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Per Curiam.
Plaintiff Keywell and Rosenfeld (K&R) appeals as of right the July 21, 1998, judgment the trial court entered after the jury found in favor of Thomas and Irene Bithell. K&R, a law firm that has ceased providing legal services and is in the process of dissolving, instituted this action to collect $414,726.85 in attorney fees it claims that the Bithells owe it: $374,169.34 for an easement suit, $3,126.65 for a zoning variance matter, $34,596.93 for insurance litigation, and $2,834.33 for a property tax assessment matter. We reverse and remand.
I. BASIC FACTS AND PROCEDURAL HISTORY
A. THE UNDERLYING DISPUTE
In 1984, the Bithells purchased a house in Bloomfield Township for approximately $147,000. The house was directly across the street from the Oakland Hills Country Club (the Club). At the time, a gate at the south end of the Club’s driving range allowed people traveling to and from the Club access to Oakhills Drive. However, in 1988, the Club constructed a new gate directly in front of the Bithells’ house to allow trucks and machinery access to its property, which considerably increased the traffic and noise around the Bithells’ house. The Bithells believed that the Club lacked a necessary zoning variance to make this change.
The traffic and noise were just the start of the Bithells’ problems concerning the Club. After the Bithells moved into their house, Bithell developed very serious health conditions. One of Bithell’s sons developed an ongoing problem with migraines, and his oldest daughter also became sick. The Bithells did not know that the Club’s private sewer line ran under their house to the public sewer line on their property. There was no documentary evidence in the chain of title to the house showing an easement for the sewer. The house had, on a number of occasions, become damp in the basement, but the Bithells were usually able to dry the area. However, the wetness problem became dramatically worse in March 1991 when they discovered raw sewage seeping into the basement and collecting on their property.
The Bithells, who repaired and disinfected their house after the seepage, attempted to resolve the gate and sewage issues with the Club and Bloomfield Township, to no avail. Though Bithell had seen sewage pooling on the Club’s golf course across the street from his house, the Club denied that its sewer was leaking onto the Bithells’ property. The Club continued to use the sewer, which in turn continued to cause sewage to leak into the Bithells’ basement. Bithell only connected his health problems with the sewage problem at the house when he made an offhand comment to his physician, who reportedly warned him to abandon the house and all its contents immediately. The Bithells then left their home, which had increased in value to approximately $220,000, and all its contents. Later, the Bithells were able to sell the property on which their house was located for $450,000. They then spent $50,000 to destroy the house and remove the debris, and another $200,000 to pay their mortgage and the penalties that had accrued.
B. K&R’S INVOLVEMENT
In 1991, having just learned of the sewage problem, but before Bithell discovered that his illness was related to the sewage at the house, the Bithells sought legal assistance from K&R. The couple chose K&R because K&R attorney Robert R. Cleary, who specialized in labor and employment law, had worked for Bithell at the Taubman Company for a number of years. Taubman, a major retail shopping center developer, had continued to use Cleary as its attorney even after he left the business for private practice.
K&R attorneys sent a demand letter to the Club on behalf of the Bithells, including their children, asking for $850,000 to settle their dispute. When the Club refused, K&R attorneys sent a letter to the Club, Bloomfield Township, and Township Supervisor Fred Korzon offering to forgo requesting injunctive relief if they agreed to relocate the Bithells to a “comparable home” in the same school district. The other parties rejected this offer as well, prompting K&R attorneys to file a nine-count complaint in Oakland Circuit Court on behalf of the Bithells and their children against the Club, Bloomfield Township, and Korzon. They sought monetary damages and injunctive relief. Generally speaking, at that time the case was a relatively uncomplicated property dispute focused on easement and trespass issues.
After the attorneys filed the complaint, Cleary prepared an “initial litigation plan” for the Bithells. The plan summarized the factual background of the Bithells’ claims and candidly discussed the strengths and weaknesses of each claim and potential defense. The plan also stated overall goals with respect to negotiating a settlement and the possibility of going to trial, identified experts and their expected testimony, and generally described how the firm intended to prepare and manage the litigation. The plan, in section D, described the staffing Cleary anticipated that the case would need, and stated:
Cost-effective staffing demands an initial evaluation of the elements of the litigation plan and the proper delegation of tasks and responsibilities to the appropriate staff level. In the instant case, it is anticipated that the following staff levels will be utilized to minimize client costs without sacrificing the quality of legal services to be provided:
Partner: Robert R. Cleary
Associates: Lucy R. Benham
Eric B. Gaabo
Robert Cleary and Lucy Benham will retain ultimate responsibility for potentially dispositive decisions and will review all court filings which directly or indirectly impact Plaintiffs [the Bithells]. Lucy Benham is responsible for day to day litigation and discovery strategy and will maintain consistent client contact in all important decisions. Mr. Gaabo will provide legal research as required during the course of this litigation and will be responsible, with Lucy Benham, for drafting all motions, briefs, and discovery pleadings.
The delegation of assignments and responsibilities of this matter will be made throughout the defense of this litigation to ensure that all work is done at the appropriate staff level in order to minimize cost without sacrificing the quality of the legal representation. [Exhibit 1 to K&R’s brief on appeal, pp 3-4.]
The plan, in section O, also purported to establish a “fee agreement,” stating:
The legal fees and expenses incurred by Keywell and Rosenfeld in bringing this lawsuit shall be paid as follows:
1. Plaintiffs [the Bithells] shall pay a $7,000 retainer on or prior to July 15, 1991 which shall be applied to Plaintiffs’ current balance owed.
2. Plaintiffs shall pay, on a monthly basis, twenty five [sic] percent (25%) of all fees billed after July 15, 1991.
3. Plaintiffs shall pay, on a monthly basis, 100 percent of all monthly expenses incurred by Keywell and Rosenfeld in this matter.
4. In the event that Plaintiffs obtain a monetary recovery either through settlement or as damages following trial, Plaintiffs shall pay:
a. The remaining balance of all fees incurred through July 15, 1991;
b. The remaining balance of seventy five [sic] percent (75%) of fees incurred after July 15, 1991; and
c. An additional amount equal to five percent of such monetary recovery.
5. If plaintiffs recover nothing from Defendants through settlement or a trial on the merits, Plaintiffs shall pay:
a. One hundred percent (100%) of attorney fees, costs and expenses.
Cleary signed the plan on behalf of K&R. The Bithells did not sign the plan.
