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On order of the Chief Justice, the motion of defendants-appellees to extend the time for filing their answer is GRANTED. The answer submitted on March 4, 2019, is accepted as timely filed. | [
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On order of the Court, the application for leave to appeal the March 22, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the motion for reconsideration of this Court's September 24, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the motion for reconsideration of this Court's October 2, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the application for leave to appeal the January 9, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the motion for reconsideration of this Court's July 3, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the motion for reconsideration of this Court's September 12, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the application for leave to appeal the December 19, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the motion for reconsideration of this Court's October 2, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the application for leave to appeal the July 13, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to strike is DENIED. | [
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On order of the Court, the application for leave to appeal the April 17, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the May 18, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the May 15, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the May 10, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 22, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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] |
On order of the Court, the application for leave to appeal the February 5, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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By order of February 20, 2018, the application for leave to appeal the August 10, 2017 judgment of the Court of Appeals was held in abeyance pending the decision in People v. Straughter (Docket No. 156198). The appellant having now moved to amend his application to withdraw the issue under consideration in Straughter, that motion is GRANTED, and the application is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court. The motion for a Franks hearing is DENIED. | [
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On order of the Court, the motions to supplement and amend are GRANTED. The application for leave to appeal the July 21, 2017 order of the Court of Appeals is considered. We DIRECT the defendant's former appellate counsel, Suzanna Kostovski, to file a supplemental brief within 28 days of the date of this order addressing why she did not visit the defendant until days before the deadline for seeking direct appellate review; and to indicate what, if any, pre-visit contact she had with the defendant. We DIRECT the defendant's former appellate counsel, Arthur Rubiner, to file a supplemental brief within 28 days of the date of this order indicating what contact he had with defendant, specifically in regards to the motions to withdraw the no contest plea filed in the trial court; and addressing the reasons for his failure to file an application for leave to appeal in the Court of Appeals.
The application for leave to appeal, motion to remand, motion for an evidentiary hearing, and motion for peremptory reversal remain pending. | [
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On order of the Court, the application for leave to appeal the June 11, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 25, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant's motion for relief from judgment is prohibited by MCR 6.502(G). | [
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On November 19, 2018, the Court heard oral argument on the application for leave to appeal the July 6, 2017 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I concur in denying appellant's application for leave to appeal, but dissent from the majority's decision to leave intact those aspects of the published Court of Appeals opinion holding or implying that when the trial court's findings are based in part on facts established by video evidence, a trial court's factual findings are entitled to less deference on appellate review. Instead, I would reiterate that factual findings of the trial court are reviewed for clear error. MCR 2.613(C) ; People v. Bylsma , 493 Mich. 17, 26, 825 N.W.2d 543 (2012) ("A ruling is clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.") (quotation marks and citation omitted).
The Court of Appeals judgment states in part that "we need not rely on the trial court's conclusions as to what the videotape contains." People v. Kavanaugh , 320 Mich. App. 293, 298, 907 N.W.2d 845 (2017). In the present case, the trial court declined to review the video before ruling on defendant's motion to suppress. It is also unclear from the record the degree to which the trial court relied on the video evidence in denying defendant's renewed motion to suppress. In my judgment, because there is uncertainty regarding whether the trial court made factual findings based on the video, to the extent the trial court's factual findings were based on the video, the Court of Appeals could not have reviewed those factual findings for clear error. Therefore, the Court of Appeals' assertion that it "need not rely on the trial court's conclusions as to what the videotape contains" is obiter dictum that creates confusion about the appropriate standard of review of trial court factual findings. I believe that this statement is best vacated to avoid allowing an erroneous statement of law to have precedential effect pursuant to MCR 7.215(C)(2).
Markman, C.J., joins the statement of Wilder, J. | [
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On order of the Court, the motion to amend the application is GRANTED. The application for leave to appeal the July 18, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 23, 2018 judgment of the Court of Appeals, and the application for leave to appeal as cross-appellant are considered, and they are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I respectfully dissent from this Court's order denying leave to appeal. The Court of Appeals in a split decision held that defendant was entitled to a new trial because the prosecutor violated his duty to disclose exculpatory and impeachment evidence to the defense under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose two reports that had been prepared by Child Protective Services (CPS) in 2010 and 2013 concerning alleged sexual abuse by defendant. People v. Butsinas , unpublished per curiam opinion of the Court of Appeals, issued January 23, 2018 (Docket Nos. 327796 and 327799) 2018 WL 521819. Judge O'BRIEN dissented with respect to the granting of a new trial, concluding that it was "not necessary because the reports are not material when viewed in totality." Butsinas , unpub. op. at 2 ( O'BRIEN , J., concurring in part and dissenting in part ).
"[T]he components of a 'true Brady violation,' are that: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material." People v. Chenault , 495 Mich. 142, 150, 845 N.W.2d 731 (2014). "To establish materiality, a defendant must show that 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Id ., quoting United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). I do not address at this time whether knowledge of the CPS reports should be imputed to the prosecutor for the purposes of the first Brady component, see Kyles v. Whitley , 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (explaining that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case"), nor do I address whether the CPS reports were "favorable to the accused," because for the reasons thoroughly explained by Judge O'BRIEN , the third component, the requirement of materiality, was not satisfied here.
Concerning the 2010 CPS report, which indicates that the victim failed to inform CPS during that investigation that she had been abused by defendant, I fail to discern how defendant would have been acquitted had defense counsel been in possession of this report largely because the information therein is cumulative to the information presented at trial given that all witnesses, including the victim herself, agreed that she never disclosed such abuse to anyone at the time. Furthermore, the victim's sister testified at trial that she had filed a complaint with CPS around 2010 regarding defendant and that nothing resulted from her complaint. Indeed, during closing arguments, defense counsel observed that if a complaint had been filed with CPS by the victim's sister, defendant was presumably vindicated. Given these circumstances, the jury likely inferred that CPS interviewed the victim around 2010 and she did not disclose that defendant was abusing her.
In concluding that possession of the 2010 CPS report would have aided the defense, the Court of Appeals reasoned that defense counsel "likely would have" presented a witness "to educate the jury regarding the techniques routinely employed to elicit truthful information in similar circumstances" and that such a witness "could have" been used by defense counsel to illustrate for the jury "the general accuracy and reliability of forensic interviews and interviewing techniques." Butsinas , unpub. op. at 11. However, as defendant himself acknowledges in his answer to the prosecutor's application for leave to appeal, "[t]he defense [in fact] presented Katherine Okra as an expert in forensic interview protocol," and Dr. Okra testified at length about that protocol. And as explained previously, the jury likely inferred that the victim had been interviewed by CPS in 2010, but that she did not disclose the abuse to CPS at that time. That is, the jury likely inferred that the victim did not disclose the abuse despite the forensic interview protocol. Consequently, the hypothetical offered by the Court of Appeals actually occurred at trial-a witness apprised the jury concerning forensic interview protocol-and it is thus unwarranted to grant a new trial in large part so that defendant can present the same evidence once more.
Concerning the 2013 CPS report, that report would likely have been even less helpful to the defense than the 2010 CPS report. First, the 2013 CPS report contradicted a police officer's testimony concerning the reason why the victim was not interviewed at Care House in 2013, but I fail to discern the significance of this contradiction in assessing whether defendant was guilty of the charged offenses. Second, the report indicated that the victim told the police that she had been sexually abused during the day, whereas she testified at trial that she was sexually abused at night. In my judgment, this is a relatively minor detail that would not have been given significant weight by the jury, given that the sexual assaults occurred both repeatedly and several years earlier. Third, the report indicated that the victim's sister disliked defendant, but this fact was also minimally relevant because the entire case was predicated on the victim's allegations. Put simply, as Judge O'BRIEN observed, the 2013 CPS report only includes "inconsequential pieces of impeachment evidence, which do not, in any conceivable way, undermine confidence in the jury verdict." Butsinas , unpub. op. at 3 ( O'BRIEN , J., concurring in part and dissenting in part ).
To summarize, the CPS reports here were not "material" under Brady and the Court of Appeals erred by concluding otherwise. Accordingly, I would reverse the Court of Appeals' ruling that defendant was entitled to a new trial on the basis of the alleged Brady violation and remand to that court to address defendant's remaining arguments that have not yet been addressed.
Zahra and Wilder, JJ., join the statement of Markman, C.J.
Caselaw from other jurisdictions suggests that it is far from settled that CPS is an agent of the prosecutor for the purposes of Brady . See, e.g., Harm v. State , 183 S.W.3d 403, 407 (Tex. Crim. App., 2006) ("CPS is charged with protecting the welfare and safety of children in the community. This duty may entail the investigation of child-abuse claims, but that alone does not automatically transform CPS case workers into law-enforcement officers or state agents."); People v. Terry , 19 App. Div. 3d 1039, 1039, 797 N.Y.S.2d 670 (2005) ("[T]he [CPS] report itself, if indeed one exists, is not Brady material because the prosecutor never possessed it.").
Furthermore, with regard to the "suppression" aspect of the first Brady component, I note that defense counsel indicated during the Ginther hearing that he had been aware of the existence of the CPS reports and that those, in fact, may have been obtained by defendant prior to trial because he was "[a] person named in the report or record as a perpetrator or alleged perpetrator of the child abuse...." MCL 722.627(2)(f) ; see also People v. Ginther , 390 Mich. 436, 212 N.W.2d 922 (1973). See also Michigan Department of Health and Human Services, Services Requirements Manual , SRM 131 (September 1, 2015), pp. 14, 16 (providing that "children's protective services case information or records" may be released to "[a] person named in a children's protective services investigation report as a perpetrator or alleged perpetrator of child abuse or neglect"), available at < https://dhhs.michigan.gov/OLMWeb/ex/SR/Mobile/SRM/SRM%20Mobile.pdf (accessed December 20, 2018)> [https://perma.cc/N4YT-PY8J]. While it is true that "a diligence requirement is not supported by Brady or its progeny," Chenault , 495 Mich. at 146, 845 N.W.2d 731, it is also true that "evidence that the defense knew of favorable evidence will reduce the likelihood that the defendant can establish that the evidence was suppressed for purposes of a Brady claim," id . at 155, 845 N.W.2d 731 (emphasis added). The Court of Appeals engaged in no significant analysis concerning whether one or both of the CPS reports were genuinely "suppressed" by the prosecutor. | [
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On order of the Court, the application for leave to appeal the June 25, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 18, 2018 order of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Ames (Docket No. 156077) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Court, the application for leave to appeal the July 18, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for reconsideration of this Court's July 27, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the application for leave to appeal the May 18, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the motion to file supplemental brief is GRANTED. The application for leave to appeal the May 15, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 24, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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M. J. Kelly, J.
Defendants/counterplaintiffs, Louise Fortson and Richard Fortson, individually and as conservator for their son, Justin Fortson, appeal as of right the trial court's order granting the motion of plaintiff/counterdefendant, Meemic Insurance Company, for summary disposition under MCR 2.116(C)(10) and denying the Fortsons' motion for summary disposition under MCR 2.116(I)(2). For the reasons stated in this opinion, we reverse.
I. BASIC FACTS
This case arises out of a motor-vehicle incident that occurred in September 2009. On that day, Richard and Louise's 19-year-old son, Justin, was riding on the hood of a vehicle when the driver suddenly accelerated and turned. The motion flung Justin from the vehicle, and he struck his head. Justin suffered extensive injuries, including a fractured skull, a traumatic brain injury, and shoulder bruising. He was initially hospitalized but eventually returned to his parents' home. According to Louise, Justin's brain injury continued to manifest itself after he returned home.
Justin received benefits under his parents' no-fault policy with Meemic. Relevant to this appeal, Louise and Richard provided attendant care to Justin. The record reflects that from 2009 until 2015, Louise submitted payment requests to Meemic for attendant-care services. On each request, Louise simply noted "24" on each day of the calendar, indicating that she and Richard had provided Justin with constant daily supervision. Meemic routinely paid these benefits, and Meredith Valko, a claims representative employed by Meemic, testified that these payment requests were sufficient because she knew that Justin had a serious traumatic brain injury with significant residual effects requiring "24/7" supervision.
Around 2014, Meemic initiated an investigation into Louise and Richard's supervision of Justin and discovered that they had not provided him with daily direct supervision. Indeed, the investigation showed that Justin had been periodically jailed for traffic and drug offenses and had spent time at an inpatient substance-abuse rehabilitation facility. Additionally, on social media, Justin had reported spending time with his girlfriend and smoking marijuana. Based on its investigation, Meemic concluded that the Louise and Richard had fraudulently represented the attendant-care services they claimed to have provided. Meemic terminated Justin's no-fault benefits and filed suit against Louise and Richard, alleging that they had fraudulently obtained payment for attendant-care services that they had not provided. Louise and Richard filed a counterclaim, arguing that Meemic breached the insurance contract by terminating Justin's benefits and refusing to pay for attendant-care services. The parties filed cross-motions for summary disposition. Relying on this Court's decision in Bazzi v. Sentinel Ins. Co. , 315 Mich. App. 763, 891 N.W.2d 13 (2016), lv. gtd. 500 Mich. 990, 894 N.W.2d 590 (2017), the trial court granted summary disposition in Meemic's favor.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Louise and Richard argue that the trial court erred by granting summary disposition in Meemic's favor. We review de novo a trial court's decision on a motion for summary disposition. Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc. , 285 Mich. App. 362, 369, 775 N.W.2d 618 (2009).
B. ANALYSIS
1. FRAUD
Louise and Richard first argue that the trial court erred by finding that there was no genuine question of material fact with regard to whether they committed fraud. We disagree.
Generally, whether an insured has committed fraud is a question of fact for a jury to determine. See Shelton v. Auto-Owners Ins. Co. , 318 Mich. App. 648, 658-660, 899 N.W.2d 744 (2017). However, under some circumstances, a trial court may decide as a matter of law that an individual committed fraud. See Bahri v. IDS Prop. Cas. Ins. Co. , 308 Mich. App. 420, 425-426, 864 N.W.2d 609 (2014). In order to establish that an individual committed fraud, the insurer must establish (1) that the individual made a material misrepresentation, (2) that the representation was false, (3) that when the individual made the representation he or she knew it was false or made it with reckless disregard as to whether it was true or false, (4) that the misrepresentation was made with the intention that the insurer would act upon it, and (5) that the insurer acted on the misrepresentation to its detriment. Titan Ins. Co. v. Hyten , 491 Mich. 547, 555, 817 N.W.2d 562 (2012). Here, Louise and Richard admit that they were aware that Justin was incarcerated and that he spent time at an inpatient drug rehabilitation facility. Despite the fact that Louise and Richard did not provide care for Justin during those times, Louise submitted payment requests to Meemic, stating that they had provided constant attendant care to Justin. That constituted a material misrepresentation. In addition, the payment requests were submitted with the intention that Meemic would rely on them and remit payment to Louise and Richard for constant attendant-care services, despite the fact that Louise and Richard knew that they were not providing constant physical care for their son. Further, although Louise and Richard provided other services to Justin while he was incarcerated or at inpatient rehabilitation, such as paying his car loan or lease and contacting his lawyers, those general tasks are not properly compensable as attendant-care services. See Douglas v. Allstate Ins. Co. , 492 Mich. 241, 259-260, 262-263, 821 N.W.2d 472 (2012) (stating that allowable attendant-care services must be for an injured person's care, recovery, or rehabilitation); see also MCL 500.3107(1)(a). Moreover, even if they were compensable, it cannot be seriously argued that Louise and Richard provided those services to their son on a "24/7" basis, as was claimed on the payment request form. As a result, the trial court did not err by finding that Louise and Richard had committed fraud in connection with their request for payment for attendant-care services. 2. APPLICABILITY OF BAZZI
Louise and Richard next argue that the trial court erred by determining that Justin's argument-i.e., that Meemic could not deny him coverage on the basis of fraud committed by other individuals-was, essentially, barred by Bazzi . In Bazzi , this Court concluded that the "innocent third party rule," also known as the "easily ascertainable rule," from State Farm Mut. Auto. Ins. Co. v. Kurylowicz , 67 Mich. App. 568, 242 N.W.2d 530 (1976), was abolished by our Supreme Court's decision in Titan . Bazzi , 315 Mich. App. at 767-768, 771, 891 N.W.2d 13. Under the innocent-third-party rule, an insurer could not use fraud as a defense to avoid paying no-fault benefits if (1) fraud in the procurement of the policy was easily ascertainable and (2) an innocent third-party claimant was involved. Id . at 771-772, 891 N.W.2d 13 ; see also Titan , 491 Mich. at 563-564, 817 N.W.2d 562. Here, because there are no allegations or evidence that Justin participated in or even benefited from his parents' fraud, he is properly considered an innocent third party, which implicates the holdings in Bazzi and Titan .
Nevertheless, Bazzi and Titan addressed fraud in the procurement of an insurance policy, not fraud arising after the policy was issued. Titan , 491 Mich. at 571, 817 N.W.2d 562 (stating "that an insurer is not precluded from availing itself of traditional legal and equitable remedies to avoid liability under an insurance policy on the ground of fraud in the application for insurance, even when the fraud was easily ascertainable and the claimant is a third party"); Bazzi , 315 Mich. App. at 781-782, 891 N.W.2d 13 (holding that "if an insurer is able to establish that a no-fault policy was obtained through fraud, it is entitled to declare the policy void ab initio and rescind it, including denying the payment of PIP benefits to innocent third parties"). Here, because the fraud in this case was not fraud in the procurement of the policy and instead arose after the policy was issued, neither Titan nor Bazzi is dispositive.
This is because there is a meaningful distinction between fraud in the procurement of a no-fault policy and fraud arising after a claim was made under a properly procured policy. For instance, when a policy is rescinded on the basis of fraud in the procurement of the policy, it is as if no valid policy ever existed. As this Court explained in Bazzi , mandating no-fault benefits when an insurer can declare a policy void ab initio on the basis of fraud in the procurement would be akin to requiring the insurer to provide benefits in a case in which the automobile owner had never obtained an insurance policy in the first place. Id . at 774, 891 N.W.2d 13. Thus, fraud in the procurement essentially taints the entire policy and all claims submitted under it. In contrast, "if there is a valid policy in force, the statute controls the mandated coverages." Id . Here, when Justin submitted his claim, there was a valid policy in place; there were no allegations of fraud in the application tainting the validity of the policy. Therefore, under the no-fault act, Justin was required to seek no-fault benefits from his parents' no-fault policy. See MCL 500.3114(1). The mere fact that fraud arose in connection with attendant-care-services forms submitted after Justin made his claim simply has no bearing as to whether there was a valid policy in effect at the time he made his claim. Accordingly, we conclude that the trial court erred by finding Bazzi dispositive.
3. VALIDITY OF THE FRAUD-EXCLUSION CLAUSE
We next address whether the fraud-exclusion clause-as applied to Justin's claim-is a valid contractual provision. MCL 500.3114(1) provides that a person sustaining an accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle must first look to his or her own no-fault policy, to his or her spouse's policy, or to a no-fault policy issued to a relative with whom he or she is domiciled. Therefore, if Justin were not an "insured person" as defined by the policy, he would be statutorily entitled to benefits under his parents' no-fault policy by virtue of the fact that he is a relative of his parents and was domiciled with them. In other words, if the policy did not define a resident relative as an "insured person," then Meemic would be required by statute to pay Justin benefits and would be unable to terminate his coverage because of fraud committed by a policyholder with regard to his claim. See Shelton , 318 Mich. App. at 653-654, 899 N.W.2d 744 (stating that when a claimant's no-fault benefits are governed solely by statute, an insurer cannot use a fraud-exclusion clause to bar the claimant's claim).
Under Meemic's logic, by duplicating statutory benefits in a no-fault policy, an insurer can avoid paying no-fault benefits to an injured claimant if someone other than the claimant commits fraud and triggers a fraud-exclusion clause that allows the policy to be voided. We do not agree that the statutory provisions can be so easily avoided. "An insurer who elects to provide automobile insurance is liable to pay no-fault benefits subject to the provisions of the [no-fault] act." Lewis v. Farmers Ins. Exch. , 315 Mich. App. 202, 209, 888 N.W.2d 916 (2016) (quotation marks and citation omitted; brackets in original). Contractual provisions in an insurance policy that conflict with statutes are invalid. Corwin v. DaimlerChrysler Ins. Co. , 296 Mich. App. 242, 261, 819 N.W.2d 68 (2012). Because MCL 500.3114(1) mandates coverage for a resident relative domiciled with a policyholder, the fraud-exclusion provision, as applied to Justin's claim, is invalid because it conflicts with Justin's statutory right to receive benefits under MCL 500.3114(1). And, as explained earlier, his statutory right to receive benefits under the no-fault act was triggered because his parents had a validly procured no-fault policy in place at the time of the motor-vehicle incident. See Bazzi , 315 Mich. App. at 774, 891 N.W.2d 13.
4. CONTRACT INTERPRETATION
Finally, even if the fraud-exclusion clause were valid, Louise and Richard's fraud is insufficient to trigger it because, at the time they committed fraud, they were no longer "insured persons" under the policy. The fraud-exclusion clause in the no-fault policy provides:
This entire Policy is void if any insured person has intentionally concealed or misrepresented any material fact or circumstance relating to:
A. This insurance;
B. The Application for it;
C. Or any claim made under it.
The policy defines the term "insured person" as a named insured or the "resident relative" of a named insured. Because Louise and Richard were named insureds under the policy, they are "insured persons" as defined by the policy so long as that policy remains in effect .
