the tacking or addition of successive 182-day periods is not allowed, irrespective of how many additional notices are subsequently filed for that claim and irrespective of the number of health professionals or health facilities notified.
However, as long as an initial notice did not toll the limitations period, the tolling triggered by a second notice does not violate MCL 600.2912b(6). In Mayberry, 474 Mich at 3, the Court stated: “We conclude that a second notice of intent to sue, sent with fewer than 182 days remaining in the limitations period, can initiate tolling under § 5856(d) as long as the first notice of intent to sue did not initiate such tolling.”
Here, the parties do not dispute that the first NOI did not trigger tolling under MCL 600.5856(c). With respect to the original notice, the interval during which plaintiff was not allowed to sue ended on February 5, 2008. The claim would not have been barred by the statute of limitations until February 24 to 27, 2008. Therefore, MCL 600.5856(c) was not applicable with respect to the original notice. Although plaintiffs first notice of intent did not trigger tolling, the filing of the second notice did initiate tolling. Mayberry, 474 Mich at 3.
At this point, a flaw in the trial court’s analysis is apparent. The trial court stated: “[U]nder the application of the Mayberry case, the second NOI could not be used to give the Plaintiff the ability to tack an additional or successive 182 days so as to ‘[enjoy] the benefit of multiple tolling periods’. Mayberry, supra at 6, 7 and 10; MCL 600.2912b(6).” This case, like Mayberry, does not implicate the tacking of successive 182-day periods because the original NOI did not toll the limitations period. Defendants did not contend that tolling from the second NOI would violate the prohibition on tacking. On appeal, Mercy Hospital acknowledges that the amended NOI tolled the limitations period until August 21, 2008. The Boonsiri defendants acknowledge that the first NOI did not trigger tolling under MCL 600.5856(c). Thus, it appears that the trial court may have misunderstood their argument as well as the holding of Mayberry.
Defendants also argue that plaintiff’s complaint was filed prematurely, i.e., in violation of MCL 600.2912b, and therefore, according to Burton, 471 Mich 745, the complaint was ineffective to commence an action, and the period of limitations, as extended by the tolling from the amended notice, expired no later than August 27, 2008. Plaintiff asserts that she complied with the “literal requirements of § 2912b(l)” because by filing the original NOI, she gave defendants “written notice under this section not less than 182 days before the action [was] commenced.” Plaintiff claims that this approach is consistent with the purpose of the mandatory waiting period. Plaintiff contends that defendants had 319 days after the original notice was sent, much more than the minimum amount of time provided by the statute, to resolve the case.
Defendant Mercy Hospital responds specifically that “the difficulty with plaintiffs argument is that plaintiff relied upon the amended notice of intent to toll the limitations period and render her complaint timely. Plaintiff should not be allowed the benefit of tolling by the amended notice of intent, while disregarding the requisite waiting period applicable to the latter notice of intent.” The Boonsiri defendants similarly argue: “Plaintiff offers no authority for her assertion that she can have the benefit of NOI tolling under MCL 600.5856(c) and Mayberry, without having to undertake the burden of waiting 182 (or at least 154) days to file her complaint.”
Absent some basis in the statutory language, defendants’ contention that the “benefit” of tolling should only be available in conjunction with the “burden” of the waiting period is essentially an attempt to invoke a concept of fairness as a basis for dismissal. But, to the extent that fairness is a relevant consideration, it clearly favors plaintiffs position. “The stated purpose of § 2912b 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 ....’” Bush, 484 Mich at 174, quoting Senate Legislative Analysis, SB 270, August 11, 1993; House Legislative Analysis, HB 4403-4406, March 22, 1993. Furthermore, “[t]he Legislature surely did not intend its tolling provision as a trap for the unwary . . . .” Omelenchuk, 461 Mich at 576 n 19. Plaintiff sent defendants notice of her intent to file a claim on August 9, 2007. Thus, she could have filed the complaint as early as February 5, 2008. She filed it on June 23, 2008. The timing of the original NOI and the complaint afforded the parties ample opportunity to examine and settle the claim without formal litigation.
Mercy Hospital argues that dismissal of the entire action is appropriate because it only had 123 days of notice with respect to the additional allegations in the amended NOI and the complaint. Mercy Hospital does not tie this argument to pertinent statutes. The original NOI and the amended NOI include eight identical sub-paragraphs identifying the standard of care. These include giving “proper post operative orders... to the nursing staff and resident physicians regarding contacting the attending physician surgeon immediately upon observing signs and symptoms of ischemic changes____” The amended NOI added the following:
The standard of care for a surgeon faced with a patient with a failed AV fístula after recent surgery is to do the following:
i. That contact must be made via post operative rounds and direct communication with the nursing staff and resident physicians regarding the patient’s post operative condition every six to eight hours until the patient is ready for discharge to ensure that proper blood flow has returned to the affected extremity and to ensure that if blood flow is compromised that the attending surgeon timely diagnose and treat the condition prior to permanent damage occurring.
The amended NOI added that Dr. Boonsiri breached the standard of care by
failing to either personally see the claimant every six to eight hours post operatively and/or failing to keep in contact with the nursing staff and the resident physician every six to eight hours to assess the condition of claimant’s blood flow to her extremity following her surgery.
To the extent that we may analyze Mercy Hospital’s argument in terms of the applicable statutes, the argument is essentially that plaintiffs original NOI was inadequate to satisfy the requirement in MCL 600.2912b(l) that she provide “written notice under this section” because it did not contain all the information that was later included in the complaint. The absence of these allegations in the original NOI could be viewed as a deficiency in its content. But deficiencies in the content of an NOI do not preclude tolling under MCL 600.5856(c). Bush, 484 Mich at 161, 170 n 26. In other words, perfect notice is not required. Therefore, Mercy Hospital’s argument that the purported deficiency in notice with respect to the additional allegations warrants dismissal is without merit.
The Boonsiri defendants attempt to support their position with the language of MCL 600.5856(c), which they claim indicates that tolling only exists if a waiting period also exists. The Boonsiri defendants specifically argue in their brief on appeal:
The language of MCL 600.5856(c) expressly ties the availability of tolling to the existence of the waiting period:
“The statutes of limitations or repose are tolled in any of the following circumstances:
“(c) 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. [MCL 600.5856(c) (emphasis added).]”
The import of this language is clear: tolling only exists because, and if, a waiting period exists. Hoffman argues, essentially, that there was no waiting period triggered by the service of her amended NOI. If this is true, however, it would mean that no tolling period was triggered, either, since there is no “applicable notice period” to activate tolling under MCL 600.5856(c).
Thus, the Boonsiri defendants’ view links the availability of tolling to the waiting period applicable in the specific case. According to their view, where there is no applicable waiting period for the second notice, there can be no tolling.
However, the Boonsiri defendants’ view is incompatible with Omelenchuk, 461 Mich at 574-575, which addressed the meaning of “applicable period” in former MCL 600.5856(d). The Omelenchuk Court held that the reference to “ ‘a number of days equal to the number of days in the applicable notice period’ ” was 182 days, “a set period defined in the statute . . . .” Omelenchuk, 461 Mich at 574-575. The Omelenchuk Court considered and rejected an interpretation that the “ ‘applicable notice period’ ” is equal to the “ ‘no-suit’ period,” id. at 575, which the Boonsiri defendants refer to as “the waiting period.”
Both this Court and our Supreme Court have reaffirmed this aspect of Omelenchuk in decisions addressing the current version of MCL 600.5856. In Bush, 484 Mich at 181 n 46, the Court stated, “We note that our holding today does not conflict with Omelenchuk v City of Warren, 461 Mich 567, 575; 609 NW2d 177 (2000) (holding that the statute of limitations remains tolled for the full 182 days even if the plaintiff takes advantage of the shortened waiting period).” In Vanslembrouck v Halperin, 277 Mich App 558, 572; 747 NW2d 311 (2008), this Court stated:
According to defendants, the Legislature’s act of amending and recodifying the former MCL 600.5856(d) at MCL 600.5856(c) was “to counter the Omelenchuk [C]ourt’s monolithic application of 182 days of notice of intent tolling.” However, like former MCL 600.5856(d), MCL 600.5856(c) links the tolling period to the applicable notice period. Omelenchuk, supra, 461 Mich at 575. MCL 600.5856(c) states: “[T]he statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period....” Thus, like former MCL 600.5856(d), MCL 600.5856(c) does not link the tolling period to the period in which the claimant may not file suit. Id.
In light of the interpretation of “applicable notice period” in Omelenchuk, 461 Mich at 575, as reaffirmed in recent decisions, we reject the Boonsiri defendants’ contention that the availability of tolling is linked to the “waiting” or “no-suit” period.
Defendants contend that Mayberry, 474 Mich 1, illustrates that after filing an amended NOI, plaintiff was required to wait before filing her complaint. In Mayberry, 474 Mich at 4, the pertinent events were as follows:
November 22, 1999 = Date of alleged malpractice
June 21, 2000 = NOI sent to Dr. William Kohen
October 12, 2001 = Second NOI sent to Dr. Kohen (with additional allegations) and to his professional corporation
March 19, 2002 = Complaint filed
As in the present case, the first NOI did not trigger tolling under MCL 600.5856(c) because it was filed more than 182 days before the limitations period would have expired. The principal holding of Mayberry was that because the original NOI did not trigger tolling, the second NOI was eligible to initiate tolling. Mayberry, 474 Mich at 2-3. The decision did not address the timing of the filing of the complaint, except in a footnote:
Plaintiffs asserted in the trial court that they were obligated to wait only 154 days before bringing suit, as opposed to 182 days, because defendants failed to respond to the notice of intent to sue. See MCL 600.2912d(8). Defendants have not challenged plaintiffs’ assertion in this Court, and we do not address this issue, which was not raised on appeal. [Id. at 4 n 3.]
Mercy Hospital contends, “It is evident, however, that the Mayberry plaintiffs were cognizant of the fact that they were required to wait either the 154-day or the 182-day waiting period after sending the second notice of intent before filing their complaint.”
Mayberry is not instructive on this point. The Court declined to address the issue. Even if one could assume from the timing of the plaintiffs’ filing of the complaint how the plaintiffs’ counsel interpreted the pertinent statutes, that a particular medical-malpractice litigator was “cognizant” of an interpretation that required a delay in filing the complaint is of negligible persuasive value in determining the correct outcome in this case. Indeed, what the Mayberry plaintiffs thought — if in fact that is what they thought — does not make it so.
Additionally, our resolution does not conflict with Burton. In Burton, the plaintiff only waited 115 days before commencing his lawsuit. Burton did not deal with a situation such as the one in the present case where plaintiff provided the same defendants multiple notices, in essence making the NOI more perfect. Here, by providing an initial NOI that did not implicate tolling together with a second “more perfect” NOI, plaintiff provided 319 days of notice when the two waiting periods are aggregated. Burton is neither applicable nor instructive under these facts.
IV
In sum, we conclude that the pertinent statutes do not indicate that plaintiffs action is barred under the circumstances of this case. In fact, no statute prohibits plaintiffs procedural handling of the litigation and we cannot discern any violation of the policy evinced by the stated statutes. Nothing in the applicable statutes precludes the aggregation of the no-suit/waiting periods involved in providing notice. Therefore, defendants’ contention that the filing of plaintiffs complaint did not commence the action because she did not comply with MCL 600.2912b(l) is rejected. Plaintiff gave written notice not less than 182 days before she commenced the action.
Vacated and remanded. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219. We do not retain jurisdiction.
Defendants’ first motion for summary disposition was filed on behalf of all the defendants. Mercy Hospital filed an amended motion that raised the same arguments. Defendants Manoo Boonsiri, M.D., and Manoo Boonsiri, M.D., BC. (the Boonsiri defendants), filed a separate motion that raised the same arguments.
A claimant may file an action after a lesser time under certain circumstances that are not at issue in this matter.
“Our analysis today explains that the Legislature has made it clear that a defective NOI does not preclude tolling of the statute of limitations for cases brought under [MCL 600.5856(c)].” Bush, 484 Mich at 170 n 26.
While plaintiff has raised alternative arguments in favor of reversal, these arguments do not require our attention in light of our determination of the principal issue. | [
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Per Curiam.
Defendant appeals as of right his jury trial convictions of kidnapping, MCL 750.349, two counts of assault with a dangerous weapon (felonious assault), MCL 750.82, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to concurrent prison terms of 15 to 30 years for kidnapping and 1 to 4 years for felonious assault, and a consecutive 2-year term for felony-firearm. Defendant’s sole challenge on appeal is his sentencing. We affirm defendant’s convictions; however, because the trial court erred when it assessed 50 points for offense variable (OV) 7, we vacate defendant’s sentence for kidnapping and remand for resentencing in accordance with this opinion.
I. FACTS
This case arises from a kidnapping at gunpoint that occurred on June 7, 2008, in Detroit. On the date in question, Sierra Burton and her ex-boyfriend, Jonathan Broadus, were at a house on Audubon in Detroit. Burton testified that at about 6:00 p.m., during a child’s birthday party, defendant, Richard Harden, and Darnell Chapell ran into the house with guns. Defendant and Chapell had handguns, and Harden had a long gun or assault rifle. According to Burton, all three men directed Burton and Broadus to go downstairs at gunpoint. Broadus’s testimony was conflicting with regard to whether defendant was present at this time and, if he was present, whether he had a gun. Harden and Chapell then began asking about the whereabouts of Harden’s distinctive purple Caprice Classic, which had been stolen. It appeared to Burton that Broadus seemed to know about the missing Caprice. Burton testified that at some point she attempted to use a cell phone, but defendant “snatched” it. Burton also stated that when defendant took the phone, defendant’s gun was “just in his hand” and not pointed at her, though she felt scared. Broadus testified that Harden hit him with the assault rifle.
After about two minutes in the basement, the men led Burton and Broadus out of the basement and then out of the house. The men walked Burton and Broadus to Chapell’s apartment in a house at the corner of Audubon and Warren. Inside, the men kept asking where the car was in an “aggressive” manner, and Burton perceived it as a threat. Harden did most of the questioning. After Broadus told the men something about the car, the men escorted them outside into two cars. Defendant, Chapell, and Harden all had their guns at this time. They drove to a house on Lakeview. When they arrived, about five strangers were on the porch. Harden jumped out of the car and asked them about the location of his car. Defendant stayed in the car. Harden then started shooting at a boy on the porch, and the boy ran inside. No one else fired shots or got out of the cars.
Both cars left the house and drove to an abandoned house on Beaconsfield, about three minutes away. Everyone went inside, but then Harden and defendant went to get another car. Burton, Broadus, and Chapell waited in the vacant house for them to return. Chapell still had his gun. After about 30 minutes, defendant and Harden returned. Burton, Broadus, defendant, Chapell, and Harden all piled into a white truck and returned to Chapell’s apartment on Audubon. Harden ran into the apartment, while defendant and Chapell stayed in the truck with Burton and Broadus. While Burton did not see defendant or Chapell with a gun at this time, she did not feel free to leave because Chapell said, “Don’t move.” Harden then came out and told them to come inside. When they went in, Harden again starting asking Broadus about the car. Harden tied Broadus’s and Burton’s hands behind their backs with a telephone cord, shoestrings, and an extension cord. Broadus answered questions about the car, but then a man named “Black” came in and beat Broadus with his fists. Broadus said that he had seen “Monk” driving the car.
Next, defendant, Harden, and Chapell took Burton and Broadus on a ride to another street looking for Harden’s stolen Caprice, a man named Courtney Gillon, known as “Monk,” or Gillon’s house. They did not find Gillon’s house and returned to Chapell’s apartment. While there, Chapell called Broadus’s and Burton’s families and told them to tell their parents that they were all right. Chapell and Broadus did so, speaking to Broadus’s nephew. At this point Burton and Broadus were still tied up and Harden still had a gun. After about an hour or two, Harden and Chapell untied them. Defendant was sitting at a table. Black then walked Burton to Black’s house around the corner on Courville, where they waited for defendant, Harden, and Chapell to bring Broadus.
Defendant, Harden, Chapell, and Broadus went to pick up Michael Webster and his sister, Unique Webster, from a house on Drexel. When they got to Michael Webster’s house, Harden held the gun to Broadus’s back and they walked into the house. One of the other men was also carrying a gun. The assailants forced the Websters and Broadus into a Suburban. Later, they all returned to the house on Courville. Unique Webster was Gillon’s girlfriend, and she said that Gillon lived at a house on Bluehill. Everyone got back into the Suburban and drove to Bluehill.
At the house on Bluehill, Chapell and Harden walked Unique Webster to the side door, where she knocked. Defendant stayed in the car with Burton, Broadus, and Michael Webster. Gillon answered the door. Harden then “[g]rabbed him by his arms” and “snatched him out [of] the house.” Chapell and Harden were holding handguns and fired shots into the ground. They pushed Gillon into the truck with defendant, Burton, and Broadus.
Next, they returned to Chapell’s apartment, and someone phoned Black. Black returned, and he, Chapell, and Harden beat Gillon using “[sjhoestrings, telephone cords, extension cords, chairs.” The beating lasted about 30 to 45 minutes. Defendant was in the other room with Burton, Broadus, Michael Webster, and Unique Webster. Defendant did not appear to be armed at this time, but again, neither Burton nor Broadus felt free to leave because Harden and others were still armed. At some point the beating began again in the other room, and they heard Gillon screaming and then gunshots inside the apartment. Shortly thereafter, Black left.
Finally, after 45 minutes to an hour, Burton and Broadus heard the sound of police sirens from the street below. Harden tried to conceal his gun in the ceiling tiles and told the victims to say that they were family members and pretend that they were there willingly. Burton was in the same room as Broadus, Michael Webster, and Gillon. When the police knocked, defendant was in another room or apartment. Harden and Chapell left. Defendant then left with Unique Webster. No one opened the door, and police officers used a battering ram to get inside. Burton and Broadus told the police what happened, explaining that they had been kidnapped by defendant, Harden, and Chapell.
For his participation in the incident, the jury convicted defendant of kidnapping, two counts of felonious assault, and felony-firearm. Defendant now appeals as of right but only challenges his sentencing.
II. STANDARD OF REVIEW
When scoring the sentencing guidelines, “[a] trial court determines the sentencing variables by reference to the record, using the standard [of proof] of preponderance of the evidence.” People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). Interpretation and application of the sentencing guidelines is a question of law, reviewed de novo. People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008).
III. ANALYSIS
Defendant argues that he is entitled to resentencing because the trial court erred when it assessed 50 points for OV 7. MCL 777.37 provides:
(1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) A victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense........................................................50 points
(b) No victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense......................................................................0 points
(2) Count each person who was placed in danger of injury or loss of life as a victim.
(3) As used in this section, “sadism” means conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.
The trial court assessed 50 points for OY 7 because (1) the victims were moved from location to location, (2) a substantial beating was inflicted, designed to increase fear, and (3) one of the victims was beaten by multiple individuals. However, of these three factors, only the first applies to defendant’s role in the criminal enterprise. Defendant maintains that his role was minimal. The record seems to support his contention. While defendant was present and did have a gun at various times throughout the crime, at no time did defendant take part in a beating or fire a weapon. In fact, it appears that the testimony may have been conflicting with regard to whether defendant ever pointed a weapon at one of the victims. Burton testified that defendant, along with Harden and Chapell, ushered her and Broadus down the stairs at gunpoint when they first stormed the house on Audubon. Broadus waivered about whether defendant was present at the house on Audubon and, if defendant was present, whether he was armed. The record shows that defendant did not participate in tying up Burton and Broadus. Harden alone tied them up. Defendant did not strike any blows against Broadus. Black beat up Broadus. Later, when Gillon was kidnapped, defendant waited in the car while Chapell and Harden grabbed Gillon and fired shots into the ground. Then, at Chapell’s apartment, Chapell, Harden, and Black beat up Gillon. Defendant, sitting at a table, did not participate. Importantly, there was no testimony that defendant ever encouraged Chapell, Harden, or Black in any of their behaviors. Thus, under these circumstances, Burton’s testimony that defendant, along with Harden and Chapell, pointed his weapon at her at the first house was not sufficient to demonstrate acts that qualify as “sadism, torture, or excessive brutality” under OV 7.
Cases upholding scores of 50 points for OV 7 are distinguishable because they involve specific acts of sadism, torture, or excessively brutal acts by the defendant. In People v Wilson, 265 Mich App 386, 396-398; 695 NW2d 351 (2005), the defendant was convicted of assault with intent to commit great bodily harm less than murder after inflicting a prolonged and severe beating that left lasting and serious effects. The defendant in that case choked the victim a number of times, cut her, dragged her, and kicked her in the head. After her hospital stay, the victim was in a wheelchair for three weeks and used a cane for another three weeks. In another case in which 50 points were assessed for OV 7, the defendant was convicted of kidnapping, felonious assault, and felony-firearm after he held the victim at gunpoint for nine hours, made her look down the barrel of a gun, repeatedly threatened to kill her and himself, and asked her what her son would feel like when he saw yellow crime tape around his mother’s house. People v Mattoon, 271 Mich App 275, 276; 721 NW2d 269 (2006), and People v Mattoon, unpublished opinion per curiam of the Court of Appeals, issued October 18, 2007 (Docket No. 272549) (after remand). Similarly, in People v Hornsby, 251 Mich App 462, 468-469; 650 NW2d 700 (2002), the defendant pointed a gun at the victim, cocked it, and repeatedly threatened the victim and others in a store. In People v Kegler, 268 Mich App 187, 189-190; 706 NW2d 744 (2005), the defendant removed the victim’s clothes, assisted with carrying him naked outside, and admitted that she wanted to humiliate him by leaving him outside naked. In People v James, 267 Mich App 675, 680; 705 NW2d 724 (2005), the defendant repeatedly stomped on the victim’s face and chest and deprived the victim of oxygen for several minutes, causing him to sustain brain damage and become comatose. And in People v Horn, 279 Mich App 31, 46-48; 755 NW2d 212 (2008), the defendant terrorized and abused his wife with recurring and escalating acts of violence, including threatening to kill her.
Unlike the defendants in those cases, while defendant was present and armed during the commission of the crimes here, he did not himself commit, take part in, or encourage others to commit acts constituting “sadism, torture, or excessive brutality” under OV 7. Moreover, unlike OV 1, OV 2, and OV 3, OV 7 does not state that “[i]n multiple offender cases, if 1 offender is assessed points for [the applicable behavior or result], all offenders shall be assessed the same number of points.” See MCL 777.31(2)(b), MCL 777.32(2), MCL 777.33(2)(a). For OV 7, only the defendant’s actual participation should be scored. In this case, the record reflects that defendant’s actions alone did not qualify as “sadism, torture, or excessive brutality” under OV 7.
And the movement of the victims did not justify a 50-point score for OV 7. Transportation to a place of greater danger is appropriately scored under OV 8, but must be given a score of zero points when, as here, the sentencing offense is kidnapping. MCL 777.38(2)(b). The trial court’s comments included the OV 8 factor in its discussion of OV 7. There was testimony thát defendant held and pointed a gun. However, again, the use of a gun is inherent in the felony-firearm and felonious assault crimes, and defendant, unlike the others, did not fire the gun, threaten to fire it, or hit the victims with it. For a good portion of the time, the victims who testified did not see him holding a gun. For all these reasons, defendant’s own conduct toward the victims did not qualify as “sadism, torture, or excessive brutality” or justify a score of 50 points on OV 7.
Finally, defendant is correct that resentencing is required even though the minimum sentence he received for the kidnapping conviction, 15 years, falls within the recommended minimum sentence range calculated under the guidelines after the correction. Sentencing must be based on accurately scored guidelines. MCL 769.34(10). Without the 50-point score for OV 7, defendant’s offense variable level and prior record variable level place him in the D-III cell of the sentencing grid for offense class A, with a recommended minimum sentence range of 9 to 15 years, rather than in the D-V cell, with a recommended minimum sentence range of 11.25 to 18.75 years. MCL 777.62. When the guidelines are correctly scored, a minimum sentence of 15 years is at the top rather than the middle of the guidelines range. The sentence given by the trial court showed an intent to sentence defendant in the middle of the minimum sentence range. In People v Francisco, 474 Mich 82, 92; 711 NW2d 44 (2006), the Court mandated resentencing in a similar situation, since the sentence imposed “stands differently in relationship to the correct guidelines range than may have been the trial court’s intention.” Francisco also stated that “when a trial court sentences a defendant in reliance upon an inaccurate guidelines range, it does so in reliance upon inaccurate information.” Id. at 89 n 7. Defendant is entitled to resentencing.
IV CONCLUSION
Because the trial court erred when it assessed 50 points for offense variable 7, we vacate defendant’s sentence for kidnapping and remand for resentencing in accordance with this opinion.
Affirmed in part, vacated in part, and remanded for resentencing in accordance with this opinion. We do not retain jurisdiction. | [
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Murphy, C.J.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendant. This case involves a claim of tortious interference with a business expectancy arising out of, allegedly, defendant’s improper conduct, communications, and recommendations that resulted in a school district’s decision not to award plaintiff a construction project despite plaintiffs submission of the lowest bid. We hold that genuine issues of material fact existed with respect to the elements of plaintiffs cause of action. More specifically, we reject the trial court’s determination that, as a matter of law, plaintiff lacked a valid business expectancy. Plaintiff, as the lowest bidder, submitted evidence sufficient to create a factual dispute with respect to whether it was a “responsible” contractor to the extent that the trier of fact could have concluded that there existed a reasonable probability or likelihood that plaintiff would have been awarded the project absent the alleged tortious interference. Therefore, there was a genuine issue of material fact with respect to whether plaintiff had a valid business expectancy. We emphasize that the submission of the lowest bid, in and of itself, was inadequate to sustain plaintiffs suit. We reject any rule per se that would allow litigation to proceed simply on the basis of proof of the lowest bid, except, of course, if no additional criteria needed to be satisfied, which is unlikely. Absent sufficient additional evidence on relevant award criteria, there would be no valid business expectancy. We further reject the trial court’s determination that, as a matter of law, plaintiff failed to show that defendant did anything improper. Plaintiff submitted evidence sufficient to create a factual dispute with respect to whether defendant’s conduct was intentional and improper, motivated by malice and not legitimate business reasons. On this issue, we emphasize that the exercise of professional business judgment in making recommendations relative to governmental con tracts and projects must be afforded some level of protection and deference. But we will not preclude litigation when there exists evidence suggesting that the ostensible exercise of professional business judgment is in reality a disguised or veiled attempt to intentionally and improperly interfere with the contractual or expectant business relationships of others. Here, issues of fact were established and, accordingly, we reverse and remand.
I. BACKGROUND
The Davison Community Schools (DCS) opened bidding on a construction project that entailed work at two school sites. Pursuant to a contract, defendant, an architectural firm, assisted the DCS with the bid-selection process by reviewing and evaluating bid applications, investigating competing contractors and their references, expressing opinions and views on contractor competence and workmanship, and making recommendations regarding which contractor should be awarded the project. Plaintiffs bid was the lowest submitted to the DCS by any contractor. After entertaining all the submitted bids, the DCS, as recommended by defendant, elected to award the contract on the construction project to the contractor that had submitted the second lowest bid, not plaintiff.
Plaintiff filed suit against defendant, alleging a single count of, as framed by plaintiff, tortious interference with prospective economic relations. Plaintiff asserted that there existed an expectancy of a valid business relationship developing between it and the DCS, that defendant was aware of the expectancy, that defendant intentionally interfered with the expectant relationship by wrongfully claiming that plaintiff was unqualified to perform the work on the project, that defendant’s wrongful interference terminated the expectancy, and that plaintiff suffered damages as a result of the interference, including lost profits. In our analysis, we shall explore in detail the nature of the documentary evidence and how it relates to the issues presented.
The trial court granted defendant’s motion for summary disposition under MCR 2.116(C)(10), ruling that the evidence failed to show that plaintiff had a reasonable or valid expectation of entering into a business relationship with the DCS and that the evidence fell short of showing that defendant did anything improper.
II. ANALYSIS
A. STANDARD OF REVIEW AND GENERAL SUMMARY-DISPOSITION PRINCIPLES
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). MCR 2.116(C)(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(C)(10) tests the factual support for a party’s cause of action. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A trial court may grant a motion for summary disposition under MCR 2.116(C)(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. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). The trial court’s task in reviewing the motion entails consideration of the record evidence and all reasonable infer enees arising from that evidence. Skinner, 445 Mich at 161. “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.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A court may only consider substantively admissible evidence actually proffered relative to a motion for summary disposition under MCR 2.116(C)(10). Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). The trial court is not permitted to assess credibility, to weigh the evidence, or to determine facts, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(0(10). Skinner, 445 Mich at 161; Hines v Volkswagen of America, Inc, 265 Mich App 432, 437; 695 NW2d 84 (2005).
B. VALID BUSINESS EXPECTANCY
On appeal, plaintiff first argues that the trial court erred by granting the motion for summary disposition when there was evidence sufficient to create a factual issue regarding whether plaintiff, as a qualified and responsible bidder that submitted the lowest bid, had a valid business expectancy. We agree.
1. THE CASELAW
With respect to a claim of tortious interference with a business expectancy, a plaintiff must prove (1) the existence of a valid business expectancy, (2) knowledge of the expectancy on the part of the defendant, (3) an intentional interference by the defendant inducing or causing a termination of the expectancy, and (4) resultant damage to the plaintiff. Dalley v Dykema Gossett PLLC, 287 Mich App 296, 323; 788 NW2d 679 (2010); Blazer Foods, Inc v Restaurant Props, Inc, 259 Mich App 241, 254; 673 NW2d 805 (2003). A valid business expectancy is one in which there exists a reasonable likelihood or probability that the expectancy will come to fruition; mere wishful thinking is not sufficient to support a claim. First Pub Corp v Parfet, 246 Mich App 182, 199; 631 NW2d 785 (2001), vacated in part on other grounds 468 Mich 101 (2003); Trepel v Pontiac Osteopathic Hosp, 135 Mich App 361, 377; 354 NW2d 341 (1984).
In Joba Constr Co, Inc v Burns & Roe, Inc, 121 Mich App 615; 329 NW2d 760 (1982), the plaintiff was a corporation that engaged in underground and heavy-duty construction, and the defendant was a firm of consulting engineers that had been retained by the Detroit Public Lighting Commission (PLC) under contract relative to a planned expansion of a utility station. Comparable to defendant’s duties here, the engineering firm had contracted “to prepare construction specifications, evaluate bids made by contractors and make recommendations to the PLC as to which contractor should be awarded contracts.” Id. at 624. The plaintiff submitted the lowest bid, but the engineering firm recommended that the PLC award the construction contract to another contractor “as it felt plaintiff was unqualified to perform the contract.” Id. The PLC followed the defendant’s recommendation, and the plaintiff was denied the contract. On another utility project, a general contractor had been awarded a construction contract by the PLC, and that contractor had designated the plaintiff as a subcontractor. The engineering firm, however, indicated that the plaintiff was an unacceptable subcontractor, and the plaintiff was then removed from the project. The plaintiff sued the defendant for tortious interference with prospective advantageous economic relations, and the jury returned a verdict in favor of the plaintiff in the amount of $272,368. Id. at 624-625.
On appeal, the defendant claimed that the trial court had erred by denying its motion for a directed verdict, arguing “that it was entitled to a directed verdict as plaintiff failed to produce sufficient evidence to raise a question of fact as to a valid expectancy that the contracts would have been awarded to plaintiff absent defendant’s alleged interference.” Id. at 633. The defendant maintained that “the discretionary factors going into the determination of who is the lowest qualified bidder preclude[d] plaintiff from proving it had an expectation of being awarded the contracts.” Id. at 634 (emphasis added). The Joba Constr panel stated that, to support the tortiousinterference claim, the plaintiff had to prove that it was reasonably likely or probable that a specific and reasonable economic advantage or expectancy would indeed develop and occur. Id. at 634-635. The panel stated that the plaintiff was not required to demonstrate a guaranteed relationship, considering that anything defined as prospective in nature would necessarily be uncertain, and stated that while certainties need not be shown, there must he something more than innate optimism or mere hope. Id. at 635. This Court concluded that the plaintiff had submitted “sufficient evidence to create a question of fact as to whether it was the lowest qualified bidder and thus had a legitimate expectancy in obtaining the contracts . ...” Id.
In Trepel, 135 Mich App at 377-381, this Court tackled the issue of whether the trial court had properly granted summary disposition on a counterclaim of tortious interference with a prospective advantage, focusing attention on the lower court’s determination that no valid business expectancy existed. The counterclaim was pursued by one of the defendants, a hospital, against the plaintiff, a radiologist. The hospital had applied for approval of a bond issue from the Michigan State Hospital Finance Authority (the authority), and the authority had granted tentative approval of a proposed sale of municipal bonds. The final step before consummation of the sale was obtaining approval of the sale by the Municipal Finance Commission (MFC), but the scheduled approval was substantially delayed and, as a consequence, the hospital ran out of money and had to obtain alternative financing at a much higher interest rate. The plaintiff had allegedly made good on threats to the hospital to send letters to the MFC in which he claimed that certificates of need filed by the hospital were defective. The alleged intent behind the sending of the letters by the plaintiff was to interfere with the hospital’s application for approval of the bond issue, which approval was ultimately never obtained. Id. at 366-369.
The Trepel panel, examining whether the hospital had a valid business expectancy in obtaining approval of the bond issue from the government, first noted that there was an absence of Michigan caselaw “relating to interference with discretionary governmental action.” Id. at 378 (emphasis added). This Court proceeded to review three federal court decisions, two of which approved of interference suits brought by parties that had submitted the most favorable bids on governmental contracts, Lewis v Bloede, 202 F 7 (CA 4, 1912), and Pedersen v United States, 191 F Supp 95 (D Guam, 1961), and one in which the court rejected a suit arising out of a city council’s decision relative to a request to close and relocate an alley that was delayed because of the need to hear from interested parties, Carr v Brown, 395 A2d 79 (DC App, 1978). Trepel, 135 Mich App at 379-380. The Trepel panel then ruled as follows:
In the instant case, the discretion to be exercised by the MFC appears to be somewhat greater than that attributed to the governmental bodies in Lewis and Pedersen, supra, but significantly less than that in Carr. We perceive that Carr is a gloss on the general rule. It applies to situations where too many factors are in play to be able to reasonably infer that, but for defendant’s allegedly wrongful action, plaintiff likely would have obtained the desired advantage. In this case, the MFC’s grant of approval must be preceded by the determinations required by statute. A trier of fact might be persuaded that defendant hospital could ascertain with reasonable certainty whether the items listed in the statute were satisfied so that MFC approval was a probability. If the question were whether defendant hospital’s application for a loan was denied because of [the plaintiffs] interference, defendant hospital would have made out a cause of action because a trier of fact could assess the causal effect of the [plaintiffs] actions.
However, where the MFC approval is only delayed, as alleged here, the problem becomes more difficult. The MFC is required to make findings of fact before granting approval. Obviously, that task takes a certain amount of time to accomplish. However, the procedure involved is not a notice and comment type hearing, as in Carr, designed to let interested parties express their opposition. Defendant hospital should have the opportunity to prove its allegation that approval was “scheduled” for September 11, 1979.
In Lewis, [202 F at] 20-21, and Carr, [395 A2d at] 84, reference is made to the prior history of the governmental entity in granting approval. Defendant hospital has sought to introduce evidence by way of affidavit of the MFC’s perfect record in approving bond issues already approved by the Michigan State Hospital Finance Authority. We believe such evidence if otherwise admissible could persuade a trier of fact at a contested trial. [Id. at 380-381.]
From Joba Constr, Trepel, and First Pub, and cases relied on therein, we derive the following principles to apply in determining whether there exists a valid business expectancy: (1) the presence of some level of discretion exercisable by a governmental body or decision-maker does not automatically preclude a recognition of a valid business expectancy, (2) if the discretion is expansive and not restricted by limiting criteria and factors to an extent that it makes it impossible to reasonably infer that the claimed expectancy would likely have come to fruition, there is no valid business expectancy, (3) an expectancy must generally be specific and reasonable, (4) it must be shown that there was a reasonable likelihood or probability that the expectant relationship would have developed as desired absent tortious interference with the expectancy, (5) a party need not prove that the expectancy equated to a certainty or guarantee, (6) innate optimism or mere hope is insufficient, and (7) the prior history of the governmental body or decision-maker and governing internal and external rules, policies, and laws constitute factors for a court to consider in determining whether a business expectancy was valid and likely achievable. Of course, when addressing a motion for summary disposition under MCR 2.116(0(10), these principles must be viewed in the context of determining whether a genuine issue of material fact exists on contemplation of the documentary evidence.
2. APPLICATION OF THE LAW TO THE FACTS
We begin by examining the documents governing the DCS and the bid-selection process. DOS’s fiscal management policy (FMP) indicates multiple times that the DCS Board of Education (Board) has and reserves the right to reject any or all bids. In one section of the FMp it provides that the reservation of the right to reject bids includes “the bid of any contractor who is not reasonably determined to be ‘responsible’ in conjunction with this policy.” The FMp however, also provides:
The Board. .. hereby establishes this policy to satisfy its statutory duty to competitively bid contracts for construction of a new school building, or an addition to or repair or renovation of an existing school building of the [DCS], except for repairs in emergency situations. Bids shall be awarded in compliance with applicable bidding obligations imposed by law to the “lowest responsible bidder.” [Emphasis added.]
This language, including use of the word “shall,” indicates that if a bidding contractor submits the lowest bid on a project and is deemed “responsible,” the Board is mandated to award the project to that contractor. In re Kostin Estate, 278 Mich App 47, 57; 748 NW2d 583 (2008) (“ ‘Shall’ is mandatory.”). There appears to be some tension between this provision and the FMP’s language that gives the Board the authority to reject any or all bids, giving rise to the question whether the Board has the discretion to reject a bid from the “lowest responsible bidder.” The term “lowest responsible bidder” is defined in the FMP as being
[t]he Responsible Contractor that has submitted a fully complete and responsive bid that provides the lowest net dollar cost for all labor and materials required for the complete performance of the work of the Construction Project let for bid. Such bid must satisfy the requirements of all applicable local, state, and federal laws, this Policy, any administrative rules associated with this Policy developed by the Superintendent at the Board’s direction, and bid documents used to solicit bids, and any other guidelines and specifications required for the Construction Project. Because a bidder with the net lowest dollar cost bid may not be a Responsible Contractor, the lowest dollar cost bidder may not always receive award of the bid.
This definition refers to the term “Responsible Contractor,” and the FMP also defines that term as being
[a] contractor determined by the Board to be sufficiently qualified to satisfactorily perform the Construction Project, in accordance with all applicable contractual and legal requirements. The Board’s determination shall be based upon: (1) an overall review of the Responsibility Criteria listed below and the contractor’s responses, or failure to respond, to same; (2) the contractor’s compliance with this Policy and all applicable local, state and federal laws; (3) the input of the District’s architect(s) [here defendant] and/or construction manager(s), if any; (4) review of the contractor’s proposed subcontractors; and (5) other relevant factors particular to the Construction Project.
The FMP then provides a definition of “Responsibility Criteria,” which sets forth a nonexclusive list of criteria that can be examined and weighed by the Board in determining whether a contractor is responsible.
In his affidavit, the superintendent of the DCS, R. Clay Perkins, averred that the DCS had the authority and right under the FMP to reject any or all bids and that the FMP specifically apprised contractors that the lowest bidder might not always be awarded a project.
The trial court was also provided with a project manual drafted by defendant that addressed the advertisement of bids and the planned construction to be undertaken at the two work sites, Hill Elementary School and Siple Elementary School. The project manual twice indicates that the DCS “reserves the right to accept or reject any or all offers.” But the manual also provides that the DCS “reserves the right to reject any or all bids where incomplete or irregular, lacking bid bond, data required by bidding documents, or where proposals exceed funds available.” (Emphasis added.) This provision suggests that there is somewhat of a limitation on the grounds pursuant to which a bid can be rejected.
Defendant’s reliance on the language in the FMP and project manual that gives the DCS the right to reject any or all bids reflects a failure to appreciate the language in the FMP that requires the DCS to award a project to the lowest responsible bidder. Indeed, defendant fails to even acknowledge the provision concerning the “lowest responsible bidder” mandate, let alone argue that it is negated by or subject to the language in the FMP and project manual on which defendant relies. Defendant’s position suggests that the DCS has complete and unfettered discretion to reject a bid, but this is inconsistent with the “lowest responsible bidder” provision that mandates an award and inconsistent with the language in the project manual that indicates that the DCS has the right to reject bids, but only for certain reasons.
We hold, as a matter of law, that the multiple provisions reserving the right to reject bids are subject to the provision requiring an award to be made to the lowest responsible bidder; otherwise, the “lowest responsible bidder” provision is rendered meaningless and nugatory. In Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003), our Supreme Court stated:
Just as “[c]ourts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory,” courts must also give effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory. [Citation omitted.]
We find no reason not to apply this same construction principle when interpreting the FME Further, our interpretation does not render the “right to reject” provisions surplusage or nugatory, given that they remain entirely enforceable in all circumstances other than a particular situation in which the bid being addressed was submitted by the lowest responsible bidder. Aside from the “lowest responsible bidder” provision itself, our conclusion finds some additional support in the FME in which, as already indicated, one of the provisions reserving the right to reject a bid also provides that the reservation encompasses “the bid of any contractor who is not reasonably determined to be ‘responsible’ in conjunction with this policy.” This language tends to honor and can be read consistently with the “lowest responsible bidder” mandate. Further support can be found in the FMP’s definition of “lowest responsible bidder,” which provides, “Because a bidder with the net lowest dollar cost bid may not be a Responsible Contractor, the lowest dollar cost bidder may not always receive award of the bid.” By corollary, this language suggests that if a contractor submits the lowest bid, it would be awarded the project at issue if the contractor is also properly characterized as being “responsible.” Ultimately, our ruling rests on the fact that any other interpretation would render surplusage and nugatory the FMP’s language that “[b]ids shall be awarded in compliance with applicable bidding obligations imposed by law to the ‘lowest responsible bidder.’ ” (Emphasis added.)
We next need to address whether plaintiff submitted evidence sufficient to create a genuine issue of material fact on the question whether it had a valid business expectancy, accepting the undisputed fact that plaintiff submitted the lowest bid and taking into consideration our construction of the FME Our attention must focus on the requirement that the contractor or bidder be “responsible.” The Board certainly has some discretion in making this determination. However, we are not prepared to rule that, as a matter of law, a contractor that submitted the lowest bid on a project, thereby satisfying one of the FMP award prerequisites of the “lowest responsible bidder” clause, can never establish a valid business expectancy merely because the Board had some discretion in determining whether that contractor was responsible.
The Board’s discretion in awarding a project is not expansive or unrestricted by limiting criteria and factors to an extent that it makes it impossible to reasonably infer that plaintiffs claimed expectancy would likely have come to fruition. Rather, the FMP limits the discretion to an assessment of whether a contractor is “responsible,” and that determination is subject to the factors and criteria delineated in the definitional section of the FMP In determining whether a contractor is responsible, the ultimate question to be answered by the Board, according to the FMR is whether the contractor is “sufficiently qualified to satisfactorily perform the Construction Project, in accordance with all applicable contractual and legal requirements.” Certainly, a contractor submitting the lowest bid on a project, such as plaintiff, may be able to prove with testimony and other evidence that it was sufficiently qualified to complete the project in a satisfactory and legally and contractually compliant manner, to the extent that a trier of fact could conclude that there existed a reasonable likelihood or probability that the contractor would have been awarded the project absent tortious interference by a defendant. Supporting evidence that goes beyond innate optimism or mere hope could easily exist if a contractor truly has a stellar track record in the construction field; certainty or a guarantee of an award need not be shown.
We shall now examine the documentary evidence presented in the trial court. Defendant’s representative, Jackie Hoist, contacted and interviewed persons identified on plaintiffs bidder-qualification form in order to obtain opinions on the quality and timeliness of plaintiffs work on past projects. Hoist’s typewritten notes of the responses and opinions supposedly communicated to her reflect some negative reviews of plaintiffs work, ■ the harshest of which came from Hoist herself, who had worked with plaintiff on multiple projects. The notes, however, also reflect some positive reviews, e.g., Richard Cedroni “managed it well,” “hands on job,” “supervision was good,” “would work with them again,” “asked [plaintiff] to bid a lot of their jobs,” “did a good job,” “very dependable,” “do what they [s]ay they will,” “[s]chedule was fine,” “[w]ork was very good as a whole,” “[v]ery reasonable on change orders,” “[w]ork quality was good,” “redid work when necessary,” and “[paperwork end was good.” These responses and opinions came from many individuals and concerned several projects. Additionally, the lower court record contains an affidavit by Cedroni and a letter from Cedroni to the DCS, which was also distributed at a public meeting to DCS committee members who were engaged in making a recommendation to the Board to award the project to US Construction and Design Services, LLC. Cedroni’s affidavit and his circulated letter averred and expressed that plaintiff had performed quality work, had timely completed awarded projects, and had received excellent reviews, all with respect to numerous construction projects. The affidavit and letter were detailed and discussed specifics regarding the various projects, and they addressed and challenged the proclaimed negative opinions garnered by Hoist in her investigation conducted on behalf of defendant.
In light of the documentary evidence indicating that plaintiff was sufficiently qualified to complete the project in a satisfactory manner, we conclude that a genuine issue of material fact existed concerning whether plaintiff was a responsible contractor to the extent that a trier of fact could conclude that there existed a reasonable likelihood or probability that plaintiff would have been awarded the project absent the alleged tortious interference by defendant. Stated otherwise, there was a genuine issue of material fáct regarding whether plaintiff had a valid business expectancy.
As indicated in our introduction, we emphasize that the submission of the lowest bid, in and of itself, was inadequate to sustain plaintiffs suit. We reject any per se rule that would allow litigation to proceed simply on the basis of proof of the lowest bid, except, of course, when no additional criteria needed to be satisfied, which is unlikely. Absent sufficient additional evidence on relevant award criteria, there would be no valid business expectancy.
We find it necessary to address some of the criticisms leveled by the dissent regarding the issue whether there could be a valid business expectancy. Initially, the dissent asserts that no cause of action exists to protect bidders on a governmental contract, citing Talbot Paving Co v Detroit, 109 Mich 657, 661-662; 67 NW 979 (1896). First, Talbot Paving addressed an action by a contractor against a municipality, and here plaintiff is not suing the DCS, but is proceeding on a tortiousinterference claim against defendant. Next, Talbot Paving allowed for the possibility of a suit against a municipality if fraud were involved. Id. at 662. As can be gleaned from our discussion later in this opinion, there was evidence presented suggesting fraudulent conduct on the part of defendant. The dissent also cites Leavy v City of Jackson, 247 Mich 447, 450-451; 226 NW 214 (1929), another suit against the municipality itself, and heavy recognized that a suit by a bidder could be maintained if the municipality did not act in good faith in the exercise of honest discretion or if fraud, injustice, or a violation of trust permeated the bidding process. Once again, as reflected later in our opinion, there is evidence indicating bad faith, a lack of honesty, injustice, and fraud.
The dissent contends that there could be no valid business expectancy because MCL 380.1267 gave the DCS unfettered discretion to reject a bid, since the statute provides no limiting criteria and because the FMP does not have the force of law. MCL 380.1267(6) provides, in part, that “[t]he board, intermediate school board, or board of directors may reject any or all bids, and if all bids are rejected, shall readvertise in the manner required by this section.” We first note that MCL 380.1267(6) does not restrict a board from imposing its own criteria and limitations on itself relative to the bidding process and the acceptance and rejection of bids. While the statutory language, standing alone, places no limits on discretion, the dissent’s position ignores the reality that the FMP governed the bidding process. Superintendent Perkins averred that the FMP guided the bidding process and that the process involved identifying the lowest responsible bidder. The FMP itself provides that projects “requiring competitive bids shall be made in accordance with current statutes, the creation of bid specifications, and adherence to the District’s bidding procedure[.]” (Emphasis added.) The FMP further provides that the requirements of the FMP “shall be incorporated into all bid documents used to solicit bids for construction projects[.]” We therefore conclude that the FMP is absolutely relevant to analyzing the issue whether plaintiff had a valid business expectancy.
Finally, we reject the dissent’s reliance on unpublished opinions. MCR 7.215(J).
C. TORTIOUS INTERFERENCE — INTENTIONAL AND IMPROPER CONDUCT
Plaintiff next argues that the trial court erred by granting the motion for summary disposition when a genuine issue of material fact existed with respect to whether defendant’s communications to the DCS that plaintiff was not qualified constituted intentional and improper conduct.
1. THE CASELAW
In regard to a claim of tortious interference with a business expectancy, a plaintiff must demonstrate that the defendant acted both intentionally and either improperly or without justification. Dalley, 287 Mich App at 323. “[0]ne who alleges tortious interference with a contractual or business relationship must allege the intentional doing of a per se wrongful act or the doing of a lawful act with malice and unjustified in law for the purpose of invading the contractual rights or business relationship of another.” Badiee v Brighton Area Sch, 265 Mich App 343, 367; 695 NW2d 521 (2005), quoting CMI Int’l, Inc v Intermet Int’l Corp, 251 Mich App 125, 131; 649 NW2d 808 (2002), quoting Feldman v Green, 138 Mich App 360, 378; 360 NW2d 881 (1984) (quotation marks omitted). A wrongful act per se is an act that is inherently wrongful or an act that can never be justified under any circumstances. Badiee, 265 Mich App at 367; Prysak v R L Polk Co, 193 Mich App 1, 12-13; 483 NW2d 629 (1992). When a defendant’s conduct was not wrongful per se, the plaintiff must demonstrate specific, affirmative acts that corroborate the unlawful purpose of the interference. Badiee, 265 Mich App at 367. To establish that a lawful act was done with malice and without justification, a plaintiff must prove, with particularity, affirmative acts taken by the defendant that corroborate the improper motive of the interference. Mino v Clio Sch Dist, 255 Mich App 60, 78; 661 NW2d 586 (2003); see also Dalley, 287 Mich App at 324. “Where the defendant’s actions were motivated by legitimate business reasons, its actions would not constitute improper motive or interference.” Id. (quotation marks and citation omitted).
A false accusation may provide a basis to pursue a claim of tortious interference. First Pub, 246 Mich App at 199. In Trepel, 135 Mich App at 377, this Court noted that the defendant’s counterclaim of tortious interference “clearly allege[d] unethical conduct — sending letters knowing them to contain false allegations.”
2. APPLICATION OF THE LAW TO THE FACTS
The FMP provides that the determination whether a contractor is a responsible contractor shall be based, in part, on “the input of the [DOS’s] architect,” which in this case was defendant. The contract between the DCS and defendant provides that defendant “shall assist the [DCS] in obtaining competitive bids and shall assist the [DCS] in awarding and preparing contracts for construction.” Superintendent Perkins averred that plaintiff had submitted the lowest bid, but, “[b]ased on the review by the Board Committee and the recommendations of [defendant], [the DCS] decided to award the Project to US Construction[.]” There is no dispute that, consistently with its obligation to provide assistance in the bid-selection process, defendant made a recommendation and conveyed'information to the DCS regarding plaintiff and its bid. Hoist sent a letter on behalf of defendant to the DCS in which she stated:
We have reviewed the apparent low bidder[’]s proposal, references, past experience and qualifications. At the close of the review, we recommend that you move to the second low bidder, US Construction . 1.. They have provided construction services for other projects designed by [us] & for [the DCS], and have performed the work adequately.
It can reasonably be inferred from this letter that Hoist, and thus defendant, found that plaintiff had a poor work history and consequently would not adequately perform the work on the project at issue. And Perkins’s averment indicating that the award decision was based, in part, on defendant’s recommendation provides evidence of a causal relationship between defendant’s conduct and the decision to award the project to US Construction instead of plaintiff. Further support of a causal relationship is an e-mail to Perkins from the DOS’s director of finance and operations, Daniel Romzek, in which he stated that Hoist “still stands by her recommendation not to proceed with the low bidder, and I told her that we will rely on her reference checks and recommendation for our recommendation to the board.” For these reasons, we respectfully disagree with the dissent’s position that plaintiff failed to establish causation.
There was conflicting evidence presented regarding plaintiffs workmanship on various projects. In Hoist’s notes, she indicated that the contact person on a construction project involving toilet buildings at the Island Lake State Park stated that plaintiff had failed to meet the project’s schedule, failed to follow the plans and specifications, failed to provide supervision, and failed to follow up on matters. The contact person also stated that plaintiffs work was of poor quality and that he believed that “the state put [Cedroni] on their ‘may not bid’ list.” Cedroni asserted in his affidavit that the contact person on the Island Lake project was employed by defendant, which acted as the architect on the project. Cedroni further averred that plaintiff “timely and properly completed all work on the project considering the design errors of [defendant].” Cedroni additionally attested that “[t]he work was fully completed and was of good quality, as proven by [plaintiffs] receipt of full payment for the project[, and plaintiff] had on-site supervision during the entire course of the project.”
In Hoist’s notes, she indicated that she spoke with a person from Architectural Systems Group regarding a prime subcontract and that the individual stated that plaintiff was “[n]ot good to deal with.” In Cedroni’s affidavit, he averred that plaintiff “is currently working with Architectural Systems Group as part of a $170,000 contract[.]”
In Hoist’s notes, she indicated that Ken Kander, a contact person on a construction project involving the Holly Academy, stated that he would not say anything negative about plaintiff, nor would he say anything positive. Another contact person on the Holly Academy project supposedly told Hoist that he would never hire plaintiff for the DCS construction project. In Cedroni’s affidavit, he attested as follows regarding the Holly Academy project, for which defendant provided architectural services:
Ken Kander will attest that Cedroni completed quality work on the project, had appropriate levels of supervision, and addressed any concerns of the owner. The problems on this construction project were due to [defendant]. [Plaintiff] suggested an alternative ballast to the one [defendant] had specified. [Defendant] rejected [plaintiffs] proposal. [Defendant’s] specified ballasts were problematic and [plaintiffs] subcontractor has made repeated visits to the construction project to address the problems. In fact, Holly Academy has since retained a new architect rather than work any further with [defendant].[ ]
In his letter presented to the DCS committee involved in the bidding process, Cedroni stated that he had spoken to the owner of the Holly Academy numerous times “and he was very happy with our quality and performance on the project and would not hesitate to utilize our services again.”
Hoist’s notes also reflect her own thoughts regarding plaintiffs workmanship on projects that plaintiff and defendant worked on together. According to Hoist, plaintiffs work at Holly Academy lacked supervision and showed poor workmanship. She also indicated that the quality of plaintiffs work on the project was reflective of their bid “and about what I expected from Cedroni, but in addition to the low quality, his follow-up on construction issues, especially with regard to their lighting problem, is unacceptable to me.” In an e-mail from Hoist to Kander regarding the Holly Academy project, Hoist complained of plaintiffs failure to deal with a problem with lights, and she then stated, “So, here’s where the rubber may hit the road for Cedroni, [h]e was low bidder on some work we are doing for [the DCS].” Regarding a construction project involving a maintenance building in Rochester Hills, Hoist described some of plaintiffs work as the worst that she had ever seen. With respect to that project, Cedroni averred that the problems were caused by defendant.
In his letter presented to the DCS committee, Cedroni made the following observations regarding his company:
I have personally contacted all parties on this document [Hoist’s notes] and all admitted to talking to Jackie. They all reported giving good reviews and glowing reports of our performance, except for one architect. After speaking with this architect and explaining to him that his comment could be viewed as damaging, he stated he didn’t think his review was particularly bad and he would have no problem working with us in the future.
... I have found no definitive reason as to why my company should not be recommended for this project. I am offering to complete this job at nearly $50,000 less than the next lowest bidder .... We have never been removed from a project and never received a poor review from any architect/owner we’ve worked with. Even after our last project with [defendant], I was told they had no issue with our performance and we could use them as a reference for future work.
Viewing the conflicting and inconsistent evidence and the inferences arising from it in a light most favorable to plaintiff, a trier of fact could reasonably conclude that defendant acted with malice, in a wrongful manner per se, unethically, with an improper motive and absence of justification, or deceitfully with respect to the damaging information and recommendation conveyed to the DCS. If plaintiffs evidence were found to be credible by the trier of fact, it could reasonably conclude that defendant acted intentionally and improperly in an effort to interfere with plaintiffs business expectancy, i.e., being awarded the construction project by the DCS. It is quite evident in reviewing the documentary evidence that a great deal of friction and animosity had developed between plaintiff and defendant over past projects by the time the bid-selection process took place here, and a trier of fact could determine that defendant’s recommendation was motivated by malice and not legitimate business reasons. Summary disposition was simply inappropriate in light of the record.
As indicated in our introduction, we emphasize that the exercise of professional business judgment in making recommendations relative to governmental contracts and projects must be afforded some level of protection and deference. But we will not preclude litigation when there exists evidence suggesting that the ostensible exercise of professional business judgment is in reality a disguised or veiled attempt to intentionally and improperly interfere with the contrac tual or expectant business relationships of others. There is evidence here indicating that defendant, through Hoist, was being untruthful and inaccurate in its portrayal of plaintiff. The trier of fact must sort through all the conflicting evidence and assess the credibility of the parties’ claims and their witnesses.
Finally, the dissent posits that there was no evidence that Hoist provided false information to the DCS or had an improper motive and that the information supplied by Hoist simply constituted a negative opinion. The dissent asserts that the evidence merely reflected professional disagreements. We respectfully conclude that the dissent fails to view the evidence in a light most favorable to plaintiff and fails to consider reasonable inferences arising from the evidence. A reasonable inference arising from Cedroni’s affidavit is that Hoist was lying, and Cedroni’s letter indicates that glowing reviews were given to Hoist, which, if true, would directly establish that she was lying. Taking into consideration Cedroni’s affidavit and letter, along with the other documentary evidence, and viewing it in a light most favorable to plaintiff, this case entails more than professional disagreements and negative opinions.
D. DEFENDANT’S RELATIONSHIP WITH THE DCS
The dissent argues that defendant is entitled to summary disposition on the basis that defendant was not a third party to the prospective contract or relationship between plaintiff and the DCS; rather, defendant was an agent of the DCS and thus a tortiousinterference cause of action cannot be maintained. We initially note that defendant itself does not make this argument, nor did the trial court address this issue.
A plaintiff must establish that the defendant was a third party to the contract or business relationship in order to maintain a tortious-interference claim, and therefore corporate agents are not liable for tortious interference with respect to corporation contracts and relationships when acting for the benefit of the corporation and within the scope of their authority. Lawsuit Fin, LLC v Curry, 261 Mich App 579, 593; 683 NW2d 233 (2004); Reed v Mich Metro Girl Scout Council, 201 Mich App 10, 13; 506 NW2d 231 (1993). For purposes of examining and applying this particular principle of law, we first question whether it is proper to classify defendant as a “corporate agent” rather than a “third party” relative to the relationship between plaintiff and the DCS. The caselaw addressing the principle has almost always been in the context of a situation in which the defendant was an actual employee or officer of the corporation or entity involved in the relationship or prospective relationship. Reed, 201 Mich App at 13 (executive director and chief officer of the defendant Girl Scout council); Bradley v Philip Morris, Inc, 194 Mich App 44, 46; 486 NW2d 48 (1992), vacated in part on other grounds 440 Mich 870 (1992) (employees of tobacco company); Feaheny v Caldwell, 175 Mich App 291, 294-295; 437 NW2d 358 (1989) (top executives of Ford Motor Company); Dzierwa v Mich Oil Co, 152 Mich App 281, 283; 393 NW2d 610 (1986) (president and director of oil company); Stack v Marcum, 147 Mich App 756, 758; 382 NW2d 743 (1985) (employee supervisor at phone company); Tash v Houston, 74 Mich App 566, 568; 254 NW2d 579 (1977) (president of union). There is no indication that Hoist or any of defendant’s personnel were employees or officers of the DCS. While Lawsuit Fin did not involve a defendant who was an employee or officer, the alleged interference occurred within the sanctity of the attorney-client relationship. Lawsuit Fin, 261 Mich App at 583.
Nevertheless, assuming for the sake of argument that defendant was an agent of the DCS and not a third party relative to the relationship between plaintiff and the DCS, that would not automatically insulate defendant from liability. Instead, even an agent can be held liable for tortious interference if the agent acts not for the benefit of the corporation or entity involved in the transaction or prospective transaction, but for his or her own benefit or pursuant to a personal motive. Reed, 201 Mich App at 13; Bradley, 194 Mich App at 50-51 (examining whether actions were based on personal motivation or for personal benefit); Feaheny, 175 Mich App at 294-295 (examining whether the defendants acted out of a personal motive to harm the plaintiff or to acquire a pecuniary advantage); Stack, 147 Mich App at 759-760 (examining whether the conduct at issue was to further the defendant’s own ends); Tash, 74 Mich App at 571-574 (stating that the defendant agent must not act for a strictly personal motive and must proceed with an honest belief that actions will benefit the company).
Reviewing the evidence in a light most favorable to plaintiff, and talcing into consideration reasonable inferences arising from the evidence, a genuine issue of material fact existed regarding whether Hoist was honestly acting for the benefit of the DCS or whether she was acting solely for her own benefit and out of motivation to harm plaintiff. As already indicated, a trier of fact, on the basis of the evidence, could reasonably conclude that defendant acted with malice, in a wrongful manner per se, unethically, with an improper motive and absence of justification, or deceitfully in regard to the damaging information and recommendation conveyed to the DCS. There was evidence of an acrimonious relationship between Hoist and Cedroni, and it could reasonably be inferred from the e-mail Hoist sent to Kander, when considered in conjunction with the other evidence, that Hoist was out to sabotage plaintiffs efforts in the bid process. If the information conveyed to the DCS was fabricated, and given the history between Hoist and Cedroni, one could conclude that Hoist was driven by a personal motive to get back at Cedroni and not by a good-faith attempt to benefit the DCS. The winning contractor was to work with defendant in completing the project, and Hoist’s recommendation benefited her in that she would not be forced to work on the project with Cedroni, of whom she had a very negative opinion. Again, issues of fact abound and summary disposition was improper. We further note that very little discovery had taken place before the summary disposition motion was granted, and further discovery could greatly sharpen the issues presented. Finally, this Court’s decision in Joba Constr would effectively have to be ignored on the issue now raised by the dissent, given that the defendant engineering firm in that case was also arguably an agent for the city.
III. CONCLUSION
In light of the documentary evidence indicating that plaintiff was sufficiently qualified to complete the project in a satisfactory manner, we conclude that a genuine issue of material fact existed concerning whether plaintiff was a responsible contractor to the extent that the trier of fact could conclude that there existed a reasonable likelihood or probability that plaintiff would have been awarded the project absent the alleged tortious interference by defendant. Thus, there was a genuine issue of material fact regarding whether plaintiff had a valid business expectancy.
Furthermore, viewing the conflicting and inconsistent evidence and the inferences arising from it in a light most favorable to plaintiff, a trier of fact could reasonably conclude that defendant acted intentionally and improperly in an effort to interfere with plaintiffs business expectancy.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, plaintiff is awarded taxable costs pursuant to MCR 7.219.
Stephens, J., concurred.
For purposes of this opinion, we shall refer to plaintiffs claim as “tortious interference with a business expectancy.”
While the Joba Constr opinion did indicate that the plaintiff was the lowest bidder on the first project, it did not reveal the nature of the evidence presented at trial with respect to the plaintiff being a “qualified” bidder.
Hoist noted that, on one project, some of plaintiffs work was the worst that she had ever seen.
Cedroni is plaintiffs president and principal representative.
The documentary evidence is not clear regarding whether Hoist’s notes themselves were shared with the DCS; however, defendant’s brief in the trial court indicated that the notes were indeed shared and that the DCS chose another contractor on the basis of the notes and the information contained therein.
Hoist’s notes and Cedroni’s affidavit and letter do raise concerns about hearsay. However, neither party argued in the trial court, nor argues on appeal, that any of the documentary evidence should be disregarded and not considered on the basis of hearsay. Indeed, both parties place some reliance on all three of the documents. Given that the parties have effectively agreed to allow consideration of the documents and their contents, we shall not engage in any hearsay analysis.
Returning to our hearsay concern, aside from again noting that neither party raises hearsay issues, we would note that Cedroni’s claims with respect to what others told him about plaintiffs workmanship would not be hearsay in the context of this issue because their statements would not be offered to prove the truth of the matter asserted. MRE 801(c). For purposes of this issue, statements that, for example, plaintiff did quality work on a project would not be used to prove that plaintiff indeed did quality work, but simply to show that the declarant made a statement contrary to one attributed to him or her in Hoist’s notes, calling into question Hoist’s truthfulness and showing improper conduct. See Merrow v Bofferding, 458 Mich 617, 631; 581 NW2d 696 (1998). | [
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Per Curiam.
Defendant, the Department of Treasury (Treasury), appeals by leave the order of the Court of Claims granting the motion of plaintiff General Motors Corporation (GM) for partial summary disposition with respect to liability on GM’s two claims for refunds of taxes it paid on its employees’ use of GM-manufactured “program vehicles” for tax periods from October 1, 1996, to August 31, 2007. GM asserts the use of program vehicles was exempt from taxation because the vehicles were “purchased for resale [or] demonstration purposes” under MCL 205.94(l)(c), as interpreted by Betten Auto Ctr, Inc v Dep’t of Treasury, 272 Mich App 14; 723 NW2d 914 (2006), aff'd in part and vacated in part 478 Mich 864 (2007). GM also asserts that 2007 PA 103, which amended the Use Tax Act, MCL 205.91 et seq., to obviate the holding of Betten, was improperly enacted special legislation and, if applied retroactively, would violate GM’s constitutional right to due process. Finally, GM contends that its employees’ use of program vehicles was exempt from taxation under the Use Tax Act, even as amended.
The Court of Claims agreed with GM and ruled that the retroactive effect of 2007 PA 103 violated GM’s right to due process because an 11-year period of retroactive application was contrary to the holding of United States v Carlton, 512 US 26; 114 S Ct 2018; 129 L Ed 2d 22 (1994), which permitted only a “modest” period of retroactivity for economic legislation. The Court of Claims also held that 2007 PA 103, if applied retroactively, would violate Michigan’s Constitution regarding special legislation, Const 1963, art 4, § 29, because it was enacted for the sole purpose of preventing GM from receiving use tax refunds. Finally, the Court of Claims ruled that GM’s program vehicles were exempt from use tax under MCL 205.94(l)(c), as amended by 2007 PA 103, because “GM manufactured cars for resale and demonstration purposes” and “is not licensed as a new vehicle dealer, and thus, is not limited to the exemption on only 25 vehicles as set forth in MCL 205.94(1)(c) (iii). ” We reverse.
I. LEGAL AND FACTUAL BACKGROUND
In its opinion and order, the Court of Claims summarized the factual background that frames the legal issues presented on this appeal:
As part of General Motors’ (“GM”) manufacturing and reselling business, it tests, evaluates, demonstrates, and markets its vehicles and vehicles purchased for resale for [sic] GM subsidiaries. All of GM’s salaried personnel in the United States in executive, professional, technical, and other positions, with certain limited exceptions are required, to drive a GM inventory vehicle in one of the Vehicle Programs as an integral part of their job assignment. GM’s employee evaluations of driving performance assist GM in the marketing, testing, research, and design of vehicles by testing and collecting data from real world vehicle operation. The vehicles are held in inventory for resale and later sold to the final consumer. The employee’s family and household members are prohibited from driving program vehicles except in very limited circumstances. During all the years in issue, GM was required by the Michigan Department of Treasury (“Treasury”), through audit enforcement, to self-assess and remit use taxes on its vehicle inventory operated under the Vehicle Program, and on Marketing Vehicles.
In Betten Auto Center v. Dep’t of Treasury, 478 Mich. 864 (2007), the Michigan Supreme Court affirmed a portion of a Court of Appeals decision where cars sold by a new car dealer are exempt from liability for any interim use to which the dealer puts them, pending resale, under the resale exemption. While Betten appeals were pending, GM filed two use tax refund claims. The first was filed on August 25, 2006, asking for a refund of $65,324,061 for October 1, 1996 — March 26, 2002. Treasury placed the claim in abeyance. GM filed a second refund claim on September 14, 2007 seeking $51,433,651 for March 26, 2002 — August 31, 2007.
On October 1, 2007, House Bill 4882 became law, as 2007 PA 103, amending the Use Tax Act. Treasury denied GM’s refund claims on October 25, 2007, basing the denial on the statutory language of 2007 PA 103, which made clear GM’s employees’ use of the vehicles made the vehicles ineligible for the resale exemption. Enacting Section 2 of 2007 PA 103 made the amendments effective retroactively, beginning September 30, 2002, and for all tax years not barred by the applicable statute of limitations. GM then brought suit, timely filing its initial Complaint in the Court of Claims on December 27, 2007. GM now brings this Motion for Summary Disposition pursuant to MCR 2.116(0(10), asserting there are no genuine issues with respect to any material fact, and thus, GM is entitled to judgment as a matter of law. Treasury asks that GM’s motion to [sic] be denied and summary disposition be entered for Treasury pursuant to MCR 2.116(I)(2) and MCR 2.116(C)(8).
We summarize the legal history regarding the Betten decision, the Use Tax Act, and its amendment by 2007 PA 103 before addressing the parties’ arguments.
The use tax is designed to complement the tax imposed under the General Sales Tax Act, MCL 205.51 el seq. People v Rodriguez, 463 Mich 466, 467 n 1; 620 NW2d 13 (2000). At all pertinent times, the Use Tax Act imposed “a specific tax for the privilege of using, storing, or consuming tangible personal property in this state at a rate equal to 6% of the price of the property.” MCL 205.93(1). Property is exempt from use taxation if it is “sold in this state on which transaction a tax is paid under the general sales tax act” and “if the tax was due and paid on the retail sale to a consumer.” MCL 205.94(l)(a). Thus, the use tax “applies to certain personal property transactions in which the seller does not collect a sales tax on behalf of the state.” Rodriguez, 463 Mich at 467 n 1. Before its 2007 amendment, the Use Tax Act, in general, placed the ultimate responsibility for payment of its levy on the ultimate consumer or purchaser of tangible property. MCL 205.97; World Book, Inc v Dep’t of Treasury, 459 Mich 403, 408, 415-416; 590 NW2d 293 (1999); Betten, 272 Mich App at 19.
At issue in the present case are exemptions from use taxation for property “purchased for resale, demonstration purposes,” which before 2007 PA 103 provided:
(1) The following are exempt from the tax levied under this act, subject to subsection (2):
(c) Property purchased for resale, demonstration purposes, or lending or leasing to a public or parochial school offering a course in automobile driving except that a vehicle purchased by the school shall be certified for driving education and shall not be reassigned for personal use by the school’s administrative personnel. For a dealer selling a new car or truck, exemption for demonstration purposes shall be determined by the number of new cars and trucks sold during the current calendar year or the immediately preceding year without regard to specific make or style according to the following schedule of 0 to 25, 2 units; 26 to 100, 7 units; 101 to 500, 20 units; 501 or more, 25 units; but not to exceed 25 cars and trucks in 1 calendar year for demonstration purposes. Property purchased for resale includes promotional merchandise transferred pursuant to a redemption offer to a person located outside this state or any packaging material, other than promotional merchandise, acquired for use in fulfilling a redemption offer or rebate to a person located outside this state.
(2) The property or services under subsection (1) are exempt only to the extent that the property or services are used for the exempt purposes if one is stated in subsection (1). The exemption is limited to the percentage of exempt use to total use determined by a reasonable formula or method approved by the department. [MCL 205.94, as amended by 2004 PA 172.]
In Betten, the plaintiffs were “all licensed automobile dealerships selling both new and used automobiles [that] paid [Treasury] a total of $48,449.74 in use taxes on vehicles that plaintiffs purchased for resale, allowed their employees to use, and ultimately resold.” Betten, 272 Mich App at 15. The plaintiffs had filed their claims for refunds after this Court decided Crown Motors of Charlevoix, Ltd v Dep’t of Treasury, unpublished opinion per curiam of the Court of Appeals, issued November 4, 2003 (Docket No. 240555).
The Crown case also involved a new and used car dealership and, although the parties agreed that the plaintiff had purchased all vehicles for resale and in fact resold them, Treasury asserted that the interim use of the vehicles was subject to use tax. Relying on Rodriguez, 463 Mich 471-472, the Crown Court reasoned that the exemption for property “purchased for resale” in MCL 205.94(l)(c) was clear and unambiguous and that this language “ ‘conveys a legislative intent inconsistent with purchase for another purpose.’ ” Crown, unpub op at 3, quoting Rodriguez, 463 Mich at 472. Thus, the Crown Court held that the plaintiff was not liable for use tax because its inventory vehicles were purchased for resale, and although it was subject to interim use, under Rodriquez, “property is either purchased for resale or it is not; here, it was indeed purchased for resale.” Crown, unpub op at 3.
The Crown Court also rejected Treasury’s argument that the plaintiffs interim use of the vehicles resulted in their “conversion” to a taxable use. Treasury relied on MCL 205.97, which at that time provided, in part, that “[e]ach consumer storing, using or otherwise consuming in this state tangible personal property or services purchased for or subsequently converted to such purpose or purposes shall be liable for the tax imposed by this act. ...” The Court noted that the primary purpose of this section was to impose the economic burden of the use tax on the consumers of property and that the Legislature had provided no guidance regarding “how or when property can be ‘converted’ from one purpose to another.” Crown, unpub op at 3. The Crown Court also held that 1979 AC, R 205.9 did not apply because it addressed situations in which property purchased for resale was consumed rather than resold, whereas in Crown, the parties agreed that all property was ultimately resold. Crown, unpub op at 3. Consequently, the Court ruled that Treasury had not supported its conversion theory with applicable and binding authority. Id.
Because Crown was unpublished, it lacked binding precedential authority, MCR 7.215(C)(1), and on this basis, Treasury denied the Betten plaintiffs’ claim for a refund. Betten, 272 Mich App at 16. But Treasury conceded that the plaintiffs were entitled to a demonstration exemption for up to 25 vehicles because the Legislature had adopted a formula for taxing demonstration vehicles in excess of that number. Id. at 16-17, 20; see 2002 PA 110.
The Betten Court held that even though the plaintiffs’ inventories of vehicles for sale were used in the interim before resale, “the vehicles in question are exempt from the imposition of a use tax under the resale exemption contained in MCL 205.94(l)(c).” Betten, 272 Mich App at 20. The Betten Court, like the Crown Court, relied on Rodriguez and the clear and unambiguous language of MCL 205.94(l)(c). The Court noted that the parties essentially agreed that the vehicles in question were purchased as inventory for resale and that the vehicles were, in fact, resold. Therefore, the Court held “the resale exemption applies to all the vehicles in question.” Betten, 272 Mich App at 21.
Treasury also asserted in Betten that the interim employee use of the inventory vehicles resulted in their “conversion” to a taxable use. In light of the Crown decision “and for other reasons,” the Betten Court was not persuaded by Treasury’s conversion argument. Betten, 272 Mich App at 21-22. One of the “other reasons” for rejecting the conversion argument, the Court explained, was that MCL 205.97 imposed liability for use tax only on a “consumer.” The Court held “that plaintiffs’ employees’ limited use of the vehicles did not transform plaintiffs or their employees into ‘consumers’ of the vehicles under MCL 205.97.” Id. at 22. The Betten Court also utilized a dictionary definition of “consumer” to buttress this conclusion and reasoned that our Supreme Court had held that the “ ‘the appropriate party to pay a use tax is the consumer, not the seller.’ ” Id., quoting World Book, 459 Mich at 415-416.
Although concluding the exemption for property “purchased for resale” applied, the Betten Court also held that vehicles in excess of 25 were taxable under MCL 205.93(2), as amended by 2002 PA 110. Betten, 272 Mich App at 23-26. Our Supreme Court subsequently vacated that part of the decision but affirmed this Court’s decision regarding MCL 205.94(l)(c). Betten Auto Ctr, Inc v Dep’t of Treasury, 478 Mich 864 (2007).
This Court decided Betten on August 1, 2006. On August 25, 2006, GM filed its first claim for a refund of the use taxes paid on its employees’ use of program vehicles over the period from October 1, 1996, to March 26, 2002. Treasury held GM’s claim in abeyance pending appeal of Betten to our Supreme Court, which issued its order on May 25, 2007. Betten, 478 Mich 864. On June 7, 2007, HB 4882, which later became 2007 PA 103, was introduced in the Michigan House of Representatives. Treasury and the Legislature clearly were concerned regarding the impact of the Betten decision on state revenue. The legislative analysis for HB 4882 stated:
The Department of Treasury estimates that the Betten Auto Center decision (See Background Information) has a potential one-time cost of $250.2 million based on refund claims received from automobile manufacturers and dealerships, and projected on-going costs of $29.2 million. To the extent the bill reduces refund claims and subjects converted property and services to taxation, the state would realize cost savings on the order of the above cited figures. [House Legislative Analysis, HB 4882, August 29, 2007, p 2.]
Our Supreme Court denied reconsideration in Betten on July 9, 2007. Betten Auto Ctr v Dep’t of Treasury, 478 Mich 938 (2007). On September 14, 2007, GM filed its second claim for a refund of the use taxes paid on its employees’ use of program vehicles for the period from March 28, 2002, to August 31, 2007.
Meanwhile, the Michigan House approved HB 4882 on September 24, 2007, and the Michigan Senate approved the bill on September 30, 2007. The Governor signed HB 4882 into law on October 1, 2007, and it became 2007 PA 103. The Legislature gave the act retroactive effect by providing as follows:
Enacting section 1. It is the intent of the legislature that this amendatory act clarify that a person who acquires tangible personal property for a purpose exempt under the use tax act, 1937 PA 94, MCL 205.91 to 205.111, who subsequently converts that property to a use taxable under the use tax act, 1937 PA 94, MCL 205.91 to 205.111, is liable for the tax levied under the use tax act, 1937 PA 94, MCL 205.91 to 205.111.