The Bithells later expanded their litigation to include claims regarding the gate the Club had constructed across from their house and an emphasis on the personal injury aspects of the sewage problem, not merely the underlying property issue. Additionally, the Bithells became involved in an action against their insurer for the damage to their house, an administrative zoning proceeding concerning the Club’s gate, and a tax proceeding to lower the house’s assessed value in light of the sewage problem. K&R represented the Bithells in all these matters. The pretrial processes for these four cases were extremely expensive in that K&R had to pay for court reporters for depositions, a variety of experts, sewer testing, biological testing, and medical opinions. The Bithells paid K&R’s costs through November 1991, although never at the time K&R incurred them. The Bithells stopped paying anything after costs reached $50,000. Evidently, the Bithells calculated the costs amassed to that point, including items or services for which they had directly paid the provider, added those costs to what they had already paid K&R, deducted that subtotal from $50,000, and paid the remaining amount to K&R to the penny; K&R received slightly less than $50,000 for the costs it had already incurred for the Bithells. The Bithells did not pay K&R’s fees at all, and those fees continued to mount.
For a period of about nine to ten months in 1992, Cleary did not have time to review the firm’s bills for the Bithells’ attorney fees and other costs. As a result, the firm did not send any bills during this time to the Bithells. Cleary was busy because, though still a partner in K&R, he had begun substituting for a Taubman attorney who had taken a leave of absence. Taubman was paying K&R a $15,000 retainer each month for Cleary’s services, and paying for any additional time Cleary worked for the company on an hourly basis. Taubman had also provided Cleary with office equipment and a special telephone number to facilitate his work with Taubman employees. K&R viewed Taubman as a very important client, not only because of the volume of work it provided the firm, but because it paid its bills promptly. Cleary reported to three individuals at Taubman, including Bithell, who was Senior Vice President for Human Resources and Administration and was responsible for recommending compensation.
Several months into the case, Benham passed the case to K&R partner Elaine Parson. Benham reportedly needed to focus more on her other clients and had more interest and experience in transactional work than litigation. In contrast, Parson had significant experience in litigation. Settlement negotiations with the defendants in the underlying action ultimately failed. In July 1993, as the case was proceeding toward trial, the Bithells retained attorney Lee Wulfmeier to assist with the personal injury aspect of the litigation. Wulfmeier had experience with personal injury and medical malpractice cases, but did not practice with the K&R firm. In the fall of 1993, Cleary, who had never actively worked on the Bithells’ case, left K&R to work at Taubman.
On December 14, 1993, Wulfmeier sent Frederick Keywell, one of K&R’s founding partners, a letter referring to a meeting they had in order to discuss the fee arrangement. In the letter, Wulfmeier said he thought that the only way K&R would be compensated would be if the Bithells settled or recovered an award at trial. Wulfmeier estimated that the case would require another five hundred hours of attorney work to prepare it for trial, and at least another $25,000 in pretrial expenses. Wulfmeier then proposed an alternative fee agreement:
It appears to me that the only fee solution is to allow for actual costs to be paid first from any recovery; I would then suggest that our respective firms would each receive 16.5 percent [one-sixth] of the net recovery. Further, it would be necessary for Keywell and Rosenfeld to remain as active participants in the litigation. If this concept meets with your approval and Mr. Bithell’s approval, we could “fine tune” an agreement. Please advise.
The letter did not refer to what, if any, fee agreement K&R and the Bithells already had in place.
Before the trial court in the case involving the easement and personal injury to the Bithells decided a defense motion for summary disposition, K&R moved to withdraw as the Bithells’ counsel. According to the February 14, 1994, motion submitted to Oakland Circuit Judge Gene Schnelz:
1. Keywell [the firm] was retained by the Plaintiffs [the Bithells] to represent their interests in this litigation on or about July, 1991.
2. At the time Keywell was retained by the Plaintiffs, Plaintiffs agreed to pay Keywell for its services as the services were performed.
3. Keywell prepared and sent Plaintiffs’ bills on a monthly billing schedule beginning July, 1991.
4. In or about mid-1993, the Plaintiffs also retained Lee Wulftneier of Schureman, Frakes, Glass & Wulftneier to represent their interest in this litigation.
5. On July 14, 1993, Mr. Wulftneier filed his appearance on behalf of Plaintiffs in this litigation.
6. To date, Keywell has been paid by Plaintiffs only a small portion of its attorney fees, and, Keywell has paid the majority of the costs incurred in this litigation.
7. At the present time Plaintiffs are not paying Keywell its attorneys fees, nor are Plaintiffs paying litigation costs Keywell incurs in pursuing this matter. Presently, Plaintiffs owe Keywell, for reimbursement of costs alone, $45,497.31.
8. Keywell does not wish to continue its representation of the Plaintiffs in these circumstances because Plaintiffs’ representation has resulted in an unreasonable financial burden on Keywell.
9. Moreover, the Plaintiffs have failed to fulfill their obligations regarding Keywell’s services, and the Plaintiffs have been given reasonable warning that Keywell will withdraw unless Plaintiffs meet their obligations.
10. Plaintiffs!’] interests are adequately protected by Mr. Wulfmeier and thus, Plaintiffs will not be prejudiced by the withdrawal of Keywell as their attorneys.
11. Keywell has made all of its litigation files directly available to Mr. Wulfmeier for his use and assistance in this matter despite Plaintiffs’ lack of payment for Keywell’s services.
12. Keywell will continue to make its litigation files available to Mr. Wulfmeier and the Plaintiffs for their assistance in this litigation.
13. Plaintiffs have received notice through protracted negotiations that Keywell intended to seek the Court’s permission to withdraw unless Plaintiffs began to pay Keywell’s fees and their own costs.[ ]
Parson signed the motion and the supporting brief.
The Bithells objected to the motion to withdraw, submitting a February 22, 1994, affidavit from Cleary, who was then working at Taubman. Cleary averred that the Bithells originally had a fee agreement as outlined in the litigation plan, but that the Bithells subsequently acquiesced to a contingent fee agreement that would give K&R “the lessor [sic] of V3 of the proceeds of the litigation or settlement plus costs or the total legal fees generated plus costs.” Cleary stated that he agreed to this arrangement on behalf of K&R around January 1992, at which time the Bithells owed the firm approximately $100,000 in legal fees, because the Bithells did not have the money to pay K&R.