The policy, however, was cancelled by Meemic. Specifically, on June 14, 2010, Meemic sent a notice of cancellation to Louise and Richard. The notice stated that as of July 29, 2010, at 12:01 a.m., the policy would no longer be in effect. Generally, once a contract of insurance is cancelled, neither the insured nor the insurer retains any rights or obligations pursuant to the cancelled agreement. See 2 Couch, Insurance, 3d, § 30:22, pp. 30-49 through 30-50 ("Cancellation of a policy at a time and in the manner specified therein cuts off all rights of the insured and bars recovery on the policy for any subsequent accident.... By definition, there can be no breach of a contract with respect to transactions arising after the contract of insurance has been effectively cancelled."). See also Titan , 491 Mich. at 567, 817 N.W.2d 562 ("When a policy is cancelled, it is terminated as of the cancellation date and is effective up to such date[.]") (quotation marks and citation omitted; brackets in original). Accordingly, once the policy was cancelled on July 29, 2010, Louise and Richard were no longer named insureds under the policy, which means that they were no longer "insured persons" as defined in the policy. Further-and this is key-because the fraud was committed after the cancellation of the policy, when they were no longer insured persons, their actions were irrelevant for purposes of triggering the fraud-exclusion clause.
The cancellation of the policy did not have any effect on Justin's claim because his claim was made before the policy was cancelled. Automobile no-fault insurance policies are "occurrence" policies as opposed to "claims made" or "discovery" policies. Stine v. Continental Cas. Co. , 419 Mich. 89, 98, 349 N.W.2d 127 (1984). Under an occurrence policy, coverage "is provided no matter when the claim is made, subject, of course, to contractual and statutory notice and limitations of actions provisions, providing the act complained of occurred during the policy period." Id . Moreover, the policy in this case contains a cancellation clause that expressly limits the effect of cancellation. The policy states, "Cancellation will not affect any claim that originated prior to the date of cancellation." (Emphasis added.) There are no other limitations on the effect of cancellation on the rights and obligations of the parties.
When interpreting a contract, such as an insurance policy, the primary goal "is to honor the intent of the parties." Tenneco Inc. v. Amerisure Mut Ins. Co. , 281 Mich. App. 429, 444, 761 N.W.2d 846 (2008). When a contract is unambiguous, it must be enforced according to its terms, and this Court must resist "the temptation to rewrite the plain and unambiguous meaning of the policy under the guise of interpretation." Upjohn Co. v. New Hampshire Ins. Co. , 438 Mich. 197, 207, 476 N.W.2d 392 (1991). Because, by its unambiguous terms, only a claim predating the cancellation of a policy survives the cancellation of the policy, we must determine what constitutes a claim. Because the policy does not define "claim," we must give it its commonly used meaning. See Group Ins. Co. of Mich. v. Czopek , 440 Mich. 590, 596, 489 N.W.2d 444 (1992). According to Black's Law Dictionary (9th ed.), a "claim" is "[t]he assertion of an existing right[.]" A "claimant" is the person who makes a claim, i.e., "[o]ne who asserts a right or demand, esp. formally[.]" Id .
Under the heading of "What Must Be Done in Case of Car Accident or Loss," the Meemic policy mandates that:
In the event of an accident, occurrence or loss , you (or someone acting for you ) must inform us or our authorized agent promptly. The time, place and other facts must be given, to include the names and addresses of all involved persons and witnesses. [Capitalization altered.]
It then sets forth a list of "other duties" that "[a] person claiming any coverage under this Policy must" perform, which includes cooperating with Meemic, promptly sending copies of notice or legal papers received in connection with the accident, providing written proofs of loss upon request, and submitting to examinations under oath for matters related to the claim. The policy provides a list of additional requirements for a person claiming personal injury protection insurance, underinsured motorist coverage, uninsured motorist coverage, or "car damage insurance" coverage. The common element is that the person seeking coverage is required to take actions or provide assistance to Meemic. There is no language mandating that other individuals covered by the policy have any rights or obligations with respect to that claim. The only individual who has obligations with respect to making a claim is the insured person who is claiming benefits under the policy, i.e., the claimant. Given the complete absence of language extending the obligations on the claim to all insured persons under the policy, there is no basis to extend Louise and Richard's status as insured persons beyond the date the policy was cancelled. "Just as courts are not to rewrite the express language of statutes, it has long been the law in this state that courts are not to rewrite the express terms of contracts." McDonald v. Farm Bureau Ins. Co. , 480 Mich. 191, 199-200, 747 N.W.2d 811 (2008).
Here, the only person with "a claim" is Justin. He is the person who sustained an injury arising out of the ownership, operation, maintenance, or use of a motor vehicle, MCL 500.3105(1), and it is he who had an application for benefits submitted to Meemic on his behalf. Therefore, as set forth in the policy, his claim continues to be covered and was "locked in" as of the date of the injury, irrespective of whether the policy was cancelled at a later date. Louise and Richard, however, did not sustain an injury arising out of a motor-vehicle incident. They do not have a "claim" with Meemic, nor do they have any obligations with respect to Justin's claim. Instead, Louise and Richard were merely attendant-care providers for Justin when they committed fraud.
Meemic asserts that it would be illogical to allow Louise and Richard to escape their obligations under the policy-in this case an obligation not to commit fraud-while simultaneously mandating that Meemic continue to provide benefits under the policy. We disagree. If Louise and Richard had made a claim under the policy before it was terminated, then their obligations under the policy would continue with respect to their claim , and Meemic's obligations with respect to that claim would also continue. Because Louise and Richard's obligations would continue under that scenario, if they committed fraud, then policy's fraud-exclusion clause would apply. See Bahri , 308 Mich. App. at 424-426, 864 N.W.2d 609 (stating that when an insured claimant commits fraud in connection with his or her claim, the insurer may use a fraud-exclusion clause to deny benefits under the policy). Here, however, because we are obligated to enforce the terms of the contract as they are stated in the contract, we conclude that at the time they committed fraud, Louise and Richard were not insured persons under the policy. Consequently, their fraud did not trigger the fraud-exclusion clause, so Meemic cannot use it to void the policy and deny Justin's claim.
III. CONCLUSION
In sum, we reverse the trial court's order granting summary disposition in favor of Meemic. We do not read Bazzi as dispositive or applicable because there was no fraud in the procurement of the Fortsons' no-fault policy with Meemic. Further, the fraud-exclusion clause in the policy is invalid to the extent that it conflicts with MCL 500.3114(1), which entitled Justin to claim statutory benefits under his parents' properly procured no-fault policy. Finally, under the plain language of the policy, Louise and Richard were not insured persons under the policy when they committed fraud, so the fraud-exclusion clause is inapplicable and cannot be used to void the policy and deny Justin's claim.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
Markey, P.J., concurred with M. J. Kelly, J.
Cameron, J. (dissenting ).
The majority resurrects, albeit in a new form, the abolished innocent-third-party rule. It also concludes that an insurance policy's fraud provision contravenes the no-fault act when applied to resident relatives. Finally, it concludes that, after cancellation, the policy's provisions will no longer apply to the policyholder who committed the fraud when the claimant is a third party. Because I disagree with all three holdings, I respectfully dissent. Defendants, Louise Fortson and Richard Fortson, submitted false requests for attendant-care benefits to plaintiff, Meemic Insurance Company, from 2009 to 2015. Defendants provided care for their son, Justin Fortson, who was injured while riding on the hood of a car. Because Justin was a "resident relative" under defendants' policy, plaintiff provided personal injury protection (PIP) benefits under MCL 500.3114(1). In 2014, plaintiff discovered that defendants were fraudulently claiming 24/7 attendant-care services even when Justin was incarcerated, in drug rehabilitation programs, or staying with his girlfriend. Defendants collected over $100,000 in payments over six years.
I. INNOCENT-THIRD-PARTY RULE
The majority first concludes that Justin, as an innocent third party, can continue to collect PIP benefits because there was no fraud in the procurement of the policy. While I agree that the fraud did not occur in the procurement of the policy, there is no basis to apply the now-abolished innocent-third-party rule to the circumstances in this case.
As the majority correctly states, the innocent-third-party rule prevented insurers from voiding a policy using fraud as a defense to paying no-fault benefits, but the rule only applied when (1) there was fraud in the procurement of the policy that was easily ascertainable and (2) an innocent third-party claimant was involved. Bazzi v. Sentinel Ins. Co. , 315 Mich. App. 763, 771-772, 891 N.W.2d 13 (2016), lv gtd 500 Mich. 990, 894 N.W.2d 590 (2017). Neither the majority nor defendants have provided support for the proposition that the innocent-third-party rule may be applied in cases that do not involve fraud in the procurement. Yet, the majority concludes that "because the fraud in this case was not fraud in the procurement of the policy and instead arose after the policy was issued, neither Titan nor Bazzi is dispositive." We concluded that our Supreme Court abolished the innocent-third-party rule, and there is no indication that any application of this rule was left open for future use. Id . at 767-768, 781-782, 891 N.W.2d 13.
Furthermore, we should not adopt the rule in a new form in order to allow a third-party claimant to collect PIP benefits when an insurer is entitled to void the policy for fraudulent conduct on the part of the policyholder. This Court clearly held in Bazzi that "if an insurer is entitled to rescind a no-fault insurance policy because of fraud, it is not obligated to pay any benefits under that policy, including PIP benefits to a third party innocent of the fraud ." Id . at 770, 891 N.W.2d 13 (emphasis added.). The majority claims that there is a "meaningful distinction" between fraud in the procurement of an insurance policy and fraud arising after a claim was made under a properly procured policy. However, in both instances, the insurer is allowed to void the policy, and under Bazzi , "if an insurer is entitled to rescind a no-fault insurance policy because of fraud," an innocent third party cannot collect PIP benefits under that policy. Id . As discussed in more detail later in this opinion, plaintiff is entitled to rescind, i.e., void, the no-fault insurance policy, and Justin, as an innocent third party, should not be allowed to continue to collect PIP benefits. The fact that the fraud here occurred in subsequent claims for services-and not in the procurement of the policy-is of no consequence to the outcome of this case. The only question here is whether the fraud provision at issue was valid and should be applied to the circumstances of this case.
II. FRAUD PROVISION
A. VALIDITY
The majority's application of the innocent-third-party rule is premised on the conclusion that the fraud provision does not void the insurance policy governing Justin's claim. To reach this conclusion, the majority determines that the fraud provision contravenes MCL 500.3114(1), and, therefore, cannot apply to Justin's claim. I disagree.
According to the majority, "[b]ecause MCL 500.3114(1) mandates coverage for a resident relative domiciled with a policyholder, the fraud-exclusion provision, as applied to Justin's claim, is invalid because it conflicts with Justin's statutory right to receive benefits under MCL 500.3114(1)." This reasoning is flawed, and the majority's holding carves out an unprecedented exception to the general rule that a fraud provision in an insurance policy is valid. First, in Bahri v. IDS Prop. Cas. Ins. Co. , 308 Mich. App. 420, 424-425, 864 N.W.2d 609 (2014), this Court concluded that a fraud provision in an insurance policy applies to a policyholder's claim and can preclude all PIP benefits if the claimant submits fraudulent claims for replacement services. The majority concludes that Bahri is not binding in this case because the fraud provision at issue applies to a resident relative, not to the named insured under the policy, and a resident relative's entitlement to PIP benefits is governed by statute. However, there is no meaningful distinction between a policyholder and a resident relative for purposes of coverage. MCL 500.3114(1) states, in pertinent part, that "a personal protection insurance policy ... 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." Whether a policyholder or a resident relative, the policy's provisions are applicable to the no-fault claim as long as they do not conflict with the no-fault act. See Auto-Owners Ins. Co. v. Martin , 284 Mich. App. 427, 434, 773 N.W.2d 29 (2009) ("Insurance policy provisions that conflict with statutes are invalid...."). In this case, the policy, including the fraud provision, applies to Justin's claim as a resident relative, and that fraud provision does not contravene the no-fault act. See Bahri , 308 Mich. App. at 424-425, 864 N.W.2d 609. Contrary to what the majority claims, the policy is not "duplicating statutory benefits." Instead, it is providing the terms of coverage, which are subject to the no-fault act. Lewis v. Farmers Inc. Exch. , 315 Mich. App. 202, 209, 888 N.W.2d 916 (2016). The majority relies on Shelton v. Auto-Owners Ins. Co. , 318 Mich. App. 648, 653-654, 899 N.W.2d 744 (2017), for the proposition that a resident relative's claim cannot be subject to a fraud provision because the claim is governed solely by statute; however, the majority misconstrues the holding in that case. In Shelton , we concluded that the plaintiff "was not a party to, nor an insured under, the policy; she was injured while a passenger, and because neither she nor her spouse or resident relative had a no-fault policy, [the] defendant was required to pay her benefits pursuant to statute, not pursuant to a contractual agreement." Id . at 652, 899 N.W.2d 744. Thus, the plaintiff in Shelton was entitled to benefits by operation of the statute only and was not bound by any fraud provision in the other driver's policy because she was not the policyholder, a spouse, or a resident relative. Id . at 652-654, 899 N.W.2d 744. Therefore, the plaintiff's claim in Shelton was not subject to any fraud provision, and because the no-fault act does not have its own fraud exclusion, the defendant could not avoid paying any remaining PIP benefits.
Unlike the plaintiff in Shelton , Justin is an insured under the policy because he is a resident relative. There is no question that the relevant insurance policy applies to his claim for PIP benefits under MCL 500.3114(1). Therefore, Justin's claim is not governed "solely by statute," and just as the fraud provision was valid in Bahri , the fraud provision in defendants' policy should also be deemed valid.
B. APPLICABILITY OF THE FRAUD PROVISION
Finally, the majority concludes that the fraud provision, even if it is valid, would not apply to Justin's claim and cannot void the insurance policy. I disagree.
Insurance policies are agreements between parties, and "[t]he primary goal in the interpretation of an insurance policy is to honor the intent of the parties." Tenneco Inc. v. Amerisure Mut. Ins. Co. , 281 Mich. App. 429, 444, 761 N.W.2d 846 (2008). Unless an ambiguity is present within the policy, an insurance policy must be enforced in accordance with its terms. Upjohn Co. v. New Hampshire Ins. Co. , 438 Mich. 197, 206-207, 476 N.W.2d 392 (1991). The terms of an insurance policy are interpreted in accordance with their common meanings. Group Ins. Co. of Mich. v. Czopek , 440 Mich. 590, 596, 489 N.W.2d 444 (1992). If an ambiguity is present, it must be construed in favor of the insured. Auto Club Ins. Ass'n v. DeLaGarza , 433 Mich. 208, 214-215, 444 N.W.2d 803 (1989). Further, "when a provision in an insurance policy is mandated by statute, the rights and limitations of the coverage are governed by that statute." Titan Ins. Co. v. Hyten , 491 Mich. 547, 554, 817 N.W.2d 562 (2012). However, if a provision is not mandated by statute, the rights and limitations of the coverage are interpreted without reference to the statute. Id .
This case concerns the fraudulent acquisition of payments for allowable expenses. The insurance policy issued to defendants contained the following fraud provision:
22. CONCEALMENT OR FRAUD
This entire Policy is void if any insured person[ ] has intentionally concealed or misrepresented any material fact or circumstance relating to:
A. This insurance;
B. The Application for it;
C. Or any claim made under it.
To prove fraud and void a policy, the insurer must demonstrate that
(1) the misrepresentation was material, (2) that it was false, (3) that the insured knew that it was false at the time it was made or that it was made recklessly, without any knowledge of its truth, and (4) that the insured made the material misrepresentation with the intention that the insurer would act upon it. [ Bahri , 308 Mich. App. at 424-425, 864 N.W.2d 609 (quotation marks and citation omitted).]
In Bahri , we concluded that clear evidence of fraud would operate to void a policy under that policy's fraud provision. Id . at 425, 864 N.W.2d 609.
I agree with the majority that the evidence clearly demonstrates that defendants defrauded plaintiff. However, according to the plain terms of the policy, plaintiff was entitled to void the policy if an insured person made a material misrepresentation in a claim made under the policy. See Upjohn Co. , 438 Mich. at 207, 476 N.W.2d 392 (stating that an insurance policy must be enforced in accordance with its terms). Louise was a named insured on the policy, and her fraudulent requests for attendant-care benefits constituted a material misrepresentation in a claim made under the policy. Moreover, defendants have not provided statutory authority that would specifically prohibit plaintiff from exercising its rights under this clause of the policy. See Titan , 491 Mich. at 554, 817 N.W.2d 562. There was no genuine issue of material fact precluding the trial court from granting summary disposition to plaintiff.
Finally, the majority concludes that defendants were only attendant-care providers for Justin and were no longer the named insureds because of plaintiff's cancellation of the insurance policy in 2010. The majority maintains that "there is no basis to extend [defendants'] status as insured persons beyond the date the policy was cancelled." I disagree.
Plaintiff provided Justin coverage by virtue of his status as a "resident relative" of the named insureds, i.e., defendants. Justin's claim is subject to the terms of the policy even if it was subsequently cancelled, and defendants remain the named insureds under the policy. The policy at issue is an "occurrence" policy, which provides coverage "no matter when the claim is made, subject, of course, to contractual and statutory notice and limitations of actions provisions, providing the act complained of occurred during the policy period." Stine v. Continental Cas. Co. , 419 Mich. 89, 98, 349 N.W.2d 127 (1984). One contractual provision under the policy provides a consequence for fraudulent conduct. That provision clearly states that the "entire Policy is void if any insured person has intentionally concealed or misrepresented any material fact or circumstance relating to ... any claim made under it." An "insured person" includes the "Named Insured on the Declarations Page." Defendants have been at all times named insureds under the policy on which Justin's claim is based. This makes sense because Justin's claim is governed by the named insureds' policy. The fact that plaintiff cancelled the policy after Justin's claim was filed does not affect the terms of the policy as it was written. Defendants are still named insureds on the declarations page of that policy, and it would be illogical to treat the policy, for purposes of Justin's claim, as not having any named insured simply because plaintiff cancelled the policy after Justin filed his claim. Moreover, the fraud provision at issue states that any insured person-rather than the insured person-who commits fraud will void the entire policy. For purposes of Justin's claim, defendants were still considered insureds for servicing any and all future claims based on the occurrence at issue-Justin's injuries from the accident.
As a final point, the majority relies on the language of the cancellation clause, which states, "Cancellation will not affect any claim that originated prior to the date of cancellation." The claims for attendant-care benefits-even if sought after the cancellation of the contract-still originate from the initial claim for no-fault benefits. Defendants cannot avoid the consequences of committing fraud simply because the policy is no longer in effect. Any such outcome contravenes the purpose of an occurrence-based policy.
III. CONCLUSION
I would conclude that the trial court did not err by granting summary disposition to plaintiff because there is no genuine issue of material fact and plaintiff is entitled to relief. Defendants submitted fraudulent claims in contravention to the policy's fraud provision, and the innocent-third-party rule should not allow Justin to continue collecting PIP benefits.
It is worth noting that the remedy sought by Meemic is to void or rescind the policy on the basis of fraud. Generally, "[i]n order to warrant recision [sic], there must be a material breach affecting a substantial or essential part of the contract." Holtzlander v. Brownell , 182 Mich. App. 716, 721, 453 N.W.2d 295 (1990) (emphasis added).
To rescind a contract is not merely to terminate it, but to abrogate and undo it from the beginning; that is, not merely to release the parties from further obligation to each other in respect to the subject of the contract, but to annul the contract and restore the parties to the relative positions which they would have occupied if no such contract had ever been made. Rescission necessarily involves a repudiation of the contract and a refusal of the moving party to be further bound by it. But this by itself would constitute no more than a breach of the contract or a refusal of performance, while the idea of rescission involves the additional and distinguishing element of a restoration of the status quo . [Lash v. Allstate Ins. Co. , 210 Mich. App. 98, 102, 532 N.W.2d 869 (1995) (quotation marks and citation omitted).]
"[A] material misrepresentation made in an application for no-fault insurance entitles the insurer to rescind the policy." Id . at 103, 532 N.W.2d 869 (emphasis added). This is because the policy would not have been issued had the material misrepresentation not been made. Id . at 103-104, 532 N.W.2d 869.
Here, regardless of Louise and Richard's fraudulent attendant-care payment requests, the policy still would have been issued. Therefore, there are no grounds for automatic rescission of the policy on the basis of fraud arising after the policy was issued, i.e., fraud that does not affect whether the policy would have been issued in the first place. Instead, at a minimum, Meemic must establish that Louise and Richard's misrepresentation affected "a substantial or essential part of the contract." Holtzlander , 182 Mich. App. at 721, 453 N.W.2d 295. And because rescission is generally viewed as an equitable remedy, Madugula v. Taub , 496 Mich. 685, 712, 853 N.W.2d 75 (2014), it should not be routinely granted if it would achieve an inequitable result. We recognize that in Bahri , this Court held that when an insured claimant makes a fraudulent claim for replacement services, an insurer may use a fraud-exclusion clause to void the entire contract despite the fact that the fraud arose after the policy was procured. Bahri , 308 Mich. App. at 424-426, 864 N.W.2d 609. However, in this case, equity appears to lean in favor of protecting the innocent third party who was statutorily mandated to seek coverage under a validly procured policy and was, unlike the claimant in Bahri , wholly uninvolved in the fraud committed after the policy was procured.
As explained later, Justin is an "insured person" as that term is defined in Louise and Richard's no-fault policy with Meemic.
An application-for-benefits form is required to be completed by a claimant. In this case, a review of Justin's application is consistent with the language in the policy. The application-for-benefits form submitted to Meemic states that the applicant is Justin, and no other applicant is listed. It provides Justin's name and contact information in the blanks left for information about the "applicant." It provides details about when, where, and how Justin was injured, as well as the type of injuries he sustained. Further, the signature line requests the signature of the "applicant or parent/guardian." Absent from the application is any language even hinting that other individuals insured under the policy but not making a claim have any rights or obligations with respect to the claim.
Being a named insured is not a prerequisite to providing attendant-care services under a no-fault policy. Rather, any person approved by the insurance company can provide attendant-care services. The particular responsibilities of the provider are typically based on the need of the injured person and the skill and training of the provider.