Enacting section 2. This amendatory act is curative and intended to prevent any misinterpretation of the ability of a taxpayer to claim an exemption from the tax levied under the use tax act, 1937 PA 94, MCL 205.91 to 205.111, based on the purchase of tangible personal property or services for resale that may result from the decision of the Michigan court of appeals in Betten Auto Center. Inc v Department of Treasury. No. 265976, as affirmed by the Michigan Supreme Court. This amendatory act is retroactive and is effective beginning September 30, 2002 and for all tax years that are open under the statute of limitations provided in section 27a of 1941 PA 122, MCL 205.27a. [2007 PA 103.]
2007 PA 103 thus amended the Use Tax Act to “clarify” that essentially any use of property purchased for resale other than as passive inventory results in conversion of the property such that the use is taxable. 2007 PA 103 did this by amending several provisions. It amended § 7 of the Use Tax Act by striking the word “consumer” and inserting the word “person” so that “[e]ach person storing, using, or consuming in this state tangible personal property or services is liable for the tax levied under this act. . . .” MCL 205.97(1) (italicized words added by 2007 PA 103). The amendments also expanded the definition of “use” to provide that “Converting tangible personal property acquired for a use exempt from the tax levied under this act to a use not exempt from the tax levied under this act is a taxable use.” MCL 205.92(b). In addition, MCL 205.97(2) was added to provide: “A person who acquires tangible personal property or services for any tax-exempt use who subsequently converts the tangible personal property or service to a taxable use, including an interim taxable use, is liable for the tax levied under this act.” Further, the definition of “purchase” was amended to include “converting tangible personal property acquired for a use exempt from the tax levied under this act to a use not exempt from the tax levied under this act.” MCL 205.92(e).
The pertinent section imposing on “every person in this state a specific tax for the privilege of using, storing, or consuming tangible personal property in this state” was amended by 2007 PA 103 to add that the “act applies to a person who acquires tangible personal property or services that are subject to the tax levied under this act for any tax-exempt use who subsequently converts the tangible personal property or service to a taxable use, including an interim taxable use.” MCL 205.93(1). The 2007 amendment also defined the word “convert” to mean
putting a service or tangible personal property acquired for a use exempt from the tax levied under this act at the time of acquisition to a use that is not exempt from the tax levied under this act, whether the use is in whole or in part, or permanent or not permanent. [MCL 205.92(q).]
The word “consumer” was amended to include “[a] person who has converted tangible personal property or services acquired for storage, use, or consumption in this state that is exempt from the tax levied under this act to storage, use, or consumption in this state that is not exempt from the tax levied under this act.” MCL 205.92(g)(ii). 2007 PA 103, however, did not disturb the holdings of Crown and Betten with respect to new vehicle dealers, providing in MCL 205.92(q) that “a motor vehicle purchased for resale by a new vehicle dealer licensed under section 248(8) (a) of the Michigan vehicle code, 1949 PA 300, MCL 257.248, and not titled in the name of the dealer shall not be considered to be converted before sale or lease by that dealer.”
On the parties’ motions for summary disposition, the Court of Claims ruled in favor of GM, holding that giving retroactive effect to 2007 PA 103 would violate GM’s right to due process, that the act violated Michigan’s constitutional provision regarding special legisla tion, Const 1963, art 4, § 29, and that GM’s program vehicles were exempt from use tax under MCL 205.94(l)(c), as amended by 2007 PA 103. This Court granted Treasury’s application for leave to appeal, and GM asserts in a timely cross-appeal several alternative grounds to affirm the Court of Claims.
II. STANDARD OF REVIEW
Claims that a statute is unconstitutional, as well as statutory interpretation, are questions of law this Court reviews de novo. Dep’t of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008). A trial court’s decision to grant a motion for summary disposition is also reviewed de novo. Id.
Statutes are presumed to be constitutional, and this presumption is especially strong with respect to tax legislation. Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400, 413; 488 NW2d 182 (1992); Ammex, Inc v Dep’t of Treasury, 273 Mich App 623, 635; 732 NW2d 116 (2007). The party challenging the constitutionality of the statute has the burden of proving the law’s invalidity. People v Sadows, 283 Mich App 65, 67; 768 NW2d 93 (2009). “The rules of statutory construction provide that a clear and unambiguous statute is not subject to judicial construction or interpretation.” GMAC LLC v Dep’t of Treasury, 286 Mich App 365, 372; 781 NW2d 310 (2009). In other words, “when a statute plainly and unambiguously expresses the legislative intent, the role of the court is limited to applying the terms of the statute to the circumstances in a particular case.” Id. A party claiming an exemption from a tax has the burden of establishing that it applies:
Tax exemptions are disfavored, and the burden of proving an entitlement to an exemption is on the party claiming the right to the exemption. Tax exemptions are in deroga tion of the principle that all shall bear a proportionate share of the tax burden, and therefore, a tax exemption shall be strictly construed. [Id. at 374-375 (citations omitted).]
Furthermore,
“ ‘if an exemption is found to exist, it must not be enlarged by construction, since the reasonable presumption is that the State has granted in express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be extended beyond what was meant.’ ” [Id. at 375, quoting Detroit v Detroit Commercial College, 322 Mich 142, 148-149; 33 NW2d 737 (1948), quoting 2 Cooley, Taxation (4th ed), § 672, p 1403.]
III. DUE PROCESS
“The Fourteenth Amendment to the United States Constitution and Const 1963, art 1, § 17 guarantee that no state shall deprive any person of ‘life, liberty or property, without due process of law.’ ” People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998). Although textually only providing procedural protections, the Due Process Clause has a substantive component that protects individual liberty and property interests from arbitrary government actions. Id. at 522-523; Cummins v Robinson Twp, 283 Mich App 677, 700-701; 770 NW2d 421 (2009). But to be protected by the Due Process Clause, a property interest must be a vested right. Detroit v Walker, 445 Mich 682, 698-699; 520 NW2d 135 (1994); Sherwin v State Hwy Comm’r, 364 Mich 188, 200; 111 NW2d 56 (1961). A vested right is “an interest that the government is compelled to recognize and protect of which the holder could not be deprived without injustice.” Walker, 445 Mich at 699. More specifically, a vested right
“ ‘is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.’ ” [GMAC, 286 Mich App at 377, quoting Cusick v Feldpausch, 259 Mich 349, 352; 243 NW 226 (1932), quoting 2 Cooley, Constitutional Limitations (8th ed), p 749.]
GM’s claim for a refund of use taxes it paid was not a vested right but rather a mere expectation that its claim might succeed in light of the Betten decision. GM’s claim rests on the theory that it held a vested chose in action — its refund claim — and relies on cases involving rights of action for damages to property or personal injury. But this case involves a tax — not a right of action — and the United States Supreme Court has opined that
“[t]axation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process ....” [Carlton, 512 US at 33, quoting Welch v Henry, 305 US 134, 146-147; 59 S Ct 121; 83 L Ed 87 (1938).]
GM, as a taxpayer, does not have a vested right in a tax statute or in the continuance of any tax law. Walker, 445 Mich at 703; GMAC, 286 Mich App at 377-778.
But we also reject Treasury’s argument that GM’s claim regarding retroactivity is a “red herring” because 2007 PA 103 is curative legislation merely bringing clarity to existing law. “An amendment may apply retroactively where the Legislature enacts an amendment to clarify an existing statute and to resolve a controversy regarding its meaning.” Mtg Electronic Registration Sys, Inc v Pickrell, 271 Mich App 119, 126; 721 NW2d 276 (2006). An amendment that affects substantive rights generally will not fall within this rule. See Brewer v A D Transp Express, Inc, 486 Mich 50, 57; 782 NW2d 475 (2010). Although 2007 PA 103 clarified some parts of the Use Tax Act, it also codified Treasury’s theory regarding the conversion of property held for a tax-exempt use to a taxable use that this Court had held was not part of the statute before its amendment. That is, because the amendment affected substantive rights or obligations, it cannot come within the rule permitting retroactive “remedial” amendments.
On the other hand, we reject as well GM’s assertion that the Legislature acted illegitimately when it enacted 2007 PA 103 for the purpose of reversing a judicial decision and thus failed to satisfy the first Carlton due process criterion for permissible retroactive legislation: specifically, that the Legislature’s “purpose in enacting the amendment was neither illegitimate nor arbitraiy.” Carlton, 512 US at 32. This is a negative statement of the substantive due process requirement that legislation that does not affect a suspect classification or involve the deprivation of a fundamental right must merely bear a reasonable relation to a permissible legislative objective. Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 404; 738 NW2d 664 (2007). Retroactive economic legislation must satisfy this rational basis test both for its prospective as well as its retrospective application. See Carlton, 512 US at 30-31.
GM’s claim that the Legislature acted illegitimately is without merit. While the Legislature may not re verse a judicial decision or repeal a final judgment, Wylie v Grand Rapids City Comm, 293 Mich 571, 582; 292 NW 668 (1940), that did not occur here. The Betten decision held the exemption for property “purchased for resale” applied to automobile dealers despite interim business use before resale. But 2007 PA 103 specifically exempted licensed new vehicle dealers from its conversion net. MCL 205.92(q). The amendment also added that the “purchased for resale” exemption includes “[m]otor vehicles purchased for resale purposes by a new vehicle dealer licensed under section 248(8) (a) of the Michigan vehicle code, 1949 PA 300, MCL 257.248.” MCL 205.94(l)(c)(ii;). Consequently, 2007 PA 103 did not “reverse a judicial decision or repeal [a] final judgment.. . .” Wylie, 293 Mich at 582. Moreover, it is legitimate for the Legislature to amend a law that it believes the judiciary has wrongly interpreted. See Gen Motors v Romein, 503 US 181, 191; 112 S Ct 1105; 117 L Ed 2d 328 (1992); GMAC, 286 Mich App at 380 (“[I]t is the province of the Legislature to acquiesce in the judicial interpretation of a statute or to amend the legislation to obviate a judicial interpretation.”).
A legislature’s action to mend a leak in the public treasury or tax revenue — whether created by poor drafting of legislation in the first instance or by a judicial decision — with retroactive legislation has almost universally been recognized as “rationally related to a legitimate legislative purpose.” Carlton, 512 US at 35. But the Court of Claims here found that 2007 PA 103 violated due process on the basis that the Carlton majority held that substantive due process places temporal limits on the reach of retroactive tax legislation and that 2007 PA 103 exceeded those limits. The Carlton majority upheld under the Due Process Clause the retroactive legislation in that case because “[fjirst, Congress’ purpose in enacting the amendment was neither illegitimate nor arbitrary.” Carlton, 512 US at 32. Specifically, the Court found that “Congress acted to correct what it reasonably viewed as a mistake” in the original legislation “that would have created a significant and unanticipated revenue loss.” Id. Further, there was nothing to indicate that Congress deliberately sought to induce taxable transactions. Id. The Carlton majority also opined that Congress imposed only a “modest” period of retroactivity:
Second, Congress acted promptly and established only a modest period of retroactivity.... Congress “almost without exception” has given general revenue statutes effective dates prior to the dates of actual enactment. This “customary congressional practice” generally has been “confined to short and limited periods required by the practicalities of producing national legislation.” ... In Welch v Henry, 305 US 134 (1938), the Court upheld a Wisconsin income tax adopted in 1935 on dividends received in 1933. The Court stated that the “ ‘recent transactions’ ” to which a tax law may be retroactively applied “must be taken to include the receipt of income during the year of the legislative session preceding that of its enactment.” Id., at 150. Here, the actual retroactive effect of the 1987 amendment extended for a period only slightly greater than one year. Moreover, the amendment was proposed by the IRS in January 1987 and by Congress in February 1987, within a few months of [26 USC] 2057’s original enactment. [Id. at 32-33.]
Additionally, in distinguishing cases from a different era, the Carlton majority opined that the retroactive legislation “at issue here certainly is not properly characterized as a ‘wholly new tax,’ and its period of retroactive effect is limited.” Id. at 34. But in summarizing its holding, the Court did not specifically include a temporal “modesty” requirement: “Because we conclude that retroactive application of the 1987 amendment to § 2057 is rationally related to a legitimate legislative purpose, we conclude that the amendment as applied to Carlton’s 1986 transactions is consistent with the Due Process Clause.” Id. at 35.
We agree that a majority of justices on the United States Supreme Court would hold that the Due Process Clause imposes some limit on the retroactive reach of tax legislation. The Kentucky Supreme Court in Miller v Johnson Controls, Inc, 296 SW3d 392 (Ky, 2010), attempted to synthesize the views of the justices in Carlton and concluded that the modesty requirement is part of the rational basis test with its length determined on a case-by-case basis considering the totality of the facts and circumstances. The Kentucky Supreme Court opined:
Retroactive application of a statute need only be (1) supported by a legitimate legislative purpose (2) furthered by rational means, which includes an appropriate modesty requirement. This requires analysis of the facts and circumstances of each case, rather than applying a specified modesty period. The pertinent question is whether the period of retroactivity is one that makes sense in supporting the legitimate governmental purpose (rationally related).
Clearly, eight of the nine justices viewed what may “rationally further” a legitimate governmental interest as being broader than the one year that only Justice O’Connor would impose as a “modesty” measure. Thus what is “modest” or acceptable for due process purposes depends on the facts of the case, including notice, settled expectations, detrimental reliance, etc. [Id. at 399.]
Balancing the government’s interest in retroactive application of a statute against that of the taxpayer’s interest in finality must be added to this mix of circumstances to determine whether the limit of modest retroactivity is reached. Justice O’Connor in her concur ring opinion in Carlton noted that no case had held that the government has “unlimited power to ‘readjust rights and burdens . . . and upset otherwise settled expectations.’ ” Carlton, 512 US at 37 (O’Connor, J., concurring) (citation omitted). In Justice O’Connor’s view, “The governmental interest in revising the tax laws must at some point give way to the taxpayer’s interest in finality and repose.” Id. at 37-38.
The totality of circumstances in this case establishes that the retroactive application of 2007 PA 103 does not exceed the modesty limitation of the Due Process Clause. First, the amendment does not reach back in time to assess a “wholly new tax” on long-concluded transactions. Rather, it seeks to confirm a tax that had been assessed by Treasury and paid by taxpayers for many years. Indeed, GM never sought to contest its liability for the use taxes it paid for years until after the Betten decision, which extended a hope that such a refund claim might be successful. Second, GM did not act in reliance on an expectation its activity would not be taxed. Instead, GM utilized some of its manufactured vehicles for its own business purposes with notice that Treasury had asserted that such activity was taxable. In short, GM did not rely on the preamendment version of the Use Tax Act to its detriment. Third, the Legislature acted promptly in response to the Betten decision to correct what might have resulted in a significant loss of previously collected revenue. Fourth, the nominal period to which the amendment retrospectively applies— five years — cannot be said to extend beyond the taxpayers’ interest in finality and repose because the period of retroactivity is consistent with the applicable statute of limitations. Moreover, although 2007 PA 103 applies in the case of GM beyond the statute of limitations’ general rule, it does so only because GM voluntarily waived application the statute of limitations. By its waiving application of the statute of limitations, we conclude that GM has also waived any interest it may have had under the Due Process Clause to “finality and repose.” Carlton, 512 US at 37-38 (O’Connor, J., concurring). Finally, the period of retroactive application for 2007 PA 103 is comparable to the time frames of other retroactive legislation that this Court, other state courts, and federal courts have held were within the modesty limits of the Due Process Clause.
In summary, GM has not overcome the presumption that 2007 PA 103 is constitutional, and the Court of Claims erred by concluding otherwise. 2007 PA 103 does not violate due process because the act “is rationally related to a legitimate legislative purpose” — the limit ing of an interpretation of the Use Tax Act that might have caused significant and unanticipated loss of tax revenue that had been collected in good faith. See Carlton, 512 US at 32, 35. To the extent the Due Process Clause limits the reach of retroactive legislation to only a modest time frame, that limitation was not exceeded here. 2007 PA 103 does not readjust rights and burdens or upset settled expectations such that GM’s “interest in finality and repose” exceeds the state’s interest in revising the Use Tax Act to protect the precarious public treasury from refund claims that are as much as 11 years old. GM does not have a protected, vested right to the continuation of a tax statute, and the period of retroactivity here does not exceed the limits of the Due Process Clause. The Court of Claims’ ruling to the contrary must be reversed.
IV SPECIAL LEGISLATION
Treasury argues that the Court of Claims clearly erred by ruling that 2007 PA 103 violates the Michigan constitutional provision restricting special legislation. We agree.
Const 1963, art 4, § 29 provides:
The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by two-thirds of the members elected to and serving in each house and by a majority of the electors voting thereon in the district affected. Any act repealing local or special acts shall require only a majority of the members elected to and serving in each house and shall not require submission to the electors of such district.
“ ‘The mere fact that a law only applies... to a limited number does not make it special instead of general. It may be general within the constitutional sense and yet, in its application, only affect one person or one place.’ ” Rohan v Detroit Racing Ass’n, 314 Mich 326, 349; 22 NW2d 433 (1946) (citation omitted). If a law is general and uniform in its operation upon all persons in like circumstances, it is general in the constitutional sense. Id at 350.
In this case, no language in 2007 PA 103 limits its application to only GM. Further, GM concedes that in its prospective application the act is “clearly general legislation applicable to all taxpayers.” Yet there is nothing in the retrospective application of the law that changes its general character. While it is clear that 2007 PA 103 was intended to preclude large refund claims, particularly by automobile manufacturers, the language used by the statute is general and has broad application. The only evidence that GM asserts supports its claim is Treasury’s revised estimates of lost revenue when it learned that other automobile manufacturers (Ford Motor Company and DaimlerChrysler Corporation) did not intend to seek use tax refunds in the wake of the Betten decision. However, the fact that other vehicle manufacturers decided not to seek a use tax refund does mean that the act did not apply to Ford and DaimlerChrysler. Instead, other manufacturers might have reasoned that the Legislature' would act promptly to adopt legislation “to obviate a judicial interpretation.” GMAC, 286 Mich App at 380. If so, those taxpayers might have rationally decided to invest resources on manufacturing and marketing automobiles rather than pursuing a likely futile refund claim for use taxes that had been paid and accounted for in prior years. In sum, nothing on the face of 2007 PA 103, or any evidence presented below, supports the conclusion that 2007 PA 103 is special legislation governed by Const 1963, art 4, § 29.
The Court of Claims’ reasoning regarding the lack of legislative committee hearings, which GM does not appear to adopt, also does not support the court’s ruling. The Court of Claims cited no legal authority for concluding that the lack of committee hearings was a basis for holding that 2007 PA 103 is special legislation. As Treasury argues, GM participated in the political process during the Legislature’s deliberative process, and 2007 PA 103 was adopted in compliance with all requisite procedural requirements. Although no committee hearings were held on HB 4882 before its adoption, it became law because it satisfied the constitutional requirements of bicameralism and presentment. Const 1963, art 4, §§ 22, 26, and 33. The lack of committee hearings is irrelevant. “[T]he Journals of the House and Senate are conclusive evidence of those bodies’ proceedings, and when no evidence to the contrary appears in the journal, [courts] will presume the propriety of those proceedings.” Michigan Taxpayers United, Inc v Governor, 236 Mich App 372, 379; 600 NW2d 401 (1999). Nothing here rebuts the presumption of propriety regarding the enactment of 2007 PA 103. The Court of Claims must be reversed on this issue.
V STATUTORY CONSTRUCTION
Treasury argues that the Court of Claims abused its discretion by allowing GM to amend its complaint and erred by ruling that GM qualified for an exemption from use taxes for demonstration purposes. Treasury also asserts the exemption provided by MCL 205.94(l)(c)(iii) is only available for new car dealers. We disagree.
Treasury has not established that the Court of Claims abused its discretion by allowing GM to amend its complaint to add a claim that its program vehicles were also exempt under the “demonstration purposes” exemption. While the amendment asserted a new legal theory, it did not raise a new claim and Treasury has not shown that granting the amendment prejudiced it.
Furthermore, nothing in the first clause of MCL 205.94(l)(c)(iii) limits its application to new car dealers as Treasury asserts. The plain language of the amended statute provides in part: “The following are exempt from the tax levied under this act...: Properly purchased for demonstration purposes.” MCL 205.94(l)(c)(iii). Although the subparagraph places limits on the exemption for new vehicle dealers, the “demonstration purposes” exemption is not itself limited to new car dealers. Nevertheless, for the reasons set forth later, we conclude as a matter of statutory construction that GM does not qualify for either the “purchased for resale” or “purchased for demonstration purposes” exemption because it manufactured rather than purchased its program vehicles and because its program vehicles were not used for demonstration purposes at the retail sales level.
Although GM asserts it clearly was entitled to an exemption from use taxation under the preamendment version of MCL 205.94(l)(c) for “[pjroperty purchased for resale, demonstration purposes,” its actions in not filing a claim for a refund until after this Court decided Betten belie this contention. We agree with Treasury that clear differences exist between GM and the Betten plaintiffs. Most notably, GM manufactures new ve hides, marketing them through retailers like the Betten plaintiffs, who were new and used vehicle dealers. The Betten plaintiffs “purchased for resale” the vehicles in their inventory, and the exemption of MCL 205.94(l)(c) remained despite other interim business use before a resale occurred. Betten, 272 Mich App at 20, 23. This Court rejected Treasury’s argument that the Betten plaintiffs’ vehicles were “converted” to a taxable use by applying dictionary definitions to the word “consumer” in MCL 205.97, Betten, 272 Mich App at 22, but our Supreme Court criticized using a dictionary when the Use Tax Act provided its own definitions, Betten, 478 Mich App at 864. Thus, the Use Tax Act’s own definitions must be applied if available. Before the enactment of2007 PA 103, the Use Tax Act defined “purchase” as follows:
“Purchase” means to acquire for a consideration, whether the acquisition is effected by a transfer of title, of possession, or of both, or a license to use or consume; whether the transfer is absolute or conditional, and by whatever means the transfer is effected; and whether consideration is a price or rental in money, or by way of exchange or barter. [MCL 205.92(e), as amended by 2004 PA 172 (emphasis added).]
As defined by MCL 205.92(e), “purchase” explicitly requires an acquisition of property for consideration of something of value — money or other property. Also, “purchase” explicitly requires a transfer of property, either of title or possession, or a license to use or consume, which implicitly must occur from one person to another. While GM might have acquired the materials and labor necessary to assemble its vehicles, it did not acquire them for consideration in a transfer from another person. The Court of Claims noted that “GM manufactured cars for resale and demonstration purposes through its Vehicle Programs in question.” (Emphasis added.)
GM admits that it manufactured the majority of its program vehicles but that some were obtained from its subsidiaries. We conclude that GM’s acquisition of vehicles from its subsidiaries does not come within the definition of “purchase” under MCL 205.92(e) because a transfer for consideration is explicitly required by subsection (e), which implicitly requires a transfer from one person to another. The use tax applies to a “person,” MCL 205.93(1), and “person” is defined to include any “firm, partnership, joint venture, association,. . . company, ... or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.” MCL 205.92(a). GM and its subsidiaries “acting as a unit” constitute a “person” under the Use Tax Act, and that person manufactures vehicles that are marketed to the public through retail dealers. We hold that GM cannot “purchase” vehicles from itself (its subsidiaries) to qualify for a use tax exemption under MCL 205.94(l)(c).
The Legislature in adopting the Use Tax Act clearly recognized the distinction between the words “purchase” and “manufacture.” In the very next subdivision after defining “purchase,” MCL 205.92(f) defines the word “price,” in part, by defining “manufacture.” In relation to defining “price” for tangible personal property affixed to real estate, MCL 205.92(f) provided before amendment by 2007 PA 103: “For purposes of this subdivision, ‘manufacture’ means to convert or condition tangible personal property by changing the form, composition, quality, combination, or character of the property. . . .” Thus, we find that GM did not “purchase” its inventory of vehicles as “purchase” is defined by the Use Tax Act; it “manufactured” them. Consequently, GM did not have a vested right to a refund of use tax paid under the “purchased for resale” exemption as it existed before the enactment of 2007 PA 103. In addition, this same analysis applies to the “purchased for demonstration purposes” exemption as it existed before the enactment of 2007 PA 103. This is because the word “purchased” in the phrase “[pjroperty purchased for resale [or] demonstration purposes” in MCL 205.94(l)(c) modified both “resale” and “demonstration purposes.” In other words, a prerequisite for the application of either exemption is that property be “purchased” for either “resale” or “demonstration purposes.” Since GM did not “purchase” its vehicles, but “manufactured” them, GM does not qualify for either exemption. This conclusion is buttressed by the rule of statutory construction that tax exemptions must be strictly construed, must never be implied, and must be expressed by the Legislature in clear and unmistakable terms. See GMAC, 286 Mich App at 375.
This analysis applies with respect to GM’s claims for a refund under the Use Tax Act both before and after the act’s amendment by 2007 PA 103. Under both versions of the act, exemptions for resale and demonstration purposes depend on property being “purchased” for those purposes. Although the 2007 legislation did amend the definition of “purchase” to include conversion from a nontaxable use to a taxable use, this amendment does not assist GM. Specifically, 2007 PA 103 added to MCL 205.92(e) the following: “Purchase includes converting tangible personal property acquired for a use exempt from the tax levied under this act to a use not exempt from the tax levied under this act.” But the definition of “purchase” as discussed earlier remains. The amended definition does not help GM because its vehicles are manufactured rather than purchased. A conversion from nontaxable to taxable use cannot occur if the property and its use do not qualify initially as exempt.
Moreover, we conclude Treasury correctly asserts the “demonstration purposes” exemption is intended to apply at the retail sales level, i.e., to permit use without tax of demonstrator vehicles for the purpose of inducing actual sales from actual prospective consumers. This conclusion is supported by GM’s own argument that this Court should apply the Michigan Vehicle Code definition of “demonstrator” as “a motor vehicle used by a prospective customer or a motor vehicle dealer or his agent for testing and demonstration purposes.” MCL 257.11a. This definition describes a dealer’s, dealer’s agent’s, or customer’s (an actual retail purchaser) testing or demonstrating a motor vehicle. Dealers sell and customers buy. So the only reasonable reading of this definition is that it relates to “testing and demonstration” in furtherance of a potential retail sale. In contrast, GM uses its program vehicles for purposes of quality control and to increase awareness in the general public of its products. As GM summarizes in its brief on appeal, “the purpose of the Vehicle Programs is to collect data essential to the evaluation of product quality and performance in a continuous and timely manner, and to increase the visibility of, and consumer interest in, GM vehicles.” Because GM does not use its program vehicles for the purpose of inducing actual retail sales by demonstrating vehicles to actual customers hut rather for quality control and marketing, it does not qualify for the “purchased for demonstration purposes” exemption of MCL 205.94(l)(c)(iii).
Given our construction of the statute, we hold that the Court of Claims erred by ruling that “GM is exempt from paying use tax on all vehicles used for resale and demonstration purposes.” GM does not qualify for the resale exemption or the “demonstration purposes” exemption under either version of the Use Tax Act. Indeed, this construction of the statute renders GM’s constitutional claims moot because even if we were to determine that 2007 PA 103 was unconstitutional, GM would not be entitled to the relief it seeks, a refund of use taxes paid. An issue is moot if an event has occurred that renders it impossible for the court to grant relief. City of Warren v Detroit, 261 Mich App 165, 166 n 1; 680 NW2d 57 (2004). An issue is also moot when a judgment, if entered, cannot for any reason have a practical legal effect on the existing controversy. People v Richmond, 486 Mich 29, 34-35; 782 NW2d 187 (2010). But we may review a moot issue if it is publicly significant and likely to recur, yet may evade judicial review. City of Warren, 261 Mich App at 166 n 1. We have done so here.
In sum, the Court of Claims erred by ruling as a matter of statutory construction that “GM is exempt from paying use tax on all vehicles used for resale and demonstration purposes.” GM did not “purchase” its vehicle inventory as that word is defined by MCL 205.92(e); rather, GM manufactured those vehicles. MCL 205.94(l)(c) requires that property be purchased for resale or demonstration purposes to assert those exemptions from use taxation. Moreover, because GM does not use its program vehicles for the purpose of inducing actual retail sales by demonstrating vehicles to actual customers but rather for quality control and marketing in the broad sense, it does not qualify for the “purchased for demonstration purposes” exemption of MCL 205.94(l)(c)(iii), as amended by 2007 PA 103.
VI. GM’S CROSS-APPEAL
GM presents several arguments in its cross-appeal as alternative grounds to affirm the Court of Claims’ ruling in its favor. Generally, an issue is not properly preserved if it is not raised before, addressed by, or decided by the lower court or administrative tribunal. Polkton Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). Although this Court need not address an unpreserved issue, it may overlook preservation requirements when the failure to consider an 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. Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006). Because the issues GM raises present questions of law and the facts necessary to resolve them have been presented, this Court may address them. Id. In addition, Treasury concedes that the issues GM raises on cross-appeal have been properly preserved. Because the parties have briefed the issues raised, there is no impediment to this Court’s deciding them.
A. THE TAKING CLAUSE
GM argues that the retroactive application of 2007 PA 103 denied it a vested right to a refund of use taxes paid in error, which violates both the Due Process Clause and the Taking Clause. US Const, Am Y. We disagree.
We reject GM’s claim to a vested right and its due process arguments for the reasons already discussed. GM’s Fifth Amendment argument also fails. The government’s exercise of its taxing power “does not constitute a Fifth Amendment taking unless the taxation is so ‘arbitrary as to constrain to the conclusion that it was not the exertion of taxation, but a confiscation of property....’” Quarty v United States, 170 F3d 961, 969 (CA 9, 1999), quoting Brushaber v Union Pacific R Co, 240 US 1, 24; 36 S Ct 236; 60 L Ed 493 (1916). In this case, 2007 PA 103 furthered a legitimate state interest of preserving the public treasury, and its retroactive application is rationally related to this legitimate state interest. Consequently, 2007 PA 103 does not violate the Due Process Clause. Carlton, 512 US at 30-31, 33. Having satisfied the Due Process Clause, it would be illogical to find the retroactive application of 2007 PA 103 so arbitrary as to offend the Taking Clause. See Quarty, 170 F3d at 969. GM’s Taking Clause claim fails to serve as an alternative basis to sustain the Court of Claims’ ruling.
B. THE TITLE-OBJECT CLAUSE
GM argues that the title of 2007 PA 103 fails to satisfy the Title-Object Clause of the Michigan Constitution. Const 1963, art 4, § 24 provides in part: “No law shall embrace more than one object, which shall be expressed in its title.” The “object” of a law is its general purpose. GM contends that the title of 2007 PA 103 does not mention that it is given retroactive effect, clarifies the Betten decision, eliminates GM’s resale exemption, and redefines the term “convert.” Therefore, GM argues, the act violates Const 1963, art 4, § 24. We disagree.
The purpose of the Title-Object Clause is to ensure “that legislators and the public receive proper notice of legislative content and prevents deceit and subterfuge.” Pohutski v Allen Park, 465 Mich 675, 691; 641 NW2d 219 (2002). “The ‘object’ of a law is defined as its general purpose or aim.” Id. The constitutional requirement should be construed reasonably and permits a bill enacted into law to “include all matters germane to its object, as well as all provisions that directly relate to, carry out, and implement the principal object.” Id.
Finally, the constitutional requirement is not that the title refer to every detail of the act; rather, “[i]t is sufficient that ‘the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose [Id. at 691-692, quoting City of Livonia v Dep’t of Social Servs, 423 Mich 466, 501; 378 NW2d 402 (1985) (citations omitted).]
Enrolled House Bill 4882 that the Governor signed into law on October 1, 2007, becoming 2007 PA 103, is titled:
AN ACT to amend 1937 PA 94, entitled “An act to provide for the levy, assessment and collection of a specific excise tax on the storage, use or consumption in this state of tangible personal property and certain services; to appropriate the proceeds thereof; and to prescribe penalties for violations of the provisions of this act,” by amending sections 2, 3, 4, and 7 (MCL 205.92, 205.93, 205.94, and 205.97), sections 2, 3, and 4 as amended by 2004 PA 172.
The title thus states that the act’s general object is to amend §§ 2, 3, 4, and 7 of the Use Tax Act, which are codified in MCL 205.92, 205.93, 205.94, and 205.97. This title clearly states the act’s general purpose, and all details in 2007 PA 103 are germane to this object. The particular details of the amendments of §§ 2, 3, 4, and 7 of the Use Tax Act need not be specified in the amendatory act’s title to withstand scrutiny under Const 1963, art 4, § 24. Pohutski, 465 Mich at 691-692. Indeed, the title succinctly states its one, and only one, general purpose. Nothing more is constitutionally required. GM has not overcome the presumption that 2007 PA 103 is constitutional. Health Care Ass’n Workers Compensation Fund v Bureau of Worker’s Compensation Dir, 265 Mich App 236, 251; 694 NW2d 761 (2005). GM’s Title-Object Clause argument fails to serve as an alternative basis to sustain the Court of Claims’ ruling.
C. PERIOD OF RETROACTIVITY
GM argues that assuming that 2007 PA 103 is constitutional, its plain terms limit its retroactive effect to tax periods beginning September 30, 2002. GM argues that, at a minimum, it is entitled to a tax refund for the period from October 1, 1996, to September 29, 2002. GM contends that the word “and” in enacting section 2 of 2007 PA 103 establishes two conditions for the amendment’s retroactive application, both of which must be satisfied. We disagree.
First, GM’s underlying premise — that it is entitled to a use tax refund under the Use Tax Act as it existed before the enactment of 2007 PA 103, as interpreted by the Betten decision — is misplaced for the reasons discussed in part V of this opinion. Second, the Legislature’s use of the conjunction “and” does not serve to establish two criteria for the retroactive application of 2007 PA 103; rather, it sets alternative temporal markers for the extent of the act’s retroactive application.
When drafting statutes, the Legislature often misuses the words “and” and “or.” Miller-Davis Co v Ahrens Const, Inc, 285 Mich App 289, 308; 777 NW2d 437 (2009). The words used in a statute must be construed in light of the general purpose the Legislature sought to accomplish. Id. Further, “[o]nce the intention of the Legislature is discovered, this intent prevails regardless of any conflicting rule of statutory construction.” GMAC, 286 Mich App at 372. The Legislature expressly sought to apply 2007 PA 103 retroactively, and the phrase at issue sets the outer limits — not conditions — for that retroactivity.
“The term ‘and’ is defined as a conjunction, and it means ‘with; as well as; in addition to[.]’ ” Amerisure Ins Co v Plumb, 282 Mich App 417, 428; 766 NW2d 878 (2009), quoting Random House Webster’s College Dic tionary (1997). Thus, the pertinent sentence may be read: “This amendatory act is retroactive and is effective beginning September 30, 2002 [as well as; in addition to] for all tax years that are open under the statute of limitations provided in section 27a of 1941 PA 122, MCL 205.27a.” See enacting section 2 of 2007 PA 103. Because MCL 205.27a, to which the Legislature specifically referred when it set its temporal limits for retroactivity, permits the tolling of the period of limitations by agreement extending back before September 30, 2002, limiting the retroactive application of 2007 PA 103 to tax periods beginning September 30, 2002, only would render the latter part of the sentence nugatory. We conclude that the Legislature intended to extend the retroactive application of 2007 PA 103 back to September 30, 2002, “as well as” or “in addition to” as far back as any tax year for which the statute of limitations may be open under MCL 205.27a. This interpretation is consistent with the general purpose of the statute to limit refund claims premised on the Betten decision. The Legislature intended that the act apply to all taxpayers that might still be able to claim a refund. GM’s interpretation of the sentence at issue would frustrate the Legislature’s intent. The intention of the Legislature prevails regardless of any conflicting rule of statutory construction. GMAC, 286 Mich App at 372.
D. THE SEPARATION OF POWERS
GM argues that Treasury’s failure to act on GM’s August 25, 2006, refund claim in light of the published Betten decision denied GM its right to due process and also violated the constitutional principle of the separation of powers. We disagree.
GM’s argument on this issue has no merit. Indeed, GM cites no authority for the proposition that a judg ment in favor of one party must be applied to a different person or entity that was not a party to the judgment and has different factual circumstances. Even if GM were correct that it would be entitled to a refund if the principles of Betten were applied to GM’s factual situation, GM cites no authority that would preclude Treasury from litigating whether the Betten rationale should be extended to GM’s factual situation. The failure to cite authority for a position constitutes abandonment of that issue. Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 221; 761 NW2d 293 (2008).
In addition, as discussed already, GM is not entitled to a refund under the statute as amended pursuant to the Due Process Clause. And even under the statute before its amendment, GM was not entitled to a use tax exemption intended for “[pjroperty purchased for resale, demonstration purposes . . . .” MCL 205.94(l)(c), as amended by 2004 PA 172. Finally, Treasury’s actions did not offend the constitutional principle of the separation of powers because by holding GM’s claim in abeyance, Treasury was not reversing, repealing, or otherwise failing to comply with the Betten judgment. See Taxpayers United for the Mich Constitution, Inc v Detroit, 196 Mich App 463, 468-469; 493 NW2d 463 (1992), and Wylie, 293 Mich at 582. This argument fails to serve as an alternative basis to sustain the Court of Claims’ ruling.
VII. CONCLUSION
For the reasons discussed in this opinion, we reverse and remand for entry of judgment in favor of the Department of Treasury. We do not retain jurisdiction. No taxable costs shall be assessed pursuant to MCR 7.219 because questions of public policy are involved.
2002 PA 110 amended MCL 205.93(2), effective March 27, 2002. GM apparently bases the time frames for its refund claims on the effective date of 2002 PA 110, and the parties signed waivers keeping the statute of limitations open for claims dating back to October 1, 1996. MCL 205.27a(3)(b).
Indeed, GM waived this claim by not raising it below. The Court of Claims noted that “[GM] does not claim the legislature’s purpose” in enacting 2007 PA 103 “was illegitimate or arbitrary.”
See GMAC, 286 Mich App at 378 (affirming a seven-year retroactive application of an amendment to MCL 205.54Í); Enterprise Leasing Co of Phoenix v Arizona Dep’t of Revenue, 221 Ariz 123; 211 P 3d 1 (Ariz App, 2008) (approving a six-year period of retroactivity amending pollution control tax credit excluding property attached to motor vehicles); King v Campbell Co, 217 SW3d 862 (Ky App, 2006) (upholding 2005 legislation denying refunds of county taxes overpaid since 1986 under a 2004judicial decision); Miller, 296 SW3d 392 (affirming legislation adopted in 2000 that retroactively ratified a 1988 tax agency policy barring related business entities from fifing unified returns, which a 1994 judicial decision had ruled violated Kentucky law); Zaber v City of Dubuque, 789 NW2d 634 (Iowa, 2010) (approving legislation ratifying city-imposed cable television franchise fees retroactively for 5% years after a court had ruled the fees illegal); Canisius College v United States, 799 F2d 18 (CA 2, 1986) (approving tax legislation with four-year retroactivity that ratified an IRS revenue ruling of doubtful validity); Licari v Internal Revenue Comm’r, 946 F2d 690, 695 (CA 9, 1991) (approving the four-year retroactive application of an enhanced tax penalty approved as “a rational means by which to guard the public fisc by reimbursing the government for heavy burden of investigative and prosecutorial costs incident to ferreting out tax underpayment”); Tate & Lyle, Inc v Internal Revenue Serv Comm’r, 87 F3d 99 (CA 3, 1996) (upholding six-year retroactive application of a tax regulation requiring the taxpayer to use a cash method of accounting); Montana Rail Link, Inc v United States, 76 F3d 991 (CA 9, 1996) (approving four-year retroactive application of a tax statute).
It is not entirely clear whether the Court of Claims based this ruling on the statute as amended by 2007 PA 103 or as the statute existed before the amendment. Because the court cited MCL 205.94(l)(c)(¿¿¿), which reflects the changes in the structure of subdivision (c) made by 2007 PA 103, we assume that the court based its ruling on the amended statute. | [
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Per Curiam.
In this cause of action involving the wrongful-death act, MCL 600.2922 and MCL 600.2922a, defendants appeal by leave granted the trial court’s denial of their motion for summary disposition. On appeal, defendants argue that none of plaintiffs’ claims are compensable under the wrongful-death act. We affirm.
I. SUBSTANTIVE FACTS
As alleged by plaintiffs in their first amended complaint, the medical history of plaintiff Candice Johnson (hereafter Johnson) reflects that her cervix is incompetent. Johnson’s incompetent cervix resulted in her having a number of miscarriages. However, in 1999, defendant Dr. Rajan Pastoriza’s predecessor, Dr. Dennis Means, performed a cerclage on Johnson when she was 16 weeks pregnant. As a result of the procedure, Johnson’s pregnancy proceeded to a full-term vaginal birth in 2000. In 2001, when Johnson was once again 16 weeks pregnant, Dr. Means performed another cerclage, which resulted in that pregnancy reaching 36 weeks. A cesarean section was performed to prevent a breech delivery. In 2002, Dr. Means once again performed a cerclage on Johnson early in the second trimester of a pregnancy. Dr. Means removed the cerclage suture shortly before Johnson vaginally delivered a full-term baby.
Johnson became pregnant again in June 2005. On August 25, 2005, Johnson began receiving treatment from defendant Dr. Rajan Pastoriza and defendant Rajan Pastoriza, M.D., EL.C. Dr. Pastoriza possessed all of Johnson’s previous medical records. An August 25, 2005, note reveals that an ultrasound was scheduled to be conducted at 12 weeks’ gestation with a possible cerclage to follow. On September 9, 2005, Johnson appeared at Foote Hospital in Jackson because of vaginal bleeding. An ultrasound was performed, which showed a live fetus at 12 weeks’ gestation. Personnel at the hospital recommended bed rest and indicated that Johnson should follow up with her obstetrician. Johnson followed up with Dr. Pastoriza on September 13, 19, and 23, as well as on October 6. Dr. Pastoriza’s records from September and October 2005 continued to note Johnson’s history of an incompetent cervix and cerclages.
On October 12, 2005, another ultrasound was ordered because of Johnson’s short cervix. The ultrasound revealed a viable fetus at almost 17 weeks’ gestation. The findings of the ultrasound also revealed that the length of Johnson’s cervix was consistent with the length of Johnson’s cervix when the cerclages were performed during her previous successful pregnancies. On October 19, 2005, during an examination by Dr. Pastoriza, Johnson complained of cramping and described a “feeling like pre-term labor.” Thereafter, Johnson asked Dr. Pastoriza to perform a cerclage, but he refused to do so.
On November 1, 2005, Johnson went into premature labor, which resulted in advanced cervical dilation. She went to Foote Hospital and was subsequently transferred to Sparrow Hospital in Lansing to receive an emergency cerclage. The emergency cerclage did not prevent the baby’s premature birth at 20 weeks’ gestation, and, as alleged in the first amended complaint, “Johnson lost the 20 week old fetus shortly after the transfer.”
Subsequently, Johnson attempted to have another child and received a cerclage. However, Johnson asserts that as a result of a significant and permanent cervical tear, which she suffered during the emergency cerclage at Sparrow Hospital, the cerclage during this pregnancy failed. Dr. Michael Berke, a board-certified obstetrician, opined that to a reasonable degree of medical certainty, Johnson’s cervix would never have been permanently torn if Dr. Pastoriza had timely performed a cerclage in October 2005. Dr. Berke also opined that to a reasonable degree of medical certainty, Johnson would never have another vaginal birth and that it would be difficult for her to successfully give birth to another child.
II. PROCEDURAL HISTORY
Plaintiffs, Candice Johnson and Baby Johnson, the child who died following its premature birth on November 1, 2005, subsequently brought suit. Plaintiffs alleged two counts, one of medical malpractice and one of negligence under MCL 600.2922a, which is a portion of the wrongful-death act. MCL 600.2922a(l) provides as follows: “A person who commits a wrongful or negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual, or physical injury to or the death of the embryo or fetus.” Thereafter, defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) on the ground that the wrongful-death act allows recovery for the death of a fetus only when “death as described in section 2922a [MCL 600.2922a]” occurs. Defendants asserted that no “death as described in section 2922a” occurred “because § 2922a clearly requires an affirmative act, as opposed to a nonobservable negligent omission that causes a death.” In contrast, plaintiffs argued that defendant doctor’s refusal to perform the cerclage was an act of commission and, in addition, that MCL 600.2922a ties into the wrongful-death act, which allows actions for the death of a fetus when it is caused by a wrongful act or neglect.
At the September 11, 2008, hearing on the summary disposition motion, defendants also asserted that under MCL 600.2922a(2)(b), acts by medical professionals are specifically excluded. MCL 600.2922a(2)(b) provides that the section allowing for liability does not apply to “[a] medical procedure performed by a physician or other licensed health professional within the scope of his or her practice and with the pregnant individual’s consent or the consent of an individual who may lawfully provide consent on her behalf or without consent as necessitated by a medical emergency.” The court said that it interpreted the statute as saying that the provision only applies when the act in question is necessitated by a medical emergency. Defendants argued that the medical-emergency provision relates to the notion of consent and does not apply when a patient is incapable of giving consent. Plaintiffs argued that MCL 600.2922a(2)(b) by its own terms applies to the performance of a medical procedure, but noted that their cause of action was based on the failure to perform a medical procedure.
Defendants also argued that
to the extent [Johnson] is seeking damages for her own emotional distress under a “bystander” theory for witnessing injury to the fetus, such a claim should be dismissed pursuant to MCR 2.116(C)(8) because it cannot be brought outside the wrongful death act, and because plaintiff failed to allege the elements of such a claim.
The court noted that that argument would cause Johnson to request to amend her complaint, and defense counsel replied that that would be futile because, as just argued, Johnson could not state a wrongful-death claim in light of that act’s requirement of a “death as described in section 2922a” in order to recover for the death of a fetus.
Lastly, defendants argued that summary disposition of Johnson’s claim for emotional damages for grief and sorrow for her baby’s death was proper under the ruling in McClain v Univ of Mich Bd of Regents, 256 Mich App 492; 665 NW2d 484 (2003). Johnson argued that she had also suffered and alleged physical injuries as well as emotional distress. Johnson had alleged that she had an unsuccessful emergency cerclage just before the premature birth. Her attorney told the court that the emergency cerclage ripped, causing physical injury. She also argued that McClain did not do away with actions on behalf of a mother because MCL 600.2922a(3) states, “This section does not prohibit a civil action under any other applicable law.”
The trial court denied defendants’ motion for summary disposition, ruling that Johnson had alleged that she had asked defendant doctor to perform a cerclage, but he did not, and that could be interpreted as an affirmative act. The court also said:
And taking all the facts in the light most favorable to the plaintiff, I don’t believe that I can rule this, as a matter of law, that they cannot develop a cause of action either by amending under 2922a and filing [inaudible] that statute through the Wrongful Death Act, or pursuing, as is now the case, under McClain.
Defendants subsequently sought leave to appeal, which this Court granted in an unpublished order, entered February 26, 2009 (Docket No. 288338).
III. APPLICABLE STANDARDS OF REVIEW
This Court reviews de novo a motion for summary disposition. Teel v Meredith, 284 Mich App 660, 662; 774 NW2d 527 (2009). This Court must review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). Although defendants initially brought their motion pursuant to multiple court rules, it was subsequently conceded that the motion was pursuant solely to MCR 2.116(C)(8). A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint. Dolan v Continental Airlines, 454 Mich 373, 380; 563 NW2d 23 (1997). The motion may not be supported with documentary evidence, affidavits, admissions, or depositions because pursuant to MCR 2.116(G)(5), the trial court must only rely on the pleadings. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992). However, “the mere statement of a pleader’s conclusions, unsupported by allegations of fact, will not suffice to state a cause of action.” ETT Ambulance Serv Corp v Rockford Ambulance, Inc, 204 Mich App 392, 395; 516 NW2d 498 (1994). A motion under MCR 2.116(C)(8) may be granted only when the claims alleged “are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” Wade, 439 Mich at 163.
Additionally, this appeal requires this Court to consider the meaning of MCL 600.2922 and MCL 600.2922a. The meaning of a statute is a question of law that is reviewed de novo. Lesner v Liquid Disposal, Inc, 466 Mich 95, 99; 643 NW2d 553 (2002). As provided in USAA Ins Co v Houston Gen Ins Co, 220 Mich App 386, 389-390; 559 NW2d 98 (1996):
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. [Citations omitted.]
If judicial construction is warranted, this Court should construe the statute according to its common meaning, and common sense should not be abandoned. Jordan v Jarvis, 200 Mich App 445, 451; 505 NW2d 279 (1993); Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). “Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary definition for those meanings.” Hamed v Wayne Co, 284 Mich App 681, 694; 775 NW2d 1 (2009).
IV PLAINTIFFS’ CLAIM FOR THE DEATH OF BABY JOHNSON
Defendants first assert that the trial court erred by denying their motion for summary disposition regarding plaintiffs’ claim arising out of the death of plaintiff Baby Johnson. We disagree.
Defendants argue that summary disposition should have been granted because plaintiffs cannot state a claim for a “death as described in” MCL 600.2922a. MCL 600.2922(1), as amended by 2005 PA 270, currently provides:
Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony.
At the time of the alleged negligence in this matter, MCL 600.2922, as amended by 2000 PA 56, was slightly different and did not include the language regarding “death as described in section 2922a.” Therefore, before determining whether MCL 600.2922 allows for a recovery in this instance, this Court must first determine which version of that statute applies.
It has been held that in determining whether a statute should be applied prospectively or retroactively, the intent of the Legislature controls. Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001). Specifically, “a statute is presumed to operate prospectively unless the Legislature either expressly or impliedly indicates an intention to give the statute retroactive effect.” Allstate Ins Co v Faulhaber, 157 Mich App 164, 166; 403 NW2d 527 (1987). However, as this Court has previously explained, the rule that a statute is presumed to operate prospectively
does not apply to statutory amendments which can be classified as remedial or procedural in nature. Further, a statute which operates in furtherance of a remedy already existing and which neither creates new rights nor destroys existing rights is held to operate retroactively unless a contrary legislative intent is manifested.
A statute is considered remedial or procedural if it is designed to correct an existing oversight in the law or redress an existing grievance. Those statutory amendments which imply an intention to reform or extend existing rights are generally viewed as remedial. [Id. at 166-167 (citations omitted).]
In addition, “[a]n amendment may apply retroactively where the Legislature enacts an amendment to clarify an existing statute and to resolve a controversy regard ing its meaning.” Mtg Electronic Registration Sys, Inc v Pickrell, 271 Mich App 119, 126; 721 NW2d 276 (2006) (emphasis added).
In this case, it is clear that MCL 600.2922 was amended to add the language “or death as described in section 2922a” in order to clarify both MCL 600.2922 and MCL 600.2922a and to resolve a controversy regarding their meaning. During the discussion of the proposed 2005 amendment of MCL 600.2922 to add the language “or death as described in section 2922a,” it was indicated during deliberations in the House of Representatives that MCL 600.2922a had been enacted to “amend the... wrongful death statute ... to extend... civil penalties to conduct causing the death of an embryo or fetus.” House Legislative Analysis, HB 4777, October 24, 2005, at l. The House legislative analysis went on to indicate:
It was believed at the time that [the enactment of MCL 600.2922a] closed the loophole in the wrongful death statute and so would apply to all situations in which conduct toward a pregnant woman resulted in the death of the embryo or fetus she carried.
However, in subsequent civil actions, courts around the state have apparently only looked at Section 2922 of the wrongful death statute and not Section 2922a. Most notably, in McClain v University of Michigan Board of Regents, 256 Mich App 492 (2003), the court held that “under Michigan law, an action for wrongful death, MCL 600.2922, cannot be brought on behalf of a nonviable fetus, because a nonviable fetus is not a ‘person’ within the meaning of the wrongful-death act.”
Once again, it has become clear that legislation is needed to clarify the legislature’s intent of providing a cause of action for the wrongful death of not only a person, but also an embryo or fetus. [Id. at 1-2.]
On the basis of the foregoing, we conclude that the 2005 amendment of MCL 600.2922, which added the language “or death as described in section 2922a,” was enacted in order to clarify MCL 600.2922 and MCL 600.2922a and to resolve a controversy regarding their meaning. Therefore, MCL 600.2922, as amended by 2005 PA 270, which was immediately effective on December 19, 2005, may be applied retroactively from April 1, 2000, the effective date of the last prior amendment of MCL 600.2922 before its amendment in 2005. Mtg Electronic Registration Sys, 271 Mich App at 126.
Having determined that MCL 600.2922, as amended by 2005 PA 270, retroactively applies, we must next determine whether defendants’ conduct was actionable considering the language of MCL 600.2922a. As noted, MCL 600.2922a provides for liability against “[a] person who commits a wrongful or negligent act against a pregnant individual... if the act results in a ... stillbirth . . . .” Citing that language, defendants argue that plaintiffs are only entitled to relief if they can establish that the injury in question was caused by “a wrongful or negligent act,” as opposed to an omission. We disagree with defendants’ interpretation of the applicable statutory scheme. Pursuant to MCL 600.2922, a party need not establish that the injury was caused by an act. Rather, MCL 600.2922 specifically provides that liability is possible when the injury is “caused by wrongful act, neglect, or fault of another .. . .” While MCL 600.2922 refers to a “death as described in [MCL 600.2922a],” it does not indicate that the death in question must occur in the manner described in MCL 600.2922a. Plaintiffs are alleging that defendants caused their injuries when they neglected to perform the requested procedure in a timely manner. That allegation, when accepted as true, sufficiently established a cause of action pursuant to MCL 600.2922.
We note that even if we were to agree with defendants’ interpretation and conclude that plaintiffs were required to establish that an affirmative act caused the injuries, defendants would still not be entitled to relief. It is improper in this instance to classify defendants’ alleged conduct as an omission. The pleadings on which this motion must be considered note that Johnson specifically requested the performance of a cerclage and defendants consciously chose to deny the request. Their conduct in denying the requested care is tantamount to an affirmative act.
In addition to arguing that a cause of action was not permitted because there was no act that led to plaintiffs’ injuries, defendants also assert that plaintiffs’ cause of action is barred by MCL 600.2922a(2)(b) and that the trial court misinterpreted that statutory provision. While we agree that the trial court’s interpretation of MCL 600.2922a(2)(b) was inaccurate, we further conclude that a correct interpretation of that provision does not lead to the conclusion that plaintiffs’ action was barred. This Court can affirm a trial court’s decision when the trial court reached the correct decision albeit for the wrong reason. Lane v KinderCare Learning Ctrs, Inc, 231 Mich App 689, 697; 588 NW2d 715 (1998).
MCL 600.2922a(2)(b) provides that a person is not liable for damages for the death of an embryo or fetus if the death is the result of “[a] medical procedure performed by a physician or other licensed health professional within the scope of his or her practice and with the pregnant individual’s consent or the consent of an individual who may lawfully provide consent on her behalf or without consent as necessitated by a medical emergency.” The trial court indicated that it interpreted the medical-procedure exception as applying only when the medical procedure was necessitated by a medical emergency. We disagree. MCL 600.2922a(2)(b) provides three exceptions enumerating when a person is not liable for damages for the death of an embryo or fetus: (1) if the death is the result of “[a] medical procedure performed by a physician or other licensed health professional within the scope of his or her practice and with the pregnant individual’s consent,” (2) if the death is the result of “[a] medical procedure performed by a physician or other licensed health professional within the scope of his or her practice and with the” consent of an individual who may lawfully provide consent on the pregnant individual’s behalf, or (3) if the death is the result of “[a] medical procedure performed by a physician or other licensed health professional within the scope of his or her practice” and without consent “as necessitated by a medical emergency.” Thus, the phrase “as necessitated by a medical emergency” is meant to describe only situations in which consent need not be obtained because of the surrounding circumstances. Therefore, because consent is not at issue in the present case, it is irrelevant whether a medical emergency occurred.
MCL 600.2922a(2)(b) clearly provides that there is an exception to MCL 600.2922a if the death of the fetus is the result of the performance of a medical procedure. However, in this case, there was no medical procedure performed. Rather, the claim was based on defendants’ failure or refusal to perform an explicitly requested medical procedure. Consequently, we find that MCL 600.2922a(2)(b) is inapplicable to the factual allegations in this case.
V DAMAGES FOR EMOTIONAL DISTRESS
Defendants next argue that Johnson cannot recover for emotional distress damages because the wrongful-death act only allows for claims brought by a personal representative of the estate of the deceased and does not allow recovery for individual claims. We disagree.
MCL 600.2922 provides, in part:
(2) Every action under this section shall be brought by, and in the name of, the personal representative of the estate of the deceased. Within 30 days after the commencement of an action, the personal representative shall serve a copy of the complaint and notice as prescribed in subsection (4) upon the person or persons who may be entitled to damages under subsection (3) in the manner and method provided in the rules applicable to probate court proceedings.
(3) ... [T]he person or persons who may be entitled to damages under this section shall be limited to any of the following who suffer damages and survive the deceased:
(a) The deceased’s spouse, children, descendants, parents, grandparents, brothers and sisters, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of death of the deceased.
(b) The children of the deceased’s spouse.
(c) Those persons who are devisees under the will of the deceased, except those whose relationship with the decedent violated Michigan law, including beneficiaries of a trust under the will, those persons who are designated in the will as persons who may be entitled to damages under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that trust in the will of the deceased.
(6) In every action under this section, the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased....
(d) After a hearing by the court, the court shall order payment from the proceeds of the reasonable medical, hospital, funeral, and burial expenses of the decedent for which the estate is liable. The proceeds shall not be applied to the payment of any other charges against the estate of the decedent. The court shall then enter an order distributing the proceeds to those persons designated in subsection (3) who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court or jury considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased. If there is a special verdict by a jury in the wrongful death action, damages shall be distributed as provided in the special verdict.
(7) A person who may be entitled to damages under this section must present a claim for damages to the personal representative on or before the date set for hearing on the motion for distribution of the proceeds under subsection (6). The failure to present a claim for damages within the time provided shall bar the person from making a claim to any of the proceeds.
Thus, pursuant to MCL 600.2922(2), an action under the wrongful-death act must be brought in the name of the personal representative of the estate of the deceased. In addition, although the claim is brought in the name of the personal representative, the persons who may be entitled to damages must submit a claim for those damages to the personal representative. MCL 600.2922(7). The trial court or the jury then awards the amount of damages that it believes is fair and equitable considering the amount of damages sustained by each person and the estate of the deceased. MCL 600.2922(6)(d). Consequently, pursuant to the plain language of the statute, an individual cannot maintain an action in his or her name under the wrongful-death act. MCL 600.2922(2); USAA Ins Co, 220 Mich App at 389-390. However, although plaintiffs did not properly bring their claim in the name of the personal representative, but only in the names of Johnson and her baby who died following its premature birth on November 1, 2005, the trial court clearly stated in its order denying defendants’ motion for summary disposition that “plaintiffs must appoint a personal representative for the estate of baby Johnson and amend the complaint to bring such a claim through the wrongful death act.” Plaintiffs were properly granted leave to amend their complaint. MCR 2.116(I)(5) provides that when summary disposition is sought “based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified.” The deficiency in plaintiffs’ complaint can be corrected through amendment. Therefore, summary disposition would have been improper.
Finally, defendants also argue that the wrongful-death act is the exclusive remedy in this case because McClain was superseded by the 2005 amendment of MCL 600.2922 when that amendment eliminated any individual claim of a mother outside the wrongful-death act. In the alternative, defendants argue that if McClain remains valid, this Court should overrule that decision because it was wrongly decided. We conclude that the holding in McClain is still valid, and we refrain from holding that it was wrongly decided.
In McClain, 256 Mich App at 496, the plaintiff filed a medical-malpractice action relating to the death of her fetus. The Court indicated that the wrongful-death act, specifically MCL 600.2922, did not apply to the case because MCL 600.2922 dealt with a person and not a nonviable fetus. Id. at 495-496. Thus, the Court specifically indicated that the parent in that case could not recover damages for the loss of society and companionship. Id. The Court, however, indicated that a “plaintiffs cause of action for damages in her own right as a result of her miscarriage is well grounded in Michigan law” and, thus, that the plaintiff could recover damages that are recoverable in a tort action. Id. at 496. The Court went on to conclude that the plaintiff could recover damages for emotional distress, mental anguish, and grief and sorrow. Id. at 500-503. Further, other damages would be available to a plaintiff who could prove them, such as damages for physical pain and suffering, fright, shock, denial of social pleasure and enjoyment, embarrassment, humiliation, or other appropriate damages. Id. at 498-499.
Defendants’ contention that McClain was superseded by the 2005 amendment of MCL 600.2922 is without merit. The only language that was added to MCL 600.2922 as a result of the 2005 amendment was the language “or death as described in section 2922a.” That language appears to have only been added to clarify that a wrongful-death action can be brought not only for the death of a person, pursuant to MCL 600.2922, but also for the death of an embryo or fetus, pursuant to MCL 600.2922a. There is no indication in the statute or in the legislative history of the enactment of the 2005 amendment of MCL 600.2922 that the Legislature intended to supersede the general proposition that a plaintiff can bring a cause of action for damages in the plaintiffs own right as a result of a miscarriage in order to recover tort damages. Absent any evidence of the Legislature’s intent to eliminate a plaintiffs ability to bring such a cause of action, it would be improper for this Court to conclude that McClain is no longer good law regarding that point. Furthermore, we are not persuaded by defendants’ assertions that McClain was incorrectly decided. As a result, defendants are not entitled to relief.
VI. CONCLUSION
When viewing the evidence in the light most favorable to plaintiffs, we conclude that the trial court properly denied defendants’ motion for summary disposition regarding each count of plaintiffs’ complaint and properly granted plaintiffs an opportunity to amend that complaint to comply with the statutory requirements.
Affirmed.
DAVIS, EJ., did not participate.
“[L]egislative bill analyses are not official statements of legislative intent” but nonetheless “may be of probative value.” Seaton v Wayne Co Prosecutor (On Second Remand), 233 Mich App 313, 321 n 3; 590 NW2d 598 (1998) (citing cases). | [
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] |
Bandstra, J.
In Docket No. 292122, plaintiff, Haring Charter Township, appeals by leave granted the May 4, 2009, order granting partial summary disposition in favor of defendant, city of Cadillac. In Docket No. 292164, plaintiff, Selma Township, appeals as of right the May 4, 2009, order granting summary disposition in favor of defendant, city of Cadillac. We affirm.
i. facts and proceedings below
These consolidated cases arise from a dispute about the scope and meaning of contracts between plaintiffs and defendánt for the provision of wastewater treatment services to the townships. By their express terms, these contracts expire on May 12, 2017. After defendant informed plaintiffs that it did not intend to renew the contracts, plaintiffs filed the instant actions asserting that defendant is obligated to continue providing waste-water treatment and disposal services to them for the “design life” of the treatment system, which plaintiffs assert to be at least 75 years. Plaintiffs do not dispute that the contracts specify an expiration date of May 12, 2017, but they argue that this date applies only to the particular terms and conditions set forth in the contracts and not to defendant’s obligation to provide wastewater treatment services. Defendant moved for summary disposition, asserting that the contracts expire on May 12, 2017, as clearly and explicitly stated therein, and-that it has no duty to provide wastewater treatment services to plaintiffs beyond that date. The trial court agreed, and granted defendant’s motion.
A. BACKGROUND
In 1975, having become concerned about water quality in Lake Cadillac and Lake Mitchell, plaintiffs, defendant, Cherry Grove Township, and Wexford County (the County), prepared a “Facilities Plan,” as part of an application for grant funding under the Federal Water Pollution Prevention and Control Act of 1972, 33 USC 1251 et seq., (more commonly referred to as the “Clean Water Act” or “CWA”) for the expansion and improvement of defendant’s wastewater treatment facilities to service the region. Required as part of the grant application process, the Facilities Plan sought “to define the wastewater collection needs in the City of Cadillac for the next twenty year period” and to project the needs of the townships for wastewater treatment “through the year 1995.” It originally envisioned eleven wastewater treatment service districts, primarily within the surrounding townships, creating a wastewater “treatment loop” around Lakes Mitchell and Cadillac to protect the lakes from adverse environmental effects arising from the presence and use of septic systems to manage waste. However, the Facilities Plan was amended by the parties to reflect that local political processes resulted in only certain service districts being approved by local governments for subsequent design and construction. The remaining service districts, including Haring Township, were not included in the initial implementation of the treatment system.
The portion of the Facilities Plan authored by the County utilized the following depreciation schedule, “assuming zero salvage value at the end of the period,” when analyzing the cost effectiveness of various approaches to wastewater treatment for the affected areas:
Land Does not Depreciate
Structures (concrete, piping, earthwork, etc.) 40 years
Process Equipment (lift stations, aeration equip., etc.) 20 "Years
Auxiliary equipment (electrical, lab equipment, auxiliary power, etc) 15 years
In this context, the County represented that no component of the treatment works, other than the land upon which it sits, had a service life longer than 40 years. Observing that the future projections would entirely consume the then-existing capacity of the treatment plant in 20 years, defendant, in its portion of the Facilities Plan, set treatment plant expansion for 1990.
Ultimately, defendant received approximately $5.3 million in grant funds for expanding and improving its existing treatment facility in accordance with the Facilities Plan. In 1977, defendant and the Wexford County Board of Public Works (on behalf of the then-participating townships of Selma, Clam Lake, and Cherry Grove) entered into a contract for the collection and treatment of wastewater from those townships (the 1977 Contract). This contract provided that the County would construct and operate sanitary sewer collection systems in the townships (the “County System”) that the County would connect to defendant’s system (the “City System”) for transportation of all wastewater emanating from the County System to defendant’s wastewater treatment plant for treatment and disposal. The 1977 Contract afforded the County certain “capacity rights”: the right to send up to 360,000 gallons of wastewater daily to the City System for treatment and disposal. In exchange for reservation of this capacity, the County (on behalf of the then-participating townships) paid defendant $566,728, an amount constituting 18 percent of the local cost share of construction (including 18 percent of the local cost share of the 1962 construction of defendant’s treatment plant) and corresponding to 18 percent, or 360,000 gallons daily, of the facility’s then-existing treatment capacity of 2.0 million gallons daily (MGD). The 1977 Contract provided further:
1. The City, to the best of its ability, agrees to sell, and the County agrees to purchase, sewage treatment and disposal service for the County System... .
2. It is agreed that those portions of the City System within the City Limits shall remain the sole and exclusive responsibility of the City, for all operations, maintenance, expansions, additions, improvements and administration including review and revision of the charge for treatment.
3. It is agreed that those portions of the County System outside of the City Limits shall remain the sole and exclusive responsibility of the County for all operations, maintenance, expansion, additions, improvements and administration, unless otherwise provided in this Agreement. The County shall have the sole responsibility for expansion of the County System so long as the quantity of wastewater emanating from such County System, as expanded, does not exceed the capacity of the City System available to the County as authorized herein and set forth on Table 1. The County shall be responsible for all costs for distribution, maintenance and collection of charges for the County System.
Finally, the contract specified that it
shall become effective upon execution by the duly authorized representatives of the parties hereto and approval and confirmation by the Commission of the City of Cadillac, the Board of Public Works of the County of Wexford and the Wexford County Board of Commissioners, and shall remain in effect for a period of forty (40) years from the date hereof, and at the end of said forty (40) year period, this agreement may be renewed for successive ten (10) year terms, by mutual agreement. [Emphasis added.]
The effective date of the agreement being May 13,1977, it is undisputed that the terms of the contract expire on May 12, 2017.
By 1980, Haring Township determined that it, too, wished to obtain wastewater treatment services via the County and City Systems. Accordingly, on April 8,1980, the County, acting on behalf of Haring Township, entered into an agreement with defendant for the provision of additional wastewater treatment services to the County to accommodate Haring Township (the 1980 Contract). The 1980 Contract provided that the County would construct and operate a sanitary sewer system in Haring Township, which it would connect to the City System for the transportation of all wastewater emanating from the Haring Township System to defendant’s wastewater treatment plant for treatment and disposal.
Like the 1977 Contract, the 1980 Contract provides that the city agreed to sell and the County agreed to purchase “sewage treatment and disposal service,” for Haring Township, “up to a maximum capacity of 100,000 gallons per day average daily flow,” and the County agreed, “subject to the terms and conditions of an agreement between it and Haring Township,” to pay buy-in costs of $69,283, an amount constituting five percent of the local cost share of construction (including 5 percent of the 70 percent local share of costs of the 1962 construction of defendant’s wastewater treatment plant, as well as of later improvements to the treatment technology) and corresponding to a treatment capacity of 100,000 gallons per day average daily flow, or five percent of the then existing treatment capacity of 2.0 MGD. The 1980 Contract provided further that the
operation, maintenance, expansion, improvements and additions, and administration (including the review and revision of rates and charges charged to users within the City) of the City System shall be and remain the sole and exclusive responsibility of the City. The County shall have no obligation),] liability, or responsibility for the City System.
... [T]he responsibility for operation, maintenance, expansion, additions, improvements, and administration (including review and revision of rates and charges to users outside the City and within the Haring Township System) shall be the sole and exclusive responsibility of the County. The City shall have no obligation, liability, or responsibility for the Haring Township System. The County, subject to the terms and conditions of an agreement between it and Haring Township, shall have the ability to expand the Haring Township System within the [designated geographic] area ..., so long as the quantity of wastewater emanating from the Haring Township System, as expanded, does not exceed the [contracted-for] capacity [of 100,000 gallons per day average daily flow]. The County, subject to the terms and conditions of an agreement between it and Haring Township, shall be responsible for all costs of distribution, maintenance and collection of charges for the Haring Township System.
The 1980 Contract also specified that it
shall become effective only upon its execution by the authorized representatives of the parties hereto after its approval and authorization for execution by the Commission of the City of Cadillac, the Board of. the Department of Public Works and the Wexford County Board of Commissioners and the simultaneous execution of an agreement between the County and Haring Township after approval and authorization of execution of said agreement by the respective parties to that agreement. Once effective, the agreement shall remain in effect until May 12 of the year 2017. At that time, the agreement may be renewed if the parties agree for successive ten (10) year terms. Either party may terminate this agreement at the end of the initial or subsequent terms upon a two (2) year written notice to the other party. [Emphasis added.]
Defendant had undertaken several improvement projects to the treatment system, at a cost of nearly $6 million, during the 1990s, including projects to increase biological treatment measures, increase hydraulic capacity, and increase treatment and collection capacity, without financial contribution from the plaintiffs. In November 2006, defendant provided written notice to plaintiffs that it did not intend to renew the contracts upon their expiration in May 2017. Thereafter, Haring Township filed its three-count complaint, alleging that defendant has a legal obligation to continue providing wastewater treatment and disposal service to the township after the “ostensible” expiration of the 1980 contract on May 12, 2017. Shortly thereafter, Selma and Clam Lake Townships filed a one-count complaint also alleging that defendant has a legal obligation to continue providing wastewater treatment and disposal service beyond May 12, 2017.
B. TRIAL COURT PROCEEDINGS
Defendant filed motions for summary disposition, under MCR 2.116(C)(8) and (10), asserting that the 1977 and 1980 contracts clearly provide it with the authority to discontinue wastewater treatment services to plaintiffs as of May 12,2017. Plaintiffs responded by seeking summary disposition pursuant to MCR 2.116(I)(2), asserting, consistent with their complaints, that defendant has an obligation to continue to provide services after May 12, 2017. Plaintiffs asserted that under the terms of the 1977 and 1980 contracts, plaintiffs acquired contractual ownership of, and title to, a portion of the capacity of defendant’s sewer system, that defendant is required to provide services to the townships through at least the expiration of the “design life” of the grant-funded sewage collection system pursuant to requirements imposed on defendant by the CWA’s grant-funding program and associated federal regulations, and that defendant has held itself out as a public utility in the townships.
The trial court granted defendant’s motions for summary disposition by written opinion and order, concluding that the language of the contracts was “clear and explicit” and provided a specific termination date of May 12, 2017, that permissive language allowing extensions of the contracts did not create a right in any of the contracting parties to an automatic extension, and that it was required to enforce the contracts as written. In reaching this result, the trial court concluded that plaintiffs did not purchase an ownership interest in the sewer system, but rather purchased a certain capacity of service in terms of millions of gallons per day for a fixed term expiring on May 12, 2017. The trial court also rejected plaintiffs’ argument that the contracts contain a latent ambiguity as a result of any obligation imposed by the CWA. Finally, the trial court concluded that defendant had not become a public utility within plaintiff townships.
II. ANALYSIS OF THE ISSUES RAISED ON APPEAL
On appeal, plaintiffs assert that the 1977 and 1980 contracts are both patently and latently ambiguous and that defendant has an extracontractual legal duty to continue providing wastewater treatment service to the townships beyond the expiration of the Contracts. Plaintiffs agree that
the particular terms and conditions upon which the City has been providing sewage treatment and disposal services, as reflected in the 1977 and 1980 Contracts, unambiguously expire after May 12, 2017, such that the City does not thereafter have to provide [such services] to the Townships on those particular terms and conditions.
However, plaintiffs argue that, nonetheless, defendant “is legally obligated to continue providing sewage treatment and disposal services to the Townships after May 12, 2017,” on “payment terms that comply with applicable state and federal law.” Therefore, plaintiffs assert, the trial court erred by granting defendant’s motions for summary disposition.
This Court reviews de novo a trial court’s decision to grant summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). This appeal also involves questions of statutory and contract interpretation. “[B]oth the interpretation of a statute and a contract are questions of law this Court reviews de novo.” Burkhardt v Bailey, 260 Mich App 636, 646; 680 NW2d 453 (2004). When interpreting a contract, this Court is to discern the parties’ intent by reading the contract as a whole. Roberts v Titan Ins Co (On Reconsideration), 282 Mich App 339, 357; 764 NW2d 304 (2009) (“When presented with a contractual dispute, a court must read the contract as a whole with a view to ascertaining the intention of the parties, determining what the parties’ agreement is, and enforcing it.”). If a contract is unambiguous, then it must be enforced by its plain terms. DaimlerChrysler Corp v Wesco Distribution, Inc, 281 Mich App 240, 248; 760 NW2d 828 (2008); Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 650; 473 NW2d 268 (1991). Terms are ambiguous only if they cannot possibly be read together in harmony. Cole v Ladbroke Racing Mich, Inc, 241 Mich App 1, 13; 614 NW2d 169 (2000). Furthermore, a court will not create ambiguity where none previously existed. Smith v Physicians Health Plan, Inc, 444 Mich 743, 759; 514 NW2d 150 (1994).
Plaintiffs first argue that they contracted not only for ongoing sewage treatment and disposal services from defendant, but that they also purchased — and thus own — capacity in the City System in the amounts designated in the respective contracts. They refer to their required, up-front, “buy-in” payments to defendant, corresponding “on a one-for-one basis with the actual costs-of-construction for the capacity that was granted to the Townships,” and assert that considering these payments “it is absurd to suggest that the Townships were paying only for ‘service’ for a fixed term, instead of purchasing ‘capacity.’ ” Plaintiffs further assert that they will continue to own capacity in the City System after May 12, 2017, and that this ownership interest renders the expiration dates specified in the contracts “patently ambiguous.” We disagree.
Both the 1977 and 1980 contracts contain an explicit expiration date; they are fixed-term contracts that expire on May 12, 2017. Indeed, plaintiffs acknowledge as much. Therefore, the trial court’s conclusion that the contracts expire on that date was indisputably correct. Contrary to plaintiffs’ arguments, we agree with the trial court that defendant’s obligation to provide services under the contracts ends on May 12, 2017. The contracts do not provide for any automatic extension, or right to an extension; rather they provide only that the parties may by mutual agreement, extend the contracts. We find no patent or latent ambiguity in the plain expiration date set forth in the contracts.
Further, the up-front payments required by the contracts do not compel a different result. The contracts, by their plain terms, provide plaintiffs with the right to utilize a certain capacity — that is, with “capacity rights” — for a fixed term to expire as specified in the contracts. The contracts are thus akin to leases — here, for a certain amount of wastewater treatment capacity for a fixed term, in exchange for an up-front payment correlating to the cost of construction of the treatment system, together with monthly payments for the amount of wastewater actually treated. There is no indication that plaintiffs were purchasing any ownership interest in defendant’s facilities. The contracts explicitly provide that all responsibility for the opera tion, maintenance, expansion, improvements and administration of the City System rests exclusively with defendant and that the County was to have no obligation, liability, or responsibility for that system, while at the same time the County was to bear all responsibility for the County System, including the Haring Township system, with the City bearing no obligation, liability, or responsibility for that system.
Plaintiffs next argue that defendant has an ongoing obligation to provide wastewater treatment and disposal services beyond the expiration date of the contracts as a result of extrinsic requirements imposed on defendant by the CWA. Plaintiffs rely on 40 CFR 35.935-l(b), which sets forth the responsibilities borne by a grant recipient:
By its acceptance of the grant, the grantee agrees to complete the treatment works in accordance with the facilities plan, plans and specifications, and related grant documents approved by the Regional Administrator, and to maintain and operate the treatment works to meet the enforceable requirements of the Act for the design life of the treatment works. The Regional Administrator is authorized to seek specific enforcement or recovery of funds from the grantee, or to take other appropriate action ... if he determines that the grantee has failed to make good faith efforts to meet its obligations under the grant.
Plaintiffs argue that, pursuant to this regulation, defendant is obligated to provide wastewater treatment service to them for the “design life” of the treatment facility, regardless of the term of the contract, and further, that the “design life” of the instant treatment system is 75 years to perpetuity, as averred by plaintiffs’ engineering expert. Plaintiffs cite State Hwy Comm’r v Detroit City Controller, 331 Mich 337, 352; 49 NW2d 318 (1951), to establish that parties reach agreements with awareness of the statutory law in effect at the time of the agreement and therefore that statutory law becomes part of the agreement, and Universal Underwriters Ins Co v Kneeland, 464 Mich 491, 496-498; 628 NW2d 491 (2001), and Stillman v Goldfarb, 172 Mich App 231, 239-241; 431 NW2d 247 (1988), to establish that courts are compelled to construe contracts in accordance with applicable statutory law whenever it is possible to do so. Thus, plaintiffs assert that “the obligations of the CWA clearly ‘enter into and form a part’ of the Contracts” and therefore, defendant has a continuing obligation to provide wastewater treatment services beyond May 12, 2017, as part of those contracts.