Fred Keywell responded to the Bithells’ objections and Cleary’s affidavit with his own affidavit outlining the evidence he claimed supported the Bithells’ obligation to pay K&R for costs and fees:
2. On November 15, 1993 at 3:00 p.m. I met with Mr. Bithell to discuss the status of his case and of the outstanding fees owed to this firm. Mr. Bithell acknowledged that he owed the firm in excess of $400,000 and stated that if we insisted upon payment at that time, he would be forced into bankruptcy. He asked if we would handle the case on a contingency fee basis. I refused, and told him that I expected that we would be paid for our services.
3. On December 13, 1993 at 10:00 A.M. I met with Mr. Bithell and Lee H. Wulfmeier at our office. The balance due this firm was discussed with Mr. Wulfmeier and Mr. Bithell. Mr. Bithell had previously expressed his desire to me that Mr. Wulfmeier handle the trial of this case. Mr. Wulfmeier stated that we would have to work out a contingency fee arrangement if his firm were to assume the representation of the Plaintiffs [the Bithells],
4. Mr. Bithell then suggested for the first time that his fee arrangement with our firm was already based upon the outcome of the litigation. I expressed surprise and asked Mr. Bithell if he had a writing setting forth such an arrangement.
5. Mr. Bithell stated that he did not have such a writing but that Mr. Cleary had agreed to a contingency fee arrangement.
6.1 subsequently spoke to Mr. Cleary who denied that the fee arrangement had been changed from his original letter outlining our hourly fee charges. Mr. Clearly expressly denied there was a contingency fee arrangement with Mr. Bithell.
7. On January 26, 1994 at Larco’s Restaurant in Troy, Michigan, during a lunch meeting with Robert Cleary, I asked Mr. Cleary whether he had ever, at any time, assured Mr. Bithell that K&R would participate in a Vs contingency fee arrangement with Mr. Bithell for payment of K&R’s fees for its services on behalf of Plaintiffs ....
8. Mr. Cleary directly replied to my question by assuring me that he had not at any time entered into such an arrangement with the Plaintiffs or with Mr. Bithell on behalf of the Plaintiffs.
9. As is stated on Page 3 of Mr. Bithell’s Brief in Support of his Objections [to the motion to withdraw], Mr. Cleary began monthly bills for K&R’s services in July 1991, continuing to bill monthly for one year until August 1992. Billings were then sporadically sent until October 1993, when Mr. Cleary again began billing Mr. Bithell for K&R services monthly. No possible reason exists for these monthly bills except that Mr. Cleary believed K&R had an agreement for payment of its fees.
10. Mr. Cleary recently left K&R to become employed by The Taubman Company, and to the best of my knowledge, he is directly responsible to Mr. Bithell at that Company.
11. I have read the affidavit of Robert Cleary and state emphatically to this Court that the contents thereof relating to an alleged contingency fee arrangement with the Bithells regarding this litigation is contrary to what he had repeatedly told me. Further, I am the managing officer of K&R and it is the express policy of this law firm that any contingency fee arrangement must be approved by either a meeting of the Board of Directors of this law firm or myself and must be in writing. Mr. Cleary was well-aware of this policy. Neither our Board of Directors nor I approved of any contingency fee arrangement for this matter until December 15, 1993 at a monthly meeting of our Board of Directors where I was authorized to negotiate an acceptable contingency fee arrangement with Mr. Bithell. I have never entered into such an arrangement with Mr. Bithell. When it became apparent to me that Mr. Bithell and I would not reach agreement on a contingency fee, I delegated my authority to Jimm F. White.
Evidently, K&R wanted the Bithells to sign a release of some sort in return for the contingent fee agreement, but the Bithells refused.
Following a hearing, Judge Schnelz entered an order indicating that he had read all the materials submitted in support of and objecting to the motion to withdraw. Judge Schnelz granted the motion and stayed the proceedings to allow the Bithells to acquire new representation.
In 1997, Keywell informed his firm that he was leaving to take advantage of a business opportunity. The other partners decided to dissolve the law firm and divide its assets, appointing Keywell, who had long functioned as one of the firm’s managers, as the person responsible for disposing of the firm’s assets. The firm then attempted to collect all outstanding debts. The Bithells had paid almost all the costs K&R had advanced for them. However, because the Bithells had never paid their outstanding bill of $414,726.85 for the attorney fees from the four matters K&R had handled for them, K&R brought this collection action. K&R sought to recover under breach of contract, quantum meruit, account stated, and unjust enrichment theories.
C. TRIAL
Though the parties at trial delved into the reasonableness of K&R’s billing, two issues the Bithells raised as defenses dominated the trial: whether K&R and the Bithells had entered into a contingent fee agreement and whether their withdrawal from the underlying easement action had been proper. As the motion to withdraw and related documents suggested, the firm and the Bithells did not part company amicably. Not surprisingly, the two sides in this case presented very different versions of how the firm and the clients reached that point. What may be surprising, however, is that at trial Cleary presented a third perspective on the fee arrangement between the Bithells and K&R.
According to Keywell, Benham, Parson, and other K&R attorneys, though not written, K&R had a policy requiring contingent fee agreements to be approved by most, if not all, the partners, usually at a meeting, and then placed in writing with the clients. Though Keywell personally owned about eighty percent of the firm, he typically chose to exercise only a single vote in this sort of matter. Thus, it was important for attorneys who wanted to take a contingency case to secure broad support from the other partners as well as Keywell.
K&R’s policy of obtaining contingent fee agreements in writing stemmed from a period when the firm had lost considerable money on cases with contingent fee agreements. In any event, Keywell and other firm lawyers said, the court rules required contingent fee agreements to be in writing. They did not recall approving a contingent fee agreement for the Bithells, and had been worried as the bills mounted but remained unpaid. Parson said that, as the attorney principally in charge of the case, she would have known if there had been a contingent fee agreement, but Cleary and the Bithells never mentioned that one existed. Further, it was undisputed that the Bithells’ alleged contingent fee agreement was never rendered in writing.
Judith Robinson, the K&R office manager in charge of billing, also explained that she recorded all the hours K&R attorneys worked for the Bithells because she believed that the Bithells were paying the standard hourly fees as well as costs. She approached Cleary several times when he was not approving bills for the Bithells, but he never mentioned a contingent fee agreement. Had there been a contingent fee agree- merit in place, she would have handled the billing differently. She added that, even if K&R expected to be compensated for its attorney fees as part of a settlement or the result of a trial, she still would have handled the billing differently because the work in progress reports would have been sufficient proof of the time spent on the case. Her testimony revealed, as Keywell had suggested in his affidavit, that Cleary continued to approve bills for hourly rates even after he supposedly agreed to a contingent fee agreement with the Bithells. Benham added that the Bithells had assured her that they would pay their fees, and she had never heard of a contingent fee agreement with the Bithells.