This is not to say that a defrauded insurer does not have a remedy against the person who committed the fraud. See Titan , 491 Mich. at 555, 817 N.W.2d 562 (stating the elements required to establish fraud and noting that if someone commits fraud, the defrauded party may be entitled to legal or equitable remedies). See also Shelton , 318 Mich. App. at 655, 899 N.W.2d 744 (noting remedies an insurer may use in the event that someone makes a fraudulent claim).
See Bazzi v. Sentinel Ins. Co. , 315 Mich. App. 763, 891 N.W.2d 13 (2016), lv gtd 500 Mich. 990, 894 N.W.2d 590 (2017).
The majority holds that the fraud provision conflicts with the no-fault act, but there is no provision in the no-fault act that prevents the use of a fraud exclusion in a policy. Instead, the majority concludes that because a resident relative is entitled to PIP benefits by operation of the statute, no policy provision can prevent the resident relative, or for that matter anyone entitled to claim benefits under another's policy, from his or her "statutory right to receive benefits under MCL 500.3114(1)." Of course, insurers are allowed to include various exclusions to manage their risk when insuring drivers so long as those exclusions do not conflict with the no-fault act. "It is a bedrock principle of American contract law that parties are free to contract as they see fit, and the courts are to enforce the agreement as written absent ... a contract in violation of law or public policy." Corwin v. DaimlerChrysler Ins. Co. , 296 Mich. App. 242, 256, 819 N.W.2d 68 (2012) (quotation marks and citation omitted).
The policy defines an "insured person," in part, as "You, if an individual[.]" The policy further defines "you" as "any person or organization listed as a Named Insured on the Declarations Page" as an assigned driver or another named insured. Louise and Richard were the named insureds on the declarations page. | [
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On order of the Court, the application for leave to appeal the September 26, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Chief Justice, the motion of defendant-appellant to withdraw his application for leave to appeal and his motion for immediate consideration is GRANTED. The case is dismissed with prejudice. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the November 13, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion for stay is DENIED. | [
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On order of the Court, the application for leave to appeal the October 18, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Chief Justice, the motion of defendant-appellee to extend the time for filing its answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before January 28, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing his reply is GRANTED. The reply will be accepted as timely filed if submitted on or before January 7, 2019. | [
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On order of the Court, the application for leave to appeal the August 14, 2018 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and we REMAND this case to that court. On remand, while retaining jurisdiction, the Court of Appeals shall remand this case to the Wayne Circuit Court for further consideration. The trial court shall determine: (1) whether the trial court ordered a DNA test at Department of Health and Human Services expense, as stated by the referee, and, if so, whether the testing occurred; (2) whether the trial court extended the time for the putative father to establish paternity; and (3) whether the putative father was able to speak at the termination trial by speakerphone and whether he waived any issue regarding the DNA test or the establishment of paternity by not requesting an adjournment. At the conclusion of the hearing, the trial court shall forward the record and its findings to the Court of Appeals, which shall then reconsider these issues and the issues raised by the appellant in his brief on appeal.
We do not retain jurisdiction. | [
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On order of the Court, the application for leave to appeal the April 12, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 27, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 30, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Chief Justice, the motions of the Criminal Defense Attorneys of Michigan to share five minutes of defendant-appellee's oral argument time and to waive the filing fee are GRANTED. | [
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On order of the Chief Justice, the motion of Kickham Hanley PLLC, to file a brief amicus curiae is GRANTED. The amicus brief submitted on December 3, 2018, is accepted for filing. | [
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On order of the Chief Justice, the motion of plaintiffs-appellees to extend the time for filing their answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before January 21, 2019. | [
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On order of the Chief Justice, the motion of appellee to extend the time for filing its answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before January 4, 2019. | [
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On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing its answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before January 17, 2019. | [
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On order of the Court, the application for leave to appeal the April 12, 2018 judgment of the Court of Appeals is considered. We DIRECT the Wayne County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order, addressing whether Offense Variable 12, MCL 777.42, was properly scored for the defendant's conviction for conducting a criminal enterprise, MCL 777.159i, where MCL 777.42(2)(a) requires that a contemporaneous criminal act occur "within 24 hours of the sentencing offense" and that it "has not and will not result in a separate conviction."
The application for leave to appeal remains pending. | [
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On order of the Court, the application for leave to appeal the February 22, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 6, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 16, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the January 23, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the motion for miscellaneous relief is GRANTED to the extent that the attached documents are considered as offers of proof. The application for leave to appeal the February 7, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the December 19, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to present new evidence is DENIED. | [
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On order of the Court, the application for leave to appeal the April 26, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the June 21, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 11, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 10, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the June 19, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion to consider additional issues is GRANTED. The application for leave to appeal the May 29, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 3, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 24, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 24, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 5, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the December 14, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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By order of February 20, 2018, the prosecuting attorney was directed to answer the application for leave to appeal the July 25, 2017 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration, as on leave granted, of whether the defendant was denied the effective assistance of counsel by counsel's failure to advise the defendant that the offense to which he was pleading no contest was a felony. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the August 9, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Wilder, J., did not participate because he was on the Court of Appeals panel at an earlier stage of the proceedings. | [
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On order of the Court, the application for leave to appeal the April 6, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 21, 2017 order of the Court of Appeals is considered. The defendant's claims regarding DNA testing and the retention of biological materials under MCL 770.16, and regarding judicial bias, are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. In all other respects, leave to appeal is DENIED, because the remaining questions raised in the defendant's motion for relief from judgment are prohibited by MCR 6.502(G). The motion to remand to expand the record is DENIED. | [
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On order of the Court, the application for leave to appeal the November 28, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 13, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the May 2, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 17, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the motion to hold the application for leave to appeal in abeyance for W A Foote Mem. Hosp. v. Mich. Assigned Claims Plan (Docket No. 156622) is considered, and it is GRANTED. We ORDER that the application for leave to appeal the March 27, 2018 judgment of the Court of Appeals be held in ABEYANCE pending the decision in W A Foote Mem. Hosp . The motion for oral argument on the application is DENIED. | [
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On order of the Court, the application for leave to appeal the February 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the January 18, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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] |
Murphy, P.J.
Defendant was charged with first-degree criminal sexual conduct (CSC-I), MCL 750.520b, arising out of an alleged act of sexual penetration in 1983, with the prosecution also giving notice that it would seek enhancement of any sentence on the basis of defendant's status as a fourth-offense habitual offender, MCL 769.12. Defendant was subsequently convicted by guilty plea of second-degree criminal sexual conduct (CSC-II), MCL 750.520c, and sentenced to 10 to 15 years' imprisonment. His efforts to withdraw his guilty plea and to otherwise obtain relief from or set aside the judgment were rejected. Relevant to this appeal, one of the grounds raised by defendant in his postsentence motions seeking to avoid the guilty plea was that the CSC-I charge was barred by the statute of limitations, which defense he was completely unaware of when pleading guilty, as neither his counsel nor the trial court informed him of the defense. Defendant appeals by leave granted the trial court's order denying his motion for relief from judgment. We hold that the CSC-I charge was not time-barred under MCL 767.24. Accordingly, we affirm.
As reflected in defendant's statements that formed the factual basis for his guilty plea, defendant admitted that he had sexual intercourse with his 13-year-old sister in 1983 when he was 17 years old. At the time of the crime, the period of limitations for all CSC offenses was six years, falling within the general catch-all provision. MCL 767.24, as amended by 1954 PA 100. With the enactment of 1987 PA 255, which was made effective March 30, 1988, MCL 767.24 was amended to provide that CSC offenses "may be found and filed within 6 years after the commission of the offense or by the alleged victim's twenty-first birthday, whichever is later." The victim turned 21 years old on August 13, 1991.
According to information in defendant's presentence investigation report, defendant left Michigan sometime in 1989 or 1990-definitely before the victim turned 21 years of age-residing in several other states, including a lengthy prison stint in Montana, before returning to Michigan in approximately 2004. And MCL 767.24(10) provides that "[a]ny period during which the party charged did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed." During the period in which defendant did not reside in Michigan, our Legislature again amended MCL 767.24, effective May 2, 2001, providing that CSC-I "may be found and filed at any time ." MCL 767.24(1), as amended by 2001 PA 6 (emphasis added).
On May 18, 2015, defendant was charged with CSC-I for the 1983 act of sexual intercourse with his sister. The prosecution also gave notice of seeking a sentence enhancement under MCL 769.12, asserting that defendant had three or more prior felony convictions. On August 4, 2015, defendant pleaded guilty to CSC-II in exchange for the prosecution dismissing the CSC-I charge and dropping the habitual notice. On September 9, 2015, defendant was sentenced to 10 to 15 years' imprisonment. After sentencing, there were multiple motions and applications for leave to appeal that were filed by two different attorneys representing defendant, wherein defendant unsuccessfully sought to withdraw or otherwise avoid his guilty plea. The subject of this appeal is defendant's last postsentence motion, which was a motion for relief from judgment brought pursuant to MCR 2.612. Defendant raised the argument concerning the statute of limitations, claiming that the charged offense of CSC-I was time-barred and that he was never informed of the defense before pleading guilty to CSC-II. We note that the issue was not raised in earlier appellate proceedings.
The trial court, although determining that a statute-of-limitations defense had been available to defendant on the CSC-I charge, denied the motion after concluding that defendant waived the defense, as well as any related ineffective-assistance claim, by pleading guilty, as opposed to pleading no contest. The trial court, relying on People v. Budnick , 197 Mich. App. 21, 494 N.W.2d 778 (1992), determined that there could be no tolling despite defendant's time away from Michigan, because the tolling provision was inapplicable in connection with the twenty-first-birthday period of limitations. Further, on the basis that defendant pleaded guilty, reciting the factual basis for the crime, and not no contest, the trial court distinguished the instant case from the Michigan Supreme Court's order in People v. Cagle , 472 Mich. 884, 884-885, 695 N.W.2d 66 (2005), which stated:
In lieu of granting leave to appeal, the case is remanded to the Oakland Circuit Court for a hearing to determine whether defendant received ineffective assistance of counsel. Defendant was charged with and pleaded no contest in 1992 to six counts of first-degree criminal sexual conduct based on alleged acts committed between June 1979 and November 1981. At the time defendant entered his plea, the charges against him were barred by the six-year period of limitations of MCL 767.24 in effect at the time the crimes were allegedly committed. The circuit court shall determine whether defendant was informed by his counsel of the expiration of the period of limitations on the charges brought against him and whether defendant indicated that he wished to waive this defense. If the circuit court determines that defendant was not so informed and did not knowingly waive the defense, the court shall vacate defendant's convictions. [Citations omitted.]
Defendant filed an application for leave to appeal in this Court, and the panel's order provided as follows:
The Court orders that the application for leave to appeal is GRANTED. We note that at the time defendant filed his motions to set aside judgments, his only avenue for relief was pursuant to MCR Chapter 6.500. In addition to the issue raised in the application, we direct the parties to address whether defendant is entitled to relief from judgment pursuant to MCR 6.508(D). [ 3] MCR 7.205(E)(4). [People v. Kasben , unpublished order of the Court of Appeals, entered August 10, 2017 (Docket No. 337082).]
On appeal, defendant argues that the trial court erred by ruling that defendant waived his statute-of-limitations defense to CSC-I when he pleaded guilty, given that, according to defendant, he had never been informed of the defense by anyone. Defendant contends, therefore, that he is entitled to relief from judgment pursuant to MCR 6.508(D).
Our holding is ultimately one that is based on the construction of MCL 767.24 and the application of its tolling provision and the various amendments to the statute over the years. We review de novo issues of statutory construction. People v. Hill , 486 Mich. 658, 665-666, 786 N.W.2d 601 (2010). With respect to MCR 6.508, "[w]e review a trial court's decision on a motion for relief from judgment for an abuse of discretion and its findings of facts supporting its decision for clear error." People v. Swain , 288 Mich. App. 609, 628, 794 N.W.2d 92 (2010).
With respect to the principles governing statutory construction, our Supreme Court in People v. Morey , 461 Mich. 325, 329-330, 603 N.W.2d 250 (1999), observed:
In [interpreting a statute], our purpose is to discern and give effect to the Legislature's intent. We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed-no further judicial construction is required or permitted, and the statute must be enforced as written. We must give the words of a statute their plain and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature's intent. [Citations omitted.]
The CSC offense was committed in 1983, and the statutory period of limitations at that time was six years, 1954 PA 100, which would have resulted in prosecution of the offense being time-barred at some point in 1989. However, before that period of limitations expired , the Legislature amended MCL 767.24, providing that CSC offenses "may be found and filed within 6 years after the commission of the offense or by the alleged victim's twenty-first birthday, whichever is later." MCL 767.24(2) as amended by 1987 PA 255. In People v. Russo , 439 Mich. 584, 588, 487 N.W.2d 698 (1992), the Supreme Court, examining MCL 767.24, as amended by 1987 PA 255, held:
We find that the extended limitation period for criminal sexual conduct involving a minor was intended by the Legislature to apply to formal charges of offenses not time-barred on the effective date of the act filed after its effective date. This application is not a violation of the Ex Post Facto Clauses of the United States and Michigan Constitutions.
Accordingly, even though defendant's crime was committed in 1983 under a six-year period of limitations, the 1987 amendment of the statute became applicable, providing for an extension of the limitations period to the victim's twenty-first birthday in August 1991.
At the time of the victim's twenty-first birthday, defendant was not "usually and publicly" residing in Michigan, having left the state sometime in 1989 or 1990. We hold that defendant's absence from Michigan triggered the tolling provision in MCL 767.24(10). In People v. Blackmer , 309 Mich. App. 199, 200, 870 N.W.2d 579 (2015), the defendant sexually assaulted the adult victim in 1981, and the defendant later traveled to Indiana in 1982, where he committed another sexual assault, leading to his arrest, conviction, and incarceration for a prison term of 90 years. In 2013, the defendant was extradited to Michigan to stand trial for the 1981 sexual assault, and he argued that the applicable six-year period of limitations had expired in 1987, thereby barring the prosecution against him, and that the tolling provision did not apply because his intent had always been to return to Michigan. Id. at 200-201, 870 N.W.2d 579. The Blackmer panel held:
The plain language of the former MCL 767.24 is clear and unambiguous.... In sum, the plain and unambiguous language of the nonresident tolling provision at issue provided that the limitations period was tolled for any period in which a defendant was not customarily and openly living in Michigan. Defendant's subjective intent is irrelevant to this definition.... The facts of this case patently show that defendant did not customarily and openly live in Michigan between 1982 and 2013; therefore, the trial court properly determined that the period of limitations was tolled from the time defendant left Michigan in 1982, and the court properly denied defendant's motion to dismiss. [ Id. at 201-202, 870 N.W.2d 579 (citations omitted).]
Although we are addressing the period of limitations predicated on the victim's twenty-first birthday, the plain and unambiguous language of the tolling provision applies regardless whether the six-year period of limitations is at issue or whether the alternate period of limitations based on a victim reaching the age of 21 is at issue. In 1989 or 1990, when defendant left Michigan before the victim's twenty-first birthday, the tolling provision stated, "[A]ny 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), as amended by 1987 PA 255. The tolling provision contained no language that even remotely suggested that the Legislature did not intend for it to be applicable to all periods of limitation; there was no limiting or restrictive language. The tolling provision was all-encompassing, indicating that any period during which a defendant did not reside in Michigan could not be considered when calculating the time within which charges must be found and filed, i.e., the pertinent limitations period. A limitations period based on a victim's twenty-first birthday, while variable from one case to another, is nevertheless a limitations period. Before we address a contrary analysis on the matter in Budnick , 197 Mich. App. 21, 494 N.W.2d 778, we shall first proceed to the next and final step in the analysis.
The period of limitations, as set by employing the date of the victim's twenty-first birthday in August 1991, was tolled when defendant left Michigan in 1989 or 1990. Had there been no further amendment of MCL 767.24, the 2015 charge of CSC-I would have been time-barred, given that defendant returned to Michigan 11 years earlier in 2004. However, the Legislature amended MCL 767.24 in 2001, at which time the tolling of the period of limitations was ongoing, removing altogether any period of limitations for the offense of CSC-I. See 2001 PA 6. Because the period of limitations had not yet expired in light of the tolling, the 2001 amendment became applicable to the case, extending indefinitely the period of limitations on a charge of CSC-I. See Russo , 439 Mich. at 588, 487 N.W.2d 698 (recognizing that charges not yet time-barred by an existing period of limitations are subject to a new period of limitations set forth in an amended statute).
Finally, we need to examine this Court's opinion in Budnick , 197 Mich. App. 21, 494 N.W.2d 778. There, the defendant was charged in 1990 with CSC-I, which offense had occurred back in 1975. The complainant was 10 years old at the time of the offense and had reached her twenty-first birthday on March 2, 1986. The defendant had lived continuously in the state of Wisconsin since 1978. Id. at 23, 494 N.W.2d 778. Pertinent to our discussion is the following passage from Budnick :
The tolling provision of subsection 1 speaks of "any period during which the party charged did not usually and publicly reside within this state...." Subsection 2 contains two distinct limitations. One is a six-year period from the time of the offense. The other is not a "period," but rather the date of an alleged victim's twenty-first birthday. The tolling provision of subsection 1, then, does not seem to apply to the second limitation concerning an alleged victim's twenty-first birthday. Subsection 2, however, provides that an indictment must be brought within six years from the time of the offense or by the alleged victim's twenty-first birthday, "whichever is later." In the present case, unless defendant took up residence again in Michigan after 1978, in which case the statute's six-year period would resume running, the six-year period remained tolled. Thus, the indictment brought against defendant, although untimely under the birthday limitation, was timely under the six-year limitation. [ Id. at 26-27, 494 N.W.2d 778 (citations omitted).]
We question the logic of the analysis by this Court in Budnick , if not only for the reason that the reference to "any period" in the tolling provision concerns the period of time during which a defendant does not reside in Michigan; it is not a direct reference to a period of limitations. Rather, the tolling provision indicates that the period of absence shall not be considered "part of the time" within which to bring charges, with the latter language pertaining to the applicable period of limitations. Thus, the time within which to bring charges, i.e., the period of limitations, shall not include a period of absence. Regardless, employing a victim's twenty-first birthday as a deadline to bring charges against a defendant does in fact create a "period" of limitations. If, under the former version of MCL 767.24, a child victim of CSC-I were five years old at the time of the offense, the period of limitations would be roughly 16 years when using the twenty-first-birthday provision as the measure.
Of course, we are bound by any "rule of law established" in Budnick . MCR 7.215(J)(1). However, because the Budnick panel ultimately decided the case in favor of the prosecution on the basis of tolling the six-year period of limitations, we conclude that the Court's position on tolling with respect to a victim's twenty-first birthday was not necessarily involved in nor essential to resolving the appeal; it was dicta. See Wold Architects & Engineers v. Strat , 474 Mich. 223, 232 n. 3, 713 N.W.2d 750 (2006) ("Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand, are, however illuminating, ... obiter dicta and lack the force of an adjudication.") (quotation marks and citations omitted).
The Court in Budnick noted that the parties had not even addressed tolling in connection with a victim's twenty-first birthday. Budnick , 197 Mich. App. at 26, 494 N.W.2d 778. And the panel's own words indicated that it was treading in "dicta" territory when it stated that the tolling provision "does not seem to apply to the ... limitation concerning an alleged victim's twenty-first birthday." Id. at 27, 494 N.W.2d 778 (emphasis added). This was not a definitive statement establishing a rule of law, and the Court itself appeared to recognize that it did not need to take a definitive stance. The panel immediately moved on to conclude that tolling did apply to the six-year statute of limitations, saving the prosecutor's case. Id. For all of the reasons expressed, we are not persuaded by and decline to follow the dicta in Budnick in regard to out-of-state tolling and the twenty-first-birthday period of limitations.
Because a statute-of-limitations defense to CSC-I was not available to defendant, he was not entitled to relief under MCR 6.508(D) for purposes of trying to escape his guilty plea, and we need not entertain any issues concerning waiver. Accordingly, we affirm the trial court's ultimate ruling, albeit for a reason different than the court's "waiver" analysis, upon which we take no position.
Affirmed.
JANSEN and SWARTZLE, JJ., concurred with MURPHY, P.J.
Defendant disputes that he did not reside in Michigan in 1989 or early 1990, but he concedes that by May or June 1990, he had left the state.
An out-of-state tolling provision has been part of MCL 767.24 for the entire time frame captured by this case. See 1954 PA 100 and all subsequently enacted amendments.
Under 1987 PA 255, the tolling provision, with nearly identical language to the current provision, was found in Subsection (1) of MCL 767.24.
Defendant does not contend that the guilty plea needs to be vacated on the basis that the offense of CSC-II was time-barred.
The exact time frame would depend on the specific date of the crime in relation to the victim's fifth year of life. | [
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On order of the Court, the motion for reconsideration of this Court's July 27, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the motion for reconsideration of this Court's July 27, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the application for leave to appeal the April 17, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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Swartzle, J.
Respondent's minor son, RS, faced significant medical problems, including cerebral palsy and fetal-hydantoin syndrome. At the age of nine years old, RS weighed approximately 35 lbs. and could not talk other than to say "momma." After a seven-day hearing, the trial court terminated respondent's parental rights to RS and this appeal followed. Several weeks prior to oral argument, RS passed away. This Court cannot, therefore, reunite respondent and RS regardless of the merits of her appeal. Yet, concluding that the appeal is not moot because respondent faces collateral legal consequences as a result of the termination, we reach the merits and hold that the trial court did not err by terminating respondent's parental rights.
I. BACKGROUND
Respondent had two biological children: an older daughter who was placed in a guardianship with respondent's mother in 2006, and a younger son who remained in respondent's care until petitioner intervened in 2015. The younger son, RS, was born in 2006 and was the only child subject to this appeal.