As plaintiffs acknowledge, however, 40 CFR 35.935-l(b), is not applicable here because it was not in effect in 1975, when the Facilities Plan was prepared and submitted, or in 1976 and 1977 when the grants were actually awarded to defendant; 40 CFR 35.935-1 did not go into effect until October 1, 1978. 43 Fed Reg 44022 (September 27, 1978). Therefore, as plaintiffs acknowledge before this court, “these grants were subject to the 1974 [United States Environmental Protection Agency (EPA)] regulations.” The 1974 regulations speak in terms of the “service life” of various parts of the treatments works, which the regulations define as the “period of time during which a component of a waste treatment management system will be capable of performing a function.” 40 CFR Appendix A(d)(4); 39 Fed Reg 5269 (February 11, 1974). The regulations further provide that
The service life of treatment works for a cost-effectiveness analysis shall be as follows:
Land................................ Permanent
Structures........................... 30-50 years
(includes plant buildings, concrete process tankage, basins, etc.; sewage collection and conveyance pipelines; lift station structures; tunnels; outfalls)!.]
Process equipment.................... 15-30 years
(includes major process equipment such as clarifier mechanisms, vacuum filters, etc.; steel process tankage and chemical storage facilities; electrical generating facilities on standby service only).
Auxiliary equipment.................. 10-15 years
(includes instruments and control facilities; sewage pumps and electric motors; mechanical equipment such as compressors, aeration systems, centrifuges, chlorinators, etc,; electrical generating facilities on regular service).
Other service life periods will be acceptable when sufficient justification can be provided. [CFR 40 Appendix A(f)(7); 39 Fed Reg 5270 (February 11, 1974).]
Accordingly, as previously noted, the cost-effectiveness analysis set forth in the 1975 Facilities Plan, submitted by the parties as part of their application for grant funding under the CWA, identifies the service life of the components of the treatment works as follows:
Land Does not Depreciate
Structures (concrete, piping, earthwork, etc.) 40 years
Process Equipment (lift stations, aeration 20 Years equip., etc.)
Auxiliary equipment (electrical, lab 15 years equipment, auxiliary power, etc)
Plaintiffs assert that 40 CFR 35.935-l(b), although not directly applicable here, merely reflects a preexisting requirement culled from a combination of then-existing EPA regulations and grant documents and thus that the obligation to provide service for the “design life” of the treatment works was part of the parties’ agreement, regardless of the effective dates of that agreement. More specifically, plaintiffs note that the 1974 regulations required that defendant use the awarded grant funds to complete the construction of an “operable treatment works” and “a complete waste treatment system ... of which the project is a part,” 40 CFR 35.935-1 and 35.905-3, and further, that grant agreements signed by defendant require that the treatment works be “completed as a cost-effective, integral component of the overall program to provide a complete waste treatment system,” and that the grantee “agrees that the funds awarded will be used solely for the purposes of the project as approved,” here, to “service the City of Cadillac and portions of the townships” with wastewater treatment services. Plaintiffs assert that the 1974 regulations and grant agreements, considered together, require that defendant use the grant monies solely for the purposes of providing wastewater collection, transport, treatment, and disposal services to the designated township service districts, and that if defendant ceases using the treatment works to collect, transport, treat, and dispose of plaintiffs’ wastewater, it will have ceased using the grant monies “solely for the purposes of the project approved” in violation of the 1974 regulations. From this, plaintiffs assert that defendant has a continuing extracontractual duty to operate the treatment works for the benefit of plaintiff townships for the “design life” of the treatment works, which plaintiffs assert is at least 75 years. We disagree.
There is no dispute that the grant monies received by defendant were, in fact, used “solely for the purposes of the project as approved”: to construct the treatment works described in the approved Facilities Plan. There is no assertion that defendant misappropriated grant funds for any other purpose. There is nothing in the regulations explicitly imposing a perpetual duty to operate the treatment works in a particular manner or for a particular period of time. The 1974 regulations required that the Facilities Plan include a “cost- effectiveness analysis” defining the service life of the treatment works’s various component parts, 40 CFR 35.917-l(d); 39 Fed Reg 5253 (February 11, 1974), and the 1975 Facilities Plan did so, indicating that no component’s service life exceeded 40 years, consistent with the applicable regulation.
Additionally, plaintiffs’ argument completely disregards the import of the term “service life” and the definition of “service life” provided in the 1974 regulations. Plaintiffs continue to refer to “design life”: the term used in the 1978 regulations. Plaintiffs correctly point out that the 1974 regulations define “service life” in the context, and for purposes, of cost-effectiveness analysis. However, plaintiffs can point to nothing in the 1974 regulations specifically obligating defendant to operate the treatment works for the “design life” of the system, or indeed, for any particular period of time. Rather, as pieced together by plaintiffs, the regulations require that defendant complete and operate the project as approved: that is, as set forth by the Facilities Plan, which included the parties’ representation of the service life of the system’s components. In this regard, we find the definition of “service life” set forth in the 1974 regulations to be persuasive in considering whether the CWA and its implementing regulations impose any duty on defendant to operate the treatment works beyond the expiration date of the contracts. We conclude that the regulations impose no such duty.
Defendant completed construction of the treatment works in accordance with the Facilities Plan and has maintained and operated the treatment works as contemplated; plaintiffs do not assert otherwise. At issue is simply whether on May 12, 2017, defendant will have done so for the proper amount of time, or whether defendant is obligated to continue to provide such services beyond that date. Considering the 1974 regulations and the representations set forth in the approved Facilities Plan, we conclude that it will have done so, and there being no ambiguity in the expiration date set forth in the 1977 and 1980 contracts, the contracts, and all accompanying duties expire on that date.
Finally, plaintiffs argue that defendant has held itself out as a public utility in plaintiff townships and as a consequence defendant remains obligated to continue providing sewer service to the townships beyond the expiration of the contract. In support of this assertion, plaintiffs note the definition of a public utility set forth in Schurtz v Grand Rapids, 208 Mich 510, 524; 175 NW 421 (1919):
“[P]ublic utility” means every corporation ... that may own, control, or manage, except for private use, any equipment, plant or generating machinery in the operation of a public business or utility. Utility means the state or quality of being useful. Was this plant one useful to the public? If so, it was a public utility.
Plaintiffs observe that defendant is the only source of sewage treatment in the townships. Plaintiffs assert that “[i]t cannot be doubted ... that the City Sewage System is a ‘public utility’ for purposes of Michigan law” and that defendant has held itself out as a public utility within certain areas of the townships by entering into the 1977 and 1980 contracts. However, Michigan law provides municipalities with the discretion to provide services to extraterritorial units such as the townships. See MCL 123.742(1); Nelson v Wayne Co, 289 Mich 284, 297-299; 286 NW 617 (1939). Additionally, the Michigan Constitution, as well as Michigan statutory law, provides for and recognizes defendant’s discre tion in extending sewage removal services beyond its border. Article 7, § 24 of the 1963 Michigan Constitution provides that
[s]ubject to this constitution, any city or village may acquire, ovm or operate, within or without its corporate limits, public service facilities for supplying water, light, heat, power,- sewage disposal and transportation to the municipality and the inhabitants thereof.
Any city or village may sell and deliver heat, power or light without its corporate limits in an amount not exceeding 25 percent of that furnished by it within the corporate limits, except as greater amounts may be permitted by law; may sell and deliver water and provide sewage disposal services outside of its corporate limits in such amount as may be determined by the legislative body of the city or village; and may operate transportation lines outside the municipality within such limits as may be prescribed by law. [Emphasis added.]
Likewise, MCL 123.742(1) provides that municipalities “may enter into a contract or contracts for . . . sewage disposal. ... for the payment of the costs by the contracting municipalities, with interest, over a period not exceeding 40 years.” (Emphasis added.) And, MCL 123.232 provides that “[a]ny 2 or more political subdivisions may contract for the joint ownership, use and/or operation of sewers and/or sewage disposal facilities.. . . Any such contract... shall be effective for such term as shall be prescribed therein not exceeding 50 years.” Each of these provisions contains the term “may,” indicating permissive, discretionary activity. Gulley-Reaves v Baciewicz, 260 Mich App 478, 485; 679 NW2d 98 (2004). Thus, plainly, Michigan law affords defendant the ability to provide sewage treatment services beyond its borders, subject to contracts of limited duration; however, there is nothing in Michigan law requiring that defendant do so. Simply by exercising its discretion to provide wastewater treatment services to plaintiffs for a fixed duration in accordance with applicable law, defendant did not become a public utility obligated to continue to provide that service beyond the expiration of the contract.
In sum, the issue presented here is straightforward: Do the 1977 and 1980 contracts expire on May 12, 2017, as plainly stated therein? We find no basis for concluding that the contracts mean anything other than that which they plainly provide. Therefore, the trial court did not err by concluding that defendant’s duty to provide wastewater treatment services to plaintiffs was governed by the 1977 and 1980 contracts, which expire “as prescribed therein,” on May 12, 2017.
We affirm. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
BORELLO, EJ., concurred.
Haring Township’s complaint sets forth three counts; only count III is at issue here.
The contracts resemble a vehicle lease, in which a certain lump sum payment is due at signing, and additional monthly payments are made for the duration of the lease. In that situation, there is no basis for asserting that a lessee has purchased an ongoing ownership interest in the vehicle, merely because a percentage of its worth was paid at the start of the contract. Yet that is essentially what plaintiffs are asserting here.
The 1977 Contract specifically provides that “[i]t is agreed that those portions of the City System within the City Limits shall remain the sole and exclusive responsibility of the City, for all operations, maintenance, expansions, additions, improvements and administration including review and revision of the charge for treatment.” (Emphasis added.) Likewise, the 1980 Contract states that
[i]t is agreed by the parties that the operation, maintenance, expansion, improvements and additions, and administration (including the review and revision of the rates and charges charged to users within the City) of the City System shall be and remain the sole and exclusive responsibility of the City. The County shall have no obligation^] liability, or responsibility for the City System. [Emphasis added.]
The 1977 Contract provides that “[i]t is agreed that those portions of the County System outside of the City Limits shall remain the sole and exclusive responsibility of the County for all operations, maintenance, expansions, additions, improvements and administration, unless otherwise provided in this Agreement.” Similarly, the 1980 Contract provides that
[i]t is agreed that the responsibility for operation, maintenance, expansion, additions, improvements, and administration (including review and revision of rates and charges to users outside the City and within the Haring Township System) shall be the sole and exclusive responsibility of the County. The City shall have no obligation, liability, or responsibility for the Haring Township System.
Plaintiffs note that they are not asserting “direct claims against the City under the CWA,” but, rather, are
relying upon the CWA and its implementing regulations for the purpose of demonstrating that the ostensible May 12, 2017 expiration date of the Contracts could not, at the time of Contract formation, have been understood by the parties to represent a date at which the City could wholly abandon its obligation to provide sewage treatment and disposal services to the Service Districts within the Townships.
In fact, while the CWA regulation upon which plaintiffs seek to rely authorizes the regional administrator to take action if he determines that the grantee is not compliant with the requirements and regulations governing use of the grant and the resulting treatment works, it does not confer standing on private parties to seek such enforcement. 40 CFR 35.935-l(b).
Both parties note that MCL 123.742(1) provides:
A county operating under this act and any 1 or more municipalities including the county itself may enter in a contract or contracts for the acquisition, improvement, enlargement, or extension of a water supply, a sewage disposal, or a refuse system, or the making of lake improvements or erosion control systems and for the payment of the costs by the contracting municipalities, with interest, over a period not exceeding 40 years.
Thus, plainly under Michigan law, the 1977 and 1980 contracts could not exceed 40 years in duration. Defendant points to this as further evidence that the parties understood that defendant’s obligation to provide services could not extend beyond the expiration date of the contracts. Plaintiffs argue, however, that the existence of the statute, which prevented the parties from contracting for a term exceeding 40 years regardless of any continuing duty on the part of defendant to operate the treatment facility for plaintiffs’ benefit beyond that period of time, demonstrates, again, a latent ambiguity with regard to the import and effect of that expiration date on defendant’s duty to provide treatment services. In advancing this argument, plaintiffs rely on the notion that they purchased, and continue to own, capacity in defendant’s system. However, for the reasons previously discussed, plaintiffs do not own capacity in defendant’s treatment system, and defendant has no ongoing, underlying legal duty to continue to provide wastewater treatment services to plaintiffs beyond the plain and unambiguous date set forth in the contracts.
The plaintiff in Nelson challenged the denial of his request to tap into a water main constructed under a contract entered into between the Detroit Board of Water Commissioners and Wayne County to supply water from Detroit to the Wayne County Training School. The Supreme Court affirmed that denial, explaining that
[t]he courts as a rule are not disposed to interfere with the management of an authorized business, conducted by the municipal authorities presumably in the interest and for the benefit of the city and its inhabitants, unless dishonesty or fraud is manifest, or the vested power with its implied discretion has been clearly exceeded or grossly abused....
... [A city] may conduct [a utility] in the manner which promises the greatest benefit to the city and its inhabitants in the judgment of the city council; and it is not within the province of the court to interfere with the reasonable discretion of the council in such matters. [Nelson, 289 Mich at 297-298 (quotation marks and citations omitted).]
Having determined that defendant is not obligated to provide waste-water treatment services for the “design life” of the treatment works, we need not address the issue whether plaintiffs successfully established a genuine issue of material fact as to the length of the “design life” of the system. | [
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Per Curiam.
Defendant appeals as of right a trial court order granting partial summary disposition in plaintiffs’ favor and denying defendant’s motion for partial summary disposition. Because the trial court properly found the lease at issue void, and because defendant was not entitled to partial summary disposition in his favor, we affirm.
In May 2006, plaintiffs and defendant entered into a lease agreement whereby plaintiffs were to lease a gas station from defendant for a period of 10 years. Apparently, the site of the gas station had been found to be a site of environmental contamination in 1996 — a fact known by defendant but not disclosed to plaintiffs at the time of the lease. Plaintiffs contacted the Michigan Department of Environmental Quality (MDEQ) in late 2007 and were advised of the contamination. They thereafter initiated the instant lawsuit, alleging that defendant had violated his statutory duty to inform them of the property’s status as a site of environmental contamination. Plaintiffs’ specific causes of action included silent fraud, fraudulent misrepresentation, and breach of the lease. Plaintiffs sought damages as well as rescission of the lease.
Plaintiffs moved for partial summary disposition pursuant to MCR 2.116(C)(10), contending that the lease at issue was void and that they had established the elements of their claims against defendant, leaving only the issue of damages for trial. Defendant also moved for partial summary disposition in his favor asserting, among other things, that plaintiffs had failed to exhaust their administrative remedies under the former Michigan Environmental Response Act, that plaintiffs’ claims were barred by the statute of frauds, and that plaintiffs had not reasonably relied on any alleged written or oral representation.
The trial court granted plaintiffs’ motion for partial summary disposition and denied defendant’s motion for partial summary disposition, ruling:
The first portion of Plaintiffs’ Motion for Summary Disposition based on MCL 324.20116(1) on the grounds that subject lease for 1031 Lapeer Road was prohibited because of Defendant’s failure to disclose to Plaintiffs the fact that the site was contaminated, is granted and the subject lease is determined to be void. Consequently, Defendant’s Motion for Partial Summary Disposition seeking a determination of liability under the subject lease is denied, with prejudice.
The second portion of Plaintiffs [sic] Motion for Summary Disposition regarding Plaintiffs [sic] fraud counts is denied, without prejudice.
Plaintiffs’ fraud claims proceeded to trial, and the jury ultimately found in plaintiffs’ favor. Judgment was accordingly entered against defendant in the amount of $83,000 plus interest and costs. This appeal followed.
On appeal, defendant challenges the trial court’s order declaring the lease at issue void, granting plaintiffs’ motion for partial summary disposition, and denying defendant’s motion for partial summary disposition. We review de novo a trial court’s decision on a motion for summary disposition. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). A motion brought under MCR 2.116(C)(10) tests a claim’s factual support. “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Summary disposition may be granted under MCR 2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Steward v Panek, 251 Mich App 546, 555; 652 NW2d 232 (2002). “Additionally, we review de novo issues of statutory interpretation.” Universal Underwriters Ins Group v Auto Club Ins Ass’n, 256 Mich App 541, 544; 666 NW2d 294 (2003).
On appeal, defendant first asserts that partial summary disposition in plaintiffs’ favor was inappropriate because a failure to disclose to a tenant that property has been determined to be a site of “environmental contamination,” as defined in MCL 324.20101(l)(o), does not void the parties’ commercial lease. We disagree.
Part 201 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.20101 et seq., was enacted by 1994 PA 451 as part of the repeal and reenactment of numerous environmental statutes. Part 201 was the reenactment of the former Environmental Response Act, MCL 299.601 et seq. Cairns v East Lansing, 275 Mich App 102, 108; 738 NW2d 246 (2007). MCL 324.20102 includes the following among the express purposes of part 201 of NREPA:
(c) That it is the purpose of this part to provide for appropriate response activity to eliminate unacceptable risks to public health, safety, or welfare, or to the environment from environmental contamination at facilities within the state.
(d) That there is a need for additional administrative and judicial remedies to supplement existing statutory and common law remedies.
(h) That this part is intended to provide remedies for facilities posing any threat to the public health, safety, or welfare, or to the environment, regardless of whether the release or threat of release of a hazardous substance occurred before or after October 13,1982, the effective date of the former environmental response act, Act No. 307 of the Public Acts of 1982, and for this purpose this part shall be given retroactive application. However, criminal and civil penalties provided in this part shall apply to violations of this part that occur after July 1, 1991.
Consistently with those purposes, part 201 provides for certain penalties for violations of specific provisions within the act. For example, MCL 324.20107a(l)(a) states that a person who owns or operates property that the person knows is a facility containing hazardous substances shall, among other things, undertake measures that are necessary to prevent exacerbation of the existing contamination. MCL 324.20107a(2) provides, “Notwithstanding any other provision of this part, a person who violates subsection (1) is liable for response activity costs and natural resource damages . . . .” There is no specified remedy, however, for a violation of MCL 324.20116(1).
MCL 324.20116(1), a component of part 201 of NREPA, provides:
A person who has knowledge or information or is on notice through a recorded instrument that a parcel of his or her real property is a facility shall not transfer an interest in that real property unless he or she provides written notice to the purchaser or other person to which the property is transferred that the real property is a facility and discloses the general nature and extent of the release.
“Facility,” for purposes of MCL 324.20116(1), is defined as
any area, place, or property where a hazardous substance in excess of the concentrations which satisfy the requirements of [MCL 324.20120a(l)(a)] or (17) or the cleanup criteria for unrestricted residential use under part 213 [MCL 324.21301 et seq.] has been released, deposited, disposed of, or otherwise comes to be located. Facility does not include any area, place, or property at which response activities have been completed which satisfy the cleanup criteria for the residential category provided for in [MCL 324.20120a(l)(a)] and (17) or at which corrective action has been completed under part 213 which satisfies the cleanup criteria for unrestricted residential use. [MCL 324.20101(o).]
Defendant does not dispute that the gas station he leased to plaintiffs is considered a “facility” under this definition or that he leased the premises to plaintiffs without advising them of its status as a facility, contrary to MCL 324.20116(1). Defendant does dispute, however, whether a transfer of an interest in property in violation of MCL 324.20116(1) necessarily renders the transfer instrument (in this case, the lease contract) void.
As previously indicated, there is no remedy specified for a violation of MCL 324.20116(1). But “[contracts founded on acts prohibited by a statute, or contracts in violation of public policy, are void.” Michelson v Voison, 254 Mich App 691, 694; 658 NW2d 188 (2003). Again, MCL 324.20116(1) provides that if a person knows that the real property is a facility, the person “shall not” transfer an interest in that real property unless he or she provides written notice to the transferee that the real property is a facility. The word “shall” is generally used to designate a mandatory provision. AFSCME, AFL-CIO Mich Council 25 v Highland Park Bd of Ed, 214 Mich App 182, 186; 542 NW2d 333 (1995). Conversely, then, the term “shall not” may be reasonably construed as a prohibition. Because defendant was prohibited from transferring any interest in the property at issue unless he provided plaintiffs with written notice that the property was a facility, and defendant admittedly failed to provide plaintiffs with such a written notice, the contract was founded on an act prohibited by statute and was thus void.
Moreover, public policy supports finding the contract void. MCL 324.20107a provides:
(1) A person who owns or operates property that he or she has knowledge is a facility shall do all of the following with respect to hazardous substances at the facility:
(a) Undertake measures as are necessary to prevent exacerbation of the existing contamination.
(b) Exercise due care by undertaking response activity necessary to mitigate unacceptable exposure to hazardous substances....
(2) Notwithstanding any other provision of this part, a person who violates subsection (1) is liable for response activity costs and natural resource damages attributable to any exacerbation of existing contamination and any fines or penalties imposed under this part resulting from the violation of subsection (1)....
“Operator” is defined at MCL 324.20101(l)(y) as “a person who is in control of or responsible for the operation of a facility.” Plaintiffs, having run the gas station and car wash located on the property found to be a facility, are arguably operators of the facility.
Given that one who obtains ownership over or becomes an operator of a facility risks exposure to potentially significant costs and liability, enforcement of a contract made without the disclosure required under MCL 324.20116(1) would be against public policy. “It is well established that the courts of this state will not enforce, either in law or in equity, a contract which violates a statute or which is contrary to public policy.” Shapiro v Steinberg, 176 Mich App 683, 687; 440 NW2d 9 (1989). The trial court appropriately found the lease contract at issue to be void.
Defendant next contends that summary disposition was appropriate in his favor on any one of the grounds he presented to the court in his motion for partial summary disposition. We disagree.
Defendant presented four distinct grounds to the trial court on which he claimed summary disposition was appropriate in his favor: plaintiffs’ lack of legal capacity to sue, plaintiffs’ failure to exhaust their administrative remedies, application of the statute of frauds to plaintiffs’ claims and the existence of no genuine issue of material fact, and no reasonable reliance by plaintiffs on any alleged written or oral misrepresentation. We shall address each ground in turn.
With respect to a lack of legal capacity to sue, defendant asserts that the lease at issue was signed on May 30, 2007, by plaintiff William Hunter, Brian Hunter, and Owen W O’Berry, Jr., doing business as 1031 Lapeer LLC. Defendant points out that the lease is not with 1031 Lapeer, a Michigan corporation, and, in fact, 1031 Lapeer was not incorporated until June 1, 2007 — after the lease was signed. We would note, however, that the lease identifies the signatories, “DBA 1031 Lapeer LLC,” as tenants and that the lease was signed by the named parties “d/b/a 1031 Lapeer LLC.” Furthermore, even if 1031 Lapeer lacked the legal capacity to sue, the complaint was not filed solely in the name of 1031 Lapeer. Instead, William R. Hunter is also a named plaintiff. That being so, it is unclear what effect defendant would hope the potential dismissal of 1031 Lapeer as a plaintiff would have.
In any event, defendant has cited no law whatsoever, or even a basic court rule, to support his position. An appellant may not, in his or her brief on appeal, simply announce a position or assert an error and then leave it to this Court to discover and rationalize the basis for the appellant’s claims, unravel and elaborate upon the arguments, and search for authority to support his or her position. People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Defendant has thus abandoned this claim.
Defendant next asserts that summary disposition should have been granted in his favor because of plaintiffs’ alleged failure to exhaust their administrative remedies. According to defendant, MCL 324.20135(3)(a) requires that before one may bring a private action against an “owner or operator” for injunctive relief, a written notice of intent to sue must be given to the MDEQ and that, additionally, a cause of action may not be brought if the state is not diligently pursuing compliance. Defendant contends that because no notice was provided as required by statute and the state of Michigan is working with defendant toward compliance, plaintiffs’ action is barred. We disagree.
MCL 324.20135 provides:
(1) Except as otherwise provided in this part, a person, including a local unit of government on behalf of its citizens, whose health or enjoyment of the environment is or may be adversely affected by a release from a facility or threat of release from a facility, other than a permitted release or a release in compliance with applicable federal, state, and local air pollution control laws, by a violation of this part or a rule promulgated or order issued under this part, or by the failure of the directors to perform a nondiscretionary act or duty under this part, may commence a civil action against any of the following:
(a) An owner or operator who is liable under [MCL 324.20126] for injunctive relief necessary to prevent irreparable harm to the public health, safety, or welfare, or the environment from a release or threatened release in relation to that facility.
(3) An action shall not be filed under subsection (l)(a) or (b) unless all of the following conditions exist:
(aj The plaintiff has given at least 60 days’ notice in writing of the plaintiffs intent to sue, the basis for the suit, and the relief to be requested to each of the following:
(i) The department [MDEQ],
(ii) The attorney general.
(Hi) The proposed defendants.
(b) The state has not commenced and is not diligently prosecuting an action under this part or under other appropriate legal authority to obtain injunctive relief concerning the facility or to require compliance with this part or a rule or an order under this part.
This statute, known as the “citizens suit” provision of part 201, Cairns, 275 Mich App at 114, clearly governs only those lawsuits brought by a “person, including a local unit of government on behalf of its citizens, whose health or enjoyment of the environment is or may be adversely affected by a release from a facility or threat of release from a facility . . ..” Moreover, the lawsuits governed by this statute are specified as those against an owner or operator for injunctive relief. Plaintiffs have not brought suit in the position of citizens whose health or enjoyment of the environment may be adversely affected by the contamination at issue. Instead, their lawsuit finds its genesis in the parties’ contract and is based on fraud and statutory violations. Plaintiffs sought rescission of the contract as well as damages — not injunctive relief. Clearly, then, MCL 324.20135 is inapplicable in this matter.
Next, defendant contends that summary disposition was appropriate in his favor because the statute of frauds bars plaintiffs’ claims and there is no genuine issue of material fact. The entirety of defendant’s argument on this issue consists of this single, one-sentence bare assertion, supported by no law or fact. Again, a party may not simply announce a position or assert an error on appeal and leave it to this Court to discover and rationalize the basis for his or her claims. Kelly, 231 Mich App at 640-641.
Finally, defendant claims that summary disposition should have been entered in his favor on plaintiffs’ fraud claims because plaintiffs did not reasonably rely on any alleged written or oral misrepresentation. According to defendant, because plaintiffs had the means to discover all the information about the contamination and suffered no damages as the result of any alleged misrepresentation, their fraud claims necessarily fail. We disagree.
To establish actionable fraud, a plaintiff must show that (1) the defendant made a material representation, (2) the representation was false, (3) the defendant knew the representation was false or recklessly made the representation as a positive assertion without knowledge of its truth, (4) the defendant made the representation with the intention that the plaintiff act on it, (5) the plaintiff acted in reliance on the representation, and (6) the plaintiff suffered injury. Johnson v Wausau Ins Co, 283 Mich App 636, 643; 769 NW2d 755 (2009). Additionally, “ [suppression of facts and truths can constitute silent fraud where the circumstances are such that there exists a legal or equitable duty to disclose.” Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich App 485, 500; 686 NW2d 770 (2004). Importantly, to sustain a claim of fraud, the plaintiff must have reasonably relied on the false representation. Nieves v Bell Indus, Inc, 204 Mich App 459, 464; 517 NW2d 235 (1994). “There can be no fraud where a person has the means to determine that a representation is not true.” Id.
In this case, defendant identifies several provisions within the parties’ contract that expressly mentioned contamination, asserting that such references essentially placed plaintiffs on notice of existing contamination. Specifically, defendant cites ¶ (8) of the contract, which provided that the tenant would not be liable for any acts or omissions of the landlord for his failure to comply with laws, orders, regulations, or ordinances, including soil-contamination requirements. The paragraph further provided that
[i]n the event the Landlord’s obligations as to pre-existing contamination on the property are expanded as a result of future changes in environmental laws and/or regulations by any governmental agency, it is agreed that Landlord’s obligations as to the pre-existing contamination on the property will include Landlord’s obligation to comply with those new governmental laws and regulations at Landlord’s sole expense.
Defendant also cites ¶ (14) of the lease, which provided that if any upgrade work was required for the underground-storage tanks, the landlord would be solely responsible for making and paying for those upgrade activities. Defendant further notes ¶ (33), which states:
[I]n the event any government agency requires cleanup of environmental contamination which exists on the property at the time of this Lease Agreement which is the Landlord’s responsibility and the Landlord fails or refuses to pay for the required cleanup and the Tenant is obligated to pay for the cleanup which is the Landlord’s responsibility, Landlord and Landlord’s other property or any partners shall be subject to levy or execution as a result of tenant’s obligation to pay for the cleanup that is the obligation of Landlord to pay.
Defendant also agreed, in ¶ (35) of the lease, that he would indemnify plaintiffs and hold them harmless from any liability and expenses for preexisting contamination. Defendant contends that no fraud can lie given that plaintiffs had notice, through the contractual language cited, that the site was contaminated and when plaintiffs otherwise had the means to discover whether any representation regarding the contamination was true. Given the numerous references to preexisting contamination, the contract could be viewed as putting plaintiffs on notice of preexisting contamination. Further, because plaintiffs discovered that the site was contaminated by contacting the MDEQ mere months after the lease was executed, it might be reasonably argued that plaintiffs could have discovered this information before entering into the lease.
However, defendant undisputedly had actual knowledge of existing contamination and did not unequivocally advise plaintiffs of this fact in a writing that disclosed the general nature and extent of the contamination as required by MCL 324.20116(1). As stated in M & D, Inc v McConkey, 231 Mich App 22, 25; 585 NW2d 33 (1998), “A misrepresentation need not necessarily be words alone, but can be shown where the party, if duty-bound to disclose, intentionally suppresses material facts to create a false impression to the other party.” Whether defendant intentionally failed to advise plaintiffs of the known contamination was a question of fact for the juiy, as was whether the contract itself reasonably placed plaintiffs on notice that the site was contaminated. Because defendant had a statutory duty to disclose to plaintiffs the fact that the site had been found to be contaminated before transferring any interest in the subject property to them, and did not do so, and because questions of fact existed regarding the fraud claims, the fraud claims properly withstood summary disposition.
Moreover, the fraud issue was submitted to a jury, which found that defendant had, in fact, engaged in fraud and thus awarded plaintiffs damages on the fraud claims. Because defendant did not appeal the jury verdict itself, any error by the trial court in denying defendant’s motion for partial summary disposition on plaintiffs’ fraud claims would be irrelevant because no matter what this Court’s ruling on the summary disposition issue, the jury verdict would still stand.
With respect to defendant’s argument concerning plaintiffs’ damages, we would note that defendant asserts that no damages were suffered because plaintiffs did not pay any MDEQ response costs. Plaintiffs have never claimed that they paid MDEQ cleanup costs. Instead, plaintiffs asserted in their complaint that the damages they suffered as a result of defendant’s fraud were the over $200,000 they invested in the property, and the facing of potential liability for environmental cleanup costs. Defendant’s assertion regarding damages, then, is misplaced.
Affirmed. Plaintiffs, as the prevailing parties, may tax costs.
While plaintiffs did initially seek injunctive relief, the injunction sought was to enjoin enforcement of the lease. | [
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Per Curiam.
Defendants appeal by leave granted the trial court’s order granting in part and denying in part defendants’ motion for a qualified protective order in this medical malpractice action. Defendants argue that the trial court abused its discretion when it imposed certain conditions on the protective order. We agree, and therefore reverse in part and vacate in part the qualified protective order.
Defendants argue that where a qualified protective order is entered to ensure compliance with the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq., it was an abuse of discretion also to require that plaintiffs receive notice of, and an opportunity to attend, ex parte interviews by defense counsel with plaintiff Alexa’s treating physicians.
A trial court’s decision on discovery motion is reviewed for an abuse of discretion. Holman v Rasak, 486 Mich 429, 436; 785 NW2d 98 (2010). Questions of statutory interpretation are reviewed de novo as questions of law. Id.
The parties agree that the trial court is authorized to permit ex parte meetings with witnesses, in the inter ests of efficient discovery. Our Supreme Court has recently affirmed this position on facts very similar to the instant case. In Holman, the Court stated:
Ex parte interviews are permitted under Michigan law, and nothing in HIPAA specifically precludes them. Because it is possible for defense counsel to insure that any disclosure of protected health information by the covered entity complies with [HIPAA] by making “reasonable efforts” to obtain a qualified protective order, HIPAA does not preempt Michigan law concerning ex parte interviews. [Holman, 486 Mich at 442; see also G P Enterprises, Inc v Jackson Nat’l Life Ins Co, 202 Mich App 557, 567; 509 NW2d 780 (1993) (ex parte interviews with treating physicians are generally proper).]
Toward the end of its opinion, the Court concluded that “a trial court retains its discretion under MCR 2.302(C) to issue protective orders and to impose conditions on ex parte interviews.” Holman, 486 Mich at 447-448. The Court in Holman, however, was not asked to consider the validity of any actual conditions imposed on ex parte interviews.
MCR 2.302(C) provides, in relevant part:
On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....
Thus, the issue to be resolved is whether there has been a demonstration of good cause requiring the conditions imposed by the trial court on the proposed ex parte interviews, i.e., whether imposition of § 1(D). (requiring defendants to give plaintiffs’ attorney notice of the time, date and locations of meeting) and § 1(E). (allowing plaintiffs’ counsel to attend the meetings) of the order was an abuse of discretion.
The protective order in this case was sought by defendants in an effort to comply with HIPAA. See Holman, 486 Mich at 438-442 (discussing HIPAA requirements and Michigan law). The first part of the protective order — the portion sought by defendants— specifically prohibits defendants from using or disclosing any health information acquired in the covered interviews, as required by HIPAA. See 45 CFR 164.512(e)(l)(v). The additional conditions imposed by the trial court — that plaintiffs’ counsel must have notice and may be present at the interviews — were sought by plaintiffs only in response to appellants’ motion and have no bearing on the disclosure of health information. Thus, MCR 2.302(C) requires that the additional conditions be justified in their own right.
Plaintiffs argued in the trial court that the treating physicians in this case could be subject to intimidation “when confronted with an Order permitting him or her to meet with Defense counsel.” Plaintiffs further argue on appeal that “topics of conversation that could arise in an ex parte conversation are subjects such as malpractice in general, the witness’s insurance company, how premiums could rise against all doctors in the event of a verdict, mutual acquaintances, just to name a few.” We observe that the specter of intimidation raised by plaintiffs would be theoretically present in any medical malpractice case. Plaintiffs have not identified any facts in this case supporting a specific fear that defense counsel would “intimidate” the treating physicians during a voluntary ex parte interview. See Herald Co v Tax Tribunal, 258 Mich App 78, 88-89; 669 NW2d 862 (2003) (protective order appropriate to protect trade secrets); Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 35-36; 654 NW2d 610 (2002) (protective order proper in the absence of any demonstration that proposed discovery is relevant). Further, plaintiffs have not argued that the interviews sought by defendants are not relevant to the issues in this case, or that there is any specific danger of “annoyance, embarrassment, oppression, or undue burden or expense.” MCR 2.302(C). They only argue that there is a generalized danger of intimidation.
Thus, in the words of MCR 2.302(C), there has been no showing that “justice requires” the conditions requested by plaintiffs and imposed by the trial court. Because the trial court’s authority to issue a protective order is defined by MCR 2.302(C), the trial court abused its discretion when it imposed the conditions within § 1(D) and § 1(E) of the order on ex parte interviews with the treating physicians unrelated to compliance with HIPAA, or any related privacy concerns, and in the absence of evidence to support a reasonable concern for intimidation, harassment, and the like. Donkers v Kovach, 277 Mich App 366, 368; 745 NW2d 154 (2007) (error of law may lead to abuse of discretion).
Reversed in part, vacated in part, and remanded for further proceedings. We do not retain jurisdiction.
No costs, neither party having prevailed in full. MCR 7.219(A).
Defendants-appellants, B. Najem, M.D., and Huron Valley Pediatrics, PC., actually filed the application for leave to appeal, and defendants-cross-appellants, Joy Inyang, M.D., Michael Falzon, M.D., and Huron Valley Hospitals, Inc., filed a cross-appeal raising the identical issue raised by defendants-appellants. Defendants-cross-appellants had likewise filed a concurrence with defendants-appellants’ motion in the trial court that is the subject of this appeal. Accordingly, we will address the two claims together on appeal.
Szpak v Inyang, unpublished order of the Court of Appeals, entered October 16, 2009 (Docket No. 292625).
The protective order actually prohibited all ex parte contact with the treating physicians of plaintiffs David Szpak and Michelle Szpak. The trial court has since dismissed the individual claims of David and Michelle, leaving only the claims of Alexa, their daughter. As a result, defendants’ challenge to § II of the order concerning the physicians of David and Michelle is now moot.
Defendants have not challenged any parts of the order other than § 1(D) and § 1(E), except § II, which is already noted as now moot. | [
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Per Curiam.
Respondent appeals as of right the probate court’s grant of petitioner’s petition for forfeiture and revocation of benefits. Respondent argues that the probate court improperly construed MCL 700.2803, Michigan’s “slayer statute,” as preventing her, as one convicted of the voluntary manslaughter of the decedent, from receiving benefits from the decedent’s estate. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
I. FACTS
Respondent’s husband, Michael Stephen Nale (the “decedent”), was stabbed to death on September 13, 2007. Respondent was charged with second-degree murder, MCL 750.317, in his death. On February 19, 2009, a jury convicted her of voluntary manslaughter, MCL 750.321, and she was sentenced to 34 to 180 months in prison.
On August 5, 2009, petitioner, Julia Cook, successor personal representative of the decedent’s estate, filed in the Macomb County Probate Court a petition for forfeiture and revocation of benefits, arguing that respondent had forfeited all benefits from the decedent’s estate under MCL 700.2803 because she had “feloniously and intentionally” killed the decedent. Respondent argued that the.term “feloniously and intentionally,” as used in MCL 700.2803, refers to first- and second-degree murder, but not manslaughter. At a hearing on the petition, the court disagreed and entered an order granting the petition.
II. STANDARD OF REVIEW
In general, an appeal from a probate court decision is on the record, not de novo. MCL 600.866(1); In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). Nonetheless, questions of law, such as issues of statutory construction, are reviewed de novo. Temple, 278 Mich App at 128. The instant case involves a question of law construing MCL 700.2803, and our review is de novo.
III. ANALYSIS
When interpreting statutes, a court’s primary goal is to determine and give meaning to the Legislature’s intent. McJunkin v Cellasto Plastic Corp, 461 Mich 590, 598; 608 NW2d 57 (2000). Once ascertained, the Legislature’s intent must prevail despite any conflicting rule of statutory construction. Terzano v Wayne Co, 216 Mich App 522, 526-527; 549 NW2d 606 (1996). This Court may determine legislative intent by considering the language of the statute and the general scope the statute seeks to accomplish or the evil it seeks to remedy. Cowen v Dep’t of Treasury, 204 Mich App 428, 431-432; 516 NW2d 511 (1994). In construing the language of a statute, “the Legislature is deemed to act with an understanding of common law in existence before the legislation was enacted.” Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997).
The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., provides that a devisee who “feloniously and intentionally” kills a decedent forfeits all benefits from the decedent’s estate. MCL 700.2803 states, in pertinent part:
(1) An individual who feloniously and intentionally kills the decedent forfeits all benefits under this article with respect to the decedent’s estate, including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead allowance, a family allowance, and exempt property. If the decedent died intestate, the decedent’s intestate estate passes as if the killer disclaimed his or her intestate share.
(2) The felonious and intentional killing of the decedent does all of the following:
(a) Revokes all of the following that are revocable:
(i) Disposition or appointment of property made by the decedent to the killer in a governing instrument.
(ii) Provision in a governing instrument conferring a general or nongeneral power of appointment on the killer.
(iii) Nomination of the killer in a governing instrument, nominating or appointing the killer to serve in a fiduciary or representative capacity, including a personal representative, executor, trustee, or agent.
(b) Severs the interests of the decedent and killer in property held hy them at the time of the killing as joint tenants with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common.
This provision, sometimes referred to as a “slayer rule,” is derived from the common-law rules that one who commits a murder cannot benefit by his or her criminal act and that no devisee can take under the will of a testator whose death has been caused by the criminal act of the devisee. Garwols v Bankers Trust Co, 251 Mich 420, 428; 232 NW 239 (1930).
Respondent was convicted of voluntary manslaughter. She argues that manslaughter does not involve an “intentional killing,” and notes that she was specifically acquitted of murdering her husband. Thus, respondent asserts that MCL 700.2803 does not prevent her from receiving benefits from the estate of her late husband. The issue in this case rests, therefore, on the meaning of the term “intentionally” as used by the Legislature in MCL 700.2803 when describing the killing of a decedent.
The manslaughter statute, MCL 750.321, encompasses two types of common-law manslaughter: voluntary and involuntary. People v Townes, 391 Mich 578, 588-589; 218 NW2d 136 (1974). Although the punishment for manslaughter is defined by statute, the common law defines the elements of voluntary and involuntary manslaughter. People v Pouncey, 437 Mich 382, 388; 471 NW2d 346 (1991).
The Michigan Supreme Court has defined voluntary manslaughter as an intentional killing committed under the influence of passion or hot blood produced by adequate provocation and before a reasonable time has passed for the blood to cool. People v Mendoza, 468 Mich 527, 534-535; 664 NW2d 685 (2003), citing Maher v People, 10 Mich 212, 219 (1862); People v Fortson, 202 Mich App 13, 19; 507 NW2d 763 (1993). An essential element of the crime of voluntary manslaughter is the intent to kill or commit serious bodily harm. People v Delaughter, 124 Mich App 356, 360; 335 NW2d 37 (1983). Murder and voluntary manslaughter are both homicides that share the element of being “intentional” killings. People v Hess, 214 Mich App 33, 38; 543 NW2d 332 (1995). However, the existence of provocation characterizes the offense of voluntary manslaughter, Pouncey, 437 Mich at 388, whereas the presence of malice characterizes murder, Mendoza, 468 Mich at 534-535.
In contrast, involuntary manslaughter has been defined as “ ‘the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.’ ” People v Scott, 29 Mich App 549, 551; 185 NW2d 576 (1971), quoting People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923). Courts have, therefore, specifically designated voluntary manslaughter an “intentional” killing.
Before the enactment of MCL 700.2803 and its predecessor, MCL 700.251, the Michigan Supreme Court twice referred favorably to a description of the common-law “slayer rule” as described in Wharton on Homicide (3d ed), § 665:
“To permit a person who commits a murder, or any person claiming under him, to benefit by his criminal act, would be contrary to public policy. And no devisee can take under the will of a testator whose death has been caused by the criminal and felonious act of the devisee himself. And in applying this rule, no distinction can be made between a death caused by murder and one caused by manslaughter. ” [Garwols, 251 Mich at 428 (emphasis added); see also Budwit v Herr, 339 Mich 265, 270-271; 63 NW2d 841 (1954), quoting with approval Garwols quoting Wharton.]
While those cases did not involve the application of the common-law rule in the context of manslaughter, they nonetheless reveal that the common-law application of the slayer rule extends beyond the crime of murder to manslaughter.
When the Legislature enacts statutes in derogation of the common law, it is presumed to know the existence of the common law. Wold Architects & Engineers v Strat, 474 Mich 223, 234; 713 NW2d 750 (2006). Had the Legislature, knowing the state of the common law, intended to limit the operation of MCL 700.2803 to instances where the beneficiary murders the decedent, it could have used that spécific term. Furthermore, when a statute contravenes the common law, courts must construe the statute so that it results in the least change in the common law. Nation, 454 Mich at 494. Given that there is no reason to believe that the Legislature intended to limit the operation of MCL 700.2803 in this way, it is fair to conclude that it intended to encompass the crimes that the common law deems “intentional killings,” including voluntary manslaughter.
Because voluntary manslaughter has been defined by Michigan courts as an intentional killing, and because the common law “slayer rule” has never been limited to the crime of murder, it follows logically that MCL 700.2803 operates to prevent one convicted of voluntary manslaughter from benefiting from the estate of the decedent. Because respondent was convicted of voluntary manslaughter, she is subject to the forfeiture rule of MCL 700.2803.
Affirmed.
Cf. Ernsting v Ave Maria College, 274 Mich App 506, 513; 736 NW2d 574 (2007) (stating that had the Legislature intended to limit the term "law enforcement agency” to mean only state and local law enforcement agencies, it could have expressly so stated, as it did in other sections of the Whistleblowers’ Protection Act, MCL 15.361 et seq.). | [
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Saad, P.J.
Defendants, 132 Associates, L.L.C., and the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe), appeal the trial court’s grant of summary disposition to plaintiff, Bates Associates, L.L.C. Though both defendants filed a claim of appeal, only the Tribe challenges the trial court’s judgment against it. For the reasons set forth in this opinion, we affirm.
I. FACTS
This dispute arises from the purchase of a parking garage located near the Greektown Casino in Detroit. The Tribe is a federally recognized Indian tribal government that owned 132 Associates and Greektown Casino, L.L.C. In 2000, the casino sought a license from the Michigan Gaming Control Board to begin operations, but it lacked adequate parking. To remedy the problem, Bates agreed to assign to defendants its right to purchase a parking garage near the casino. In conjunction with this assignment, defendants agreed to make significant repairs to the garage and to give Bates an option to purchase the garage for $1 at any time within seven years after the execution of the agreement.
Bates exercised its option to purchase the garage, but title to the garage was not delivered within the seven-year option period, and the parties disputed the extent of repairs needed to render the garage in good condition. Ultimately, the parties reached a settlement agreement requiring that title to the garage be delivered to Bates and requiring 132 Associates to pay Bates a total of $2,250,000 in four installments. After defendants failed to make their installment payments and refused to turn over title to the garage, Bates filed suit, alleging breach of the settlement agreement and requesting an order requiring defendants to transfer title to the garage. The trial court entered a prehminary injunction that required defendants to transfer title to Bates by June 13, 2008. On June 23, 2008, defendants filed a counterclaim, alleging that they had transferred title to the garage to Bates, but Bates owed them $91,619.28, which it refused to pay.
Bates and defendants filed motions for summary disposition. Defendants contended that the Tribe’s chief financial officer (CFO), Victor Matson, lacked authority to enter into the settlement agreement and that the waiver of sovereign immunity in the settlement agreement was invalid. The trial court disagreed and granted summary disposition to Bates.
II. ANALYSIS
The parties’ settlement agreement specifically incorporated the waiver of sovereign immunity provided in § 10 of their sale agreement. The settlement agreement stated, in relevant part:
The Tribe’s waiver of sovereign immunity as provided in Section 10 of the Agreement of Sale attached to the Option Agreement dated November 3, 2000 is incorporated herein by reference with regard to any action or proceeding by Bates to enforce its rights relating to relating to [sic] this Settlement Agreement, the Tribe’s guaranty, the parties’ agreements, and/or Bates Garage.
Section 10 of the sale agreement provided:
Waiver of Immunity The Seller and the Tribe (in connection with aforemented [sic] guaranty the Tribe) hereby expressly waive their sovereign immunity from suit should an action be commenced with respect to this Agreement or any document executed in connection with this Agreement of Sale. This waiver (i) is granted to Purchaser, its successor and assigns; (ii) shall be enforceable in [a] court of competent jurisdiction; and (iii) the governing law shall be the internal laws of the State of Michigan. The Seller and Tribe hereby expressly submit to and consent to the jurisdiction of the Federal District Court for the Eastern District of Michigan (including all federal courts to which decisions of the Federal District Court for the Eastern District of Michigan may be appealed), and the courts of the State of Michigan (including all courts to which decisions of the original jurisdiction courts of the State of Michigan may be appealed). In the event a suit is commenced, the Seller and Tribe covenant that they will not dispute the jurisdiction of the United States District Court for the Eastern District of Michigan and all federal courts to which decisions of the United States District Court for the Eastern District of Michigan may be appealed, and to the jurisdiction of the courts of the State of Michigan, and all courts to which decisions of the original jurisdiction courts of the State of Michigan may be appealed. Seller and Tribe further covenant that if a suit is commenced on or regarding the subject matter of this Agreement, it will stipulate and consent to the jurisdiction of the federal courts or State of Michigan courts, as described above.
Thus, the settlement agreement incorporated the Tribe’s waiver of sovereign immunity set forth in the sale agreement, and this waiver specifically provided that it was enforceable in a court of competent jurisdiction and that laws of the state of Michigan would govern.
“As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Oklahoma v Mfg Technologies, Inc, 523 US 751, 754; 118 S Ct 1700; 140 L Ed 2d 981 (1998). This immunity applies to a tribe’s commercial contracts, whether made on or off of an Indian reservation. Id. at 760. “[T]o relinquish its immunity, a tribe’s waiver must be ‘clear.’ ” C & L Enterprises, Inc v Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 US 411, 418; 121 S Ct 1589; 149 L Ed 2d 623 (2001), quoting Oklahoma Tax Comm v Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 US 505, 509; 111 S Ct 905; 112 L Ed 2d 1112 (1991). Likewise, a waiver cannot be implied and must be unequivocally expressed. Santa Clara Pueblo v Martinez, 436 US 49, 58; 98 S Ct 1670; 56 L Ed 2d 106 (1978).
In C & L Enterprises, 532 US at 423, the Court ruled that the respondent Indian tribe had waived its immunity from suit by expressly agreeing to arbitrate disputes with the petitioner, C & L Enterprises, Inc., and by agreeing that Oklahoma law would govern such disputes. The tribe contracted with C & L for the installation of a roof on a building that the tribe owned. Id. at 414. The parties’ contract was a standard form agreement requiring that all disputes arising out of or relating to the contract be resolved by arbitration. The contract also contained a clause stating that the contract would be governed by the law applicable in the place where the project was located. Under Oklahoma’s Uniform Arbitration Act, agreements providing for arbitration in the state of Oklahoma conferred jurisdiction on any court of competent jurisdiction in the state. Id. at 415-416. Ultimately, an arbitrator rendered an award in C & L’s favor, and C & L filed suit to enforce the award in an Oklahoma state court of general jurisdiction. Id. at 416. The tribe sought dismissal of the suit on the basis of its sovereign immunity, and an appellate court determined that the tribe had not waived its immunity with the requisite clarity. Id. at 416-417.
The United States Supreme Court disagreed. The Court held that the contract’s arbitration provision required arbitration of all disputes related to the contract and that the contract’s choice-of-law clause made it clear that the Oklahoma court in which C & L filed suit was a “ ‘court having jurisdiction’ ” to enforce the arbitrator’s award. Id. at 418-419. The Court stated that, by selecting Oklahoma law, the parties “effectively consented to confirmation of the award ‘in accordance with’ the Oklahoma Uniform Arbitration Act[.]” Id. at 419. The Court recognized that the tribe agreed by express contract to adhere to the dispute resolution procedures outlined in the contract. Id. at 420. The Court acknowledged that there was no requirement that a waiver contain the words “sovereign immunity” to be considered explicit rather than implicit. Id. at 420-421. Further, in response to the tribe’s argument that the form contract designed for private parties without immunity could not have established a valid waiver of its tribal immunity, the Court determined that the contract was not ambiguous and recognized that the tribe itself had proposed the contract. The Court thus held that the tribe had clearly consented to arbitration and to the enforcement of the arbitrator’s award in an Oklahoma state court. Accordingly, the Court concluded that the tribe had waived its sovereign immunity. Id. at 423.
Because the settlement agreement here incorporated the Tribe’s waiver of sovereign immunity set forth in the sale agreement and the waiver unequivocally provided that it was enforceable in a court of competent jurisdiction and that laws of the state of Michigan would govern, the waiver is similar to that in C & L Enterprises, which stated that Oklahoma law would govern the dispute and that jurisdiction was proper in any court of competent jurisdiction in the state of Oklahoma. Moreover, the waiver in this case is clearer and more explicit than that in C & L Enterprises because the waiver in that case was simply an arbitration clause contained in a form agreement. In this case, neither the settlement agreement nor the sale agreement was a form agreement, and the waiver was clear and unequivocal. Further, ¶ 11 of the settlement agreement contained additional language stating that the agreement “shall be governed by and interpreted in accordance with the laws of the State of Michigan.” As in C & L Enterprises, this choice-of-law provision explicitly waived tribal-court jurisdiction. Therefore, because the waivers of sovereign immunity and tribal-court jurisdiction were clearly and unambiguously expressed, they are enforceable. C & L Enterprises, 532 US at 418; Santa Clara Pueblo, 436 US at 58.
The Tribe argues that the purported waivers of sovereign immunity and tribal-court jurisdiction in the settlement agreement are invalid because they were not supported by a resolution of the Tribe’s board of directors as required under § 44.105 and § 44.109 of the Tribe’s code. We note that the United States Supreme Court has not addressed this issue and has not required anything other than clear, unequivocal language for a valid waiver. See C & L Enterprises, 532 US at 418; Santa Clara Pueblo, 436 US at 58. The Tribe argues, however, that Memphis Biofuels, LLC v Chickasaw Nation Indus, Inc, 585 F3d 917 (CA 6, 2009), compels reversal of the trial court’s decision. We are not bound by decisions of the United States Court of Appeals for the Sixth Circuit, State Treasurer v Sprague, 284 Mich App 235, 241-242; 772 NW2d 452 (2009), and we are not persuaded that Memphis Biofuels warrants reversal.
Memphis Biofuels involved the plaintiff, Memphis Biofuels, L.L.C. (MBF), and Chickasaw Nation Industries, Inc. (CNI), a corporation wholly owned by the Chickasaw Nation Indian tribe but an entity separate and distinct from the tribe. In 2006, MBF and CNI entered into a contract whereby CNI would deliver fuel and soybean oil to MBF for refinement and resale. During contract negotiations, MBF insisted on a contractual provision stating that CNI waived any sovereign immunity and that its waiver was valid, enforceable, and effective. Memphis Biofuels, 585 F3d at 918. The parties exchanged draft versions of the agreement, and one of the drafts that CNI’s attorneys reviewed and approved contained two comments indicating that CNI board approval was necessary to waive immunity. Id. at 918-919. Ultimately, however, the parties signed the agreement without obtaining board approval. Id. at 919. Notably, CNI’s charter required board approval in order to waive sovereign immunity. Id. at 921. After CNI repudiated the agreement, both parties commenced legal action. Id. at 919.
The Sixth Circuit acknowledged that although no resolution had been passed, both parties signed a waiver provision waiving all immunities. Id. at 922. The Sixth Circuit also acknowledged that MBI believed that CNI had obtained the required approval for its waiver. Nonetheless, the court held that CNI’s charter controlled and that CNI’s sovereign immunity remained intact without board approval waiving such immunity. Id.
A different result was reached in Smith v Hopland Band of Pomo Indians, 95 Cal App 4th 1; 115 Cal Rptr 2d 455 (2002). In that case, Smith, an architect, entered into two contracts with the defendant tribe to provide planning and architectural services. Id. at 3. The contracts included the American Institute of Architects standard form agreement requiring arbitration of disputes and enforcement of arbitration awards in any court having jurisdiction. Id. After Smith filed suit, the tribe argued that either a duly enacted tribal ordinance or a resolution of the tribal council was required to waive the tribe’s sovereign immunity. Id. at 4-5. Ultimately, the trial court dismissed the action on this basis. Id. at 5.
On appeal, the court opined that the contractual language was indistinguishable from that in C & L Enterprises, and that the only reasonable interpretation of the terms was that they clearly and explicitly waived sovereign immunity. Id. at 6. In addressing the tribe’s argument that the chairperson did not have actual authority to waive sovereign immunity absent an ordinance or resolution explicitly providing for such a waiver, the court recognized that the tribe did not dispute that the chairperson had the authority to negotiate the contracts and execute the final versions that incorporated the arbitration clause and choice-of-law provision. Id. at 7. The court also recognized that the tribe subsequently approved the contracts by resolution and that Smith gave all members of the tribal council copies of the contracts at a meeting during which the council authorized the chairperson to negotiate and execute the contracts. Id. at 7-8. The court further recognized that Smith and the tribal council negotiated the contracts during a subsequent meeting and modified the contractual terms. Thus, the court held that the tribal council was fully aware of the contractual terms and was not presented with a situation in which a tribal agent signed a contract without authority to act on the tribe’s behalf. Id. at 8. Thus, the court determined that the tribe had waived its sovereign immunity. Id. at 12.
The court rejected the tribe’s argument that the effect of the sovereign-immunity ordinance was to require the enactment of an ordinance or resolution specifically waiving sovereign immunity notwithstanding that the tribe had authorized one of its officials to execute the contracts and notwithstanding the tribe’s subsequent approval of the contracts. Id. at 9. The court stated that the tribe’s argument assumed that the court must apply the tribal sovereign-immunity ordinance to determine that the otherwise binding contracts were ineffective to waive sovereign immunity because the explicit waiver was made by contract rather than by ordinance or resolution. Id. In rejecting that argument, the court reiterated many of the reasons previously discussed, but also ruled that federal law rather than tribal law was applicable to resolve this question and that, if the court did not refer to federal law, it would not apply tribal law because the contracts specified that they were to be governed by California law. Id. at 10. The court thus determined that the tribe, through its chairperson and subsequent resolution by the tribal council, had executed contracts that clearly and explicitly waived the tribe’s sovereign immunity. Id. at 12.
The facts of this case warrant a result similar to that in Smith. Victor Matson, as the Tribe’s CFO, clearly had authority to enter into the settlement agreement, as demonstrated by the fact that he was the same person who signed the deed when title to the garage was transferred to Bates pursuant to the preliminary injunctive order compelling the transfer. Both the Tribe and Bates made changes to the settlement agreement during negotiations, and the waiver provisions remained in the final version of the agreement that the parties executed. Those provisions incorporated the waiver of sovereign immunity contained in the sale agreement and specifically provided that the settlement agreement would be governed by the laws of the state of Michigan rather than by tribal law. Unlike in Memphis Biofuels, there is no indication that Bates was aware that a tribal resolution was necessary for the Tribe to waive its sovereign immunity or tribal-court jurisdiction.
During the months following the execution of the settlement agreement, neither the Tribe nor the Tribe’s attorney represented that the agreement was invalid, and $49,000 was paid to Bates pursuant to the agreement. Not until after Bates filed its complaint did the Tribe contend that the settlement agreement was unenforceable. These factors show that the Tribe was aware of the settlement negotiations and authorized Matson to execute the agreement despite the waivers of sovereign immunity and tribal-court jurisdiction contained therein.
Further, although there was no tribal resolution specifically pertaining to the waivers of sovereign immunity and tribal-court jurisdiction in the settlement agreement, the Tribe conceded in the trial court that there was a tribal resolution, Resolution No. 2000-148, pertaining to the sale agreement and that § 10 of the sale agreement was incorporated into the settlement agreement. The Tribe asserted in the trial court that it had waived its sovereign immunity and tribal-court jurisdiction with respect to the sale agreement and option agreement. The Tribe contended that Resolution No. 2000-148 authorized the waivers of sovereign immunity and tribal-court jurisdiction regarding both agreements and that the only question was whether those waivers were incorporated into the settlement agreement. The Tribe argued for the first time in its motion for reconsideration in the trial court that the resolution did not waive sovereign immunity with respect to the sale agreement or the option agreement. The Tribe asserts the same argument in this Court and contends that the waivers authorized by the resolution pertained only to a guaranty agreement with Bank One. By conceding that the waivers in the option agreement and sale agreement were valid, however, the Tribe waived any argument that they were invalid because they were not supported by a tribal resolution. A party may not claim as error on appeal an issue that the party deemed proper in the trial court because doing so would permit the party to harbor error as an appellate parachute. Marshall Lasser, PC v George, 252 Mich App 104, 109; 651 NW2d 158 (2002).
Accordingly, the circumstances of this case support the trial court’s determination that the Tribe waived its sovereign immunity and tribal-court jurisdiction. The conduct of the parties both during the settlement agreement negotiations and after the agreement was executed support this conclusion. The settlement agreement itself contained waivers of sovereign immunity and tribal-court jurisdiction and incorporated by reference the clear and unequivocal waivers set forth in the sale agreement, which the Tribe conceded was supported by a valid resolution. In light of these facts, the trial court correctly ruled that the Tribe had waived its sovereign immunity and tribal-court jurisdiction and correctly granted summary disposition and entered judgment in Bates’s favor.
Affirmed.
We review de novo a trial court’s decision on a motion for summary disposition. Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary disposition under MCR 2.116(0(10) is properly granted if no factual dispute exists, thus entitling the moving party to judgment as a matter of law. Rice v Auto Club Ins Ass’n, 252 Mich App 25, 31; 651 NW2d 188 (2002). In deciding a motion brought under subrule (0(10), a court considers all the evidence, affidavits, pleadings, and admissions in the light most favorable to the nonmoving party. Id. at 30-31. The nonmoving party must present more than mere allegations to establish a genuine issue of material fact for resolution at trial. Id. at 31.
See also Oglala Sioux Tribe v C & W Enterprises, Inc, 542 F3d 224, 231 (CA 8, 2008) (holding that the Indian tribe waived its sovereign immunity with respect to three contracts that contained agreements to arbitrate as well as other explicit waivers of sovereign immunity). | [
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Murphy, C.J.
Plaintiff appeals by leave granted the trial court’s order that directed him to act as trustee for the benefit of defendant with respect to half of plaintiffs monthly combat-related special compensation (CRSC), 10 USC 1413a, which funds were then to be delivered to defendant. We reverse and remand.
I. OVERVIEW
Pursuant to a divorce judgment entered in September 1989, defendant was awarded 50 percent of plaintiffs Navy disposable retirement pay as part of the property division, and the judgment incorporated a qualified domestic relations order (QDRO) to enforce that provision. The QDRO acknowledged the 50 percent division of plaintiffs disposable retirement pay, also referred to therein as his pension, and it prevented plaintiff from making another benefit election “that would otherwise reduce the monthly pension allotment without the written consent of [defendant],’’According to defendant, she began receiving her share of plaintiffs retirement pay in January 2008, although plaintiff claims that defendant had been receiving her share of his retirement pay since 1994. In 2008, plaintiff was officially diagnosed, for purposes of entitlement to disability benefits, as being disabled as a result of combat-related activities and exposure to Agent Orange in Vietnam. He was declared eligible to elect CRSC, but that election would require plaintiff to waive further receipt of his retirement pay. Plaintiff elected to receive CRSC, resulting in termination of his retirement pay and thus the cessation of funds flowing to defendant under the QDRO. Defendant moved to enforce the divorce judgment and the QDRO, and the trial court entered the challenged order that effectively forces plaintiff to pay defendant half of his CRSC.
We hold that following a divorce, a military spouse remains financially responsible to compensate his or her former spouse in an amount equal to the share of retirement pay ordered to be distributed to the former spouse as part of the divorce judgment’s property division when the military spouse makes a unilateral and voluntary postjudgment election to waive the retirement pay in favor of disability benefits contrary to the terms of the divorce judgment. Conceptually, and consistently with extensive caselaw from other jurisdictions, we are dividing waived retirement pay in order to honor the terms and intent of the divorce judgment. Importantly, we are not ruling that a state court has the authority to divide a military spouse’s CRSC, nor that the military spouse can be ordered by a court to pay the former spouse using CRSC funds. Rather, the compensation to be paid the former spouse as his or her share of the property division in lieu of the waived retirement pay can come from any source the military spouse chooses, but it must be paid to avoid contempt of court. To be clear, nothing in this opinion should be construed as precluding a military spouse from using CRSC funds to satisfy the spouse’s obligation if desired. In these situations, because the ordered replacement compensation must relate to the military spouse’s retirement-pay obligation and not the disability pay now being received, and because the military spouse, having made the election, will no longer actually be receiving the retirement pay, it may be necessary on occasion to review and determine whether any adjustments to the retirement pay would have been made had the military spouse continued receiving the retirement pay.
Accordingly, although we agree with the trial court that plaintiff must compensate defendant, we reverse the trial court’s ruling because its order required plaintiff to pay defendant from CRSC funds and required plaintiff to pay an amount equal to half of his CRSC and not half of his envisioned retirement pay. We remand for entry of an order requiring plaintiff to compensate defendant with monthly payments, from any source or combination of sources chosen, in an amount equal to 50 percent of the retirement pay that he would be receiving but for his election to waive the retirement pay in favor of disability benefits.
II. FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in June 1966 and had two children who were born in 1968 and 1971. Plaintiff is a veteran who served in the Navy from September 1966 to June 1970 and then again from March 1974 to June 1994. He engaged in combat-related activities and was exposed to Agent Orange while serving in Vietnam. On July 26,1988, plaintiff filed a complaint for divorce, and subsequently defendant filed a counterclaim for divorce. On September 12, 1989, a divorce judgment was entered and, although not titled a consent judgment, it is clear from the record that it was entered with the consent of the parties; there was no trial. The divorce judgment dissolved the marriage; awarded defendant $100 a week in periodic spousal support for five years, or until her death or remarriage, whichever occurred first; ordered plaintiff to pay child support arrearages at the rate of $25 a week until the balance was paid in full; and divided the parties’ property. The property-settlement portion of the judgment indicated that defendant was awarded a mortgagee’s interest in a parcel of property located in Georgia, that plaintiff was ordered to pay all joint marital debts previously incurred, that plaintiff was awarded the entire interest in a vacation-resort membership, that defendant was awarded two motor vehicles, that the parties were awarded their own personal property that was in their possession, and that certain bonds were to be divided 60 percent to 40 percent, with defendant taking the larger share. The judgment further provided:
IT IS FURTHER ORDERED AND ADJUDGED that JOAN C. MEGEE shall be awarded 50% interest in RONALD A. MEGEE’S U.S. Navy disposable retirement or retainer pay at such time as he receives it. The parties approve and incorporate by reference a [QDRO] attached as Exhibit A of this Judgment of Divorce.
With respect to the QDRO referred to in the divorce judgment, it provided, in pertinent part, as follows:
7.) The parties agree and the Court orders that JOAN C. MEGEE shall receive fifty (50%) percent of RONALD A. MEGEE’S Navy disposable retirement or retainer pay as property settlement when he begins receiving the same.
11.) RONALD A. MEGEE shall make no other benefit election included but not limited to an annuity or survivor-ship option that would otherwise reduce the monthly pension allotment without the written consent of JOAN C. MEGEE.
13.) The parties agree that their mutual intent is to provide JOAN C. MEGEE with fifty (50%) percent of RONALD A. MEGEE’s disposable retirement or retainer pay.
According to military records contained in the lower-court file, plaintiff ceased working at his job in May 2004. The military was in possession of a record from the Social Security Administration (SSA) indicating that the SSA had characterized plaintiff as being disabled since February 2005. Plaintiff suffers from posttraumatic stress disorder (PTSD), peripheral neuropathy of the lower extremities (left and right side), and diabetes mellitus. The Department of Veterans Affairs (VA), pursuant to a decision in August 2008, determined that “[t]he effective date of individual unemployability [was] June 30, 2006,” for purposes of entitlement to VA combat-related disability pay, which is different from CRSC, as discussed hereinafter. The VA document indicates that plaintiff sought but was denied VA disability benefits in 2007, but the 2008 assessment found a “clear and unmistakable error” in the 2007 decision relative to ratings or percentages that the VA ascribes for each service-connected disability on the basis of severity and that affect the decision to award benefits.
Also in 2008, the Secretary of the Navy’s Combat-Related Special Compensation Board (Board) approved plaintiffs application for CRSC, predicated, in part, on the VA’s finding of a compensable disability, along with the Board’s own independent findings that plaintiffs PTSD, neuropathies, and diabetes all resulted from either direct engagement in an armed conflict or through an instrumentality of war, in this case exposure to Agent Orange. The retroactive effective date for plaintiffs entitlement to CRSC was January 2008. As will be explained later in our review of the United States Code, plaintiff could not legally receive, in combination, his disposable retirement pay, VA disability benefits, and CRSC. Rather, he had to elect either retirement pay coupled with VA disability benefits or choose CRSC standing on its own. While there is a lack of documentary evidence on the subject, there is no dispute that plaintiff elected CRSC, effectively discontinuing receipt of his retirement pay and defendant’s share of that pay.
Defendant argued in the trial court that she began receiving her assigned share of plaintiffs retirement pay in January 2008 and received it through August 1, 2008, at which time she ceased receiving anything. Plaintiff claimed that defendant started receiving her 50 percent share of his disposable retirement pay in June 1994, not January 2008. The dispute on this matter was never addressed in the trial court, but we do note that plaintiffs military service ended in June 1994.
Defendant moved to enforce the divorce judgment and the QDRO in February 2009, asserting that plaintiff had elected, in violation of the judgment and the QDRO, to receive disability benefits, i.e., CRSC, instead of his retirement pay. Defendant requested that the trial court order plaintiff to withdraw his election to receive CRSC in place of retirement pay or, in the alternative, order plaintiff to act as a trustee relative to 50 percent of his benefits, given the clear intent to provide for an equal division reflected in the divorce judgment and the QDRO, and then order him to deliver the funds to defendant. In response, plaintiff admitted that he currently received CRSC, but countered that CRSC is not disposable retirement pay and that, for purposes of the divorce judgment and the QDRO, his election did not need defendant’s approval because the approval provision only pertained to elections relative to variations under the broad umbrella of disposable retirement pay, not a disability-related election. Plaintiff maintained that, once he became eligible for and selected CRSC for his injuries sustained in service to his country, the disposable retirement pay subject to the QDRO was no longer subject to division. Relying on Mansell v Mansell, 490 US 581; 109 S Ct 2023; 104 L Ed 2d 675 (1989), plaintiff further contended that federal law precluded the court from ordering him to give any of his CRSC to defendant, which, admittedly, left defendant with nothing.
Finding it to be the fair thing to do, given the clear intent in the divorce judgment and the QDRO that defendant receive half of plaintiffs pension, the trial court ordered plaintiff to act as trustee for the benefit of defendant with respect to half of plaintiffs benefits and then deliver those funds to defendant. The ruling essentially ordered plaintiff to turn over half of his CRSC to defendant.
On plaintiffs motion for reconsideration, the trial court, in denying the motion, determined that it had not committed a palpable error. The court further ruled that Mansell was inapplicable because in that case the disability benefits were already being received when the divorce judgment was entered and the instant action entailed a postjudgment election of disability benefits and waiver of retirement pay.
III. ANALYSIS
A. STANDARD OF REVIEW
We review de novo questions of law, Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998), including issues of statutory construction, Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006), and we find that interpretation of the divorce judgment and the QDRO is also a question of law, thereby necessitating review de novo.
B. UNITED STATES CODE
There are a number of pertinent federal statutes that we shall initially review before engaging in a discussion of the issues presented.
Members of the Navy who serve for a specified period, generally at least 20 years, are entitled to retire and to receive retirement pay. 10 USC 6321 el seq. Military veterans in general are entitled to compensation for service-connected disabilities under 38 USC 1101 et seq., which we have referred to in this opinion as “VA disability benefits.” Further, CRSC is available to an “eligible combat-related disabled uniformed services retiree who elects [such] benefits....” 10 USC 1413a(a). CRSC is “not retired pay.” 10 USC 1413a(g). To be eligible for CRSC, a person must be a member of the uniformed services who is entitled to retired pay and who has a combat-related disability. 10 USC 1413a(c). A combat-related disability is defined as follows:
In this section, the term “combat-related disability” means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that—
(1) is attributable to an injury for which the member was awarded the Purple Heart; or
(2) was incurred (as determined under criteria prescribed by the Secretary of Defense)—
(A) as a direct result of armed conflict;
(B) while engaged in hazardous service;
(C) in the performance of duty under conditions simulating war; or
(D) through an instrumentality of war. [10 USC 1413a(e).]
Plaintiff qualified for the three different forms of benefits already discussed — disposable retirement pay, VA disability benefits, and CRSC.
Pursuant to 10 USC 1414(a)(1), and effective January 1, 2004, “a member or former member of the uniformed services who is entitled for any month to retired pay and who is also entitled for that month to veterans’ disability compensation for a qualifying service-connected disability... is entitled to be paid both for that month . . . .” This concurrent receipt of military retirement pay and VA disability benefits is commonly referred to as CRDR which stands for “concurrent retirement and disability pay.” See Jackson v Jackson, 319 SW3d 76, 77 (Tex App, 2010). Because plaintiff was eligible for retirement pay and VA disability benefits, CRDP was an available option for plaintiff. A person who is qualified for CRDP and who is also qualified for CRSC, such as plaintiff, may elect to receive CRDP or CRSC, “but not both.” 10 USC 1414(d)(1); see also 10 USC 1413a(f) (indicating that CRSC and CRDP must be coordinated under 10 USC 1414[d]). During an annual open-enrollment period, a person has the “right to make an election to change” from CRDP to CRSC or “the reverse, as the case may be.” 10 USC 1414(d)(2). Plaintiff elected CRSC, which effectively discontinued his retirement pay that had been subject to the QDRO, halting payments to defendant.
The Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 USC 1408, generally governs the distribution of a spouse’s military retirement pay to a former spouse pursuant to a court order, including state court final decrees of divorce issued in accordance with the state’s laws and providing for the division of property expressed as a percentage of disposable retirement pay. 10 USC 1408(a)(1)(A) and (2). Section 1408(c)(1) provides, in pertinent part:
Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. [10 USC 1408(c)(1).]
Accordingly, disposable retired or retirement pay can be treated by a court as joint property and thus subject to division in a state court divorce decree. As used in the USFSPA, the term “disposable retired pay” is defined, in relevant part, as “the total monthly retired pay to which a member is entitled less amounts which. . . are deducted from the retired pay of such member... as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38[.]” 10 USC 1408(a)(4)(B). We note that, while VA disability benefits are provided for in title 38, the right to CRSC is found in title 10, not title 5 or title 38. As we will explain in our analysis of Mansell, which involved a waiver of retirement pay in favor of title 38 VA disability benefits, the fact that CRSC is a title 10 benefit is of some significance. Finally, the total amount of the disposable retirement pay of a military spouse that a court orders payable to the other spouse “may not exceed 50 percent of such disposable retire[ment] pay.” 10 USC 1408(e)(1).
With these provisions in mind, we now proceed to our discussion of the issues presented on appeal.
C. DISCUSSION
We begin by first holding that, contrary to plaintiffs contention, his unilateral decision to elect CRSC was contrary to the terms and intent of the QDRO and therefore the divorce judgment, given that the judgment incorporated by reference the QDRO. The clear language in the judgment and the QDRO required a 50 percent division of plaintiffs disposable retirement pay, and plaintiff was barred from making any “other benefit election... that would otherwise reduce the monthly pension allotment without the written consent of [defendant].” Plaintiff elected a benefit other than retirement pay when he elected CRSC to the exclusion of retirement pay, the election reduced and indeed eliminated defendant’s monthly share of plaintiffs retirement pay, and there is no claim that defendant gave consent of any kind for plaintiff to make the CRSC election. The parties had also agreed that their mutual intent was to provide defendant with 50 percent of plaintiffs retirement pay. The decision to elect CRSC and to waive in its entirety the retirement pay was inconsistent with the declared mutual intent. The question now becomes one of remedy.
We find that the issue properly framed is whether a military spouse remains financially responsible to compensate his or her former spouse in an amount equal to the share of retirement pay ordered to be distributed to the former spouse as part of a divorce judgment’s property division when the military spouse makes a unilateral and voluntary postjudgment election to waive the retirement pay in favor of disability benefits contrary to the terms of the divorce judgment.
In Mansell, a United States Supreme Court case, the husband, who had been in the military, was receiving retirement pay along with, pursuant to a waiver of a portion of the retirement pay, VA disability benefits. He was receiving both benefits at the time of the divorce. Pursuant to a property settlement that was incorporated into the divorce decree, the husband agreed to pay the wife 50 percent of his total military retirement pay, including that portion of retirement pay that he had waived in order to receive disability benefits. The husband then requested the trial court to modify the divorce decree by removing the provision requiring him to share his total retirement pay with his wife; he did not want to pay her a sum equal to half of the waived retirement pay. The trial court denied the request. The case made its way through the California appellate courts, with the husband arguing that the USFSPA and the statute protecting his disability benefits precluded the trial court from treating as community property that portion of his retirement pay that had been waived in favor of disability benefits. Mansell, 490 US at 585-587.
The Mansell Court stated that it was being called upon to decide whether state courts, consistently with the USFSPA, “may treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability benefits.” Id. at 583. The Court held that state courts lacked the authority .to make such a division, thereby ruling in favor of the husband. Id. The Court concluded that Congress had specifically enacted the USFSPA to change preexisting federal law that had completely preempted the application of state law to military retirement pay. Id. at 587-588. The Mansell Court noted that the USFSPA granted state courts the authority to divide military retirement pay as property, but the section of the USFSPA defining the term “disposable retired pay” specifically and clearly excluded military retirement pay that had been waived in order to receive VA disability payments, which is a benefit found in title 38. Id. at 588-589. The USFSPA’s definitional section relied on and quoted by the Court was 10 USC 1408(a)(4)(B), which, as indicated earlier, excludes from consideration as disposable retired pay amounts waived pursuant to law “in order to receive compensation under title 5 or title 38[.]” Mansell, 490 US at 589 n 9. Once again, CRSC is compensation received under title 10, and plaintiff here did not waive his right to retirement pay in order to receive compensation under title 5 or title 38, but to receive title 10 compensation.
The Mansell Court ruled that, although the USFSPA now granted authority to state courts to divide as property a military spouse’s disposable retirement pay in general, states continued to be federally preempted from dividing as property disposable retirement pay that had been waived in order to receive VA disability benefits. Id. at 590-592. The Court ultimately held:
Thus, the legislative history, read as a whole, indicates that Congress intended both to create new benefits for former spouses and to place limits on state courts designed to protect military retirees. Our task is to interpret the statute as best we can, not to second-guess the wisdom of the congressional policy choice.... Given Congress’ mixed purposes, the legislative history does not clearly support Mrs. Mansell’s view that giving effect to the plain and precise language of the statute would thwart the obvious purposes of the Act.
We realize that reading the statute literally may inflict economic harm on many former spouses. But we decline to misread the statute in order to reach a sympathetic result when such a reading requires us to do violence to the plain language of the statute and to ignore much of the legislative history. Congress chose the language that requires us to decide as we do, and Congress is free to change it.