K&R also emphasized that the simple easement action that it had agreed to take quickly added a personal injury component, which was not the sort of work K&R typically handled, and grew into four separate actions. As Parson and Benham explained it, the firm had to hire a number of experts and pay for testing to prove that the sewage was coming from the Club and was causing Bithell’s health problems. Parson added that Bithell took a very hands-on approach to this case, becoming involved at every step. Perhaps drawing from his own management experience at Taubman, Bithell asked for new people to work on the case a number of times, which increased costs because of the time it took to acquaint the new attorneys with the progress in the cases. Still, Benham said, when she moved on to other work she always remained available to the attorneys working on the underlying action. Further, K&R attorneys noted, the case had always had a relatively high price tag. The demand letter initially sent to the Club indicated that the Bithells might be interested in settling for approximately $850,000, which later increased to $1.5 million.
K&R argued that it was entitled to withdraw as the Bithells’ firm because the Bithells were so far in debt with respect to the hourly fees they owed the firm and the unpaid costs. As Bithell even admitted in a deposition in the underlying action used to impeach him at trial, he and his family “absolutely” owed the firm hundreds of thousands of dollars in fees. Other than occasional items, such as a charge for a long-distance telephone call that was less than eleven dollars, the Bithells never objected to the fees that K&R was charging while the firm represented them. Consequently, K&R claimed, even though it had not represented the Bithells through the end of the underlying action, it was entitled to collect the hourly fees that had accumulated throughout its representation or be given the reasonable value of its services to the Bithells under a quantum meruit theory.
To prove that their fees were reasonable, K&R presented testimony from John Scott, a partner at the Dickinson Wright law firm with almost forty years’ experience as a lawyer and extensive familiarity with reviewing legal bills. Scott said that K&R had a good reputation, as confirmed by Martindale-Hubbell, that its fees were at or below the fees charged in the area by other firms of similar experience, and that the Bithells’ case was very complex and time consuming. In his opinion, after considering all the criteria relevant to a proper fee identified in MRPC 1.5, K&R’s fees were “very reasonable,” not excessive. He explained that, in hindsight, it is always possible to question whether an attorney spent, perhaps, a little too much time on a particular task or whether the bill might have been adjusted somehow, but that sort of reflection did not undermine the reasonableness of the fees charged in this case. At the very most, the fees would only overstate the reasonable value of K&R’s services by ten percent. In any event, Scott said, K&R’s work on the case had benefited the attorneys who had taken over the case.
The Bithells claimed that they did not agree to the hourly fee agreement outlined in Cleary’s initial litigation plan. Though they had apparently agreed to pay on an hourly basis at the outset, at some point Cleary told them that their case would cost no more than $50,000, including fees and costs. So, when the fees and costs in this case exceeded $50,000, the Bithells did not think that they had to pay any more money; they thought the remainder would come from a settlement or trial, which would award those fees and costs as part of damages. Despite his business acumen, he thought that most expenses associated with litigation were generated at the beginning of the process and was surprised when the fees owed kept growing.
Later, Bithell said, Cleary convinced him and his wife to enter into a contingent fee agreement. Under the agreement, K&R would only be paid if the Bithells recovered in a settlement at trial. In that event, K&R would be entitled to one-third of the recovery or its actual fees — whichever was less. In other words, the Bithells said that K&R had agreed to allow them to pay under the scheme most favorable to them if they recovered. This meant that K&R might not recover at all, or that it would recover less than its fees depending on the size of the Bithells’ award. Though Gary Klotz, a K&R partner, did not recall the contingent fee agreement in exactly these terms, he remembered Cleary telling him that he had offered the Bithells a contingent fee agreement. Klotz and Miriam Rosen, who had been an associate for most her time at K&R, added that they were not aware of a hard and fast policy requiring partner approval of contingent fee agreements, though neither attorney had worked on the Bithells’ cases.
The Bithells had not complained about their attorneys while K&R was representing them. They said that they even liked Benham and Cleary. However, they did not like Parson because she was aggressive, she allowed the defendants in the underlying action to inspect their personal belongings as part of discovery, and when she was late, she gave excuses for her tardiness that they did not believe. Shortly before trial, the Bithells also reviewed K&R’s billing statements and found entries for which they thought that K&R was double billing or had spent too much time on a problem. Bithell also pointedly noted that, in the nine years between when K&R had filed the complaint in the underlying action and when this collection case went to trial, he and his family had yet to recover any money from the Club or Bloomfield Township. The Bithells had recovered $150,000 in a settlement with the Oakland County Drain Commissioner, but K&R did not represent them at the time, and about $100,000 from that settlement went to K&R for costs.
The Bithells also challenged the reasonableness of K&R’s fees by introducing evidence from James Elsman. Elsman, an attorney with just slightly less than forty years’ experience, is a sole practitioner who had previously practiced in a law firm. Put nicely, Elsman excoriated K&R and the firm’s attorneys, with the exception of Keywell himself. Though Keywell had described the firm’s attorneys as competent and experienced, and each attorney had described their own credentials, Elsman said that K&R’s attorneys were not at the top of their field, having not come from Ivy League law schools. Elsman determined this by consulting the Martindale-Hubbell directory. However, Elsman said that it was irrelevant that Martindale-Hubbell had given Benham its top rating because Martindale-Hubbell was a “corporate buyout,” evidently meaning that the rating could be purchased and did not have to be earned. Elsman also called Parson a “job jumper,” referring to the fact that she had worked at other firms before joining K&R, and then left K&R because of personality conflicts with other attorneys. He asserted that Benham had just dropped the case, suggesting that she should not have transferred it to Parson. Elsman also challenged the complaint filed in the primary underlying case as having adopted a “shot gun approach,” incorporating all possible claims, most of which were meritless.
Elsman emphasized that contingent fee agreements were common for personal injury actions, like the underlying case. Looking at the bills, he concluded that the case was being handled on a contingent fee basis. Elsman said that, on the one hand, the underlying case was so simple it never should have taken as many hours as K&R attorneys put into it, but that it was also sufficiently complex that K&R and its attorneys were not competent to handle the whole case. Despite Elsman’s characterization of the case as a personal injury action, he nevertheless said that K&R had spent too much time and money on the case because it was a property action involving a house worth only about $220,000. He said that it was also unethical for K&R to bill for “filthy lucre,” apparently insinuating that K&R had no legitimate interest in being paid for the services it rendered. Elsman also disagreed that it was Judge Schnelz’s right or responsibility to determine whether K&R could withdraw.