RS had extensive medical problems, which essentially formed the basis for both his initial placement in foster care and the decision to terminate respondent's parental rights. Respondent testified that RS suffered from cerebral palsy. RS started having myoclonic-epilepsy seizures when he was a year old; they occurred approximately every other month and were triggered when he was woken suddenly or heard loud noises. He also had asthma and was prone to severe vomiting, which required the use of various feeding tubes. RS weighed only 35 lbs. at nine years old.
RS also suffered from fetal-hydantoin syndrome, which caused muscle spasms, and he had a small cerebellum and cranium. RS was unable to walk or sit up on his own and could not talk other than to say "momma." He wore a vest for chest congestion and used a suction machine. RS
required a specialized wheelchair for movement and a special feeding chair to be fed upright. Even with special foot braces and a stander, RS could only stand upright for a short period three times a day. When he was not at school, he spent the majority of his time in bed.
Respondent and RS had a lengthy history with Child Protective Services (CPS). In October 2015, petitioner moved the trial court to take jurisdiction over RS and remove him from respondent's home. The petition alleged that respondent was unable to provide adequate medical care for RS, that respondent and RS had missed 40 doctor appointments in the previous 10 months, and that respondent refused to allow service providers to come to her home. The petition also alleged that, during a home visit in October 2015, the caseworker saw RS's grandmother smoking in the home next to an oxygen breathing machine. Eleven people were living in the three-bedroom home, and the caseworker did not observe any medical supplies or a medical bed for RS. The petition further alleged that respondent was suspected of having deliberately removed a tube from RS's stomach, allegedly to prevent RS's discharge from the hospital during one of his stays there. The petition also contained allegations about respondent's mental health, lack of employment, and inability to stop other family members from smoking in the home.
The trial court authorized the petition on October 21, 2015, at which time it made RS a ward of the court and placed him in petitioner's care. In December 2015, respondent entered a plea of admission to several allegations contained in the petition. She acknowledged most of the above allegations and admitted that RS did not have his own room, his medical bed and other equipment were stored in the garage, and others in the home smoked. She also admitted that she had anxiety, depression, and bipolar disorder. Respondent testified that she was married to and living with William Barnes despite his extensive criminal history, which included a conviction for domestic violence. She acknowledged that her history with CPS included numerous allegations of domestic violence involving herself and Barnes, and she admitted that petitioner had offered services to her and RS in the past.
A parent-agency treatment plan was put in place in January 2016. The treatment plan required respondent and Barnes to obtain psychological evaluations, continue mental-health counseling, obtain employment and housing, properly care for RS's medical needs, attend all of RS's medical appointments, follow the medical recommendations, participate in substance-abuse assessments and random drug screens, contact the agency for transportation help if needed, and complete a domestic-violence assessment.
Review hearings were held regularly. At a review hearing in April 2016, respondent's caseworker, Ann Kotch, stated that respondent had reported that she had been fired from her part-time job and had been removed from the waiting list for subsidized housing. The trial court noted that it had reviewed reports submitted for respondent and Barnes and that respondent and Barnes had made inconsistent statements to various service providers. At a review hearing in July 2016, another caseworker, Jessica Girz, and the prosecutor reported that all of the barriers to reunification remained the same-Barnes had not been drug testing, respondent was unemployed, and respondent was harassing caseworkers and threatening to sue them. Respondent's counsel further acknowledged that respondent had not attended all of RS's medical appointments.
Finally, at a review hearing in October 2016, Kotch advised the trial court that respondent's therapist had reported that respondent refused to address her role in RS's removal. Respondent had attended six therapy sessions and had requested a new therapist, but she had not provided information about a replacement or releases for information. The guardian ad litem reported that respondent had only attended 17 of 54 doctor appointments. Accordingly, petitioner requested that the goal be changed to termination. The trial court authorized the petition due to respondent's noncompliance with her treatment plan.
Petitioner filed a supplemental petition in November 2016 requesting termination of respondent's parental rights under MCL 712A.19b(3)(c)(i ), (c)(ii ), (g), and (j). Also around this time, respondent's parenting time was suspended after she filed a baseless CPS complaint against RS's foster parents and was involved in an altercation with Kotch at one of RS's hospital appointments.
A seven-day termination hearing was held between February and May 2017. Regarding her relationship with Barnes, respondent testified that she was aware that Barnes had a criminal history, including a conviction for domestic violence, and that this history prevented Barnes from visiting RS. Still, respondent denied that Barnes was ever violent toward her. Respondent acknowledged Barnes's history of substance abuse and mental-health issues and stated that, although Barnes participated in random drug testing, he had not provided those records to petitioner.
With respect to respondent's own mental-health concerns, she testified that she had been attending therapy and that she no longer needed to take anxiety medication. One of the recommendations after her psychological evaluation was that she see a psychiatrist, but she had not seen one for more than two years. She was taking medications prescribed by her primary-care doctor and had not provided therapy records to her caseworker.
Respondent acknowledged having had a substance-abuse problem in the past, but testified that the problem was behind her. Respondent testified that she had not completed all of the required drug screens and had stopped testing after November 2016. According to respondent, she stopped testing because she was not provided with transportation assistance, though she acknowledged that she did not request this assistance. She later stated that transportation was not really a barrier for her to attend her services because a bus stop was only a quarter of a mile from her home. Respondent acknowledged that her caseworker had arranged for a service to come to her home for testing, but stated that she did not allow them to come into her home because it was an invasion of her privacy.
Regarding RS's medical appointments, respondent claimed that she attended all of the appointments about which she had been informed. Still, respondent acknowledged that she missed some other appointments for various reasons, including transportation problems, her own conflicting appointments, and her belief that the appointments had been canceled or that she was not allowed to attend. Later, however, respondent denied that she had missed any appointments due to transportation problems.
Respondent denied that she pulled out RS's stomach tube and claimed that she received information that a nurse had confessed to pulling out the tube, although no such information was offered for the record. Respondent testified at length about the mechanisms for feeding RS through his stomach tube, but she complained that no one had given her instructions for any special cleaning or care needed in connection with the use of the tube.
Respondent acknowledged that employment was an issue she needed to address and claimed that she was looking for work and trying to obtain her GED. Still, respondent admitted that she did not tell her caseworker about her job search. Respondent later testified that she had not looked for work, explaining that she had been busy with court. Respondent was not concerned about money because Barnes worked and she received public assistance.
With respect to her current housing, respondent testified that she obtained an apartment in Ypsilanti in September 2016 and had obtained rent assistance. Respondent testified that her caseworker came to the apartment and determined that it was not suitable for RS because it did not have handicap-accessible ramps, but respondent later maintained that her caseworker never told her that the apartment was unsuitable. Respondent stated that Barnes's name was on the lease, but he was hardly there due to his work. Respondent admitted that both she and Barnes smoked, but she denied that they smoked in the home and said that she and Barnes washed their hands and changed their clothes after smoking.
RS's foster mother, Natalie Burge, testified at length about the amount of daily care and medical equipment RS required. Burge stated that RS's cognitive development was between a toddler and an adolescent. Doctors had told her that RS's cognition and other chronic medical conditions were not likely to improve. Burge explained that RS currently had two tubes for feeding and drainage and described the considerable daily tasks involved in taking care of the tubes. Burge discussed an esophageal-disconnect surgery that RS underwent in June 2016 to relieve his vomiting and its success, which led to a significant weight gain. According to Burge, respondent was informed earlier that the surgery would help RS, but respondent, although agreeing that the surgery would be helpful, told Burge that it "was going to be in the way future" and not to worry about it. Burge acknowledged that "a handful" of RS's doctor appointments were scheduled too quickly to provide much notice to respondent, but maintained that she provided notice to Kotch of all the scheduled appointments.
Kotch testified that respondent had missed 30 of RS's 62 scheduled doctor appointments, surgeries, or other procedures, despite being informed of them all. Kotch maintained that, in the past, respondent would not agree with the doctors' recommendations, particularly with regard to discharging RS, and would become hostile to them.
As to the other aspects of the treatment plan, Kotch further testified that respondent had not addressed her need to provide housing for RS because respondent's current home did not have a wheelchair ramp and that respondent had told Kotch that she was not interested in becoming employed. Kotch further stated that respondent was not compliant with drug screening and that she had received a number of hostile or inappropriate text messages from respondent, which led Kotch to require that respondent communicate with her only by phone or in person. According to Kotch, respondent was inconsistent in her psychiatric treatment, had refused to address the reasons RS was put in foster care, and refused to release therapy information to the caseworker.
With respect to respondent's relationship with Barnes, Kotch testified that it remained a barrier to reunification. Kotch testified that respondent had not dealt with the issues posed by Barnes's criminal history and that Barnes had stopped drug testing almost a year earlier. Kotch testified that Barnes participated in the psychological and substance-abuse assessments, but he did not follow the recommendations.
Regarding her efforts to help respondent with reunification, Kotch stated that respondent informed her that she had applied for housing from the Michigan State Housing Development Authority, and Kotch stated that respondent did not ask her for other assistance with housing. Kotch scheduled monthly meetings with respondent and consistently asked if respondent needed assistance with any of her services, including obtaining housing. She provided respondent with bus tokens and gas cards, and she and others had personally transported respondent to services and parenting times. RS's insurance also covered transportation to medical appointments.
After the close of proofs, the trial court concluded that petitioner had established grounds for termination of respondent's parental rights under MCL 712A.19b(3)(c)(i ), (g), and (j). Regarding MCL 712A.19b(3)(c)(i ), the trial court concluded that respondent had failed to rectify the conditions that led to RS's removal. The trial court concluded that respondent had not made sufficient progress in addressing her own mental health to be able to take care of RS's extensive medical needs. The trial court noted that respondent had inconsistently attended therapy and that she refused to address her role in RS's removal. With respect to respondent's employment, the trial court concluded that respondent had no interest in working so that she would be able to meet RS's needs, meaning that her employment issues were not likely to be rectified in the near future. The trial court also concluded that respondent remained without adequate housing to address RS's needs because her current apartment did not have a handicap-accessible ramp and that respondent's own conduct prevented petitioner from assisting respondent in finding suitable housing. The trial court determined that one of the main issues that led to RS's removal was respondent's inability to care for him medically. The trial court concluded that respondent was in no better position to care for RS than at the time he was removed. The trial court noted that respondent failed to attend many of RS's appointments and was confrontational with his medical providers. With respect to respondent's claim that she was not provided with adequate instruction on how to care for RS, the trial court determined that respondent's claim was not credible and further found that any instructional issue was due to respondent's combativeness or her inability to understand the instructions.
With regard to MCL 712A.19b(3)(g), the trial court concluded that respondent had failed to provide for the proper care and custody of RS and that there was no reasonable expectation that she would be able to do so within a reasonable time. The trial court found that respondent failed to provide proper care because she failed to comply with the treatment plan. Respondent's failure to comply with the treatment plan also served as the basis for the trial court's conclusion under MCL 712A.19b(3)(j) that RS was reasonably likely to be harmed if returned to respondent's home. The trial court found that respondent was in no better position to address RS's medical needs given her combativeness with medical personnel and her inconsistent attendance at RS's appointments and that respondent's current home was unsafe for RS. The trial court found that these issues were not likely to be rectified within a reasonable time considering RS's age.
The trial court found that petitioner had met its burden to provide reasonable efforts to reunify the family and rectify the identified problems, but that respondent had not availed herself of that assistance. Because of respondent's refusal to address the deficiencies outlined in her treatment plan and RS's vulnerable state, the trial court concluded that termination of respondent's parental rights was justified considering RS's best interests. MCL 712A.19b(5).
This appeal followed. During the pendency of this appeal, RS died of complications from his cerebral palsy.
II. ANALYSIS
A. MOOTNESS
As an initial matter, because the minor child has died, we must first determine whether the termination of respondent's parental rights presents a justiciable issue over which the parties may invoke this Court's jurisdiction.
The courts of this state may only exercise the authority granted to them by Article VI of the 1963 Constitution. An essential element of that authority is that courts will not reach moot issues. In re Detmer , 321 Mich. App. 49, 55, 910 N.W.2d 318 (2017). Therefore, to warrant our review, the parties must present this Court with a real controversy, rather than a hypothetical one. Id . at 55-56, 910 N.W.2d 318. This requirement, commonly known as the real-case-or-controversy requirement, prevents this Court from rendering advisory opinions "that have no practical legal effect in a case." Id . at 55, 910 N.W.2d 318 (quotation marks and citation omitted). "Thus, before we can reach the merits of this appeal, we must first consider whether it has become moot" by the child's death. Id . at 56, 910 N.W.2d 318.
"Generally speaking, a case becomes moot when an event occurs that makes it impossible for a reviewing court to grant relief," i.e., when the case presents only "abstract questions of law which do not rest upon existing facts or rights." Id . (internal citation and quotation marks omitted). A case is not moot, however, where "a court's adverse judgment may have collateral legal consequences" for at least one of the parties. Id . (internal citation and quotation marks omitted). "When no such collateral legal consequences exist, and there is no possible relief that a court could provide, the case is moot and should ordinarily be dismissed without reaching the underlying merits." Id .
Both parties argue that the minor child's death does not render this case moot despite the inability of respondent to assume care of the child in the event that this Court reverses the trial court's termination. While we are not bound by the parties' agreement on this legal issue, see In re Jarrell , 172 Mich. App. 122, 123-124, 431 N.W.2d 426 (1988), we agree that this case is not moot because the trial court's termination of respondent's parental rights may have collateral legal consequences for respondent.
In the immediate context of termination proceedings, the trial court's termination of respondent's parental rights may provide a statutory ground to terminate respondent's parental rights to another child. MCL 712A.19b(3)(i). Moreover, as respondent points out, a prior termination is a relevant matter for the trial court to consider when determining whether petitioner should be required to provide reunification services in the event that another child is removed from respondent's care. MCL 712A.19a(2)(c). Additionally, the termination may affect respondent's ability to direct the child's property postmortem or wrap up legal or medical affairs concerning the child. See In Interest of E.C.G. , 345 N.W.2d 138, 142 (Iowa, 1984). Finally, given the facts of this case, the termination may affect respondent's ability to obtain future employment, especially in the medical or childcare sectors.
Therefore, we conclude that the case is not moot because collateral legal consequences still exist, even given the unfortunate passing of RS. See In re Detmer , 321 Mich. App. at 56, 910 N.W.2d 318 ; see also In re Welfare of Child of J.K.T. , 814 N.W.2d 76, 85 (Minn. Ct. App., 2012) (applying the collateral-legal-consequences rule when the minor child died during the pendency of the appeal); In Interest of E.C.G. , 345 N.W.2d at 141 (resolving an appeal filed after the minor child's death).
B. REASONABLE EFFORTS
Moving to the merits, respondent argues that the trial court erred by finding that petitioner made reasonable efforts to reunify her with the minor child. Absent exceptions not present here, petitioner is required to make reasonable efforts to reunify families and to rectify the conditions that led to the initial removal. See In re Terry , 240 Mich. App. 14, 25-26, 610 N.W.2d 563 (2000). We review the trial court's findings regarding reasonable efforts for clear error. In re Fried , 266 Mich. App. 535, 542-543, 702 N.W.2d 192 (2005). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Hudson , 294 Mich. App. 261, 264, 817 N.W.2d 115 (2011).
Respondent challenges the adequacy of petitioner's efforts with regard to transportation, job services, housing, and ongoing medical training. After reviewing the record, we are satisfied that petitioner's reunification efforts were reasonable.
With respect to housing, respondent was able to obtain housing with rent assistance. Respondent acknowledged that the caseworker visited her apartment and determined that it was not suitable because it did not have handicap-accessible ramps. The caseworker offered to help respondent find suitable housing, but respondent refused. Similarly, the caseworker offered to help respondent obtain employment but respondent did not fully avail herself of those services. We agree with the trial court that respondent never intended to work. Respondent provided myriad reasons for why she did not seek employment, and stated that her husband could provide financially for her and the minor child.
Regarding transportation, respondent acknowledged that she was provided with assistance, including gas cards and rides.
The caseworker also testified that respondent was provided with transportation assistance. Indeed, respondent acknowledged that she had not asked petitioner for further assistance with transportation, and that, in any event, she could use a bus stop near her home. Accordingly, the record makes clear that petitioner provided the necessary transportation assistance respondent requested.
Respondent claims that she did not receive the proper medical training to provide for RS. Although respondent claimed that no one explained any special cleaning or care needed in connection with the use of the child's stomach tube, she testified at length about the mechanisms for feeding the child through the tube. Moreover, respondent missed 30 of RS's 62 medical appointments despite being informed of them and, during the appointments she did attend, respondent frequently argued with care providers. Accordingly, the record makes clear that, if respondent did not receive some training, her own conduct was the cause.
Respondent also asserts that petitioner's duty required it to tailor its reunification assistance to the child's specific needs, in particular his numerous severe medical conditions. Respondent argues that she was entitled to more intensive services and that petitioner's "cookie cutter" approach to the case was insufficient to satisfy its duty to provide reasonable reunification efforts. In support of this argument, respondent cites only caselaw establishing a duty by petitioner to tailor services to accommodate a disabled parent under the Americans with Disabilities Act, 42 USC 12101 et seq. , rather than a disabled child. Respondent does not identify a disability of her own that required accommodation and "[a] party may not leave it to this Court to search for authority to sustain or reject its position." People v Fowler , 193 Mich. App. 358, 361, 483 N.W.2d 626 (1992).
In any event, a significant component of respondent's treatment plan required her to attend RS's medical appointments so that she could be aware of his needs and learn how to provide the specialized care he required. Respondent failed to attend approximately half of the child's appointments and frequently argued with care providers when she did attend appointments. Moreover, as discussed previously, respondent failed to avail herself of many of the services that were offered.
Therefore, the record makes clear that, although petitioner met its obligation to provide reasonable reunification services to respondent, respondent did not uphold her commensurate responsibility to engage in and benefit from those services. In re Frey , 297 Mich. App. 242, 248, 824 N.W.2d 569 (2012). Accordingly, respondent's claim that petitioner failed to provide reunification services is without merit.
C. STATUTORY GROUNDS
Respondent next argues that the trial court erred when it found that petitioner had established the statutory grounds for termination by clear and convincing evidence. "In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen , 293 Mich. App. 120, 139, 809 N.W.2d 412 (2011). We review for clear error a trial court's ruling that a statutory ground for termination has been proved by clear and convincing evidence. In re Hudson , 294 Mich. App. at 264, 817 N.W.2d 115.
The trial court found that grounds for terminating respondent's parental rights were established under MCL 712A.19b(3)(c)(i ), (g), and (j), which authorize termination of parental rights under the following circumstances:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i ) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
1. MCL 712A.19b(3)(c)(i )
The trial court did not clearly err by finding that termination of respondent's parental rights was justified under MCL 712A.19b(3)(c)(i ). The initial requirements were that respondent obtain a psychological evaluation and follow the recommendations, continue mental-health counseling, seek employment and housing, properly care for the child's medical needs, participate in a substance-abuse assessment and random drug screens, contact the agency for transportation help if needed, and complete a domestic-violence assessment and comply with the recommendations. The trial court found that respondent made minimal progress in meeting these requirements.
Regarding respondent's employment, we agree with the trial court that respondent did not intend to work. As noted previously, respondent provided a number of excuses as to why she could not work and did not provide petitioner with any documentation of her job search. Considering respondent's belief that she did not need to work, we agree that this issue was unlikely to be resolved within a reasonable time.
With respect to respondent's housing, although respondent had obtained an apartment during the time RS was placed with petitioner, the apartment did not have a handicap-accessible ramp. Although petitioner offered to help respondent find suitable housing, respondent refused help. Accordingly, the record indicates that respondent did not meet her suitable-housing goals and was unlikely to do so within any reasonable time.
The trial court's finding that respondent had not made sufficient progress in addressing her mental-health concerns is also supported by the record. Respondent met with a number of therapists over the course of the case, but failed to provide the caseworker with a release for her most current mental-health provider so that petitioner could track her progress. More importantly, there is no indication that respondent benefited from any of these services. Respondent refused to address the issues that caused RS's removal, and she continued to act with hostility toward the child's medical providers and foster parents. Indeed, this hostility eventually resulted in an altercation at the hospital and the suspension of respondent's parenting time. Accordingly, respondent failed to address the main barriers that her mental health posed to the child's care. Given that respondent refused to address these issues throughout the case, as opposed to making a good-faith effort at improving, respondent was not likely to rectify her mental-health issues within any reasonable time frame.
Finally, with respect to the principal issue that led to the child's removal, clear and convincing evidence showed that respondent made no progress toward demonstrating her ability to care for the child's extensive medical needs. Respondent missed 30 of the child's 62 scheduled doctor appointments, surgeries, or other procedures and respondent continued to be confrontational with medical personnel and their treatment recommendations. Moreover, respondent herself claimed to have inadequate training regarding the minor child's feeding tube. Accordingly, respondent was ill-equipped to address the child's medical needs and, given her inability to participate in the child's care, was unlikely to improve her care-taking abilities in the future.
Despite being provided ample services, respondent made minimal progress in rectifying the conditions that led to the adjudication. The trial court did not clearly err by finding that the evidence supported termination of her parental rights under § 19b(3)(c)(i ).
2. MCL 712A.19b(3)(g) and (j)
Finally, the record also supports the trial court's reliance on MCL 712A.19b(3)(g) and (j). "A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody." In re White , 303 Mich. App. 701, 710, 846 N.W.2d 61 (2014). "Similarly, a parent's failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent's home." Id . at 711, 846 N.W.2d 61. Respondent failed to comply with many of the terms of her treatment plan and made only minimal progress on the other terms. The testimony showed that the child had extensive medical needs and required constant care. Considering respondent's lack of participation in the child's medical care during the time he was in petitioner's care, and her minimal progress in addressing the other requirements of her treatment plan, there was no reasonable expectation that she would be able to care for him within a reasonable time. Given the child's fragile medical condition, there existed a reasonable likelihood that the child would have suffered serious physical harm if returned to respondent's home.