For the reasons stated above, we hold that the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits. [Id. at 594-595.]
We glean from Mansell some important, but subtle, points. First, Mansell did not entail an attempted division or distribution of the husband’s VA disability benefits; rather, it concerned payments to the wife in an amount equal to half of the husband’s total retirement pay, even though a portion of that pay was no longer being received by the husband, considering that he had waived receipt of that portion in favor of VA disability benefits. The trial court here effectively divided plaintiffs CRSC and, although Mansell did not directly address division of disability pay, the USFSPA clearly does not allow such a division. Subsection (c)(1) of the USFSPA, 10 USC 1408(c)(1), permits a court to treat only “disposable retired pay” as “property of the member and his spouse,” and CRSC is “not retired pay,” 10 USC 1413a(g). Accordingly, the trial court erred by dividing plaintiffs CRSC and forcing plaintiff to pay a portion of his CRSC to defendant. However, on the subject addressed in Mansell, i.e., dividing waived retirement pay, the Mansell decision actually supports making plaintiff in the case at bar pay defendant half of the retirement pay that he would be receiving but for his election to take CRSC. The Mansell Court concluded that waived retirement pay could not be divided as property in circumstances in which the pay had been waived in favor of title 38 VA disability benefits, given that the definition of “disposable retired pay” in 10 USC 1408(a)(4)(B) excludes consideration of amounts waived in order to receive title 5 or title 38 compensation. Under the reasoning and rationale of Mansell, there would be no prohibition here against considering for division waived retirement pay under the USFSPA because we are addressing a waiver of title 10 CRSC not mentioned in 10 USC 1408(a)(4)(B). Thus, all of plaintiffs envisioned yet waived military-retirement pay can be divided without offending the USFSPA or Mansell. Accordingly, there is no bar to ordering plaintiff to compensate defendant in an amount equal to 50 percent of plaintiffs envisioned retirement pay as intended under the terms of the divorce judgment after plaintiff made a unilateral and voluntary postjudgment election to waive his retirement pay in favor of disability benefits contrary to the terms of the judgment.
Moreover, even aside from the title 10-title 38 distinction, our holding is consistent with appellate-court rulings from many other states on the issue. In reviewing these cases, we shall not provide too much in the way of details regarding the underlying facts because, for the most part, they are essentially the same as those that transpired here, i.e., postjudgment waivers of retirement pay in exchange for disability benefits that leave the nonmilitary, former spouse with reduced or no funds despite a divorce decree or settlement calling for the division of the military spouse’s retirement pay. We do note that most of these cases involved VA disability benefits and not CRSC, which makes the case for a division of retirement pay waived in favor of CRSC even more compelling considering that Mansell and the USFSPA could be viewed as being somewhat problematic with respect to retirement pay waived in favor of title 38 VA disability benefits. Also, a number of these cases did not involve judgment language, as is present here, requiring approval from the former spouse before the military spouse could make a different election, and plaintiff here consented to the preapproval condition, yet did not honor it. Indeed, a consent judgment is in the nature of a contract. Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008).
In Bandini v Bandini, 935 NE2d 253, 263 (Ind App, 2010), the Indiana Court of Appeals stated in a CRSC case that Mansell and the USFSPA do “not preclude state courts from requiring a military spouse to compensate a former spouse when the latter’s share of retirement pay is reduced by the military spouse’s unilateral post-dissolution waiver of retirement pay in favor of disability benefits.” The court held “that a military spouse may not, by a post-decree waiver of retirement pay in favor of disability benefits or CRSC, unilaterally and voluntarily reduce the benefits awarded the former spouse in a dissolution decree.” Id. at 264. The Indiana Court of Appeals concluded that the trial court had properly ordered the military spouse (husband) to compensate his former wife for the reduction in her share of retirement pay that was caused by the husband’s CRSC election. Id. Consistently with our ruling, the Indiana court warned, “Because Husband is free to compensate Wife from any of his available assets, the trial court’s order on remand need not and should not specify his CRSC benefit as the source of this compensation.” Id. at n 10 (emphasis added). One of the reasons the court gave for distinguishing Mansell was that Mansell was addressing a predissolution waiver of retirement pay and the Supreme Court did not “imply that a post-dissolution waiver need be treated the same way.” Id. at 263.
In Resare v Resare, 908 A2d 1006 (RI, 2006), the family court, after first emphasizing that it was not ordering the division of any disability benefits, ordered the military spouse to pay a sum equal to 35 percent of the gross pension that would have been in effect had the military spouse not unilaterally modified the stipulated property division with a pension waiver. The Rhode Island Supreme Court, affirming the family court’s ruling, held that the lower court had properly predicated its order on breach-of-contract principles. Id. at 1010.
In Hadrych v Hadrych, 2007 NMCA 1, ¶ 13; 140 NM 829, 833; 149 P3d 593 (NM App, 2006), the New Mexico Court of Appeals, indicating that it was adopting the majority view, held that the lower court had properly ordered the military spouse to compensate his former spouse for the reduction in retirement benefits that occurred when the military spouse converted them to disability benefits. The lower court’s ruling had not identified the disability benefits as being the source for the ordered compensation, leaving it to the military spouse to determine how to pay the compensation and utilize whatever assets he chose to satisfy the obligation. Id. The court of appeals stated that it was critical that “the court order [did] not specifically require that disability benefits provide the source of the funds paid to the non-military spouse.” Id. at ¶ 14; 140 NM at 833 (citation and quotation marks omitted).
In In re Marriage of Warkocz, 141 P3d 926, 928 (Colo App, 2006), the Colorado Court of Appeals agreed with the nonmilitary spouse “that the trial court erred in failing to award her the amount she would have received from husband’s military pay had he not applied for, and received, disability benefits.” The court held that, consistent with public policy and decisions in other jurisdictions, a trial court is not precluded from equitably enforcing a separation agreement. Id. at 930. The court stated that neither the USFSPA nor United States Supreme Court precedent requires “courts to completely ignore the economic consequences of a military retiree’s decision to waive retirement pay in order to collect disability pay.” Id. (citation and quotation marks omitted).
In Black v Black, 2004 ME 21, ¶ 10; 842 A2d 1280, 1285 (Me, 2004), the Maine Supreme Judicial Court held that Mansell and the USFSPA do not limit the authority of state courts “to grant postjudgment relief when military retirement pay previously divided by a divorce judgment is converted to disability pay, so long as the relief awarded does not itself attempt to divide disability pay as marital property.”
In Shelton v Shelton, 119 Nev 492, 496-498; 78 P3d 507 (2003), the Nevada Supreme Court held that a military spouse was contractually obligated under a divorce settlement agreement to continue paying his former wife $577 a month, even though the agreement indicated that the payment represented half of the military retirement pension and the military spouse had waived that pension in order to receive disability benefits.
We agree with the following sentiments expressed by the New Jersey Superior Court, Appellate Division, in Whitfield v Whitfield, 373 NJ Super 573, 582-583; 862 A2d 1187 (2004):
It is important to emphasize the procedural posture of this case. The issue is one of enforcement of a prior equitable distribution award, not a present division of assets. Wife does not seek to divide her former husband’s disability benefits in violation of Mansell. Nor does she seek a greater percentage of her husband’s military pen sion than she originally received at the time of his retirement pursuant to court order. Moreover, wife does not seek to alter the terms of her veteran-spouse’s retirement plan or to compel the Department of Defense to make direct payments to her in excess of those permitted by federal law. The remedy she seeks, and that to which she is entitled, is an enforcement of the original order which was in effect before her former husband retired and unilaterally elected the waiver. [The trial court] appropriately accomplished that result by requiring husband to make up the shortfall in his former wife’s equitable distribution award occasioned by his actions.
The trial court’s determination does not hinder husband’s receipt of veterans’ disability benefits. Nor does it impinge upon federal statutory rights husband has under the USFSPA or violate the doctrine of pre-emption. Rather, the determination is whether under our state law the trial court has the authority to interpret and enforce a judicial decree entered prior to the retiree’s unilateral election of a method of payment that has tax advantages to him and adverse consequences to his former wife. We conclude that our court does have that authority. This was an appropriate remedy to avoid the inequities that would be imposed on a spouse who had no control over, but suffered the consequences of, the other’s unilateral election to switch retirement benefits to tax-free disability benefits.
In In re Marriage of Krempin, 70 Cal App 4th 1008, 1015; 83 Cal Rptr 2d 134 (1999), the California Court of Appeal noted that out-of-state precedents had reached “nearly universal” consensus that equitable action to compensate the nonmilitary spouse is appropriate, on one theory or another, when that spouse’s share of retirement pay is reduced by the military spouse’s postjudgment waiver of retirement pay.
In Danielson v Evans, 201 Ariz 401, 407-409; 36 P3d 749 (Ariz App, 2001), the Arizona Court of Appeals upheld an order that required the military spouse to pay his former wife the difference between the value of the retirement pay as it was envisioned at the time of the divorce and the reduced amount that she actually received after a waiver.
In Krapf v Krapf, 439 Mass 97, 105-108; 786 NE2d 318 (2003), the Massachusetts Supreme Judicial Court held, under theories of breach of a duty of good faith and fair dealing, that it was proper to order the military spouse to pay his former wife an amount equal to the military retirement pay she would have received under a settlement agreement had the husband not waived the pay in favor of disability benefits. The court stated that there was no violation of Mansell or the USFSPA when the order at issue “merely enforced the defendant’s contractual obligation to his former wife, which he may satisfy from any of his resources.” Id. at 108.
In In re Marriage of Nielsen, 341 Ill App 3d 863, 869-870; 792 NE2d 844 (2003), the Illinois Appellate Court ruled:
[W]e believe that a party’s vested interest in a military pension cannot be unilaterally diminished by an act of a military spouse, and we apply this principle to the present case. Here, the parties agreed that Susan would receive “25% of the gross retired or retainer pay due Mark.” It is clear that the parties intended that Susan would receive a percentage of Mark’s total retirement pay and not just his disposable retired or retainer pay. The parties’ intent was incorporated into the judgment for dissolution. Mark retired and the judgment for dissolution was implemented. However, Mark thereafter decided to accept an increased amount of disability benefits. This resulted in a reduction of Mark’s disposable retired or retainer pay. This accordingly reduced Susan’s entitlement. Mark certainly had a legal right to receive disability benefits, but his doing so caused a diminution in the amount of his retirement pay that Susan had been receiving for over three years. Mark’s decision frustrated the parties’ intent and the trial court’s judgment for dissolution. Indeed, to allow Mark to unilat erally diminish Susan’s interest in his military pension would constitute an impermissible modification of a division of marital property. As such, we affirm the trial court’s order of November 3, 2000, in which it ruled that Susan was entitled to an amount equal to 25% of Mark’s military pension as it existed on the date he retired. Because the trial court’s November 3, 2000, order does not directly assign Mark’s military disability pay, it does not offend the United States Supreme Court’s ruling in Mansell.
In Johnson v Johnson, 37 SW3d 892, 897-898 (Tenn, 2001), the Tennessee Supreme Court held that a marital dissolution agreement that divides military retirement benefits gives the nonmilitary spouse a vested interest in his or her portion of the benefits, which cannot thereafter be unilaterally diminished by an act of the military spouse, given that such an act would constitute an impermissible modification and violation of the agreement. The court remanded the case for entry of an order providing the nonmilitary spouse with a monthly payment equal to her share of the waived retirement pay without dividing the military spouse’s disability pay. Id. at 898.
Next, we wish to touch on two recent Texas cases addressing CRSC and waivers of retirement pay. In Sharp v Sharp, 314 SW3d 22 (Tex App, 2009), the Texas Court of Appeals addressed a waiver of retirement pay in exchange for CRSC, and it rejected the nonmilitary spouse’s motion to enforce and clarify the divorce judgment. However, it appears that the argument posed by the nonmilitary spouse was simply that CRSC constituted military retirement pay for purposes of the judgment. And the appellate court merely held that CRSC is not retirement pay and thus the judgment did not divide CRSC that might have become payable at a later date. Id. at 25. The nonmilitary spouse was essentially seeking a portion of the CRSC. We agree, as already noted, that CRSC is not retirement pay and is not subject to division; however, our analysis is couched in terms of dividing waived retirement pay and ordering replacement compensation, which matters the Sharp panel did not address. Indeed, Mansell and the litany of cases distinguishing Mansell are not even mentioned in Sharp.
In Jackson, 319 SW3d 76, the Texas Court of Appeals addressed a situation in which the military spouse (husband) had been appointed as trustee in a divorce judgment with respect to his ex-wife’s interest in his disposable retirement pay, and he later became eligible for VA disability benefits and then CRSC, which he elected to receive. As in Sharp, the Jackson panel found that only retirement pay was subject to division, and it further ruled that the military spouse had no fiduciary obligation in regard to the CRSC. Id. at 81. The Jackson case, like the Sharp case, examined the issue from the perspective of dividing and awarding the CRSC funds and not the approach that we and numerous other jurisdictions have chosen. And again, we agree that CRSC is not subject to division.
While there are a few cases ruling differently, see, e.g., In re Marriage of Pierce, 26 Kan App 2d 236, 240; 982 P2d 995 (1999) (finding no relief available for ex-wife after former husband waived his military retirement pay in favor of disability benefits), the overwhelming weight of the caselaw from other jurisdictions supports our resolution of this appeal. By this opinion, Michigan now joins those jurisdictions providing relief to the nonmilitary spouse.
IV CONCLUSION
We hold that a military spouse remains financially responsible to compensate his or her former spouse in an amount equal to the share of retirement pay ordered to be distributed to the former spouse as part of a divorce judgment’s property division when the military spouse makes a unilateral and voluntary postjudgment election to waive the retirement pay in favor of disability benefits contrary to the terms of the divorce judgment. Conceptually, and consistently with extensive caselaw from other jurisdictions, we are dividing waived retirement pay in order to honor the terms and intent of the divorce judgment. Importantly, we are not ruling that a state court has the authority to divide a military spouse’s CRSC, nor that the military spouse can be ordered by a court to pay the former spouse using CRSC funds. Rather, the compensation to be paid the former spouse as his or her share of the property division in lieu of the waived retirement pay can come from any source the military spouse chooses, but it must be paid to avoid contempt of court. To be clear, nothing in this opinion should be construed as precluding a military spouse from using CRSC funds to satisfy the spouse’s obligation if desired. In these situations, because the ordered replacement compensation must relate to the military spouse’s retirement-pay obligation and not the disability pay now being received, and because the military spouse, having made the election, will no longer actually be receiving the retirement pay, it may be necessary on occasion to review and determine whether any adjustments to the retirement pay would have been made had the military spouse continued receiving the retirement pay.
Accordingly, although we agree with the trial court that plaintiff must compensate defendant, we reverse the trial court’s ruling because its order required plaintiff to pay defendant from CRSC funds and required plaintiff to pay an amount equal to half of his CRSC and not half of his envisioned retirement pay. We remand for entry of an order requiring plaintiff to compensate defendant with monthly payments, from any source or combination of sources chosen, in an amount equal to 50 percent of the retirement pay that he would be receiving but for his election to waive the retirement pay in favor of disability benefits.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Plaintiff was no longer in the military at this point, and the record does not contain any information on the nature of the job that plaintiff stepped down from in May 2004.
We shall interchangeably use the terms “disposable retirement pay” and “disposable retired pay” for purposes of this opinion.
As indicated earlier, 10 USC 1414(a)(1), post-Mansell, now permits a member or former member to receive his or her full retirement pay and VA disability benefits without reduction in the retirement pay when VA disability benefits are chosen. See Mansell, 490 US at 583 n 1 (“[I]f a military retiree is eligible for $1500 a month in retirement pay and $500 a month in disability benefits, he must waive $500 of retirement pay before he can receive any disability benefits.”).
Although addressing a case from a community-property state, the Court noted that its decision was equally applicable to equitable-distribution states, which would include Michigan. Mansell, 490 US at 584 n 2.
We recognize that it sounds a bit odd to speak of making a party pay half of monies not actually being received; however, conceptually it is analogous to imputing income to a party in the context of a child- or spousal-support matter and then ordering that party to make a payment based on income not actually being received. See Moore v Moore, 242 Mich App 652, 655; 619 NW2d 723 (2000) (stating that when a party voluntarily reduces his or her income, a court may impute income to that party in order to arrive at an appropriate spousal-support award). | [
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Per Curiam.
Flaintiff appeals by leave granted the trial court’s order granting in part summary disposition in favor of defendants. We affirm in part and reverse in part.
This action arises out of a breached lease agreement between plaintiff and Empower Yourself, L.L.C. On appeal, plaintiff argues that the trial court erred by granting defendants’ motion for summary disposition because a genuine issue of material fact existed regarding (1) whether Hamsa, L.L.C., was a mere continuation of Empower and (2) whether the corporate veil of Empower and Hamsa should be pierced to hold defendants Troy Swalwell (Troy) and Phyllis Swalwell (Phyllis) personally liable. We agree that there was a genuine issue of material fact regarding whether Hamsa was the mere continuation of Empower, but held that there was no genuine issue of material fact regarding piercing the corporate veil.
This Court reviews de novo the grant or denial of a motion for summary disposition under MCR 2.116(C)(10). Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A motion brought pursuant to MCR 2.116(C)(10) tests the factual support of a plaintiffs claim, and is reviewed by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Id. Summary disposition is proper if there is “no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. There is a genuine issue of material fact when “reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). This Court considers only the evidence that was properly presented to the trial court in deciding the motion. Peña v Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003). Successor liability is derived from equitable principles and is reviewed de novo on appeal. Zantel Mktg Agency v Whitesell Corp, 265 Mich App 559, 568; 696 NW2d 735 (2005).
The basic rule in Michigan regarding successor liability is as follows:
The traditional rule of successor liability examines the nature of the transaction between predecessor and successor corporations. If the acquisition is accomplished by merger, with shares of stock serving as consideration, the successor generally assumes all its predecessor’s liabilities. However, where the purchase is accomplished by an exchange of cash for assets, the successor is not liable for its predecessor’s liabilities unless one of five narrow exceptions applies. The five exceptions are as follows:
“(1) where there is an express or implied assumption of liability; (2) where the transaction amounts to a consolidation or merger; (3) where the transaction was fraudulent; (4) where some of the elements of a purchase in good faith were lacking, or where the transfer was without consideration and the creditors of the transferor were not provided for; or (5) where the transferee corporation was a mere continuation or reincarnation of the old corporation.” [Foster v Cone-Blanchard Machine Co, 460 Mich 696, 702; 597 NW2d 506 (1999), quoting Turner v Bituminous Cas Co, 397 Mich 406, 417 n 3; 244 NW2d 873 (1976) (citations and quotation marks omitted).]
Furthermore, Foster explained the “mere continuation” doctrine:
After examining the relevant policy concerns, this Court in Turner concluded that a continuity of enterprise between a successor and its predecessor may force a successor to “accept the liability with the benefits” of such continuity. Turner held that a prima facie case of continuity of enterprise exists where the plaintiff establishes the following facts: (1) there is continuation of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations of the predecessor corporation; (2) the predecessor corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; and (3) the purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the selling corporation. Turner identified as an additional principle relevant to determining successor liability, whether the purchasing corporation holds itself out to the world as the effective continuation of the seller corporation. [Foster, 460 Mich at 703-704 (citation omitted).]
This Court recently held in RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 717-719; 762 NW2d 529 (2008), that successor liability applies to corporations and limited liability companies in purely commercial contexts, such as a breach of a lease agreement. In RDM Holdings, the plaintiff was a commercial business that entered into a lease agreement with Continental-Lighting, L.L.C. (Lighting). Lighting filed for bankruptcy and, subsequently, Continental-Coating, L.L.C. (Coating), was created. The trial court granted summary disposition, finding no genuine issue of material fact regarding whether Coating was liable for the breach of the lease agreement under a successor-liability theory. This Court reversed, concluding that the plaintiff had presented sufficient evidence to create a genuine issue of material fact because the plaintiff had presented evidence reflecting a continuation in management, personnel, assets, and general business operations of Lighting by Coating. Id. at 682-683, 718-719.
In looking at the record in the light most favorable to plaintiff, there was a genuine issue of material fact regarding whether Hamsa was the mere continuation of Empower. Empower ceased operations in August 2007, the same month in which Hamsa was created. Both Empower and Hamsa were in the business of health, fitness, personal training, and yoga. Empower and Hamsa served the same geographic area, Oakland County. Empower and Hamsa operated in the same manner. Both provided a venue for independent-contractor yoga teachers to teach classes to students. Phyllis owned 80 percent and Troy owned 20 percent of both Empower and Hamsa. Phyllis was the president and managing member of both Empower and Hamsa, and Troy was the vice president and registered agent of both Empower and Hamsa. Troy also signed the annual reports and prepared the tax returns for both Empower and Hamsa. Empower and Hamsa did not keep a corporate minute book or an operating agreement. Both held informal meetings and did not keep minutes from the informal meetings. Neither Empower nor Hamsa distributed earnings to its members. Troy and Phyllis were signatories on both Empower’s and Hamsa’s bank accounts. Empower’s business telephone number became Hamsa’s business telephone number. Empower had a website from 2004 until 2007. Then, in 2007, Hamsa created a website. Hamsa’s website stated that Hamsa was formerly known as Empower and gave details on its new location. Reasonable minds could differ regarding whether Hamsa was the mere continuation of Empower. Therefore, the record provided raised a genuine issue of material fact regarding whether Hamsa was merely a continuation of Empower.
Plaintiff also argues there was a genuine issue of fact regarding whether the corporate veil of Empower and Hamsa should be pierced. An appellate court’s review of a decision not to pierce the corporate veil is de novo because of the equitable nature of the remedy. Foodland Distrib v Al-Naimi, 220 Mich App 453, 456; 559 NW2d 379 (1996).
In general, “the law treats a corporation as an entirely separate entity from its stockholders, even where one person owns all the corporation’s stock.” Id. However, the courts can ignore this corporate fiction when it is invoked to subvert justice. Id. Traditionally, the “basis for piercing the corporate veil has been to protect a corporation’s creditors where there is a unity of interest of the stockholders and the corporation and where the stockholders have used the corporate structure in an attempt to avoid legal obligations.” Id.
Piercing the corporate veil requires the following elements: (1) the corporate entity is a mere instrumentality of another individual or entity, (2) the corporate entity was used to commit a wrong or fraud, and (3) there was an unjust injury or loss to the plaintiff. Rymal v Baergen, 262 Mich App 274, 293-294; 686 NW2d 241 (2004). “There is no single rule delineating when a corporate entity should be disregarded, and the facts are to be assessed in light of a corporation’s economic justification to determine if the corporate form has been abused.” Id. at 294.
Looking at the evidence in the light most favorable to plaintiff, there is no genuine issue of material fact regarding whether Empower’s or Hamsa’s corporate veils should be pierced. The corporate forms of Empower and Hamsa were respected. Troy stated that the activities of Empower and Hamsa were not commingled. Empower paid its bills through its bank account, and Hamsa paid its bills through its bank account. Empower and Hamsa each filed separate state and federal tax returns. Troy stated that the rent and other expenses incurred by Empower exceeded its revenue, so he personally loaned Empower about $100,000. Troy would directly deposit the loaned money into Empower’s bank account, and then Empower itself would pay its monthly bills. Additionally, Troy personally paid for various assets of Empower, and then upon Empower’s ceasing operations, he left those assets with Empower. Troy stated that any check written to Troy or Phyllis by Empower was for the partial repayments of Troy’s loans. Troy stated that he personally paid for Empower’s leased vehicle for his personal use after Empower ceased operations. Additionally, the record does not show that plaintiff will suffer an unjust loss because plaintiff already has a valid judgment against Empower for breaching the lease agreement. While Troy admitted that part of the reason Empower ceased operations was to avoid the lease agreement with plaintiff, this alone was not sufficient to raise a genuine issue of material fact regarding whether Empower’s or Hamsa’s corporate veils should be pierced.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
This Court applied these same rules to determine whether the corporate veil of a limited liability company should be pierced. RDM Holdings, 281 Mich App at 715. | [
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] |
Jansen, J.
Defendant appeals by leave granted the order of the Court of Claims denying its motion for summary disposition brought pursuant to MCR 2.116(C)(4). We conclude that the Court of Claims relied on erroneous legal reasoning in this case. However, because the Court of Claims reached the correct result in ruling that it possessed subject-matter jurisdiction over the present controversy, we nonetheless affirm.
i
Defendant, as the agency responsible for the care and custody of children who are permanent wards of the state, has the authority to place and maintain such children who are under the control of the Michigan Children’s Institute (MCI) in licensed boarding homes for children. MCL 400.207(7). Expenses related to the supervision and transportation of permanent wards are paid out of the MCI’s funds subject to partial reimbursement by the county from which the public ward has been committed. Id. The county’s liability for the costs associated with the care of a ward (commonly referred to as a “chargeback rate”) is determined under the Youth Rehabilitation Services Act, MCL 803.301 et seq. In general, “the county from which the public ward is committed is hable to the state for 50% of the cost of his or her care ....” MCL 803.305(1).
The Michigan Administrative Code provides that the daily rate for the cost of caring for wards of the state must be established in September of the year before the rate is put into effect. Mich Admin Code, R 400.341. Thus, for example, in accordance with Rule 400.341, the cost of caring for MCI wards during 2007 should have been established in September 2006.
This action resulted after defendant sought to retroactively establish the daily rate for the cost of caring for wards in 2007. In a letter dated July 16, 2007, defendant notified plaintiff and other counties of specified “state ward chargeback rates for calendar year 2007.” Defendant declared that the stated rates “will be effective for calendar year 2007 with a retroactive date of January 1,2007. These rates shall remain in effect until the next scheduled revision in 2008.” Then, in a subsequent letter dated July 26, 2007, defendant informed plaintiff that the chargeback rates for 2007 would be effective on June 1, 2007, and not fully retroactive as had been stated in the earlier letter.
Thereafter, in October 2007, defendant notified plaintiff and others that it had again reviewed and revised the chargeback rates for 2007. It declared new rates, which would be retroactive to August 1,2007, and indicated that these rates would “remain in effect until the next scheduled revision on January 1, 2008.”
In late 2007, plaintiff received certain statements from defendant that included charges of $79,248.22 (described as “prior year balance due”) and $71,517.40 (described as “current year balance due”). These disputed charges of $79,248.22 and $71,517.40 had apparently resulted from defendant’s retroactive rate increases for housing Oakland County youths in state facilities during 2007. Although the statements indicated that defendant owed plaintiff an overall reimbursement of $1,394,070.62, defendant deducted the disputed amounts, totaling $150,765.62, and remitted only $1,243,305 to plaintiff.
On January 9, 2008, plaintiff sent a letter to defendant protesting the retroactive rate increases and explaining why it believed the retroactive rate increases were illegal. Plaintiffs letter demanded that defendant “either remit the $150,765.62 wrongfully withheld from the County or provide the state’s legal justification/rationale for the withholding of these funds.” According to plaintiff, defendant did not respond to its letter.
In May 2008, plaintiff filed suit against defendant in the Court of Claims. Plaintiff sought a declaration that defendant was required to establish the cost of caring for MCI wards each September, that the rates established by defendant in September could not go into effect until the following year, and that defendant was not entitled to retroactively establish or increase such rates. Plaintiff also sought a refund of the monies that defendant had withheld “as a result of [its] illegal retroactive rate increases for the cost of MCI wards----”
In lieu of answering plaintiffs complaint, defendant moved for summary disposition pursuant to MCR 2.116(C)(4) and (8). Defendant argued that the Court of Claims did not have subject-matter jurisdiction over the controversy because the action had not arisen out of contract or tort. Plaintiff opposed defendant’s motion, arguing that the Court of Claims had exclusive jurisdiction over the matter because only the Court of Claims would have the authority to award monetary relief against defendant. Oral argument was held on October 1, 2008, and the Court of Claims took the matter under advisement.
The Court of Claims thereafter issued a written opinion and order denying defendant’s motion for summary disposition. The Court of Claims ultimately concluded that it had subject-matter jurisdiction over the controversy, reasoning in relevant part:
Plaintiff suggests Silverman [v Univ of Mich Bd of Regents], 445 Mich 209[, 516 NW2d 54] (1994) [overruled in part on other grounds by Parkwood Ltd Dividend Housing Ass’n v State Housing Dev Auth, 468 Mich 763; 664 NW2d 185 (2003)], is the supporting authority for the conclusion that the Court of Claims has exclusive jurisdiction over a declaratory action that includes monetary relief against the State.... Based on previous case law and MCL 600.6419(4) this Court finds that if the plaintiff seeks monetary damages from the state, jurisdiction belongs exclusively with the Court of Claims. The exception to this finding is if jurisdiction over the controversy has been specifically provided or conferred upon another court or tribunal.
Defendant’s contention that this court lacks jurisdiction because the Plaintiffs claim lies neither in tort nor contract, is inaccurate. The Court of Claims [sic] exclusive jurisdiction is not limited to those actions that arise in contract or tort, it also has jurisdiction over claims that are both grounded in declaratory relief and monetary damages. If this Court adopted Defendant’s position of only granting jurisdiction over contract and tort claims, many plaintiffs, including Plaintiff in this case, would be left without any appropriate venue to bring their claim. This Court cannot adopt such a view. Therefore, jurisdiction over this controversy lies exclusively with the Court of Claims and Defendant’s motion for summary judgment for lack of subject matter jurisdiction is denied.
Defendant sought leave to appeal in this Court, arguing that the Court of Claims had erred by ruling that it possessed subject-matter jurisdiction over the controversy. We granted defendant’s application for leave to appeal, limited to the issues raised in the application. Oakland Co v Dep’t of Human Servs, unpublished order of the Court of Appeals, entered February 27, 2009 (Docket No. 288812).
II
Summary disposition is proper when, among other things, “[t]he court lacks jurisdiction of the subject matter.” MCR 2.116(C)(4). We review de novo a motion for summary disposition brought pursuant to subrule (C)(4). Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 155; 756 NW2d 483 (2008). Whether a court has subject-matter jurisdiction is a question of law that we review de novo. Jamil v Jahan, 280 Mich App 92, 99-100; 760 NW2d 266 (2008). We likewise review de novo issues of statutory interpretation. Toll Northville Ltd v Northville Twp, 480 Mich 6, 10-11; 743 NW2d 902 (2008).
hi
We conclude that the Court of Claims relied on erroneous legal reasoning in this case. However, we also conclude that the Court of Claims reached the correct result in ruling that it possessed subject-matter jurisdiction over the present controversy.
The Court of Claims is a legislatively created court of limited jurisdiction, and its jurisdiction is entirely statutory. Parkwood, 468 Mich at 767; Bays v Dep’t of State Police, 89 Mich App 356, 362; 280 NW2d 526 (1979). The exclusive subject-matter jurisdiction of the Court of Claims is defined by MCL 600.6419, which provides in relevant part:
(1) Except as provided in [MCL 600.6419a] and [MCL 600.6440], the jurisdiction of the court of claims, as conferred upon it by this chapter, shall be exclusive. ... The court has power and jurisdiction:
(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies.
(b) To hear and determine any claims or demands, liquidated or unliquidated, ex contractu or ex delicto, which may be pleaded by way of counterclaim on the part of the state or any department, commission, board, institution, arm, or agency of the state against any claimant who may bring an action in the court of claims....
(4) This chapter shall not deprive the circuit court of this state of jurisdiction over... proceedings for declaratory or equitable relief, or any other actions against state agencies based upon the statutes of this state in such case made and provided, which expressly confer jurisdiction thereof upon the circuit court....
“Additionally, MCL 600.6419a, which was added in 1984, gives the Court of Claims concurrent jurisdiction with the circuit courts over any claim for equitable and declaratory relief that is ancillary to a claim filed under § 6419[.]” Parkwood, 468 Mich at 768. Specifically, MCL 600.6419a provides:
In addition to the powers and jurisdiction conferred upon the court of claims by [MCL 600.6419], the court of claims has concurrent jurisdiction of any demand for equitable relief and any demand for a declaratory judgment when ancillary to a claim filed pursuant to [MCL 600.6419]. The jurisdiction conferred by this section is not intended to be exclusive of the jurisdiction of the circuit court over demands for declaratory and equitable relief conferred by [MCL 600.605].[ ]
We cannot agree with that portion of the lower court’s opinion and order in which it stated that “[t]he Court of Claims [sic] exclusive jurisdiction is not limited to those actions that arise in contract or tort, it also has jurisdiction over claims that are both grounded in declaratory relief and monetary damages.” As our Supreme Court has observed, “[t]he plain language of § 6419(l)(a), the primary source of jurisdiction for the Court of Claims, does not refer to claims for money damages or to claims for declaratory relief.” Parkwood, 468 Mich at 772. Instead, the primary jurisdiction-conferring statute refers only to claims against the state that are “ex contractu and ex delicto . . . .” MCL 600.6419(l)(a); see also Parkwood, 468 Mich at 772. The unmistakable teaching of Parkwood is that the exclusive subject-matter jurisdiction of the Court of Claims turns entirely on whether a claim is ex contractu or ex delicto in nature. And despite the existence of several earlier, incorrectly decided cases to the contrary, the Parkwood Court made clear that whether a plaintiff seeks money damages or other monetary relief is entirely irrelevant to determining whether the Court of Claims possesses exclusive jurisdiction over the plaintiffs claim under MCL 600.6419(l)(a). In short, it is the essential nature of the claim — and not the particular type of relief sought — that determines whether the Court of Claims possesses exclusive subject-matter jurisdiction. For example, although the plaintiffs claim in Parkwood sought only declaratory relief and did not seek money damages, it came within the exclusive subject-matter jurisdiction of the Court of Claims under MCL 600.6419(l)(a) because it was based in contract and therefore ex contractu in nature. Parkwood, 468 Mich at 772.
The critical question in this case was not whether plaintiffs claim sought money damages or other monetary relief. Such an inquiry was irrelevant to whether the Court of Claims possessed exclusive subject-matter jurisdiction over plaintiffs claim under MCL 600.6419(l)(a). Instead, the critical question in this case was whether plaintiffs claim against defendant was ex contractu or ex delicto in nature. For the reasons that follow, we hold that plaintiff asserted a claim seeking a refund of the monies withheld by defendant, accompanied by a prayer for declaratory relief. We conclude that plaintiffs claim seeking a refund of the monies withheld by defendant was ex contractu in nature and, consequently, within the exclusive subject-matter jurisdiction of the Court of Claims under MCL 600.6419(l)(a). We further conclude that the Court of Claims had concurrent jurisdiction under MCL 600.6419a to consider plaintiffs ancillary request for declaratory relief.
When ascertaining the exact nature of a plaintiffs claim, we are not bound by the plaintiffs choice of labels because this would exalt form over substance. Johnston v City of Livonia, 177 Mich App 200, 208; 441 NW2d 41 (1989). Instead, “the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim.” Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399 (2007). The essential nature of a plaintiffs claim “ ‘must be determined by the... essential facts or grievance as alleged ....’” Nicholson v Han, 12 Mich App 35, 43; 162 NW2d 313 (1968) (citation omitted). The particular type of relief sought is also a relevant consideration in determining the essential nature of a plaintiffs claim. See Adams, 276 Mich App at 715 (observing, among other things, that the plaintiffs claim did not sound in fraud because the plaintiff did not “seek damages for [the] allegedly fraudulent conduct”).
In this case, plaintiffs complaint was simply entitled “Complaint for Declaratory Judgment” and contained no internal labels or headings identifying any specific claims. However, the complaint did set forth detailed allegations concerning why plaintiff believed defendant’s retroactive rate increases were unlawful and why plaintiff believed it was improper for defendant to retain the withheld amount of $150,765.62. It is true, as explained earlier, that plaintiff specifically sought declaratory relief with regard to the legality of defendant’s retroactive rate increases. But plaintiffs complaint also sought a refund of the monies that defendant was withholding “as a result of [its] illegal retroactive rate increases for the cost of MCI wards.. . .” Upon examination of the complaint as a whole, Adams, 276 Mich App at 710-711, and after having reviewed plaintiffs particular allegations and the specific relief sought, it is clear to us that plaintiffs complaint set forth a claim for money had and received, seeking a refund of the monies withheld by defendant. Although plaintiff also sought declaratory relief in addition to its request for a refund, we note that declaratory relief is an equitable remedy and not truly a separate claim. Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 221; 761 NW2d 293 (2008).
The statutory terms “ex contractu” and “ex delicto” are legal terms that have acquired particular meanings in the law. See MCL 8.3a. The term “ex delicto” is defined as “ ‘[f]rom a delict, tort, fault, crime, or malfeasance’ ” and describes claims that “ ‘grow out of or are founded upon a wrong or tort’.” Lowery v Dep’t of Corrections, 146 Mich App 342, 347-348; 380 NW2d 99 (1985), quoting Black’s Law Dictionary (4th ed), p 660 (alteration in Lowery). In contrast, the term “ex con tractu” describes “civil actions arising out of contract.” Lowery, 146 Mich App at 348. But the term “ex contractu” does not merely describe traditional breach-of-contract claims and claims arising from express contracts; it also encompasses quasi-contract claims and causes of action arising from contracts implied in fact and law. Pomann, Callanan & Sofen, PC v Wayne Co Dep’t of Social Servs, 166 Mich App 342, 347 n 5; 419 NW2d 787 (1988); see also Lim v Dep’t of Transportation, 167 Mich App 751, 754; 423 NW2d 343 (1988).
It is well settled that an action seeking a refund of fees paid to the state is properly characterized as a claim in assumpsit for money had and received. Service Coal Co v Unemployment Compensation Comm, 333 Mich 526, 530-531; 53 NW2d 362 (1952); Yellow Freight Sys, Inc v Michigan, 231 Mich App 194, 203; 585 NW2d 762 (1998), rev’d on other grounds 464 Mich 21 (2001), rev’d 537 US 36 (2002). The present-day claim for money had and received arose from the early action of indebitatus assumpsit and is based on the legal fiction of a promise implied in law. See Consumers Power Co v Muskegon Co, 346 Mich 243, 255; 78 NW2d 223 (1956) (SMITH, J., dissenting), overruled in part by Spoon-Shacket Co, Inc v Oakland Co, 356 Mich 151 (1959). A claim for money had and received is ex contractu in nature. See Yellow Freight, 231 Mich App at 203; see also Rader v Levenson, 290 Ga App 227, 230 n 13; 659 SE2d 655 (2008); Citizens State Bank v Nat’l Surety Corp, 199 Colo 497, 500; 612 P2d 70 (1980); Lang v Friedman, 166 Mo App 354, 362; 148 SW 992 (1912); Johnson v Collier, 161 Ala 204, 208; 49 So 761 (1909); Allen v Frawley, 106 Wis 638, 645; 82 NW 593 (1900). We conclude that plaintiffs claim seeking a refund of the monies withheld by defendant was actually a claim for money had and received. See Yellow Freight, 231 Mich App at 203. Therefore, even though there was no express contract between plaintiff and defendant, plaintiffs claim was nonetheless ex contractu in nature. See Pomann, 166 Mich App at 347 n 5. Plaintiffs ex contractu claim against defendant for money had and received unquestionably fell within the exclusive subject-matter jurisdiction of the Court of Claims. MCL 600.6419(l)(a).
We have already explained that plaintiffs complaint also contained an associated prayer for declaratory relief. Indeed, plaintiff sought a declaration that defendant was required to establish the cost of caring for MCI wards in September, a declaration that the rates established by defendant in September could not go into effect until the following year, and a declaration that defendant was not entitled to retroactively increase such rates. Declaratory relief is equitable in nature. Mettler Walloon, 281 Mich App at 221; Coffee-Rich, Inc v Dep’t of Agriculture, 1 Mich App 225, 228; 135 NW2d 594 (1965). As discussed previously, MCL 600.6419a provides that “[i]n addition to the powers and jurisdiction conferred upon the court of claims by [MCL 600.6419], the court of claims has concurrent jurisdiction of any demand for equitable relief and any demand for a declaratory judgment when ancillary to a claim filed pursuant to [MCL 600.6419].” The declaratory relief requested by plaintiff would have facilitated plaintiffs efforts to recoup the monies withheld by defendant and would have prevented defendant from retroactively increasing the cost of caring for MCI wards in the future. In other words, plaintiffs request for declaratory relief was ancillary to its ex contractu claim for money had and received. The Court of Claims therefore had concurrent jurisdiction over plaintiffs demand for declaratory relief. MCL 600.6419a.
rv
We conclude that the Court of Claims had exclusive subject-matter jurisdiction over plaintiffs ex contractu claim seeking a refund of the monies withheld by defendant. MCL 600.6419(l)(a). We further conclude that the Court of Claims had concurrent subject-matter jurisdiction over plaintiffs ancillary demand for declaratory relief. MCL 600.6419a. Although the Court of Claims relied on erroneous legal reasoning, it reached the correct result by denying defendant’s motion for summary disposition under MCR 2.116(C)(4). It is axiomatic that we will not reverse when the lower court has reached the correct result, even if it has done so for the wrong reason. Taylor v Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000).
We decline to consider defendant’s argument that because plaintiffs claim is rooted in a decision of the Director of the Department of Human Services, plaintiffs proper recourse was to seek judicial review of that final agency decision. Defendant raised this argument for the first time in its reply brief, and the argument has therefore not been properly presented for appellate review. MCR 7.212(G); Maxwell v Dep’t of Environmental Quality, 264 Mich App 567, 576; 692 NW2d 68 (2004).
Affirmed. No taxable costs pursuant to MCR 7.219, a public question having been involved.
D0N0FRI0, J., concurred.
Defendant’s motion for summary disposition was also brought pursuant to MCR 2.116(C)(8). However, the portion of defendant’s motion brought under subrule (C)(8) is not at issue in the present appeal.
As noted earlier, the portion of the motion brought pursuant to subrule (C)(8) is not at issue in the present appeal.
MCL 600.605 provides that “[c]ircuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.” See also Parkwood, 468 Mich at 768 n 4.
An “action for money had and received” is defined as a common-law action “by which the plaintiff could recover money paid to the defendant, the money [usually] being recoverable because (1) the money had been paid by mistake or under compulsion, or (2) the consideration was insufficient.” Black’s Law Dictionary (7th ed), p 29.
“In order to afford the remedy demanded by exact justice and adjust such remedy to a cause of action, the law sometimes indulges in the fiction of a quasi or constructive contract, with an implied obligation to pay for benefits received.” Cascaden v Magryta, 247 Mich 267, 270; 225 NW 511 (1929). | [
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Per Curiam.
Defendants appeal by leave granted an order of the trial court denying their motion for summary disposition pursuant to MCR 2.116(C)(7) and (10) in this premises liability claim. The trial court found that there were genuine issues of material fact concerning whether certain defendants could be held responsible as “possessors” of the premises where plaintiff Charlotte Hoffner fell, the scope of a release signed by Hoffner, and the nature of the condition on defendants’ premises that led to Hoffner’s injury. We affirm in part, reverse in part, and remand.
On January 28, 2006, Hoffner slipped and fell on ice on the sidewalk in front of the entrance to an exercise facility, defendant Fitness Xpress. Hoffner had joined Fitness Xpress approximately two weeks before her fall and was entering the facility at its only customer entrance. Hoffner reported that she saw the sidewalk had “glare ice” on it as she approached from her vehicle, but she believed that because she was wearing good boots and it was a short distance, she could safely walk across it to enter Fitness Xpress.
I. POSSESSION AND CONTROL OF THE PREMISES
Defendants argue that Aho, Mack, and Fitness Xpress could not properly be included as defendants because they did not have possession and control of the sidewalk outside the exercise facility where Hoffner fell. We agree.
A trial court’s determination of a motion for summary disposition is reviewed de novo. Ormsby v Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004). When reviewing a motion brought under MCR 2.116(C)(10), the court considers the affidavits, depositions, pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Rose v Nat’l Auction Group, 466 Mich 453, 461; 646 NW2d 455 (2002). Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id.
“[T]he invitee status of a plaintiff, alone, does not create a duty under premises liability law unless the invitor has possession and control of the premises on which the plaintiff was injured.” Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 565; 563 NW2d 241 (1997). In the context of premises Kability law, possession has been defined as “ ‘[t]he right under which one may exercise control over something to the exclusion of all others.’ ” Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 703; 644 NW2d 779 (2002), quoting Black’s Law Dictionary (7th ed). Control has been defined as “ ‘exercising] restraint or direction over; dominate, regulate, or command,’ ” Derbabian, 249 Mich App at 703, quoting Random House Webster’s College Dictionary (1995), p 297, and as “ ‘the power to ... manage, direct, or oversee,’ ” Derbabian, 249 Mich App at 703-704, quoting Black’s Law Dictionary (7th ed). While possession and control are certainly indicative of title ownership of land, ownership of the land alone is not dispositive because these possessory rights can be “ ‘loaned’ ” to another. Orel, 454 Mich at 568, quoting Merritt v Nickelson, 407 Mich 544, 552-553; 287 NW2d 178 (1980). The question is whether Aho, Mack, and Fitness Xpress, as leaseholders of an area inside the Lanctoes’ building, had possession and control of the sidewalk outside their facility.
In Merritt, 407 Mich at 552, quoting 2 Restatement Torts, 2d, § 328 E, p 170, the Court defined “possessor of land” as follows:
“(a) a person who is in occupation of the land with intent to control it or
“(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
“(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).”
See also Derbabian, 249 Mich App at 702. Premises liability is based on both possession and control over the land because the person having such possession and control is normally best able to prevent harm to others. Id. at 705, citing Merritt, 407 Mich at 552.
Paragraph 19 of the lease between the Lanctoes and Fitness Xpress specifically addressed who was responsible for the care of the sidewalk and parking lot:
LANDLORD shall be responsible for removal of snow from the leased facility as LANDLORD deems necessary, including from the roof, sidewalks, and parking lots. LANDLORD shall be responsible, and shall hold TENANT harmless for, any and all injuries, accidents, or other liability related to [its] failure to maintain and remove snow according to [its] obligations under this Lease.
Additionally, evidence was presented that defendants understood that the Lanctoes were responsible for the exterior areas of the premises, but Fitness Xpress had a bucket of salt that it used to help keep the sidewalk clear. There was evidence that the Lanctoes cleared snow and ice from the area later during the day of Hoffner’s fall. The Lanctoes’ building also housed several other businesses, including Lori Lanctoe’s, which had customers entering the building using the sidewalk that fronted Fitness Xpress.
Plaintiffs argue that ¶ 19 of the lease specifically referred to the sidewalk as part of the “leased facility,” thus establishing Fitness Xpress’s duty to maintain the area. However, the lease specifically stated that Fitness Xpress was leasing “approximately 2000 square feet of floor space situated in the rental unit of a building.” Plaintiffs also argue that Fitness Xpress exercised control over the parking lot and sidewalk for the purposes of parking customers’ cars and entrance into the building. However, this use of the premises did not necessarily establish control over the area. As noted, there were several other businesses using the same building.
Plaintiffs also argue that Fitness Xpress assumed a duty by applying salt to the sidewalk at times. “A party may be under a legal duty when it voluntarily assumes a function that it is not legally required to perform,” and once “a duty is voluntarily assumed, it must be performed with some degree of skill and care.” Zychowski v A J Marshall Co, Inc, 233 Mich App 229, 231; 590 NW2d 301 (1998). However, the evidence did not demonstrate that the Fitness Xpress defendants assumed care of the sidewalk from the Lanctoes, considered the sidewalk their responsibility, or endangered customers by intermittently applying additional salt. A defendant can plow or salt a sidewalk without assuming a duty or taking possession or control over the sidewalk. Devine v Al’s Lounge, Inc, 181 Mich App 117, 120; 448 NW2d 725 (1989).
Possession for purposes of premises liability depends on the actual exercise of dominion and control over the property. Derbabian, 249 Mich App at 704. The evidence here indicated that by contract, and by the actions and intent of the parties, Fitness Xpress, Mack, and Aho did not exercise dominion and control over the sidewalk. Therefore, they were not in the best position to prevent the kind of harm incurred by Hoffner and were not the possessors of the sidewalk. See id. at 702, 705. We thus find that the trial court erred by finding a genuine issue of material fact regarding whether Fitness Xpress, Aho, and Mack could be assigned liability for Hoffner’s fall on the sidewalk, and those defendants were entitled to summary disposition as a matter of law. See Rose, 466 Mich at 461.
II. SCOPE OF HOFFNER’S RELEASE
Defendants also argue that a release of liability agreed to by Hoffner and Fitness Xpress as part of her membership contract precluded liability for all defendants for slip-and-fall accidents on the sidewalk. We disagree. Summary disposition of a plaintiffs complaint is proper when there exists a valid release of liability between the parties. MCR 2.116(C)(7). In reviewing a motion for summary disposition based on a release barring a claim, this Court considers the affidavits, depositions, admissions, and other documentary evidence to determine whether the movant is entitled to summary disposition as a matter of law. Tarlea v Crabtree, 263 Mich App 80, 87-88; 687 NW2d 333 (2004). The evidence is viewed in the light most favorable to the nonmoving party, and all legitimate inferences in favor of the nonmoving party are drawn. Jackson v Saginaw Co, 458 Mich 141, 142; 580 NW2d 870 (1998). A release of liability is valid if it is fairly and knowingly made. Wyrembelski v St Clair Shores, 218 Mich App 125, 127; 553 NW2d 651 (1996).
“A contract must be interpreted according to its plain and ordinary meaning.” Holmes v Holmes, 281 Mich App 575, 593; 760 NW2d 300 (2008). If contractual language is clear, construction of the contract is a question of law for the court. Id. at 594. A contract is not ambiguous if it fairly produces only one interpretation, even if it is inartfully worded or clumsily arranged. Id.
Given our finding that Fitness Xpress, Aho, and Mack were entitled to summary disposition for lack of possession and control of the premises where Hoffner fell, we focus our analysis on the applicability of the release as it pertains to the Lanctoes. Arguably, the Lanctoes could potentially have been released from liability by the language of the contract, even though they were not specifically named in the release, in light of the broad language to release and forever discharge “all others” from liability. However, in light of the fact that we agree with the trial court that the scope of activities released by the contract is ambiguous, and thus agree that summary disposition was not appropriate, we need not now decide this issue.
The indemnification portion of the Fitness Xpress membership contract provides, in relevant part:
INDEMNIFICATION: Member ... hereby agrees to indemnify, defend and hold harmless, Fitness Xpress, a division of Mousie Inc. and its officers, employees, contractors, agents, successors or assigns from any and all claims for liability against [sic] without limitation, including... expenses incurred either directly or indirectly by reason of, resulting from, or associated in anyway [sic] without limitation, with the Membership and/or Fitness Xpress. Member also acknowledges that she has reviewed and executed the Waiver of Liability attached hereto as part of this agreement prior to engaging in any physical activities or programs at Fitness Xpress according to the RELEASE below.[ ]
Nothing in the indemnification provision related to the Lanctoes; however, the release portion of the contract contained a broader disclaimer, which provided, in pertinent part:
RELEASE: I, the member or participant..., understand and agree that fitness activities including weight loss may be hazardous activities and I... should contact a healthcare professional or doctor before beginning any new activities or weight loss program. I am voluntarily participating in these activities and using the Fitness Xpress, (Mousie Inc.) facilities and equipment, at my sole risk, with full knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death related hereto.
In consideration of being allowed to participate in the activities and programs of Fitness Xpress (Mousie, Inc.) and use of its facilities and equipment, in the addition of any payment of any fees or charges, I do hereby waive, release and forever discharge Fitness Xpress, Mousie Inc. its officers, agents, employees, representatives, executors, and all others from any responsibilities or liabilities for any injuries or damage resulting from my and/or my daughter(s) [sic], or my belongings, including those caused by any negligent act or commission, in connection with participation/membership or use of equipment at Fitness Xpress and Mousie Inc. [Emphasis added.]
If the text in the release is unambiguous, we must ascertain the parties’ intentions from the plain, ordinary meaning of the language of the release. Genesee Foods Servs, Inc v Meadowbrook, Inc, 279 Mich App 649, 655; 760 NW2d 259 (2008).
The Lanctoes argue that the release portion of the contract applied to their liability for Hoffner’s slip and fall on the ice before entering the exercise facility because the accident was included in the contract’s language releasing “all others from any responsibilities or liabilities for any injuries,” including those caused by “any negligent act or commission, in connection with participation/membership” at Fitness Xpress. The contract’s use of broad language releasing “all others” could potentially be interpreted as including any claim that Hoffner could bring against the Lanctoes. See Shay, 487 Mich at 675-676. Further, a release including language such as “ ‘any and all claims, demands, damages, rights of action, or causes of action,... arising out of the Member’s ... use of the ... facilities’ ” can express an intention to disclaim liability for all negligence. Skotak v Vic Tanny Int'l, Inc, 203 Mich App 616, 619; 513 NW2d 428 (1994). However, the contract at issue released liability for claims “in connection with participation/membership or use of equipment at Fitness Xpress and Mousie Inc.” and stated that Hoffner was “using the Fitness Xpress (Mousie Inc.) facilities and equipment, at my sole risk.” This language provided an apparent limitation of Mability related to the actual use of the fitness facility and its equipment, not liability encountered en route to the fitness center. Plaintiffs also maintain that the language “release and forever discharge ... from any responsibilities or liabilities for any injuries or damage resulting from my and/or my daughter (s) [sic], or my belongings, including those caused by any negligent act or commission, in connection with participation/membership or use of equipment” was ambiguous concerning which actions triggered the release.
The trial court found the contract ambiguous and stated that a jury could conclude that the release applied to all activities or only to some activities. The court commented that the release seemed to pertain to the nature of the business, i.e., fitness activities and equipment, rather than falling on a sidewalk outside the exercise facility. The language of the contract could reasonably be interpreted broadly, to include a slip and fall while attempting to enter Fitness Xpress, or narrowly, to include only activities related to exercise and weight loss that were specifically discussed in the release portion of the contract. “If the contract is subject to two reasonable interpretations, factual development is necessary to determine the intent of the parties and summary disposition is therefore inappropriate.” Meagher v Wayne State Univ, 222 Mich App 700, 722; 565 NW2d 401 (1997). Therefore, the trial court did not err by denying summary disposition to defendants on this issue.
III. OPEN AND OBVIOUS DANGER DOCTRINE
Defendants also argue that plaintiffs’ claim should be barred by application of the open and obvious danger doctrine. Hoffner was an invitee: one who is invited onto the land for a commercial purpose. See Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000). “The landowner has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards.” Id.
However, this duty does not generally encompass removal of open and obvious dangers “where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002). In this case, it is not disputed that the ice in front of the entrance to the exercise facility posed an open and obvious danger. Hoffner testified that she saw that the sidewalk was covered by “glare ice” as she approached it from the parking lot, but thought that she could cross it safely.
Defendants argue that the trial court erred by finding that the ice could reasonably be found to constitute a special aspect that made the condition unreasonably dangerous because it was effectively unavoidable. If special aspects of a condition make even an open and obvious risk unreasonably dangerous, the land possessor has a duty to undertake reasonable precautions to protect invitees from that risk. Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001). A special aspect exists when the danger, although open and obvious, is effectively unavoidable or imposes a uniquely high likelihood of harm or severity of harm. Id. at 518-519. In considering what constitutes a special aspect, a court must evaluate the objective nature of the condition of the premises, not the subjective degree of care used by the plaintiff or other idiosyncratic factors related to the particular plaintiff. Bragan v Symanzik, 263 Mich App 324, 332; 687 NW2d 881 (2004), citing Lugo, 464 Mich at 523-524.
Defendants argue that the ice was avoidable because Hoffner did not have to attempt to enter the exercise facility and voluntarily confront the ice. In Lugo, 464 Mich at 518, the Court described a hypothetical example of standing water at the only exit of a commercial building as being “effectively unavoidable” because no alternative route is available. Defendants note that the Lugo example considered a plaintiff who could not exit, rather than a plaintiff who could choose not to enter. Defendants assert that a danger is not unavoidable if the plaintiff is not required to confront the hazard.
However, in Robertson v Blue Water Oil Co, 268 Mich App 588, 590-591; 708 NW2d 749 (2005), this Court described testimony concerning an “unusually severe and uniform ice storm that covered the entire area surrounding defendant’s [gas] station,” causing what was described as extremely icy conditions in the parking lot where the plaintiff slipped and fell as he walked from the pump at which he had paid for fuel to the station’s convenience store where he wished to purchase windshield washer fluid and coffee. The defendant argued that the condition was avoidable because the plaintiff could have gone to a different service station to make his purchases of fuel, coffee, and windshield washer fluid, but this Court concluded, emphasizing that the defendant had invited the plaintiff to the premises as a business, that the ice was unavoidable. Id. at 593-594. The Robertson Court reasoned:
Even if there were [available alternatives], the scope of the inquiry is limited to “the objective nature of the condition of the premises at issue.” Therefore, the only inquiry is whether the condition was effectively unavoidable on the premises. Here, there was clearly no alternative, ice-free path from the gasoline pumps to the service sta tion, a fact of which defendant had been made aware several hours previously. The ice was effectively unavoidable. [Id. (citations omitted).]
Moreover, the Robertson Court dismissed the idea that the defendant could avail itself of the argument that the condition was avoidable simply because the plaintiff could find another business to patronize, holding:
Finally, and more significantly, plaintiff was a paying customer who was on defendant’s premises for defendant’s commercial purposes, and thus he was an invitee of defendant. See Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596-598, 603-604; 614 NW2d 88 (2000). As our Supreme Court noted, “invitee status necessarily turns on the existence of an ‘invitation.’ ” Id. at 597-598. Defendant’s contention that plaintiff should have gone elsewhere is simply inconsistent with defendant’s purpose in operating its gas station. The logical consequence of defendant’s argument would be the irrational conclusion that a business owner who invites customers onto its premises would never have any liability to those customers for hazardous conditions as long as the customers even technically had the option of declining the invitation.
Even if the record showed that plaintiff was aware of a realistic, safe alternative location to purchase his fuel, coffee, and windshield washer fluid, where defendant has invited the public, and by extension plaintiff, onto its premises for commercial purposes, we decline to absolve defendant of its duty of care on that basis. To do so would be disingenuous. Therefore, we conclude that the trial court appropriately denied defendant’s motions. [Id. at 594-595 (emphasis omitted).]
Further, even in the hypothetical example of standing water blocking the only exit to a building described in Lugo, 464 Mich at 518, the Supreme Court apparently would not have absolved the theoretical defendant of responsibility when the theoretical plaintiff chose to leave the building and confront an unavoidable danger, rather than choosing to avoid the danger by waiting until the water had cleared.
In reaching its decision that summary disposition was inappropriate, the trial court noted that Hoffner had contracted to use Fitness Xpress and may have needed to use it for health reasons. Because there was only one customer entrance to the facility that was fronted by the icy sidewalk, “the objective nature of the condition of the premises at issue” reveals that the icy sidewalk was effectively unavoidable as it related to the use of the premises. See id. at 523-524; Robertson, 268 Mich App at 594-595. There was no alternative route Hoffner could have taken in order to enter the exercise facility. Additionally, Hoffner was an invitee by virtue of her contract with Fitness Xpress, and the Robertson Court held that it would be disingenuous to relieve defendants of their duty of care under similar circumstances. See Robertson, 268 Mich App at 595. Therefore, we conclude that the trial court appropriately denied defendants’ motion on this ground.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Fitness Xpress was operated by defendant Mousie, Incorporated, which was owned by defendants Pamela Mack and Tiffani Aho. Defendants Richard and Lori Lanctoe owned the building and property where Mousie, Incorporated, leased space for Fitness Xpress.
As our Supreme Court recently set forth in Shay v Aldrich, 487 Mich 648, 675-676; 790 NW2d 629 (2010),
to determine whether an unnamed party is released from liability by broad or vague release language, the party’s status as a third-party beneficiary must be established by an objective analysis of the release language. However, traditional contract principles continue to apply to the release, and courts may consider the subjective intent of the named and unnamed parties to the release under certain circumstances, such as when there is a latent ambiguity. The third-party-beneficiary statute indicates that the Legislature intended to allow parties who are direct beneficiaries to sue to enforce their rights, but the statute expressly states that third-party beneficiaries have only the “same right” to enforce as they would if the promise had been made directly to them. MCL 600.1405. That is, the statute creates a cause of action, but it is not intended to afford third parties greater rights than they would have if they had been the original promisee.
The Shay Court also noted the following:
[A] latent ambiguity has been described as one that “ ‘arises not upon the words of the will, deed or other instrument, as looked at in themselves, but upon those words when applied to the object or to the subject which they describe.’ ” “ ‘And where, from the evidence which is introduced, there arises a doubt as to what party or parties are to receive the benefit [of a contract], parol evidence is admissible to determine such fact.’ ” [Id. at 671-672 (citations omitted; second alteration in Shay).]
No waiver of liability form has ever been produced.
Defendants argued at the hearing of this matter that as an alternative to entering Fitness Xpress over the glare ice blocking the only entrance, Hoffner could have called Fitness Xpress and demanded that it salt the sidewalk, after which she would presumably have waited for the salt to take effect. Such an alternative notably contradicts defendants’ argument that Fitness Xpress had no possession or control over the sidewalk and, thus, no obligation to salt it.
We find unconvincing defendants’ argument at the hearing that if plaintiff had approached the glare ice from a different angle she might have had more success. | [
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K F. Kelly, J.
This appeal from a divorce judgment requires us to determine whether the trial court’s application and use of an arbitrary formula to calculate an award of spousal support was fair and equitable under the circumstances of this case. We hold that MCL 552.23 prohibits the use of rigid and arbitrary formulas that fail to account for the parties’ unique circumstances and relative positions and reaffirm the mandate that a trial court awarding spousal support must consider the relevant factors. Further, we must also determine whether a trial court may disregard MCR 3.206(C)(2)(a) when considering a request for attorney fees based on need and merely rely on whether a party engaged in either egregious conduct or wasteful litigation. Under these circumstances, we conclude that the trial court failed to apply the proper needs-based analysis. Accordingly, we reverse and remand.
I. SPOUSAL SUPPORT
Plaintiff first argues that the trial court erred by failing to adequately consider the parties’ ages, health, and abilities to work; their respective abilities to pay alimony; their needs; and their prior standard of living. Plaintiff also asserts that the trial court clearly erred by imputing $7,000 in income to her and by failing to consider the costs of the health insurance she purchased pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 USC 1161 et seq. We agree. We review a trial court’s findings of fact related to an award of spousal support for clear error. Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723 (2000). “A finding is clearly erroneous if the appellate court is left with a definite and firm conviction that a mistake has been made.” Id. at 654-655. “If the trial court’s findings are not clearly erroneous, this Court must then decide whether the dispositional ruling was fair and equitable in light of the facts.” Berger v Berger, 277 Mich App 700, 727; 747 NW2d 336 (2008). We must affirm the trial court’s dispositional ruling unless we are firmly convinced that it was inequitable. Id.
A trial court has discretion to award spousal support under MCL 552.23. Korth v Korth, 256 Mich App 286, 288; 662 NW2d 111 (2003). The primary purpose of spousal support is to “balance the incomes and needs of the parties in a way that will not impoverish either party” on the basis of what is “just and reasonable under the circumstances of the case.” Moore, 242 Mich App at 654. Among the factors to be considered are
(1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity. [Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003) (citations omitted).]
“The trial court should make specific factual findings regarding the factors that are relevant to the particular case.” Korth, 256 Mich App at 289.
In this case, the trial court determined that defendant’s income was $62,500 a year and imputed $7,000 in income to plaintiff. It then awarded plaintiff spousal support of $13,875 a year ($1,156 a month) after considering only the length of the parties’ marriage. To reach this number, the trial court applied a mechanistic formula, stating that it had “a formula that it has utilized in the past” and it was “using that as a guideline. . . Accordingly, the court multiplied the difference between defendant’s income and plaintiffs imputed income ($62,500 - $7,000 = $55,000) by 0.25. The trial court stated that it chose 0.25 on the basis of the number of years the parties were married — 25.
This limited, arbitrary, and formulaic approach is without any support in the law. It totally fails to consider the unique circumstances of the parties’ respective positions and fails to reach an outcome that balances the parties’ needs and incomes. In short, we cannot sanction the use of such a blunt tool in any spousal support determination, and the trial court’s use of this formula here was an error of law. Given the trial court’s use and application of its formula, it is not surprising that it failed to consider the factors relevant to an award of spousal support, aside from the length of the parties’ marriage and their relative incomes. Indeed, this formula does not adequately account for many factors that were highly relevant to this proceeding, including the parties’ ages, health, abilities to work, needs, previous standard of living, and whether one of them would be supporting a dependent. The trial court considered none of these required factors in the instant proceeding.
Moreover, the trial court clearly erred by imputing to plaintiff an income of $7,000. As noted, the trial court made no explicit finding regarding plaintiffs health or her ability to work, nor did it make any finding that plaintiff had voluntarily reduced her income. The trial judge simply cited excerpts of the deposition of plain tiffs doctor and considered the judge’s own personal medical ailments before concluding that plaintiff could work and could earn $7,000 a year. This finding was clearly erroneous. First, parties to a divorce action “are entitled to individual consideration based on the law and facts applicable to their case, not on anecdotal experiences of the trial court.” Cf. Brausch v Brausch, 283 Mich App 339, 354; 770 NW2d 77 (2009) (applying this principle to a custody action). Thus, the trial judge’s comments that despite his own ailments, he planned to work until he was “not able to do anything” and “when you don’t have any options and you gotta work, you gotta work,” were an entirely irrelevant and inappropriate basis on which to conclude that plaintiff herself had the ability to work. Second, after a review of the deposition of plaintiffs doctor and plaintiffs testimony, it is clear that plaintiff does not have the ability to work or to earn $7,000 a year because of her progressive multiple sclerosis (MS). Plaintiff testified that she could not work and that she suffered numbness in her extremities, blurred vision, clumsiness, confusion, lack of bladder control, chronic fatigue, drowsiness, vertigo, and depression. Plaintiffs doctor, Phillip Green, also testified that plaintiff suffered from weakness, clumsiness, decreased cognition, and confusion and that her condition would worsen over time. According to Dr. Green, plaintiffs intelligence quotient was in the 23d percentile, and her cognitive ability to process information and act on the information was in the 8th percentile. Dr. Green testified that plaintiff was not capable of full-time employment and indicated that part-time employment was “possible . . . but not probable,” especially because of the progressive nature of her MS. Further, plaintiffs only work experience is childcare and waitressing — two physically demanding jobs that plaintiff could not reasonably be expected to perform — and she lacks any valuable job skills that would qualify her for skilled employment. In light of this evidence, and a lack of any evidence that plaintiff voluntarily reduced her income, we have a definite and firm conviction that the trial court made a mistake by concluding that plaintiff had the ability to work and earn an income and by imputing to her a $7,000 income.
We also note, as plaintiff points out, that the trial court erred by failing to consider plaintiffs needs, specifically her health-care costs, and by determining that plaintiff should not be awarded any additional support to cover those costs. Presently, plaintiff pays $383 a month for COBRA benefits. The trial court determined that plaintiff could pay for COBRA from her spousal support and did not award any additional amount to cover her health-care costs. However, in making this determination, the trial court ignored the disparate economic positions of the parties. As noted, plaintiff suffers from a severe physical impairment that will become worse with time, and she has no meaningful work experience, no specialized training, and no real potential to earn any income. In comparison, defendant is healthy, he earns about $62,500 a year (approximately $5,200 a month) in a field in which he has years of experience, and he has a retirement account and health-care coverage for which he pays $41 a month. In consideration of the parties’ relative positions and plaintiffs needs, it would not have been inequitable for the trial court to require defendant to maintain plaintiffs health insurance. See Voukatidis v Voukatidis, 195 Mich App 338, 339; 489 NW2d 512 (1992). The trial court, however, failed to even address the parties’ relative positions. The trial court also overlooked the fact that its spousal support award would not even cover plaintiffs living expenses. Although the trial court likely expected plaintiff to make up the difference through her separate individual earnings, we have already concluded that the trial court clearly erred by determining that plaintiff had the ability to work and earn an income. Accordingly, on remand, the trial court must specifically consider plaintiffs needs, and specifically her health-related needs, in light of the fact that she has no earning potential and no ability to work.
In summary, an application of the general principles of equity, within the confines of the applicable statute and relevant caselaw, supports a conclusion that plaintiff is entitled to a greater amount of spousal support than the trial court awarded. Plaintiff has no earning ability, has severe health problems, and has significant costs associated with her health care, while defendant is relatively young, in good health, employed, earns a decent salary, and has relatively low living expenses. The trial court’s award of spousal support, in light of plaintiffs health condition and earning ability, was deficient and clearly inequitable. On remand, the trial court must consider the relevant factors as they pertain to the parties and make specific findings of fact that justify its ultimate award of spousal support. In doing so, it must keep in mind that its goal is to reach a result that is just and reasonable under the circumstances and that “balance[s] the incomes and needs of the parties in a way that will not impoverish either party.” Moore, 242 Mich App at 654. Finally, given the statutory mandate of MCL 552.23, we must emphasize that there is no room for the application of any rigid and arbitrary formulas when determining the appropriate amount of spousal support and the trial court on remand must proceed accordingly.
II. STIPULATION
Next, plaintiff argues that the trial court erred by failing to enforce a stipulation between the parties that required defendant to sell his 1969 Pontiac Firebird and use the proceeds to pay marital debt. We disagree. “A settlement agreement, such as a stipulation and property settlement in a divorce, is construed as a contract.” MacInnes v MacInnes, 260 Mich App 280, 283; 677 NW2d 889 (2004). The same legal principles that govern the construction and interpretation of contracts govern the parties’ purported settlement agreement in a divorce case. Id. The existence and interpretation of a contract involves a question of law that this Court reviews de novo. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006).
Under MCR 2.507(G),
[a]n agreement or consent between the parties or their attorneys respecting the proceedings in an action, subsequently denied by either party, is not binding unless it was made in open court, or unless evidence of the agreement is in writing, subscribed by the party against whom the agreement is offered or by that party’s attorney.
Further,
[i]t is a well-settled principle of law that courts are bound by property settlements reached through negotiations and agreement by parties to a divorce action, in the absence of fraud, duress, mutual mistake, or severe stress which prevented a party from understanding in a reasonable manner the nature and effect of the act in which she was engaged. [Keyser v Keyser, 182 Mich App 268, 269-270; 451 NW2d 587 (1990).]
In this case, the record does not support a conclusion that the parties entered into a binding stipulation that required defendant to sell the Firebird to pay the marital debt. Rather, the parties merely agreed that the Firebird would be considered defendant’s separate property and that, should defendant decide to sell it, plaintiff would be entitled to receive an accounting of the sale and the proceeds would be applied to the marital debt. Thus, whether to sell the Firebird remained in defendant’s sole discretion, and, to plaintiffs detriment, he decided not to sell it. Accordingly, contrary to plaintiffs position, the trial court did not err by adhering to the parties’ stipulation and excluding the Firebird from the distribution of the assets.
Further, we note that although plaintiff advances an alternative interpretation of the stipulation, she does not even argue that she entered into the stipulation because of a mutual mistake. Therefore, absent an indication of fraud, duress, or severe stress, the stipulation must be enforced according to its plain terms. Plaintiff does not assert that any of these foregoing circumstances existed, and her interpretation of the stipulation has no support in the record. Her argument on appeal is simply an attempt to avoid the effect of the stipulation and to regain that which she forfeited by agreeing to it: an adjudication of whether the Firebird constituted defendant’s separate property and, if so, whether it could be invaded under MCL 552.23. No relief is warranted on this basis.
III. ATTORNEY fees
Plaintiff also asserts that the trial court abused its discretion by denying her need-based request for attorney fees. We agree. We review for an abuse of discretion a trial court’s decision whether to award attorney fees. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). We review findings of fact for clear error and questions of law de novo. Stallworth v Stallworth, 275 Mich App 282, 288; 738 NW2d 264 (2007).
The applicable court rule, MCR 3.206(C)(2)(a), states:
A party who requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other party is able to pay ....
This Court has interpreted this rule to require an award of attorney fees in a divorce action “only as necessary to enable a party to prosecute or defend a suit.” Gates v Gates, 256 Mich App 420, 438; 664 NW2d 231 (2003). With respect to a party’s ability to prosecute or defend a divorce action, a party “may not be required to invade her assets to satisfy attorney fees when she is relying on the same assets for her support.” Maake v Maake, 200 Mich App 184, 189; 503 NW2d 664 (1993). Further, a party sufficiently demonstrates an inability to pay attorney fees when that party’s yearly income is less than the amount owed in attorney fees. Stallworth, 275 Mich App at 288-289.
In this case, the trial court stated that it only awards attorney fees if a party engaged in egregious conduct or wasteful litigation and indicated that plaintiff could use her spousal support to pay her attorney, stating:
With regard to attorney fees, this Court has never granted attorney fees unless the Court felt that there was an egregious — egregious conduct by [sic] the part of one of the litigants or wastefulness with regard to their actions. I always believe that everyone should, you know, with whatever allocation of assets pay their attorney fees. And so, I’m denying the invitation to assess attorney fees.
This basis for denying plaintiff attorney fees constituted an error of law. See Maake, 200 Mich App at 189; Gates, 256 Mich App at 438. It was incumbent upon the trial court to consider whether attorney fees were necessary for plaintiff to defend her suit, including whether, under the circumstances, plaintiff would have to invade the same spousal support assets she is relying on to live in order to pay her attorney fees and whether, under the specific circumstances, defendant has the ability to pay or contribute to plaintiffs fees. See Gates, 256 Mich App at 438; MCR 3.206(C)(2)(a). Thus, on remand, the trial court must apply the correct legal analysis, giving special consideration to the specific financial situations of the parties and the equities involved. In addition, the trial court must also consider whether plaintiff is entitled to appellate attorney fees pursuant to MCR 3.206(C)(1), applying the same analysis.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
The trial court offered no legal authority in support of this particular formula, and we have found no legal authority that supports such a formula.
Under the division of property, plaintiff was responsible for half of the marital debt and the marital home’s mortgage until the home is sold— approximately $1000 a month. Housing and COBRA alone, totaling $1,383 per month, would cost more than the $1,156 in monthly support that the trial court awarded. | [
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Meter, J.
In this case involving the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., defendant Robert Lee Redden and defendant Torey Alison Clark appeal by leave granted a December 10, 2009, circuit court order reversing for each defendant the district court’s dismissal of a single count of manufacturing 20 or more but less than 200 marijuana plants, MCL 333.7401(2)(d)(ii). We affirm the circuit court’s decision to reinstate the charges.
I. FACTS
This case arose from the execution of a search warrant at defendants’ residence in Madison Heights, which resulted in the discovery of approximately IV2 ounces of marijuana and 21 marijuana plants. Officer Kirk Walker and Officer Mark Moine of the Madison Heights Police Department testified that in the evening of March 30, 2009, they arrived at the residence with three other officers to execute a search warrant for the purpose of looking for marijuana and other illegal substances.
Defendants and another unidentified individual were found in the residence and were secured by the officers. The officers found proof of residency for defendants and $531 in cash. The officers also found three bags of marijuana in a bedroom. In addition, they found 21 marijuana plants, which were all between three and four inches tall, on the floor of a closet in the same bedroom. Field tests of these items were positive for marijuana. The officers did not find any scales, small plastic bags, or packaging materials in the residence.
At some point during the search, Redden stated that he was in pain. Defendants also each turned over documents regarding their use of marijuana for medical purposes. The documents, which were dated March 3, 2009, for Redden, and March 4, 2009, for Clark, were admitted into evidence. Each document stated:
I, Eric Eisenbud, MD, am a physician, duly licensed in the State of Michigan. I have completed a full assessment of this patient’s medical history, and I am treating this patient for a terminal illness or a debilitating condition as defined in Michigan’s medical marijuana law. I completed a full assessment of this patient’s current medical condition. This assessment was made in the course of a bona fide physician-patient relationship. I have advised the patient about the potential risks and benefits of the medical use of marijuana. I have formed my professional opinion that the potential benefits of the medical use of marijuana would likely outweigh any health risks for the patient. This patient is LIKELY to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate a serious or debilitating medical condition or symptoms of the serious or debilitating medical condition.
The MMMA went into effect on December 4, 2008, but, according to Walker, the state of Michigan did not begin issuing registry identification cards until April 4, 2009. The Michigan Department of Community Health issued medical-marijuana registry identification cards to each defendant on April 20, 2009, but this was after the search in this case took place.
In the course of the preliminary examination, defendants asserted the affirmative defense contained in § 8 of the MMMA, MCL 333.26428. In support of the defense, defendants presented testimony from Eric Eisenbud, M.D., who testified that he had attended the University of Colorado’s medical school and had been a physician for 37 years. He was licensed to practice in seven states, including Michigan, and was board-certified in ophthalmology. Dr. Eisenbud also had worked in the past as an emergency room practitioner and a family practitioner. At the time of the preliminary examination, Dr. Eisenbud had worked for the past 19 months for The Hemp and Cannabis Foundation (THCF) Medical Clinic. He testified that he is “not from Michigan” and was currently working in six out of the seven states in which he was licensed to practice medicine, although he later suggested that he was working in all seven states.
Dr. Eisenbud testified that defendants were his patients and that he examined each of them on March 3, 2009, when both were seeking to be permitted to use marijuana under the MMMA. A clinic technician screened defendants before their appointment in a telephone interview and by reviewing their medical records. Dr. Eisenbud met with each defendant for about a half-hour, spending 5 minutes reviewing the medical records and about 10 minutes on the physical examination; he also interviewed them. During their 10-minute physical examinations, Dr. Eisenbud examined both defendants’ general appearance and skin, listened to their lungs, examined their abdomens, ex amined their heads and necks, did a neurological and cardiovascular assessment, and assessed their mental health.