Cleary said that the fee agreement in the litigation plan reflected the agreement he and the Bithells had originally entered into concerning fees. He had never promised the Bithells to limit costs and fees to $50,000. Rather, he had tried to estimate costs, not fees, and did not anticipate how difficult the case became. Cleary was not sure that K&R had a definite policy mandating approval for cases taken on a contingent fee basis. However, when Bithell indicated to him that the family did not have the money to pay the fees, Cleary said he spoke to other members of the firm and had offered the Bithells a contingent fee agreement. The contingent fee agreement, though not in writing, would have allowed K&R to collect its fees or one-third of the net recovery, not the lesser of the two amounts. The contingent fee agreement did not alter the Bithells’ obligation to continue to pay costs. Cleary asserted that, though various partners had come to him to discuss how to get the Bithells to pay their bills, they should have known a contingent fee agreement was in place precisely because the Bithells had not paid for such a long time.
After the parties rested, the Bithells’ attorney argued that the trial court should grant their motion “to dismiss the claim for unjust enrichment for the reason that the allegation is that there is a contract; and it’s the defense position . . . [that] if there’s an existence of the contract, there’s no unjust enrichment recovery.” K&R’s attorney responded that she thought that it was “appropriate that if the services were performed and there was a benefit to the [Bithells] . . . that the plaintiffs [K&R] are entitled to be under equitable principles paid for the benefit to the defendant [the Bithells].” The trial court, however, said, “All right, I’ll determine this to be a nonjury matter instead of granting your motion. I’ve heard all the evidence. The Court rules in defendant’s [sic] favor.”
The Bithells’ attorney then argued, “Your Honor, the second motion is to dismiss the claim for account stated. There has been no evidence that the parties agreed to the amount that’s allegedly owing, and that’s [a] requirement for the consolidated action.” K&R’s attorney countered that
[a]n account claim under Michigan law can be supported by a failure to object. And I believe the substantial proofs have been put on that monthly invoices were sent and there was a failure to reject [sic]. And for that reason, I think that the accounts stated claim[s] are extremely viable.
The trial court rejected this argument, commenting: “I would state that even considering the case in the light most favorable to the plaintiff, reasonable minds could not differ, taking into consideration all the overwhelming evidence in this case in favor of defendant on that issue or those issues; and, therefore, would grant the defense’s motion.” Thus, the trial court granted the Bithells’ motions for directed verdict concerning the firm’s account stated and unjust enrichment claims.
Following the parties’ closing arguments, the trial court summarized the theories of recovery in its instructions to the jury:
First main issue is whether it’s a written contract orally agreed to by the party [the Bithells]; and then as the initial litigation [plan] under which the plaintiff [K&R] is seeking to recover attorney fees on an hourly basis. The burden of proof on that issue is on the plaintiff. Defendant denied the terms of that contract and claims it was limited to a total of $50,00 [sic] on both expenses and hourly rate fee.
Second main issue in the case is whether the parties entered into a Contingent Fee Contract. The burden of proof on this issue is on the defendant. Plaintiff denied this, claiming that the contract was never changed, and that there is neither any actual authority for the going [sic: billing] attorney to change it on his own or any apparent [authority for him to do so].
The third main issue is whether the plaintiff improperly withdrew from the lawsuit as the lawyer for the defendant. The burden of proof on this issue is on the defendants.
If there was either an hourly fee contract or a contingent fee contract and the plaintiff properly withdrew from the lawsuit, then the plaintiff is still entitled to be paid for the reasonable value of its legal services up to that date ....
* * *
And the final point in the main issue is, if there was a Contingent Fee Contract in this case and if the plaintiff law firm improperly withdrew from the lawsuit, then the plaintiff law firm is not entitled to any amount.
The trial court explained these theories again, saying that if the jury found
that there was an hourly fee agreement, then you find that there was a subsequent Contingent Fee Agreement; and if you find that it was intended to replace the earlier hourly fee agreement, then the original hourly fee agreement is no longer binding.
If you find there is no contract in this case, then plaintiff is only entitled to the reasonable value of the services rendered. The parties have used testimony contending to show the value of the services rendered by the plaintiff.
If you find there is no contract, you can award fees on a Quantum Meruit basis. Also, if you find that the plaintiff properly withdrew and there was a contract, whether it be a contingent fee contract or hourly fee contract, then the plaintiff may still be able to recover on a Quantum Meruit pay basis.
What do those Latin words mean? It means an amount of recovery as much as deserved. It is an equitable principle that measures recovery under an implied contract to pay compensation as reasonable value of services rendered. I can only give you a list of the factors; but among the factors to consider is what percentage of total work has been completed by the attorney or attorneys seeking fees to obtain results of the parties.
All right. If you find that a fee agreement existed between the plaintiff and the defendants, you must decide the reasonableness of the legal services fee charged.
The trial court then informed the jury that attorneys must follow the rules of professional conduct and instructed the jury consistent with MRPC 1.5, the rule governing reasonable fees. In all, under the trial court’s instructions, the jury had to return an award for K&R unless it found that there was (1) a contingent fee agreement and the firm withdrew improperly or (2) that the firm’s services had no reasonable value.
K&R made several objections to the jury instructions. However, the firm’s chief objection was that the trial court had failed to read SJI2d 3.13 to the jury, which would have informed the jurors that the trial court had taken notice of Judge Schnelz’s order granting the motion for K&R to withdraw from the underlying case. In effect, if the jury found that the Bithells and K&R had a contingent fee agreement, this instruction would have barred the jury from determining that the firm withdrew wrongfully. However, the trial court’s refusal to issue this instruction was consistent with its ruling on the first day of trial that whether the firm had withdrawn was a disputed factual matter, and therefore a jury question.
According to K&R, at some point after being sent to deliberate, the jury submitted a note to the trial court “requesting an instruction as to the circumstances under which a lawyer or law firm could properly withdraw.” The trial court did not, however, issue any supplemental instructions to the jury. Pursuant to the parties’ stipulation, the trial court did not submit a verdict form to the jury. Rather, the six-person jury announced the verdict on the record. Five of the six jurors voted in favor of the Bithells, meaning that K&R recovered nothing.
n. DIRECTED VERDICT
A. STANDARD OF REVIEW
K&R now claims that the trial court erred in two ways when it dismissed the unjust enrichment and account stated claims. First, the firm contends that the trial court improperly granted two motions to “dismiss,” which MCR 2.504(B)(2) permits only in a bench trial, not in a jury trial such as this case. Second, K&R argues that the trial court erred substantively in deciding that there was no dispute on the record concerning the unjust enrichment or account stated claims. This Court reviews de novo a trial court’s decision to grant or deny a motion for a directed verdict.