III. CONCLUSION
The trial court terminated respondent's parental rights to RS, and during the pendency of the appeal, RS tragically died. While reunification is no longer possible, we conclude that the matter is not moot because respondent faces collateral legal consequences as a result of the termination. Upon review of the merits, we conclude that the trial court did not err by holding that petitioner made reasonable efforts to reunify the family, nor did the trial court err by holding that statutory grounds existed for termination. Respondent does not challenge the trial court's best-interests determination. Accordingly, we affirm the termination of respondent's parental rights to RS.
MURPHY, P.J., and JANSEN, J., concurred with SWARTZLE, J.
The parental rights of the child's father were also terminated. He is not a party to this appeal.
MCL 712A.19b(3)(i) has been amended, effective June 12, 2018. See 2018 PA 58. Under the current version of the statute, a prior termination involving serious neglect is a statutory ground to terminate rights to a sibling when "prior attempts to rehabilitate the parents have been unsuccessful." MCL 712A.19b(3)(i), as amended by 2012 PA 386. Under the version of the statute that will be effective June 12, 2018, a prior termination involving serious neglect is a statutory ground to terminate rights to a sibling only when "the parent has failed to rectify the conditions that led to the prior termination of parental rights." MCL 712A.19b(3)(i), as amended by 2018 PA 58.
As currently codified, MCL 712A.19a(2)(c), as amended by 2012 PA 115, permits the trial court to order that reunification services not be made if the parent has had his or her rights to another child involuntarily terminated. As amended by 2018 PA 58, effective June 12, 2018, the trial court may only order that reunification services not be made under MCL 712A.19a(2)(c) if "the parent has failed to rectify the conditions that led to that termination of parental rights." | [
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Boonstra, P.J.
In this third-party no-fault action, plaintiffs appeal by right the trial court's order granting summary disposition in favor of defendants under MCR 2.116(C)(8). We reverse and remand for further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff Tracy Brickey (Tracy) was operating his motorcycle on US-223 when he was struck by a vehicle driven by defendant Vincent McCarver (McCarver) and owned by defendant CR Motors. Tracy was severely injured.
Plaintiffs filed suit against defendants, arguing that (1) McCarver negligently operated a vehicle and caused injury to Tracy, (2) CR Motors was liable for McCarver's negligence under Michigan's owner's-liability statute, MCL 257.401, and the doctrine of negligent entrustment, and (3) McCarver's negligence additionally resulted in plaintiff Brandy Brickey's loss of consortium. Defendants answered the complaint and also moved for summary disposition under MCR 2.116(C)(8) and (10). Defendants contended in their motion that the motorcycle Tracy was operating at the time of the accident was uninsured and that plaintiffs, accordingly, were precluded from recovery under MCL 500.3135(2)(c). The trial court agreed, relying on Braden v. Spencer , 100 Mich. App. 523, 299 N.W.2d 65 (1980), and granted summary disposition in favor of defendants under MCR 2.116(C)(8) (failure to state a claim on which relief may be granted). The trial court denied plaintiffs' motion for reconsideration. This appeal followed.
II. STANDARD OF REVIEW
A "trial court's ruling on a motion for summary disposition is reviewed de novo on appeal." ZCD Transp., Inc. v. State Farm Mut. Auto. Ins. Co. , 299 Mich. App. 336, 339, 830 N.W.2d 428 (2012), citing Moser v. Detroit , 284 Mich. App. 536, 538, 772 N.W.2d 823 (2009). "A motion brought under subrule (C)(8) tests the legal sufficiency of the complaint solely on the basis of the pleadings." Dalley v. Dykema Gossett PLLC , 287 Mich. App. 296, 304, 788 N.W.2d 679 (2010), citing Corley v. Detroit Bd. of Ed. , 470 Mich. 274, 277, 681 N.W.2d 342 (2004). Summary disposition under MCR 2.116(C)(8) is appropriately granted if the opposing party has failed to state a claim on which relief can be granted. Id ."When deciding a motion under (C)(8), this Court accepts all well-pleaded factual allegations as true and construes them in the light most favorable to the nonmoving party." Dalley , 287 Mich. App. at 304-305, 788 N.W.2d 679, citing Maiden v. Rozwood , 461 Mich. 109, 119, 597 N.W.2d 817 (1999). A motion under MCR 2.116(C)(8)"should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery." Kuhn v. Secretary of State , 228 Mich. App. 319, 324, 579 N.W.2d 101 (1998), citing Wade v. Dep't of Corrections , 439 Mich. 158, 163, 483 N.W.2d 26 (1992).
We also review de novo questions of statutory interpretation. McLean v. McElhaney , 289 Mich. App. 592, 596, 798 N.W.2d 29 (2010).
III. ANALYSIS
Plaintiffs argue that the trial court erred by granting summary disposition in favor of defendants because MCL 500.3135(2)(c), by its plain language, applies only to uninsured "motor vehicles," as opposed to motorcycles, and therefore does not limit plaintiffs' right to seek damages in tort. We agree.
"The primary rule of statutory interpretation is that we are to effect the intent of the Legislature." Stanton v. City of Battle Creek , 466 Mich. 611, 615, 647 N.W.2d 508 (2002), citing Wickens v. Oakwood Healthcare Sys. , 465 Mich. 53, 60, 631 N.W.2d 686 (2001). " 'To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language.' " Odom v. Wayne Co. , 482 Mich. 459, 467, 760 N.W.2d 217 (2008), quoting Lash v. Traverse City , 479 Mich. 180, 187, 735 N.W.2d 628 (2007). Our primary focus in statutory interpretation "is the language of the statute under review." People v. Harris , 499 Mich. 332, 345, 885 N.W.2d 832 (2016). If the language is unambiguous, the intent of the Legislature is clear and " 'judicial construction is neither necessary nor permitted.' " Odom , 482 Mich. at 467, 760 N.W.2d 217, quoting Lash , 479 Mich. at 187, 735 N.W.2d 628. The words of the statute provide the best evidence of legislative intent and the policy choices made by the Legislature. See White v. City of Ann Arbor , 406 Mich. 554, 562, 281 N.W.2d 283 (1979). Our role as members of the judiciary is not to second-guess those policy decisions or to change the words of a statute in order to reach a different result. In fact, a "clear and unambiguous statute leaves no room for judicial construction or interpretation." Coleman v. Gurwin , 443 Mich. 59, 65, 503 N.W.2d 435 (1993). Therefore, we start by examining the words of the statute, which "should be interpreted on the basis of their ordinary meaning and the context within which they are used in the statute." People v. Zajaczkowski , 493 Mich. 6, 13, 825 N.W.2d 554 (2012). See also Harris , 499 Mich. at 435, 885 N.W.2d 832. Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich. , 492 Mich. 503, 515, 821 N.W.2d 117 (2012).
"Any issues relating to the soundness of the policy underlying the statute or its practical ramifications are properly directed to the Legislature." Maier v. Gen. Tel. Co. of Mich. , 247 Mich. App. 655, 664, 637 N.W.2d 263 (2001). "[W]e may not read into the statute what is not within the Legislature's intent as derived from the language of the statute." Robinson v. City of Lansing , 486 Mich. 1, 15, 782 N.W.2d 171 (2010) (quotation marks and citation omitted).
MCL 500.3135(2)(c) provides, in relevant part:
(2) For a cause of action for damages pursuant to subsection (1) filed on or after July 26, 1996, all of the following apply:
* * *
(c) Damages shall not be assessed in favor of a party who was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle the security required by section 3101 at the time the injury occurred.
Section 3101, in turn, provides, "(1) 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." MCL 500.3101(1). "Motor vehicle" is defined, for the purposes of Chapter 31 of the Insurance Code of 1956, as a "vehicle, including a trailer, that is operated or designed for operation on a public highway by power other than muscular power and has more than 2 wheels." MCL 500.3101(2)(i). The definition of "motor vehicle" specifically excludes motorcycles. MCL 500.3101(2)(i)(i ).
Inasmuch as the statute explicitly excludes motorcycles from the definition of "motor vehicle," and therefore from the preclusive effect of MCL 500.3135(2)(c), the plain language of the statute unambiguously refutes the trial court's statutory interpretation. See Robinson , 486 Mich. at 15, 782 N.W.2d 171. Moreover, the trial court errantly relied on Braden , 100 Mich. App. at 529, 299 N.W.2d 65, for the proposition that, despite the explicit exclusion of motorcycles from the definition of "motor vehicle," uninsured operators of motorcycles are subject to the proscriptions of MCL 500.3135(2)(c). First, Braden is not binding on this Court given its age, MCR 7.215(J)(1), and second, Braden is factually and legally inapposite. In Braden , the plaintiff did not sue to recover noneconomic loss, as in this case, but instead filed a complaint "for property damage to his motorcycle resulting when it collided with an automobile owned and operated by [the] defendant." Braden , 100 Mich. App. at 525, 299 N.W.2d 65. The trial court held that, under MCL 500.3135, the defendant was not shielded from tort liability because the plaintiff was operating a motorcycle-not a "motor vehicle"-at the time of the accident. Id . On appeal, this Court reversed, holding that "[t]he exclusion of motorcycles from the [no-fault] act's definition of motor vehicles does not illustrate a legislative intent to exempt motorcyclists from the effect of the abolition of tort liability by § 3135." Id . at 529, 299 N.W.2d 65 (emphasis added). Defendant contends that this language means that the term "motorcycle" must be read into every provision of MCL 500.3135.
Importantly, however, the statute at issue in Braden was quite different from the one that exists today. See MCL 500.3135, as amended by 1979 PA 147. In Braden , the Court was solely concerned with the application of what is now MCL 500.3135(3). See Braden , 100 Mich. App. at 525-526, 299 N.W.2d 65. Subsection (2)(c) was not added to the statute until 1995-15 years after Braden . See MCL 500.3135, as amended by 1995 PA 222.
Subsection (3) provides, in pertinent part, "(3) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by section 3101 was in effect is abolished...." MCL 500.3135(3) (emphasis added). In other words, while Subsection (2)(c) addresses a party's right to recover damages, Subsection (3) deals with a party's exposure to tort liability. Specifically, Subsection (3) extinguishes tort liability for noneconomic losses for drivers of motor vehicles who carry proper insurance, apart from the exceptions found in MCL 500.3135(1). Subsection (3) has nothing to do with a plaintiff's right to recover damages and instead has everything to do with a defendant's liability, irrespective of the plaintiff or the plaintiff's mode of travel. Accordingly, it was irrelevant in Braden that the plaintiff was a motorcyclist because the defendant was, in any event, immune from tort liability for the type of damages the plaintiff sought. Braden , 100 Mich. App. at 529, 299 N.W.2d 65. Consequently, even if we were bound by Braden , our decision would not conflict with its essential holding. See Braden , 100 Mich. App. at 529, 299 N.W.2d 65.
In essence, defendants ask this Court to add language into Subsection (2)(c), such that it might read: "Damages shall not be assessed in favor of a party who was operating his or her own vehicle at the time the injury occurred and did not have in effect for that motor vehicle [or motorcycle] the security required by section 3101 [or 3103] at the time the injury occurred." MCL 500.3135(2)(c) (emphasis added). To read the statute in that manner would require an impermissible judicial construction of an unambiguous statute. See Odom , 482 Mich. at 467, 760 N.W.2d 217, quoting Lash , 479 Mich. at 187, 735 N.W.2d 628. We decline defendants' invitation to so interpret an unambiguous statutory provision.
Defendants nevertheless contend that Subsection (2)(c) must apply to motorcycles because, although not required by § 3101, motorcycles are still required to be insured under MCL 500.3103, and public policy dictates that any operator of a motorcycle -like any operator of a motor vehicle-who has failed to obtain insurance coverage as required by law should be barred from recovering tort damages. Indeed, § 3103 provides, in pertinent part, "(1) An owner or registrant of a motorcycle shall provide security against loss resulting from liability imposed by law for property damage, bodily injury, or death suffered by a person arising out of the ownership, maintenance, or use of that motorcycle." MCL 500.3103(1).
However, it is for the Legislature, not this Court, to address the policymaking considerations that are inherent in statutory lawmaking. See Maier , 247 Mich. App. at 664, 637 N.W.2d 263 ; W.A. Foote Mem. Hosp. v. Mich. Assigned Claims Plan , 321 Mich. App. 159, 190 n. 16, 909 N.W.2d 38 (2017). Moreover, defendants' reliance on § 3103 hinders, rather than helps, their argument. The plain language of § 3103 demonstrates that when the Legislature intends for corollary rules to exist as between motor vehicles and motorcycles, it explicitly enacts those rules. Therefore, for example, § 3101 creates a requirement that certain motor vehicles are insured, and § 3103 creates a similar requirement for motorcycles. See MCL 500.3101 ; MCL 500.3103. Similarly, MCL 500.3113, which limits the entitlement of certain persons to recover personal protection insurance benefits, contains the exact language that defendants would have this Court to read into MCL 500.3135(2)(c) :
A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
* * *
(b) The person was the owner or registrant of a motor vehicle or motorcycle involved in the accident with respect to which the security required by section 3101 or 3103 was not in effect. [ MCL 500.3113 (emphasis added).]
The Legislature's omission of a term in one portion of a statute that is contained in another should be construed as intentional. Michigan v. McQueen , 293 Mich. App. 644, 672, 811 N.W.2d 513 (2011). Similarly, the Legislature's use of different terms suggests different meanings. U.S. Fidelity Ins. & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing ), 484 Mich. 1, 14, 795 N.W.2d 101 (2009).
The language of MCL 500.3135(2)(c) is unambiguous: individuals injured while operating a motor vehicle that is both owned by them and uninsured in violation of MCL 500.3101 are not entitled to recover damages. Motorcycles are not motor vehicles under the no-fault act. MCL 500.3101(2)(i)(i ). Accordingly, MCL 500.3135(2)(c) does not limit the right of motorcyclists to recover damages.
Plaintiffs contend in the alternative that, even assuming that MCL 500.3135(2)(c) applies to motorcyclists, the trial court nonetheless erred by dismissing all of plaintiffs' claims because Subsection (2)(c) only limits actions for noneconomic damages. Having held that Subsection (2)(c) does not apply to motorcyclists, however, we need not reach that question, which in any event was not raised below until reconsideration. See Vushaj v. Farm Bureau Gen. Ins. Co. of Mich. , 284 Mich. App. 513, 519, 773 N.W.2d 758 (2009).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
BECKERING and RONAYNE KRAUSE, JJ., concurred with BOONSTRA, P.J.
At the time, Subsection (3) was codified as Subsection (2). MCL 500.3135(2), as amended by 1972 PA 294; MCL 500.3135(3). The relevant language analyzed in Braden , however, is verbatim to the language of Subsection (3) today. See MCL 500.3135(3) ; Braden , 100 Mich. App. at 526, 299 N.W.2d 65.
Even assuming arguendo that Braden did support defendants' reading of MCL 500.3135(2), we are mindful that clear statutory language must prevail when "caselaw clearly misinterprets the statutory scheme at issue." Covenant Med. Center, Inc. v. State Farm Mut. Auto. Ins. Co. , 500 Mich. 191, 201, 895 N.W.2d 490 (2017) ; see also W.A. Foote v. Mich. Assigned Claims Plan , 321 Mich. App. 159, 190 n. 16, 909 N.W.2d 38 (2017). | [
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M.J. Kelly, P.J.
In this action for uninsured motorist insurance and personal protection insurance (PIP) benefits, the trial court granted summary disposition to defendant, IDS Property Casualty Insurance Company (IDS), on the ground that plaintiff, Percy Baker, had committed fraud. According to the court, a fraud-exclusion clause in Baker's automobile insurance policy with IDS voided her coverage. Baker appeals as of right, challenging the grant of summary disposition in IDS's favor. Because IDS failed to plead fraud as an affirmative defense in its answer, amended answer, or in a motion for summary disposition filed in lieu of a responsive pleading, MCR 2.111(F)(3), we conclude that it waived the defense. Accordingly, the trial court erred by granting summary disposition on the basis of fraud. We reverse and remand for reinstatement of Baker's claim against IDS.
I. BASIC FACTS
The basic facts are undisputed. In October 2014, Baker sustained injuries when a vehicle driven by Edward Marshall ran a red light and broadsided the vehicle in which she was a passenger. At the time of the accident, Baker had a no-fault insurance policy with IDS that included uninsured motorist coverage. Baker asserted that as defined in her no-fault policy, Marshall was an uninsured motorist, as was Hertz Vehicles, LLC, the owner of the vehicle Marshall was driving. She submitted a claim for uninsured motorist benefits to IDS, but it was denied. She also sought PIP benefits, which were likewise denied by IDS.
In May 2015, Baker filed a complaint asserting that she was entitled to uninsured motorist insurance benefits under the terms of her policy with IDS. She also asserted that IDS had failed to pay her first-party benefits under the same policy. IDS filed its answer in June 2015. Generally, it denied the allegations that it had wrongfully failed to pay uninsured motorist benefits and PIP benefits under Baker's policy. In its answer, IDS asserted numerous affirmative defenses and reserved the right to file additional affirmative defenses as they "may become known during the course of investigation and discovery." The affirmative defenses raised in the answer did not include a defense that the insurance policy was void ab initio on the basis of fraud. In response, Baker denied each of the affirmative defenses and demanded that, as required by MCR 2.111(F)(3), IDS provide detailed facts in support of each affirmative defense and a recitation of the legal basis for each of those defenses. Baker later amended her complaint, adding claims against additional parties. In its answer to the amended complaint, IDS again generally denied the allegations against it and set forth numerous affirmative defenses, but it once more failed to raise contractual fraud as an affirmative defense.
In February 2016, IDS moved for partial summary disposition, asserting that Baker was not entitled to uninsured motorist benefits under her no-fault policy with IDS because Marshall and Hertz had valid insurance policies or were self-insured at the time of the accident. In doing so, it directed the trial court to the relevant terms of the policy. It did not, at that time, raise any argument that the policy's fraud-exclusion clause was applicable for any reason. Before the court ruled on the motion, IDS moved for summary disposition in May 2016 on the entirety of Baker's claim. For the first time, IDS claimed that Baker had fraudulently misrepresented facts in her claim for benefits and that the fraud-exclusion clause in her policy with IDS therefore applied and barred her from receiving any benefits. Although Baker argued that IDS had waived its fraud defense by failing to raise it as required by MCR 2.111(F), the trial court granted summary disposition on the basis that the fraud-exclusion clause applied.
II. WAIVER OF AFFIRMATIVE DEFENSES
A. STANDARD OF REVIEW
On appeal, Baker argues that the trial court erred by granting summary disposition on the basis of fraud because the defense of fraud was waived by IDS's failure to properly raise it as an affirmative defense under MCR 2.111(F). Our review of a grant of summary disposition is de novo. Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc. , 285 Mich. App. 362, 369, 775 N.W.2d 618 (2009).
B. ANALYSIS
"[T]he primary function of a pleading in Michigan is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position." Stanke v. State Farm Mut. Auto Ins. Co. , 200 Mich. App. 307, 317, 503 N.W.2d 758 (1993). MCR 2.111(F) addresses the proper manner to plead affirmative defenses and sets forth the consequences for failing to do so. MCR 2.111(F)(2) provides that "[a] defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted." And MCR 2.111(F)(3) provides that "[a]ffirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118." Alternatively, "a party who has asserted a defense by motion filed pursuant to MCR 2.116 before filing a responsive pleading need not again assert that defense in a responsive pleading later filed[.]" MCR 2.111(F)(2)(a). It has long been established that under MCR 2.111(F), " '[t]he failure to raise an affirmative defense as required by the court rule constitutes a waiver of that affirmative defense.' "
Dell v. Citizens Ins. Co. of America , 312 Mich. App. 734, 753, 880 N.W.2d 280 (2015), quoting Stanke , 200 Mich. App. at 312, 503 N.W.2d 758. On the record before this Court, it is plain that IDS did not raise its reliance on the fraud-exclusion clause in its affirmative defenses to either the original or the amended complaint, nor did it first raise it in a motion filed under MCR 2.116 before filing a responsive pleading. Accordingly, under the plain language of MCR 2.111(F)(3), the defense is waived.
In Michigan, "[r]eliance on an exclusionary clause in an insurance policy is an affirmative defense...." Shelton v. Auto-Owners Ins. Co. , 318 Mich. App. 648, 657, 899 N.W.2d 744 (2017). Despite that fact, in an effort to avoid waiver under MCR 2.111(F)(3), IDS directs us to this Court's decision in Stanke and argues that under the rationale used in Stanke the defense in this case is not an affirmative defense because it directly controverts Baker's prima facie case. We disagree.
In Stanke , the defendant insurance company argued for about seventeen months that the plaintiff was not entitled to coverage under his parents' no-fault policy because he was not a resident of his parents' domicile. Stanke , 200 Mich. App. at 310-311, 503 N.W.2d 758. Thereafter, the defendant raised a new theory in a motion for summary disposition: the vehicle involved in the accident was an owned vehicle not named on the declarations page of the policy and coverage could be denied because there was an "owned vehicle exclusion" clause in the policy. Id . at 311, 503 N.W.2d 758. The trial court, however, concluded that the owned-vehicle-exclusion argument was waived because the defendant had not raised it as a defense in its answer or as an affirmative defense. Id. The trial court further denied the defendant leave to amend its answer on the basis of inexcusable delay. Id . This Court, however, granted leave and ultimately held that the defense was not waived because it was not an affirmative defense. Id . at 315-316, 503 N.W.2d 758. In doing so, this Court defined an affirmative defense as follows:
An affirmative defense is a defense that does not controvert the plaintiff's establishing a prima facie case, but that otherwise denies relief to the plaintiff. In other words, it is a matter that accepts the plaintiff's allegation as true and even admits the establishment of the plaintiff's prima facie case, but that denies that the plaintiff is entitled to recover on the claim for some reason not disclosed in the plaintiff's pleadings. For example, the running of the statute of limitations is an affirmative defense. Thus, although the plaintiff may very well have a valid claim and is able to establish a prima facie case, the defendant, as an affirmative matter, may nevertheless establish that the plaintiff is not entitled to prevail on the claim because the defendant can show that the period of limitation has expired and, therefore, the suit is untimely. [ Id. at 312, 503 N.W.2d 758 (citations omitted).]