Dr. Eisenbud testified that he signed the authorization for each defendant in his professional capacity because each qualified under the MMMA and each would benefit medically from using marijuana. He opined that his relationship with each defendant was a bona fide physician-patient relationship because he interviewed defendants, examined them, and looked at their medical records in order to gain a full understanding of their medical problems. Dr. Eisenbud acknowledged that the THCF Medical Clinic did not require patients to bring their complete medical records. The records from Redden were from two years before his examination by Dr. Eisenbud, and Clark’s records were from a year before her examination by Dr. Eisenbud.
Regarding Redden, Dr. Eisenbud concluded that he had a debilitating condition that caused pain, satisfying the MMMA’s requirements. Regarding Clark, Dr. Eisenbud concluded from her medical records and interviewing her that she suffered from nausea. Dr. Eisenbud did not testify regarding what caused Redden’s pain or Clark’s nausea. Dr. Eisenbud only examined each defendant once. He viewed the only risk of defendants’ using marijuana as related to driving; he indicated that they should not drive within four hours of using it.
Dr. Eisenbud testified that defendants had not consulted with any other doctors regarding medical-marijuana authorization before their appointments with him. According to Dr. Eisenbud, both defendants were using other narcotics for their conditions, and he opined that access to marijuana would give them the opportunity to wean themselves off of those narcotics.
The parties stipulated that Redden had two previous convictions for possession of marijuana with intent to distribute.
During the preliminary examination, the prosecution argued that defendants were not entitled to assert the affirmative defense from § 8 of the MMMA because neither had a registry identification card at the time of the offense as required by § 4(a) of the MMMA, MCL 333.26424(a). The prosecution acknowledged that defendants could not have obtained a card previously because the state had yet to begin issuing them. However, the prosecution contended that defendants were required to abstain from marijuana use until they were able to obtain a card. Defendants argued that the plain language of § 8 of the MMMA did not require possession of a card.
The prosecution argued that under the probable-cause standard, the evidence showed that defendants were engaged in manufacturing marijuana. The prosecution contended that defendants had failed to comply with § 8 of the MMMA because they had not shown a bona fide patient-physician relationship with Dr. Eisenbud and also had failed to establish that they possessed an amount of marijuana that was not more than was reasonably necessary to ensure uninterrupted availability for the purpose of treating their conditions. Defendants argued that they met the requirements of § 8 because each had a signed authorization from a licensed physician with whom he or she had a bona fide physician-patient relationship and who concluded that each had conditions covered under the MMMA. Defendants also argued that the amount of marijuana was reasonably necessary.
II. LOWER-COURT RULINGS
The district court noted that the MMMA “is probably one of the worst pieces of legislation I’ve ever seen in my life” and went on to state:
[S]ection 8 says section 4 doesn’t really have any meaning. If you don’t have a card and you happen to be arrested, just make sure you have a doctor who will testify in court that you needed medical marijuana in order to have that case dismissed.
The burden’s on defendant at the evidentiary hearing to have section 8 apply to show what a reasonable amount of marijuana is. It doesn’t say what a reasonable amount is. It would seem practical to me that they would have included the same amount that was in section 4 if they believed that was a reasonable amount. But, instead, they just leave it to, I guess, every other judge’s decision as to what they think is reasonable.
It — it’s just one of the worst pieces of legislation I’ve ever seen.... [I]t appears that section 8, the intent of it is to allow anyone who possesses marijuana with a doctor’s certification, I guess at the time of a hearing, that the case would have to be dismissed. Because it very clearly says in section [8]b that the charges shall be dismissed following an evidentiary hearing where the person shows the ele merits listed in subsection A. Well, one of the elements in subsection A is possessing a reasonable quantity of marijuana.
I still don’t know what a reasonable quantity of marijuana is unless I go to section 4. Section 4 says, 2-point-5 ounces, I believe, 12 plants, but you also have to have a valid registration card.
So, these people possessed no registration card, but yet they want the benefit of section 4 to apply to section 8.
The district court also noted that although Dr. Eisenbud testified regarding defendants’ legitimate need to use marijuana for medical purposes, there was no testimony regarding what was a reasonably necessary amount for defendants to possess. The district court concluded that it would simply apply the amount of 2.5 ounces and 12 plants set by § 4 as what was reasonably necessary, and it granted defendants’ motion to dismiss, explaining:
For that reason, I believe that section 8 entitles the defendants to a dismissal, even though they did not possess the valid medical card, because section 8 says if they can show the fact that a doctor believed they were likely to receive the therapeutic benefit, and this doctor testified to that. And Doctor Eisenbud is a physician, licensed by the State of Michigan. And that’s the only requirement that the statute has. You don’t have to be any type of physician, you just have to be a licensed physician by the State of Michigan.
So, based on that, I find section 8 does apply. And I believe I’m obligated to dismiss this matter based on section 8 of the statute.
Regarding the prosecution’s request for a clarification of whether the doctor’s testimony rose to the level of establishing a bona fide physician-patient relationship, the district court stated:
Based on his testimony, he indicated that he — he read their medical records, he saw them, and I think his total time was about a half an hour totally spent with them, which, based on my own personal experience, I don’t find inconsistent with my own doctor. So I guess that’s a bona fide relationship.
The district court entered an order of dismissal on July 17, 2009.
The prosecution appealed the order of dismissal in the circuit court. On December 18, 2009, the circuit court issued an opinion and order reversing the district court’s order and remanding the case to the district court for further proceedings. The circuit court ruled that the district court had abused its discretion by not binding defendants over for trial because it had improperly acted as a trier of fact. The circuit court ruled that, in this case, the affirmative defense must be addressed in the trial court in order for proper discovery and rebuttal to take place.
The circuit court also considered questionable the issue regarding whether defendants should be allowed to raise the affirmative defense at all, because defendants did not have valid registry identification cards as required by § 4 of the MMMA, together possessed more than the amount of marijuana permitted under § 4, and did not keep their marijuana plants in “an enclosed, locked facility,” which is also required under § 4.
The circuit court then emphasized that there was a disputed question regarding whether Dr. Eisenbud had a bona fide physician-patient relationship with defendants. The circuit court concluded:
[T]here was competent evidence in support of the bindover. For the district judge to deny the bindover was an abuse of discretion. Specifically, the district judge failed to properly exercise his judgment by relying solely on Dr. Eisenbud’s testimony, and by ignoring the evidence presented by the People regarding Defendants’ actions that showed they did not meet the criteria of the affirmative defense. The evidence in support of the affirmative defense was not developed sufficiently to support the district judge’s decision to deny the bindover.
III. A REGISTRY IDENTIFICATION CARD IS NOT REQUIRED FOR A § 8 DEFENSE
Defendants argue that the circuit court erred by ruling that because defendants did not obtain registry identification cards in order to satisfy the conditions of § 4 of the MMMA, they could not assert the affirmative defense contained in § 8.
A. STANDARD OF REVIEW
This issue presents a question of statutory interpretation. We review de novo issues of statutory interpretation. People v Stone Transp, Inc, 241 Mich App 49, 50; 613 NW2d 737 (2000). Generally, the primary objective in construing a statute is to ascertain and give effect to the Legislature’s intent. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). The MMMA was enacted as a result of an initiative adopted by the voters. “The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters.” Welch Foods, Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995). We presume that the meaning as plainly expressed in the statute is what was intended. Id. This Court must avoid a construction that would render any part of a statute surplusage or nugatory, and “[w]e must con sider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme.” People v Williams, 268 Mich App 416, 425; 707 NW2d 624 (2005).
B. ANALYSIS
This issue involves §§ 4, 7, and 8 of the MMMA. Section 4 provides, in relevant part:
(a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.
(c) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.
(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s debilitating medicad condition or symptoms associated with the debilitating medical condition, in accordance with this act.[ ] [MCL 333.26424.]
Section 8 provides:
(a) Except as provided in section 7 [MCL 333.26427], a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:
(1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;
(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.
(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).
(c) If a patient or a patient’s primary caregiver demonstrates the patient’s medical purpose for using marihuana pursuant to this section, the patient and the patient’s primary caregiver shall not be subject to the following for the patient’s medical use of marihuana:
(1) disciplinary action by a business or occupational or professional licensing board or bureau; or
(2) forfeiture of any interest in or right to property. [MCL 333.26428.]
As an initial matter, the plain language of § 8 does not place any restriction on defendants’ raising of the affirmative defense. Nevertheless, the prosecution argues that the affirmative defense under § 8 is unavailable to defendants because they did not possess valid registry identification cards at the time of the offense, in violation of § 4. The prosecution bases its position on the language in § 8(a) that provides: “Except as provided in section 7, a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid . . ..” MCL 333.26428(a) (emphasis added).
Section 7(b) provides a host of instances for which the protection of the affirmative defense under § 8 would not be permitted, but none of those situations is at issue in this case. See MCL 333.26427(b). However, the prosecution points to § 7(a), which provides that “[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.” MCL 333.26427(a). The prosecution contends that this section justifies its position that § 4 must be adhered to in order for a defendant to invoke § 8 because the affirmative defense is only available to a defendant who complies with the other provisions of the MMMA.
However, as defendants argue, this position ignores that the MMMA provides two ways in which to show legal use of marijuana for medical purposes in accordance with the act. Individuals may either register and obtain a registry identification card under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in § 8.
The plain language of the MMMA supports this view. Section 4 refers to a “qualifying patient who has been issued and possesses a registry identification card” and protects a qualifying patient from “arrest, prosecution, or penalty in any manner . . . .” MCL 333.26424(a). On the other hand, § 8(a) refers only to a “patient,” not a qualifying patient, and only permits a patient to “assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana... .” MCL 333.26428(a). Thus, adherence to § 4 provides protection that differs from that of § 8. Because of the differing levels of protection in §§ 4 and 8, the plain language of the statute establishes that § 8 is applicable for a patient who does not satisfy § 4.
The language of the ballot proposal itself supports this interpretation. The ballot proposal, Proposal 08-1, stated that the law would do the following:
• Permit physician approved use of marijuana by registered patients with debilitating medical conditions including cancer, glaucoma, HIV¡ AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health.
• Permit registered individuals to grow limited amounts of marijuana for qualifying patients in an enclosed, locked facility.
• Require Department of Community Health to establish an identification card system for patients qualified to use marijuana and individuals qualified to grow marijuana.
• Permit registered and unregistered patients and primary caregivers to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana. [Emphasis added.]
The ballot proposal explicitly informed voters that the law would permit registered and unregistered patients to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana. The language supports the view that registered patients under § 4 and unregistered patients under § 8 would be able to assert medical use of marijuana as a defense. Accordingly, we hold that the district court did not err by permitting defendants to raise the affirmative defense even though neither satisfied the registry-identification-card requirement of § 4.
IV THE CIRCUIT COURT PROPERLY REVERSED THE BINDOVER DECISION
Defendants next contend that the circuit court erred by holding that the district court was precluded from ruling that defendants’ manufacturing marijuana was permitted under the MMMA. We find no basis on which to reverse the circuit court’s disposition because there are indeed triable issues in this case and the district court improperly acted as a trier of fact in denying the bindover.
A. STANDARD OF REVIEW
“A district court’s ruling that alleged conduct falls within the scope of a criminal law is a question of law that is reviewed de novo for error, but a decision to bind over a defendant based on the factual sufficiency of the evidence is reviewed for an abuse of discretion.” People v Henderson, 282 Mich App 307, 312; 765 NW2d 619 (2009). When reviewing the bindover decision, a circuit court must consider the entire record of the preliminary examination and not substitute its judgment for that of the district court. Id. at 312-313. This Court reviews de novo the bindover decision to determine whether the district court abused its discretion, giving no deference to the circuit court’s decision. Id. at 313.
B. ANALYSIS
“The primary function of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe that the defendant committed it.” People v Glass (After Remand), 464 Mich 266, 277; 627 NW2d 261 (2001). Probable cause is established by evidence “sufficient to cause a person of ordinary prudence and caution to conscientiously enter tain a reasonable belief of the accused’s guilt.” People v Yost, 468 Mich 122, 126; 659 NW2d 604 (2003) (citation and quotation marks omitted). In order to establish that a crime has been committed, the prosecution need not prove each element beyond a reasonable doubt, but must present some evidence of each element. See id. If the evidence conflicts or raises a reasonable doubt concerning the defendant’s guilt, the defendant should nevertheless be bound over for trial, at which the trier of fact can resolve the questions. Id. at 128.
This Court has recognized “that affirmative defenses in criminal cases should typically be presented and considered at trial and that a preliminary examination is not a trial.” People v Waltonen, 272 Mich App 678, 690 n 5; 728 NW2d 881 (2006). In Waltonen, this Court went on to note that in a situation in which the defense is complete and there are no conflicting facts regarding the defense, it could be argued that there would be no probable cause to believe a crime had been committed. Id.
The district court must consider not only the weight and competency of the evidence, but also the credibility of the witnesses, and it may consider evidence in defense. People v King, 412 Mich 145, 153; 312 NW2d 629 (1981). As noted, however, the district court cannot discharge a defendant if the evidence conflicts or raises reasonable doubt concerning a defendant’s guilt because this presents an issue for the trier of fact. Id. at 153-154.
There was evidence in this case that the defense was not complete, cf. Waltonen, 272 Mich App at 690 n 5, and there were colorable issues for the trier of fact, see King, 412 Mich at 153-154. Specifically, we conclude that there were colorable issues concerning whether a bona fide physician-patient relationship existed, whether the amount of marijuana defendants possessed was reasonable under the statute, whether the marijuana in question was being used for medical purposes, and whether defendants suffered from serious or debilitating medical conditions.
1. BONA FIDE PHYSICIAN-PATIENT RELATIONSHIP
MCL 333.26428(a)(1) states that a medical-purpose defense shall be presumed valid if, among other requirements,
[a] physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition!)]
We conclude that there was evidence in this particular case that the doctor’s recommendations did not result from assessments made in the course of bona fide physician-patient relationships. Dr. Eisenbud testified that he was board-certified in ophthalmology. He answered, “That’s right,” when asked the following ques tion: “So, your sole employment, at this point, is to review people to see whether or not you think they can have marijuana under the Michigan Medical Marijuana — or any other medical marijuana law, correct?” He testified that he saw Clark and Redden once each and was currently working in at least six states. He refused to divulge what defendants’ debilitating medical conditions were. Dr. Eisenbud indicated that he was not scheduled to see defendants again until they were due to renew their documentation for using marijuana for medical purposes.
The MMMA does not define the phrase “bona fide physician-patient relationship.” When words or phrases are not defined in a statute, a dictionary may be consulted. People v Peals, 476 Mich 636, 641; 720 NW2d 196 (2006). Random House Webster’s College Dictionary (1997) defines “bona fide” as “1. made, done, etc., in good faith; without deception or fraud. 2. authentic; genuine; real.” We do not intend to legislate from the bench and define exactly what must take place in order for a bona fide physician-patient relationship to exist. We do conclude, however, that the specific facts in this case, as set forth in the previous paragraph, were sufficient to raise an issue for the trier of fact concerning whether the doctor’s recommendations resulted from assessments made in the course of bona fide physician-patient relationships between Dr. Eisenbud and each defendant. Indeed, the facts at least raise an inference that defendants saw Dr. Eisenbud not for good-faith medical treatment but in order to obtain marijuana under false pretenses. Accordingly, the district court erred by finding as a matter of law that defendants had satisfied all the requirements for a § 8 defense.
2. AMOUNT OF MAKIJUANA POSSESSED
MCL 333.26428(a)(2) states that the § 8 affirmative defense will not be presumed valid unless
[t]he patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition ....
There was no testimony or evidence presented regarding whether the amount of marijuana possessed by defendants was “not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s . . . condition or symptoms . . ..” Id. Defendants were found in possession of approximately IV2 ounces of marijuana and 21 marijuana plants. The district court addressed this element of the affirmative defense and concluded that because the amount of marijuana, when divided between defendants, was less than that of the 2V2 ounces and 12 marijuana plants permitted under § 4, this portion of the affirmative defense was satisfied.
However, the plain language of the statute does not support that the amount stated in § 4 is equivalent to the “reasonably necessary” amount under § 8(a)(2). Indeed, if the intent of the statute were to have the amount in § 4 apply to § 8, the § 4 amount would have been reinserted into § 8(a)(2), instead of the language concerning an amount “reasonably necessary to ensure . . . uninterrupted availability. . . .” MCL 333.26428(a)(2). Without any evidence on this element of the affirmative defense, the district court could not have properly found the affirmative defense established as a matter of law. There was a colorable question of fact concerning whether the amount possessed was in accordance with the statute.
3. PURPOSE OF THE MARIJUANA IN QUESTION
MCL 333.26428(a)(3) indicates that, for the medical-purpose defense to be valid, evidence must show that
[t]he patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.
There was testimony and evidence that Redden and Clark could benefit from the medical use of marijuana. However, although an inference could be made that the specific marijuana they allegedly manufactured was being manufactured for medical purposes, there was no explicit testimony or other evidence establishing this fact. Therefore, we find that there was considerable doubt concerning whether defendants satisfied this portion of the defense, see King, 412 Mich at 153-154, and the district court therefore should not have concluded that the defense was established as a matter of law.
4. SERIOUS OR DEBILITATING MEDICAL CONDITIONS
Dr. Eisenbud did not identify the nature of defendants’ debilitating medical conditions beyond stating that Redden had “pain” and Clark had “nausea.” Section § 7(b)(5) states that the MMMA “shall not permit any person to . . . [u]se marihuana if that person does not have a serious or debilitating medical condition.” MCL 333.26427(b)(5). Section 3, the definitional section of the MMMA, states in relevant part:
(a) “Debilitating medical condition” means 1 or more of the following:
(1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions.
(2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.
(3) Any other medical condition or its treatment approved by the department, as provided for in [MCL 333.26425(a)]. [MCL 333.26423(a).]
Section 3 does not define the phrase “serious medical condition.” See MCL 333.26423.
In his written documents, Dr. Eisenbud stated that each defendant was likely to receive benefit from using marijuana to “treat or alleviate a serious or debilitating medical condition . ..However, he stated only that he was treating each defendant for “a terminal illness or a debilitating condition as defined in Michigan’s medical marijuana law.” He then stated at the preliminary examination that Redden had a “debilitating condition.” When asked what the condition was, he replied “pain.” Dr. Eisenbud stated that Clark’s debilitating condition was “nausea.”
We conclude that defendants did not establish at the preliminary examination as a matter of law that they had serious or debilitating medical conditions as required by the MMMA. With regard to the phrase “serious medical condition,” Random House Webster’s College Dictionary (1997) defines “serious,” in this context, as “weighty, important, or significant” and “giving cause for apprehension; critical or threatening[.]” Without knowing the na ture of defendants’ medical conditions, it is not possible to determine whether they are “serious.” With regard to the phrase “debilitating medical condition,” MCL 333.26423(a)(2) indicates that this phrase includes “[a] chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following:... severe and chronic pain; severe nausea....” Dr. Eisenbud indicated that Redden suffered merely from “pain” and that Clark suffered merely from “nausea.” This evidence was not sufficient to satisfy the definition set forth in MCL 333.26423(a)(2). The district court therefore erred by concluding that defendants satisfied the requirements of the MMMA as a matter of law. Whether each defendant suffered from a serious or debilitating medical condition is yet another matter for further proceedings.
The circuit court’s decision to reverse the district court’s bindover ruling is affirmed, and this case is remanded for further proceedings. We do not retain jurisdiction.
OWENS, J., concurred.
MCL 333.26428, which is quoted in its entirety later in this opinion, states that a medical-purpose defense shall be presumed valid if, among other things,
[a] physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition!.] [MCL 333.26428(a)(1).]
We note that Dr. Eisenbud did not indicate where his “home base” is, he did not indicate where his examinations of defendants took place, and he did not indicate where the TCHF Medical Clinic is located.
MCL 333.26424(a) provides:
A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.
The circuit court’s ruling was somewhat ambiguous with regard to this issue; it stated that “it is questionable whether Defendants are entitled to assert the affirmative defense contained in the MMMA.”
It is not clear how the immunity from arrest provided in § 4(a) interplays with the rebuttable presumption in § 4(d)(2). However, that issue is not before the Court today.
Section 7 states:
(a) The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.
(b) This act shall not permit any person to do any of the following:
(1) Undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.
(2) Possess marihuana, or otherwise engage in the medical use of marihuana:
(A) in a school bus;
(B) on the grounds of any preschool or primary or secondary school; or
(C) in any correctional facility.
(3) Smoke marihuana:
(A) on any form of public transportation; or
(B) in any public place.
(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.
(5) Use marihuana if that person does not have a serious or debilitating medical condition.
(c) Nothing in this act shall be construed to require:
(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.
(2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.
(d) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.
(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act. [MCL 333.26427.]
A “[qualifying patient” is defined as “a person who has been diagnosed by a physician as having a debilitating medical condition.” MCL 333.26423(h).
Although defendants do not raise this as an issue on appeal, the prosecution argues that a § 8 defense was not viable because the marijuana in question was not kept in an “enclosed, locked facility.” We note that the language concerning an “enclosed, locked facility” is set forth in the context of § 4, not in the context of § 8. MCL 333.26424(a). Nevertheless, as with the discovery issue mentioned in footnote 11, we decline to address this issue without the benefit of full briefing by the parties. Presumably further proceedings will take place with regard to this issue.
With regard to preliminary examinations, MCL 766.12 permits “witnesses for the prisoner, if he [has] any, [to] be sworn, examined and cross-examined,” and MCR 6.110(C) permits “[e]ach party [to] subpoena witnesses, offer proofs, and examine and cross-examine witnesses at the preliminary examination.”
We reject defendants’ argument that the prosecution waived the issue concerning whether a bona fide physician-patient relationship existed. First, the prosecution clearly did raise the issue below. Second, the district court had a duty to determine whether there was an issue for trial; in doing so, it was obligated to review § 8 in its entirety to determine whether any triable issues existed.
Defendants tangentially raise the issue regarding whether the prosecution is entitled to discovery of their medical records. The prosecution does not substantively address this argument in its appellate brief. We find that this issue is not currently ripe for review and decline to address it without the benefit of full briefing by the parties. The circuit court was evidently cognizant of the implications of further discovery, and presumably further proceedings will occur with respect to it. | [
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Per Curiam.
The dispute before us concerns which of three insurance companies must shoulder responsibility for payment of plaintiff Muhamed Besic’s first-party no-fault insurance benefits. In a summary disposition ruling, the circuit court imposed liability for all of Besic’s first-party benefits on defendant Clearwater Insurance Company, which issued plaintiff a bobtail insurance policy. Clearwater appeals as of right, and we affirm.
I. UNDERLYING FACTS AND PROCEEDINGS
In January 2007, Besic, a Michigan resident, sustained personal injuries in a motor vehicle accident in Ohio. At the time of the accident, Besic was driving a tractor-trailer rig, hauling freight from Illinois to New York. Besic owned the tractor, registered and licensed the vehicle in Michigan, and leased it to MGR Express, Inc., pursuant to a “Contractor Operating Agreement” (COA). The COA identified Besic Express, a corporation solely owned by Besic, as the contractor and owner of the truck; however, Besic testified at his deposition that he owned the truck personally. The COA contemplated that during the term of the lease, MGR would “assume all responsibility and pay for all liability insurance” for the truck “while [Besic] is operating under the terms of this Agreement,” and that Besic “has and reserves the right to contract independently for Workers’ Compensation coverage, bobtail,[ ] or physical damage insurance required hereunder and for health and accident or other insurance . . . .”
MGR bought liability insurance for the truck from defendant Lincoln General Insurance Company. Besic purchased bobtail insurance coverage from Clearwater. Defendant Citizens Insurance Company of the Midwest insured Besic’s household vehicles.
In November 2007, Besic sued Citizens in the Wayne Circuit Court, seeking payment of first-party no-fault benefits related to the injuries he sustained in the Ohio accident. Besic subsequently amended his complaint to add Clearwater and Lincoln as defendants. In February 2008, Clearwater filed cross-claims against Citizens and Lincoln, requesting “reimbursement or recoupment... for the entire amounts of monies paid” by Clearwater and asserting that Citizens and Lincoln shared “a higher order of priority to pay Michigan no-fault benefits.” The cross-claims also sought reformation of the Lincoln policy if the court determined that it “does not include an express provision for Michigan no-fault coverage....”
All parties filed motions for summary disposition. At a September 2008 hearing, the circuit court expressed on the record its finding that the
Lincoln contract, MGR contract with Muhamed Besic doesn’t require him to provide PIP [personal injury protection insurance] coverage, and they provided liability only, so the Court will grant Lincoln’s motion for Summary Disposition....
And Clearwater’s argument under the exclusions of page two subsection C, the Court finds that none of those apply. Clearwater’s motion for Summary Disposition is denied.
In October 2008, the court entered an order granting summary disposition to Citizens and Lincoln, denying Clearwater summary disposition, and granting Besic summary disposition with respect to Clearwater only. Besic settled his claim against Clearwater, and in March 2009 the circuit court dismissed the action with prejudice.
II. SUMMARY DISPOSITION STANDARD OF REVIEW
Clearwater challenges the circuit court’s summary disposition rulings, which we review de novo. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). The circuit court did not specify under which subrule of MCR 2.116(C) it found summary disposition appropriate, but a review of the record reflects that the court considered documentation beyond the pleadings and thus made its summary disposition rulings under MCR 2.116(C)(10). Subrule (C)(10) tests a claim’s factual support. “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich App at 621.
III. COVERAGE OF BESIC’S FIRST-PARTY PERSONAL INJURY PROTECTION BENEFIT CLAIM UNDER CLEARWATER’S BOBTAIL POLICY
Clearwater initially submits that its bobtail insurance policy plainly offered only limited coverage that did not apply when Besic had an accident while under dispatch, the situation in this case. Clearwater emphasizes that the bobtail policy endorsement with respect to Michigan personal injury protection (PIP) coverage must be read in conjunction with the rest of the policy, which excludes coverage when the insured suffers injury while under motor dispatch.
When reviewing an insurance policy dispute, an appellate court looks “ ‘to the language of the insurance policy and interprets] the terms therein in accordance with Michigan’s well-established principles of contract construction.’ ” Citizens Ins Co v Pro-Seal Serv Group, Inc, 477 Mich 75, 82; 730 NW2d 682 (2007), quoting Henderson v State Farm Fire & Cas Co, 460 Mich 348, 353-354; 596 NW2d 190 (1999).
“First, an insurance contract must be enforced in accordance with its terms. A court must not hold an insurance company liable for a risk that it did not assume. Second, a court should not create ambiguity in an insurance policy where the terms of the contract are clear and precise. Thus, the terms of a contract must be enforced as written where there is no ambiguity.” [Citizens Ins Co, 477 Mich at 82, quoting Henderson, 460 Mich at 354.]
In deciding whether an insured is entitled to insurance benefits, we employ a two-part analysis. Heniser v Frankenmuth Mut Ins Co, 449 Mich 155, 172; 534 NW2d 502 (1995). “First, we determine if the policy provides coverage to the insured.” Id. (quotation marks and citation omitted). “An insurer is free to define or limit the scope of coverage as long as the policy language fairly leads to only one reasonable interpretation and is not in contravention of public policy.” Id. at 161. If the policy does supply coverage, “we then ascertain whether that coverage is negated by an exclusion. It is the insured’s burden to establish that his claim falls within the terms of the policy.” Id. at 172 (quotation marks and citation omitted).
The Clearwater policy contains a “Certificate of Non-Trucking Automobile Liability Insurance,” which states in relevant part, “No coverage is afforded when the described vehicle(s) is (are): 1. Under motor carrier direction, control, or dispatch.” The policy also incorporates an endorsement entitled “Michigan Truckers— Insurance for Non-Trucking Use,” which reads:
For the covered “auto” described in this endorsement, LIABILITY COVERAGE, Michigan Personal Injury and Property Protection coverages are changed as follows:
A. LIABILITY COVERAGE does not apply while the covered “auto” is used in the business of anyone to whom it is leased or rented if the lessee has liability insurance sufficient to pay for damages in accordance with Chapter 31 of the Michigan [Insurance] Code [MCL 500.3101 et seq.].
B. Michigan Personal Injury and Property Protection coverages do not apply to “bodily injury” or “property damage” resulting from the operation, maintenance or use of the covered “auto” in the business of anyone to whom it is leased or rented if the lessee has Michigan Personal Injury and Property Protection coverages on the “auto.” [Emphasis added.]
As discussed in greater detail in part IV of this opinion, the lessee of Besic’s truck, MGR, did not buy “Michigan Personal Injury and Property Protection” coverage for Besic’s truck. In light of the plain and unambiguous language of the Clearwater “Michigan Truckers — Insurance for Non-Trucking Use” endorsement, the Clearwater policy thus affords coverage. Clearwater essentially concedes this conclusion in its brief:
While [Besic] relied upon this provision as creating a duty to pay personal protection (“PIP”) benefits, the Endorsement’s language did not create such a new duty. Rather, the Endorsement’s language serves instead to limit anv such duty which may otherwise exist to pay PIP benefits under the policy to those instances where PIP coverage is not available under any other policy. However, as explained, the duty to pay PIP benefits does not otherwise exist under the policy when the truck is under dispatch.
We reject Clearwater’s contention that because the policy language in general excludes coverage while the truck is under dispatch, the endorsement should be similarly construed. “ [Endorsements often are issued to specifically grant certain coverage or remove the effect of particular exclusions. Thus, such an endorsement will supersede the terms of the exclusion in question.” 4 Holmes, Appleman on Insurance (2d ed), § 20.1, p 156. “When a conflict arises between the terms of an endorsement and the form provisions of an insurance contract, the terms of the endorsement prevail.” Hawkeye-Security Ins Co v Vector Constr Co, 185 Mich App 369, 380; 460 NW2d 329 (1990). “[Endorsements by their very nature are designed to trump general policy provisions, and where a conflict exists between provisions in the main policy and the endorsement, the endorsement prevails.” Nationwide Mut Ins Co v Schmidt, 307 F Supp 2d 674, 677 (WD Pa, 2004). The Clearwater endorsement unambiguously extends no-fault coverage under the existing circumstances be cause Michigan no-fault PIP coverage was otherwise unavailable under MGR’s Lincoln policy.
Moreover, the Clearwater bobtail policy also included an endorsement for Michigan PIP benefits. An endorsement entitled “Michigan Personal Injury Protection” sets forth in pertinent part the following:
A. Coverage
We will pay personal injury protection benefits to or for an “insured” who sustains “bodily injury” caused by an “accident” and resulting from the ownership, maintenance or use of an “auto” as an “auto”. These benefits are subject to the provisions of Chapter 31 of the Michigan Insurance Code.
In straightforward fashion, the terms of the Clearwater PIP endorsement apply to the basic facts of Besic’s January 2007 accident in Ohio.
We conclude that on the issue of liability for Besic’s PIP benefits, the circuit court properly (1) denied Clearwater summary disposition, (2) granted Besic summary disposition with respect to Clearwater, and (3) granted summary disposition to Citizens and Lincoln, pursuant to MCR 2.116(C)(10) and in accord with the reasoning set forth in the rest of this opinion.
IV APPLICABILITY OF LINCOLN POLICY TO BESIC’S CLAIM FOR PIP BENEFITS
Clearwater next maintains that even if the Lincoln policy MGR purchased to cover Besic’s truck does not “on its face” extend PIP coverage, this Court should imply PIP coverage under the Lincoln policy because Michigan law mandates that all insurance companies doing business in Michigan include PIP benefits in all automobile insurance policies. According to Clearwater, the Lincoln policy contemplates no-fault coverage in a policy section detailing “out of state coverage extensions.” Clearwater alterna tively urges that, if this Court interprets the Lincoln policy language as inapplicable to the present circumstances, we should reform Lincoln’s policy to offer Besic Michigan no-fault PIP benefits.
Clearwater relies on the following italicized policy language, found in the “Truckers Coverage Form, Liability Coverage” section of the Lincoln policy, in support of its position that the Lincoln policy covered Besic’s no-fault PIP expenses:
SECTION II — LIABILITY COVERAGE
A. Coverage
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.
2. Coverage Extensions
b. Out-of-State Coverage Extensions
While a covered “auto” is away from the state where it is licensed we will:
(1) Increase the Limit of Insurance for Liability Coverage to meet the limits specified by a compulsory or financial responsibility law of the jurisdiction where the covered “auto” is being used....
(2) Provide the minimum amounts and types of other coverages, such as no-fault, required of out-of-state vehicles by the jurisdiction where the covered “auto” is being used. [Emphasis added.]
The emphasized language does not apply in this case because at the time of the accident Besic undisputedly was using the covered “auto” in Ohio, a state that does not have a no-fault liability scheme. Most likely, this section of the Lincoln policy enabled the coverage to comply with laws such as MCL 500.3163(1), which contains the following relevant language:
An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a written certification that any accidental hodily injury or property damage occurring in this state arising from the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, is subject to the personal and property protection insurance system under this act.
If Besic had been an Ohio resident injured in a Michigan crash, MCL 500.3163(1) and the “out-of-state-coverage extensions” would have compelled Lincoln to supply first-party no-fault PIP coverage. However, neither the statute nor the Lincoln policy language applies when a Michigan resident suffers a vehicle-related injury in Ohio.
Nor did Lincoln have any statutory obligation to incorporate no-fault PIP coverage into the policy it sold to MGR. Clearwater correctly observes that “[w]here an automobile insurance policy contains an exclusionary clause that was not contemplated by the Legislature, that clause is invalid and unenforceable.” Universal Underwriters Ins Co v State Farm Auto Ins Co, 172 Mich App 342, 346; 431 NW2d 255 (1988). But Lincoln sold the policy at issue to MGR in Illinois, and not to Besic in Michigan. Furthermore, “[t]he requirements for a motor vehicle liability policy may be fulfilled by the policies of more than one insurance carrier.” State Farm Mut Auto Ins Co v Auto-Owners Ins Co, 173 Mich App 51, 55; 433 NW2d 323 (1988). Because the Clearwater policy supplied no-fault PIP coverage for the injuries Besic suffered in his January 2007 accident, no basis exists for reforming the Lincoln policy to similarly provide such coverage.
V REIMBURSEMENT FOR PIP BENEFITS PAID BY CLEARWATER
Clearwater lastly avers that pursuant to MCL 500.3114, Citizens, the insurer of Besic’s personal vehicles, shares responsibility to pay Besic’s no-fault PIP benefits. In Clearwater’s view, Citizens stands within the same order of priority as Clearwater, and thus Clearwater should receive a pro rata reimbursement for the first-party no-fault benefits it has paid Besic.
“To determine the priority of insurers liable for [no-fault PIP] benefits, the claimant must look to [MCL 500.3114].” Auto-Owners Ins Co v State Farm Mut Auto Ins Co, 187 Mich App 617, 619; 468 NW2d 317 (1991). The pertinent subsections of MCL 500.3114 instruct as follows:
(1) Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in [MCL 500.3101(1)] applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident....
(3) An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.
MCL 500.3101(1) states, in relevant part:
The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall only he required to be in effect during the period the motor vehicle is driven or moved upon a highway.
In Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84, 89; 549 NW2d 834 (1996), the Supreme Court held that
it is most consistent with the purposes of the no-fault statute to apply [MCL 500.3114(3)] in the case of injuries to a self-employed person. The cases interpreting that section have given it a broad reading designed to allocate the cost of injuries resulting from use of business vehicles to the business involved through the premiums it pays for insurance.
The Supreme Court explained that
requiring both insurers to contribute to the payment of benefits would run contrary to the overall goal of the no-fault insurance system, which is designed to provide victims with assured, adequate, and prompt reparations at the lowest cost to both the individuals and the no-fault system. Splitting the obligation to pay would result in duplicative administrative costs, by requiring several insurers to adjust a single claim. [Id.]
In State Farm Mut Auto Ins Co v Sentry Ins, 91 Mich App 109, 114-115; 283 NW2d 661 (1979), this Court set forth the same rationale later adopted in Celina:
The exceptions in [MCL 500.3114(2)] and (3) relate to “commercial” situations. It was apparently the intent of the Legislature to place the burden of providing no-fault benefits on the insurers of these motor vehicles, rather than on the insurers of the injured individual. This scheme allows for predictability; coverage in the “commercial” setting will not depend on whether the injured individual is covered under another policy. A company issuing insurance covering a motor vehicle to be used in a (2) or (3) situation will know in advance the scope of the risk it is insuring. The benefits will be speedily paid without requiring a suit to determine which of the two companies will pay what is admittedly due by one of them.
Besic owned the truck and worked as a self-employed independent contractor for MGR. Consistently with the Michigan Supreme Court’s analysis in Celina, 452 Mich at 89, the priority language in MCL 500.3114(3) extends to the self-employment situation of Besic. With respect to the additional language comprising MCL 500.3114(3), Besic suffered “accidental bodily injury while an occupant of a motor vehicle owned or registered by [his] employer,” given that MRG had leased Besic’s truck. MCL 500.3101(2)(h) (including in its definition of “owner” “[a] person renting a motor vehicle or having the use thereof, under a lease or otherwise, for a period that is greater than 30 days”). Because MCL 500.3114(3) applies to the undisputed facts of this case, it dictates that Besic “shall receive personal protection insurance benefits to which [he] is entitled from the insurer of the furnished vehicle.” In light of the fact that only Clearwater extended PIP benefits to the truck involved in Besic’s accident, it has first priority to pay Besic’s first-party benefits.
Clearwater suggests that Smith v Continental Western Ins Co, 169 F Supp 2d 687 (ED Mich, 2001), compels a different result. In Smith, the plaintiff owned a tractor registered in Indiana, and he sustained personal injuries in a Michigan accident. Id. at 689. The plaintiff sought PIP benefits and sued the insurers for (1) the company “with whom Plaintiff had a long-term lease to haul; (2) the short-term lessor for whom Plaintiff hauled on the day of the accident; and (3) the company” that provided bobtail coverage for the tractor. Id. The federal district court ruled that although Michigan’s no-fault act applied, none of the defendants bore responsibility for paying no-fault benefits because the plaintiffs personal insurer occupied a higher priority. Id. at 692, 695. In reaching its decision, the district court expressly and repeatedly disclaimed any consideration of MCL 500.3114(3), the controlling insurer priority provision here. Id. at 694 n 3, 695. Therefore, Smith is readily distinguishable from the instant case.
Finally, Clearwater asserts in its reply brief that “there is no record to support which entity may be properly identified as [Besic’s] employer: Besic Express, Inc. or MGR Express, Inc., or both.” This potential distinction among employers is immaterial. In light of the undisputed fact that Besic was self-employed at the time of the accident, Celina, 452 Mich at 89, and MCL 500.3114(3) remain the controlling authorities.
Affirmed. Costs to Citizens and Lincoln as the prevailing parties. MCR 7.219(A).
“Generally, a ‘bobtail’ policy is a policy that insures the tractor and driver of a rig when it is operated without cargo or a trailer.” Integral Ins Co v Maersk Container Serv Co, Inc, 206 Mich App 325, 331; 520 NW2d 656 (1994).
The appellate brief prepared by Citizens represents that Clearwater paid Besic $175,000 in settlement and continues to pay him personal injury protection benefits. Besic did not file a brief on appeal.
Personal injury protection coverage is also referred to as personal protection insurance coverage.
In any event, this Court is “not bound to follow a federal court’s interpretation of state law.” Doe v Young Marines of the Marine Corps League, 277 Mich App 391, 399; 745 NW2d 168 (2007). | [
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Murphy, C.J.
In this action involving uninsured-motorist benefits, plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). We reverse. This case has been decided without oral argument pursuant to MCR 7.214(E).
Plaintiff was injured in a car accident on March 8, 2007, in St. Clair County, Michigan. Plaintiffs vehicle was struck on the passenger side by a vehicle driven by an uninsured motorist, William Bowen, III (hereafter referred to as “Bowen”). As a result of the accident, plaintiff sustained multiple injuries.
Before filing the instant action against defendant, the insurer of her vehicle, plaintiff filed a complaint on June 18, 2007, against Bowen as the driver of the car that caused the collision and Sandra Kay Bowen as the owner of that car. AIG was the insurer of Sandra Bowen’s vehicle. The prior complaint alleged that Bowen was driving the car with Sandra Bowen’s knowledge and consent. However, it was determined during the discovery process that Bowen was specifically excluded as a driver under the AIG policy because he was charged with stealing the vehicle. Sandra Bowen was thereafter dismissed from that suit.
Bowen failed to defend against the prior lawsuit and, following testimony, a default judgment was entered against him. The trial court in the prior action took testimony from plaintiff and determined that she had suffered a serious impairment of body function. The default judgment was for $50,000 and was entered May 12, 2008.
Thereafter, plaintiff unsuccessfully attempted to settle with defendant, her insurance company, following entry of the default judgment in the 2007 lawsuit. Plaintiff claimed that she was entitled to recover benefits under an uninsured-motor-vehicle provision in her policy. The policy limit for uninsured-motorist benefits was $25,000. When defendant refused to settle, plaintiff filed the instant complaint, claiming breach of contract.
Defendant moved for summary disposition, arguing that plaintiff had breached the contract by failing to join Bowen and Sandra Bowen as parties, given their statuses as driver and owner, respectively, or to join defendant in the prior lawsuit, which was required in order for plaintiff to recover benefits under the policy. The trial court agreed and granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(10), determining that plaintiff breached the contract when she failed to follow the unambiguous language of the policy that required joinder of all tortfeasors in the suit brought against defendant. Accordingly, plaintiff was not entitled to uninsured-motorist benefits.
On appeal, plaintiff presents myriad arguments in support of reversal, but we need only address plaintiffs contention that, essentially, defendant incurred no prejudice by her failure to join Bowen and Sandra Bowen as party defendants.
This Court reviews de novo the grant or denial of a motion for summary disposition. Brown v Brown, 478 Mich 545, 551; 739 NW2d 313 (2007). When reviewing a motion brought under MCR 2.116(0(10), this Court considers the pleadings, admissions, and other evidence submitted by the parties in a light most favorable to the nonmoving party. Brown, 478 Mich at 551-552. A decision granting summary disposition is appropriate if there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Id. at 552.
Because uninsured-motorist coverage is not statutorily mandated, the language of the insurance policy governs the conditions of coverage. Stoddard v Citizens Ins Co of America, 249 Mich App 457, 460; 643 NW2d 265 (2002). The interpretation of an insurance contract, including resolution of whether an ambiguity exists in the contract, is a question of law that is reviewed de novo on appeal. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003). The language in the insurance contract is given its plain and ordinary meaning if apparent to a reader of the instrument. Id. at 47-48.
Plaintiff argues that the language in the insurance contract requiring joinder of any tortfeasors reflects an attempt to protect defendant’s subrogation rights, but plaintiffs act of procuring a default judgment, as opposed to a settlement agreement with a release, in an amount that exceeded the policy limit did not infringe defendant’s subrogation rights; defendant can still recover against Bowen. This argument necessarily acknowledges that plaintiff failed to comply with the joinder provision, but because defendant suffered no prejudice from the failure to join, defendant should not be relieved of liability to provide uninsured-motorist benefits to plaintiff, who had paid premiums for that coverage.
In Koski v Allstate Ins Co, 456 Mich 439, 444; 572 NW2d 636 (1998), our Supreme Court indicated that, generally speaking, one who files suit for performance of a contractual obligation must prove that all contractual conditions prerequisite to performance have been satisfied. However, the Court continued by stating that “it is a well-established principle that an insurer who seeks to cut off responsibility on the ground that its insured did not comply with a contract provision requiring notice immediately or within a reasonable time must establish actual prejudice to its position.” Id.; see also Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429, 447-448; 761 NW2d 846 (2008).
Although we are not specifically addressing a notice provision, the joinder provision here served a comparable purpose, which was to give defendant the opportunity to protect its financial interests by exercising investigatory, defense, and subrogation rights. We conclude that the Koski principle is equally applicable to an analogous joinder provision; there is no valid distinguishing reason not to apply Koski. We acknowledge our Supreme Court’s decision in Rory v Continental Ins Co, 473 Mich 457, 461; 703 NW2d 23 (2005), wherein the Court held that an unambiguous provision in an uninsured-motorist policy must be enforced as written regardless of the equities and reasonableness of the provision. However, Koski carved out a narrow prejudice requirement relative to all insurance contracts, and Rory did not overrule the Supreme Court’s earlier ruling in Koski, which we find controlling.
With respect to subrogation, the insurance policy provided: “If we are obligated under this policy to make payment to or for a person who has a legal right to collect from another party, then we will be subrogated to that right to the extent of our payment.”
Subrogation rights can be acquired by way of contractual assignment or under principles of equity. Citizens Ins Co of America v Buck, 216 Mich App 217, 226; 548 NW2d 680 (1996). Here, defendant can subrogate itself with respect to plaintiffs right to enforce the $50,000 default judgment against Bowen, at least up to the policy limit of $25,000, and attempt collection from Bowen if defendant becomes obligated, through litigation or settlement, to pay benefits to plaintiff. Bowen was not released from liability. Whether Bowen is ultimately collectible is irrelevant, given that the same problem would exist even had Bowen, Sandra Bowen, and defendant been joined in a lawsuit. And $50,000 is more than enough to cover defendant’s potential liability to plaintiff, considering that the policy limit for uninsured-motorist benefits was $25,000. Accordingly, defendant’s subrogation rights will not be prejudiced by allowing the instant suit to be litigated.
With respect to defendant’s right to defend, defendant maintains that entry of the default judgment resulted in the loss of an opportunity to challenge the elements of plaintiffs tort action, which thereby precludes defendant from challenging its liability under the insurance policy. Defendant’s argument lacks merit. The insurance policy provides that defendant is not bound by any “judgment obtained without [defendant’s] written consent,” nor is it bound by any “default judgment against any person .. . other than [defendant].” Therefore, plaintiff is contractually precluded from contending that the default judgment entitles her to collect certain sums from defendant in uninsured-motorist benefits. Regardless of the default judgment, and in the context of this insurance action, plaintiff will still have to prove her tort case in relation to the accident, including establishing that she suffered a serious impairment of a body function, an issue now controlled by McCormick v Carrier, 487 Mich 180, 184; 795 NW2d 517 (2010), overruling Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004).
The doctrine of collateral estoppel does not apply here because defendant did not have any opportunity, let alone a full, fair, and adequate opportunity, to litigate the issues of negligence and serious impairment of body function, given plaintiffs conduct in failing to join defendant in the first suit as called for by the insurance policy. Monat v State Farm Ins Co, 469 Mich 679, 682-683 & n 2; 677 NW2d 843 (2004).
Plaintiff cannot simply rely on the prior suit that led to the default judgment; the case effectively starts from scratch. Under those circumstances, defendant will not be deprived of its right to defend and thus will not be prejudiced by our allowing the instant suit to be litigated.
In light of our holding, it is unnecessary to address the additional arguments presented by plaintiff. ■
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, plaintiff is awarded taxable costs pursuant to MCR 7.219.
Stephens, J., concurred.
The dissent disagrees that defendant should be required to show prejudice, asserting that Rory controls given that it is the latest pronouncement of our Supreme Court concerning construction of an insurance policy. Rory, however, did not examine the prejudice principle discussed in Koski. Moreover, Tenneco, 281 Mich App at 447-448, which was decided in 2008 and after Rory was issued, and which constitutes binding precedent, acknowledged the continuing application of Koski. The Tenneco panel also cited additional, earlier Michigan Supreme Court precedent supporting imposition of a prejudice requirement. Id. at 448. | [
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Per Curiam.
Plaintiff appeals as of right a circuit court order denying plaintiffs motion for summary disposition and dismissing its complaint for arbitration on the basis that plaintiff “waived the right to arbitrate the subject grievance because the delay in filing for arbitration was not reasonable ....” We reverse and remand for the entry of an order compelling arbitration because the issue whether the grievance was not arbitrable because of laches was an issue for the arbitrator to decide, not the trial court.
We review de novo a trial court’s decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Although plaintiff was the party who moved for summary disposition, the trial court granted judgment in favor of defendant pursuant to MCR 2.116(1)(2) (“If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.”). Whether a court or an arbitrator should decide whether laches and waiver preclude arbitration of a grievance is a question of law also subject to review de novo. See Gregory J Schwartz & Co, Inc v Fagan, 255 Mich App 229, 231; 660 NW2d 103 (2003).
Procedural questions such as timeliness are generally left to the arbitrator. Brown v Holton Pub Sch, 397 Mich 71, 73; 243 NW2d 255 (1976). “The duty to arbitrate grievances arises from [the] contractual agreement between an employer and its employees.” Ottawa Co v Jaklinski, 423 Mich 1, 22; 377 NW2d 668 (1985) (opinion by WILLIAMS, C.J.). Where an employer and a union have contractually agreed to arbitration, in the absence of explicit contractual direction to the contrary, all doubts regarding the proper forum should be resolved in favor of arbitration:
[A]ny ambiguity concerning whether a specific issue falls within the scope of arbitration, such as whether a claim is timely, must be resolved in favor of submitting the question to the arbitrator for resolution. See AT&T Technologies, [Inc v Communications Workers of America, 475 US 643, 650 ;106 S Ct 1415; 89 L Ed 2d 648 (1986)]. In other words, there is a presumption of arbitrability “ ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ” Id., quoting United Steelworkers of America v Warrior & Gulf Navigation Co (On Remand), 363 US 574, 582-583; 80 S Ct 1347; 4 L Ed 2d 1409 (1960). [Amtower v William C Roney & Co (On Remand), 232 Mich App 226, 234-235; 590 NW2d 580 (1998).][ ]
The arbitration provision in the parties’ collective-bargaining agreement (CBA) provides:
Any unresolved grievances which relate to the interpretation, application, or enforcement of any specific article or section of this contract, or any supplementary agreement or letters and memorandums of understanding appended to this contract, which have been fully processed through the last step of the grievance procedure, shall be submitted to arbitration in strict accordance with the following:
In any matter submitted to an arbitrator pursuant to this Agreement, the arbitrator shall strictly limit his/her decision to the interpretation, application or enforcement of this agreement and he/she shall be without power and authority to make any decision contrary to, or inconsistent with, or modifying or varying in any way, the terms of this Agreement.
The language of the provision clearly requires arbitration of unresolved grievances that have been processed through the grievance procedure. Moreover, there is nothing in the provision that explicitly excludes the issue of timeliness from the arbitrator. In light of the presumption in favor of arbitrability, and the fact that nothing in the language provides “positive assurance” that the arbitration clause does not cover the question of timeliness, we are bound to conclude that it is the arbitrator, not the trial court, that must decide the issue. Amtower, 232 Mich App at 235 (quotation marks and citations omitted).
Furthermore, we conclude that allowing the arbitrator to determine the question of timeliness is consistent with the purpose of arbitration. Allowing procedural challenges to be heard by a court rather than by the arbitrator runs contrary to the presumption of arbitrability and would leave every arbitration subject to piecemeal litigation, a result contrary to a central purpose of arbitration. See John Wiley & Sons, Inc v Livingston, 376 US 543, 558; 84 S Ct 909; 11 L Ed 2d 898 (1964), holding that reserving procedural issues for the courts would create “the difficult task of separating related issues” as well as “ehminate the prospect of a speedy arbitrated settlement of the dispute, to the disadvantage of the parties (who, in addition, will have to bear increased costs),” all of which are “contrary to the aims of national labor policy.”
Because we conclude that the determinations regarding timeliness and the application of the defense of laches must be made by the arbitrator, we need not decide whether the trial court erred in its analysis of the issue.
Finally, we disagree with defendant’s contention that it was not required to arbitrate the grievance because the CBA expired before plaintiff demanded arbitration. Although defendant cites Ottawa Co, 423 Mich 1, that case does not support defendant’s position. In that case, the Court held that
the right to grievance arbitration survives the expiration of the collective bargaining agreement when the dispute concerns the kinds of rights which could accrue or vest during the term of the contract. .. . [S]uch a rule recognizes and sustains both fundamental principles of law and the right of employees and employers to develop the common law of labor relations in their collective bargaining agreements. [Id. at 22 (opinion by WILLIAMS, C.J.).][ ]
Therefore, absent specific contractual language to the contrary, whether the demand for arbitration is made before or after expiration of the contract is not determinative of the arbitrability of the grievance.
Reversed and remanded to the trial court for an entry of an order compelling arbitration. We do not retain jurisdiction. Plaintiff may tax costs pursuant to MCR 7.219.
Although Amtower itself is not a labor case, it draws its applicable legal principles from cases that are labor cases. Accordingly, we conclude that it is appropriate to cite Amtower in this context.
See also Ottawa Co, 423 Mich at 24 n 9 (opinion by Williams, C.J.), and its approval of the holding in Northern California Dist Council of Hod Carriers v Pennsylvania Pipeline, Inc, 103 Cal App 3d 163; 162 Cal Rptr 851 (1980),
cert den 449 US 874 (1980), that the right to arbitrate “vests” on the date the alleged grievance arises, and is thus enforceable even if it is not demanded until after the contract expires.
Contrary to defendant’s assertion at oral argument, AFSCME, Council 25 v Wayne Co, 290 Mich App 348; _ NW2d _ (2010), is inapplicable to the present case. In AFSCME, the language of the contract explicitly provided that arbitration would apply only to “ ‘differences ... aris[ing] between the Employer and the Union during the term of this agreement....’” Id. at 351 (emphasis added). Given that the dispute in AFSCME did not arise until more than a month after the relevant agreement had expired, we concluded that the dispute did not fall within the scope of the arbitration defined by the contract. By contrast, in this case, there is no basis to exclude the substantive dispute from arbitration and the only issue concerns the timing of the demand for arbitration — something that was not at issue in AFSCME. AFSCME did not deal with an attempt to divide a dispute into arbitrable and nonarbitrable portions. Instead, it was controlled by explicit contract language taking the entire dispute out of mandatory arbitration and it provides no guidance on the issue before us here. | [
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] |
K. F. Kelly, J.
Defendant, Paul Puste, appeals as of right the trial court’s order denying his motion for entry of a consent order to vacate a personal protection order (PPO) nunc pro tunc and to seal the court file pursuant to MCR 8.119(F). Resolution of this matter requires us to determine whether a trial court has the authority to seal a PPO pursuant to MCR 8.119(F). The trial court held that it did not, and we agree. We hold that under the plain language of MCR 8.119(F)(5), a court is prohibited from sealing court orders and court opinions. We affirm.
I. BASIC FACTS
The parties to this action were divorced in March 2006 after 23 years of marriage. In November 2006, plaintiff petitioned for entry of a PPO against defendant. Plaintiff indicated that defendant was repeatedly calling her and her friends, tapping on her windows at night, and entering her home without permission. Plaintiff was fearful that defendant’s actions would escalate into violence because defendant had recently lost his job as a hospital administrator and between January and March 2006 had struck her, knocked her down, and spat on her. On November 27, 2006, plain tiffs petition was granted and a PPO was entered against defendant. This order prohibited defendant from contacting plaintiff, from following her, and from otherwise appearing within her sight, among other prohibited contact. The order remained in effect for a year, apparently without further incident. Plaintiff did not seek to renew the PPO after it expired in November 2007.
On April 3, 2009, defendant moved for entry of a consent order to vacate the PPO nunc pro tunc and to seal the court file. Defendant contended that, even though the PPO had been removed from the Michigan State Police’s Law Enforcement Information Network (LEIN) system, a background check of defendant through the court system revealed the existence of the expired PPO. Defendant alleged that he had been unable to obtain new employment because his background check revealed the PPO. Accordingly, defendant asked the court to find good cause to seal the court file pursuant to MCR 8.119(F)(1) and enter a consent order to vacate the PPO nunc pro tunc. Defendant filed a copy of the consent order with the motion, which both plaintiff and defendant had signed.
Plaintiff did not appear at the motion hearing on April 24, 2009. At that hearing, the trial court indicated that it was “not convinced [that it had] the authority to seal the file.” The court suggested that it did not have the power to do so pursuant to MCR 8.119(F)(5) and that the matter was an inappropriate use of a court’s power to give legal effect nunc pro tunc. Instead of denying the motion, the trial court allotted defendant additional time to brief the issues.
In his brief, defendant argued that he had shown good cause for sealing the record and that no less restrictive means existed to protect the interest af fected, i.e., his ability to find new employment, as required by MCR 8.119(F)(1). Defendant further argued that MCR 8.119(F)(5) grants a court discretion to seal a court order or opinion. At the next motion hearing on May 15, 2009, the trial court denied defendant’s motion, reasoning that MCR 8.119(F)(5) does not grant a court discretion to seal a court order or opinion. Plaintiff was also not present at this hearing and has not filed any documents with the trial court or this Court. Defendant now appeals.
II. STANDARDS OF REVIEW
To the extent that a trial court has discretion to seal court records, we review its decision for an abuse of discretion. See Int’l Union, United Auto, Aerospace & Agricultural Implement Workers of America v Dorsey, 268 Mich App 313, 329; 708 NW2d 717 (2005), rev’d in part on other grounds 474 Mich 1097 (2006). A court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). We review de novo the trial court’s interpretation of the court rule. Decker v Rochowiak, 287 Mich App 666, 674; 791 NW2d 507 (2010). The principles that apply to statutory construction apply equally to our interpretation of court rules. Green v Ziegelman, 282 Mich App 292, 301; 767 NW2d 660 (2009). Our goal in interpreting a court rule is to give effect to the intent of the Supreme Court, the drafter of the rules. Vyletel-Rivard v Rivard, 286 Mich App 13, 21; 777 NW2d 722 (2009). The first step in doing so is analyzing the language used because the words contained in the court rule are the most rehable evidence of the drafters’ intent. Green, 282 Mich App at 301. We must consider the provision in its entirety and its place within the context of the rules in order to produce a harmonious whole. Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009). If the rule’s language is plain and unambiguous, then judicial construction is not permitted and the rule must be applied as written. Vyletel-Rivard, 286 Mich App at 22. “[W]hen reasonable minds can differ on the meaning of the language of the rule, then judicial construction is appropriate.” Wilcoxon v Wayne Co Neighborhood Legal Servs, 252 Mich App 549, 553; 652 NW2d 851 (2002).
III. ANALYSIS
On appeal, defendant contends that the trial court erred by denying his motion to seal the PPO-related court file, including the 2006 PPO. He argues that MCR 8.119 gives the trial court discretion to seal these documents and that sealing the records is justified upon his showing of good cause and the fact that no less restrictive means are available to adequately protect his interest. We disagree with defendant’s interpretation of the court rule.
MCR 8.119 governs a court’s maintenance of court records, the public’s access to those records, and the circumstances under which a court may seal, or perpetually prohibit the public’s access to, those records. The rule “applies to all actions in every trial court,” MCR 8.119(A), and implicitly recognizes that court records often pertain to matters in which the public has an interest. See MCR 8.119(E) (granting public access to copy records for a “reasonable cost”); MCR 8.119(F)(1) (conditioning a party’s ability to seal court records on a showing that other less restrictive means of protecting the interest affected are not available); MCR 8.119(F)(2) (mandating that a court consider the public’s interest when determining whether good cause has been shown). The rule broadly defines “court records” as including “all documents and records of any nature that are filed with the clerk in connection with the action.” MCR 8.119(F)(4).
At issue here is subrule (F), MCR 8.119(F), which establishes a procedure by which a court may seal court records. Subrule (F), titled “Sealed Records,” provides:
(1) Except as otherwise provided by statute or court rule, a court may not enter an order that seals courts records, in whole or in part, in any action or proceeding, unless
(a) a party has filed a written motion that identifies the specific interest to be protected,
(b) the court has made a finding of good cause, in writing or on the record, which specifies the grounds for the order, and
(c) there is no less restrictive means .to adequately and effectively protect the specific interest asserted.
(2) In determining whether good cause has been shown, the court must consider,
(a) the interests of the parties, including, where there is an allegation of domestic violence, the safety of the alleged or potential victim of the domestic violence, and
(b) the interest of the public.
(3) The court must provide any interested person the opportunity to be heard concerning the sealing of the records.
(4) For purposes of this rule, “court records” includes all documents and records of any nature that are filed with the clerk in connection with the action. Nothing in this rule is intended to limit the court’s authority to issue protective orders pursuant to MCR 2.302(C).[ ]
(5) A court may not seal a court order or opinion, including an order or opinion that disposes of a motion to seal the record.
(6) Any person may file a motion to set aside an order that disposes of a motion to seal the record, or an objection to entry of a proposed order. MCR 2.119 governs the proceedings on such a motion or objection. If the court denies a motion to set aside the order or enters the order after objection is filed, the moving or objecting person may file an application for leave to appeal in the same manner as a party to the action. See MCR 8.116(D).
(7) Whenever the court grants a motion to seal a court record, in whole or in part, the court must forward a copy of the order to the Clerk of the Supreme Court and to the State Court Administrative Office. [MCR 8.119(F) (emphasis added).]
Subrule (F)(1) prohibits a court from entering an order sealing “court records, in whole or in part” unless a party has filed a motion identifying the interest to be protected, the court has made a finding of good cause, and sealing the records is the least restrictive means of protecting the interest identified. MCR 8.119(F)(1). Thus, whenever a party moves to seal a “court record,” the court may not do so unless it finds, in its discretionary capacity, that the party has met the requirements of subrule (F)(1)(a), (b), and (c).
Clearly, the definition of “court records” encompasses court orders, like the PPO at issue in this case, as well as court opinions, which are documents or records that, in practice, are filed with a court’s clerk in connection with an action. See MCR 8.119(F)(4). However, subrule (F)(5) specifically prohibits a court from sealing court orders and opinions. The subrule states, “A court may not seal a court order or opinion, including an order or opinion that disposes of a motion to seal the record.” MCR 8.119(F)(5) (emphasis added). Significantly, this subrule does not give a court the authority to exercise discretion in deciding whether to seal these two types of court records, unlike the limited discretion that subrule (F)(1) allows when a motion involves other court records. Thus, reading subrules (F)(1) and (F)(5) together, in light of the definition of “court records,” it is clear that subrule (F)(1) is an inclusive provision that applies to all court records, but subrule (F)(5) is an exclusive provision that excepts from the requirements of subrule (F)(1) court orders and opinions. In other words, the limited discretionary authority extended to a court deciding a motion to seal court records under subrule (F)(1) is not extended to a court deciding a motion to seal a court order or court opinion under subrule (F)(5).
The remaining question is whether the plain language of subrule (F)(5) provides a court with any amount of discretion under circumstances in which a party moves to seal a court order or opinion. Defendant is of the view that the words “may not” provide a court with the discretionary authority to do so. We disagree. It is true that the term “may” is typically used in a discretionary fashion. However, under some circumstances the words “may not” can mean “cannot” or “shall not.” See Walters v Nadell, 481 Mich 377, 383; 751 NW2d 431 (2008). And indeed, while the word “may” denotes permissive authority or discretion, the word “not” is used to express “negation, denial, refusal, [or] prohibition.” Random House Webster’s College Dictionary (1997). Thus, coupled together, the word “not” negates the permissive authority alluded to by the word “may.”
Our understanding of these words as granting a court no discretionary authority in the context of sub-rule (F)(5) is further supported by a reading of subrule (F) as a whole. As noted, while subrule (F)(1) prohibits a court from sealing “court records,” it provides exceptions to this general rule by granting a court some discretion to seal court records under certain circumstances. Conversely, subrule (F)(5) singles out particular court records — court orders and opinions — and simply states that they “may not” be sealed; the subrule does not explicitly grant any discretionary authority similar to that provided in subrule (F)(1). For us to declare that court orders and opinions are subject to the same discretionary authority as other court records under subrule (F)(1), as defendant would have this Court do, would make subrule (F)(5) a superfluous provision and would render it nugatory. Adopting such an interpretation is contrary to the rules of statutory interpretation and to the plain language of the provision. Johnson v White, 261 Mich App 332, 348; 682 NW2d 505 (2004). Our viewpoint is further supported by the maxim, “[W]here a statute contains a general provision and a specific provision, the specific provision controls.” Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994). Thus, there is no reason to impute the discretionary authority granted to a court ruling on a motion to seal court records under subrule (F)(1) to a court deciding whether to seal a court order or opinion under subrule (F)(5). Rather, the Supreme Court specifically drafted a separate provision that pertains only to court orders and opinions, and the Court specifically chose not to attach any language subjecting this prohibition to any exceptions that would allow a court to exercise discretion.
Lastly, in light of the court rule’s general purpose of providing public access to court records, the intent of the rule is contrary to a reading that would grant a court unbridled discretion in deciding whether to seal a court order or opinion. Arguably, a court’s orders and opinions are most responsive to the public’s interest in significant legal events affecting the community, and public access to orders and opinions is imperative to ensuring the integrity of this state’s judiciary. Accordingly, we hold that a court is prohibited from sealing court orders and court opinions under MCR 8.119(F)(5), given that subrule’s plain language.
Affirmed.
A judgment or order entered nunc pro tunc is one that is entered on a day after the time that it should have been entered, as of the earlier date. See Black’s Law Dictionary (9th ed), pp 920, 1174.
After the April hearing, defendant abandoned his argument as it related to his motion for the court to vacate the PPO nunc pro tunc. He also did not in this Court brief the issue or provide any supporting law.
Pursuant to an order issued May 18, 2010, our Supreme Court amended subrule (F)(4), effective September 1, 2010, to clarify that materials filed with a court that relate to a motion to seal a record are nonpublic until the court disposes of the motion. 486 Mich Ixii, Ixiii. Subrule (F)(4) now provides:
For purposes of this rule, “court records” includes all documents and records of any nature that are filed with the clerk in connection with the action. Nothing in this rule is intended to limit the court’s authority to issue protective orders pursuant to MCR 2.302(C). Materials that are subject to a motion to seal a record in whole or in part shall be held under seal pending the court’s disposition of the motion.
This amendment has no effect on defendant’s appeal.
See In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009) (“[A] court speaks through its written orders and judgments ....”). | [
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Jansen, J.
The prosecution appeals by leave granted the circuit court’s order suppressing evidence of certain DataMaster breath-test results. For the reasons set forth in this opinion, we reverse the circuit court’s order and remand for further proceedings consistent with this opinion.
i
In November 2008, defendant was arrested on suspicion of drunk driving and taken to the Warren Police Department for alcohol testing using a DataMaster machine. Warren Police Officer Michael Lake administered the DataMaster test. Lake testified that he monitored defendant for at least 15 minutes before administering the test, then took two breath samples two minutes apart in accordance with standard procedures. Lake wrote the test results on a DI-177 breath-test report. According to Lake’s DI-177 report, the Data-Master machine indicated that both samples registered alcohol levels of 0.20 percent.
At the preliminary examination, Lake testified that he had administered the DataMaster tests and had written down the results on his DI-177 report. However, he testified that he did not have a copy of the original DataMaster “ticket,” which had been printed directly from the machine at the time of the tests. Defendant had been given a copy of the DataMaster ticket, but the original ticket could not be found and no copies were available by the time of the preliminary examination. Officer Lake admitted that he could not independently recollect the specific results of defendant’s breath tests, but recalled that he had written them down at the time on the DI-177 report, which was available.
Defendant moved to suppress the breath-test results at the preliminary examination. The district court granted defendant’s motion to suppress but nonetheless bound defendant over to the circuit court for trial on a charge of operating a motor vehicle while intoxicated, third offense. MCL 257.625(1) and (9)(c).
Following bindover, defendant moved the circuit court to suppress the DataMaster test results and sought an evidentiary hearing on the issue. Defendant argued that the lack of the DataMaster ticket rendered other evidence regarding the test results inadmissible hearsay and denied him his constitutional right to confront the witnesses against him. Because the relevant facts did not appear to be in dispute, the circuit court dispensed with an evidentiary hearing. The prosecution argued that the district court had erred by ruling the test results inadmissible. The prosecution argued that the DataMaster machine was not a declarant, so the officer’s testimony repeating the recorded test results would not be hearsay. The prosecution also argued that because Officer Lake had read the original test results and recorded them directly onto the DI-177 report at the time, he had personal knowledge of the results and should be able to present them in his testimony.
The circuit court concluded that the DI-177 report was hearsay and could not be admitted into evidence. The court noted that if Officer Lake had an independent recollection of the breath-test results, he might be able to testify regarding the numbers he had read from the DataMaster ticket. However, the court stated that if Lake lacked any independent recollection of the results and could not produce the DataMaster ticket, he would have no basis for testifying about the breath-test results. The court also ruled that if Lake could not specifically remember the contents of the DataMaster ticket, he could not testify regarding what he may have written on the DI-177 report. The prosecution argued that Lake should be able to use the DI-177 report to refresh his memory, even if the DI-177 report was itself inadmissible. The circuit court disagreed, noting that use of the DI-177 report would not effectively “refresh” Lake’s memory of the DataMaster results, but instead just show him what numbers he had written down.
The prosecution next argued that even without the test results, Lake should be able to testify that defendant’s blood alcohol level exceeded the legal limit, which resulted in defendant being booked and charged. The prosecution further argued that defendant was not prejudiced by the lack of the DataMaster ticket because defendant had been given a copy of the DataMaster machine’s printout. Defense counsel countered that defendant did not have a copy of the DataMaster ticket. The court agreed that Officer Lake could testify that defendant was arrested following the DataMaster test results. However, the court noted that because the DataMaster ticket would have shown when the machine was last purged, the duration of the required observation period before testing, and the times that the specific breath samples were taken, the DataMaster ticket would have helped to establish the reliability of the breath tests. The court reasoned that, without this information, the reliability of the test results would be suspect, and the defense would be denied the opportunity to question the reliability of the results. The prosecution argued that whether the proper protocol was followed prior to defendant’s breath tests went to the weight of the evidence rather than its admissibility and noted that defense counsel would be permitted to cross-examine Officer Lake regarding the procedures followed and the lack of supporting documentation. The court disagreed with the prosecution, stating that because the entire testing process had been documented on the DataMaster ticket, the ticket was the foundation for determining defendant’s blood alcohol level and whether the proper procedures were followed. The court stated that without the ticket, the test results could not be admitted.
The circuit court entered an order granting defendant’s motion to exclude the DataMaster test results. The order provided in relevant part that the prosecution would be “precluded from arguing at trial that defendant’s [blood alcohol content] was .08 or in excess of .08,” that the prosecution “can only argue [at trial] that defendant was operating under the influence of alcoholic liquor under MCL 257.625,” and that the prosecution would be permitted to “present testimony that defendant was charged and arrested after the Datamaster results showed .08 or more based upon the independent recollection of the police officer only to show why defendant was arrested and charged.”
The prosecution moved for reconsideration, to adjourn trial, and to stay the proceedings pending an interlocutory appeal. The prosecution also apparently filed a motion to reverse the district court’s order suppressing evidence of the DataMaster test results. The circuit court addressed these motions, explaining that it had never considered or reviewed the district court’s decision, but had instead addressed the admissibility of the DataMaster test results de novo on the facts presented by the parties. Citing Melendez-Diaz v Massachusetts, 557 US 305; 129 S Ct 2527; 174 L Ed 2d 314 (2009), Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and People v Bryant, 483 Mich 132; 768 NW2d 65 (2009), the circuit court concluded that “[t]here’s no question that the test itself was testimonial in nature” and that the test results therefore implicated defendant’s constitutional right to confront the witnesses against him. The circuit court denied the prosecution’s motions for reconsideration and to stay the proceedings pending appeal, but granted the motion to adjourn trial.
The prosecution sought leave to appeal in this Court, arguing that the circuit court had erred by suppressing evidence of the DataMaster test results. This Court granted the prosecution’s application for leave to appeal and stayed all proceedings in the circuit court.
ii
In general, we review for an abuse of discretion a circuit court’s decision concerning the admission of evidence. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). However, we review de novo the circuit court’s ultimate decision on a motion to suppress evidence, as well as all preliminary questions of law. Id.; People v Akins, 259 Mich App 545, 563; 675 NW2d 863 (2003). Similarly, whether the admission of evidence would violate a defendant’s constitutional right of confrontation is a question of law that we review de novo. Bryant, 483 Mich at 138.
in
We conclude that the DataMaster ticket at issue in this case was neither testimonial in the constitutional sense nor hearsay under Michigan law. We further conclude that the DI-177 report constituted a recorded recollection under MRE 803(5). Accordingly, the circuit court erred by suppressing evidence of the DataMaster breath-test results, by ruling that Officer Lake’s testimony concerning the DataMaster results would violate defendant’s constitutional right to confront the witnesses against him, and by precluding Lake from reading the contents of the DI-177 report into evidence.
The Confrontation Clause of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” US Const, Am VI. This “bedrock procedural guarantee applies to both federal and state prosecutions.” Crawford, 541 US at 42. The Michigan Constitution provides the same guarantee for criminal defendants. Const 1963, art 1, § 20; see also People v Bean, 457 Mich 677, 682; 580 NW2d 390 (1998). Testimonial statements of witnesses absent from trial are therefore admissible only when the original declarant is unavailable and the defendant has had a prior opportunity to cross-examine that declarant. Crawford, 541 US at 59; Bryant, 483 Mich at 138. Ordinarily, whether a statement is testimonial in nature depends on whether it constitutes a “ ‘declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford, 541 US at 51 (citation omitted). More particularly, we have explained that “[statements are testimonial where the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish or prove past events potentially relevant to later criminal prosecution.’ ” People v Lewis (On Remand), 287 Mich App 356, 360; 788 NW2d 461 (2010), quoting Davis v Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006).
In Melendez-Diaz, 557 US at _; 129 S Ct at 2531-2532, the United States Supreme Court held that “certificates of analysis” showing the results of chemical testing of seized narcotics constituted “testimonial statements” under Crawford. The certificates at issue in Melendez-Diaz were sworn statements by laboratory analysts that reported the results of analyses performed on the seized drug samples. The Melendez-Diaz Court explained:
The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” They are incontrovertibly a “ ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine — the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.” [Id. at_; 129 S Ct at 2532 (citations omitted).]
Similarly, this Court has held that laboratory reports prepared by nontestifying analysts are “testimonial hearsay” within the meaning of Crawford. See, e.g., People v Payne, 285 Mich App 181, 198; 774 NW2d 714 (2009); People v Lonsby, 268 Mich App 375, 392-393; 707 NW2d 610 (2005). Such reports constitute testimonial hearsay that may not be admitted in evidence unless (1) it is shown that the analyst who prepared the report is unavailable to testify at trial and (2) the defendant has had a prior opportunity to cross-examine the analyst. Payne, 285 Mich App at 198-199; see also Melendez-Diaz, 557 US at _; 129 S Ct at 2532.
We cannot conclude that the original DataMaster ticket, showing the breath-test procedures and defendant’s specific blood alcohol level, amounted to testimonial hearsay within the meaning of Crawford. As explained previously, the Confrontation Clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” US Const, Am VI (emphasis added). The documents at issue in Melendez-Diaz, Payne, and Lonsby constituted testimonial hearsay precisely because they were all prepared by human analysts who recorded the results of various laboratory tests and set down their own conclusions in written form. Such human analysts are unquestionably “witnesses” within the meaning of the Sixth Amendment. In contrast, the DataMaster ticket at issue in this case was generated entirely by a machine without the input of any human analyst. No human analyst entered data into the DataMaster machine or recorded findings or conclusions on the DataMaster printout. Nor was any expert interpretation required for the DataMaster test results to be understood. Indeed, similar to the fingerprint cards at issue in People v Jambor (On Remand), 273 Mich App 477, 488; 729 NW2d 569 (2007), the DataMaster ticket “contained no subjective statements” and did not detail the results of any work performed by a nontestifying analyst. Instead, defendant simply blew into the DataMaster machine, whereupon the machine automatically analyzed his breath and reported the results of its analysis in the form of a printed ticket. The machine was the sole source of the test results, which spoke entirely for themselves. We agree with courts from other jurisdictions that have held that a machine is not a witness in the constitutional sense and that data automatically generated by a machine are accordingly nontestimonial in nature. See, e.g., Wimbish v Commonwealth, 51 Va App 474, 483-484; 658 SE2d 715 (2008); United States v Moon, 512 F3d 359, 362 (CA 7, 2008); United States v Washington, 498 F3d 225, 230 (CA 4, 2007); Caldwell v State, 230 Ga App 46, 47; 495 SE2d 308 (1997). As the Virginia Court of Appeals has aptly explained, “information generated by a machine, and presented without human analysis or interpretation is not testimonial because the machine is not a witness in any constitutional sense and thus the data standing alone is not a testimonial statement under the Confrontation Clause of the Sixth Amendment.” Wimbish, 51 Va App at 484 n 2. Because the DataMaster breath-test results, printed on the Data-Master ticket, were self-explanatory data produced entirely by a machine and not the out-of-court statements of a witness, the Confrontation Clause did not place any restrictions on their admissibility. See id. at 484.
We also conclude that the DataMaster test results did not constitute hearsay under Michigan law. “Hearsay” is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” MRE 801(c), and “declarant” is defined as “a person who makes a statement,” MRE 801(b) (emphasis added). A printout of machine-generated information, as opposed to a printout of information entered into a machine by a person, does not constitute hearsay because a machine is not a person and therefore not a declarant capable of making a statement. See, e.g., State v Reynolds, 746 NW2d 837, 843 (Iowa, 2008); United States v Hamilton, 413 F3d 1138, 1142 (CA 10, 2005); United States v Khorozian, 333 F3d 498, 506 (CA 3, 2003); State v Weber, 172 Or App 704, 709; 19 P3d 378 (2001); State v Van Sickle, 120 Idaho 99, 102; 813 P2d 910 (1991). Indeed, as one well-known Michigan trea tise explains, “[w]hen... a ‘fact’ is ‘asserted’ by a non-human entity, such as a clock ‘telling the time’ or a tracking dog following a scent, the ‘statement’ is not hearsay because the ‘declarant’ is not a ‘person.’ ” Robinson, Longhofer & Ankers, Michigan Court Rules Practice: Evidence (2d ed), § 801.3, pp 7-8. The Data-Master machine at issue in the present case is not a declarant because it is not a person, but a tool for analysis that self-generates test results and prints those results on a paper ticket. Since the DataMaster machine is not a declarant capable of making a statement, the results that it generates are not hearsay.