B. DISMISSAL
There is no merit in K&R’s first contention. MCR 2.504(B)(2) permits a defendant in a bench trial to move for dismissal after the plaintiff’s case in chief. Yet, even assuming that there is no possible basis in the court rules for a “motion to dismiss” once a party has begun presenting evidence to a jury, the Bithells’ attorney, not the trial court, used the motion to dismiss language.
More importantly, had the trial court erroneously referred to a motion to dismiss, appellate courts often look to the substance of a motion or ruling to determine its true nature, not its label. In this case, the trial court plainly treated the so-called motion to dismiss as a motion for a directed verdict. In contrast to the rule governing motions to dismiss, MCR 2.515 does not distinguish between jury and bench trials. Thus, the trial court did not technically err in considering whether there was sufficient proof of K&R’s account stated and unjust enrichment claims to submit to a jury.
C. UNJUST ENRICHMENT AND ACCOUNT STATED
The heart of this issue is whether the unjust enrichment and account stated claims should have been submitted to the jury. Trial courts and this Court adopt the same analysis when examining whether there are grounds to grant a motion for a directed verdict. The relevant inquiry examines “the evidence presented up to the time of the motion in the light most favorable to the nonmoving party, granting that party every reasonable inference, and resolving any conflict in the evidence in that party’s favor to decide whether a question of fact existed.” “A directed verdict is appropriate only when no factual question exists on which reasonable jurors could differ.”
In Barber v SMH (US), Inc, this Court explained unjust enrichment is “(1) receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to the plaintiff because of the retention of the benefit by the defendant.” When unjust enrichment exists, “the law operates to imply a contract in order to prevent” it. However, a contract will be implied only if there is no express contract covering the same subject matter.
The Bithells’ attorney contended that this equitable doctrine could not apply in this case because the firm was arguing that there was an express contract between K&R and the Bithells. In fact, K&R pleaded inconsistent claims. The firm’s breach of contract and quantum meruit claims depended on the jury finding that a contract, either an hourly fee agreement or a contingent fee agreement, existed. In contrast, the firm’s claim for unjust enrichment depended on the jury finding that no express contract — that is, no fee agreement — existed between K&R and the Bithells. MCR 2.111(A)(2) permitted K&R to make these inconsistent claims.
There were two distinct ways the jury could have found that K&R and the Bithells had no express contract concerning the fees, and therefore an implied contract existed. First, the trial court instructed the jury on the elements of a contract, informing the jury that K&R had “to prove the terms of the contract.” The evidence, however, varied widely concerning what express contract, if any, the parties had and what its terms might have been. The testimony suggested that the contract could have consisted of the terms identified in the initial litigation plan, those terms without the retainer or five percent contingency, the contingent fee agreement under which the Bithells would pay the lesser of one-third of a recov ery or fees, the contingent fee agreement under which the Bithells would have paid the greater amount of one-third of a recovery or fees, or some variation on the alleged $50,000 cap. Considering these very different possible fee agreements, the jury could have easily found that the parties never agreed on terms for the fee arrangement, and therefore did not have a contract. Second, the jury could have found that the parties had originally agreed to abide by the terms stated in the initial litigation plan, but that agreement “was no longer in effect” after the Bithells were unable to pay, and was not replaced by a new agreement.
Under the first example, K&R could have recovered under the unjust enrichment theory for its entire representation of the Bithells. Under the second example, K&R “could have recovered for breach of contract for the period when the contract was in force and could have recovered on an implied contract [unjust enrichment] basis for the period when there was no contract in force.” In any event, the evidence would have allowed the jury to find an implied contract for at least some of K&R’s work for the Bithells, which means that the trial court should have examined whether the record included evidence of the two elements of an unjust enrichment claim: benefit to the Bithells’ from K&R’s work, and an injustice in allowing the Bithells’ to enjoy that benefit without paying K&R for its services.
The evidence suggested that, even if the Bithells might reasonably object to some of the fees K&R charged, the firm performed significant amounts of work in the pretrial preparation of the underlying action. There was a minor dispute at trial about whether the firm gave its files to the Bithells and their new counsel, or whether the firm only had duplicates of materials the Bithells already possessed. In any event, the firm filed pleadings and motions, took depositions, secured experts, arranged for scientific testing, appeared at hearings, attempted to negotiate a settlement, and generally shepherded the case for three years. Elsman disagreed on this point, but Scott specifically said that this preparation was of value to the lawyers who took over the case from K&R, and therefore of value to the Bithells. The Bithells certainly disputed the proposition that it would be inequitable to leave K&R unpaid. However, the magnitude of the undertaking on behalf of the Bithells, which the K&R attorneys described for the jury, including all four legal matters, suggests that equity would require the firm to be compensated at some level. Viewing this conflicting evidence in the light most favorable to the firm as the nonmovant, the trial court erred in granting a directed verdict on this issue.
As for the trial court’s decision to direct a verdict of no cause of action for the account stated claim, in Watkins v Ford the Michigan Supreme Court agreed with the articulation of an account stated as “a balance struck between the parties on a settlement. . . “[W]here a plaintiff is able to show that the mutual dealings which have occurred between two parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that balance.” In order to demonstrate that its fees for its services to the Bithells had become an account stated, K&R had to prove that the Bithells either expressly accepted the bills by paying them or failed to object to them within a reasonable time. Proving an account stated “ ‘must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them.’ ”
K&R presented evidence that, with the exception of a nine- or ten-month period, it regularly sent bills to the Bithells stating the costs incurred on behalf of the family in the underlying litigation, as well as the fees for the firm’s services. The Bithells paid the bills, although never fully or in sufficient amount to be applied to the fees, without objection until they reached the $50,000 limit they felt applied to the case. After that point, in the fall of 1991, and even after K&R withdrew, the Bithells continued, at least spo radically, to pay the costs that the firm had incurred on their behalf. With the exception of a few items listed on the bills, the Bithells never objected to the fees that the firm listed in the bills. In his deposition in the underlying action, which evidently took place a year before K&R withdrew and which the jury learned of at trial, Bithell even stated that he “absolutely” owed (at the time) approximately $250,000 to K&R, and that sum was not subject to any contingencies. Irene Bithell also wrote a note with one check referring to “our agreement.” Only after the firm sued the Bithells to collect the unpaid fees, seven years after K&R first started representing them, did the Bithells object to the fees. At trial, though they claimed that some of the work Benham, Parson, and others performed was duplicative and inefficient, they did not object to all the fees. According to K&R’s calculations, in their exhibit objecting to the firm’s bills line-by-line, the Bithells still did not object to more than $274,000 in fees the firm had charged them.