The Court then reasoned that the defendant's contention that the driver operated an unnamed but owned vehicle "directly controverts plaintiff's entitlement to prevail" because if that contention were proved, the plaintiff would be unable to establish his prima facie case by showing that there was a policy covering the facts at hand. Id . at 313-315, 503 N.W.2d 758.
In this case, however, the existence of the fraud-exclusion clause does not controvert Baker's entitlement to prevail on her prima facie case. Her claim is essentially a claim that she had a no-fault policy with IDS and was entitled to benefits under that policy. In order to directly controvert that claim, IDS would have to argue that, under the language in the policy, she was not entitled to recover benefits. Its claim that Baker is not entitled to benefits on the basis of the fraud-exclusion clause, however, requires IDS to acknowledge that, in the absence of fraud, it would be required to pay her benefits under the policy. Stated differently, in order for fraud to bar Baker's claim, she must first have a claim to be barred. The claim to be barred is the claim raised in her prima facie case. The fraud defense is therefore an affirmative defense, one that if successful would prevent Baker from recovering under the policy despite the fact that she could otherwise prevail on her prima facie case. Because the fraud defense is an affirmative defense, the failure to raise it constitutes a waiver of that defense. Consequently, the trial court erred by granting IDS summary disposition on the basis of fraud.
Reversed and remanded for reinstatement of Baker's claim against IDS. We do not retain jurisdiction. Baker may tax costs as the prevailing party. MCR 7.219(A).
METER, J., concurred with M. J. KELLY, P.J.
I respectfully dissent. In my view, it was unnecessary for defendant IDS Property Casualty Insurance Company (IDS) to have pleaded fraud as an affirmative defense, and therefore, the defense has not been waived. On that basis, I would affirm the trial court's grant of summary disposition in favor of IDS.
Contrary to the majority, I find Stanke v. State Farm Mut. Auto Ins. Co. , 200 Mich. App. 307, 503 N.W.2d 758 (1993), to be on point and persuasive. Because plaintiff's fraud prevents her from establishing a prima facie case, fraud need not have been pleaded as an affirmative defense. Id. at 312, 503 N.W.2d 758. Courts are not bound by what litigants choose to label their motions, complaints, or other pleadings. Johnston v. Livonia , 177 Mich. App. 200, 208, 441 N.W.2d 41 (1989). Rather, it is our duty to consider the gravamen of the pleading or motion based on a complete reading of the document as a whole. See Stephens v. Worden Ins. Agency, LLC , 307 Mich. App. 220, 229, 859 N.W.2d 723 (2014). Accordingly, although IDS referred to plaintiff's alleged fraud as contractual fraud, it is not. IDS is not arguing that plaintiff committed fraud when obtaining her insurance policy and therefore, an exclusionary clause would render that policy void ab initio. Admittedly, if that were the case, the trial court would have committed error requiring reversal by granting summary disposition in favor of IDS. See Shelton v. Auto-Owners Ins. Co. , 318 Mich. App. 648, 657, 899 N.W.2d 744 (2017). Rather, the crux of IDS's argument is that plaintiff's injuries are not related to, and actually predate, the underlying accident in this matter, and that therefore, plaintiff is not entitled to recover PIP benefits from IDS. IDS does not argue that even if all of plaintiff's claims are taken as true, it is still excused from liability due to plaintiff's contractual fraud, i.e., it has an affirmative defense. Instead, IDS argues that plaintiff is fraudulently misrepresenting the nature and extent of her physical injuries, and therefore, she cannot succeed on her claim because she cannot successfully prove her prima facie case. The majority has overlooked that important distinction.
Based on the foregoing, I would affirm.
Defendants, Edward Marshall and Hertz Vehicles, LLC, were dismissed from the proceedings pursuant to a stipulated order. Defendants, Kendra Bradfield and Ernest Bradfield, previously settled with Baker. On appeal, Baker only challenges the court's grant of summary disposition to IDS.
It appears that IDS took no action in response to this demand. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the November 7, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion for peremptory reversal is DENIED. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the October 29, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 10, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the September 27, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 24, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the November 27, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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-75
] |
On order of the Court, the application for leave to appeal the September 20, 2018 order of the Court of Appeals is considered. We DIRECT the Wayne County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order.
The application for leave to appeal and the motion to remand remain pending. | [
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On order of the Court, the application for leave to appeal the November 30, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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By order of October 5, 2018, the application for leave to appeal the May 11, 2018 order of the Court of Appeals was held in abeyance pending the decision in In re MGR (Docket Nos. 157821-2), 503 Mich. 877, 917 N.W.2d 673 (2018). The application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the Oakland Circuit Court's October 4, 2017 order denying the defendant-mother's motion to stay.
"Although proceedings under the [Michigan] Adoption Code should, in general, take precedence over proceedings under the Paternity Act, adoption proceedings may be stayed upon a showing of good cause, as determined by the trial court on a case-by-case basis." In re MKK , 286 Mich. App. 546, 555, 781 N.W.2d 132 (2009), citing MCL 710.25(2). The plaintiff-father did not request that the trial court stay the adoption proceedings in favor of the paternity proceedings pursuant to MCL 710.25(2), and the facts did not justify a stay in any event. But the defendant-mother did ask the trial court to stay the paternity proceedings-once prior to the trial court issuing its Section 39 determination, and once while the Section 39 decision was on appeal. The trial court denied those requests, and entered the order of filiation after it had issued its Section 39 determination and after the petitioning prospective adoptive parents had appealed that decision to the Court of Appeals.
On June 7, 2017, the defendant-mother moved for stay, which was denied by the circuit court on June 14, 2017. Following petitioners' appeal of the trial court's Section 39 determination in the adoption case, the defendant-mother again moved to stay the paternity action pending appellate review of the adoption proceedings. On October 4, 2017, the trial court denied the motion and entered the order of filiation.
The trial court's denial of the defendant-mother's motions was an abuse of discretion given the unique circumstances of this case. The trial court had the authority to stay the paternity action in favor of the adoption proceedings: absent good cause, adoption proceedings should be given priority. MCL 710.21a and MCL 710.25(2). And a trial court has the inherent authority to control the progress of a case. See MCR 1.105 ; MCR 2.401 ; see also MCR 3.217(A) ("Procedure in actions under the Paternity Act, MCL 722.711 et seq. , is governed by the rules applicable to other civil actions except as otherwise provided by this rule and the act."). Because the petitioners in the adoption case had a right to appeal the Section 39 determination and because good cause to delay those proceedings had not been alleged, the trial court should have stayed the paternity proceedings pursuant to MCR 7.209(E)(2)(b) so that the appellate court could review that decision.
Because the trial court abused its discretion in denying the defendant-mother's motion to stay, the trial court also abused its discretion in granting the order of filiation. We VACATE that order and REMAND this case to the Family Division of the Oakland Circuit Court for entry of an order of stay pending the court's resolution of In re MGR , which we have remanded for analysis under Section 39(1) of the Michigan Adoption Code, MCL 710.39(1), by order entered June 6, 2019.
We do not retain jurisdiction. | [
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Swartzle, J.
We consider here whether the special protections provided to Native American parents and children under state law apply when a child is taken from her mother's care and residence and placed in her father's care and residence. Concluding that one of respondent-mother's children (AB) was "removed," we hold that the special protections set forth in the Michigan Indian Family Preservation Act do apply to AB's removal. Because the trial court failed to comply with those protections, we vacate and remand for further proceedings. With respect to the other child at issue in this appeal (KD), we hold that the special protections do not apply because KD was not removed from respondent-mother but instead voluntarily placed by respondent-mother with KD's nonrespondent-father.
I. BACKGROUND
AB and KD are minor children, and the two children and respondent-mother are of Native American heritage and are eligible for membership in the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe). In September 2016, the Department of Health and Human Services (DHHS) petitioned the trial court to remove the minor children from respondent-mother's care. The petition noted respondent-mother's extensive history with Children's Protective Services and alleged that inappropriate sexual contact had occurred multiple times among her minor children, including three other children who are not subject to this appeal. At the preliminary hearing, respondent-mother voluntarily placed most of her minor children into the care of the minor children's relatives. KD was voluntarily placed with her nonrespondent-father, but AB remained in respondent-mother's care. The trial court made no findings on whether DHHS made "active efforts" to provide remedial services or whether respondent-mother's continued custody posed a risk-of-harm to the minor children, as the placements at that time were voluntary.
The trial court assumed jurisdiction over the children in November 2016. At adjudication, the trial court ordered that AB be placed with his nonrespondent-father out of concern for AB's safety in respondent-mother's home. KD's prior voluntary placement was continued. The trial court expressly declined to make any findings as to active efforts or risk-of-harm, stating that the findings were unnecessary because AB was placed in the home of his nonrespondent-father and, therefore, he was still in the care of a parent. According to the trial court, because AB's father was a nonrespondent, under In re Sanders , 495 Mich. 394, 852 N.W.2d 524 (2014), AB's father had "every right to go take [his] child and ... take that child home" and the trial court did not "have any say whatsoever over" AB's placement. The trial court therefore concluded that, because AB was not "out of the home of a parent," it did not need to address active efforts or risk-of-harm.
Several days after the November 2016 hearing, respondent-mother's attorney emailed the trial court (copying the other parties), and notified the court that its written order of adjudication incorrectly identified respondent-mother as voluntarily placing AB with his nonrespondent-father. The trial court issued a corrected adjudication order shortly thereafter. The email did not make any specific mention of KD, though it did indicate that the "other children" had been "voluntarily placed." Moreover, the referee and trial court held subsequent hearings in February 2017, and during both hearings, KD's placement with her father was characterized as voluntary, and neither respondent-mother's attorney nor anyone else objected to that characterization.
Respondent-mother appealed as of right, arguing that the placement of AB and KD violated protections set forth in the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. Because no stay had been entered, the case progressed below. After the parties completed appellate briefing, this Court set the date of oral argument for August 8, 2017. Prior to oral argument, the trial court held a progress review hearing on July 27, 2017.
During the hearing, the trial court noted that both AB and KD had been returned to respondent-mother's care and residence in mid-June 2017. The trial court commended respondent-mother on the "fantastic job" that she had done in turning her life around, pursuing education, engaging in the available programming, and undertaking similar positive acts. The trial court recognized respondent-mother's "excellent responsiveness," but the court did strike a cautionary note that with respect to this family: "we have been back and forth, and back and forth, and back and forth." The trial court closed the case, but before doing so, it stated that the question of removal is an "incredibly important" one and expressed its hope that this Court would address it on appeal.
This Court heard oral argument on August 8, 2017. In response to questions about whether this appeal was moot, counsel for respondent-mother, the Tribe, and petitioner all agreed that the appeal was moot now that the case below had been closed. But, all counsel further asked this Court to reach the merits of the appeal regardless of mootness because the case involved an issue of public significance that is likely to recur, yet evade appellate review. See In re Midland Publishing Co., Inc. , 420 Mich. 148, 151 n. 2, 362 N.W.2d 580 (1984).
II. ANALYSIS
A. THE CASE IS MOOT, BUT THE EXCEPTION AGAINST DECIDING MOOT CASES APPLIES
1. JUDICIAL AUTHORITY AND MOOTNESS
Courts of this state derive their authority from Article VI of the Constitution of the state of Michigan of 1963. An "essential element" of our courts' judicial authority is that the courts do "not reach moot questions or declare rules of law that have no practical legal effect in a case." City of Warren v. City OfDetroit , 471 Mich. 941, 941-942, 690 N.W.2d 94 (2004) (MARKMAN, J., concurring). One of "the most critical" aspects of judicial authority, as opposed to legislative or executive authority, is the requirement that there be a "real" controversy between the parties, as opposed to a "hypothetical" one. Id. at 942, 690 N.W.2d 94 (quotation marks and citation omitted). Thus, before we can reach the merits of this appeal, we must first consider whether it has become moot.
Generally speaking, a case becomes moot when an event occurs that makes it impossible for a reviewing court to grant relief. Contesti v. Attorney General , 164 Mich. App. 271, 278, 416 N.W.2d 410 (1987). Stated differently, "a case is moot when it presents nothing but abstract questions of law which do not rest upon existing facts or rights." People v. Richmond , 486 Mich. 29, 35, 782 N.W.2d 187 (2010) (quotation marks and citations omitted). "Where a court's adverse judgment may have collateral legal consequences for a [party], the issue is not necessarily moot." Mead v. Batchlor , 435 Mich. 480, 486, 460 N.W.2d 493 (1990), abrogated on other grounds by Turner v. Rogers , 564 U.S. 431, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011). When no such collateral legal consequences exist, and there is no possible relief that a court could provide, the case is moot and should ordinarily be dismissed without reaching the underlying merits. Richmond , 486 Mich. at 34-35, 782 N.W.2d 187.
There is, however, a well-recognized exception to the dismissal of a moot case. When a case presents an issue of public significance, and disputes involving the issue are likely to recur, yet evade judicial review, courts have held that it is appropriate to reach the merits of the issue even when the case is otherwise moot. Id. at 37, 782 N.W.2d 187 ; In re Midland Publishing , 420 Mich. at 151 n. 2, 362 N.W.2d 580.
2. THE CASE IS MOOT
We agree with the parties' counsel that this case is now moot. Both AB and KD have been returned to the care and residence of respondent-mother, and the trial court has ended its jurisdiction and ordered the case to be closed. None of the parties' counsel could identify a collateral legal consequence faced by respondent-mother, AB, or KD as a result of the temporary placement of the two children, and we are likewise not aware of any.
3. PUBLIC SIGNIFICANCE, LIKELY TO RECUR, AND EVADING JUDICIAL REVIEW
Recognizing that the case is moot, we turn to whether the exception applies. The issue on appeal-whether a Native American child has been "removed" from a parent-has paramount public significance. As our Supreme Court explained in In re Sanders , 495 Mich. at 409, 852 N.W.2d at 531, fundamental due process includes "the right of parents to make decisions concerning the care, custody, and control of their children." This right "is an expression of the importance of the familial relationship and stems from the emotional attachments that derive from the intimacy of daily association between child and parent." Id. (quotation marks omitted). This significant liberty interest of parents "in the companionship, care, custody, and management of their children," id. , is further reflected and magnified in efforts by federal and state governments to maintain the integrity of Native American families and tribes, see, e.g., 25 USC 1901 ; MCL 712B.5(a) ; see also In re Morris , 491 Mich. 81, 98, 815 N.W.2d 62 (2012) (noting that the federal counterpart to Michigan's MIFPA evidenced "a profound recognition of the separate and distinct rights of Indian tribes to their children, the most critical resource necessary to preserve not only tribal culture, but the tribes themselves").
Moreover, disputes involving the issue are likely to recur. One of the problems identified by Congress and our Legislature prior to enactment of the federal Indian Child Welfare Act and Michigan's MIFPA was that Native American children were being removed from their families and tribes at alarmingly high rates. See In re Morris , 491 Mich. at 97-98, 815 N.W.2d 62 ; 25 USC 1901(4). More broadly, it is a common occurrence throughout the trial courts of this state that children sometimes have to be removed from their parents, and our Legislature and DHHS have created an extensive legal framework for doing so in a lawful manner. See, e.g., MCL 712A.1 et seq.
Finally, on the matter of evading judicial review, the present case illustrates well the quandary faced by a parent who wishes to challenge on appeal the temporary removal of her child. Both AB and KD were placed outside the care and residence of respondent-mother, but this was not part of a final order of judgment, but rather as part of the trial court's ongoing monitoring of respondent-mother's progress with her parental programming, housing, education, etc. The trial court held periodic progress review hearings while this case was on appeal, and during the last of these hearings, the court determined that respondent-mother had made such significant progress that all of her children, including AB and KD, would be returned to her. While it is laudable that the trial court and parties worked so diligently to bring this case to a positive resolution, this diligence does not alter the fact that AB and KD were placed under the care and residence of someone other than respondent-mother. Given the typical pace of appellate review, it is unlikely that claims about temporary placements similar to those of AB and KD will achieve final resolution on appeal before the trial court either reverses or materially modifies the placement, or terminates the parent's rights altogether.
In sum, we agree with the parties' counsel that this matter is moot, but also that the exception applies-this case involves an issue of public significance, it is likely to recur, and it is likely to evade appellate review. Accordingly, we will consider the merits of this appeal and decide whether AB and KD were "removed" from respondent-mother.
B. STATUTORY PROTECTION OF NATIVE AMERICAN FAMILIES
Respondent-mother, AB, and KD are eligible for membership in the Tribe, and both AB and KD are Native American children. Given this, the procedural and substantive provisions of MIFPA apply to certain proceedings regarding the minor children. MCL 712B.3(k) ; In re England , 314 Mich.App. 245, 250, 887 N.W.2d 10 (2016). Relying on language in MCL 712B.15(2), respondent-mother argues that the trial court erred when it purportedly "removed" AB and KD without first making any findings as to active efforts or risk-of-harm. DHHS responds that the trial court did not "remove" either child and, accordingly, the provisions of MCL 712B.15(2) do not apply. Thus, to resolve this matter, we need to construe the meaning of "removed" under MIFPA.
We review de novo issues involving the interpretation and application of MIFPA. In re McCarrick/Lamoreaux , 307 Mich.App. 436, 462-463, 861 N.W.2d 303 (2014). When interpreting a statute, the overriding goal is to give effect to the intent of the Legislature. In re Spears , 309 Mich.App. 658, 671, 872 N.W.2d 852 (2015). To determine legislative intent, we look first to the language of the statute itself. Id. "When construing statutory language, [we] must read the statute as a whole and in its grammatical context, giving each and every word its plain and ordinary meaning unless otherwise defined." Book-Gilbert v. Greenleaf , 302 Mich.App. 538, 541, 840 N.W.2d 743 (2013) (quotation marks and citation omitted). When the terms of a statute are clear and unambiguous, this Court must enforce the statute as written. In re Spears , 309 Mich.App. at 671, 872 N.W.2d 852.
In 2012, Michigan enacted MIFPA for the purpose of protecting "the best interests of Indian children and promot[ing] the stability and security of Indian tribes and families." MCL 712B.5(a). MIFPA's procedural and substantive measures are "designed to prevent the voluntary or involuntary out-of-home care placement of Indian children" and, when placement does occur, to place Native American children in homes that reflect the values of their tribe. MCL 712B.5(b).
MCL 712B.15 provides specific procedures a trial court must follow when "an Indian child is the subject of a child-protective proceeding under [ MCL 712A.2(b) ]." MCL 712B.15(1). MCL 712A.2(b) provides the means by which a trial court may assume jurisdiction over a minor child, including when a parent fails to provide proper custody and care to the minor child, the home environment is an unfit place for the minor child to live, or the minor child is in danger of substantial physical or psychological harm.
When a Native American child is the subject of a child-protective proceeding, MIFPA provides, among other things, the following protections:
An Indian child may be removed from a parent or Indian custodian, placed into a foster care placement, or, for an Indian child already taken into protective custody, remain removed from a parent or Indian custodian pending further proceedings, only upon clear and convincing evidence that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, that the active efforts were unsuccessful, and that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child. [ MCL 712B.15(2).]
By the statute's own terms, the trial court is not subject to these requirements when the Native American child is not "removed" from the parental home, "placed into ... foster care," or otherwise in "protective custody." Id . See also In re England , 314 Mich.App. at 264-265, 887 N.W.2d 10.
C. THE TRIAL COURT ERRED WITH RESPECT TO AB
1. IN RE SANDERS IS NOT DISPOSITIVE
Before reaching the dispositive issue with respect to AB, we first note that the trial court's reliance on In re Sanders was misplaced. The trial court appears to have believed that because AB was placed with his father-who was not a respondent to the proceedings and no efforts had been made to petition his involvement-this placement meant both that the trial court could not make a ruling that would infringe AB's nonrespondent-father's parental rights and also that the provisions of MIFPA did not apply. As to the first point, the trial court was certainly correct that it did not have authority to infringe AB's nonrespondent-father's parental rights. As our Supreme Court explained in In re Sanders , "We accordingly hold that due process requires a specific adjudication of a parent's unfitness before the state can infringe the constitutionally protected parent-child relationship." In re Sanders , 495 Mich. at 422, 852 N.W.2d 524.
Yet, as to the second point, the trial court erred. Neither the holding nor the reasoning of In re Sanders negates or otherwise undermines the statutory requirements a trial court must follow before removing a Native American child from an adjudicated parent. Here, DHHS had filed a petition with respect to respondent-mother; respondent-mother and AB were properly within the trial court's jurisdiction; and the two met the qualifying conditions of MIFPA. Given this, the trial court should have considered whether moving AB from respondent-mother's care and residence to his nonrespondent-father's care and residence triggered MIFPA's provisions. In re Sanders is a shield to protect the rights of a nonadjudicated parent, not a sword to pierce the rights of an adjudicated parent or child.
2. AB WAS "REMOVED" FROM RESPONDENT-MOTHER
Under MIFPA, a child-protective proceeding involving a Native American family must generally comply with the provisions of MCL 712B.15. MCL 712B.15(1). With that said, the requirements of MCL 712B.15(2) that active efforts and a risk-of-harm assessment be made are triggered only when a Native American child is "removed" from a parent, placed in foster care, or otherwise put in protective custody. Because there is no dispute that AB was not in foster care or protective custody, we focus our inquiry on whether he was "removed" from a parent.