Lastly, although the DI-177 report unquestionably constituted hearsay under Michigan law, we conclude that admission of the DI-177 report would not violate defendant’s constitutional right of confrontation and that Officer Lake should be entitled to read the contents of the DI-177 report into evidence pursuant to MRE 803(5). As noted previously, Officer Lake filled out the DI-177 report at the time of the DataMaster testing, contemporaneously recording defendant’s breath-test results on the DI-177 report as those results were automatically generated by the DataMaster machine. While Lake’s written documentation of defendant’s breath-test results on the DI-177 report constituted testimonial hearsay, Lake is available to testify and to be cross-examined at trial regarding the contents of the report. Because Lake is available to testify and to be cross-examined concerning his out-of-court assertions on the DI-177 report, his testimony regarding the contents of the DI-177 report will not violate defendant’s constitutional right to confront the witnesses against him. See Crawford, 541 US at 59.
Nor should the contents of the DI-177 report be excluded from evidence as inadmissible hearsay. It is true that Officer Lake has no independent recollection of the specific numbers that were printed on the Data-Master ticket. However, Lake recorded defendant’s blood alcohol levels on the DI-177 report at the same time as he read the results from the DataMaster ticket. Accordingly, we conclude that the DI-177 report qualifies as a recorded recollection under MRE 803(5), which excludes from the hearsay rule
[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.
As this Court has explained, hearsay documents may be admitted as recorded recollections under MRE 803(5) if they meet three requirements:
“(1) The document must pertain to matters about which the declarant once had knowledge; (2) [t]he declarant must now have an insufficient recollection as to such matters; [and] (3) [t]he document must be shown to have been made by the declarant or, if made by one other than the declarant, to have been examined by the declarant and shown to accurately reflect the declarant’s knowledge when the matters were fresh in his memory.” [People v Daniels, 192 Mich App 658, 667-668; 482 NW2d 176 (1992) (citation omitted).]
In this case, the DI-177 report plainly satisfies all three requirements for admissibility. Officer Lake saw the DataMaster ticket and therefore had personal knowledge of the breath-test results at the time he recorded them onto the DI-177 report. Furthermore, Lake has indicated that he no longer has any independent recollection of the specific results printed on the DataMaster ticket. Lastly, it is undisputed that Lake personally prepared the DI-177 report. Because the DI-177 report meets all requirements for admissibility under MRE 803(5), Daniels, 192 Mich App at 667-668, Officer Lake will be permitted to read its contents into evidence at trial.
rv
In sum, while the DataMaster ticket showed facts relevant to the ultimate issue of defendant’s guilt, the ticket was neither a testimonial statement nor hearsay because it was not the statement of a witness or a declarant. Instead, the DataMaster ticket was generated by a machine, following an entirely automated process that did not rely on any human input, data entry, or interpretation. Because the DataMaster ticket was not a testimonial hearsay statement, Officer Lake will be permitted to testify regarding the breath-test results. Moreover, because the contemporaneously prepared DI-177 report constitutes a recorded recollection pursuant to MRE 803(5), Lake will be permitted to read its contents into evidence at trial.
Reversed and remanded to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction.
A DataMaster ticket apparently states the blood alcohol percentage for each sample, the time when the testing procedure began (including the observation period before the test), and the exact time when each sample was taken and analyzed.
People v Dinardo, unpublished order of the Court of Appeals, entered November 2, 2009 (Docket No. 294194).
Although the contents of the DI-177 report may be admitted and read into evidence at trial, we note that the report “may not itself be received as an exhibit unless offered by an adverse party.” MRE 803(5). | [
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] |
ON REMAND
Before: WHITBECK, EJ., and O’CONNELL and OWENS, JJ.
Per Curiam.
This matter returns to this Court on remand from the Michigan Supreme Court with the direction that we evaluate the merits of these appeals in light of Bush v Shabahang and MCL 600.2301. We reverse.
I. OVERVIEW
This is a consolidated appeal arising out of a medical malpractice action filed by plaintiff, Heather Swanson, against defendants, Port Huron Hospital (also known as Port Huron Hospital Medical Group), Jeannie L. Rowe, D.O., and Bluewater Obstetrics and Gynecology, PC. Swanson alleged, in part, that Dr. Rowe’s negligence during a laparoscopic procedure to remove an ovarian cyst resulted in a puncture wound to Swanson’s aorta and then a scar around her navel as a result of a laparotomy performed to repair the aorta. In Docket No. 275404, Dr. Rowe and Bluewater appeal as of right the jury trial judgment in Swanson’s favor. In Docket No. 278491, Swanson appeals as of right the trial court’s award of attorney fees and costs. The trial court dismissed Port Huron Hospital from the proceedings below, and thus it is not a party to either appeal.
II. UNDERLYING FACTS AND PROCEDURAL HISTORY
On April 9, 2002, 16-year-old Swanson went to the Port Huron Hospital emergency room, complaining of severe pain in the lower right quadrant. An ultrasound showed a 4-centimeter ovarian cyst, and the hospital admitted her. The attending physician requested an obstetrics/gynecology consultation with Dr. Rowe. Dr. Rowe then diagnosed Swanson as having a right ovarian cyst. Swanson was discharged from the hospital on April 11, 2002, even though her pain was allegedly continuous and she was experiencing nausea and vomiting.
On April 12, 2002, Swanson returned to see Dr. Rowe, still complaining of severe pain in the lower right quadrant, nausea, and vomiting. A pelvic ultrasound showed that the cyst had grown to 5.6 centimeters. Dr. Rowe recommended a laparoscopy and drainage of the cyst. According to Dr. Rowe, in discussing the procedure with Swanson and her mother, Dr. Rowe informed them that the risks involved in such treatment included “the risk of possible injury to bowel, blood vessels or other pelvic organs . . . .” Swanson’s mother admitted that Dr. Rowe told her that damage to blood vessels could occur, but she claimed that she thought that meant “little vessels,” not the “main aorta.” Later that same day, the hospital readmitted Swanson and scheduled her for a laparoscopy with a possible right ovarian cystectomy and a possible appendectomy later that same evening. Before the procedure, Swanson’s mother signed an “Authorization, Release and Waiver” form and an informed consent form.
At 6:30 p.m. on April 12, 2002, Dr. Rowe performed the laparoscopy. The laparoscopy was initiated by inserting a Veress needle through the umbilical fold into the abdomen. More specifically, the Veress needle was inserted caudally, at an angle toward the feet, while Dr. Rowe lifted up on the abdomen with a towel clip. Once the Veress needle was inserted into the abdomen, carbon dioxide gas was passed through the needle into the abdomen to insufflate the abdomen. According to Dr. Rowe, the Veress needle was then withdrawn from the abdomen and a trocar inserted at an angle towards the feet, through which a camera was used to observe the ovarian cyst. At that time, Dr. Rowe observed some bright red blood in the peritoneal cavity. Dr. Rowe was not immediately able to locate the exact source of the bleeding, but it appeared to stop, so she proceeded to drain the cyst.
While Dr. Rowe was withdrawing the instruments from the surgical site, she observed a large “pulsating” mass (i.e., a retroperitoneal hematoma). Dr. Rowe con- suited a general surgeon, who immediately recommended a vascular consultation with Dr. Khattab Joseph. With Dr. Rowe’s assistance, Dr. Joseph then performed an exploratory laparotomy. According to Dr. Rowe, during this second procedure, an incision was made approximately 2 inches above the umbilicus, extending to about 3 inches below the umbilicus. Dr. Joseph and Dr. Rowe identified a “very small” puncture, “like a needle puncture,” at the distal portion of the aorta at its bifurcation. Dr. Joseph repaired the puncture with two “very fine sutures.” Dr. Joseph opined that, given the puncture’s small size, the Veress needle had caused it. Dr. Rowe also opined that the puncture was caused when she inserted the Veress needle. Dr. Rowe then closed the incision without further complications.
On April 18, 2002, the hospital discharged Swanson. Swanson alleged that at the time of her discharge, she had continued pain in the lower right quadrant, a significant amount of pain from gas, and straining with bowel movements. Dr. Rowe testified that Swanson was discharged with medication to treat nausea and pain, but she was in stable condition.
In April 2004, Swanson initiated this lawsuit by mailing a notice of intent to defendants. The notice of intent alleged that the applicable standard of care required defendants, inter alia, to “appropriately evaluate the aforementioned patient, including but not limited to, assessing the abdomen and abdominal structures in order to determine the appropriate amount of force needed to perform a laparoscopy”; “appropriately identify the location of the aorta and other anatomical structures prior to placing the veress needle . . . [and] the trocar”; and “protect vital structures, such as the aorta from surgical injury.” With respect to breach of the standard of care, the notice of intent stated, “The applicable Standard of Practice and Care was breached as evidenced by the failure to do those things set forth in Section II above.” Regarding what actions should have been taken to comply with the standard of care, the notice of intent stated, “The action that should have been taken to achieve compliance with the Standard of Care should have been those things set forth in Section II above.” And with respect to proximate cause, the notice of intent stated, “As a result of the defendants’ gross and blatant negligence, Heather Swanson sustained injury to the main artery in her body, necessitating a surgical repair that rendered this teenager permanently scarred and disfigured, along with intermittent diarrhea and abdominal pain.”
In October 2004, Swanson filed her complaint and affidavit of merit. Swanson’s affidavit of merit, signed by Dr. Jon Hazen, explained the proximate cause element as follows: “As a direct result of Defendants’ gross and blatant negligence, Heather Swanson sustained injury to the main artery in her body, necessitating a surgical repair that rendered this teenager permanently scarred and disfigured, along with intermittent diarrhea and abdominal pain.”
During the September 2006 jury trial, Swanson’s primary theory of liability was premised on allegations that Dr. Rowe inserted the Veress needle or trocar at the wrong angle into the abdomen and used too much force during the insertion. At the close of Swanson’s proofs, defendants moved for a directed verdict, arguing that Swanson’s affidavit of merit did not sufficiently specify the element of proximate cause, as MCL 600.2912d(l)(d) required, because it did not describe the manner in which defendants’ breach “factually and foreseeably” caused Swanson’s injury. The trial court denied the motion, concluding that the affidavit was sufficient.
Following deliberations, the jury returned a verdict in Swanson’s favor, finding that Swanson had sustained an injury, that defendants were negligent, and that defendants’ negligence was the proximate cause of Swanson’s injury. Defendants then moved for a judgment notwithstanding the verdict (JNOV) or a new trial, arguing again that Swanson’s affidavit of merit was deficient and also arguing that Swanson’s notice of intent failed to comply with MCL 600.2912b. The trial court denied defendants’ motion.
III. PRIOR APPELLATE PROCEEDING
Defendants appealed in this Court (Docket No. 275404), arguing, in pertinent part, that the trial court clearly erred by denying their motion for JNOV or a new trial. Defendants argued they were entitled to a JNOV because Swanson’s notice of intent “failed to sufficiently specify proximate cause by failing to detail the manner in which defendants’ alleged breach of the standard of care factually and foreseeably caused injury to Swanson’s aorta.”
A majority of this Court (WHITBECK, EJ., and OWENS, J.) reversed the judgment against defendants on the ground that the notice of intent was defective and remanded the case for entry of an order vacating the verdict and judgment against defendants. The Swanson majority reasoned:
Here, the notice of intent alleged that the applicable standard of care required defendants to, inter alia, “appropriately evaluate [Swanson], including but not limited to, assessing the abdomen and abdominal structures in order to determine the appropriate amount of force needed to perform a laparoscopy;” “appropriately identify the location of the aorta and other anatomical structures prior to placing the veress needle ... [and/or] the trocar .. .;” and “protect vital structures, such as the aorta from surgical injury.” With respect to breach, Swanson’s notice of intent merely stated, “The applicable Standard of Practice and Care was breached as evidenced by the failure to do those things set forth in Section II above.” Regarding what actions should have been taken to comply with the standard of care, the notice of intent simply stated, “The action that should have been taken to achieve compliance with the Standard of Care should have been those things set forth in Section II above.” And with respect to proximate cause, the notice of intent stated:
“As a result of the defendants’ gross and blatant negligence, Heather Swanson sustained injury to the main artery in her body, necessitating a surgical repair that rendered this teenager permanently scarred and disfigured, along with intermittent diarrhea and abdominal pain.”
Swanson’s notice of intent is very similar in its deficiencies to the notice of intent in Miller [v Malik, 280 Mich App 687, 696-697; 760 NW2d 818 (2008)]. The notice of intent here was similarly inadequate to meet the requirement of MCL 600.2912b(4)(e). Here, although Swanson stated that “defendants’ gross and blatant negligence” caused “injury to the main artery in her body,” nowhere did she state how the defendants were negligent other than by breaching the enumerated standards of care. In other words, there is no indication in the notice of intent how defendants caused or could have avoided the injury to Swanson’s artery. Like in Miller, Swanson did identify certain duties in the standard of care portion of the notice of intent, but she failed to describe the manner in which any failure on the part of defendants to perform any of these duties caused Swanson’s injury.
For example, although Swanson asserted that defendants had a duty to appropriately evaluate Swanson, including “assessing the abdomen and abdominal structures in order to determine the appropriate amount of force needed to perform a laparoscopy,” Swanson never explained how determining the appropriate amount of force would have prevented injury to the aorta, nor did she allege that Dr. Rowe actually used anything other than the appropriate amount of force. Similarly, Swanson did not explain how identifying “the location of the aorta and other anatomical structures” would have prevented injury to the aorta. Further, Swanson failed to explain how Dr. Rowe was supposed to “protect vital structures, such as the aorta from surgical injury.”
Thus, “Although the instant notice of intent may conceivably have apprised [defendants] of the nature and gravamen of [Swanson’s] allegations, this is not the statutory standard; § 2912h(4)(e) requires something more.” The mere correlation between alleged malpractice and an injury is insufficient to show proximate cause. We therefore conclude that the notice of intent was not sufficiently stated to put the defendants on statutorily sufficient notice of the nature of the claim.[ ]
Accordingly, the Swanson majority held that the trial court erred by denying defendants’ motion for a JNOV and reversed the verdict against defendants.
Judge O’CONNELL, dissenting, stated that he believed Miller was wrongly decided and that the notice of intent filed in the instant case was sufficient.
Swanson sought leave to appeal in the Michigan Supreme Court. And in December 2009, the Supreme Court entered an order vacating the judgment in Swanson and remanding “for reconsideration of the parties’ appeals in light of this Court’s decision in Bush v Shabahang, 484 Mich 156 (2009), and MCL 600.2301.”
IV NOTICE OF INTENT
A. STANDARD OF REVIEW
Defendants argue that the trial court clearly erred by denying their motions for JNOV or a new trial because Swanson’s notice of intent failed to sufficiently specify proximate cause by failing to detail the manner in which defendants’ alleged breach of the standard of care factually and foreseeably caused injury to Swanson’s aorta. Whether a notice of intent complies with the requirements of MCL 600.2912b is a question of law that this Court reviews de novo.
B. BUSH v SHABAHANG
In Bush, the plaintiff filed a notice of intent several days before the expiration of the period of limitations. The plaintiff then filed a medical malpractice action 175 days after serving notice on the defendants. The defendants sought summary disposition, arguing that the notice of intent did not comply with MCL 600.2912b and that the plaintiff had failed to wait the required 182 days before filing the complaint. The trial court granted summary disposition in favor of several defendants, but denied summary disposition for other defendants, and held that the complaint had not been filed prematurely. This Court affirmed in part, reversed in part, and remanded.
On appeal, the Supreme Court first considered whether the filing of a defective notice of intent tolls the period of limitations for a medical malpractice action. The Court concluded that, pursuant to the clear language of MCL 600.2912b, which requires that a plaintiff file an notice of intent not less than 182 days before a medical malpractice action is commenced, and MCL 600.5856(c), which provides that the period of limitations is tolled “[a]t the time notice is given in compliance with the applicable notice period under section 2912b,” if the plaintiff complies with the applicable notice period before commencing a medical malpractice action, the period of limitations is tolled. Thus, the filing of a timely notice of intent tolls the period of limitations in a medical malpractice action “despite the presence of defects in the [notice of intent].”
The Court then proceeded to consider what consequences attach to the filing of a defective notice of intent. The Court reviewed the legislative history of the statute creating notices of intent and concluded that the Legislature did not intend that a defective notice of intent be grounds for a dismissal with prejudice pursuant to MCL 600.2912b. Thus, the Court found it appropriate to consider other relevant statutory provisions “to see if other appropriate remedies exist... .” The Court then found applicable MCL 600.2301, which 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 Court reasoned that giving notice of intent “is a part of a medical malpractice ‘proceeding’ ” and therefore that MCL 600.2301 “applies to the [notice of intent] ‘process.’ ” The Court therefore held that MCL 600.2301 “may be employed to cure defects in [a notice of intent]” and stated as follows regarding the use of MCL 600.2301 in such a manner:
We recognize that § 2301 allows for amendment of errors or defects, whether the defect is in form or in substance, but only when the amendment would be “for the furtherance of justice.” Additionally, § 2301 mandates that courts disregard errors or defects when those errors or defects do not affect the substantial rights of the parties. Thus, the applicability of § 2301 rests on a two-pronged test: first, whether a substantial right of a party is implicated and, second, whether a cure is in the furtherance of justice. If both of these prongs are satisfied, a cure will be allowed “on such terms as are just.” Given that [notices of intent] are served at such an early stage in the proceedings, so-called “defects” are to be expected. The statute contemplates that medical records may not have been turned over before the [notice of intent] is mailed to the defendant. Defendants who receive these notices are sophisticated health professionals with extensive medical background and training. Indeed, these same defendants are allowed to act as their own reviewing experts. A defendant who has enough medical expertise to opine in his or her own defense certainly has the ability to understand the nature of claims being asserted against him or her even in the presence of defects in the [notice of intent]. Accordingly, we conclude that no substantial right of a health care provider is implicated. Further, we hold that the second prong of the test, which requires that the cure be in the furtherance of justice, is satisfied when a party makes a good-faith attempt to comply with the content requirements of § 2912b. Thus, only when a plaintiff has not made a good-faith attempt to comply with § 2912b(4) should a trial court consider dismissal of an action without prejudice.[ ]
The Court then examined the notice of intent at issue in the case before it and agreed with this Court that, while the vast majority of the notice of intent complied with MCL 600.2912b(4), portions of it were defective. But the Court held that those defects could be cured by amendment pursuant to MCL 600.2301 and thus affirmed this Court’s decision in part, reversed it in part, and remanded the matter to the trial court for further proceedings.
C. ANALYSIS ON REMAND
On remand in this case, this Court must reexamine the notice of intent in light of the Supreme Court’s decision in Bush and MCL 600.2301. As stated earlier, the Court explained in Bush that “the applicability of § 2301 rests on a two-pronged test: first, whether a substantial right of a party is implicated and, second, whether a cure is in the furtherance of justice.”
With respect to the substantial-right prong of the test, the Bush Court explained that in medical malpractice cases, the defendants who receive the notice of intent “are sophisticated health professionals with extensive medical background and training.” And, according to the Court, “[a] defendant who has enough medical expertise to opine in his or her own defense certainly has the ability to understand the nature of claims being asserted against him or her even in the presence of defects in the [notice of intent].” Thus, because defendants here are health care providers, like the Bush defendants, no substantial rights are implicated.
Turning to the furtherance-of-justice prong, the Bush Court explained that this prong is satisfied “when a party makes a good-faith attempt to comply with the content requirements of § 2912b. Thus, only when a plaintiff has not made a good-faith attempt to comply with § 2912b(4) should a trial court consider dismissal of an action without prejudice.”
We continue to believe that Swanson’s notice of intent was defective because it failed to meet the minimum requirements of MCL 600.2912b(4)(c), (d), and (e). With respect to breach of the standard of care, Swanson’s notice of intent merely stated, “The applicable Standard of Practice and Care was breached as evidenced by the failure to do those things set forth in Section II above.” Regarding what actions should have been taken to comply with the standard of care, the notice of intent simply stated, “The action that should have been taken to achieve compliance with the Standard of Care should have been those things set forth in Section II above.” And with respect to proximate cause, the notice of intent failed to describe the manner in which any failure on the part of defendants caused Swanson’s injury.
However, despite these defects, Swanson did explain the factual basis for her claim and alleged numerous standards of practice or care that she deemed applicable to defendants’ conduct. Notably, Swanson’s notice of intent alleged that the applicable standard of care required defendants to, among other things, “appropriately evaluate [Swanson], including but not limited to, assessing the abdomen and abdominal structures in order to determine the appropriate amount of force needed to perform a laparoscopy”; “appropriately identify the location of the aorta and other anatomical structures prior to placing the veress needle ... [and] the trocar;” and “protect vital structures, such as the aorta from surgical injury.”
In Bush, although acknowledging arguably more egregious defects in the notice of intent, the Court nevertheless held that the plaintiffs had made a good-faith attempt to comply with the content requirements of MCL 600.2912b and that the defects did not warrant dismissal of the claim. According to the Bush Court, “These types of defects fall squarely within the ambit of § 2301 and should be disregarded or cured by amendment.”
Thus, looking at Swanson’s notice as a whole and comparing its defects to those in Bush, we conclude that her notice of intent was a good-faith attempt to comply with the content requirements of MCL 600.2912b. Therefore, dismissal of her claims was not warranted. With respect to the appropriate remedy, we further conclude that, in light of our conclusion regarding the trial court’s res ipsa loquitur instruction, discussed in part Y these defects should be disregarded.
V RES ipsa loquitur instruction
A. STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s determination whether a jury instruction is applicable to the facts of the case.
B. ANALYSIS
Michigan Model Civil Jury Instruction 30.05, the res ipsa loquitur instruction, states in pertinent part:
If you find that the defendant had control over the [body of the plaintiff I instrumentality which caused the plaintiff’s injury], and that the plaintiffs injury is of a kind which does not ordinarily occur without someone’s negligence, then you may infer that the defendant was negligent.
M Civ JI 30.05 also includes the following use note: “This instruction should be given only if there is expert testimony that the injury does not ordinarily occur without negligence, or if the court finds that such a determination could be made by the jury as a matter of common knowledge.” Accordingly, the following conditions must be met for a plaintiff to invoke the res ipsa loquitur doctrine:
(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence;
(2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;
(3) it must not have been due to any voluntary action or contribution on the part of the plaintiff; and
(4) [ejvidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff.[ ]
In order for the court to give a requested jury instruction, the requesting party must present sufficient evidence to warrant the instruction.
At trial, both plaintiff and defendants presented expert witness testimony to explain how the injury to Swanson’s aorta could have occurred. Both Dr. Rowe and Laura Williams, the surgical technologist, testified that Dr. Rowe inserted the Veress needle and the trocar at the appropriate angle. Nevertheless, Swanson’s expert, Dr. Hazen, testified that the injury must have occurred because Dr. Rowe improperly inserted an instrument (most likely the trocar) at the wrong angle. However, Dr. Hazen also admitted that injury to the aorta can occur during this type of laparoscopic surgery two times out of a thousand. Moreover, defendants’ experts testified that Dr. Rowe performed Swanson’s surgery within the applicable standard of care and that injury to the aorta is a known complication of a properly performed laparoscopic procedure. Specifically, defendants’ two expert witnesses, Dr. Samuel McNeeley, Jr., and Dr. William Floyd, who are board-certified in obstetrics and gynecology, both testified that a laparoscopic procedure like that performed on Swanson is a “blind procedure” and confirmed that one of the known risks associated with such procedures is injury to blood vessels, including the aorta. Therefore, it is clear that the evidence did not support an instruction that Swanson’s injury was of a kind that does not ordinarily occur without someone’s negligence.
In this case, both defendants’ experts and Swanson’s expert, Dr. Hazen, testified that Swanson’s injury was a known complication of laparoscopic surgery that can occur in the absence of any negligence on the part of the treating physician and indeed does occur up to two times out of a thousand without any negligence on the part of the treating physician. Since this type of injury is a known complication of laparoscopic surgery, and since this type of injury can occur without any negligence on the part of the treating physician, it is axiomatic that instructing the jury on the doctrine of res ipsa loquitur was an abuse of discretion. Given that this error alone merits reversal, we need not address the parties’ remaining arguments.
We reverse on the basis of the erroneous res ipsa loquitur instruction and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
Swanson v Port Huron Hosp, 485 Mich 1008 (2009).
Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009).
MCL 600.2912b.
MCL 600.2912d.
Swanson v Port Huron Hosp, unpublished opinion per curiam of the Court of Appeals, issued June 2, 2009 (Docket Nos. 275404 and 278491), p 3.
Id. at 6.
Id. at 5-6 (citations omitted) (alterations other than addition of citation in original).
Id. at 2 (O’Connell, J., dissenting).
Swanson, 485 Mich 1008.
Jackson v Detroit Med Ctr, 278 Mich App 532, 545; 753 NW2d 635 (2008).
Bush, 484 Mich at 162.
Id.
Id.
Id. at 163.
Bush v Shabahang, 278 Mich App 703, 727; 753 NW2d 271 (2008).
Bush, 484 Mich at 164.
Id. at 169.
Id. at 170.
Id.
Id. at 172-175.
Id. at 176.
Id. at 176-177.
Id. at 177.
Id. at 177-178 (citations omitted).
Id. at 178-180.
Id. at 180-181, 185.
Id. at 177.
Id. at 178.
Id.
Id.
Judge O’CONNELL is of the opinion that the notice of intent was sufficient, and for the reasons stated by the trial court, both Judges O’Connell and Owens are of the opinion that the affidavit of merit was sufficient.
MCL 600.2912b(4)(c).
MCL 600.2912b(4)(d).
MCL 600.2912b(4)(e).
MCL 600.2912b(4)(a).
MCL 600.2912b(4)(b).
In Bush, with respect to defendant West Michigan Cardiovascular Surgeons, the plaintiffs notice failed to adequately address the standard of care under a direct theory of liability for failure to properly train or hire, failed to state how West Michigan Cardiovascular’s hiring and training practices violated the standard of care, failed to state which hiring practices or training methods it should have employed, and failed to state how those improper practices proximately caused the alleged injuries. Bush, 484 Mich at 179. And with respect to defendant Spectrum Health’s nursing staff and physician assistants, the plaintiffs notice failed to state a separate standard of care for the nurses and physician assistants, failed to delineate the specific actions taken by the nursing staff or physician assistants that purportedly breached the standard of care, and failed to state the manner in which the identified breaches proximately caused the alleged injuries. Id. at 179-180.
Bush, 484 Mich at 180.
Id.
People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006); Bordeaux v Celotex Corp, 203 Mich App 158, 168-169; 511 NW2d 899 (1993).
Woodard v Custer, 473 Mich 1, 7; 702 NW2d 522 (2005) (citations and quotation marks omitted) (alteration in Woodard).
Bordeaux, 203 Mich App at 169. | [
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] |
Saad, J.
Defendant Allstate Insurance Company appeals an order of judgment and an order that denied its motion for postjudgment relief. Allstate also appeals two orders that denied its motions for summary disposition. For the reasons set forth below, we reverse the trial court’s denials of Allstate’s motions for summary disposition and vacate the judgment on the jury verdict.
I. FACTS
In July 1992, the decedent, Mary McGrath, bought a home in Gaylord, Michigan, and insured it with Allstate. Until 1998, Ms. McGrath lived in the Gaylord home for most of the year and spent winters in Florida. On November 5, 1992, Ms. McGrath executed a “keep full” agreement with defendant Inergy Fropane, LLC, formerly known as Gaylord Gas (hereinafter “Gaylord Gas”), to ensure that there was sufficient propane to heat the house during the winter. Under the agreement, Gaylord Gas would send a delivery driver to the house on a regular basis to check the amount of propane remaining in the tank and add propane if needed. The agreement with Gaylord Gas required Ms. McGrath to pay her bill and ensure that the driveway remained reasonably clear of snow.
In 1998, Ms. McGrath developed dementia and Alzheimer’s disease and, as her condition deteriorated, Ms. McGrath’s daughter Cathy moved into the Gaylord house with Ms. McGrath to help take care of her. By 2003, Cathy was unable to care for her mother alone, and Cathy and her siblings decided that Ms. McGrath and Cathy should move to and live in an apartment in Farmington Hills, where Ms. McGrath would be closer to family and her doctors. Cathy changed Ms. McGrath’s billing address and notified Allstate that the insurance bills should be sent to their address in Farmington Hills. After Ms. McGrath moved to Farmington Hills, the Gaylord house was no longer used as a full-time residence, though Ms. McGrath left the majority of her belongings there and family members visited the house on occasion for weekends or holiday vacations. Ms. McGrath also visited the Gaylord property for a few days in October 2005. The record reflects that Cathy spent a night at the Gaylord house around Thanksgiving 2005, but no one else visited the property during the winter of 2005-2006. In late May of 2006, Brian McGrath, Ms. McGrath’s son, discovered that his mother’s property had suffered extensive water damage. Plaintiff, James McGrath, Ms. McGrath’s son, reported the loss to Allstate, and Allstate paid for the initial cleanup and investigated the cause of the damage.
Allstate concluded that the water damage was caused by a frozen pipe that had ruptured because of a lack of heat in the house. Sometime between November 2005 and May 2006, the propane tank at the Gaylord property ran out of fuel, which rendered the furnace inoperable. The record reflects that Gaylord Gas canceled the “keep full” agreement with Ms. McGrath on December 19, 2005, after its delivery driver found the driveway impassable. It is undisputed that the driveway of the Gaylord property was not plowed during the winter of 2005-2006. On June 15, 2006, Allstate informed plaintiff over the telephone that it would not pay for the water damage, and Allstate sent a formal denial-of-coverage letter on June 22, 2006.
Plaintiff filed a complaint against Allstate for breach of contract, and he also asserted a claim of negligence against Gaylord Gas. Plaintiff settled the claim against Gaylord Gas after case evaluation. Allstate filed two motions for summary disposition pursuant to MCR 2.116(C)(10), and the trial court denied both motions. A jury found in favor of plaintiff and, pursuant to stipulation, Allstate was ordered to pay plaintiff $100,000. The trial court denied Allstate’s motion for postjudgment relief on November 13, 2008.
II. ANALYSIS
We hold that the trial court erred when it denied Allstate’s motions for summary disposition.
The rules of contract interpretation apply to the interpretation of insurance contracts. Citizens Ins Co v Pro-Seal Serv Group, Inc, 477 Mich 75, 82; 730 NW2d 682 (2007). The language of insurance contracts should be read as a whole and must be construed to give effect to every word, clause, and phrase. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003). When the policy language is clear, a court must enforce the specific language of the contract. Heniser v Frankenmuth Mut Ins Co, 449 Mich 155, 160; 534 NW2d 502 (1995). However, if an ambiguity exists, it should be construed against the insurer. Id. An insurance contract is ambiguous if its provisions are subject to more than one meaning. Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 515; 773 NW2d 758 (2009), citing Raska v Farm Bureau Mut Ins Co of Mich, 412 Mich 355, 362; 314 NW2d 440 (1982). An insurance contract is not ambiguous merely because a term is not defined in the contract. Vushaj, 284 Mich App at 515. Any terms not defined in the contract should be given their plain and ordinary meaning, id., which may be determined by consulting dictionaries, Citizens Ins Co, 477 Mich at 84.
In its motions for summary disposition, Allstate argued that the policy does not cover the damage to the Gaylord property because Ms. McGrath failed to comply with the policy terms. Specifically, Allstate asserted that, contrary to the requirements of the policy, Ms. McGrath did not reside at the Gaylord property at the time of the loss and failed to notify Allstate of the change in title, occupancy, or use of the property. In essence, Allstate claimed that because the nature of the risk insured is greater for an unoccupied home, Allstate’s policy required that Ms. McGrath reside in the home and notify Allstate if this changed. Allstate asserted that Ms. McGrath did not meet these obligations of the policy.
We agree with Allstate that the insurance policy does not cover the damage to the Gaylord house because, at the time of the loss, it was not a “dwelling” as defined by the policy. The policy states that Allstate will “cover sudden and accidental direct physical loss” of covered property, which includes “[y]our dwelling including attached structures.” As defined in the policy, “ ‘You’ or ‘your’-means the person named on the Policy Declarations as the insured and that person’s resident spouse.” “Dwelling” is defined as “a one, two, three or four family building structure, identified as the insured property on the Policy Declarations, where you reside and which is principally used as a private residence.” The policy further states that the insured “must pay the premium when due and comply with the policy terms and conditions, and inform [Allstate] of any change in title, use or occupancy of the residence premises.” “Residence premises” is defined as “the dwelling, other structures and land located at the address stated on the Policy Declarations.”
The critical inquiry here is whether the phrase “where you reside” in the definition of the covered “dwelling” precludes coverage because of Ms. McGrath’s extended absence from the insured property. Plaintiff contends that the phrase “where you reside” is merely descriptive of the property and that it constitutes only an affirmative warranty that Ms. McGrath lived in the house when she originally entered into the insurance contract with Allstate. Allstate maintains that the phrase “where you reside” is a statement of coverage that requires that the insured live at the premises at the time of the loss.
We agree with Allstate. Random House Webster’s College Dictionary (2000) defines the verb “reside” in part as “to dwell permanently or for a considerable time; live.” Accord The American Heritage Dictionary of the English Language (3d ed, 1996) (“To live in a place permanently or for an extended period.”). The policy states that the “insured premises” means “the residence premises” and the coverage section states that the insured’s “dwelling” is the covered property. (Boldface omitted.) The definition of “residence premises” uses the word “dwelling,” which is specifically defined as a building structure “where you reside and which is principally used as a private residence.” (Emphasis added and boldface omitted.) Thus, the term “dwelling” is an integral part of the term “residence premises,” which in turn is an independent part of the term “insured premises.” In Heniser, 449 Mich at 167, our Supreme Court ruled that, because the phrase “where you reside” was “not used to describe the dwelling but is an independent part of the definition of ‘residence premises,’ ” the phrase is not merely an affirmative warranty, but requires that the insured reside at the premises at the time of the loss.
This differs from the policy in Reid v Hardware Mut Ins Co of the Carolinas, Inc, 252 SC 339, 342; 166 SE2d 317 (1969), which was contrasted by the Heniser Court and which described the property itself as a “one story frame constructed, approved roof, owner occupied, one family dwelling.” (Emphasis added.) In Reid, the court ruled that the phrase describing the property as “owner occupied” “is a description merely and is not an agreement that the insured should continue in the occupation of it.” Id. at 346. The Heniser Court further observed that the “owner occupied” language in Reid “was in a list of statements describing the building covered by the policy,” making it “clear that ‘owner occupied’ was simply a description of the dwelling in the same way that stating the building had an ‘approved roof merely commented on the structure at the time the policy was created.” Heniser, 449 Mich at 167 n 13. Again, here, “where you reside” is an independent part of the definition of “dwelling,” which not only defines the covered property, but is also incorporated in the definition of “residence premises.” The language is not merely descriptive of the Gaylord house, but constitutes a statement of coverage; to be a “dwelling” covered by the policy, the building must be identified in the policy declarations, the insured must reside there, and the building must be used as a private residence. This indicates that the insured must reside at the property not only at the time the policy becomes effective, but at the time of the loss.
The trial court implicitly acknowledged that Ms. McGrath had to reside at the Gaylord property when the water damage occurred, but erroneously ruled that plaintiff had established an issue of fact on this question. Specifically, the trial court ruled that because evidence showed that, despite her move to Farmington Hills in 2003, Ms. McGrath intended to return to the Gaylord house at some time in the future, she “resided” in the house when the pipes burst during the winter of 2005-2006. We hold that the trial court’s ruling is based on a misinterpretation of Heniser. In Heniser, the plaintiff sold his property on a land contract, and the property was destroyed by a fire a few months later. Heniser, 449 Mich at 157. The insurer denied coverage because Mr. Heniser did not reside in the house when the fire occurred. Our Supreme Court noted that the term “reside” may be ambiguous in some contexts, but was not ambiguous in Mr. Heniser’s policy, which, again, provided that the “ ‘residence premises’ ” are “ ‘where you reside ....’” Id. at 158 n 1. The Court observed that, in some circumstances, such as those involving the Freedom of Information Act, MCL 15.231 et seq., or the Child Custody Act, MCL 722.21 et seq., the term “reside” may have a legal or technical meaning beyond mere physical presence, including “the intent to live at that location at sometime in the future, a meaning similar to the legal concept of domicile.” Heniser, 449 Mich at 163. However, the Court declined to rule that “reside” should be given a “sophisticated” meaning in the home insurance context under the policy language at issue. Id. The Court ultimately concluded that Mr. Heniser could not satisfy either interpretation of “reside” because, as a result of selling the house, he did not physically live there and he clearly lacked any intent to return. We hold that any discussion by the Court in Heniser with regard to Mr. Heniser’s failure to satisfy either the “general or popular meaning” or “technical” standard was merely obiter dictum and that the term “reside” requires that the insured actually live at the property. Again, the Heniser Court rejected the notion that a more technical meaning should be applied in this context in order to construe an unambiguous term in favor of insurance coverage:
The policy of interpreting ambiguities in a contract against insurers is rooted in the fact that insurers have superior understanding of the terms they employ, which should not bind relatively unsophisticated insureds. This goal is not furthered by allowing insureds to employ a sophisticated version of a term to create a claim of ambiguity. [Id.]
As in Heniser, there is no ambiguity in the Allstate policy issued to Ms. McGrath. Accordingly, it was error for the trial court to ascribe a technical meaning to the term “reside” when the common understanding of the term required that Ms. McGrath live at the Gaylord address at the time of the loss. It is undisputed that Ms. McGrath did not physically live at the Gaylord address when the pipes froze and burst or for two years before the loss and, therefore, she did not satisfy the requirement that she “reside” in the house when the loss occurred.
The multiple risks assumed by an insurer in exchange for an insurance premium are tied to an understanding that the building structure covered is where the insured dwells either permanently or for a considerable period because the risks assumed are clearly affected by the presence of the insured in the dwelling and the associated activities stemming from this presence. Unoccupied or vacant homes, with no resident present to oversee security or maintenance, are at greater risk for break-ins, vandalism, fire, and water damage of exactly the kind that occurred in this case. We recognize that an insured may be away from a property temporarily for travel or because of illness, and the policy clearly contemplates temporary absences, without curtailing coverage. As one example, the frozen-pipes exclusion limits an insured’s ability to recover for a loss when a building structure is vacant or unoccupied unless the insured takes reasonable measures to prevent such damage. This exclusion implicitly recognizes that the insured may be away from the property, but be covered for the loss. This is not inconsistent with the definition of “reside” as defined above. Indeed, the fact that Ms. McGrath had established the habit of vacationing in Florida during the winters in the 1990s did not change the character of the dwelling or her living arrangements. During that time, she resided on the property, albeit for fewer than 12 months of the year, but it remained her home base and the residence to which she regularly returned. At issue here is undisputed evidence that Ms. McGrath lived full-time in an apartment in Farmington Hills for more than two years before the loss occurred. She traveled once to the property for a very brief visit during those years, and it is clear that the Farmington Hills apartment had become her fixed residence. Because Ms. McGrath did not reside at the Gaylord property, she failed to comply with the policy terms, and the trial court erred when it denied Allstate’s motions for summary disposition.
We also agree with Allstate that the trial court should have granted Allstate’s motions for summary disposition in light of Ms. McGrath’s failure to provide adequate notice of the change in occupancy of the Gaylord property. Allstate’s argument relies on the following language in the insurance policy:
In reliance on the information you have given us, Allstate agrees to provide the coverages indicated on the Policy Declarations. In return, you must pay the premium when due and comply with the policy terms and conditions, and inform us of any changes in title, use or occupancy of the residence premises.
Allstate also relies on the following language: “No suit or action may be brought against us unless there has been full compliance with all policy terms.”
Again, Ms. McGrath moved to Farmington Hills in November 2003, and it is undisputed that Cathy notified Allstate of the change of billing address. The question is whether Cathy’s notification was sufficient to put Allstate on notice that there might have been a change in occupancy of the insured property. The parties do not dispute that it is common in the context of insurance contracts that the insured’s billing address is different from the address of the property insured.
Importantly, the term “occupancy” in this policy is found in the phrase “any change in title, use or occupancy of the residence premises.” The use of the term “title” appears to address any changes in possessory interest of the Gaylord property. Further, the policy defines “residence premises” as “the dwelling, other structures and land located at the address,” and “dwelling” is defined as structures where the insured “reside[s].” In keeping with our holding that Ms. McGrath did not reside on the property, the home cannot be deemed her dwelling and thus was not her residence premises. Accordingly, because Ms. McGrath did not reside on the Gaylord property, she did not occupy it, which is a change requiring notification.
Plaintiff asserts that, because Ms. McGrath lived in the Gaylord home for approximately 14 years and because no evidence showed that she had ever changed her billing address before, Allstate should have questioned why Cathy changed the billing address. However, the policy places on the policyholder the responsibility to inform the insurer of a change in occupancy. Further, a person may change a billing address for myriad reasons that would not raise a suspicion that residency has changed. As one example, the children of an elderly person may decide to assume the responsibility for paying a parent’s bills, and thus make arrangements for those bills to be sent somewhere other than the parent’s residential address. Because a billing address may differ from the address of a residence premises for various reasons, the act of notifying Allstate that Ms. McGrath’s billing address had changed was insufficient as a matter of law to put Allstate on notice that Ms. McGrath no longer lived full-time at the Gaylord property.
On this discrete question, we agree with the reasoning in Luster Estate v Allstate Ins Co, 598 F3d 903 (CA 7, 2010). In that case, Mrs. Luster was injured in a fall when she was 83 years old and, after a hospitalization, she moved to an extended-care facility, leaving unoccupied her home insured by Allstate. Id. at 905. Mrs. Luster executed a power of attorney to her lawyer, Rick Gikas, who notified Allstate about his appointment and changed the billing address for the insurance premiums. Id. Mrs. Luster never returned to the home, it remained unoccupied, and she died 4V2 years after her injury. Id. Three months after her death, the house caught fire, and Mr. Gikas filed a claim with Allstate, which denied the claim after learning that the house had been unoccupied for several years. Id. When considering whether there was adequate notice by virtue of the change of billing address, the Court opined:
Gikas didn’t notify Allstate until after the fire that the house was unoccupied. He argues that the notice he gave Allstate, shortly after Mrs. Luster left the house for good— that he had a power of attorney and premiums should be billed to his office — gave the insurance company con structive notice that the house was unoccupied, or at least obligated the company to inquire about its occupancy. That is a frivolous argument. Allstate knew that Luster was 83, so it would come as no surprise to learn that she had executed a power of attorney and that the holder of the power would be handling her finances. That did not indicate that she’d moved out of the house. [Id. at 906.]
As in Luster, we hold that the mere change of the billing address by Cathy for her elderly parent did not put Allstate on notice that Ms. McGrath had moved away from the insured property and did not obligate Allstate to inquire further about the occupancy of the home. Indeed, since Cathy notified Allstate of a change in the billing address, she could clearly have advised Allstate of the crucial fact that her mother no longer lived at the Gaylord address. We will not speculate why Cathy failed to do so, but rule only that it was the insured’s obligation to do so under the policy. The failure to notify Allstate about the change in occupancy violated the terms of the contract, and Allstate could properly deny coverage for a loss that occurred more than two years later. This constituted another basis on which the trial court should have granted summary disposition to Allstate.
In light of our rulings, we need not consider the other arguments raised on appeal. For the reasons given, we reverse the trial court’s denials of summary disposition to Allstate and vacate the judgment on the jury verdict.
We review the denial of a motion for summary disposition de novo. Hastings Mut Ins Co v Safety King, Inc, 286 Mich App 287, 291; 778 NW2d 275 (2009). A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the case. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The moving party is entitled to a grant of summary disposition if the party demonstrates that no genuine issue of material fact exists. Coblentz v City of Novi, 475 Mich 558, 569; 719 NW2d 73 (2006). “A genuine issue of material fact exists when the record leaves open an issue on which reasonable minds could differ.” Bennett v Detroit Police Chief, 274 Mich App 307, 317; 732 NW2d 164 (2007). A plaintiff must support its claim with pleadings, affidavits, depositions, admissions, and any other admissible evidence. Coblentz, 475 Mich at 569. Mere speculation and conjecture cannot give rise to a genuine issue of material fact. Quinto v Cross & Peters Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996).
We also observe that Ms. McGrath arguably did not live at the Gaylord address when the loss occurred or when the policy came into effect. Justice Levin argued in his dissent in Heniser that if Mr. Heniser had resided at the property when he received his homeowners insurance renewal certificate, he may have reasonably concluded that he was covered for the policy year. Heniser, 449 Mich at 175 (Levin, J., dissenting). Here, in response to Allstate’s motion for summary disposition, plaintiff pointed out that Allstate issued a renewal policy after Ms. McGrath had moved out of the Gaylord house in 2003, and plaintiff affirmatively argued that “[t]his was a different policy period, during which a different insurance contract was in force.” Were we to conclude that the phrase “where you reside” in the policy does not require that an insured will be physically present in the dwelling throughout the policy period, plaintiffs position would suggest that Ms. McGrath had to at least reside at the Gaylord property when she received the renewal certificate or on the date it became effective. However, we decline to address this issue because our holding resolves the matter and because, despite plaintiffs assertions, the parties did not attach evidence of a policy renewal to their briefs below and this issue was not argued before or decided by the trial court. | [
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Saad, J.
Flaintiffs appeal the trial court’s order that granted defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10). Because plaintiffs failed to make out prima facie cases of negligence and defamation, we affirm.
I. FACTS
This action arises from an incident that occurred at the Michigan Athletic Club (MAC) in East Lansing at approximately 10:00 p.m. on August 25, 2006. That evening, a man exposed himself to two female lifeguards as they were closing the pool. The lifeguards reported the incident to the manager, who in turn reported it to the MAC’s executive director. Before he reported the incident to the police, the executive director conducted an investigation to determine if the police should be contacted. The executive director compiled 16 photographs of male MAC members who had used their membership cards to check in on the evening of August 25. Plaintiff David Wilson was one of those men. The executive director showed the photographs to the lifeguards and they identified Wilson as the man who exposed himself. After their identification, the executive director reported the offense to the police and relayed the results of his internal investigation. The police conducted their own investigation, interviewed all relevant witnesses, and ultimately arrested Wilson and charged him with indecent exposure. After another indecent-exposure incident occurred at the MAC, the perpetrator was caught, and he confessed that he was the man who had exposed himself in the August 25, 2006, incident as well. Later, the police dropped the charge against Wilson.
Plaintiffs filed a complaint against defendants alleging multiple theories of liability, including common-law negligence and defamation. Following some discovery, defendants moved for summary disposition pursuant to MCR 2.116(C)(10). The trial court ruled that defen dants did not owe plaintiffs a legal duty and granted defendants’ motion for summary disposition on plaintiffs’ negligence claim. The trial court also granted summary disposition to defendants on plaintiffs’ defamation claim.
II. NEGLIGENCE
“This Court reviews de novo the grant or denial of a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law.” In re Handelsman, 266 Mich App 433, 435; 702 NW2d 641 (2005), citing Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The moving party is entitled to judgment as a matter of law when viewing the evidence in the light most favorable to the nonmoving party, Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004), and drawing all reasonable inferences in favor of the nonmovant, Scalise v Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858 (2005), the court finds that no genuine issue of material fact exists, Maiden, 461 Mich at 120.
Though the trial court ruled that defendants did not owe a duty to plaintiffs regarding defendants’ investigation, we need not address the question of defendants’ legal duty because we hold that the conduct complained of did not cause plaintiffs’ injuries. Were we to hold that defendants owed Wilson a duty of care in conducting their investigation, Wilson’s claim would nonetheless fail because, as a matter of law, defendants did not proximately cause any of plaintiffs’ alleged injuries. The gravamen of plaintiffs’ complaint is that the police wrongfully charged Wilson with the crime of indecent exposure. After defendants conducted a modest, preliminary internal investigation following complaints of a crime, they turned the matter over to the police. It was then in the hands of law enforcement officials to pursue the matter, and it was the prosecutor’s decision whether the police had gathered sufficient evidence against Wilson to bring criminal charges. People v Jackson, 192 Mich App 10, 15; 480 NW2d 283 (1991).
When a citizen places information or a complaint in the hands of the police, even if the information is flawed, and then the police conduct their own investigation and, with the prosecutor, determine that there is probable cause to pursue the matter, that decision is entirely outside the authority or control of the private citizen. Even if Wilson was incorrectly identified by the female lifeguards who witnessed the crime, the police conducted their own investigation, gathered evidence, and interviewed all relevant witnesses, and it was the police and the prosecutor, not defendants, who concluded that there was sufficient probable cause to pursue the matter. Had plaintiffs produced some evidence showing that defendants’ investigation somehow contributed to plaintiffs’ injuries, any causal contribution of defendants’ investigation to plaintiffs’ alleged injuries was nonetheless cut off by the actions of the police and the prosecutor. And it was simply not reasonably foreseeable when defendants conducted their own investigation into the August 25, 2006, incident that law enforcement officials would do anything more or less than conduct an independent investigation and then arrive at their own independent judgment regarding whether to bring charges against Wilson. Thus, the conduct of the police and the prosecutor constituted a superseding cause of plaintiffs’ alleged injuries, and defendants cannot be held liable as a matter of law. See Ridley v Detroit, 231 Mich App 381, 389-390; 590 NW2d 69 (1998). We further observe that, were we to hold otherwise, it would have a chilling effect on citizens who discharge their civic duty to both inquire into and report information about possible criminal conduct to law enforcement officials. Indeed, institutions such as businesses, schools, and municipalities and employers are often put in a position where they must investigate alleged criminal activity while accommodating important competing interests and must decide how to pursue complaints and what information, if any, to report to outside authorities. To impose legal responsibility on these citizens for the later, independent decisions of law enforcement officials would unduly restrict the citizens’ ability to discharge their legal rights and duties to report criminal wrongdoing. Indeed, it is a fundamental “right and privilege of [a citizen] secured by the constitution and laws of the United States to aid in the execution of the laws of [his or her] country by giving information to the proper authorities.” Hall v Pizza Hut of America, Inc, 153 Mich App 609, 615; 396 NW2d 809 (1986). Were our courts to impose civil liability on citizens who turn information over to the police and prosecutors, it would, quite simply, undermine this basic constitutional principle and impede criminal investigations. Accordingly, and for the reasons stated, the trial court correctly granted summary disposition to defendants on plaintiffs’ negligence claim.
III. DEFAMATION
Plaintiffs argue that the trial court erred when it dismissed their defamation claim. To establish a claim for defamation, the plaintiff must show (1) that “a false and defamatory statement concerning the plaintiff” was made, (2) that the defendant made “an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statements irrespective of special harm, or the existence of special harm caused by the publication.” Gonyea v Motor Parts Fed Credit Union, 192 Mich App 74, 76-77; 480 NW2d 297 (1991). Truth is an absolute defense to a defamation claim. Porter v Royal Oak, 214 Mich App 478, 486; 542 NW2d 905 (1995). Plaintiffs’ claim centers on a memorandum distributed to all MAC managers and lifeguards that outlined the procedures for handling indecent-exposure incidents. That memorandum referred to a previously-identified suspect, i.e., David Wilson.
The trial court ruled that at the time defendants circulated the memorandum containing the alleged defamatory statement, the police had told defendants that Wilson was the “prime suspect” in the indecent-exposure incidents. The court explained that because the memorandum merely relayed information that defendants received from the police, allegations about Wilson contained in the document were neither false nor defamatory. Because Wilson was, in fact, a suspect in the indecent-exposure incidents when the memorandum was created and circulated and the memorandum specifically stated that he was a suspect, not the person who had committed the acts, defendants’ statement was not defamatory. Id. Therefore, the trial court did not err when it held that plaintiffs were not entitled to relief on their defamation claim.
Affirmed.
We will refer to David Wilson as “Wilson” and to David and Sheryl Wilson as “plaintiffs.” | [
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Wiest, J.
In improving, laying out and constructing county road No. 46 in Flint township, Genesee county, defendant board determined it necessary to take certain of plaintiffs’ lands and fixed the compensation, all in strict accord with the provisions of Act No. 352, Pub. Acts 1925, as amended by Act No. 92, Pub. Acts 1927. Plaintiffs had right of review by certiorari, but instead filed the bill herein to enjoin the defendants on the ground that the statutes mentioned are unconstitutional in limiting review to certiorari and not affording judicial review upon the questions of necessity for taking their lands and the compensation to be awarded. Plaintiffs appealed from a decree dismissing the bill.
In Hendershott v. Rogers, 237 Mich. 338, we held that, in the exercise of eminent domain, the question of necessity is a judicial one, upon which the landowner has a right to 'be heard, and pointed out the fact that the act of 1925 failed to afford opportunity to a landowner to be heard and have judicial review. Thereupon the legislature, by the act of 1927, afforded an opportunity to the landowner to be heard before the board and have review by certiorari.
The sole question is whether the act of 1927 affords plaintiffs right of judicial review. We think it does. The laying out and improvement of public highways is a power of government, exercised by the legislature, -direct or through highway officers acting under statutory power and mapped procedure. The procedure need not be in accord with the common law, and review in a court may be limited to an examination of the regularity of the proceedings and due exercise of •statutory powers. While highway officers, in the .main, act in an administrative capacity, yet, when they «exercise statutory powers in taking private property for the public use and in determining the necessity for doing so and the compensation to be made, their proceedings are" of a judicial nature and regularity thereof may be reviewed by authorized certiorari.
“While some things in the laying out and opening of public roads may be considered as legislative or administrative, still all action affecting the property rights of private persons is clearly judicial, and subject to review.” 5 R. C. L. p. 259.
“Within the rule that certiorari lies only to review judicial acts, the proceedings of highway officers in opening or vacating public roads, under statute authority, are judicial proceedings.” 29 C. J. p. 489.
Does certiorari afford a judicial review?
“A certiorari proceeding is a judicial proceeding in the technical sense, as distinguished from a quasi judicial one.” 11 C. J. p. 90.
Review by certiorari has been employed in many instances to test power exercised, procedure employed, and determinations of tribunals, boards, and officials, and, while review by the writ is narrow, it is deemed adequate in instances where there need be no new trial or hearing de novo.
In 5 R. C. L. p. 261, it is stated:
“Indeed, in many instances the final adjudications of persons invested with power to decide on the property or rights of the citizen, and who act in a summary manner, or in a new course, different from the common law, are reviewed upon certiorari. Especially is this true * * * in the proceedings of commissioners laying out highways, and awarding damages for property taken for public use.”
Plaintiffs invoke the due process provisions of the Federal Constitution.
In Bragg v. Weaver, 251 U. S. 57 (40 Sup. Ct. 62), it was stated:
“Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the State may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment. * * *
“But it is essential to due process that the mode of determining the compensation be such as to afford the owner an opportunity to be heard.”
See, also, North Laramie Land Co. v. Hoffman, 268 U. S. 276 (45 Sup. Ct. 491).
Clearly the amendment invoked is of no aid to plaintiffs. In the Hendershott Case we pointed out the need of notice and the right of opportunity to be heard upon the question of necessity under the provisions of our Constitution. The Constitution of this State calls for a hearing, and plaintiffs were heard and they are deprived of no constitutional right in not being given a hearing de novo in a court. The legislature could have provided for a court hearing, but there is no constitutional provision requiring that such be given.
In the brief for plaintiffs it is said:
“If the landowner will not sell, he is then given a hearing before the board, which had already de termined the necessity for taking the particular property.”
As we understand the argument, the thought is that the board, by virtue of official interest, ought not to pass upon the rights of the landowners. We think the point answered in 29 C. J. p. 430:
'“The common-law rule that a judge cannot sit in a cause in which he is interested does not apply to commissioners of highways.”
We think the act of 192.7 corrects the defects in the act of 1925' and that plaintiffs, if aggrieved by the action of the defendant board, should have availed themselves of the remedy of review by certiorari.
The decree in the circuit is affirmed, with costs to defendant.
Sharpe, C. J., and Bird, Fellows, Clark, .and McDonald, JJ., concurred. Flannigan, J., did not sit.
The late Justice Snow took no part in this decision. | [
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] |
WlEST, J.
Defendants Asiuliewicz owned a building, on Michigan avenue in the city of Detroit, in which they conducted a high-grade furniture store. In July, 1922, they leased certain space in the store to plaintiff corporation for the term of ten years, “to be used and occupied for general sales-room purposes, and for the exhibition and sale of musical instruments and the wares and merchandise of a general music business.” Plaintiff, at considerable expense, fitted the rented space to meet the requirements of a music store and established such business. The space rented was not separated by partition from that retained by the lessors as a furniture store. In the spring of 1926, defendants Asiuliewicz discontinued their furniture business, vacated such space, and, in June, 1926, leased the space in the store formerly occupied by them to defendants Simon and Krasmann, to be used for a meat market and grocery store. This resulted in a meat market, grocery, and music store all in one room. Plaintiff filed the bill herein to enjoin such use of the former furniture space and obtained a decree to' that effect. Defendants appealed, but failed to settle a case for review in this court. Plaintiff, by motion, asks for dismissal of the appeal for want of a record containing the evidence in the circuit. Defendants claim right to a hearing upon the facts alleged in plaintiff’s bill and stated in the decree, admit such are to be taken as true, but claim -that, under such facts, the decree is contrary to law. We think defendants may be so heard.
On this appeal we must take as true all competent facts alleged in plaintiff’s bill. The lease required the lessors to adequately heat the premises, inclusive of the space hired. A meat .market requires less heat than a music store and the bill alleges that the heating has been adjusted to the accommodation of the meat market and to the detriment of plaintiff’s use. The bill alleges that a meat market, grocery, and music store are so incompatible in the same room as to make it impractical to conduct the businesses side by side on the same open floor. The bill sets up reasons why this is so. We need not detail specific reasons alleged, as they will readily occur to any one familiar with the appliances installed, stock in trade handled, and methods and means employed in conducting a butcher’s shop.
We have found no case on all fours with the one at bar, and do not need to find one to determine what the law is; cases rest upon law and not law upon cases. The case nearest in point is Hannan v. Harper, 189 Wis. 588 (208 N. W. 255, 45 A. L. R. 1119). In that case it was held that the leasing of an upper apartment of a two-family flat for the use of a college fraternity was a breach of the covenant of quiet enjoyment in the lease of the lower flat for residential purposes, and such use was enjoined.
, It is admitted that a meat market'and grocery in the same room with a music store is incompatible. Compatibility of the businesses to be carried on in the store by the lessors and lessee was recognized at the making of the lease and was a governing reason therefor. ' There goes with every rental of premises the right of beneficial enjoyment by the tenant for the purpose for which the premises are rented, at least to the extent disclosed to the lessor at the making of the lease. Such enjoyment the landlord may not destroy or seriously interfere with in use by himself or permitted use by others of any part of the premises occupied in conjunction therewith. This case does not rest upon the law of eviction, actual or constructive, but upon the right of plaintiff to have beneficial enjoy-, ment of the premises leased. Plaintiff was not bound to vacate the premises and seek damages, but had a right to ask the court of equity to protect it from acts committed by those who were bound to respect its rights. But, it is said, plaintiff may, under the lease, turn its part of the store to some other commercial purposé. We think the terms of the lease forbid. Suppose that plaintiff, while the furniture store was in operation, had used its part of the store for a butcher’s shop, then the shoe would only be on the other foot. Plaintiff has a right to use its part of the room for the purpose for which it was rented, and the claim that it should adjust, its use to a purpose compatible with a meat market and grocery is a • confession that defendants have rendered it unsuited for a music store and a request that plaintiff conform in its use to some business a meat market will not interfere with.
In the brief for defendants it is said:
“It is the plaintiff’s claim that the grocery and meat market business has greatly shocked its artistic and esthetic sensibilities. The plaintiff is profoundly affected by the profane and sacrilegious existence of a humble meat market near the hallowed shrine of music —it jars upon its sense of the fitness of things.
“The defendants deeply regret the necessity of wounding such sensitive and finely attuned natures as characterize the plaintiff, but feel that they cannot, in justice to themselves, forego their .rights in this matter.”
If the grocery and meat market remain plaintiff may as well move out. Plaintiff’s enjoyment of the premises has been materially lessened, but defendants seem to think that, because there is no nuisance, they have not interfered with plaintiff’s beneficial enjoyment. Premises are rented for beneficial enjoy ment thereof, and, in this instance, the enjoyment consisted in having a suitable place to carry on a music store. No one would combine, as a business proposition, a meat market, grocery, and music store. One would not think of going to a butcher’s shop to obtain a musical instrument, except under the fallacy of making a whistle of a pig’s tail.
Plaintiff deals in musical instruments, inclusive of Victrolas and records, and it is well known that purchasers desire a demonstration. Aj selection from Chopin, on a Victrola, played to the accompaniment of a cleaver cracking bones on a butcher’s block, might not detract from the sale of meat but would seriously interfere with the music business. No music dealer, with sense, would expect to be able to carry on his business in a butcher’s shop. The carcass of a hog, hung by the heels, with opened body and bloody snout, may not look but of place in a butcher’s shop, but wholly out of place and repulsive in the same room with a music store.
Defendants contend that plaintiff is not entitled to have the furniture business continued during the term of the lease. That is very true, and the space formerly used for the sale of furniture may be let for any purpose not destructive of plaintiff’s rights. That the business of a meat market and grocery is lawful does not meet defendants' responsibility for the presence and maintenance thereof at the place in question. The operation of the meat market and grocery materially interfered with plaintiff’s use of the premises and defendants have no right to so alter conditions as to render the space occupied by plaintiff unfit for the purposes to which they were applied under express terms of the lease. The acts here complained of are not those of a stranger, and for which the landlord should not be held responsible, but are the acts of the landlord, actively furthered by defendants Simon and Krasmann, who knew that their use of the premises for a meat market and grocery would be destructive of the rights of plaintiff.
We have made no mention of the defendant Augusta Smuczynska. While the lease to plaintiff was given by defendants Asiuliewicz, the rent was reserved to defendant Smuczynska.
The decree in the circuit is affirmed, with costs to plaintiff, and the case remanded to assess the damages of plaintiff. The assessment will be against the lessors of plaintiff.
Shaepe, C. J., and Flannigan, Fellows, Clark, and McDonald, JJ., concurred. Bird, J., concurred in the result.
The late Justice Snow took no part in this decision. | [
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] |
Clark, J.
In May, 1924, plaintiff, a Michigan corporation, began this suit against defendant, a Michigan corporation, to recover damages for an- averred breach of contract, and for items claimed on open account. Plaintiff did not pay fee and file its annual report for 1923, due August, 1924, nor for the years 1924 and 1925. Section 5, chap. 2, pt. 5, Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [173]). At the trial plaintiff’s right to prosecute the case was challenged on statutory ground. Section 6, chap. 2, pt. 5, Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [174]). We quote from the section:
* * * “If any corporation neglects or refuses to make and file reports required by this chapter within the time herein specified, and shall continue in default for ten days thereafter, its corporate powers shall be suspended thereafter until it shall file such report, and it shall not maintain an action in any court of this State upon any contract entered into during the time of such default.” * * *
Defendant had judgment, which plaintiff reviews on case-made.
The averred cause of action arose and the suit was commenced while plaintiff was not in default. The last clause from section 6, above quoted, relating to action upon contract entered into during the time of default, therefore does not apply. But there is a further provision that corporate powers shall be suspended. One of such is the power to sue. Section 1, chap. 1, pt. 2, Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [40]). Power to sue means more than power to commence suit; it includes as well power to prosecute the suit to effect; power not only to commence but to continue legal proceedings to conclusion. One of the powers suspended is the power to sue. So plaintiff, being in default, could not prosecute its suit.
Plaintiff calls attention to a section added by Act No. 172, Pub. Acts 1923:
“Section 7. Any corporation which has heretofore under any existing law been required to file an annual report with and pay a franchise fee or tax to the secretary of State, and shall have neglected or refused to file such reports or to pay such fee or tax for two consecutive years next preceding the first day of September, nineteen hundred twenty-three, the charter of such corporation shall after such date be void, unless the secretary of State shall for good cause shown extend the time for filing of such report or the payment of such fee or tax; and if any corporation which is now or may hereafter be required to file its annual report with and pay a franchise fee or tax to the secretary of State, shall for two consecutive years neglect or refuse to file such report or to pay such fee or tax, the charter of ■ such corporation shall be void unless the secretary of State shall for good cause shown extend the time for the filing of such report or the payment of such fee or tax as the case may be. In case of an extension of time as provided in this section, the secretary of State shall file in his office a certificate showing the length of time granted by such extension: Provided, That in no case shall the total extension of time granted be more than one year.”
It contends that under and because of the above section its charter has been forfeited and is void, and it insists that because of section 6, chap. 4, pt. 1, Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [32]),
“All corporations whose charter shall expire by their own limitation or shall be annulled by forfeiture, or otherwise, shall nevertheless continue to be bodies corporate for the further term of three years for the purpose of prosecuting and defending suits by or against them and of enabling them gradually to settle and close their affairs, to dispose of and convey their property, and to divide their capital stock; but not for the purpose of continuing the business for which such corporations were organized,”
it may prosecute this suit toward settling and closing its affairs. The infirmity of this contention is that the charter did not automatically become forfeited and void by its failure for two consecutive years to file the reports. The statute is not self-executing. This matter is fully considered in the recent case of Turner v. Western Hydro-Electric Co., ante, 6, which, we think, need not be quoted.
No other question calls for discussion.
Judgment affirmed.
Flannigan, C. J., and Fellows, Wiest, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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Clark, J.
On August 15, 1924, defendant insurance company issued a fire insurance policy to plaintiff insuring for three years against loss and damage by fire, in the sum of $500, on a frame dwelling in Cadillac. The policy contained the following:
“If the premises are vacant for a period exceeding sixty days or unoccupied for a period exceeding six months, at any one time, the policy is void unless a special form of permission is attached hereto.
“Unless otherwise provided by agreement in writing added hereto this company shall not be liable for loss or damage occurring * * * (b) while the hazard is increased by any means within the control or knowledge of the insured.”
A total loss by fire occurred on October 25, 1926. The evidence does not disclose the cause of the fire. At the time the house was vacant. It had been vacant and unoccupied for nearly a year. At times the doors were not locked and “were open and the children going in and out — anybody that wanted to.”
This suit is on the policy, and defendant, with the plea of general issue, gave notice of defenses based on the conditions of the policy above quoted. Defendant had undisputed testimony of a general practice and custom of fire insurance companies with respect to vacancy:
“Yes — there are two ways, one is, he gets a permit on his policy and they then change him — reduce the policy one-third. The other way they do is, they make him a charge for 60 or 90 days, according to the insurance, but the company must be notified. That is absolutely general — there are no exceptions. * * *
“Q. Why does the company either raise the rate or cut down the insurance when they have notice of it?
“A. On account of the increased hazard.”
The trial was without a jury. The court made findings on which judgment for plaintiff was entered. Defendant brings error.
Act No. 264, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9100 [254]), provides:
“No policy of fire insurance shall hereafter be de dared void by the insurer for the breach of any condition of the policy if the insurer has not been injured by such breach, or where a loss has not occurred during such breach, and by reason of such breach of condition.”
This same provision, then found in Act No. 128, Pub. Acts 1911 (2 Comp. Laws 1915, § 9481), although the title of the later act is not like that of the former, was considered in Lagden v. Insurance Co., 188 Mich. 689, since cited and approved. It was there held that the legislative purpose was to prevent “forfeitures of fire insurance policies for violation of conditions which did not cause the fire” and it was said that the act makes clear:
“(a) That no forfeiture is to take effect if the insurer has not been injured by a breach of condition.
“(b) That no forfeiture is to take effect if the fire was not caused by a breach of condition, even though the breach was existing at the time of the fire.”
Defendant contends on its testimony above quoted that it has been injured by the breach in that it, having no knowledge of vacancy, was denied an opportunity to have reduction of insurance or increase of rate because of the vacancy. But the sum of (a) and (b), above quoted from the Lagden Case, is that no forfeiture is to take effect if the fire was not caused by a breach of condition. This is also the effect of the holding in McPhee v. Insurance Co., 198 Mich. 215, where the statute in question was quoted as being:
“No policy of fire insurance shall hereafter be declared void by the insurer for the breach of any condition * * * where a loss has not occurred during such breach and by reason of such breach of condition.”
While defendant may have been injured as claimed, such injury did not cause the fire. The trial judge found that the evidence does not show that the fire occurred by reason of the breach of condition. The finding is not against the clear'weight of the evidence and is therefore conclusive here. See Residence Fire Ins. Co. v. Hannawold, 37 Mich. 103; Becker v. Insurance Co., 48 Mich. 610; 26 C. J. p. 208.
It follows that the judgment is affirmed.
Flannigan, C. J., and Fellows, Wiest, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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McDonald, J.
The plaintiff had judgment against the defendants in the circuit court of Wayne county for $474.50. The controversy grew out of an attempt of the defendants-, Ehlert, Green & Gentner, a co-partnership, to collect by garnishment a justice’s court judgment against one Godfried Klenk. An affidavit of garnishment was filed, and on the same day a summons based thereon was issued and served on Weiss-Kemnitz Company, the present plaintiff. WeissKemnitz Company, the garnishee defendant, filed no disclosure and did not appear on the return day of the summons, which was July 1, 1925. The cause was adjourned until July 6, 1925, at which time the garnishee defendant not appearing, it was dismissed, but on- motion of plaintiff was reinstated and adjourned until July 9, 1925. On the adjourned date, the garnishee defendant did not appear and judgment was entered for the plaintiff in the sum of $452.50. On the 15th of July, 1925, execution was issued and placed in the hands of a constable. He went to the store of Weiss-Kemnitz Company for the purpose of making a levy. To avoid a levy and the closing of its business, the company paid the constable the amount of the judgment. He turned the money over to Ehlert, Green & Gentner, who receipted for the same on the docket of the court. Subsequently, on the theory that the judgment against it was void, Weiss-Kemnitz Company began this suit to recover the money so paid. It received a judgment which the defendants seek to review by writ of error.
The plaintiff’s right to recover rests on the claim that the garnishment judgment was invalid. It is claimed that it was invalid for two reasons: first, because the justice dismissed the cause on July 6, 1925, and thereafter had no jurisdiction to render a judgment; and, second, because the provisions of section 14392, 3 Comp. Laws 1915, were not complied with, in that the judgment was not rendered on the third secular day after the’ return day of the writ.
As to the first reason, viz., that the justice lost jurisdiction of the cause by dismissing it, the record is not sufficiently definite to enable us to determine whether it was properly reinstated. There are circumstances in which a justice would be justified in setting aside the dismissal and assuming jurisdiction. Hodges v. Bagg, 81 Mich. 243.
We are' told that the dismissal was set aside on verbal motion, but why, how, or when, and under what circumstances, we are not informed. But it is not necessary to further discuss that question; for we believe that the judgment was invalid for the second reason stated.
The applicable statute, section 14392, 3 Comp. Laws 1915, provides as follows:
“If said corporation shall not so appear or so answer, if a judgment shall have been obtained against said principal defendant, and the time for taking an appeal therefrom shall have expired, and if no appeal shall have been taken, such corporation shall be held to be indebted to the defendant in the original suit to the amount of the judgment against the principal defendant, unless within three days after the return day of such summons, such corporation shall appear and show a sufficient reason to the satisfaction of the justice for having failed to answer such. summons, and the justice shall thereupon on the third secular day render judgment against such corporation as against other garnishees, for the amount of such debt and with like effect; but on such cause being shown, such officer may make disclosure and be examined as other garnishees and proceedings thereafter shall be the same as though answer had been made within the time limited there-fox* ^ *** ^
In the instant case, Weiss-Kemnitz Company, the garnishee defendant, had been served with summons but did not file its disclosure and failed to appear on the return day. Judgment had passed against the principal defendant. The time to appeal had expired. The judgment had become a finality. The return day of the writ was July 1, 1925. As the garnishee defendant did not appear and answer, it was deemed by statute to be indebted to the defendant in the original suit to the amount of the judgment. It was then the duty of the justice to hold the cause open for three days to enable the garnishee defendant to come in and show why it had not obeyed the summons. As it failed to take advantage of the three days of grace, on the third day the justice ought to have rendered a judgment against it.
“And the justice shall thereupon on the third secular day render judgment against such corporation as against other garnishees, for the amount of such debt and with like effect.”
Instead of following the directions of the statute, the justice adjourned the cause for five days to July 6th, and again to July 9th. Garnishment proceedings-supplement the common-law method of enforcing judgments. They are special and statutory and must be strictly followed. , In failing to render judgment on the third secular day after the return day of the summons, the justice lost jurisdiction of the cause and the judgment rendered thereafter was void. And as it was void for jurisdictional reasons, there is no merit in the defendant’s contention that this suit is a collateral attack on the judgment. Woods v. Wark, 235 Mich. 90, and cases therein cited. The plaintiff is entitled to a judgment.
The judgment is affirmed, with costs. ’
Sharpe, C. J., and Bird, Flannigan, Fellows, Wiest, and Clark, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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Wilder, J.
Flaintiff appeals as of right the circuit court’s order denying his motion for summary disposition, and granting summary disposition to defendant, in this action seeking penalty damages and attorney fees under the Michigan sales representatives’ commissions act (SRCA), MCL 600.2961. We affirm.
In or around 1972, according to plaintiff, plaintiff and Jebco Manufacturing, Inc. (Jebco), entered into an oral sales representation agreement. Under this agreement, plaintiff solicited orders for automotive parts manufactured by Jebco. For the orders, Jebco promised to pay sales commissions to plaintiff for the life of the parts. From 1972 through about August 1999, according to plaintiff, plaintiff procured orders for Jebco parts, and Jebco paid plaintiff sales commissions. Throughout that period, according to plaintiff, Jebco would pay the commissions to plaintiff on the 10th or 12th day of each month for the shipments made during the preceding month.
By letter dated August 27, 1999, Jebco informed plaintiff that the sales representation agreement would be terminated, except for the commission obligations assumed by Noble Metal Forming, Inc. (Noble) (an earlier name of defendant), to which Jebco was selling substantially all its assets and business. The letter stated: “As we have discussed, effective as of the close of business August 31, 1999, Jebco will complete the sale of substantially all of its assets and business to Noble Metal Forming, Inc., a Michigan corporation based in Detroit, Michigan.” The letter further stated that Jebco was terminating its sales representation agreement with plaintiff: “Inasmuch as Jebco will no longer be in the automotive supply business after August 31, 1999, please accept this letter as Jebco’s notice that, effective as of the close of business on August 31, 1999, the Sales Representation Agreement shall be terminated, except for the obligations assumed by Noble as described” in the letter.
According to the August 27, 1999, letter, Noble agreed to assume Jebco’s obligations under the sales representation agreement for products sold before August 31,1999, for which payment had not been received by Jebco by the closing date. The letter stated:
As part of the sale, Noble has agree [d] to the following:
• [To] Assume the obligations of Jebco arising under the Sales Representation Agreement with respect to commissions due for products sold prior to August 31, 1999 for which payment has not been received by the Company from the ultimate customer as of the Closing Date.
Noble also agreed, according to Jebco’s letter, to assume certain other obligations of Jebco arising under the sales representation agreement:
As part of the sale, Noble has agree [d] to the following:
• [To] Assume the obligations of Jebco arising under the Sales Representation Agreement with respect to commissions relative to (i) products sold after August 31, 1999 on contracts that existed on August 31, 1999 as required by the “life of part” or other commission continuation provisions under the Sales Representation Agreement, and (ii) business generated for the benefit of Noble after August 31,1999 as a result of the efforts of you prior to August 31, 1999 which can be reasonably evidenced by you (e.g., the DaimlerChrysler RS 2001 Program).
Effective August 31, 1999, Jebco sold substantially all its assets and its business to Noble.
According to plaintiff, in February 2000, Noble terminated the sales representation relationship with him and indicated it did not intend to fulfill its obligation to pay life-of-the-part sales commissions to him. As a result, in March 2000, plaintiff commenced an action in the Macomb Circuit Court. In resolving that action, in February 2001, plaintiff and Noble entered into a written settlement agreement. Noble agreed to pay commissions to plaintiff for parts listed in an exhibit to the agreement, which payments would include not only the parts listed, but any modifications or changes to the parts. Noble agreed to pay commissions for parts shipped through June 1, 2000, at the rate of 3 percent, and 3 or 2 percent for parts shipped commencing on June 1, 2000, through May 31, 2005, as listed in the agreement. Plaintiff agreed to dismiss the action.
The settlement agreement also contained a mutual release:
3. Mutual Release of All Claims. For valuable consideration, receipt of which is hereby acknowledged, both NOBLE and REICHER mutually hereby agree to release, acquit, and forever discharge the other including all agents, representatives, employees, insurers, attorneys, and indemnitors of and from any and all claims which either may have against the other, except those arising out of this Settlement Agreement and Mutual Release, which arose out of and/or during the course of the employment relationship between PETER L. REICHER and JEBCO MANUFACTURING, INC. and the employment relationship, if any, between PETER L. REICHER and NOBLE METAL FORMING, INC. as well as any affiliated entity. This includes, without limitation, claims for commissions, attor ney fees, costs, expenses, additional damages under the Michigan Sales Commission Act, and any other claims for commissions or compensation of any kind. [Emphasis added.]
About May 2001, Noble changed its corporate name to S.E.T. Metal Forming, Inc. In July 2001, S.E.T. Metal Forming, Inc., merged into S.E.T. Steel, Inc. In September 2001, S.E.T. Steel, Inc., changed its name to S.E.T. Enterprises, Inc.
According to plaintiff, during these changes in defendant’s corporate entity and name, defendant continued to pay sales commissions in accordance with the settlement agreement. According to defendant’s response to plaintiffs requests for admissions, sometime in February 2004, defendant began making its commission payments late, and from February 2004 through August 2005, defendant made approximately 11 payments to plaintiff that were more than 45 days late when they were paid. Defendant argues that by August 2005, it had satisfied all payments under the settlement agreement.
As a result of the late payments, plaintiff commenced this action, seeking penalty damages and attorney fees under the SRCA. Plaintiff made a list of the late payments and attached it to requests for admissions, and defendant admitted that the list was accurate.