In all, this record suggests that there was at least a dispute regarding whether K&R had proved its account stated claim after demonstrating that the Bithells failed to object for years to virtually any of the bills and had explicitly conceded some of them. The Bithells were entitled to challenge the firm’s right to recover certain items listed in the bills. However, the trial court erred in not allowing the jury to determine this issue as a whole because, giving K&R the benefit of all reasonable doubts, there was a dispute of fact concerning whether there was an account stated. Thus, K&R is entitled to a new trial on its account stated and unjust enrichment claims.
m. EVIDENTIARY ISSUES
A. STANDARD OF REVIEW
K&R challenges a number of pieces of evidence admitted at trial. This Court applies the abuse of discretion standard of review to evidentiary issues.
B. HEARSAY
K&R argues that the trial court erred when it allowed Klotz, a former K&R partner, and Rosen, a former K&R associate and partner, to testify that Cleary told them that the firm had a contingent fee agreement with the Bithells. K&R argues that the trial court should not have allowed them to testify because they were not involved in representing the Bithells, they did not participate in the fee agreement discussions with the Bithells, and they had no personal knowledge of any fee agreement with the Bithells. These arguments, however, only lay the foundation for K&R’s real argument that Klotz’ and Rosen’s recollections of Cleary’s statements regarding the Bithells were not admissible under MRE 801(d)(2).
MRE 802 states that “[hjearsay is not admissible except as provided by these rules.” MRE 801 defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” As K&R points out, Klotz and Rosen had no personal knowledge of any fee agreement between the firm and the Bithells. They simply were repeating information that Cleary had given them, which fits this definition of hearsay. However, MRE 801(d) identifies certain types of statements that are not hearsay. In particular, MRE 801(d)(2) indicates that a statement is not hearsay, and therefore not excludable under MRE 802, if
[t]he statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, except statements made in connection with a guilty plea to a misdemeanor motor vehicle violation or an admission of responsibility for a civil infraction under laws pertaining to motor vehicles, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy on independent proof of the conspiracy.
Klotz’ and Rosen’s testimony concerning Cleary’s statements that there was a contingent fee agreement with the Bithells fit the first part of this rule because the Bithells offered this testimony against K&R, their party-opponent. Their repetition of Cleary’s statements likely fit subsection A because Cleary, at the time he made the statements, was a partner in K&R. Cleary’s statement also likely fit subsection D because he was the billing partner for the Bithells, and thus making statements about billing was conceivably within the scope of his duties at K&R even if he would not be considered a party-opponent at the time of trial. Nothing in this rule required Klotz or Rosen to have personal knowledge of the Bithells’ fee agreement with the firm or the date on which Cleary made the statements in order to repeat them, as K&R contends. Though K&R claims that MRE 801(d)(2) was not intended to apply in this case because Cleary was simply talking to other members or employees of the firm, it concedes that it has no authority for this proposition. Even if it was error for the Bithells to be allowed to introduce Cleary’s out-of-court statements through Rosen and Klotz, the error was harmless because these statements did not establish anything more than what he said when testifying at trial.
K&R also claims that the trial court erred because it applied MRE 801(d)(2) inconsistently, allowing these statements from Cleary but barring testimony from Keywell and other K&R attorneys who tried to repeat Cleary’s statements regarding the fee agreement. For instance, K&R asked Keywell to repeat Cleary’s “response” in meetings when they had discussed the Bithells’ fees. When the Bithells’ attorney objected, the trial court sustained the objection. Despite the confusion regarding Cleary’s loyalty to the firm, Taubman, and Bithell, he was never K&R’s party-opponent. Though the trial court did not explain its ruling, this and other similar testimony did not truly fit MRE 801(d)(2), but was an improper attempt to impeach Cleary with extrinsic evidence. Therefore, the trial court did not err in excluding K&R’s attempts to introduce Cleary’s out-of-court statements when it permitted the Bithells to introduce other statements by Cleary.
K&R also argues that the trial court should have barred Rosen from testifying about her awareness and “understanding” of the fee agreement with the Bithells because she could not recall with whom at the firm she had discussed the matter. This fogginess about details, however, was relevant only to the weight of her testimony, not its admissibility. This constituted her personal knowledge of the debate within the firm of what to do about the Bithells’ outstanding bill. This testimony vaguely referred to other discussions without revealing any detailed statements made in the discussions, which, in any event, would have been admissible under MRE 801(d)(2) for the reasons previously explained.
C. ELSMAN
Before trial, the trial court entered an order stating that “Mr. Elsman is not to testify to anyone’s personal lives or gossip that he may have heard about someone’s personal life. Defendants are cautioned that Mr. Elsman is not to offer opinions at trial which is [sic] not supported.” At trial, Elsman prompted K&R’s attorney to object when he testified that whether the case was a fixed or contingent fee matter was important to his opinion that the fees were unreasonable, explaining:
Obviously we don’t have a fixed fee here. Nobody said, except for one early reference, that the cap on this was going to be fifty grand. And that’s all I’ve read from the testimony so far. But, you know, cost[s] alone are three times that; so we’re a little bit beyond analysis of anybody speculating like that. And the case is clearly a contingent fee case. I mean when you have, as I understand the testimony from — I just read the deposition. And the jury’s been here to hear people, and I don’t know what they said because I wasn’t here. But when a man with the role of Cleary on this file is before you and says, this is a contingent fee case, one-third, that ends the case. You might as well just close it up and decide the case on that basis; because he was the billing . . . partner dealing with the clientl >
The Bithells’ attorney said that this testimony was proper because he was supposed to consider this “factor,” referring obliquely to MRPC 1.5(a)(8), when evaluating whether K&R’s fee was reasonable. The trial court overruled the objection, saying that Scott had testified as an expert on behalf of K&R, so it was fíne for the Bithells to have their own expert and that he “can be asked for his opinions.” Elsman then proceeded to testify:
Contingent fee is what I’m talking about. Cleary found it [to] be contingent and specifically one-third of any amount recovered. Nothing was recovered; therefore, there’s zero benefit. And I understand that there was another member of the law firm that came here [Klotz] . . . and backed Cleary up saying, yeah, I knew it was a contingent fee. And Klotz stood to profit five percent from anything that’s recovered, so he obviously was motivated to shoot straight because he’s going to be hurt, with what my conclusion is, a zero result that the fee was contingent. The Keywell firm is not entitled to one penny, and they’re sitting on $150,0000 of costs that have been reimbursed, roughly speaking. Maybe its 145 or whatever, I’m not here to quibble about those costs; rather [sic] they’re accurate puffed up or what. I just don’t want to get into that ethically if I don’t have to.