MIFPA does not define "removed." In the absence of a statutory definition, we may turn to dictionaries in common usage for guidance. See In re Lang , 236 Mich.App. 129, 136, 600 N.W.2d 646 (1999). Black's Law Dictionary defines "removal" as the "transfer or moving of a person or thing from one location, position, or residence to another." Black's Law Dictionary (10th ed.). For its part, Merriam-Webster has several definitions of "remove"; ignoring the ones dealing with transferring a legal proceeding from state court to federal court or dismissing an officeholder from office, the remaining definitions involve the physical movement of an object, the most apt definition being the following: "to change the location, position, station, or residence of." Merriam-Webster's Collegiate Dictionary (11th ed.).
These definitions focusing on physical transfer or movement are consistent with how "removal" and "removed" are used in MIFPA and other child-protection provisions in Michigan law. For example, the Legislature explained that the framework of MIFPA is "designed to prevent the voluntary or involuntary out-of-home care placement of Indian children." MCL 712B.5(b) (emphasis added). As another example, in addition to when a child is removed from a parent, the placement of a child in foster-care or protective custody can also trigger the active efforts and risk-of-harm protections, and each of these placements involves the physical transfer or movement of a child. Under the traditional canon of construction that a term is known by the company it keeps, we should understand "removed" to have a similar physical transfer/movement component. See G.C. Timmis & Co. v. Guardian Alarm Co. , 468 Mich. 416, 421-422, 662 N.W.2d 710 (2003).
Indeed, this reading is consistent with the Legislature's use of the term "removed" in other sections of the Probate Code involving minors. Compare, for example, the different timelines for a dispositional review in a child-protective proceeding when a child "remains in his or her home" versus when a child is "removed from his or her home." MCL 712A.19(2), (3). Other provisions of the Probate Code reinforce this understanding of "removed." See, e.g., MCL 712A.19a ; MCL 712A.19c. As MIFPA and the other child-protection provisions of the Probate Code relate to the same or similar subject (protection of children and families), we can read the term "removed" in MCL 712B.15(2) consistent with the term's similar use in the other provisions. Walters v. Leech , 279 Mich.App. 707, 709-710, 761 N.W.2d 143 (2008).
Thus, we understand "removed" in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution. Based on this understanding, it becomes clear that the trial court erred with respect to AB. Over respondent-mother's objection, the trial court ordered that AB be physically placed with his nonrespondent-father. AB had previously resided with respondent-mother and spent every other weekend with his nonrespondent father. The trial court's order moved AB's residence to his nonrespondent-father's home and conditioned respondent-mother's visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court "removed" AB from respondent-mother.
DHHS responds that this Court's decision in In re England , 314 Mich.App. at 264-265, 887 N.W.2d 10, demonstrates that AB was not "removed" from respondent-mother because AB was not transferred or moved from both of his parents, but instead remained placed with one of his parents. In re England is not, however, applicable here. The Native American child in In re England did not move residences. See id. The child had physically resided with his mother and physically remained with his mother throughout the proceedings. See id. In contrast, AB did not remain in respondent-mother's physical care but was required to move residences. In other words, although AB was placed with a parent, this does not negate application of the statute's provisions, which are triggered when a Native American child is "removed from a parent" and which occurred in this case when AB was physically removed from respondent-mother and placed in his nonrespondent-father's care and residence.
Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother's continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was similarly required to hear testimony of a qualified expert witness concerning these matters. Id . The trial court made no such findings and heard no such testimony, and this was reversible error.
D. THE TRIAL COURT DID NOT ERR WITH RESPECT TO KD
Turning to KD, the placement with her nonrespondent-father was not court ordered, nor was it ordered by law enforcement on an emergency basis. Rather, the record shows that respondent-mother voluntarily placed KD with KD's nonrespondent-father. There is nothing in the record to suggest that either the court or the parties understood the voluntary placement to be a permanent relinquishment of any of respondent-mother's parental rights, nor is there anything in the record to suggest that respondent-mother was somehow precluded from revoking the voluntary placement and requiring more formal proceedings regarding KD. This is quite different than being "removed"-in fact, this is an example of respondent-mother exercising her fundamental right "to make decisions concerning the care, custody and control" of her children. In re Sanders , 495 Mich. at 409, 852 N.W.2d 524. See also Meyer v. Nebraska , 262 U.S. 390, 399-401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
Our child-protection laws, including MIFPA, constrain the state from interfering in the parent's fundamental right to parent unless and until sufficient proof has been presented that the child's moral, emotional, mental, or physical welfare needs protection by the state. See In re Sanders , 495 Mich. at 409-410, 852 N.W.2d 524 ; see also Stanley v. Illinois , 405 U.S. 645, 652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Although the Legislature has extended some provisions of MIFPA to certain proceedings in which a Native American parent voluntarily gives up her fundamental rights, see, e.g., MCL 712B.13 (requiring that certain requirements be met when a parent consents to a guardianship or voluntarily relinquishes his or her parental rights), our Legislature has not provided these protections when a Native American parent retains in toto her fundamental right to direct the child's care. And, suffice it to say that it is outside our constitutional authority to extend MIFPA on our own.
III. CONCLUSION
Respondent-mother and her children, AB and KD, are eligible for the protections afforded to Native American families under MIFPA. The trial court removed AB from the care and residence of respondent-mother, and this removal triggered the statutory protections set forth in MCL 712B.15(2). The trial court erred by not affording respondent-mother and AB these protections and, accordingly, we vacate the trial court's order of adjudication with respect to AB and remand for further proceedings consistent with this opinion.
With respect to KD, the trial court did not remove her from the care and residence of respondent-mother, as explained above. We affirm with respect to KD's voluntary placement with her nonrespondent-father.
We do not retain jurisdiction.
Boonstra, P.J., and Ronayne Krause, J., concurred with Swartzle, J.
We note that the proceedings below did not involve a custody battle between two parents. Other provisions of MIFPA apply to custody battles. See, e.g., MCL 712B.5 ; MCL 712B.7. | [
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On order of the Court, the application for leave to appeal the October 31, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 10, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 4, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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Per Curiam.
Defendants, the Civil Service Commission (CSC) and the Department of Corrections (DOC), appeal by leave granted the circuit court's order of March 14, 2016, which reversed the CSC's final decision affirming position classification decisions made by a technical review officer. The trial court's order also reversed the technical review officer's decisions and affirmed the positions' former classifications. For the reasons stated in this opinion, we reverse the circuit court's ruling and reinstate the CSC's decision.
I. FACTS AND PROCEEDINGS
On April 1, 2012, the DOC eliminated approximately 2,415 resident unit officer (RUO) positions and 57 corrections medical unit officer (CMUO) positions. The persons in those positions were able to "bump" into newly created corrections officer (CO) and corrections medical officer (CMO) positions, respectively. The employees performed the same duties as they had in their former positions, but for a lower rate of pay. Their union, the Michigan Corrections Organization (MCO), filed a grievance on their behalf, alleging that the DOC did not eliminate the RUO and CMUO positions for reasons of administrative efficiency. The MCO claimed instead that the DOC was facing budget cuts and could not directly reduce employee pay because of collective bargaining agreements that specified the rates of pay for RUOs and CMUOs. However, the DOC could achieve the same savings by abolishing the RUO and CMUO positions and reassigning employees to newly created positions with lower classifications and lower rates of pay.
A. CLASSIFICATION STUDY
The parties agreed to hold the grievance in abeyance while the CSC's Office of Classifications, Selections, and Compensation (OCSC) undertook a classification and compensation study to determine whether the new positions were correctly classified as CO and CMO rather than RUO and CMUO, respectively. The classification study involved desk audits of approximately 120 positions by eight classification experts over several months, encompassing all major DOC facilities. The OCSC compared the job duties for an RUO with those of a CO, eventually focusing on the occurrence and frequency that RUOs performed duties related to participating in a treatment team in a housing facility, preparing reports related to treatment team determinations, and duties involving delivering medications to prisoners. The OCSC then reviewed the Desk Audit Findings, reporting in its classification study that when the employees previously classified as RUOs were "asked whether they had served as a member of a treatment team before April 2012, the majority of employees said that they had not." The OCSC further found that "the supervisors viewed most positions in the housing units as participating in treatment teams," with examples including "providing general input on prisoner behavior, filing paperwork for psychological referrals and running training sessions." The OCSC also reported that the appointing authority (DOC) indicated that the RUO's increased "involvement ... in the treatment programs ... has never developed as was initially envisioned."
The OCSC concluded that
[w]hile the [RUO and CO] positions ... do have different duties and those inside the unit may have comparatively more treatment team, reporting, and medication duties, the statements of employees, supervisors, and the appointing authority have not provided evidence that the housing unit positions are performing sufficient duties to make the RUO classification the best fit.
The OCSC then compared the job duties for the CMUO and CMO positions and concluded that the "classifications are essentially differentiable by the level of therapeutic care to be provided. The CMUO is intended to provide more direct and specialized care while the CMO delivers routine care in the course of traditional custody-focused duties." The OCSC found that "[a] review of position descriptions for newly created CMO positions" showed "the primary duties for the CMO positions are security related, which is consistent with the statement by the appointing authority that, as with the RUO, the envisioned duties of care provision never materialized for the abolished CMUO positions." The OCSC concluded that, "[g]iven the lack of specific required medical background for the newly created CMO positions and the lack of focused medical duties, their continued classification as CMOs is determined to be appropriate."
B. TECHNICAL REVIEW DECISION
In October 2013, the MCO filed a "Technical Classification Complaint" on behalf of plaintiffs in the CSC's Office of Technical Complaints, requesting the restoration of all abolished RUO and CMUO positions as well as lost pay and other lost benefits resulting from the action. Plaintiffs took issue with the study's finding that the majority of the former RUOs interviewed did not answer affirmatively when asked if they participated in a treatment team. Plaintiffs noted that the first job duty for the RUO position states as follows:
Participates as a member of a treatment team in determining the classification, reclassification, parole eligibility, counseling needed, minor disciplinary procedures, and treatment programs for each prisoner in the housing unit.
Plaintiffs asserted that the majority of employees responded that they did perform the specific tasks listed above, and the survey only showed that the former RUOs did not understand the meaning of the term "treatment team" when questioned. Plaintiffs maintained that a majority of the former RUOs would have responded that they participated in a treatment team had that term been defined in accordance with the job duty quoted above. Plaintiffs provided an affidavit from Michael Green, a former RUO, who said he was "very uncertain how to respond" to the treatment team question because he "thought they could be referring to mental health treatment." Green, referring to the job duty quoted above, stated: "If that is the definition of a treatment team then I am certainly a member. These are things that I do all the time. These are the things that other Housing Unit Officers do all the time." Plaintiffs also maintained that the results of the desk audits relating to the abolished CMUO positions showed that the employees previously classified as CMUOs performed and continued to perform the work described in the CMUO position description.
After reviewing the entire record, the technical review officer (TRO) found the newly created positions properly classified as COs and CMOs. The TRO acknowledged that duties within the housing units are different from duties outside those units but concluded that different duties did not necessarily mean different classifications, reasoning as follows:
The DOC's assignment of duties is most consistent with the CO and CMO classifications. The audit results indicated that the duties of the majority of employees surveyed lacked a focus consistent with classifications as RUOs or CMUOs, since as an aggregate they have a stronger emphasis on custody than on treatment. The primary role of the affected officers is to provide custody within a housing unit. Their responsibility included reporting to the health care professionals regarding the behavior of prisoners. The professionals on the treatment team decide what treatment will be provided to each prisoner, and the officers perform their portion of the planned treatment.
C. EMPLOYMENT RELATIONS BOARD AND CSC'S FINAL DECISION
In December 2014, plaintiffs applied for leave to appeal the technical review decision to the Employment Relations Board (ERB), arguing that the TRO made numerous erroneous findings and ignored evidence and arguments favorable to their position. The ERB recommended that the CSC deny plaintiffs' application. The ERB reiterated that most of the former RUOs neither said that they were members of a treatment team nor demonstrated significant participation in the preparing of reports and delivering medication. With regard to the CMUOs, the ERB found that the record did not demonstrate that they provided the type of direct therapeutic intervention or specialized healthcare to prisoners that was expected of CMUOs. The ERB concluded as follows:
Because the affected employees did not significantly perform the specialized duties described in the [RUO] or [CMUO] job specifications, they cannot be properly classified as Resident Unit Officers or Corrections Medical Unit Officers. The duties that the new position descriptions and the employees themselves described are most consistent with the [CO] and [CMO] classes. The Board finds no reversible error in the [TRO's] decision.
On June 12, 2015, the CSC approved the ERB's decision and adopted it "as the final decision of the civil service commission in this matter."
D. CIRCUIT COURT
Plaintiffs next appealed the CSC's final decision in the circuit court, arguing as they had before the TRO and the ERB. In response, defendants argued that under Const. 1963, art. 6, § 28, the circuit court's review was limited to whether the decision was "authorized by law." They argued that the competent, material, and substantial evidence standard, although also found in Const. 1963, art. 6, § 28, did not apply because the CSC had not authorized a contested hearing to evaluate technical classification complaints. Defendants argued that the CSC's decision adhered to the Constitution and fell within the CSC's authority and, therefore, was authorized by law. Defendants further contended that, in light of the method employed in analyzing the issue and the multiple layers of review, the CSC's final decision could not properly be characterized as arbitrary and capricious. Defendants argued that it would be inappropriate to consider "the evidentiary support" for the CSC's decision and that a "rational basis" supported both of its classification determinations.
Plaintiffs replied that Const. 1963, art. 6, § 28, only set the minimum standard of review and that MCL 24.306 of the Administrative Procedures Act (APA), MCL 24.201 et seq., provides that an administrative agency's decision must be set aside if it is not supported by competent, material, and substantial evidence. Plaintiffs argued that the decision "must be set aside" even under the arbitrary and capricious standard because "there was no evidence to support the Commission's decision."
The circuit court heard oral argument on February 17, 2016, and issued a written opinion and order on March 14, 2016. The court first determined the applicable standard of review, reasoning as follows:
Defendants argue that because a hearing is not required in this case, this Court's review is limited to a determination of whether the Commission's final decision was authorized by law. However, this Court notes that Article VI, Section [28] requires such a determination as a minimum standard of review. Viculin v. Dept. of Civil Service , 386 Mich. 375, 392, 192 N.W.2d 449 (1971) examined the issue of the standard of review and found that the competent, material, and substantial standard of review was to be applied to final decisions of the Commission, without differentiating on the issue of whether a hearing was being held. Furthermore, the Commission itself sent the Appellants in this case a notice stating that the decision is subject to review under MCR 7.117 and MCL 24.301 - 24.306 ; the standards of review contained in MCL 24.306 were included in the Commission's notice. Therefore the standard of review requires this Court to ascertain whether the Commission's final decision was authorized by law, whether it was arbitrary and capricious, and whether it was supported by competent, material, and substantial evidence on the whole record.
Next, the court addressed the TRO's determination that the former RUOs were properly classified as COs, finding that the CSC had "reassessed" and "affirmed" the "RUO classification" in 1983, 1996, and 2006. The court noted that "[t]he primary difference that the TRO relied upon between the RUO and the CO positions appears to be whether the position participates as part of a rehabilitative treatment team." The court found "that most of the former RUOs who said they were not part of a treatment team understood the term 'treatment team' to refer to physical or mental health treatment teams, rather than rehabilitative treatment teams," and that "[t]he supervisors of the former RUOs almost all identified the RUOs as part of a treatment team." The court reasoned as follows:
The TRO relied on flawed and inconclusive findings supported by [DOC] statements, and while the [DOC's] statements could and should have been taken into account, the contradictions between these statements and the confusing results of the classification study, which appears to have purposefully clouded the issue of what a treatment team is and who was considered part of it, cannot be held to provide competent, supported, or material evidence on the whole record.
The court opined that the TRO's decision was "simply an exercise of will in an attempt to support the [DOC's] effective reclassification of the RUO positions" and concluded that the decision was also arbitrary and capricious.
The court then held that "the decision that the former CMUOs were performing only the work of the CMO was arbitrary and capricious and was not supported by competent, material, and substantial evidence on the record." The court found that the classification study regarding the CMUO position "was even more flawed" because the desk audit interview responses "were apparently not entered, and so the classification study came to its conclusion based solely on job specifications, rather than any reports from former CMUOs or their supervisors." The court found that the interviews "showed that all of the former CMUOs interviewed described themselves ... as performing the duties set forth in the job specification for the CMUO" and that "there is no evidence to support a conclusion that the former CMUOs were not participating in the work required of the CMUO position." In accordance with its opinion, the circuit court reversed the CSC's final decision, reversed the TRO's decision, and stated that the employees formerly classified as RUOs and those formerly classified as CMUOs had been properly classified as RUOs and CMUOs.
II. ANALYSIS
A. STANDARD OF REVIEW
"[W]hen reviewing a lower court's review of agency action this Court must determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency's factual findings." Hanlon v. Civil Serv. Comm. , 253 Mich.App. 710, 716, 660 N.W.2d 74 (2002) (quotation marks and citation omitted).
B. SCOPE OF REVIEW
The parties correctly agree that Const. 1963, art. 6, § 28, provides the scope of the circuit court's review of the CSC's decision. See Boyd v. Civil Serv. Comm. , 220 Mich.App. 226, 232, 559 N.W.2d 342 (1996) (stating the scope of a circuit court's review of a CSC decision is established in Const. 1963, art. 6, § 28 ). The parties disagree, however, regarding the limits of the court's scope of review. Defendants argue that because no hearing was required in this case, the circuit court was limited to determining whether the CSC's decision was authorized by law. Defendants also argue that the circuit court exceeded that scope of review by applying the competent, material, and substantial evidence test. Plaintiffs, on the other hand, contend that the circuit court properly ruled that the competent, material, and substantial evidence scope of review articulated in Const. 1963, art. 6, § 28, also applied. They contend that the circuit court correctly based its scope-of-review decision on the Supreme Court's holding in Viculin v. Dep't of Civil Serv. , 386 Mich. 375, 192 N.W.2d 449 (1971), and, pursuant to MCR 7.117 and MCR 7.119, the applicability of the standard of review provided by MCL 24.306 of the APA. Plaintiffs assert that defendants' position is only supported by dicta and that York v. Civil Serv. Comm. , 263 Mich.App. 694, 689 N.W.2d 533 (2004), establishes that this Court requires application of the substantial-evidence test, even when there has been no hearing.
Upon a careful review of the applicable law, we conclude that defendants' position is correct. Const. 1963, art. 6, § 28, provides, in relevant part:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
This language consists of two standards of review: "authorized by law," a minimum standard applicable every time the constitutional provision applies, and "competent, material and substantial evidence on the whole record," applicable only in cases in which a hearing is required. See Attorney General v. Pub. Serv. Comm. , 206 Mich.App. 290, 295-296, 520 N.W.2d 636 (1994) (stating that because a settlement agreement did not involve a rate increase that would have triggered the contested-case hearing procedures of the APA, no hearing was required and the substantial-evidence portion of the Article 6 standard of review did not apply); see also LeDuc, Michigan Administrative Law (2015), § 9:2, p. 614.
Numerous binding authorities establish that when a hearing is not required, courts review an agency decision only under the "authorized by law" standard, the substantial-evidence test does not apply when no hearing is required. See, See, e.g., Ross v. Blue Care Network of Mich. , 480 Mich. 153, 164, 747 N.W.2d 828 (2008) ("Decisions of an administrative agency or officer, in cases in which no hearing is required, are reviewed to determine whether the decisions are authorized by law."); Brandon Sch. Dist. v. Mich. Ed Special Servs. Ass'n , 191 Mich.App. 257, 263, 477 N.W.2d 138 (1991) ("Where no hearing is required, it is not proper for the circuit court or this Court to review the evidentiary support of an administrative agency's determination. Judicial review ... is limited in scope to a determination whether the action of the agency was authorized by law.") (emphasis added); Wescott v. Civil Serv. Comm. , 298 Mich.App. 158, 161-162;, 825 N.W.2d 674 (2012) (adopting the assertions in Ross and Brandon ). In light of the foregoing, the circuit court adopted incorrect legal principles when it reviewed the CSC's decision for evidentiary support that was competent, material, and substantial.
Plaintiffs argue that Viculin supports the court's application of both the authorized-by-law and the competent, material, and substantial evidence standards to its review of the CSC's decision, but their argument is unpersuasive. The Viculin Court held that Const. 1963, art. 6, § 28, did not guarantee or permit review de novo of a final decision by the CSC affirming an employee's "dismissal from state service" after a "full hearing." Viculin , 386 Mich. at 381-384, 192 N.W.2d 449. In so holding, the Court stated, "The scope of review is that stated by the constitution, 'whether the same are supported by competent, material and substantial evidence on the whole record.' " Id. at 392, 192 N.W.2d 449. Plaintiffs contend that because "[t]he Supreme Court ... did not rely on the sentence in the constitutional article requiring a substantial evidence test for cases where a hearing was held," a circuit court's application of the competent, material, and substantial evidence standard does not rest on "the presence or absence of a hearing." However, the issue in Viculin was the method of review, not the scope of review. Viculin , 386 Mich. at 392, 192 N.W.2d 449. The Viculin Court made no determinations about the scope of review when a hearing was not required, which is the issue in the case at bar. As the Supreme Court recently explained, to derive a rule of law from the facts of a case "when the question was not raised and no legal ruling on it was rendered, is to build a syllogism upon a conjecture." People v. Seewald , 499 Mich. 111, 121 n. 26, 879 N.W.2d 237 (2016). Thus, the reliance of plaintiffs and the circuit court on Viculin for the proposition that both the authorized-by-law and substantial-evidence standards applied to cases in which no hearing was required was misplaced.
Plaintiffs' argument that the APA's competent, material, and substantial evidence standard, MCL 24.306(d), applies to this case through the mandate of MCR 7.117 and the provisions of MCR 7.119(H) is also unavailing. MCR 7.117 mandates compliance with MCR 7.119, which applies to appeals governed by the APA, and MCR 7.119(H) provides:
The court may affirm, reverse, remand, or modify the decision of the agency and may grant further relief as appropriate based on the record, findings, and conclusions.