Later, plaintiff filed a motion for summary disposition under MCR 2.116(C)(10), arguing that defendant admitted that it failed to make commission payments within the time limits prescribed by the SRCA and that defendant failed to produce any evidence that its failure to make timely payments was a result of mistake or inadvertence. In its response to the motion, defendant argued that plaintiffs claim was barred by the release in the settlement agreement. In his reply brief, plaintiff argued that the release only applied to claims arising before the execution of the settlement agreement and that the release excluded claims arising under the settlement agreement. Plaintiff also argued that, under the SRCA, any attempts to waive the provisions of the SRCA are void. The circuit court agreed with defendant, denied plaintiffs motion, and granted summary disposition to defendant.
We first examine whether the SRCA provision prohibiting waiver of any right under the SRCA voids the release involved herein. We hold that it does not.
Well-established principles guide this Court’s statutory construction efforts; we begin by consulting the specific statutory language at issue. Provider Creditors Comm v United American Health Care Corp, 275 Mich App 90, 95; 738 NW2d 770 (2007). “This Court gives effect to the Legislature’s intent as expressed in the statute’s terms, giving the words of the statute their plain and ordinary meaning.” McManamon v Redford Charter Twp, 273 Mich App 131, 135; 730 NW2d 757 (2006). “When the language poses no ambiguity, this Court need not look outside the statute, nor construe the statute, but need only enforce the statute as written.” Id. at 136.
The SRCA establishes due dates for the payment of commissions to terminated sales representatives and imposes penalties on principals who intentionally fail to pay commissions by the due dates. MCL 600.2961(4) provides: “All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within 45 days after the date of termination. Commissions that become due after the termination date shall be paid within 45 days after the date on which the commission became due.” MCL 600.2961(2) provides: “The terms of the contract between the principal and sales representative shall determine when a commission becomes due.” MCL 600.2961(3) provides:
If the time when the commission is due cannot be determined by a contract between the principal and sales representative, the past practices between the parties shall control or, if there are no past practices, the custom and usage prevalent in this state for the business that is the subject of the relationship between the parties.
Under MCL 600.2961(5), if a principal fails to pay commissions on time, it is liable to the sales representative for (1) actual damages caused by the failure to pay on time and (2) twice the amount of the commissions due or $100,000, whichever is less, if the principal is found to have intentionally failed to pay the commissions when due. When a sales representative brings an action under the SRCA, the court “shall award to the prevailing party reasonable attorney fees and court costs.” MCL 600.2961(6). Finally, the SRCA provides that “[a] provision in a contract between a principal and a sales representative purporting to waive any right under this section is void.” MCL 600.2961(8).
By its plain language, this prohibition against waiving rights under the SRCA applies only to a contract between a principal and a sales representative. We conclude, therefore, that by its clear intent and import, the SRCA prohibition applies only to waivers contained in sales representation contracts.
In the present case, the release or waiver is contained, not in a sales representation contract, but rather in a settlement agreement. An agreement to settle a pending lawsuit is a contract, governed by the legal rules applicable to the construction and interpretation of other contracts. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). Moreover, by definition, a settlement agreement is a compromise of a disputed claim. Hoffman v Burkhammer, 373 Mich 187, 195; 128 NW2d 503 (1964) (“[T]he April 12 agreement was a compromise settlement of a disputed claim, that is, it was an executory accord.”). Given the discrete differences between a settlement agreement and a sales representation agreement, we conclude that plaintiffs settlement with Noble falls outside the scope of the SRCA.
Since the SRCA does not as a matter of law void the waiver of a claim to penalty damages and attorney fees pursuant to a settlement agreement resolving litigation, we next examine whether the release at issue bars plaintiffs claims under the SRCA. We conclude that it does.
Summary dispositions are reviewed de novo. Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006). A written contract’s interpretation is also reviewed de novo. Coates v Bastian Bros, Inc, 276 Mich App 498, 503; 741 NW2d 539 (2007). The interpretation of a statute is a question of law that is reviewed de novo. Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d 174 (2007).
Michigan courts enforce contracts. Coates, supra at 503-504. We enforce contracts according to their terms, as a corollary to the parties liberty to enter into a contract. Rory v Continental Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005). We examine contractual language and give the words their plain and ordinary meanings. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003). An unambiguous contractual provision reflects the parties intent as a matter of law, and “[i]f the language of the contract is unambiguous, we construe and enforce the contract as written.” Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). Courts may not create ambiguity when contract language is clear. Grosse Pointe Park v Michigan Muni Liability & Prop Pool, 473 Mich 188, 198; 702 NW2d 106 (2005). Rather, this Court must honor the parties’ contract, and not rewrite it. McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008); see also Coates, supra at 511 n 7.
Pursuant to the settlement agreement, plaintiff and Noble resolved by compromise the claims and defenses asserted in the previous litigation. Noble agreed to make commission payments for parts shipped up to May 31, 2005, in exchange for plaintiffs agreement to forgo any other potential claims, including penalty damages for late payments under the SRCA. We conclude that, under the circumstances of this case, the SCRA does not prohibit the compromise agreed to by the parties. Plaintiff could have continued the litigation and may have recovered a judgment in full, but he also could have lost the prior litigation and recovered nothing, on the basis that the shipment of parts at issue was not included within the liabilities that Noble assumed when it succeeded Jebco. A settlement agreement is a binding contract. MacInnes v MacInnes, 260 Mich App 280, 289; 677 NW2d 889 (2004) (judgments entered pursuant to the agreement of the parties are in the nature of a contract rather than a judicial order entered against one party; a settlement agreement is a contract and must be construed and applied as such). Nothing in the settlement agreement provides any penalty for making late payments. Accordingly, the release bars the claims under the SRCA.
Because we hold that the trial court correctly granted summary disposition to defendant, plaintiffs assertion that the trial court erred by denying his motion for summary disposition is moot. In re Duane V Baldwin Trust, 274 Mich App 387, 404; 733 NW2d 419 (2007). Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
Affirmed. | [
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Sharpe, J.
M. Friedberg, of Detroit, entered into a contract on November 11, 1920, to sell to defendant a ladies’ diamond ring for $4,250. Two hundred and fifty dollars was paid in cash, and the balance was to be paid at the rate of $200 or more per month. The ring was delivered to defendant. Only one $200 payment was made. In November, 1921, Friedberg transferred his interest in the contract to Friedberg’s Incorporated, a Michigan corporation. On defendant’s refusal to deliver the ring on demand (it appears that he had pawned it in Chicago), the corporation began suit to recover for its unlawful and fraudulent conversion.
When plaintiff was about to close its proofs, the following occurred:
“Mr. Love joy: I have just been informed by Mr. Friedberg, that since the institution of this suit, he dissolved the Michigan corporation and organized the Friedberg’s Incorporated, a Delaware corporation. I would like to make a suggestion on the record at this time that the suit is brought by the name of Friedberg’s Incorporated, a Delaware corporation.
“Mr. Martin: I object to that.”
After some -discussion:
“Mr. Martin: I am perfectly willing to try this case on its merits.
“The Court: Do you concede?
“Mr. Martin: I want to save my rights.
“The Court: You can’t save your rights, you say you want to try the case but you don’t want to concede to the change of this party’s name. The court has to look out for himself, and I may do it by sending this case back to the clerk because I tell you, gentlemen, this case isn’t in shape and wasn’t in shape to start in this court to be tried.
, “Mr. Martin: Well, I will concede.
“Mr. Love joy: That the Friedberg’s Incorporated, a Michigan corporation, was dissolved on or about July, 1923, and the assets of the Michigan corporation, 'complainant in this suit, were assigned and transferred to the Delaware corporation, which is now the real party in interest in this suit. The record will show that the suit is in the name of the Delaware corporation, as plaintiff, plaintiff is owner of the claim in question.
“Mr. Martin: Defendant concedes to the motion.
“The Court: How will you proceed with this case on record, what is the name of the concern now?
“Mr. Lovejoy: Friedberg’s Incorporated, a Delaware corporation.
“The Court: All right, we will proceed then in the name of the present corporation. There is only one defendant?
“Mr. Martin: Only one defendant.
“The Court: I thank you, gentlemen, that’s the way to do business.” .
The record does not disclose that any other proof was offered, although it is apparent from the charge of the court that additional proof was submitted.
The defendant preferred the following request:
“I charge you that there is no evidence that Fried-berg’s Incorporated, a Delaware corporation, has ever received an assignment of Exhibit 1, from Friedberg’s Incorporated, a Michigan corporation; therefore, your verdict must be for the defendant of no cause for action.”
The jury found for the plaintiff in the sum of $2,205. Defendant reviews the judgment entered on the verdict by writ of error. The only assignment discussed is the refusal to direct a verdict in compliance with the above request. What was said by defendant’s counsel was clearly a concession that the Delaware corporation was the “owner of the claim in question.” The record is barren of even a suggestion on the part of defendant’s counsel that he did not intend to be so understood. He must have known that plaintiff’s counsel relied on such concession as he offered no further proof relating to the assignment. Counsel may, and frequently do, upon the trial stipulate certain facts. Proof is thereby dispensed with. Shaw-Walker Co. v. Fitzsimons, 148 Mich. 626, 629.
The judgment is affirmed.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Cavanagh, J.
Defendant appeals by leave granted his jury trial convictions of one count of deliveiy of over 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), and one count of conspiracy to deliver between 225 grams and 650 grams of cocaine, MCL 333.7401(2)(a)(ü); MSA 14.15(7401)(2) (a)(ii). The trial court imposed the mandatory life sentence for the delivery conviction and twenty to thirty years’ imprisonment for the conspiracy conviction. We affirm in part and remand for further proceedings.
Defendant’s convictions arose out of the sale of approximately 666 grams of cocaine by Brenda Houston to undercover police officer Patrick Codere of the Southwest Enforcement Team on April 30, 1987. At defendant’s trial, Houston testified as part of a plea agreement under which she would avoid the mandatory life sentence for delivery of the cocaine. Houston testified that defendant had supplied her with the drugs and that she had “a business relationship” with defendant whereby any profits made were to be split equally between them. Another witness, Credell Carpenter, also testifying with the benefit of a plea agreement, stated that he saw defendant the day before the delivery with a large quantity of cocaine. After Houston’s arrest, defendant told Carpenter that he had given her a large amount of cocaine to sell.
A jury convicted defendant of one count of delivery of over 650 grams of cocaine and one count of conspiracy to deliver between 225 grams and 650 grams of cocaine on December 18, 1987. This Court affirmed defendant’s convictions and sentences, and defendant’s application for leave to appeal in the Supreme Court was denied.
In his first postappeal motion for relief from judgment under subchapter 6.500 of the Michigan Court Rules, defendant alleged misconduct by the police and the prosecutor in using or failing to correct false testimony by Houston regarding the consideration she received in exchange for her testimony against defendant and other matters affecting her credibility as a witness. Specifically, defendant challenged Houston’s testimony that she had no sentence agreement with the prosecution other than a reduction of the delivery charges against her from delivery of over 650 grams to delivery of between 225 and 650 grams. Defendant presented evidence that the final agreement for Houston’s guilty plea, tendered several weeks after defendant’s trial, also provided her with immunity from prosecution for various acts of insurance fraud. Defendant also challenged the failure of the prosecuting attorney or police officials to correct Houston’s denial, on cross-examination, of any participation in staging a false burglary at her home for which she received insurance money. Previously, Houston had admitted to Detective Donald Smith of the Kalamazoo Police Department that she and her then-boyfriend, Gary Roberts, had been involved in the phony burglary. Her admissions were set forth in a police report that had been available to the prosecutor, but had not been provided to defense counsel, although defense counsel had received a tape recording of most of Houston’s inculpatory statements to the police. Defendant also argued that the jury’s verdicts on the two counts were inconsistent, given the different amounts of cocaine involved.
The trial court ordered an evidentiary hearing regarding defendant’s motion, and the hearing took place on June 8, 1993. Testimony was received from the prosecuting attorney who tried defendant’s case, Mark Courtade, and Houston’s attorney, Earl Dalzell. Courtade testified that the only agreement his office had with Houston at the time of the trial was that she would be charged with the lesser offense of possession with intent to deliver over 225 but less than 650 grams of cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), rather than delivery of over 650 grams of cocaine, which carries a mandatory life sentence. Furthermore, Courtade stated that he had no knowledge of Houston’s involvement with any insur anee frauds until she was cross-examined at trial, and immunity from prosecution for her involvement with such frauds was not offered as part of her plea agreement until after defendant’s trial.* I*** Dalzell’s testimony essentially corroborated Courtade’s testimony in this regard. Defendant also submitted excerpts from the transcript of the trial of Thaddeus Earl Dunning, which occurred shortly before defendant’s own trial, in which the prosecution elicited testimony from Carpenter regarding Houston’s involvement in a number of insurance frauds.
In an opinion and order entered December 22, 1993, the trial court rejected on the merits defendant’s various arguments that he was entitled to relief. Defendant then sought leave to appeal the trial court’s decision in this Court. However, before the matter was submitted to a panel of this Court for decision, defendant retained his present appellate counsel, who subsequently filed a motion to strike the application for leave to appeal. This Court granted defendant’s motion on June 16, 1994.
In February 1995, defendant filed a second motion for relief from judgment pursuant to MCR 6.500 in the trial court. Defendant cited various items of alleged “newly discovered evidence” in support of his perjured-testimony claims, as well as new grounds for relief based on the racial composition of the jury pool. Defendant offered new deposition testimony from Detective Smith and Officer Codere that he contended was relevant to the deal given to Houston in exchange for her testimony. Essentially, these witnesses testified that when Houston was arrested on drug charges, they had information that she was involved in insurance fraud, but the police officer in charge of the case, Lieutenant Charlie McCord, advised them that Houston was not to be charged in connection with her alleged frauds. Defendant also again cited the testimony from the Dunnings trial regarding Houston’s involvement in fraudulent activities as “new evidence” that Houston gave false testimony at defendant’s trial regarding her involvement in insurance frauds. Defendant further argued that Houston had committed perjury when she testified that she had not used marijuana during the previous year in light of the fact that marijuana was discovered when a search warrant was executed at her home in conjunction with her arrest.
In its November 17, 1995, opinion and order, the trial court denied defendant’s second motion for relief from judgment. With regard to defendant’s challenge to Houston’s trial testimony regarding the considera tion she received in exchange for her testimony against defendant, the trial court again found that Houston’s testimony was truthful in this regard, essentially finding the new testimony from Detective Smith and Officer Codere insufficient to rebut the testimony of prosecuting attorney Courtade at the June 8, 1993, evidentiary hearing and other evidence corroborating Houston’s trial testimony. As for defendant’s claims that Houston had falsely testified regarding her involvement in insurance frauds, marijuana use, and other misconduct, the trial court apparently reasoned that defendant was not prejudiced in this regard because any extrinsic evidence of Houston’s involvement in such acts of misconduct would be inadmissible under MRE 608(b). Finally, the trial court rejected defendant’s challenges to the racial composition of his jury pool and the effectiveness of trial counsel and his previous appellate counsel.
Defendant filed a delayed application for leave to appeal the trial court’s decision. On June 12, 1997, this Court granted leave to appeal limited to the second issue raised in the application. That issue was stated by defendant as follows: “Did the court err when it held that since evidence of prior bad acts would not be admissible under MRE 608(b), the prosecutor could withhold evidence and allow their [sic] star witness to commit perjury on the stand?”
As an initial matter, we note that, in his phrasing of the issue, defendant misrepresents the trial court’s holding. The trial court did not hold that the prosecutor could allow Houston to commit perjury on the stand or that the prosecutor could withhold evidence. Rather, the trial court found that Houston testified truthfully about the scope of her agreement with the prosecutor at the time of defendant’s trial. With regard to defendant’s other allegations, the trial court did not make a specific finding regarding whether the prosecutor improperly allowed Houston to commit perjury or withheld evidence. The trial court simply concluded that any error was harmless because defendant’s new evidence was related to collateral matters and, pursuant to MRE 608(b), defendant would not have been able to impeach Houston -with extrinsic evidence. Therefore, keeping in mind the actual scope of the trial court’s ruling, we now address defendant’s allegations of error.
This Court reviews a trial court’s postconviction ruling granting or denying a new trial based on newly discovered evidence for an abuse of discretion. People v Bradshaw, 165 Mich App 562, 566-567; 419 NW2d 33 (1988). A motion for a new trial based on newly discovered evidence may be granted upon a showing that (1) the evidence itself, not merely its materiality, is newly discovered, (2) the evidence is not merely cumulative, (3) the evidence is such as to render a different result probable on retrial, and (4) the defendant could not with reasonable diligence have produced it at trial. People v Canter, 197 Mich App 550, 559; 496 NW2d 336 (1992). We review the trial court’s findings of fact for clear error. People v Williams, 228 Mich App 546, 557; 580 NW2d 438 (1998). Whether a prosecutor may allow a witness to commit perjury or withhold evidence that would tend to contravene its witness, where such evidence would be inadmissible under MRE 608(b), is a question of law. This Court reviews questions of law de novo. People v Tracey, 221 Mich App 321, 323-324; 561 NW2d 133 (1997).
i
We first address defendant’s claim that newly discovered evidence establishes that Houston testified falsely regarding her agreement with the prosecutor. After reviewing the record, we conclude that the trial court did not clearly err in finding that relief from fraud charges was not part of Houston’s agreement with the prosecutor at the time of defendant’s trial.
Contrary to defendant’s argument, the trial court did not “ignore” the new testimony from Detective Smith and Officer Codere regarding their understanding that the prosecution had already decided not to charge Houston in connection with the insurance frauds investigated before defendant’s trial. Rather, the trial court essentially found that this testimony was insufficient to rebut the previous testimony from Houston’s attorney and prosecuting attorney Courtade himself at the June 8, 1993, evidentiary hearing. The trial court’s conclusion is not clearly erroneous; the new testimony from Detective Smith and Officer Codere is largely based upon assumption, conjecture, and second-hand information, whereas the contrary evidence cited by the trial court involved first-hand knowledge.
n
Defendant also asserts that the trial court erred in finding that his newly discovered evidence was inadmissible under MRE 608(b). We disagree. MRE 608(b) states:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Defendant argues that the question of a witness’ bias is never a collateral matter, and accordingly, evidence of bias cannot be excluded under MRE 608(b). As defendant notes, evidence of a witness’ bias or interest in a case is highly relevant to her credibility. See People v Coleman, 210 Mich App 1, 8; 532 NW2d 885 (1995). However, defendant fails to explain how the evidence allegedly withheld from him demonstrates bias on the part of Houston and Carpenter. Defendant claims bias from Houston’s and Carpenter’s participation in frauds that they did not admit when testifying against defendant, but, other than the failed argument that Houston testified in part to avoid fraud charges, defendant does not explain why the witnesses’ participation in various frauds should cause them to be biased against him. Defendant does not assert that Carpenter understated the extent of his agreement with the prosecution. Defendant also alludes to Houston’s alleged drug consumption, but he makes no effort to illustrate how evidence that Houston may have used drugs establishes that she was biased against him. Accordingly, we reject defendant’s contention that the evidence was admissible to show bias on the part of the witnesses.
Defendant also argues that the trial court erred because the new evidence is relevant not to character evidence that would be inadmissible under MRE 608(b), but rather to direct contradiction of prosecution witnesses’ statements. In support of this argument, defendant relies on People v Vasher, 449 Mich 494; 537 NW2d 168 (1995), and Wischmeyer v Schanz, 449 Mich 469; 536 NW2d 760 (1995). We conclude, however, that neither case supports defendant’s claim.
In Vasher, the Supreme Court held that, under MRE 404(a)(1), the prosecution may introduce evidence to rebut a defendant’s specific statement regarding a matter germane to the question of guilt or innocence. Vasher, supra at 504. Thus, Vasher addresses MRE 404(a)(1), which concerns evidence to rebut a defendant’s assertion of good character, not MRE 608(b), which concerns evidence of specific conduct for pur poses of attacking a witness’ general credibility. The Court reiterated in Vasher that a party may introduce extrinsic evidence to contradict an adversary’s answers on cross-examination regarding matters germane to the trial, but generally a party may not introduce extrinsic evidence to contradict a witness regarding collateral, irrelevant, or immaterial matters. See id. Furthermore, Vasher concerned the rebuttal of the defendant’s testimony on a point closely tied in with the question of guilt or innocence, whereas in the instant case the controversy concerns prosecution witnesses’ conduct that is unrelated to defendant and the crimes with which he was charged.
Wischmeyer, a medical malpractice action, likewise does not support defendant’s contention that evidence regarding Houston’s prior acts was admissible to impeach her testimony. In Wischmeyer, the trial court allowed the defendant to cross-examine the plaintiff’s expert regarding unsuccessful surgeries that he had performed. The Supreme Court held that the cross-examination was permissible because the surgeries were relevant to the expert’s competency. Moreover, the defendant was required to settle for whatever answer the expert gave because the trial court had not allowed the expert to be impeached on any extrinsic matters. See Wischmeyer, supra at 477-478.
Applying Wischmeyer to the instant case, we conclude that MRE 608(b) barred the admission of the new evidence advanced by defendant. On cross-examination of Houston, defense counsel inquired into specific instances of prior bad acts, which Houston denied. Pursuant to MRE 608(b), defendant was required to accept Houston’s responses without recourse to extrinsic impeachment evidence. In other words, as the trial court in Wischmeyer put it, defendant was “stuck with” Houston’s answers. See Wischmeyer, supra at 478.
m
Defendant asserts that he is entitled to a new trial because the prosecutor allowed Houston to perjure herself. Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. California v Trombetta, 467 US 479, 485; 104 S Ct 2528; 81 L Ed 2d 413 (1984). Prosecutors therefore have a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Id.; Napue v Illinois, 360 US 264, 269-272; 79 S Ct 1173; 3 L Ed 2d 1217 (1959); see also Mooney v Holohan, 294 US 103, 112; 55 S Ct 340; 79 L Ed 791 (1935).
Michigan courts have also recognized that the prosecutor may not knowingly use false testimony to obtain a conviction, People v Wiese, 425 Mich 448, 455; 389 NW2d 866 (1986), and that a prosecutor has a duty to correct false evidence, People v Woods, 416 Mich 581, 601; 331 NW2d 707 (1982), cert den sub nom Michigan v Alexander, 462 US 1134; 103 S Ct 3116; 77 L Ed 2d 1370 (1983); People v Thomas, 49 Mich App 682, 693; 212 NW2d 728 (1973). As this Court has explained,
[t]he prosecutor’s duty to prevent lies from entering the evidence in the guise of truth stems not from any particular role in the adversary process; rather, it is derived from the prosecution’s duty to represent the public interest, and to place the pursuit of truth and justice above the pursuit of conviction. [People v Cassell, 63 Mich App 226, 229; 234 NW2d 460 (1975).]
In Napue, supra, the United States Supreme Court expanded the prosecutorial duty to correct perjured testimony to include perjured testimony that related to the witness’ credibility and not just the facts of the case. Napue, supra at 269. The Court explained, “The jury’s estimation of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence . ...” Id.
The trial court determined that defendant was not prejudiced by the alleged false testimony because, pursuant to MRE 608(b), defendant could not have contradicted the testimony with extrinsic evidence. We conclude that the trial court erred. A prosecutor has a duty to correct his witness’ false testimony, without regard to whether evidence to rebut the witness would be admissible for impeachment under MRE 608(b). See Trombetta, supra; Woods, supra; Thomas, supra. We therefore consider each of defendant’s allegations that the prosecutor allowed false testimony to pass uncorrected.
Defendant first claims that the prosecutor permitted Houston to perjure herself by testifying that she had not smoked marijuana for more than a year. In support of this assertion, defendant points to the fact that the police found marijuana when they executed a search warrant at her house. However, the mere presence of mariguana in Houston’s residence, which she shared with her boyfriend, does not conclusively establish that Houston lied when she testified that she had abstained from marijuana for over a year. Assuming that the prosecution knew when Houston testified that marijuana had been found at her residence, that knowledge did not sufficiently establish that Houston was lying so as to trigger the prosecution’s duty to correct Houston’s statement.
Defendant next asserts that the prosecution allowed Houston to testify falsely about her participation in various insurance frauds. Defendant relies in part on Carpenter’s testimony in the Dunning case, in which Carpenter stated that he had participated in traveler’s check frauds with Houston on several occasions, and he knew that she had been involved in other frauds. However, assuming that the prosecutor was or should have been aware of the discrepancy, defendant cites no authority for the proposition that the prosecution must disbelieve its own witness when testimony from another witness contradicts her. Cf. United States v Lopez, 985 F2d 520, 524 (CA 11, 1993) (stating that knowledge of the falsity of testimony is not imputed to the prosecutor when a key government witness’ testimony is in conflict with another’s statement).
Defendant also cites the fact that Detective Smith testified at a posttrial deposition in an unrelated case that Houston had admitted to him that she took part in an insurance fraud involving a faked breaking and entering. In its decision of December 22, 1993, the trial court appears to have concluded that defendant was not prejudiced by Houston’s false testimony because defendant already had possession of a tape recording of Houston’s admission of involvement in the staged burglary. However, the prosecutor’s constitutional duty to report to the court whenever government witnesses lie under oath is not vitiated when defense counsel is or should be aware that the testimony is false and does nothing. The prosecutor has a duty to correct the false testimony of a state witness, which arises when the false testimony appears. Wiese, supra at 455.
In the present case, the prosecutor testified that he was unaware of Houston’s participation in any insurance frauds until she was cross-examined at trial. However, Codere and McCord were apparently aware of Houston’s involvement in at least one insurance fraud, and knowledge of facts that are known to the prosecutor’s chief investigative officer must be imputed to the prosecutor. Cassell, supra at 228-229; see Kyles v Whitley, 514 US 419, 437; 115 S Ct 1555; 131 L Ed 2d 490 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”). Accordingly, we remand this case to the trial court for a determination whether the prosecutor knew, or can be deemed to have known, that Houston committed perjury when she testified that she had not taken part in various insurance frauds. If, on remand, the trial court finds that the prosecutor was aware that Houston lied when she denied participation in insurance frauds, the prosecutor’s failure to correct false testimony does not automatically require reversal. A new trial is required only if the false testimony could in any reasonable likelihood have affected the judgment of the jury. Wiese, supra at 454.
IV
Defendant also contends that, despite his request for discovery, the prosecutor withheld the following information: (1) the police found marijuana in Houston’s house when they executed a search warrant; (2) Houston had participated in a number of insurance frauds; (3) Houston stole drugs from the hospital where she worked; (4) Houston was to receive immu nity from fraud charges, and (5) Carpenter had been involved in many insurance frauds, some with Houston. Defendant asserts that the prosecutor’s failure to disclose this information constitutes error requiring reversal.
A criminal defendant has a due process right of access to certain information possessed by the prosecution. Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). This due process requirement of disclosure applies to evidence that might lead a jury to entertain a reasonable doubt about a defendant’s guilt. Giglio v United States, 405 US 150, 154; 92 S Ct 763; 31 L Ed 2d 104 (1972). Impeachment evidence as well as exculpatory evidence falls within the Brady rule because, if disclosed and used effectively, such evidence “may make the difference between conviction and acquittal.” United States v Bagley, 473 US 667, 676; 105 S Ct 3375; 87 L Ed 2d 481 (1985).
Due process does not require the prosecutor to allow complete discovery of his files as a matter of practice. United States v Agurs, 427 US 97, 109; 96 S Ct 2392; 49 L Ed 2d 342 (1976). However, the prosecutor is under a duty to disclose any information that would materially affect the credibility of his witnesses. United States v Smith, 316 US App DC 199, 202; 77 F3d 511 (1996); People v Murray, 54 Mich App 723; 221 NW2d 468 (1974).
In order to establish a Brady violation, a defendant must prove: (1) that the state possessed evidence favorable to the defendant; (2) that he did not possess the evidence nor could he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4)
that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. United States v Meros, 866 F2d 1304, 1308 (CA 11, 1989), cert den 493 US 932; 110 S Ct 322; 107 L Ed 2d 312 (1989).
The failure to disclose impeachment evidence does not require automatic reversal, even where, as in the present situation, the prosecution’s case depends largely on the credibility of a particular witness. Bagley, supra at 676-677; Giglio, supra at 154. The court still must find the evidence material. Id.) United States v Trujillo, 136 F3d 1388, 1393 (CA 10, 1998), cert den_US _; 119 S Ct 87; 142 L Ed 2d 69 (1998). Undisclosed evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, supra at 682; People v Fink, 456 Mich 449, 454; 574 NW2d 28 (1998). A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Bagley, supra. Accordingly, undisclosed evidence will be deemed material only if it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, supra at 435. In determining the materiality of undisclosed information, a reviewing court may consider any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case. Bagley, supra at 683.
In general, impeachment evidence has been found to be material where the witness at issue supplied the only evidence linking the defendant to the crime or where the likely effect on the witness’ credibility would have undermined a critical element of the prosecutor’s case. In contrast, a new trial is generally not required where the testimony of the witness is corroborated by other testimony or where the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable. United States v Payne, 63 F3d 1200, 1210 (CA 2, 1995), cert den 516 US 1165; 116 S Ct 1056; 134 L Ed 2d 201 (1996).
In the present case, the prosecutor denies that any evidence was withheld from defendant. Because the trial court concluded that any error was harmless because the evidence was related to collateral matters, it did not address whether the prosecutor improperly withheld evidence. We therefore remand for a determination whether the prosecutor withheld from defendant evidence regarding the credibility of his witnesses and, if so, whether that evidence was material.
Affirmed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
The Legislature has recently enacted 1998 PA 314, which provides that a prisoner sentenced for a violation of MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i) before October 1, 1992, who has served twenty years of his sentence, may be released on parole by the Parole Board.
People v Lester, unpublished opinion per curiam of the Court of Appeals, issued October 5, 1990 (Docket No. 112954).
440 Mich 910 (1992).
At defendant’s trial, Houston testified that she had collected insurance money after the burglary occurred at her house, then found out months later that Roberts had faked the burglary. Houston further testified that, two years before trial, Carpenter had secreted her luggage away upon her return from a trip to New York and induced her to report it as stolen, resulting in her receiving a $600 or $700 insurance settlement. Houston explained that she had not initially known that Carpenter had taken the luggage. In addition, defense counsel elicited from Houston that she had collected an insurance settlement after she had reported being raped in a motel. From the insurance proceeds, Houston paid Carpenter approximately $19,000. Houston stated that the rape really happened and implied that she paid Carpenter so that he could achieve some kind of extralegal remedy for her.
Courtade testified that when, after defendant’s trial, Dalzell was attempting to obtain a plea agreement for Houston,
I told him I was not going to negotiate. She had to plead guilty to the charge that we brought. She had to go to prison for twenty years and, at that point, he said well, how about throwing in the
misdemeanors. I said fine.
In fact, at that time, I wasn’t even thinking that there was [sic] any misdemeanors, because we had no jurisdiction over the allega-
tions of theft of luggage in Chicago; we had no jurisdiction over the allegations of fake rapes in Kent County.
The only thing we had was potentially the Roberts breaking and entering, false police report, which he had apparently been charged with. So when you have a 90-day concurrent misdemeanor, my thoughts were why fight it; she’s going for twenty years.
Dalzell testified that he had not known of any possible fraud charges against Houston until after she testified at defendant’s trial. When Houston subsequently reached a plea agreement with the prosecutor’s office, Dalzell made sure that the agreement included immunity from prosecution for any frauds that had occurred in Kalamazoo County.
Smith’s deposition contains the following passage:
Q. Okay. Now, do you know — when Lieutenant McCord said he contacted somebody in the prosecutor’s office, do you know who he contacted?
A. No, I don’t.
Q. And you say he had been authorized to give her [Houston] a deal. Did that mean he had been authorized to drop these charges or not press these charges, as far as the fraud stuff, as long as she cooperated on the drug stuff?
A. Right. I’m sure that that would have to be part of it, because at this time point in time [sic], she’s involved in a light [sic — life] felony. So to say, Well, we’re going to throw the light [sic — life] felony out but charge you with a nickel and dime larceny wouldn’t make a whole lot of sense.
Codere testified that he was aware of allegations of fraud against Houston, but he was not present at any of the plea negotiations in her case.
In Vasher, the defendant was charged with three counts of first-degree criminal sexual conduct, where the three victims were four years old or younger. The defendant introduced evidence that he had a loving, grandfatherly relationship with the victims and therefore would never harm them. The defendant denied that he had said that young girls should be initiated into sex by their own family members. On rebuttal, the prosecutor called a witness who testified that the defendant had told her that it used to be common for family members to introduce young girls to sexual intercourse. The Supreme Court noted that, as a general rule, a witness may not be contradicted regarding collateral, irrelevant, or immaterial matters. However, the Court held that the rebuttal testimony was proper because it was narrowly focused on refuting the defendant’s denial that he had said that he believed that it was acceptable for family members to initiate young girls into sexual activity. The Court explained, “Because this was a matter so closely bearing on defendant’s guilt or innocence, it was not error for the prosecutor to have impeached defendant.” Vasher, supra at 504.
See note 4.
Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), does not require prosecutors to search their unrelated files to exclude the possibility, however remote, that they contain exculpatory information. United States v Joseph, 996 F2d 36, 41 (CA 3, 1993), cert den 510 US 937; 114 S Ct 357; 126 L Ed 2d 321 (1993); United States v Brooks, 296 US App DC 219, 223; 966 F2d 1500 (1992).
In the absence of the prosecutor’s knowing use of perjury, a new trial is warranted only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. United States v Endicott, 869 F2d 452, 455 (CA 9, 1989). | [
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Markman, J.
In Docket No. 194301 of these consoli-
dated appeals, the prosecutor appeals as of right an order dismissing charges against defendant of open murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b; MSA 28.424(2). We reverse and remand for reinstatement of the charges. In Docket No. 194362, defendant appeals as of right his convictions of four counts of perjury committed in court, MCL 750.422; MSA 28.664, and resulting concurrent sentences of ten to fifteen years’ imprisonment. We affirm.
i
Sometime during Sunday night, December 19, 1982, or early Monday morning, December 20, 1982, Nolan Fritz died in his home in Montmorency County. Fritz’ body was discovered on December 21, 1982. The cause of death was determined to be multiple gunshots to the head by a .32 caliber gun. Defendant and Tom Fleck were suspected of being involved in the shooting, with Fleck being the suspected shooter. A Montmorency County circuit court judge directed that an inquiry (also known as a one-man grand jury) be made into the shooting, MCL 767.3; MSA 28.943, and defendant, but not Fleck, was summoned to testify as a witness. On January 26, 1983, defendant appeared before the judge and answered several preliminary questions before defendant’s counsel asserted defendant’s constitutional right against self-incrimination. The prosecutor moved in writing for an order granting defendant immunity and the judge entered an order to this effect. MCL 767.6; MSA 28.946.
Defendant then testified that on the night of December 19, 1982, he was not with Fleck, but rather he was playing cards at the home of John Knight beginning at approximately 6:00 P.M. Defendant testified that present at Knight’s home was defendant’s wife, Knight, Knight’s wife and children, and several neighbors. Defendant testified that he and his wife left the Knight residence after 1:00 A.M. and went home. Defendant testified that shortly thereafter he left home, went to a grocery store, bought beer, and then went to Fleck’s home at approximately 2:00 A.M. Defendant testified that he and Fleck then drove to a number of locations, including stores, bars, restau rants, and houses, finally ending up at a bar in Rogers City at 8:00 A.M.
Defendant testified that he had known Fritz for approximately ten years and that he had delivered wood to Fritz. Defendant testified that he was not at Fritz’ home on either the night of December 19, 1982, or the morning of December 20, 1982. Defendant denied being given a gun by Walter Crenshaw. Defendant also denied that he had owned a .32 caliber gun “on that particular day” or that he gave a .32 caliber gun to Fleck.
After the inquiry, the shooting remained unsolved. In July 1984, defendant moved from Michigan to South Carolina with his family. In approximately 1992, a Michigan State Police officer began reviewing the case. This officer subsequently contacted Fleck, who in 1994 finally implicated himself and defendant in the shooting. In August 1994, complaints were filed accusing defendant of open murder and felony-firearm and, in a separate case, of perjury committed in court. Warrants were issued for defendant’s arrest, and he was finally returned to Michigan between late 1994 and early 1995.
Defendant moved to dismiss the murder and felony-firearm charges on the ground of immunity. The prosecutor responded that the immunity order was void or voidable if defendant either perjured himself or did not provide incriminating answers during the inquiry. The trial court determined that resolution of the immunity issue was premature because the perjury issue needed to be addressed first. The court therefore ordered that defendant’s perjury case be tried first.
Fleck was a primary witness against defendant at defendant’s January 1996 perjury trial. Following is a summary, in relevant part, of Fleck’s testimony. On December 19, 1982, defendant came over to Fleck’s house between 5:00 P.M. and 7:00 p.m. The two of them visited and drank beer. Neither of them had any money, but defendant told Fleck that he, defendant, knew where they could get money to buy more beer because he had borrowed money at this place before. Defendant and Fleck left Fleck’s house between 11:00 P.M. and 1:00 A.M. and defendant drove the two of them to an elderly man’s house. Upon entering the house, Fleck immediately proceeded to the restroom. Fleck was in the restroom approximately two or three minutes and during this time he heard “two bangs.” Upon leaving the restroom, Fleck observed defendant pointing a gun in Fleck’s direction. The gun was an old, small, chrome-plated revolver. Fleck also observed the elderly man slumped in a chair, apparently dead. Defendant handed the gun to Fleck and told Fleck to shoot the elderly man, and Fleck did so. Defendant and Fleck then drove away from the elderly man’s house and went to a number of locations, including stores, bars, restaurants, and houses. During this time, Fleck became aware that defendant had taken a wallet containing approximately $60 from the victim’s house. They bought beer and food and burned the wallet alongside a road. Within a week or two after the shooting, Fleck observed defendant throw the gun from a bridge into a river.
In addition, Walter Crenshaw’s wife testified at trial that sometime before the Fritz homicide she observed her husband either sell or give defendant a small, possibly silver-plated, rusty, old handgun. She testified that she did not know much about guns and that she did not actually touch this particular gun, but that she recalled that this gun did not look like it had a cylinder and that it was not a revolver. Another witness testified, after his recollection was refreshed, that before the Fritz homicide, defendant displayed to him a small pistol that he described as a “thirty-two.”
Defendant was convicted of four counts of perjury committed in court for testifying falsely at the judicial inquiry about (1) his whereabouts on December 19 or 20, 1982, (2) his companions on December 19, 1982 “and/or” December 20, 1982, (3) his ownership or transfer of a .32 caliber gun, and (4) his receipt of a gun from Walter Crenshaw.
Defendant thereafter renewed his motion to dismiss the charges of murder and felony-firearm on the ground of immunity. The trial court granted this motion. It found that defendant had been granted absolute transactional immunity that could not be voided by perjured testimony. Although describing this result as a “travesty,” the court noted that the only “remedy” available in such a case was a charge of perjury.
n
We first turn to the prosecutor’s appeal of the dismissal of the charges of murder and felony-firearm in Docket No. 194301. The issue we address here is simply whether testimony must be truthful in order to qualify for immunity from prosecution, i.e., whether a statutory requirement that one “answer” questions in a legal proceeding be construed as requiring that one answer such questions truthfully. In this case, defend ant was granted immunity for his testimony at a one-man grand jury investigation pursuant to MCL 767.6; MSA 28.946, part of the Code of Criminal Procedure. The purpose of this act, as indicated by the title of the act as first enacted in 1917 PA 196, is “to authorize proceedings for the discovery of crime, and to provide penalties for a violation of such procedure.” People v Birch, 329 Mich 38, 45; 44 NW2d 859 (1950). MCL 767.6; MSA 28.946 provides in relevant part as follows:
No witness shall upon such inquiry be required to answer any questions, or shall be convicted for contempt upon refusal to do so, when the answers might tend to incriminate him. A written order granting to such witness immunity from such incrimination may be entered by said judge pursuant to a written motion by the prosecuting attorney . . . , which order shall set forth verbatim the questions which such witness refused to answer. ... No person required to answer such questions shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him. [Emphasis added.]
The prosecutor contends that by perjuring himself at the inquiry, defendant forfeited his immunity from prosecution.
A fundamental right of a witness who fears that his testimony may incriminate him in a proceeding of any kind for which an oath is legally required, MCL 750.423; MSA 28.665, is the Fifth Amendment privi lege against compulsory self-incrimination. US Const, Am V. A witness may invoke this exception to the government’s power to compel testimony in a criminal, civil, administrative, or legislative proceeding and choose to remain silent. Kastigar v United States, 406 US 441, 444-445; 92 S Ct 1653; 32 L Ed 2d 212 (1972); People v Cheatham, 453 Mich 1, 10, n 12; 551 NW2d 355 (1996). However, in order to facilitate the effective prosecution of crime, the practice of witness “immunity” has been developed as an accommodation between the government’s power to compel testimony and the individual’s right to avoid compulsory self-incrimination. Kastigar, supra at 446. “[I]n return for his surrender of his fifth amendment right to remain silent. . . , the witness is promised that he will not be prosecuted based on the inculpatory evidence he gives in exchange.” United States v Tramunti, 500 F2d 1334, 1342 (CA 2, 1974); Carchidi v State, 187 Wis 438, 441-443; 204 NW 473 (1925). Thus the procedure is essentially “ ‘based on the theory of quid pro quo.’ ” State v Smith, 12 Wash App 514, 519; 530 P2d 354 (1974) (citation omitted). The witness provides otherwise unavailable information, usually, although not necessarily, about a criminal episode, in exchange for immunity from prosecution.
In the instant case, immunity was imposed on defendant pursuant to MCL 767.6; MSA 28.946. After defendant claimed his Fifth Amendment privilege against compulsory self-incrimination, the prosecutor informed defendant and the court that the state would grant complete immunity in return for defendant’s testimony. Defendant’s attorney then informed the court that, according to the procedures mandated by the statute, the “grant of immunity has to be pur suant to written motion of the Prosecutor and the Judge has to enter an order granting the witness immunity.” Thereafter, the prosecutor prepared a written motion seeking defendant’s complete, or “transactional” immunity, which the trial court granted. However, the one-sentence motion was clearly designed only to minimally satisfy the requirement of the statute. There were no additional conditions or terms specified.
Indeed, the prosecutor’s motion was so peremptory that the statutory prerequisites for immunity were not referenced in the motion. The prosecutor moved for a grant of immunity, for example, without even specifying that defendant was first required to testify in order to qualify for immunity under the statute. However, because the motion was merely a procedural precondition mandated by the statute, and conferred only those benefits inherent within the statute in accordance with any conditions implicit within the statute, the lack of detailed language in the motion concerning the terms of the immunity is of little legal consequence. Although we recognize that a prosecutor and a witness might agree to supplement the basic statutory immunity with additional provisions and conditions, People v Reagan, 395 Mich 306, 318; 235 NW2d 581 (1975), in this case we are not faced with that situation, but are referred back to the statute, because the circumstances indicate clearly that immunity was granted only pursuant to MCL 767.6; MSA 28.946. Thus, we must examine the statute to determine the effect of defendant’s false testimony on such immunity.
Statutory interpretation is a question of law that this Court reviews de novo. People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent and purpose of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994); People v Gilbert, 414 Mich 191, 200; 324 NW2d 834 (1982). If statutory language is clear, it must be enforced as it is written, but if it is susceptible to more than one interpretation, we must determine what the Legislature meant by the language. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). “When the meaning of statutory language is questioned, a reasonable construction must be given by looking to the purpose subserved thereby, and the meaning must be derived from the statutory context within which the language is used.” People v Parsons, 142 Mich App 751, 756; 371 NW2d 440 (1985) (citations omitted). “Indeed, ‘provisions of a statute must be construed in light of the other provisions of the statute, in such a manner as to carry out the apparent purpose of the Legislature.’ Workman v DAIIE, 404 Mich 477, 507; 274 NW2d 373 (1979).” Dagenhardt v Special Machine & Engineering, Inc, 418 Mich 520, 529; 345 NW2d 164 (1984). This Court and the Supreme Court have refused to construe statutory language in an isolated or noncontextual manner, see id. at 529-530; Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 357; 564 NW2d 519 (1997), especially where such construction would render “any statutory language surplusage, nugatory, absurd, or illogical,” id. at 355. Indeed, MCL 760.2; MSA 28.842 explicitly provides that the Code of Criminal Procedure of Michigan, including MCL 767.6; MSA 28.946, is to be “liberally construed to effectuate the intents and purposes thereof.”
One who claims statutory immunity from prosecution must come within the terms of the statute. Smith, supra at 517. This includes both those terms that are express in the statute and those that are necessarily implied from the purpose and context of the statute. In the statute at issue, there is no explicit language relating to truthful testimony in exchange for immunity; there is no express requirement that the immunized individual “answer” questions truthfully. However, contrary to the view of our dissenting colleague, this is not the end of the inquiry, in our judgment. In this case, we believe that we should not simply infer from the absence of an explicit requirement of truthful testimony, without further examination of the statute, that the Legislature intended to extend transactional immunity to witnesses who testify falsely. The consequence of providing untruthful testimony, and, therefore, of failing to comply with the inherent prerequisites of the statute, is an indispensable part of the subject matter of the instant statute. In our judgment, the Legislature could not intelligently or rationally deal with immunity and compelled testimony without considering the consequences of a suspect’s failing to truthfully provide such compelled testimony. We will not simply infer an illogical meaning from statutory language where further inquiry into the context of the language may yield a more logical and reasonable result, as intended by the Legislature. Wyandotte Savings Bank v State Banking Comm’r, 347 Mich 33, 45; 78 NW2d 612 (1956). Words can be fully understood only when viewed in context; thus, the statutory requirement that a witness “answer” questions must be taken out of isolation to determine its meaning in this context. Consequently, here we must consider the purpose, the text, and the context of the immunity statute to determine whether a requirement of truthfulness advances these considerations and, correspondingly, whether false testimony thwarts them. As Justice Cooley has remarked, it is “a very proper rule of construction that the whole is to be examined with a view to arriving at the true intention of each part.” Cooley, Constitutional Limitations (7th ed, 1903), p 91.
We begin by noting that the statute in this case confers full “transactional” immunity, or “ ‘immunity from prosecutions for offenses to which compelled testimony relates.’ ” People v Patterson, 58 Mich App 727, 730; 228 NW2d 804 (1975), quoting Kastigar, supra at 443; In re Colacasides, 379 Mich 69, 84; 150 NW2d 1 (1967); see also Paramount Pictures Corp v Miskinis, 418 Mich 708, 737, n 11; 344 NW2d 788 (1984) (Levin, J., with Kavanagh and Cavanagh, JJ., concurring); MCL 767.6; MSA 28.946. This grant of “transactional” immunity is broader than the “use” or “derivative use” immunity that was held, long after the original enactment of this statute, to be coextensive with the Fifth Amendment privilege, and thus constitutionally required, where a witness is compelled to testify after invoking the privilege. Kastigar, supra at 453; People v Safiedine, 152 Mich App 208, 213, n 2; 394 NW2d 22 (1986); Patterson, supra at 731, n 1. “Use” and “derivative use” immunity protects a witness only from the “ ‘use of compelled testimony and evidence derived therefrom,’ ” id. at 730, quoting Kastigar, supra at 443, but the witness may still be prosecuted for a crime in which he was involved and to which his immunized testimony relates. Therefore, the Michigan Legislature has apparently granted more extensive immunity than is constitutionally required to those who are compelled to testify pursuant to MCL 767.6; MSA 28.946.
Accordingly, while keeping in mind that full “transactional” immunity is not constitutionally required, we address the immunity statute at hand. First, given that the objective of the instant statute is to assist in the “discovery of crime,” not to grant amnesty, a necessary component of the induced testimony is that it be truthful, so that it may — in fact or at least potentially — assist in the discovery of crime. If the witness is allowed to give false information without consequence, i.e., without adversely affecting his “transactional” immunity, not only are law enforcement officers not assisted in their responsibilities to investigate and prosecute crime, but they may be affirmatively hindered or obstructed in this regard by the testimony, as occurred in the case at hand. Here, after defendant testified that he knew nothing about the murder of Fritz, prosecutors and the police apparently discontinued their investigation, and no one was charged in the case for over ten years. Allowing a witness to testify falsely and still receive complete immunity would utterly defeat the purpose of this statute. As a result, we believe that viewing MCL 767.6; MSA 28.946 in the context of its explicit legislative purpose of assisting in the “discovery of crime” suggests strongly that an “answer” presupposes a truthful answer. Simply put, there is no reason to enact an immunity statute if it cannot compel testimony that is helpful, i.e., truthful, in discovering crime.
Second, the premise underlying immunity is that, while all witnesses are obligated to testify truthfully, those witnesses whose testimony would potentially expose them to criminal charges will be strongly inclined either to testify falsely or to not testify at all. However, once such a witness is placed in a position where he no longer has a basis for fearing criminal charges arising from his testimony, he is effectively situated in a position identical to any other witness— he is obligated to testify truthfully. This obligation extends, without exception, to all witnesses. The Fifth Amendment does not permit a witness to avoid giving testimony he would simply prefer to withhold. Roberts v United States, 445 US 552; 100 S Ct 1358; 63 L Ed 2d 622 (1980). And, in asserting the privilege against self-incrimination, the focus is on the consequences that a truthful answer might disclose. Zicarelli v New Jersey State Comm of Investigation, 406 US 472; 92 S Ct 1670; 32 L Ed 2d 234 (1972). Absent the presumption that witnesses will testify truthfully, the foundational pillar of our criminal justice system is necessarily undermined. This idea is so basic, in our judgment, that the very understanding of providing an “answer” to a question posed at a legal proceeding must presume a truthful answer. Indeed, one of the prerequisites of providing testimony, immunized or otherwise, is taking an oath or affirmation to tell the truth; defendant, in fact, was under oath when he testified falsely regarding material facts of his involvement in the murder. Certainly the Legislature was aware of the age-old requirement that witnesses take an oath to testify truthfully, and it presumably expected that witnesses seeking to avail themselves of the statute would be required to comply with this oath. In view of its altogether reasonable expectations in this regard, we do not believe that the Legislature would have allowed a witness to wholly avoid prosecution for a crime by dint of committing another crime, perjury.
Third, the practice of immunity is “ ‘based on the theory of quid pro quo.’ ” Smith, supra at 519 (citation omitted). The state exchanges immunity from prosecution for testimony that will help to identify and possibly bring before the bar of justice others involved in criminal activity. Immunity can be granted only where a witness, fearing that his statements will incriminate him in criminal activity, invokes his Fifth Amendment right not to testify. Therefore, in seeking an order granting transactional immunity, a prosecutor must exercise a difficult option, forgoing prosecution of a suspected criminal in order to obtain otherwise unavailable information about a crime and the other criminals involved therein. Forgoing prosecution for one crime or criminal may be justified where the information obtained assists in solving and prosecuting another, usually more serious, crime that might otherwise evade sanction. However, where the testimony is false, the state is deprived of that which it was entitled to receive in exchange for its grant of immunity. If the state were to be held to this “deal,” the witness would gain amnesty from prosecution while the state would sacrifice not only its ability to prosecute the witness for his part in the crime, but also its power to compel the witness’ testimony and learn more about a criminal episode. This would enforce a bargain, an altogether illusory bargain, in which one party, the prosecutor, in exchange for something of great value — the nonprosecution of a criminal wrongdoer — receives nothing of benefits in return. We do not believe that the Legislature intended to warrant such an expensive sacrifice on the part of “the People” without demanding receipt of something of roughly equivalent value in exchange. Nor do we believe that the Legislature intended to confer such an unintended windfall upon a lawbreaker who, besides committing the crime for which immunity was proffered, perpetrated perjury to conceal the full extent of his wrongdoing.
On the basis of these three factors, we conclude that the immunity agreement is void and that defendant is not entitled to claim the benefits of the grant of full “transactional” immunity under MCL 767.6; MSA 28.946. Holding the state to the grant of immunity in the face of materially false testimony would thwart the purpose of the immunity statute, undermine its reasonably implied condition of truthfulness, and render illusory a bargain struck between the prosecutor and a criminal witness regarding a matter of the highest importance to the security and tranquillity of “the People.” In our judgment, therefore, a requirement of truthful testimony is compelled by the language of this statute when viewed in its obvious context. Contrary to the suggestions of the dissent, we are not engaged here in resolving an “ambiguity” in statutory language. Instead, we have sought to give reasonable meaning to the statutory requirement that a witness “answer” questions before a grand jury in exchange for immunity. On the basis of our analysis, we conclude that reference to a witness’ obligation to provide an “answer,” in exchange for immunity, cannot reasonably be interpreted to mean any utterance of words in reply, but that it refers to a truthful answer. Especially since the Legislature has chosen to confer “transactional” immunity by this statute, which is far broader than what is required by the constitution, such immunity need not be recognized unless every condition of the statute has been honored by the immunized witness. Where the witness does not comply with the statute, which we construe as demanding truthful “answers” during immunized testimony, he does not receive immunity. See Smith, supra at 516-518; People v Norwood, 312 Mich 266, 274; 20 NW2d 185 (1945). Defendant did not comply with the statute when he provided materially false testimony. Thus, such testimony did not suffice to confer “transactional” immunity under the statute and defendant can be charged and tried for murder and felony-firearm as a result of the death of Nolan Fritz.
in
We now turn to defendant’s appeal of his perjury convictions in Docket No. 194362 and the arguments raised in his counsel’s brief. Defendant first argues that he was denied due process by the eleven-year, seven-month delay between the date that he committed his perjury offenses (January 26, 1983) and the date that the perjury complaint and warrant were filed (August 1994). We review this constitutional issue de novo. People v Pitts, 222 Mich App 260, 263; 564 NW2d 93 (1997); see also People v White, 208 Mich App 126, 134-135; 527 NW2d 134 (1994).
In People v Bisard, 114 Mich App 784, 791; 319 NW2d 670 (1982), this Court held that in order to establish a due process violation in the context of prearrest delay a defendant must first demonstrate prejudice. The prosecutor then bears the burden of persuading the court that the reason for the delay was sufficient to justify whatever prejudice results. Id. In evaluating the reason for the delay, the court may consider the explanation for the delay, whether the delay was deliberate, and whether undue prejudice attached to the defendant. Id. at 786, 791.
On appeal, defendant contends that application of Bisard to this case requires reversal of his convictions. Specifically, defendant contends that the delay in his perjury case caused the loss of a number of witnesses and physical evidence pertaining to the murder. However, defendant does not claim the loss of material witnesses or exculpatory evidence. Rather, defendant claims that the lost evidence might have been used to impeach Fleck’s testimony. Certainly Fleck’s testimony connecting defendant to the murder was crucial in this case because it provided much of the contradiction and corroboration necessary to convict defendant of perjury. However, that any of the alleged lost evidence might have impeached Fleck is, at best, speculative. Moreover, defendant had substantial evidence with which to impeach Fleck at trial. Cf. People v Reddish, 181 Mich App 625, 627-628; 450 NW2d 16 (1989). Thus, we conclude that defendant has not sustained his burden of showing that he was prejudiced by the delay.
However, assuming some prejudice under Bisard, we turn to a consideration of defendant’s argument that the delay in this case was not justified. Defendant contends that the delay was not justified because probable cause existed in 1983 to charge him with at least three of the four perjury counts of which he was ultimately convicted. Specifically, with respect to count three (defendant’s denial that he owned a .32 caliber gun or gave a .32 caliber gun to Fleck) and count four (defendant’s denial that Walter Crenshaw gave him a gun), defendant contends that probable cause existed immediately after the judicial inquiry because Crenshaw testified that he had given defendant a .32 caliber gun. However, proof of perjury requires more than simply proof of the contradiction. A prosecutor does not violate due process when he refuses to seek an indictment until he is satisfied that he will be able to establish guilt beyond a reasonable doubt. United States v Brown, 959 F2d 63, 66 (CA 6, 1992). In this case, the prosecutor who questioned defendant during the judicial inquiry may certainly have had his doubts about the veracity of defendant’s testimony during the judicial inquiry, but may not have been satisfied that he could establish defendant’s guilt of perjury beyond a reasonable doubt at that time.
With respect to count two (defendant’s denial that he was with Fleck on December 19, 1982), defendant also contends that probable cause could have been easily established if the police had not simply failed to pursue this case. However, testimony given during the evidentiary hearing regarding this issue below indicates that shortly after the homicide the police came to believe that they were no longer free to interview either defendant or Fleck, both of whom allegedly requested to consult with counsel. Moreover, other witnesses have maintained from the beginning of this case that defendant was playing cards at the Knight residence throughout the night of December 19, 1982. The investigation came to a standstill not because the police unjustifiably failed to pursue this case, but because the police had no other good leads to follow.
Defendant also implies that the various prosecutors who have been in charge of this case over the years have acted in bad faith. However, our review of the record reveals no such bad faith. Rather, our review reveals that whether defendant could be successfully prosecuted for perjury depended in large part on whether it could be established that defendant was connected to the Fritz homicide. The homicide investigation came to a standstill not because of any lack of police or prosecutorial diligence, but because defendant and Fleck were not admitting their involvement in the homicide and the police were simply unable to gather enough other evidence to charge either of them. Generally, investigative delay, as opposed to delay that is intended to gain a tactical advantage over a defendant, does not violate due process. Id. Thus, even assuming that defendant suffered some prejudice by the delay in this case, we find no due process violation because the prosecution satisfied its burden under Bisard of establishing that the reasons for the delay were sufficient to justify the resulting prejudice.
Next, defendant raises an issue with respect to the nonresident tolling provision of the applicable statute of limitations. This statute provides in relevant part as follows:
[A]ll.. . indictments [other than for certain crimes not at issue here] shall be found and filed within 6 years after the commission of the offense. However, any period during which the party charged did not usually and publicly reside within this state shall not be considered part of the time within which the respective indictments shall be found and filed. [MCL 767.24(1); MSA 28.964(1) (emphasis supplied).]! 1
Defendant does not contend that, at any time after July 1984, he “usually and publicly” resided in Michigan. Rather, defendant has always acknowledged that in July 1984 he moved to and began residing in South Carolina. However, defendant contends that despite his Michigan nonresidency, the nonresident tolling provision should nevertheless be interpreted as not tolling the six-year period of limitation in this case because defendant did not leave Michigan in order to avoid prosecution, he lived openly in South Carolina, he was easy to locate by Michigan authorities, and his absence from Michigan did not impede the prosecutor from going forward with this case.
The trial court denied defendant’s motion to dismiss on this ground below, finding that the nonresident tolling provision was plain and unambiguous and, as applied to the undisputed facts of this case, tolled the running of the six-year period of limitation. We find no apparent error in this regard. The Legislature is presumed to have intended the meaning it plainly expressed. People v Gould, 225 Mich App 79, 83; 570 NW2d 140 (1997). Here, the specific language of the statute plainly expresses the Legislature’s intent to exclude from the six-year limitation period certain periods defined as “any period during which the party charged did not usually and publicly reside within this state . . . .” There is no question that defendant did not usually and publicly reside in Michigan after July 1984.
However, defendant contends that a departure from the nonresident tolling provision is justified under the facts of this case because a literal construction produces a result inconsistent with the purposes behind the statute, which is to prevent the inaccurate testi mony and unfairness that may result from stale evidence and dull memories. People v McCausey, 65 Mich 72, 73; 31 NW 770 (1887); People v Budnick, 197 Mich App 21, 24; 494 NW2d 778 (1992); People v Allen, 192 Mich App 592, 602; 481 NW2d 800 (1992). In response, we simply note that statutes of limitation are a matter of legislative grace and subject to legislative control. People v Russo, 439 Mich 584, 594; 487 NW2d 698 (1992). Despite any general policy against unduly postponing criminal prosecutions that is embodied in MCL 767.24; MSA 28.964, the Legislature saw fit to include a specific provision whereby the limitation period is tolled during “any period during which the party charged did not usually and publicly reside within this state . . . .” Thus, we find that application of the plain language of the nonresident tolling provision to the facts of this case does not produce an inconsistent result, but rather produces the result intended by the Legislature.
Alternatively, defendant notes that the courts in Danuel v State, 262 Ga 349, 352; 418 SE2d 45 (1992), and Heitman v State, 627 NE2d 1307, 1311 (Ind App, 1994), held that nonresident tolling provisions analogous to Michigan’s provision tolled a criminal period of limitation only when the nonresident suspect was not amenable to process or had absconded. Defendant urges that we should similarly construe Michigan’s nonresident tolling provision in light of the facts that he did not abscond from Michigan and was amenable to process. However, Danuel and Heitman appear to represent the minority view. See Danuel, supra at 357 (Bell, P.J., concurring). Most courts that have considered statutory tolling provisions analogous to Michigan’s provision have held that mere absence, regardless of intent to evade justice or conceal one’s whereabouts, is enough to toll the criminal period of limitation. See State v Ansell, 36 Wash App 492, 493-496; 675 P2d 614 (1984); see also State v Whitman, 160 Wis 2d 260, 264-267; 466 NW2d 193 (Wis App, 1991); State v Stillings, 238 Mont 478, 482-484; 778 P2d 406, 408-410 (1989). In so holding, the courts have reasoned that the statutory language is too clear to permit a different construction. Whitman, supra at 266; Ansell, supra at 493-496. Thus, in Ansell, the court held that the criminal period of limitation was tolled even though the nonresident defendant had lived openly in another state and was available for prosecution at all times. And, in Stillings, supra at 484, the court held that the criminal period of limitation was tolled even though state officials knew that the defendant was incarcerated out of state and the state could have forced the defendant’s return at any point. Thus, we are not persuaded by defendant’s reliance on Danuel and Heitman. We conclude that the trial court did not err in refusing to dismiss this case on this ground.
Next, defendant raises an issue with respect to witness Fleck. To put the issue in context, we note that at trial Fleck testified during both direct examination and cross-examination that, as a result of a plea agreement with respect to his involvement in the Fritz homicide, he had already pleaded guilty of being an accessory after the fact to murder. Fleck testified that he had not yet spent any time in jail because he had been permitted to post a $10,000 personal prop erty bond using his home as collateral, as opposed to a cash bond, and that sentencing with regard to his plea had been deferred until after he testified at defendant’s trial. Fleck acknowledged that the plea agreement contained his statements implicating defendant in the Fritz homicide and provided that, if he did not give truthful testimony consistent with these statements, then the accessory plea would be dismissed and the prosecutor could proceed with whatever charges were deemed appropriate, including first-degree murder.
The trial court precluded defendant from exploring, with either Fleck or other witnesses, the plea negotiations preceding Fleck’s actual plea agreement, including a possible plea of guilty to a charge of manslaughter. In reaching this decision, the court reasoned that evidence of what had occurred during the plea negotiations would not prove anything that the actual plea agreement did not already prove. The court also noted that the terms of the actual plea agreement had been made abundantly clear to the jury and that the benefits of this agreement to Fleck were obvious and apparent, including the maximum benefit Fleck received in exchange for his testimony, i.e., not being subject to a possible charge of first-degree murder. The trial court decided to exclude the evidence of Fleck’s plea negotiations under MRE 403 on the ground that this evidence would be cumulative, confusing, misleading, and duplicative.
Defendant now contends that the trial court’s refusal to allow him to impeach Fleck with evidence that Fleck had rejected a proposal that he plead guilty to a charge of manslaughter denied defendant his right to present a defense and his right to confronta tion. We note that defendant fails to cite any portion of the record establishing that Fleck actually rejected such a proposal. Rather, our review of the record reveals, at most, that the prosecutor initially wanted Fleck to plead guilty to a charge of manslaughter and that Fleck’s counsel discussed this proposal with Fleck.
A defendant has a constitutional right to present a defense and confront his accusers. People v Posby, 227 Mich App 219, 226; 574 NW2d 398 (1997); People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). A primary interest secured by the right of confrontation is the right of cross-examination. Adamski, supra. The credibility of a witness is an issue that is of the utmost importance in every case and defendants are guaranteed a reasonable opportunity to test the truth of a witness’ testimony. Adamski, supra, People v Mumford, 183 Mich App 149, 152; 455 NW2d 51 (1990). Evidence of a witness’ motivation for testifying is highly relevant to the witness’ credibility. Mumford, supra. Thus, a defendant is always entitled to have a testifying accomplice’s receipt of a grant of immunity or guilty plea to a reduced charge disclosed to the jury. Id. However, trial courts have the discretion to impose reasonable limits on cross-examination on the basis of concerns about harassment, prejudice, confusion of the issues, or interrogation that is repetitive or only marginally relevant. Adamski, supra.
In this case, one of defendant’s primary defenses was that Fleck was untruthful. In support of this theory, substantial evidence tending to impeach Fleck’s credibility was adduced at trial. Specifically, the disclosure of the details of Fleck’s plea agreement raised an inference that Fleck had a significant motive to testify as he did or face a charge of first-degree murder. Fleck also admitted to defense counsel that he had lied during his cross-examination at the preliminary hearing in this case. Finally, Fleck, as well as other witnesses, testified that between 1982 and 1994, Fleck had given varying and inconsistent accounts of his involvement in the Fritz homicide to the police. On this record, we cannot say that defendant was denied his right to present his defense that Fleck was untruthful.
Moreover, defendant was permitted great latitude in confronting Fleck, including cross-examining Fleck regarding the details of the plea agreement. Where the inference was clearly raised that Fleck benefited greatly from his plea agreement because he was subject to a charge of first-degree murder but permitted to plead guilty of being an accessory after the fact, we conclude that additional evidence that a possible plea of guilty to a charge of manslaughter was also considered during plea negotiations was of only marginal value. The trial court reasonably limited Fleck’s cross-examination and defendant was not denied his right to confrontation thereby. For similar reasons, we also reject defendant’s claim that his due process rights were violated when the prosecutor failed to disclose to the jury that Fleck had allegedly rejected a proposal that he plead guilty to a charge of manslaughter. People v Atkins, 397 Mich 163, 173-174; 243 NW2d 292 (1976).
Next, defendant raises an issue with respect to witness Arthur Baker. At trial, Baker, a former detective with the Montmorency County Sheriff’s Department who investigated the Fritz homicide, testified that when he interviewed defendant shortly after the homicide, defendant never indicated that he had been with Fleck. Defendant contends that this testimony was extremely damaging because he later admitted that he was with Fleck on December 20, 1982. Defendant contends that he therefore should have been allowed to cross-examine Baker with evidence of Baker’s bias or prejudice against defendant. Defendant contends that the trial court’s refusal to allow him to impeach Baker denied him his constitutional rights to confrontation and to present a defense. However, assuming, without deciding, that the trial court erred in refusing to allow defendant to impeach Baker with evidence of Baker’s alleged bias or prejudice, we conclude that any denial of defendant’s constitutional rights was harmless beyond a reasonable doubt because two other police officers also testified that, when they interviewed defendant shortly after the Fritz homicide, defendant also did not indicate to them that he was with Fleck on December 20, 1982. People v Belanger, 454 Mich 571, 576; 563 NW2d 665 (1997).
Next, defendant cites approximately twelve instances in which the trial court allegedly demonstrated its partiality by criticizing or disparaging defense counsel. Defendant contends that he was denied a fair trial by this judicial misconduct. A defendant in a criminal trial is entitled to a neutral and detached magistrate. People v Conyers, 194 Mich App 395, 398; 487 NW2d 787 (1992). The test is whether partiality could have influenced the jury to the detriment of the defendant’s case. People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996). Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases do not generally support a challenge for partiality. Cain v Dep’t of Corrections, 451 Mich 470, 497, n 30; 548 NW2d 210 (1996). Moreover, partiality is not established by expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women sometimes display. Id.
This case was hard-fought and hotly contested by both sides. Several times after defense counsel had raised an issue and argued his position, the trial court would request, often repeatedly, that counsel make a motion or otherwise ask for some sort of specific relief or action by the court. However, despite these requests, defense counsel would often continue to argue his position. At other times, the court would rule regarding an issue and counsel would continue to argue, often reiterating a prior position. Later in the proceedings, defense counsel would again raise the same issue, requiring the court to make the ruling again. There is no doubt that at times the court became frustrated with defense counsel’s behavior in these respects. However, in our judgment, the court was also extremely patient with defense counsel and gave defense counsel great latitude in presenting defendant’s case. Our review of the record reveals that the trial court’s challenged remarks were, at most, simply expressions of impatience, dissatisfaction, annoyance, and anger that are fully within the “bounds of what imperfect men and women sometimes display.” Moreover, the trial court gave at least two curative instructions with respect to some of these remarks. We conclude that the trial court’s conduct was not partial and could not have influenced the jury to the detriment of defendant’s case. Accordingly, the trial court did not engage in judicial misconduct and defendant, therefore, was not denied a fair trial on this ground.
IV
Next, we consider those issues raised in the supplemental brief filed by defendant pro se. Defendant first argues that the trial court erred in allowing the prosecutor to present several rebuttal witnesses while denying defendant the opportunity to present certain surrebuttal testimony. Specifically, defendant takes issue with rebuttal testimony that he claims erroneously raised the damaging inference that he made an admission concerning the homicide. In order to place this issue into context, we note that defendant was the last defense witness to testify. During defendant’s direct examination, defendant testified that while he was in Michigan on August 15, 1994, he went to see Fleck. Defendant testified that he had been informed by the police that Fleck had indicated that he, Fleck, had been at the murder scene “and all this stuff happened.” Defendant testified that he did not know what Fleck was talking about and he went to see Fleck to talk to him and find out “what he was saying.” Defendant testified that he did not talk to Fleck for any length of time because he was forced to leave Fleck’s property when Fleck’s son aimed a shotgun at him and shot at his vehicle.
After defendant’s direct examination but before his cross-examination, the prosecutor informed the court that over the weekend the police had learned about and then interviewed a witness with critical new information about defendant’s case. This witness was Joyce McIntire, who was married to defendant’s brother, Gary McIntire, and who was also the great-granddaughter of Nolan Fritz. As relevant to the present issue on appeal, Joyce McIntire had information indicating that in August 1994, defendant had made a certain statement to her. The prosecutor indicated that she was going to call Joyce McIntire for rebuttal. Defendant’s objections to any rebuttal testimony by McIntire concerning defendant’s alleged statement were overruled by the trial court.
The prosecutor commenced her cross-examination of defendant, during which defendant testified that after leaving Fleck’s house on August 15, 1994, he went to Gary and Joyce Mclntire’s house. The prosecutor elicited defendant’s denial that, during a conversation concerning both the incident at Fleck’s house and the Fritz homicide, Joyce McIntire had asked him why did he not talk to the police about what he knew about the homicide. The prosecutor also elicited defendant’s denial that he had replied that he did not talk to the police because the incident involved a friend.
Joyce McIntire subsequently testified in rebuttal that on August 15, 1994, after defendant had been to Fleck’s house, she had a conversation with defendant concerning the Fritz homicide during which she asked defendant why he did not tell the police what, if anything, he knew about the death. McIntire testified that defendant responded that, even if he knew anything, he was not going to say anything because he did not want to get any Mends in trouble.
Defendant argues, as he did below, that Mclntire’s testimony concerning defendant’s statement violates the rules stated in People v Losey, 413 Mich 346, 351-352; 320 NW2d 49 (1982), and People v Bennett, 393 Mich 445, 449; 224 NW2d 840 (1975), that the prosecutor may not use rebuttal testimony to introduce substantive evidence that belonged in the prosecutor’s case in chief and that the prosecutor may not elicit a denial during cross-examination for the purpose of injecting a new issue into the case.
We first note, however, that in Losey, supra at 351, n 3, the Supreme Court recognized
that there may be occasional cases in which evidence that might have been admissible in the prosecutor’s case in chief could be admitted in rebuttal. The prosecutor may not become aware of the evidence until after having rested.
Additionally, the Supreme Court recognized, id. at 352, n 5, that
[t]here will, of course, be cases in which rebuttal evidence may properly be used to contradict testimony elicited on cross-examination where the cross-examination merely drew out the details of matters raised by defense witnesses.
Moreover, in People v Figgures, 451 Mich 390, 398-399; 547 NW2d 673 (1996) (citations omitted), the Supreme Court explained as follows:
Admission of rebuttal evidence is within the sound discretion of the trial judge and will not be disturbed absent a clear abuse of discretion. . . .
Rebuttal evidence is admissible to “contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same.” The question whether rebuttal is proper depends on what proofs the defendant introduced and not on merely what the defendant testified about on cross-examination.
Contrary to the dissent’s insinuation, the test of whether rebuttal evidence was properly admitted is not whether the evidence could have been offered in the prosecutor’s case in chief, but, rather, whether the evidence is properly responsive to evidence introduced or a theory developed by the defendant. As long as evidence is responsive to material presented by the defense, it is properly classified as rebuttal, even if it overlaps evidence admitted in the prosecutor’s case in chief.
The Figgures Court further distinguished cross-examination that injects a new issue into the case from cross-examination that responds to an issue raised by the defendant. Id. at 401.
In this case, defendant himself, during his direct examination, testified about going to Fleck’s house on August 15, 1994. Defendant’s testimony about this incident injected the inferences that defendant had no knowledge about either the homicide itself or Fleck’s involvement in the homicide. The prosecutor’s cross-examination of defendant concerning his alleged statement to McIntire addressed the issue of defendant’s knowledge about the homicide and the involvement of other persons in the homicide. Thus, the prosecutor’s cross-examination of defendant merely drew out details of matters raised by defendant himself and did not inject a new issue into the case. Id. Rather, the inferences from this testimony during cross-examination directly contradicted the inferences injected by defendant.
Further, the information possessed by Joyce McIntire came to the attention of the police only during trial when Joyce Mclntire’s mother, who was Nolan Fritz’ granddaughter, heard media reports of testimony by defense witnesses that raised questions in the mother’s mind. The mother first contacted Joyce Mclntire and then contacted the police, who in turn contacted Joyce Mclntire. Thus, there is no question here that the prosecutor did not become aware of the substance of Mclntire’s testimony until the prosecutor had rested her case. Losey, supra at 351, n 3. In summary, we conclude that the trial court did not clearly abuse its discretion in allowing the prosecutor to cross-examine defendant with respect to his statement and in admitting Mclntire’s testimony concerning defendant’s statement. Figgures, supra at 398.
Next, defendant takes issue with rebuttal testimony involving defendant’s wife. Defendant’s proofs had indicated that he and his wife spent the evening of December 19, 1982, at the Knight residence playing cards with the Knights and the Gays, who were neighbors of the Knights. Defendant and his wife left the Knight residence after midnight and the Gays left the Knight residence approximately forty-five minutes to an hour before defendant and his wife. After arriving home, defendant’s wife went to the bedroom and read a book while defendant left to go to Fleck’s house. Defendant and his wife next saw each other on December 20, 1982, at approximately 5:30 P.M. or 6:00 P.M. when defendant and Fleck arrived at defendant’s house. Defendant’s wife then left to take their son to a school program. After defendant’s wife arrived back home at approximately 8:30 P.M., she and defendant drove Fleck home. Defendant and his wife first heard about Fritz’ being killed at approximately 6:00 P.M. on the December 22, 1982, evening news. Finally, defend ant’s proofs indicated that defendant and his wife then went to the home of defendant’s brother, Gary McIntire.
When Joyce McIntire was discovered as a witness, the prosecutor learned that she had information not only about defendant’s statement, but also about three visits made by defendant’s wife to Joyce Mclntire’s house. The circumstances surrounding these visits tended to raise the following inferences: (1) that defendant’s wife went to Joyce Mclntire’s house on the night of December 19, 1982, looking for defendant, (2) that defendant’s wife went back to Joyce Mclntire’s the next night, December 20, 1982, and essentially told Joyce McIntire to forget that she had been looking for defendant the previous night, and (3) that defendant and his wife went to Joyce Mclntire’s house on December 21, 1982, the day Fritz’ body was discovered and before the news of the homicide was generally known, and informed Joyce McIntire that Fritz had been killed.
After defendant rested his case, the prosecutor recalled defendant’s wife, who had already testified as a defense witness. The trial court granted the prosecutor’s request to treat defendant’s wife as a hostile witness and to utilize leading questions in her examination. The prosecutor elicited from defendant’s wife a denial that, after arriving home from the Knight residence, she went to Gary and Joyce Mclntire’s home looking for defendant. She also denied that she went to the home the next day and told Joyce McIntire to tell anyone who asked that defendant was with her the previous night. Further, she testified that on a Wednesday she and defendant heard on the television that Fritz had been murdered and that she and defendant then went to the Mclntires’ home to so inform them.
Defendant again relies on Losey to argue that, in putting defendant’s wife back on the stand, the prosecutor was not rebutting any evidence produced by the defense, but rather was improperly reopening the prosecution’s case and injecting a new issue through the use of cross-examination. Defendant also relies on Losey to argue that Joyce Mclntire’s testimony concerning the three visits to her home by defendant’s wife was improper rebuttal evidence because it constituted substantive evidence that should have been offered in the prosecutor’s case in chief. Again, we simply note that the prosecutor was not aware of the evidence possessed by Joyce Mclntire until the prosecutor had rested her case. Losey, supra at 351, n 3. Moreover, the test for rebuttal evidence is not whether it could have been offered in the prosecutor’s case in chief, but rather whether it was responsive to an issue raised by the defendant. Figgures, supra at 399. In this case, Joyce Mclntire’s testimony concerning the activities of defendant or his wife in visiting Mclntire’s residence contradicted the defense theories that defendant was at the Knight residence the entire evening of December 19, 1982, and that defendant had no knowledge of the homicide. Id. Thus, Joyce Mclntire’s testimony concerning these visits was altogether proper rebuttal testimony.
The prosecutor clearly wanted to question Joyce Mclntire concerning statements defendant’s wife made to Joyce Mclntire during the visits to Mclntire’s house. However, if the statements were offered during Mclntire’s testimony for the truth of the matter, a hearsay objection would have been in order. MRE 801(c); MRE 802. Alternatively, if the statements were offered during Mclntire’s testimony to impeach defendant’s wife by proof of prior inconsistent statements, an objection regarding the lack of foundation would have been potentially in order. MRE 613(b); People v Barnett, 165 Mich App 311, 315; 418 NW2d 445 (1987). Knowing this, the prosecutor sought to put defendant’s wife back on the stand for the purpose of laying a foundation for impeachment purposes. In granting the prosecutor’s request to do so, the trial court, in effect, permitted the prosecutor to reopen her cross-examination of defendant’s wife. The reopening of proofs rests within the sound discretion of the trial court. People v Keeth, 193 Mich App 555, 560; 484 NW2d 761 (1992). Here, the trial court specifically limited the prosecutor’s renewed cross-examination of defendant’s wife to establishing a foundation for impeachment purposes. The renewed cross-examination did not inject new issues into the case but rather constituted further cross-examination regarding matters raised by the defense, i.e., defendant’s whereabouts at the time of the homicide and defendant’s knowledge of the homicide. Figgures, supra at 401. Defendant was subsequently able to effectively impeach Joyce Mclntire’s testimony during surrebuttal. And, the jury was properly cautioned that it could not use evidence of the prior inconsistent statements of a witness as substantive evidence, but rather could only use such evidence in assisting it in determining whether the witness was truthful. Because we find no undue advantage to the prosecutor or prejudice to defendant, we conclude that the trial court did not abuse its discretion in permitting the prosecutor to reopen her cross-examination of defendant’s wife.
Next, defendant takes issue with the rebuttal testimony of Duane Gay. Gay testified during rebuttal that he and his wife played cards with defendant at the John and Phylis Knight residence on the night of December 19, 1982. Gay testified that he and defendant were drinking and that during the card game defendant twice asked Gay whether Gay thought Gay could “kick [defendant’s] ass?” and whether Gay wanted to “go outside and tiy it?” Gay testified that he finished the card game and that he and his wife then left the Knight residence because he felt uncomfortable. Defendant contends on appeal that this testimony did not constitute proper rebuttal because the prosecutor improperly injected the issue of the time that the Gays left the Knight residence during the cross-examination of defense witness Mark Knight, the son of John and Phylis Knight. Defendant also contends that the issue of defendant’s combative attitude should have been introduced during the prosecutor’s case in chief. We disagree. As indicated previously, defendant’s own proofs indicated that he was at the Knight residence during the entire evening of December 19, 1982, and that he did not leave the Knight residence until after midnight. Defendant’s own proofs also linked the time that he left the Knight residence to the time that the Gays left the Knight residence, i.e., approximately forty-five minutes to an hour earlier than defendant. Gay’s testimony that he and his wife left the Knight residence within an hour of darkness, with the resulting inference that defendant also left the Knight residence much earlier than previously indicated by defendant’s proofs, tended to contradict or disprove the evidence offered by defendant concerning the time that defendant left the Knight residence. Id. at 399. Accordingly, we find that the admission of Gay’s rebuttal testimony did not constitute a clear abuse of discretion. Id. at 398.
Finally, defendant argues that the trial court erred in refusing to allow the testimony of two surrebuttal witnesses for the purpose of contradicting, and thereby impeaching, the credibility of Joyce Mclntire’s testimony. We disagree. Rebuttal evidence must relate to a substantive rather than a collateral matter. People v Humphreys, 221 Mich App 443, 446; 561 NW2d 868 (1997). In this case, defendant was able to present surrebuttal witnesses that not only directly contradicted Joyce Mclntire’s testimony, but also impeached her credibility with evidence of bias or prejudice. In excluding certain other proposed surrebuttal testimony, the trial court found that the proposed testimony concerned collateral matters. We find no clear abuse of discretion with regard to this issue. Figgures, supra.
Next, defendant argues that the trial court erred in refusing to give defendant’s requested instruction that the prosecutor must present “strong corroboration” to establish that defendant’s allegedly perjured testimony was false. This Court reviews jury instructions in their entirety to determine if there is error requiring reversal. People v Perez-DeLeon, 224 Mich App 43, 53; 568 NW2d 324 (1997). The instructions must include all elements of the charged offense and must not exclude material issues, defenses, and theories, if there is evidence to support them. Id. A trial court may give additional instructions concerning an area that was not covered in the standard jury instructions as long as these additional instructions accurately state the law and are applicable, concise, understandable, conversational, unslanted, and nonargumentative. People v Lynn, 229 Mich App 116, 121; 580 NW2d 472 (1998). Even if the instructions are imperfect, there is no error if they fairly presented the issues to be tried and sufficiently protected the defendant’s rights. Perez-DeLeon, supra.
In order to convict a defendant of perjury, the prosecutor must prove each of the elements of the crime beyond a reasonable doubt, including the element that the defendant made a false statement. People v Cash, 388 Mich 153, 162; 200 NW2d 83 (1972); People v Kozyra, 219 Mich App 422, 428-429; 556 NW2d 512 (1996); People v Honeyman, 215 Mich App 687, 691; 546 NW2d 719 (1996). That the defendant made a false statement is proved by establishing the truth of the contradiction. Cash, supra. The prosecution cannot satisfy its burden simply by contradicting the defendant’s sworn statement. Kozyra, supra at 429. “Rather, the prosecution must present ‘evidence of circumstances bringing strong corroboration of the contradiction.’ ” Id. (quoting Cash, supra}.
In this case, the trial court gave instruction CJI2d 14.1 (perjury committed in courts), which simply instructs the jury that it must find that “while under that oath the defendant made a false statement.” However, the trial court refused defendant’s request that CJI2d 14.1 be supplemented with a “strong corroboration” instruction in accordance with Cash. Certainly, such an instruction would have been an accurate statement of the law and could have been given. Lynn, supra. However, the instructions, as given, included each of the elements of the charge of perjury. In addition, the jury was properly instructed with regard to circumstantial evidence and the burden of proof. Moreover, defendant raises no challenge to the sufficiency of the evidence of his convictions and our review reveals that the prosecutor presented evidence of circumstances bringing strong corroboration of the contradictions at issue in this case. Accordingly, even if the instructions regarding perjury were imperfect, we find no error because the instructions as given fairly presented the issues to be tried and sufficiently protected the defendant’s rights.
Next, defendant argues that certain inadmissible opinion testimony by the police was erroneously admitted at trial. However, defendant failed to properly object to the admission of this testimony below. “It is well established that objections to admissibility not properly raised at trial cannot be later asserted on appeal.” People v Kilbourn, 454 Mich 677, 685; 563 NW2d 669 (1997).
Finally, defendant argues that his ten-year minimum sentences are disproportionate. In this regard, defendant notes that his criminal history consists of no prior felony convictions and only several old misdemeanor convictions, yet the instant sentences constitute the most severe sentences permitted under the law. The key test of proportionality is whether the sentence reflects the seriousness of the matter. People v Lemons, 454 Mich 234, 260; 562 NW2d 447 (1997). In imposing the maximum sentences permitted by law in this case, the trial court was clearly influenced by the testimony admitted at trial concerning defendant’s suspected involvement in the Fritz homicide. We find no error in this regard. A trial court may not make an independent finding of guilt and then sentence a defendant on the basis of that finding. Gould, supra at 89. However, a trial court may consider the evidence admitted at trial as an aggravating factor in determining an appropriate sentence. Id. In light of the obvious aggravating factors presented by this case, we conclude that defendant’s ten-year minimum sentences are proportional to the offenses and the offender. Lemons, supra.
In summary, in Docket No. 194301, we reverse the dismissal of the charges of murder and felony-firearm and remand for reinstatement of these charges. In Docket No. 194362, we affirm defendant’s convictions of and sentences for perjury.
Smolensk, J., concurred.
The motion and order stated as follows:
MOTION
Now comes James E. McCormick, the Prosecuting Attorney of Montmorency County, Michigan, and moves this Court for an Order granting the witness, Charles McIntire, now present before the Grand Jury ordered in this session, complete immunity from any charges which would arise from the homicide of Nolan Fritz. [Prosecutor’s Signature]
ORDER
* * **
It is so ordered.
[Circuit Court Judge’s signature]
Specifically, the jury found that defendant made a false statement with respect to the following testimony at the inquiry:
Q. [The Prosecutor]: Mr. Mclntire, after you met Mr. Fleck did you go to the home of Nolan Fritz?
A. [Defendant]-. No.
Q. [The Prosecutor]: Mr. Mclntire, I am going to ask you, again, one more time, and you know what the Court has warned you about. Were you at the home of Mr. Nolan Fritz on the night of the 19th or the morning of the 20th of December, 1982?
A. [Defendant]: No, sir. I was not.
Specifically, the jury found that defendant made a false statement with respect to the following testimony at the inquiry:
Q. [The Prosecutor]: All right. Okay. Were you with him [Fleck] on Sunday, December the 19th, 1982?
A. [Defendant]: No.
Q. [The Prosecutor]: You were not with him?
A. [Defendant]: Not on Sunday the 19th.
* * *
Q. [The Prosecutor]: Now, I think you have already testified that you met Mr. Fleck about two o’clock on the morning of the 20th, is that correct?
A. [Defendant]: Yes.
Specifically, the jury found that defendant made a false statement with respect to the following testimony at the inquiry:
Q. [The Prosecutor]: Did you own a .32 caliber gun on that particular day?
A. [Defendant]: No.
Q. [The Prosecutor]: Did you give a .32 caliber gun to Mr. Fleck?
A. [Defendant]: No.
Specifically, the jury found that defendant made a false statement with respect to the following testimony at the inquiry:
Q. [The Prosecutor]: Did you — I am on question six, now — were you given a gun by Walter Crenshaw?
A. [Defendant]: No.
Q. [The Prosecutor]: You never were?
A. [Defendant]: That’s right.
We acknowledge that a witness is not required to actually and directly incriminate himself in order to retain his transactional immunity as long as his testimony “may have tended to incriminate” him. We assume for the purposes of this opinion, without deciding, that “from the character of the question^],” In re Schnitzer, 295 Mich 736, 741; 295 NW 478 (1940), there is some “tangible and substantial probability” that at least some portion of defendant’s testimony “may have tended to incriminate” him.
We note that the dissent perceives that we have “abandoned” traditional rules of statutory construction, “ignored” the plain text of the statute, created an ambiguity where none exists “in order to reach a desired result,” enacted a “judicial ukase,” turned traditional principles of statutory construction “inside out,” acted without “authority,” engaged in “rewriting” the law through “nontextual” analysis, created “new policy” from “wholecloth” and “substituted [our] own policy preferences” for those of the Legislature. Needless to say, we respectfully disagree. Although we have reached a different result than the dissent, we have no disagreement with the principles of jurisprudence set forth by the dissent. We fully agree with the dissent that “our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute.” Post at 119. However, adopting similar interpretative premises does not ensure that two opinions will necessarily reach the same conclusion in every case, but merely that the range of acceptable choices will be limited.
Immunity was envisioned by the Legislature as a means of reconciling a witness’ constitutional rights under the Fifth Amendment with the need of the “People” to effectively investigate and prosecute criminal activities. It was not envisioned as an end in itself. See Birch, supra at 46.
Due process considerations bar the state from using false evidence; to construe the immunity statute in a manner that might result in the state’s relying upon perjurious testimony in another proceeding would give rise to serious constitutional problems, which can, and must, be avoided if another reasonable construction of the act will negate such constitutional difficulties. People v Bandy, 35 Mich App 53; 192 NW2d 115 (1971); People v Wiese, 425 Mich 448, 453-454; 389 NW2d 866 (1986).
We do not agree with the dissent that the Legislature’s enactment of MCL 767.19d; MSA 28.959(4), concerning the availability of perjury as a remedy against one who testifies falsely at a grand jury proceeding, implies that no other remedies are available under MCL 767.6; MSA 28.946. Indeed, we do not believe that treating an immunity agreement as void where a witness has failed to “answer” questions truthfully can properly be characterized as a “remedy” at all; rather, the terms of the agreement have simply not been satisfied by both parties. The clear purpose of MCL 767.19d; MSA 28.959(4) is to make clear that a grand jury proceeding in Michigan is the type of proceeding to which the perjury remedy is applicable. There is no reason why the Legislature should have been expected, in enacting MCL 767.6; MSA 28.946, to have further provided that, “oh, by the way, if you the witness do not comply with the terms of this law, you should be forewarned that you will not receive its benefits.” It is wholly understandable why the Legislature would view it as unnecessary to explicitly set forth the consequences of a party’s failing to live up to its obligations under a statute — consequences which are implicit in the statute itself — namely here the denial of a breaching party’s ability to enforce a quid pro quo. In our judgment, it is implicit under every law of the state, as well as under every contract and deed entered into within its boundaries, that to avail oneself of the benefits of a deal, one must first comply with its conditions. That the dissent may disagree with us regarding what these conditions are does not enable it to correctly conclude that a negative implication arises from the Legislature’s failure to expressly specify such an obvious legal proposition.
We note that in denying defendant’s motion to dismiss on the ground of prearrest delay, the trial court applied the test enunciated in Bisará and concluded that, even assuming some prejudice, the delay in defendant’s perjury case was justified. We further note that the test enunciated in Bisará has been applied often by this Court in cases considering the issue of preindictment or prearrest delay. See People v Reddish, 181 Mich App 625, 627; 450 NW2d 16 (1989); People v Loyer, 169 Mich App 105, 119; 425 NW2d 714 (1988).
However, unlike Bisard, a majority of the federal circuit courts of appeal, including the United States Court of Appeals, Sixth Circuit, place the burden on the defendant to show not only prejudice that is actual and substantial, but also to show intentional delay by the government to gain an unfair tactical advantage. Jones v Angelone, 94 F3d 900, 905 (CA 4, 1996); United States v Brown, 959 F2d 63, 66 (CA 6, 1992). In White, supra at 134, this Court, relying on Brown but without discussing Bisard, noted that in determining whether dismissal is warranted by a preindictment or prearrest delay, “a defendant must show substantial prejudice to his right to a fair trial and intent by the prosecution to gain a tactical advantage.” Applying this test to a prearraignment delay, this Court found no due process violation. White, supra.
This Court must follow a rule of law established in a prior published decision of this Court issued on or after November 1, 1990. MCR 7.215(H)(1). However, because we find no due process violation even under the less stringent standard enunciated in Bisard, we decline to decide whether White, decided as it was in the context of prearraignment delay, establishes a rule of law that we are required to follow in this case and, if not, whether this Court should nevertheless utilize the federal majority approach in prearrest- or preindictment-delay cases.
See discussion later in opinion.
See discussion later in opinion.
See discussion later in opinion.
The term “indictment” is to be treated as also referring to charges made by the filing of an information. People v Russo, 439 Mich 584, 588, n 1; 487 NW2d 698 (1992); see also MCL 767.2; MSA 28.942.
In Michigan it is not simply mere absence, but such absence as destroys residency. McCausey, supra. In this case, there is no question that defendant did not reside in Michigan after July 1984.
After defendant’s direct examination but before his cross-examination, the prosecutor gave the defense a copy of Joyce Mclntire’s interview with the police. Defendant was also permitted to interview McIntire before his cross-examination.
There are no sentencing guidelines for the crime of perjury. Honeyman, supra at 697. | [
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Gage, J.
Defendant appeals as of right a sentence of fifteen to thirty years’ imprisonment imposed after a jury found him guilty of solicitation of murder, MCL 750.157b; MSA 28.354(2), and after he pleaded guilty of being a fourth-offense habitual offender, MCL 769.12; MSA 28.1084. We affirm.
In June 1995, defendant was confined to the Oakland County Jail awaiting trial on embezzlement charges. Ameer Ross, another Oakland County Jail inmate, testified at trial that defendant approached him and asked if he knew someone who could kill a witness in his upcoming trial on embezzlement charges. Ross testified that defendant gave him the witness’ name and address on a piece of paper. Ross and defendant discussed a price for the murder. After some negotiation, Ross reduced the initial price of $6,000 for the murder to $2,000 with a $500 down payment. Ross testified that defendant agreed to this price and stated that his uncle would pay the money. Although Ross advised defendant that he would contact his brother about killing the witness, Ross instead contacted the sheriff. Defendant denied at trial that he had made this inquiry, alleging that he had discussed bribing the witness, not murdering him.
The sheriff’s department arranged to have Deputy Andre Ewing pose as Ross’ brother and visit defendant in jail to discuss the murder. Ewing testified that defendant told him that he wanted someone “offed.” When Ewing asked him what he meant, defendant stated, “I want him taken out.” Defendant and Ewing then negotiated a price of $2,000 for the murder. Ewing testified that defendant agreed to deposit $200 in Ross’ account by 6:00 P.M. that night, and to pay $1,800 the next day after completion of the job. Ewing recalled that he asked defendant twice whether he was sure he wanted the murder done and that defendant replied affirmatively both times. Although defendant testified that he had only discussed bribing the witness, Ewing testified that bribery never entered the conversation.
Defendant never transferred any money to Ross’ account, and the witness whom defendant wanted “offed” appeared at defendant’s embezzlement trial and testified against him. On August 11, 1995, defendant was both sentenced for the embezzlement conviction and charged with solicitation of murder.
Defendant first argues that the trial court erred in denying his motion to dismiss for violation of the 180-day rule. We review the trial court’s attributions of delay for clear error. People v England, 177 Mich App 279, 286; 441 NW2d 95 (1989).
The 180-day rule, codified at MCL 780.131; MSA 28.969(1), states that an inmate of the Department of Corrections must “be brought to trial within 180 days” after the prosecution is given notice of untried charges against him. MCL 780.131(1); MSA 28.969(1)(1). However, when a pretrial delay greater than 180 days occurs, the rule is still satisfied if the prosecutor has taken good-faith action within that period to promptly ready the case for trial. MCR 6.004(D)(1). The 180-day period commences when either
(a) . . . the prosecutor knows that the person charged with the offense is incarcerated in a state prison or is detained in a local facility awaiting incarceration in a state prison, or
(b) . • ■ the Department of Corrections knows or has reason to know that a criminal charge is pending against a defendant incarcerated in a state prison or detained in a local facility awaiting incarceration in a state prison. [MCR 6.004(D)(1)(a), (b).]
Defendant argues that the trial court utilized an improper starting point in making its 180-day rule calculations and that the court improperly attributed to defendant certain periods of pretrial delay. Although the parties stipulated that the beginning of the 180-day period was October 4, 1995, it is defendant’s position that the 180-day period began on August 11, 1995, the day defendant was charged with solicitation of murder. The prosecutor was aware at that point that defendant was incarcerated and awaiting a prison sentence for his embezzlement conviction. MCR 6.004(D)(1).
Even granting defendant’s argument that the 180-day period began on August 11, 1995, no violation of the rule occurred because fewer than 180 days between then and November 18, 1996, the date defendant’s trial began, were chargeable to the prosecutor. The trial court found at a September 19, 1996, hearing that 335 days had elapsed from the October 4, 1995, arraignment until defendant’s September 11, 1996, motion for dismissal, 194 of which were chargeable to the defendant and 141 to the prosecution. However, because defendant stipulated at a May 2, 1996, pretrial conference that his trial would begin on July 23, 1996, the trial court clearly erred in attributing to the prosecutor the eighty-two-day period of delay between these dates. People v Pelkey, 129 Mich App 325, 329; 342 NW2d 312 (1983). The prosecutor should be charged with the following unexplained pretrial delays, England, supra at 285: (1) the fifty-four-day delay between August 11, 1995, and defendant’s October 4, 1995, arraignment; (2) the seventeen days between the trial court’s adjournment of a scheduled December 19, 1995, pretrial hearing and January 5, 1995, when the parties stipulated to again adjourn this hearing; (3) the fifty-seven days from July 23, 1996, the stipulated trial start date, until September 19, 1996, when defendant requested new counsel; and (4) the twenty-four days from the final pretrial conference on October 25, 1996, until the first day of trial on November 18, 1996, a total of 152 days.
The remaining 312 days are chargeable to defendant as follows: (1) the seventy-six days from defendant’s October 4, 1995, arraignment until December 19, 1995, the first scheduled pretrial date, to which defendant stipulated; (2) the 118 days from January 5, 1996, until May 2, 1996, covering two stipulated adjournments of the pretrial conference; (3) the eighty-two days from the May 2, 1996, pretrial conference and the stipulated starting date of trial on July 23, 1996; and (4) the thirty-six days between defendant’s request for and receipt of new counsel on September 19, 1996, and the October 25, 1996, pretrial conference. People v Jones (On Rehearing After Remand), 228 Mich App 191, 196; 579 NW2d 82 (1998) (delay stemming from adjournment requested by defendant is chargeable to defendant); Pelkey, supra (delay caused by stipulated adjournment attributable to defendant). Because fewer than 180 days of pretrial delay were attributable to the prosecutor, we conclude that no violation of the 180-day rule occurred.
Second, defendant claims that his trial counsel was ineffective for stipulating the erroneous October 4, 1995, start date for 180-day rule delay calculation purposes. We disagree. Without evidence of prejudice, ineffective assistance cannot be found. People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994). Defense counsel clearly erred in stipulating that the 180-day period began on the date of defendant’s arraignment, October 4, 1995, instead of the date he was charged, August 11, 1995. However, because no violation of the 180-day rule occurred, defendant was not prejudiced by defense counsel’s error. We find no ineffective assistance of counsel.
Third, defendant argues that the trial court erred in denying his motion for a directed verdict because the prosecution failed to establish all the elements of solicitation of murder and because defendant proved the affirmative defense of renunciation. In reviewing a trial court’s decision regarding a motion for a directed verdict, this Court views the evidence presented by the prosecutor up to the time the motion was made in the light most favorable to the prosecution to determine whether a rational trier of fact could find the essential elements of the crime were proved beyond a reasonable doubt. People v Warren, 228 Mich App 336, 345-346; 578 NW2d 692 (1998). Circumstantial evidence and reasonable inferences drawn from it may be sufficient to prove the elements of the crime. People v Gould, 225 Mich App 79, 86; 570 NW2d 140 (1997).
Pursuant to MCL 750.157b(l); MSA 28.354(2)(1), “ ‘solicit’ means to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation.” Solicitation to commit murder is a specific intent crime that requires proof that the defendant intended that a murder would in fact be committed. People v Vandelinder, 192 Mich App 447, 450; 481 NW2d 787 (1992). Solicitation to commit murder occurs when (1) the solicitor purposely seeks to have someone killed and (2) tries to engage someone to do the killing. Id. Solicitation is complete when the solicitation is made. Id. A contingency in the plan may affect whether the victim will be murdered, but does not change the solicitor’s intent that the victim be murdered. Id. at 450-451. Actual incitement is not necessary for conviction. People v Salazar, 140 Mich App 137, 143; 362 NW2d 913 (1985) (a defendant who attempted to incite an undercover police officer to commit murder could not escape conviction merely because the officer would not actually kill someone).
Defendant argues that the prosecutor did not establish that defendant promised or offered to pay for a murder. The prosecutor presented testimony from Ross and Ewing that defendant stated his desire to have a witness in his embezzlement trial killed and that he was willing to pay $2,000 for the murder. According to Ewing, defendant explained that he wanted Ewing to “off” or “take out” the potential witness against him, and that he would pay Ewing $2,000. We find that this testimony was sufficient to support a rational juror’s conclusion that defendant purposely sought to have a witness in his embezzlement trial killed and engaged Ewing to do the killing.
Defendant further contends that even if the elements of solicitation to commit murder are found, he established the affirmative defense of renunciation. Whether defendant’s behavior satisfied the statutorily defined renunciation defense is a legal question of statutory interpretation that we review de novo. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998).
The Legislature provided for the following renunciation defense to solicitation of murder:
It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose, the actor notified the person solicited of his or her renunciation and either gave timely warning and cooperation to appropriate law enforcement authorities or otherwise made a substantial effort to prevent the performance of the criminal conduct commanded or solicited, provided that conduct does not occur. The defendant shall establish by a preponderance of the evidence the affirmative defense under this subsection. [MCL 750.157b(4); MSA 28.354(2)(4).]
The goal of statutory construction is to ascertain and facilitate the intent of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994). The first criterion in determining intent is the specific language of the statute. People v Pitts, 216 Mich App 229, 232; 548 NW2d 688 (1996). Subsection 157b(4) specifically requires that the solicitor (1) notify the solicitee of the solicitor’s intent to renounce the crime and either (2) (a) warn and cooperate with law enforcement officials or (2)(b) engage in other substantial efforts to prevent the event solicited from occurring.
Defendant explains that, according to the terms of his deal with Ewing, Ewing would not kill the witness unless defendant had first made a $200 down payment on the murder. Defendant alleges that he fulfilled the notice element of the renunciation defense by refraining from making this down payment. However, defendant’s mere nonpayment was insufficient to constitute notice of his alleged intent to renounce the solicitation. As the trial court astutely observed, defendant’s mere nonpayment may be attributed to other reasons: that defendant, though still intending that the witness die, was simply unable to obtain funds for the down payment; or, as the trial court theorized, that defendant’s nonpayment of the deposit represented an attempt to obtain something for nothing. Ross’ testimony that, after the targeted witness testified against defendant in his embezzlement trial, defendant expressed his displeasure that the job had not been carried out indicates a contrary intent. Because subsection 157b(4) requires renunciation “under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose,” and because no such circumstances exist here, we conclude that defendant’s failure to make a down payment on the murder did not satisfy the required notice element of the renunciation defense.
Furthermore, even had we accepted defendant’s notice argument, defendant completely failed to demonstrate any attempt to either warn and cooperate with law enforcement or engage in other substantial efforts to stop Ewing from killing the witness. Because subsection 157b(4) requires both notice and further efforts by the solicitor to prevent the solicited event from occurring, we conclude that defendant’s inability to establish any further efforts on his part bar his assertion of the renunciation defense.
Fourth, defendant claims that the trial court erred in denying his request to instruct the jury with regard to the affirmative defense of renunciation. We review jury instructions in their entirety to determine whether the trial court committed error requiring reversal. People v Piper, 223 Mich App 642, 648; 567 NW2d 483 (1997). A court must instruct the jury so that it may correctly and intelligently decide the case. People v Clark, 453 Mich 572, 583; 556 NW2d 820 (1996). Jury instructions must include all the elements of the charged offense and must not exclude material issues, defenses, and theories that are supported by the evidence. Piper, supra. A defendant asserting an affirmative defense must produce some evidence on all elements of the defense before the trial court is required to instruct the jury regarding the affirmative defense. People v Lemons, 454 Mich 234, 248; 562 NW2d 447 (1997). In the instant case, defendant failed to present a prima facie defense of renunciation. Because defendant failed to present evidence regarding all elements of the affirmative defense of renunciation, the trial court correctly denied the requested instruction. Id. at 250.
Fifth, defendant argues that the trial court committed error requiring reversal in denying the jury’s request for the trial transcript. We disagree. Both defense counsel and the prosecutor were present when the trial court read the notes from the jury requesting the trial transcript. The trial judge discussed the contents of these notes with the prosecutor and defense counsel, who both agreed that no trial transcript existed and that the trial court should so advise the jury. Therefore, we conclude that the trial court did not abuse its discretion in denying the jury’s trial transcript request. People v Wytcherly (On Rehearing), 176 Mich App 714, 715-716; 440 NW2d 107 (1989).
Next, defendant argues that the trial court erred in improperly limiting his cross-examination of Ross regarding the charges and penalties Ross was facing and regarding the timing of Ross’ discussions with deputies about defendant’s murderous inquiries. A trial court’s limitation of cross-examination is reviewed for an abuse of discretion. People v Minor, 213 Mich App 682, 684; 541 NW2d 576 (1995).
The trial court did not prevent defendant from eliciting Ross’ criminal background. The court sustained the prosecutor’s objection to an inquiry by defense counsel regarding Ross’ status as a fourth-offense habitual offender. Before this objection, the defense had established that Ross was in the Oakland County Jail in June 1995 awaiting sentencing after pleading guilty to a charge of larceny by conversion, that he had pleaded guilty of being a fourth-offense habitual offender, and that he was residing in jail at the time of defendant’s solicitation trial. Immediately after the court had sustained the prosecutor’s objection, defense counsel went on to establish that Ross had received a one-year sentence and had been granted work release. Defense counsel further inquired whether Ross had been promised anything in exchange for his testimony against defendant, to which Ross responded negatively, and questioned Ross regarding a previous situation in which Ross had testified against someone accused of solicitation of murder. We conclude that any alleged error in the trial court’s precluding defendant’s inquiry regarding Ross’ fourth-offense habitual offender status was harmless in light of defendant’s extensive cross-examination.
We find no error requiring reversal in the trial court’s sustaining the prosecutor’s objection to certain questions regarding Ross’ delay in reporting the alleged solicitation. Before the objection, defendant was able to elicit through extensive questioning that Ross was unsure about the timing of the events. Any alleged error would again have been harmless given defendant’s extensive cross-examination establishing Ross’ uncertainty regarding the sequence of events.
Finally, defendant claims that his sentence was excessive and disproportionate. This Court’s review of an habitual offender sentence is limited to considering whether the sentence violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630, 635-636, 650-654; 461 NW2d 1 (1990), without reference to the guidelines. People v Gatewood (On Remand), 216 Mich App 559, 560; 550 NW2d 265 (1996). A sentence constitutes an abuse of discretion if it is disproportionate to the seriousness of the circumstances surrounding the offense and the offender. Milbourn, supra at 636.
Defendant argues that the trial court abused its discretion in failing to take into consideration that he was a nonviolent offender and that his nine prior felonies were generally property-related crimes. Because defendant qualified as a fourth-offense habitual offender, the trial court had broad discretion to sentence him to any period of incarceration up to life. MCL 769.12(l)(a); MSA 28.1084(l)(a). The trial court sentenced defendant to a minimum term of fifteen years’ imprisonment. In light of defendant’s extensive record that included nine prior felony convictions, and considering the very serious nature of the crime, we conclude that the sentence was proportionate to the offense and the offender. Furthermore, even if defendant had not been a fourth-offense habitual offender, his minimum sentence would have fallen within the guidelines range and would have been presumptively proportionate. People v Albert, 207 Mich App 73, 75; 523 NW2d 825 (1994). Affirmed.
It is questionable whether this time should be charged to the prosecution under the circumstance that defendant agreed with the October 4 date as the beginning date for counting the 180 days. Had defendant asserted the August 11 date, it is possible that the prosecutor would have made a record regarding the prearraignment delay, would have challenged the court’s attributing only 194 days to defendant, and would have insisted on an earlier trial date.
Defendant argues that he should not be charged with the stipulated adjournments because the prosecutor failed to writ him out of prison to appear in court on the dates scheduled. We reject this argument because defense counsel also requested a pretrial motion hearing date, and because there is no indication that defendant could not have been brought to court well before the next scheduled date had counsel not stipulated the adjourned date. | [
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] |
North, J.
In June, 1923, Harold J. Hartline took out a life insurance policy in the sum of $1,000 in the plaintiff company. He died on the 16th of November, 1926. ' Each of the three defendants in this case made claim to the insurance, and thereupon the plaintiff filed a bill of interpleader. The trial court found that the mother of the insured, Nora E. Ream, was entitled to the insurance. The defendant Garold W. Hartline has not appealed and therefore is eliminated from this controversy; but the defendant Cleo Linsenmier, a sister of the deceased, has appealed to this court.
Garold W. Hartline, the twin brother of the insured, was the original beneficiary named in the policy. In March, 1926, the insured caused his sister, Cleo Lin senmier, to be made the beneficiary in the place of his brother, and the policy remained in the possession of this sister from the time of this change until the death of Harold J. Hartline. For a year or more before this change of beneficiary, Harold, who was seriously afflicted with tuberculosis, had lived with his sister; and about the time the beneficiary was changed the sister and her husband arranged that Harold should, be received as a patient at the Howell sanitarium.. This was done at the urgent request of his attending physician. The deceased continued to be a patient-at the sanitarium until about two months before his. death, at which time he was taken by his mother to her home in Niles, Michigan, where hé remained until he died.
Almost immediately after Harold came to his mother’s home she claimed that he desired to make her the beneficiary in the policy.’ An application for a change of the beneficiary was made to the insurance company; but the company declined to change the beneficiary unless the policy was surrendered to it for the purpose of making the proper indorsement thereon. An effort was made through an attorney to have Mrs. Linsenmier surrender the policy, but she did not do so. The trial court found as a fact that the insured desired at the time above indicated to make his mother the beneficiary under this policy and that he did all in his power to accomplish this; and the court also held as a matter of law that the insured had the absolute right to make the change, and therefore that the change of beneficiary should be decreed for him. As stated above, the mother was held to be the lawful beneficiary.
The appellant, Mrs. Cleo Linsenmier, claimed that she was not only the beneficiary under this policy by reason of the change made in March, 1926; but that she held a vested interest in said policy because it had been orally assigned to her at that time by her brother to secure to her the repayment of sums of money theretofore advanced to or paid out for the brother and payment to her for subsequent service rendered to him or expenditures thereafter made by her in his behalf. While the exact amount is not disclosed in the record, there is proof that the sister expended several hundred dollars in behalf of the insured.
The trial judge seems to have construed the case of Quist v. Insurance Co., 219 Mich. 406, as holding that the insured had the absolute right to change the beneficiary in his policy, and the court held as a matter of law that, notwithstanding Mrs. Linsenmier’s claim of a vested interest in this policy, no such right existed, and in consequence thereof declined to receive certain items of testimony offered by the appellant which she claims would have established such vested interest as a matter of fact. However, some testimony was taken, in consequence of which the appellant claims the assignment alleged by her has been proven. Such testimony of this character as was received was taken over the objection of the appellee, and that which was excluded was so excluded because of the objections made by the appellee. In his opinion the trial judge said:
“In my judgment such evidence is wholly irrelevant and immaterial, and cannot in any way affect the rights of the defendant Cleo to the proceeds of this policy. When the insured took out this policy he expressly reserved in the policy itself the right to change the beneficiary therein at any time. Under these circumstances our Supreme Court has repeatedly held that no beneficiary can acquire a vested interest in the proceeds of such a policy. Quist v. Insurance Co., 219 Mich. 406.”
The error arising from the application of the principles of law announced in the Quist Case to the present case is due to the dissimilarity of the facts involved. In this case the appellant relies upon her claim of a vested interest in the policy by reason of its having been assigned to her to secure payment to her of obligations of the insured; but in the Quist Case Justice Wiest expressly stated:
“Plaintiff does not claim she had ¿ vested interest that could not be cut off if the insured complied with the conditions relative to change of beneficiary.” ■
Mrs. Quist’s claim was solely that of a beneficiary whose interest as such was alleged not to .have been terminated by the regular method provided for changing the beneficiary. It was error to conclude that under no condition can an insured who has reserved in his policy the right to change the beneficiary hypothecate or assign his policy and by so doing create in the assignee a vested interest which the insured is powerless to change as long as the policy is so pledged. An interest so created is entirely distinct and different from that of a mere beneficiary. Metropolitan Life Ins. Co. v. O’Brien, 92 Mich. 584; Bland v. Bland, 212 Mich. 549; New York Life Ins. Co. v. Cook, 237 Mich. 303.
It follows that while the insured had the right and power to terminate whatever interest the appellant had as a beneficiary under this policy, he could not cut off her vested interest as an assignee. The extent of her fights as such assignee is a matter of proof. If the amount of the insured’s obligation to her equals or exceeds the amount of the policy, then the appellee has no interest therein; but if the amount of such obligations is less than the policy the balance belongs to the appellee because of the finding of the trial judge that she was the lawful beneficiary at the death of the insured. While we find competent proof in the record by which the alleged vested interest of the appellant as an assignee is established, unfortunately it is not possible to determine from the record the amount or extent of such interest, which would be the amount of the insured’s obligations to the appellant. Ordinarily, such obligations would have to be submitted as claims against the estate of the deceased; but the appellant has a specific lien upon the fund involved in this suit, and hence the whole matter should be determined herein by the taking of further proofs for that purpose only. Metropolitan Life Ins. Co. v. O’Brien, supra.
The case last above cited is very similar to the present case both as to the facts and the issues of law involved and Justice Long said:
“The assignment to Mrs. O’Brien was of the entire interest which the insured had in the policy. Upon its execution, the policy, with this assignment indorsed upon it, was turned over to her. She claims here that she took the assignment as a creditor; that the insured was indebted to her; and that thereafter she took care of, boarded, and clothed him, and also kept up the weekly payments on the policy. It is well settled that such a certificate could be assigned by the insured to secure a creditor; Archibald v. Insurance Co., 38 Wis. 542; Dungan v. Insurance Co., 38 Md. 242. Creditors, however, hold only what is necessary for their indemnity for the debt, and the representatives of the insured will be entitled to the balance. Page v. Burnstine, 102 U. S. 664; Downey v. Hoffer, 110 Pa. St. 109 (20 Atl. 655) ; Rison v. Wilkerson, 3 Sneed (Tenn.), 565.”
Counsel for the appellee has insisted both in his brief and in his oral argument in this court that the appellant did not assert in the lower court the claim of a vested interest in this policy upon which she now relies. The record shows conclusively that this contention of the appellee is contrary to the fact, and that the claim of a vested interest was specifically made in the answer filed by the appellant, that it was definitely referred to by counsel for both the appellant and the appellee while taking the proofs, and that it was considered and discussed by the trial judge in his opinion filed in the circuit court.
Complaint is made by the appellant because the trial court refused to allow appellant’s husband to refresh his recollection from a memorandum while testifying. The following from his testimony relates to this phase of the case:
“Q. When was that paper made?
“A. Made that out last night.
“Q. You made it out?
“A. My wife and I.
“Q. Was that made from memory of what had been done?
“A. Yes, sir.”
While it is well established that a witness may use a properly made memorandum for the purpose of refreshing his recollection while testifying, it is evident that the above showing was insufficient in that it does not appear to what extent the witness was the maker of the memorandum, nor does it appear whether it came from his memory or from his wife’s memory. This was of serious importance in this case because the wife could not testify as to matters equally within the knowledge of the deceased; and clearly it would have been highly improper to have allowed this witness to read what his wife remembered from a memorandum prepared by her. The extent to which a memorandum may be used by a witness to refresh his recollection while testifying is indicated by the following cases: Goodwin v. Insurance Co., 163 Mich. 41; Prussia v. Bailey, 193 Mich. 77.
The case is remanded to the court below where the parties may have an opportunity to take such further proofs as may be necessary to ascertain the true state of appellant’s account against the insured, including premiums paid on this policy by her; and so much of the proceeds of the policy as is necessary shall be used to pay the appellant; the balance, if any, shall belong to the appellee. The appellant -will have costs in this court.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. FLANNIGAN, C. J., did not sit.
The late Justice Bird took no part in this decision. | [
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Clark, J.
Defendant, convicted of manslaughter, brings error. Soon after the defense had opened and while its second witness was on the stand, and before defendant had been called as a witness, there was interruption to permit a character witness for defendant to testify out of order, and we quote from the record:
“I have known the defendant six or seven or probably eight years and know him quite intimately.
“Q. What would you say as to the truth and veracity of John E. Bucsko; is it good or bad?
“Mr. Stone: We object to that.
“The Court: You are basing this on the proposition that he is going to be a witness ?
“Mr. Chamoske: Yes, sir.
“The Court: I understand there is quite a broad distinction between truth and veracity and with the proposition of a law-abiding citizen. Understand you have no right to bolster up the witness’ standing or the defendant’s standing by having other witnesses state that that witness is generally a credible witness. You have a right to show his standing in the community as a law-abiding citizen in general. You have that undoubted right.
“Q. Are you acquainted with the reputation and character of the defendant as far as it relates to whether or not he is of a quiet and peaceful disposition in the community?
“A. Yes.
“Q. Would you say that his reputation for being a peaceful and law-abiding citizen is good or bad?
“A. Good.”
Counsel for defendant contend that the refusal to permit answer to the first question above quoted is error. But counsel based his right to an answer on the bare ground that defendant was going to be a witness. On that ground defendant, as the trial judge said, could not bolster up his standing as a witness by such testimony. Had counsel based his right to an answer on the ground that defendant was to be a witness and that the prosecution would seek to im peach him and to contradict his testimony by cross-examination or'by rebuttal testimony, a different question would be presented.
The trial court’s ruling, in view of defendant’s stated purpose in seeking answer, cannot be held erroneous.
The court instructed as follows:
“I charge you that if you find beyond a reasonable doubt that, at the time and place in question, John Bucsko intended to kill Levi Siglow and did kill him unlawfully, your verdict should be guilty of manslaughter if you believe that at the time of the shooting, John Bucsko’s reason was obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly, or without due deliberation, or reflection, and from passion, rather than judgment, but if you believe beyond reasonable doubt that John Bucsko was induced to kill Siglow, because of some provocation, and sufficient time elapsed between the provocation and the shooting for passion to subside and the judgment to re-enter, your verdict should be guilty of murder.”
The instruction is criticized as setting up as a guide an imaginary person and not the defendant, namely, “an ordinary man of fair average disposition.” The instruction follows Maher v. People, 10 Mich. 212, at page 220 (81 Am. Dec. 781), approved in People v. Poole, 159 Mich. 350 (134 Am. St. Rep. 722), and in People v. Droste, 160 Mich. 66, and as the rule there announced “has never been departed from in this State,” the instruction must be "held free from error.
The charge is also criticized in other particulars which we do not discuss, being of the opinion that, taken in its entirety, it gave the case fairly to the jury. We find no reversible error.
Judgment affirmed.
Sharpe, C. J., and Bird, Flannigan, Fellows, Wiest, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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McDonald, J.
This suit was brought to recover damages sustained in the purchase of certain bonds and stock, because of the wrongful acts and negligence of the National Hardwood Company and its directors. The declaration alleges that the plaintiff and others-who have assigned their causes of action to it, purchased bonds and stock of the National Hardwood Company in reliance upon statements and acts of the defendants which proved to be false and fraudulent. Before entering their appearance and pleading all of the defendants filed motions to dismiss on various grounds, the principal one being that the declaration did not state a cause of action because it did not allege that the bonds and stock were purchased from the defendants or any of them. On hearing the motions the circuit judge held that, for the reason stated, there could be no recovery, and entered an order dismissing the cause. The plaintiff has brought error.
In such cases an allegation that the bonds were bought from the defendants is not always necessary, but it is important because it always shows a direct connection between those who claim to have been deceived and those who1 made the false representations. The fault with this declaration is that it does not show any direct connection between the plaintiff and the defendants in the purchase of the bonds and stock. It does not show that any representations were made directly to the plaintiff or its assignors or were intended to be made to them by the defendants or any of them. The false representations relied upon were contained in three letters. Two of them were addressed to certain brokers who were selling bonds and stock. The other letter was sent to the stockholders offering to them the first opportunity to buy some treasury stock which the company was about to put on the market. No prospectus or other advertising matter was sent out to the general public. The plaintiff and its assignors were not stockholders at the time the letter to stockholders was sent out. They did not buy any of the treasury stock. They did not buy any bonds or stock from the brokers to whom the other letters were addressed. They bought in the open market from third persons a long time after the letters complained of were written.
“One of the essential elements necessary to sustain actions of this nature is that the false representations made should have been intended to influence the action of the particular person defrauded, or the action of a class of which he is a constituent member.” Greene v. Mercantile Trust Co., 111 N. Y. Supp. 802, 806.
The representations made in the letter to stockholders were made to a class to which the plaintiff did not belong. The representations made to the brokers were not made to the plaintiff and its assignors because they had no dealings with the brokers and make no claim that they were shown these letters. It is true that the letters were issued to induce the purchase of stock and bonds, but they do not accompany the bonds and shares of stock as they travel in their course up and down the market. The representations complained of wgre not made to induce the purchase of bonds from third parties. . The controlling question in all these cases is, Who did the defendants intend to influence by their representations ? Hindman v. National Bank, 112 Fed. 931 (57 L. R. A. 108).
We believe that the question here involved is ruled by Dinsmore v. National Hardwood Co., 234 Mich. 436, and cases therein cited. In that case we adopted the principles of Peek v. Gurney, 6 Eng. & Ir. App. 377. It is a leading case on the subject. But it should be understood that in approving of Peek v. Gurney we did not intend to hold that, in order to sustain an action, the bonds must in all cases be purchased from the parties who make the false representations.
In Hindman v. National Bank, supra, Judge Lurton, speaking for the court, said:
“But it was never meant to decide in Peek v. Gurney that a company’s prospectus might not be broad enough to stand not only as an invitation to original allotees, but to all others, who might be disposed to deal in the company’s shares.”
It is our conclusion that the declaration does not state a cause of action, and that the circuit judge was right in granting the motions to dismiss. This conclusion is not out of harmony in any way with our holding in Smalley v. McGraw, 148 Mich. 384, a case cited and relied on by counsel for the plaintiff. That case is distinguishable in this, that there the false representations were made to the public.
The judgment is affirmed, with costs to the defendants..
Fellows, Wiest, Clark, and Si-iarpe, JJ., concurred.
Justice Steere and the late Justices SNOW and Bird took no part in this decision. | [
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] |
Wiest, J.
Defendant, by exceptions before sentence, brings for review his conviction of a violation of the prohibition law. Under a search warrant his home was entered by officers and whisky and whisky mash seized. Before trial he moved suppression of the evidence so seized, claiming the warrant was void. This motion was denied and at the trial the liquor and the warrant went in evidence. The part of the search warrant material here was as follows:
“Whereas there has been filed with the undersigned an affidavit that intoxicating liquors are being manufactured, possessed, sold, furnished and given away contrary to law and are now concealed contrary to law in a dwelling house, farm and farm buildings, building situate upon premises described as: East one-half of the north-west one-quarter of section 23, range 15 west, town 7 north which said 'building is occupied by one Andrew Bules, and is a private dwelling, occupied as such, that said dwelling house is a place of public resort where moonshine whisky is manufactured, stored, possessed, sold and given away. And whereas, it appears to me, by the said affidavit that there is reasonable cause for such belief by the affiant.”
Then followed the command to search and seize. This warrant was void on its face, for omission to recite the material facts alleged in the affidavit upon which it was based. People v. Moten, 233 Mich. 169. That case is readily available and we need not repeat what we there said.
The mandate of the statute is clear, that the material facts alleged in the affidavit for the warrant shall be recited in the warrant, and the legislature even took the pains to set out a form, in which it directed the user to (“Here set out the material facts alleged in the affidavit”). The warrant neither states facts alleged in the affidavit nor does it carry the affidavit along with and as a part of the warrant. The law cannot be made plainer, and is but expressive of long time precedent established to prevent abuse. We deplore the carelessness evidenced here and so inexcusable if the statute was read, but we are bound to correct here such a palpable blunder. The evidence seized on the so-called search warrant should have been suppressed. Without such evidence there can be no conviction.
The conviction is reversed, and defendant discharged.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. | [
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CLARK, J.
In January, 1922, plaintiff bought of defendant shares of the capital stock of Grand Rapids Knitting Mills, paying therefor $2,500. In the declaration, filed more than a year later, plaintiff avers that he bought, relying on certain representations made to him by defendant, namely,
“that the said Grand Rapids Knitting Mills was the owner of the factory building which it used and occupied in the city of Grand Rapids, Michigan, and that the same was free and clear from all incumbrances and was of the value of upwards of seventy thousand dollars ($70,000) and that the money derived from the sale of said stock was to enlarge the said plant and add three additional stories to said factory building and that said company was in prosperous condition”—
and that the representations proved later to be false'.
Plaintiff had testimony to support the averment that it was represented to him by defendant that the corporation owned the factory building. It did not own it. It occupied under a lease which contained an option to purchase, which had not been exercised. Defendant denied making the representation. Plaintiff had verdict and judgment. Defendant brings error.
Testimony of others who also had bought such stock from defendant about the time in question, of his having made like representations to them to induce them to buy, was admitted as proof of scienter, with a view to the quo animo. The question is not without difficulty, but we think the testimony may not be held to have been improperly received in view of the following cases, which are accessible and from which we need not quote: Morain v. Tesch, 214 Mich. 699; J. B. Millet Co. v. Andrews, 175 Mich. 350; Radloff v. Ruggles Motor Truck Co., 229 Mich. 139; Jordan v. Miller, 232 Mich. 8.
“2. During the course of the opening argument to the jury, plaintiff’s counsel, Mr. James T. McAllister, said in substance that he believed this community was juggled out of a quarter of a million dollars by the defendant in the sale of the stock in question in this case and the following occurred:
“Mr. Ward: Counsel just stated to the jury that he believed this community were juggled out of a million and a half dollars—
“The Court: A quarter of a million.
“Mr. Ward: A quarter of a million dollars, and I object to it as wholly improper and out of place, prejudicial, and I ask the court to instruct the jury at the present time that they should not consider it.
“The Court: Well, I think I will. I have so often called attention to the fact we are trying this case upon its merits, or trying to try it upon its merits, and we -cannot try all of these other matters wherein some- ■ thing like you say a quarter of a million dollars worth >of stock was sold. There is no testimony in the case ■-‘that he believed this community was juggled out of a • quarter of a million dollars.
“Mr. McAllister: How much was the amount?
“The Court: That is not in this case.”
. The court thereupon outlined to the jury the issue in the case, concluding,
“Now, let’s confine ourselves to the issue: Did this defendant make these representations to the plaintiff as claimed and were they false?”
With due regard for the efforts of the judge to keep the case within bounds, we think the argument must be held to be prejudicial, in view of what had preceded it.
It is not disputed that the corporation was prosperous when plaintiff bought the stock. Nor is it disputed that its directors did consider and contemplate building additional stories on the factory building. During the life of the lease, the corporation might have exercised its option and become the owner of the property. But the business failed. The corporation became bankrupt. Defendant under the declaration is not called upon to defend a charge of having plundered the corporation, although testimony, admitted as bearing upon his good faith, seems to be addressed to fastening on him responsibility for the failure of the business. Inquiry was directed to what he owed the company, the total of his sales of stock which he had bought from the company, expenses, brokerage, profits, and what he had done with the money. This was foreign to the theory of recovery stated in the declaration. The court in his charge limited the inquiry:
“There is but one question of fact for you to determine and that relates to the alleged representation that the building was the property of this corporation and was free and clear from incumbrance.”
We think prejudice must have resulted from the incompetent evidence and the improper argument, despite the efforts of the court toward correction.
We quote from the charge:
“Some testimony has been offered as bearing upon the question of the truth of the claims here made by the plaintiff as to the representations made by the defendant of other sales after the sale of stock to the plaintiff. Of course, this case is not to be determined by what you may find the defendant may have said to others as to the ownership of this building, but by what you determine the defendant said to the plaintiff as to the ownership of the building. But undér the rules of law and the evidence, it is permissible to permit statements of a like nature made to others to be received in evidence as bearing upon this question and it was only for that purpose that this testimony was received.
“The request which has been offered by the defendant in that regard reads as follows and I think states the law and I so instruct you:
“ ‘The only purpose of admitting representations to outside parties is as bearing upon the intent of the defendant in making the same, if he did make them, to the plaintiff. This testimony must be strictly confined to that purpose. It must not be used by way of corroborating .the statements of the plaintiff that the defendant did make the claimed representations to him. There is nothing in the case, because defendant made certain representations to other parties, that he also made them to the plaintiff. You must not use it in the case for that purpose.’
“But, as I have said, it bears upon the question of the intent of the defendant. This testimony as to what was said to others, his purpose, his plans, his designs, and as bearing upon those elements, you have a right to consider that testimony as bearing upon the question of what he actually told or represented to the plaintiff.”
This is in part correct and in part misleading. Like representations made to others could not be used as substantive proof that the representations in question were made to plaintiff.
The plaintiff, if defrauded, had the choice of two inconsistent remedies: He might retain what he had received, that is, affirm the transaction and recover damages occasioned by the fraud; or he might rescind the sale and recover whatever of value he had parted with. The former action sounds in tort, and the measure of damages is the difference between what the stock actually was worth at the time of purchase and what it would have been worth had it been as represented. If the buyer elects to rescind and recover back, assumpsit for money had and received is a proper form of action. 35 Cyc. p. 606; Reed v. David Stott Flour Mills, 216 Mich. 616; Warnes v. Brubaker, 107 Mich. 440; Ripley v. Case, 86 Mich. 261; Murphy v. McGraw, 74 Mich. 318.
In the case at bar the declaration is in tort for damages occasioned by the fraud. It proceeds upon the theory of an affirmance of the contract and recovery of damages, not upon the theory of rescission and recovery back. Early in the trial it became apparent that counsel for plaintiff intended trial on the theory of rescission, and, objection being made, he so stated, and, over objection, trial on that theory was permitted. There was no claim of mistake, no offer to amend. In these circumstances plaintiff should have been held to trial on the theory of the declaration. Thomas v. Watt, 104 Mich. 201; Kremer v. Lewis, 137 Minn. 368 (163 N. W. 732); 20 C. J. p. 29; 13 C. J. p. 611; 24 R. C. L. p. 356; Mintz v. Jacob, 163 Mich. 280; Black v. Miller, 75 Mich. 323.
As to joining in a declaration counts on both theories, see Glover v. Radford, 120 Mich. 542.
Reversed. New trial granted. Costs to abide the result.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and McDonald, JJ., concurred. | [
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Sharpe, J.
These cases involve the same accident, were tried together in the court below, heard together here on a single record and will be disposed of in one opinion. Plaintiff Mabel Diederichs owned a Ford coupé which she drove daily from her home in Warren-dale subdivision to her place of employment, a distance of about nine miles. Edwin Wingar was a neighbor of hers. On January 5, 1924, in the early morning he was riding with Mrs. Diederichs to his place of employment. They were driving on Warren avenue. Defendants Duke and McCracken did business as Duke Cartage Company and defendant Tacia was one of their drivers operating a speedwagon with trailer attached, hauling automobile bodies from Detroit to Toledo. The speedwagon and trailer were either standing on Warren avenue or moving slowly; there was testimony that the tail lights were not burning. Mrs. Diederichs’ car came into collision with the rear end of the trailer; her car was completely demolished; she received slight injuries; and Mr. Wingar was quite seriously injured. He later died although the testimony did not connect the accident and his death. Tekla G. Wingar is his widow and administratrix of his estate. Two questions are before us:
(1) Was there sufficient evidence to take the question of defendants’ negligence to the jury?
(2) Should the court have directed a verdict for defendants on the grounds of contributory negligence of Mrs. Diederichs?
Plaintiff’s testimony tended to show that the tail lights on the trailer were not burning; defendants’ that they had been lighted but a few minutes before; all agree that it was early in the morning; plaintiff’s testimony tended to show that it was quite dark at the point of accident; defendants’ that there was considerable light coming from a filling station and a street lamp nearby. Upon this record we think defendants’ negligence and whether it was the proximate cause of the accident presented questions for the jury. Hanser v. Youngs, 212 Mich. 508.
Mrs. Diederichs was driving with her dimmers on and defendants insist the court should have held as matter of law that she was guilty of contributory negligence. It is settled law in this State that one driving an automobile in the dark at such a speed that it can not be stopped within the distance objects may be seen ahead of it is guilty of negligence. Spencer v. Taylor, 219 Mich. 110; Gleason v. Lowe, 232 Mich. 300; Holsaple v. Sup’ts of Poor of Menominee Co., 232 Mich. 603. But Mrs. Diederichs gave testimony to this effect: That with her dimmers on she could see ahead 20 to 25 feet; that she was driving about 12 miles an hour; that going at that rate she could stop her car on a dry pavement within 10 or 12 feet; that coming 'down Warren avenue that morning the pavement was dry; that when she saw the trailer ahead of her she at once applied her brakes only to learn too late that there was a small strip of icy pavement just behind the trailer which was the same color of the pavement and was not discernible from it; had the pavement been of the same character she had been driving over that morning she could have stopped in time to have avoided the accident. Whether driving with only dimmers on or any other negligent act of Mrs. Diederichs caused or contributed to the accident was, we think, a question for the jury under all the testimony. Beebe v. Hannett, 224 Mich. 88, and authorities there cited; Gleason v. Lowe, supra.
The judgment will be affirmed.
Bird, C. J., and Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Snow, J., did not sit. | [
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Sharpe, J.
The plaintiff is an Illinois corporation, engaged in the conduct and maintenance of an educational institution at Chicago for the teaching of osteopathy, and has a hospital in connection therewith. The defendant James B. Littlejohn, hereinafter called the defendant, is a graduate in medicine and surgery of the University of Glasgow, Scotland. He came to Chicago in 1896, and, after practicing for four years, during which time he studied osteopathy at Kirksville, in Missouri, he organized the American School of Osteopathic Medicine and Surgery. The degree of Doctor of Osteopathy was conferred upon him by the Chicago school, and also upon his wife, the defendant Edith Littlejohn. Both of the defendants taught in this school. In 1908, its name was changed to Littlejohn College and Hospital. It was at all times under the control of the defendants and their relatives. It occupied premises at 1422 West Monroe street, the title to which was in the defendants. In 1913, they entered into an arrangement with another group of the osteopathic profession in Chicago, whereby they united under the name of the plaintiff and rented from defendants the property on Monroe street for its use. The defendant was trustee and vice-president of the plaintiff corporation, and dean of its faculty, from the time of its organization until about 1920, when he resigned. He taught in the institution continuously during that time. He also enjoyed a large private practice in medicine and surgery, supplying a considerable percentage of the patients received at the hospital.
Dr. L. J. Blakeman became a licensed osteopath in 1914, and a Doctor of Medicine and Surgery in 1917. He was a member of plaintiff’s faculty in 1917 and 1918, and was associated with the defendants in their private practice, occupying the same offices with them. Myron W. Bowen was employed by plaintiff as its business manager in the spring of 1917. He and Dr. Blakeman were friends of many years’ standing.
The plaintiff wanted additional room. Its business manager interested himself to secure it. The purchase of a property known as the Home for Jewish Friendless and Working Girls was discussed at a meeting of the board of trustees on January 16, 1918. A number of the members of the board, including the defendant, and accompanied by Bowen, visited and inspected the property. At a later meeting on February 2d, at which the minutes show the defendant was present, Bowen was instructed to enter into a contract for the purchase of this property for $130,000, $5,000 to be paid on the signing of the contract, $15,000 when abstracts of title were approved, and the balance on terms agreed upon. When the contract and the conveyance which followed were executed, defendants’ names appeared as vendors therein. They had purchased the property from the Jewish Home corporation for $100,000. Of this plaintiff’s board of trustees had no knowledge.
It is defendant’s claim that in 1916 there was friction between himself and the faculty of the college, and that he conceived the idea of establishing a hospital of his own; that he communicated his plans to Dr. Blakeman, and that in January, 1917, they entered into an agreement to purchase, equip and maintain a hospital and clinic in Chicago for their private patients; that their attention was called to the Jewish Home as a building suitable for their requirements ; that they inspected it; that he interviewed Mr. Rosenwald, its president, with a view to its purchase, and was told that it was in the hands of Mark Levy & Brother for sale; that he saw these agents, and was informed that the price was $160,000. In further interviews, delayed by the defendant desiring to be assured that they could procure a hospital license, an offer of $125,000 was made by him, conditional on the vendor’s taking over defendant’s equity in the property then occupied by plaintiff, at $70,000, to apply thereon; that this offer was declined and the suggestion made that the college property be placed in the hands of a broker near it for sale; that defendant interviewed Jackson Brothers, real estate agents, with this in mind; that finally, about January 1, 1918, Levy offered to accept $100,000, and that on January 15th the terms of payment were agreed upon as follows: $5,000 cash, $5,000 upon execution of contract, $10,000 in six months, $50,000 first mortgage, and $30,000 second mortgage; that the execution of a written contract was delayed until February 1st, awaiting the issuance of a hospital license to defendant.
He further claims that Bowen, plaintiff’s business manager, upon learning of defendant’s proposed purchase and intention to establish a hospital and clinic, urged him not to do so, saying that it would tend to ruin plaintiff’s business and be injurious to osteopathy in general; that, after much urging from Bowen and other members of the osteopathic profession, he advised Bowen that he would sell the Jewish Home property to the plaintiff for $130,000, on terms similar to those in his contract of purchase, with an additional payment of $30,000, and that the proceedings of plaintiff’s board on January Í6th and February 2d were taken, as he supposed, with full knowledge that the plaintiff was purchasing the property from him. He further claims that he then advised Bowen to have the necessary papers prepared to complete the deal, and that Bowen caused deeds to be executed by the home corporation to defendants and from them to plaintiff, and trust deeds and notes to secure the sums unpaid, and that they were executed and delivered about April 1st.
It is plaintiff’s claim that none of its officers, except the defendant and Bowen, had any knowledge that the defendant was interested in the Jewish Home property until after the last of its notes was paid in 1924.
In the meantime, the defendants had removed to Mecosta county, in this State. Plaintiff brings this action in fraud and deceit to recover the $30,000 received by defendant over and above that paid to the Jewish Home corporation. Its motion for a directed verdict, made at the conclusion of the proofs, was denied, and the case submitted to the jury, who found for the defendants. Plaintiff reviews the judgment entered thereon by writ of error.
Directed Verdict. The misrepresentations on which plaintiff relies to establish its claim of fraud are:
First, That $130,000 was the lowest price at which the property could be purchased, and,
Second, That it was purchasing direct from the Jewish Home corporation.
There was -no proof that the defendants, or either of them,- personally, made any such representations to plaintiff’s board of trustees, or to any of its officers. There is proof that at the meeting held on February 2d, at which the board decided to make the purchase, Bowen either read a letter, or stated its- contents, from Jackson to him as business manager, in which a proposition was submitted under which plaintiff might purchase the property for $130,000. The name of the owner was not stated therein. Conceding that the board might assume that it could not be purchased at a lower price, and that the purchase was to be made direct from the Jewish Home corporation, and having in mind the testimony of Jackson that the defendant was present in his office at the time the letter was written, we have the denial of the defendant that he was so present, or that he had any knowledge that such a letter had been written or that Jackson had any authority from him to write it or Bowen to present it. He denies that he was present at any of the meetings of the board when the matter was considered, and states as the reasons for his absence, first, that he expected Bowen would place the proposition he had made to him to sell the property to the plaintiff for $130,000 before the board, and he did not want to be present when it was considered, and, second, that at the time these meetings were held he was in attendance at the Kent School of Law, in Chicago, in which he was receiving instruction preparatory to being admitted to practice as an attorney. In support of the claim that he was so absent, the records of the law school on those dates were produced and showed his attendance thereat.
It is urged that as defendant accepted the benefit of the transaction entered into, he may not dispute the authority of Bowen and Jackson to act for him. The deal, as finally consummated, was in accordance with the proposition that defendant testified he made to Bowen as business manager of the plaintiff, and he further testified, in effect, that he supposed this proposition was submitted to the board and that their action was founded-upon it. While the proceedings sub sequent thereto have a bearing on defendant’s veracity and the weight to be given to his testimony, we cannot say, considering the entire transaction and all the proof relating to it, that under the undisputed material facts plaintiff was entitled to a directed verdict.
Value of the Property. Error is assigned on the admission of evidence of the value of the property at the time of its purchase by plaintiff and at the time of the trial. In overruling the objection thereto, the court said:
“My ruling is this: That you have, in general language, in your declaration charged fraud in. several ways. The court holds that the charge of fraud opens a wide door, and wide latitude of inquiry both pro and con; therefore I think that this is within the proper scope of inquiry, and you may proceed.”
As already stated, one of the false representations claimed by plaintiff was that defendant, by his agents, Bowen and Jackson, induced plaintiff to pay $130,000 for this property by leading it to believe that this sum was the price asked for it by the Jewish Home corporation, when the plaintiff could at that time have purchased it from the owners for $100,000. The measure of damages in case the plaintiff recovered was fixed and certain. The actual market value of the property was not in issue. Defendants’ counsel so concede, but insist that it was admissible “on the question of good faith and whether or not the defendants were guilty of fraudulent conduct.” They quote the rule laid down in 27 C. J. p. 60, and cite the following Michigan cases: Stone v. Covell, 29 Mich. 359; Banghart v. Hyde, 94 Mich. 49; Grabowsky v. Baumgart, 128 Mich. 270; Aldrich v. Scribner, 146 Mich. 609; Neal v. Neal, 181 Mich. 114.
In our opinion, these authorities are not applicable to the facts here presented. Plaintiff was not claiming that it was defrauded by having been induced to pay a price in excess of the value of the property. It was claiming that, by misrepresentations made to its board of directors, the defendants secured a profit of $30,000 on the purchase of this property by plaintiff and should be required to return that money. That the property was worth more or less than the sum paid was not in issue. Had the plaintiff purchased from the owners, as it claims it could and would have done were it not for the representations made, it would have saved $30,000. Upon that issue, the testimony admitted as to value was in no way material.
The good faith of the defendant was not involved. His relation to the plaintiff was of a fiduciary character. If he was present at the meetings at which the purchase was discussed, and led the board to believe from his silence that its purchase was made direct from the Jewish Home corporation, and that the price asked was that fixed by the corporation, or if Bowen, acting for defendant, so represented, whereas in fact the purchase was being made from him, and, if the plaintiff might at that time have purchased the property for the sum of $100,000, then plaintiff has made out a case under the allegations in its declaration. The defendant denies all the charges on which plaintiff bases its claim of fraud. The issue is clean cut. Whether plaintiff made a good bargain is immaterial. The proof admitted showed very clearly that plaintiff had not suffered a loss. Its effect upon the jury could not but have been prejudicial.
Bowen’s Deposition. Bowen’s deposition was taken by plaintiff on October 28, 1924, at Minneapolis, where he then resided. He was examined by plaintiff’s counsel, and cross-examined by defendants’ counsel. Plaintiff’s counsel did not offer it in evidence. After defendants’ proof had been submitted, but before they rested, their counsel called the attention of the court to the fact that this deposition had been taken by plaintiff and that they had not offered it, and requested that they now offer it. Plaintiff’s counsel conceded that the defendants might offer the cross-examination, but insisted that, if the examination in chief was read, it must be treated as the testimony of a witness for defendants. The court ruled:
_ “I think they have a right to insist that the deposition be read, the direct-examination and the cross.”
Plaintiff’s counsel then asked:
“Do I understand this comes in as a part of the defendants’ case?”
To which the court replied:
“No. The direct testimony should be read by plaintiff.”
Discussion followed as to whether defendants’ request should not have been made before the close of plaintiff’s case. The court criticized defendants’ counsel for not making the request at that time, but, over objection, required plaintiff’s counsel to then read the direct-examination. Error is assigned on this action of the court.
A reading of Bowen’s testimony clearly shows that a part of it was prejudicial to plaintiff and a part of it was also in flat contradiction of the testimony of the defendant. The plaintiff did not offer it as a part of its case, and the defendants were averse to putting it in as a part of their proofs.
The deposition was taken pursuant to section 12494 et sea., 3 Comp. Laws 1915. Section 12500 provides:
“Depositions taken under this act may be read and considered in evidence at the trial,” etc.
Circuit Court Rule No. 37 reads:
“When a deposition has been taken by either party, it may at any time be read by the other party on the trial.” * * *
This rule was referred to with approval in McDonald v. Smith, 139 Mich. 211, 220. It was doubtless adopted in view of the holding by Shaw, C. J., in Dana v. Underwood, 19 Pick. (Mass.) 99, 104, that a deposition taken by a party who failed to offer it might not be read by the opposite party except by consent.
The plaintiff was under no obligation to offer the deposition as a part of its case. It could not withdraw it from the files. Unless suppressed by the court, the defendants were at liberty to use it. But, if they did, they made the witness their witness. The question is a new one in this State, but many other courts have so held. Hovey v. Hovey, 9 Mass. 216; Hale v. Gibbs, 43 Iowa, 380; Morrison v. Insurance Co., 59 Wis. 162 (18 N. W. 13); City of Bloomington v. Osterle, 139 Ill. 120 (28 N. E. 1068); McCormick Harvesting Machine Co. v. Laster, 81 Ill. App. 316; Pennsylvania R. Co. v. Anda Co., 131 Ill. App. 426. See, also, 18 C. J. p. 731, and note to § 342.
Right to Cross-Examine. The plaintiff took the deposition of Dr. Blakeman. He was not cross-examined. It was introduced in evidence and read to the jury. At the trial, the doctor was called as a witness by the defendants, and examined at length. On cross-examination, plaintiff’s counsel asked:
“At the time of the taking of the deposition, you did not know who got the proceeds of this $30,000, did you?”
On objection, the court held generally that plaintiff “could not cross-examine him in reference to matters in his deposition,” but permitted cross-examination as to all matters testified to by him in court. The cross-examination apparently covered all matters relating to the transaction of which the witness had any knowledge. We find no reversible error in the ruling complained of. When the plaintiff offered his deposition, it made him its witness, and under the familiar rule could not impeach him. It might, however, and did, offer proof tending to show that some of the statements made by him were not true.
Errors in the Charge. Several errors are assigned on the charge of the court to the jury, and, particularly, on the instructions “that these defendants had the right to purchase the property in question for themselves,” and that, even though they found that Bowen acted fraudulently, the defendants were not bound by his conduct “unless they wilfully and intentionally participated therein.”
Notwithstanding the fact that the defendant as a trustee of plaintiff occupied a relation of trust and confidence to it, he was at perfect liberty to purchase this property and sell it to plaintiff at an increased price, if plaintiff’s board of trustees was advised of the facts, or should have been advised thereof by their business manager, Bowen. If, however, there was an arrangement or understanding between the defendants and Bowen, whereby he was to conceal from the plaintiff the interest of defendants in the property, and the fact that defendants would make a profit on the sale, then the act of Bowen in presenting the proposition to the trustees would be the act of the defendants. In view of what has been already said, we apprehend that the trial court will find no difficulty in presenting the claims of the parties, and the rules of law applicable thereto, on a new trial.
The judgment is reversed and set aside, and a new trial granted, with costs to appellant.
Steere, Fellows, Clark, and McDonald, JJ., concurred. Bird, C. J., and Wiest, J., concurred in the result.
Justice Moore took no part in this decision. | [
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] |
Sharpe, J.
This is an action by plaintiff, William M. Stewart, doing business as Consulting En gineering Service, against defendant, Paul Eghigian, doing business as PauPs Motor & Machinery Supplies Company and as Vermont Tool & Manufacturing Company, for services claimed to have been rendered under a written contract.
The agreement relied upon by plaintiff was entered into January 26, 1943, and provides that plaintiff was to assist defendant in obtaining such machine work and other work incidental thereto as defendant could machine or process; to assist the defendant in the handling of all phases of priority problems, subject to directives of the War Production Board; to help and assist in obtaining subcontracts; to assist in expediting tools and production parts; and to give engineering advice. The agreement also provided that plaintiff was to receive a weekly salary of $100; and that the contract could be cancelled by either party upon written notice effective 90 days after such notice was given. Defendant paid the weekly salary for five weeks and then terminated the contract. Plaintiff brought action for $1,200 representing compensation for an additional 90 days under the cancellation clause in the contract. Defendant filed a cross decláration for $500 based upon the claim that plaintiff failed to render any service to defendant.
The cause came on for trial, a jury was impanelled who returned a verdict for plaintiff in the sum of $1,200. Thereafter, defendant made a motion for a new trial upon the ground that the verdict was against the great weight of the evidence; that the contract was contrary to public policy; and that the verdict as rendered was irregular and void in that no disposition was made by the jury of defendant’s counterclaim.
The trial court denied the motion for a new trial and directed a verdict against defendant of no cause of action nunc pro tunc.
Defendant appeals and urges that it was error for the court to permit to be asked of witnesses questions designed to emphasize the wealth of defendant and relies upon Forman v. Prudential Insurance Company of America, 310 Mich. 145. In that case the action was to recover monthly payments for disability. The only issue was the disability of plaintiff. We there held that it was error to question plaintiff as to his financial affairs. We said (p. 156): “In this jurisdiction it has been quite uniformly held that, if otherwise irrelevant, admission of testimony as to a litigant’s wealth tends to create prejudice the same as testimony of poverty tends to create sympathy; and in either case constitutes reversible error.” In the case at bar, defendant was asked questions which tended to bring to the attention of the jury that his factory had 175,000 square feet of floor space; that his machinery business was one of the largest in this part of the country; and that at one time defendant purchased two machines paying $25,000 for them. We note that the testimony concerning the purchase of the building defendant now occupies was brought into the case upon direct examination. We also note that on direct examination defendant offered in evidence a cancelled check payable to plaintiff in the sum of $1,300 which represented a commission paid to plaintiff for the sale of two machines. It was not error to cross-examine defendant upon subjects that were brought out on direct examination and which had some relation to the issue involved.
We cannot say that the verdict was against the great weight of the evidence. The issue was whether plaintiff rendered services as specified in his contract. Plaintiff testified that he collected an account in the sum of $4,600; that he assisted in getting defendant’s brother out of the army; that he furnished defendant with blueprints and generally advised him on matters pertaining to his business. There is evidence in the record from which a jury could find in favor of plaintiff.
It is next urged that the verdict was ambiguous and incomplete as.it failed to dispose of defendant’s claim for money paid to plaintiff.
Section 14135, 3 Comp. Laws 1929 (Stat. Ann. § 27.829), provides:
“If the amount of the set-off duly established, be equal to the plaintiff’s debt or demand, judgment shall be entered that the plaintiff take nothing by his action; if it be less than the plaintiff’s debt or demand, the plaintiff shall have judgment for the residue only.”
The next section, being 3 Comp. Laws 1929, § 14136 (Stat. Ann. §27.830), provides:
“If there be found a balance due from the plaintiff in the action to the defendant, judgment shall be rendered for the defendant for the amount thereof.”
Our court has never been called on to decide the precise question involved in this case, but the following authorities relate to the issue involved.
In 27 R. C. L. p. 855, in discussing the verdict of a jury where more than one issue is involved, it is stated:
“Thus a general verdict is sufficient in an action of assumpsit without finding specifically on a plea of set-off, or payment. In such eases the finding on one issue necessarily disposes of the rest.”
In 38 Cyc. p. 1890, it is said:
“Upon a general denial and counterclaim pleaded, a general verdict for plaintiff is sufficient to dispose of both issues.”
In Guthrie v. Brown (syllabus), 42 Neb. 652 (60 N. W. 939), it is held:
“When a defendant answers denying the allegations upon which plaintiff’s claim is founded and at the same time pleading a counterclaim a general finding for the plaintiff is sufficient to dispose of the issues, both on the petition and on the counterclaim.”
In Harris v. Tiffany & Co. (side note), 47 Ky. 225, it is held:
“A general verdict for the plaintiff is a valid finding by the jury, although set-off be pleaded; the general finding for the, plaintiff being in effect a rejection of all set-off.”
In Heiferman v. Greenhut Cloak Co., 83 Misc. Rep. 435 ([syllabus] 145 N. Y. Supp. 142), it is held:
“A general verdict in favor of plaintiff is a determination against all matters of defense set up by defendant. ’ ’
In Fidelity & Deposit Co. of Maryland v. Verheyden, 243 Mich. 544, a verdict was rendered against three , defendants in an action of assumpsit. On motion of the attorney for plaintiff judgment was entered against defendants Yerheyden and Pletsch and no cause for action as against defendant General Commodities, Incorporated. Under plea of the general issue, defendants Yerheyden and the company gave notice of set-off. We there said: “The verdict of the jury eliminated the claim of set-off.”
In the case at bar, the issue was whether plaintiff performed or was ready to perform his contract. If he did so, he was entitled to a verdict at the hands of the jury. If he did not so perform, then defendant was entitled to a verdict. The jury found in favor of plaintiff and by so doing necessarily found that defendant was not entitled to a verdict in any amount. Under the circumstances in this case it was not necessary for the jury to find specifically that defendant was not entitled to a verdict in any amount. The verdict being sufficient as a finding of no cause for action against defendant disposes of defendant’s claim that the trial court was in error in directing a nunc pro tunc verdict against the defendant of no cause of action.
It is also urged that the trial court was in error in instructing the jury as follows:
“And then if you find that the defendant has by his cross-declaration proven his case — he claims that he is entitled to $500 — in accordance with the preponderance of evidence rule as you have heard it, and for which no consideration was obtained; in other words, if defendant has proven it was a fraudulent contract from the beginning and that the sum of [for?] which he is suing had been paid to.the plaintiff by reason of such fraud, and that no service was performed by the plaintiff, then in that case, you will find for the defendant, the form of your verdict being: We find in favor of the defendant, fixing the sum at $500, the alleged amount that he claims here. ’ ’
The above instruction must be considered in connection with the following instructions given to the jury:
“If the plaintiff did not perform the terms of the contract or was not ready and willing and able to perform the terms of the contract then, of course, the 90-day clause does not control, for, in that case the plaintiff would not be entitled to notice of any kind in order to have the contract terminated.
“And on the other hand, if the plaintiff was ready and willing and able to perform the terms of the contract, and did so perform, and the defendant, without reason, did discharge him, then the plaintiff is entitled to his money. The contract assumes that each one will honestly carry out the obligation that rests upon him in accordance with the terms of the contract. ’ ’
Under the pleadings in this case and the - evidence produced upon the trial, the question of fraud in the inducement of the contract should not have been submitted to the jury, but under the instructions given, the jury must have considered first the claim of plaintiff. The instruction complained of could only have been considered when. and if the jury found that plaintiff had not established his case. The jury having found in favor of plaintiff had no occasion to consider the instruction complained of. Under such circumstances there was no prejudicial error in the instruction.
It is also urged that the court did not set forth fully and fairly the claims of the defendant in that the trial court failed to instruct the jury that defendant could terminate the contract if plaintiff failed to perform all services required by the terms of the contract. We note that defendant failed to request the. court to give specific instructions upon the point now complained of. Court Rule No. 37, § 9 (1933), reads in part: “The failure of the court to instruct on any point of law shall not-be ground for setting aside the verdict of the jury unless such instruction is requested.”
See, also, In re Einfeldt’s Estate, 286 Mich. 537; People v. Petrosky, 286 Mich. 397; Grzelka v. Chevrolet Motor Car Co., 286 Mich. 141; and Nezworski v. Mazanec, 301 Mich. 43.
Under the above authority, we hold that there was no error as complained of by defendant.
The judgment is affirmed, with costs to plaintiff.
Starr, C. J., and North, Carr, Btjtzel, Bushnell, Boyles, and Reid, JJ., concurred.- | [
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] |
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