(1) If the agency's decision or order is not supported by competent, material, and substantial evidence on the whole record, the court shall specifically identify the finding or findings that lack support.
(2) If the agency's decision or order violates the Constitution or a statute, is affected by a material error of law, or is affected by an unlawful procedure resulting in material prejudice to a party, the court shall specifically identify the agency's conclusions of law that are being reversed.
Plaintiffs contend that MCR 7.119(H) summarizes the APA standard of review set forth in MCL 24.306.
Before the 2012 adoption of MCR 7.117 and MCR 7.119, 490 Mich. at clxxxvii, cxcii, MCR 7.104(C) provided that appeals from the CSC were governed by the provisions for appeals from administrative agencies in the APA. Interpretations of MCR 7.104(C) make clear that the APA provides appellate courts with the procedure for reviewing appeals from civil service decisions, but not the scope of review. See, e.g., Hanlon, , 253 Mich.App. at 725 n. 6, 660 N.W.2d 74 (noting that MCR 7.104(C)"regards the appellate process ") (emphasis added); Womack-Scott v. Dep't of Corrections , 246 Mich.App. 70, 79, 630 N.W.2d 650 (2001) (noting that "[t]he APA provides the means to seek review of a CSC decision") (emphasis added); see also LeDuc, Michigan Administrative Law (2015), § 9:4, p. 620.
Nothing in the plain language of MCR 7.117 or MCR 7.119 suggests that this distinction between the procedure for review and the scope of review has been abandoned or that MCR 7.117 and MCR 7.119 adopted the APA's scope of review. See Haliw v. City of Sterling Hts. , 471 Mich. 700, 704-705, 691 N.W.2d 753 (2005) (indicating that interpretation of a court rule begins with the plain language). Rather, MCR 7.119(H) merely instructs the court to clearly identify its reason for reversal of a CSC decision, regardless of whether it employs the competent, material, and substantial evidence scope of review, MCR 7.119(H)(1), or the authorized-by law scope of review, MCR 7.119(H)(2).
Recently, this Court engaged in an extended discussion of the correct scope of review for agency decisions in Wescott , indicating that when a case did not require a hearing, agency decisions "are reviewed to determine whether the decisions are authorized by law." Wescott , 298 Mich.App. at 162, 825 N.W.2d 674, quoting Ross , 480 Mich. at 164, 747 N.W.2d 828, citing Const. 1963, art. 6, § 28. Plaintiffs contend that this Court's statement in Wescott is dicta that had nothing to do with the Court's decision. However, in Wescott , the Court necessarily had to determine the scope of review and proceed to examine whether the circuit court misapplied the authorized-by-law standard. Wescott , 298 Mich.App. at 162-163, 825 N.W.2d 674. Further, the Court acknowledged that agency findings are generally reviewed under "the substantial evidence test" but reasoned that this standard of review would be inappropriate because a hearing was not required in that case. Id. at 161-162, 825 N.W.2d 674 (quotation marks and citation omitted). Moreover, in a footnote, the Court referred to "the inapplicability of the substantial-evidence test in cases in which no hearing was required ...." Id. at 163 n. 4, 825 N.W.2d 674. Therefore, this Court's statements in Wescott were not dicta, and they echoed the law firmly established by the constitutional provision and caselaw interpreting it.
In conclusion, we agree with defendants that the proper scope of review for agency cases in which no hearing is required is the authorized-by-law standard.
Accordingly, the circuit court erred by reviewing the CSC's decision to determine whether competent, material, and substantial evidence supported it. Furthermore, for the reasons stated earlier, we reject plaintiffs' interpretation of MCR 7.117 and MCR 7.119(H) as confirming the applicability of the APA's standards of review to CSC decisions.
C. AUTHORIZED BY LAW
The circuit court also applied the authorized-by-law standard, ruling that the CSC's decision was arbitrary and capricious, and therefore not authorized by law. Defendants contend that in so ruling, the court exceeded its scope of review under the authorized-by-law standard by reweighing the evidence, making credibility decisions, and substituting its judgment for the CSC's. We agree.
An agency decision "in violation of [a] statute, in excess of the statutory authority or jurisdiction of the agency, made upon unlawful procedures resulting in material prejudice, or [that] is arbitrary and capricious" is not authorized by law. Brandon Sch. Dist. , 191 Mich.App. at 263, 477 N.W.2d 138. This Court adopted this particular formulation of the authorized-by-law standard, in part, because "it focuses on the agency's power and authority to act rather than on the objective correctness of its decision." Northwestern Nat'l Cas. Co. v. Ins. Comm'r , 231 Mich.App. 483, 489, 586 N.W.2d 563 (1998). "A ruling is arbitrary and capricious when it lacks an adequate determining principle, when it reflects an absence of consideration or adjustment with reference to principles, circumstances, or significance, or when it is freakish or whimsical." Wescott , 298 Mich.App. at 162, 825 N.W.2d 674.
There is no question, and the parties do not dispute, that Michigan's Constitution authorizes the CSC to undertake the classification action at issue here. Const. 1963, art. 11, § 5, provides, in relevant part:
The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service.
Not only does Michigan's Constitution authorize the CSC to classify civil service positions, but the CSC is vested with plenary powers in its sphere of authority. Mich Coalition of State Employee Unions v. Michigan , 498 Mich. 312, 329, 870 N.W.2d 275 (2015) ; AFSCME Council 25 v. State Employees' Retirement Sys. , 294 Mich.App. 1, 15, 818 N.W.2d 337 (2011) ("That is, the Civil Service Commission has absolute power in its field."). Thus, the CSC's decision does not exceed its authority, nor have plaintiffs suggested that it violates a statute. Brandon Sch. Dist. , 191 Mich.App. at 263, 477 N.W.2d 138. Although plaintiffs contend that the term "treatment plan" should have been defined to eliminate some employees' confusion about what the term meant, plaintiffs have provided no evidence-nor do they argue-that the procedures used in the classification study or in the TRO's analysis of the classifications were unlawful. Id.
The circuit court determined that the CSC's decision was not authorized by law because it was arbitrary and capricious. The court based its ruling on its finding that the record evidence did not support the TRO's decision. In the circuit court's view, the TRO predicated its decision regarding employees formerly classified as RUOs on study results that were flawed and internally inconclusive because they were derived, in part, from responses to intentionally misleading questions. And in the circuit court's view, the TRO predicated its decision regarding employees formerly classified as CMUOs on job specifications rather than on reports from former CMUOs or their supervisors.
Plaintiffs' argument with regard to this issue is little more than a reassertion of their contention that the court's proper scope of review extended to a thorough review of the evidentiary record, even in the absence of a hearing. Plaintiffs stress that MCR 7.101 through MCR 7.115 apply to appeals from the CSC and that appeals to the circuit court are heard on the original record, MCR 7.109, which "includes all documents, files, pleadings, testimony, and opinions and orders," MCR 7.210(A)(2). If the entire record must be transmitted to the circuit court, plaintiffs reason, then it must be that the circuit court is allowed review it, without regard to whether a hearing was required.
Plaintiffs' reasoning runs counter to the scope-of-review provisions in Const. 1963, art. 6, § 28, as well as to the numerous binding authorities already mentioned that limit a circuit court's review of an agency decision in cases in which no hearing is required to determine whether the decision is authorized by law. The law is clear that in a case in which a hearing was not required, it simply " 'is not proper for the circuit court or this Court to review the evidentiary support of [the] administrative agency's determination.' " Wescott , 298 Mich.App. at 162, 825 N.W.2d 674, quoting Brandon Sch. Dist. , 191 Mich.App. at 263, 477 N.W.2d 138 (alteration by Wescott Court). In this case, the circuit court reweighed the evidence, essentially giving less weight to the results of the classification study and the statements by the DOC and more weight to the affidavits of employees who said that the question about participating in a treatment team confused them and that they performed the duties in the RUO and CMUO job specifications. In addition, the circuit court questioned the credibility of the study by suggesting that the highly relevant issue of whether employees participated on a treatment team was "purposefully clouded." Further, the circuit court impermissibly dictated what evidence the TRO should have entertained in making its ruling by noting that it had not taken into account of reports from employees formerly classified as CMUOs. See Wescott , 298 Mich.App. at 163 n. 4, 825 N.W.2d 674. In addition, the circuit court essentially substituted its judgment for that of the CSC by concluding that the weight of the evidence supporting the CSC's decision was insufficient to overcome the weight of the evidence to the contrary. None of this is permissible in an authorized-by-law scope of review. See Brandon Sch. Dist. , 191 Mich.App. at 263. Finally, the circuit court also erred by considering the CSC's prior reviews of the RUO and CMUO positions because they were irrelevant to the study performed in this case and simply served as evidence to support plaintiffs' argument for reversal of the CSC's decision.
We cannot agree with the circuit court that the CSC's decision was not authorized by law. The CSC exercised its constitutional authority to classify the newly created positions, Const. 1963, art. 11, § 5, and nothing indicates that the CSC's decision violated a statute or resulted from procedures that were unlawful. Regarding whether the decision was arbitrary and capricious, the CSC predicated its decision on an extensive and detailed classification study, the determining principle of which was to identify the extent to which employees in the newly created positions participated in the treatment-related activities envisioned for the RUO and CMUO positions. The conclusions of the OCSC were subject to multiple layers of review that included an opportunity for plaintiffs to submit additional documentation and express their critique of the study and resulting classification. The CSC's decision came at the end of this process. In light of the foregoing and of our limited scope of review, we cannot say that this decision "lacks an adequate determining principle" or that it "reflects an absence of consideration or adjustment with reference to principles, circumstances, or significance," or that it is "freakish or whimsical." Wescott , 298 Mich.App. at 162, 825 N.W.2d 674.
III. CONCLUSION
We conclude that the circuit court erred by applying the competent, material, and substantial evidence scope of review to a case in which a hearing was not required and by exceeding the authorized-by-law scope of review by reweighing the evidence, making credibility decisions, and substituting its judgment for that of the CSC. In light of this conclusion, we need not address defendants' remaining issue.
We reverse the circuit court's ruling and reinstate the CSC's decision.
Talbot, C.J., and Beckering and M. J. KELLY, JJ., concurred.
Michigan's Constitution requires the Commission to classify positions in the classified service according to their respective duties and responsibilities. Const. 1963, art. 11, § 5. The appointing authorities-here, the DOC-may create or abolish positions for reasons of administrative efficiency without the approval of the Commission. Id.
Hearings are required where deprivation of a protected property interest is threatened. Civil Service employees have a protected property interest in continued employment, but no such interest in reclassification of their position. York v. Civil Serv. Comm. , 263 Mich.App. 694, 703, 689 N.W.2d 533 (2004). The Michigan Civil Service Rules authorize hearings in cases involving allegations of unfair labor practices, grievances, labor-relations appeals, and certain other appeals (e.g., where a technical review officer determines that a hearing is necessary to resolve material questions of fact). Under the Administrative Procedures Act, MCL 24.201 et seq ., parties to a contested case must be given the opportunity to be heard. MCL 24.271(1). A " 'contested case' means a proceeding, including rate-making, price-fixing, and licensing, in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing." MCL 24.203(3). The CSC is not considered an "agency" for purposes of the APA. MCL 24.203(2).
As will be discussed later, MCR 7.117 mandates that review of the Commission's decisions must comply with MCR 7.119, which pertains to appeals from agencies governed by the APA.
MCL 24.306 provides in relevant part:
Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
* * *
(d) Not supported by competent, material and substantial evidence on the whole record."
This Court has stated that Const. 1963, art. 6, § 28 establishes a minimum standard of review without forbidding a more stringent review. Palo Group Foster Care, Inc. v. Mich. Dep't of Soc. Servs. , 228 Mich.App. 140, 145, 577 N.W.2d 200 (1998). Plaintiffs argue along the same lines. However, plaintiffs provide no authority that would allow a circuit court sua sponte to apply a stricter standard, and this Court indicated in Palo that it was the role of the Legislature to provide for stricter review. Id.
Furthermore, this Court has continued to expect circuit courts to review CSC decisions in accordance with the standards of review set forth in the constitutional provision after adoption of MCR 7.117 and MCR 7.119, indicating that the court rules at issue did not adopt the APA's standard of review. See, e.g., Dine v. Grand Civil Serv. Comm. , unpublished opinion per curiam of the Court of Appeals, issued August 14, 2014 (Docket No. 315773), p. 1-2, 2014 WL 4055848 ; Hammond v. Civil Serv. Comm. , unpublished opinion per curiam of the Court of Appeals, issued July 16, 2013 (Docket No. 309704), p. 3, 2013 WL 3717783. Unpublished opinions of this Court have no precedential effect, but may be considered persuasive. MCR 7.215(C)(1). | [
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Per Curiam.
Petitioner appeals by right the judgment of the Michigan Tax Tribunal (the MTT) denying his request for a poverty exemption from his 2015 property taxes. We affirm.
Petitioner applied for a poverty exemption for his principal residence located in Forester Township. Respondent's poverty-exemption guidelines provided that an exemption would be denied if the applicant's assets exceeded $4,500 or if the applicant's income exceeded the federal poverty guideline, which at that time was $11,770 for a household of one. Respondent's guidelines also indicated that reverse-mortgage payments would be "added" to an applicant's income. In his application, petitioner calculated his assets at over $9,000. He also disclosed that he received over $10,000 in social security retirement payments and that he had received over $12,000 in reverse-mortgage payments that tax year. Respondent's board of review denied the request for an exemption on the ground that petitioner had "adequate resources."
Petitioner then appealed in the MTT Small Claims Division, contending that respondent's asset limit was unduly restrictive. Respondent maintained that it denied the exemption because petitioner's income exceeded the poverty-exemption guideline. The hearing referee, relying on IRS Publication 936 (2015), found that reverse-mortgage payments should not constitute income and that petitioner's income was sufficiently low when those payments were excluded. The referee noted that petitioner still exceeded the asset limit, but the referee nonetheless found a substantial and compelling reason to deviate from the guidelines because it would be unreasonable to require petitioner to sell his vehicle in order to pay his property taxes. Respondent filed exceptions to the proposed opinion and order, primarily arguing that reverse-mortgage payments should be treated as income for poverty exemption purposes.
In its final order and judgment, the MTT agreed with respondent. Relying on an unpublished opinion from this Court, the MTT concluded that it was irrelevant that reverse-mortgage payments were not taxable income. The MTT found that the reverse-mortgage payments were available to petitioner to pay his property taxes. Given that ruling, the MTT found it "unnecessary to evaluate [petitioner's] eligibility under the asset test" but nonetheless concluded that there were not "substantial and compelling reasons to grant the exemption when considering both the income and the asset tests." Petitioner filed a motion for reconsideration, which the MTT denied because petitioner "failed to demonstrate that he was unable to contribute to the public charge as required by MCL 211.7u and is not eligible for the exemption."
On appeal, petitioner challenges the MTT's final judgment and its denial of his motion for reconsideration. If fraud is not alleged, the MTT's decision is reviewed "for misapplication of the law or adoption of a wrong principle." Wexford Med. Group v. City of Cadillac , 474 Mich. 192, 201, 713 N.W.2d 734 (2006).
The poverty exemption from property taxes on a principal residence is governed by § 7u of the General Property Tax Act (GPTA), MCL 211.1 et seq ., which provides, in pertinent part as follows:
(1) The principal residence of persons who, in the judgment of the supervisor and board of review, by reason of poverty, are unable to contribute toward the public charges is eligible for exemption in whole or in part from taxation under this act. This section does not apply to the property of a corporation.
(2) To be eligible for exemption under this section, a person shall do all of the following on an annual basis:
* * *
(e) Meet the federal poverty guidelines updated annually in the federal register by the United States department of health and human services under authority of section 673 of subtitle B of title VI of the omnibus budget reconciliation act of 1981, Public Law 97\N35, 42 USC 9902, or alternative guidelines adopted by the governing body of the local assessing unit provided the alternative guidelines do not provide income eligibility requirements less than the federal guidelines.
* * *
(4) The governing body of the local assessing unit shall determine and make available to the public the policy and guidelines the local assessing unit uses for the granting of exemptions under this section. The guidelines shall include but not be limited to the specific income and asset levels of the claimant and total household income and assets.
(5) The board of review shall follow the policy and guidelines of the local assessing unit in granting or denying an exemption under this section unless the board of review determines there are substantial and compelling reasons why there should be a deviation from the policy and guidelines and the substantial and compelling reasons are communicated in writing to the claimant. [ MCL 211.7u.]
With respect to the MTT's denial of petitioner's motion for reconsideration, petitioner argues that the MTT erred by not restricting its analysis to whether petitioner satisfied the income and asset tests. With respect to the MTT's final judgment, petitioner argues that the MTT erred by treating reverse-mortgage payments as income rather than assets. Neither argument, however, provides petitioner with a means for appellate relief. If we accept petitioner's arguments, petitioner's resulting assets would exceed the asset limit set in respondent's guidelines and, therefore, he would fail the asset test and still be precluded from claiming the poverty exemption.
On petitioner's application for the poverty exemption, he listed his assets as $9,328.59. In the MTT, he argued that his automobile, which had an estimated value of $6,250, should not be counted in this estimation. If we accept this argument without assessing its merit, then petitioner's assets listed on his application were $3,078.59. Petitioner argues on appeal that his reverse mortgage should have been considered an asset, not income. Petitioner's reverse mortgage was in excess of $12,000. Thus, accepting this argument as well, petitioner's assets totaled over $15,000. This is well in excess of the $4,500 limit. Granted, the MTT did not expressly address the asset test, but it did find that "there is insufficient information on record to demonstrate such substantial and compelling reasons to grant the exemption when considering both the income and the asset tests." Petitioner does not challenge that part of the MTT's decision on appeal.
Accordingly, even assuming that the MTT erred by considering petitioner's reverse mortgage as income, we would nevertheless affirm the MTT's decision because it would have properly determined that petitioner did not qualify for the poverty exemption, albeit for the wrong reasons. See Taylor v. Laban , 241 Mich.App. 449, 458, 616 N.W.2d 229 (2000). Under these circumstances, petitioner's arguments effectively present moot questions that we need not address. See B P 7 v. Bureau of State Lottery , 231 Mich.App. 356, 359, 586 N.W.2d 117 (1998).
Affirmed.
Ronayne Krause, P.J., and Fort Hood and O'Brien, JJ., concurred.
A "reverse annuity mortgage" is defined as "[a] mortgage in which the lender disburses money over a long period to provide regular income to the (usu. elderly) borrower, and in which the loan is repaid in a lump sum when the borrower dies or when the property is sold." Black's Law Dictionary (9th ed.), p. 1103. "A home equity conversion mortgage, more commonly called a 'reverse mortgage,' allows a homeowner over the age of 62 to borrow money based on his or her home equity." 21 A.L.R.7th Art. 4 (2017).
Petitioner also challenged the assessment of the property's value for 2015 and 2016. Those issues are not relevant to this appeal.
United States Department of the Treasury, IRS Publication 936: Home Mortgage Interest Deduction, Cat. No. 10426G (2015), available at < < https://perma.cc/JEA2-2GHL>>.
Grant v. Delta Twp. , unpublished per curiam opinion of the Court of Appeals, issued February 25, 2010 (Docket No. 290220).
In the context of arguing that the reverse mortgage was not income, petitioner points out that "the equity of the homestead is treated as a protected or exempted asset," and then rhetorically asks:
[W]hy does it become non-protected and nonexempt once it is converted into money? And if a petitioner cannot be required to "borrow against the equity to pay the taxes", why would the occurrence of such an event result in a different result as to the right to a poverty exemption?
This may be construed as an argument that a reverse mortgage should be considered a protected asset. Assuming that this argument was properly before this Court, which it is not because petitioner failed to develop the argument, see Prince v. MacDonald , 237 Mich.App. 186, 197, 602 N.W.2d 834 (1999), we note that treating a reverse mortgage as an asset does not require a property owner to borrow against his or her home equity to pay property taxes. Rather, in the event that a reverse mortgage is executed, the amount would be considered an asset for purposes of the poverty exemption.
Further, not including a reverse mortgage as either an asset or income for purposes of the poverty exemption would undermine the intent of the exemption. Theoretically, a tax payer could own a $2 million home, have no income and assets below the asset limit, and execute a $100,000 reverse mortgage. Under petitioner's proposed interpretation, this theoretical taxpayer could claim the poverty exemption, despite having the ability to contribute toward the public charges. | [
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By order of September 12, 2017, the application for leave to appeal the March 20, 2017 order of the Court of Appeals was held in abeyance pending the decision in Jendrusina v. Mishra (Docket No. 154717), --- Mich. ----, 895 N.W.2d 927 (2017). On order of the Court, leave to appeal having been denied in Jendrusina on January 12, 2018, 501 Mich. 958, 905 N.W.2d 231 (2018), the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
WILDER , J., did not participate because he was on the Court of Appeals panel. | [
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On order of the Court, the motions for leave to file briefs amicus curiae and the motion for leave to file response to amicus curiae brief are GRANTED. The application for leave to appeal the June 7, 2018 judgment and order of the Court of Appeals is considered, and it is GRANTED. At oral argument the parties shall address whether the proposal at issue is eligible for placement on the November 2018 general election ballot as a voter-initiated constitutional amendment under Const. 1963, art. 12, § 2, or whether it is a revision to the constitution and therefore is ineligible for placement on the ballot.
We direct the Clerk to schedule the oral argument in this case for July 18, 2018 at 9:30 a.m. The total time allowed for oral argument shall be 60 minutes: 30 minutes for plaintiffs, and 30 minutes for defendants and intervening defendants, to be divided at their discretion. MCR 7.313(B)(1) and 7.314(B)(1). | [
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