K&R claims that Elsman improperly assessed the witnesses’ credibility. It is partially correct. MRPC 1.5(a)(8) says that one of the factors relevant to whether a fee is reasonable is whether the fee “is fixed or contingent.” When Elsman said that he considered Cleary’s statement that there was a contingent fee agreement, he was describing how he arrived at the conclusion that the Bithells had a contingent fee agreement. As an expert called to testify about the reasonableness of K&R’s fees, this was proper. Elsman walked a very narrow line when he told the jury that Klotz had corroborated Cleary’s testimony. This, too, was relevant to whether a contingent fee agreement existed even though it tended to bolster Cleary’s credibility.
However, Elsman invaded the jury’s province when he commented on Klotz’ motivation to tell the truth. Whether the pretrial order limiting Elsman’s testimony prohibited these specific statements is not clear. Nevertheless, as K&R notes, MRE 702 permits expert testimony when it “will assist the trier of fact to understand the evidence or to determine a fact in issue . . . .” Elsman as an attorney had no “specialized knowledge” of Klotz’ credibility. The jury and Elsman were equal in their abilities to determine whether Klotz was telling the truth, and therefore this was not a proper subject for Elsman’s expert testimony. Consequently, this testimony was inadmissi ble, and may not be admitted in a new trial on remand.
IV. JURY INSTRUCTIONS
A. STANDARD OF REVIEW
K&R challenges the trial court’s instructions to the jury in several respects. “[C]laims of instructional error” are subject to review de novo. However, to the extent that a trial court must determine whether the evidence supports the instruction, the trial court is entitled to some deference.
B. INSTRUCTIONS GENERALLY
This Court explained the relevant legal standard for assessing jury instructions in Burnett v Bruner, saying that, in examining the instructions given the Court views “the jury instructions as a whole to determine whether the trial court committed error requiring reversal.” This Court “will reverse for instructional error only where failure to do so would be inconsistent with substantial justice.” Additionally, “[j]ury instructions ‘should include all the elements of the plaintiff’s claims and should not omit material issues, defenses, or theories if the evidence supports them.’ ”
C. JUDICIAL NOTICE
K&R asked the trial court to give SJI2d 3.13, an instruction entitled “Fact Judicially Noticed,” which simply states, “In this case, you [the jury] must accept it as fact that_.” Under the blank, in parentheses, SJI2d 3.13 informs the trial court to “[i]dentify fact judicially noticed.” K&R wanted the trial court to inform the jury that Judge Schnelz had issued the order permitting the firm to withdraw from representing the Bithells. In other words, K&R wanted the trial court to inform the jury that it should accept as fact that the firm had withdrawn properly from the underlying action. At issue was K&R’s argument, which the trial court had rejected, that collateral estoppel barred the Bithells from relitigating this issue because Judge Schnelz had already decided that it was proper for the firm to withdraw from the underlying action.
As this Court explained in Porter v Royal Oak, the doctrine of collateral estoppel prevents “relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding.” This doctrine is strictly applied in that “[t]he issues [in both cases] must be identical, and not merely similar ... ,” The previous htigation must have presented a “full and fair” opportunity to litigate the issue presented in the subsequent case. Further more, collateral estoppel includes an element of mutuality, requiring the previous litigation of the issue to have had a preclusive effect on the party asserting collateral estoppel as a defense. By preventing relitigation, this doctrine attempts “to relieve parties of multiple litigation, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.”
When moving to withdraw from its representation of the Bithells in the underlying action, K&R articulated appropriate grounds for withdrawal. As MRPC 1.16(b) indicates, unless ordered to continue to represent a client, an attorney “may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client,” “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client,” or if “other good cause for withdrawal exists.”
K&R alleged that its withdrawal would not harm the Bithells because Wulfmeier remained their attorney and that it was otherwise entitled to withdraw because the Bithells had not paid their fees or costs, amounting to an unreasonable financial burden. The Bithells, of course, disputed K&R’s allegations. Judge Schnelz, thus, had a full opportunity to address the very issue that the Bithells asserted as an affirmative defense in this case, namely whether the firm had proper grounds to withdraw. Judge Schnelz, considering the affidavits and arguments, had to conclude that K&R had demonstrated the proper grounds for withdrawal in order for him to permit K&R to withdraw.
Substantively, this dispute over the motion to withdraw was the sort of full and fair opportunity to litigate an issue that collateral estoppel requires. Further, this withdrawal issue raised in the underlying action was literally identical to the withdrawal question that the trial court submitted to the jury in this case. Whether K&R withdrew improperly was an integral part of the Bithells’ theory that they did not owe the firm anything for their services because there was a contingent fee agreement and the firm withdrew before the case was resolved. Yet, the trial court expressly gave the jury permission to reexamine the facts surrounding K&R’s withdrawal to determine for itself whether the withdrawal met the criteria in MRPC 1.16, even though Judge Schnelz had already determined that the firm had met those criteria. This is the sort of double litigation of a single issue and opportunity for inconsistent factual determinations that the collateral estoppel doctrine is supposed to prevent
Still, the Bithells have hit upon language describing the collateral estoppel doctrine that gives us reason to pause before deciding whether collateral estoppel barred the jury from considering this defense. As the Bithells note, the case law explaining collateral estoppel refers to raising the issue in the “pleadings” and having the first case result in a “final judgment.” Just as the Bithells claim, MCR 2.110(A) defines a “pleading” exclusively as “a complaint,” “a cross-claim,” “a counterclaim,” “a third-party complaint,” “an answer to a complaint, cross-claim, counterclaim, or third-party complaint,” and “a reply to an answer.” Though the court rules occasionally treat motions in the same manner as pleadings, technically, there is no question that a motion falls outside the definition of a pleading. Nor did Judge Schnelz’ order resolving this motion to withdraw precisely fit the definition of a final judgment because, in the underlying action, the order permitting K&R to withdraw “adjudicated fewer than all the claims” and failed to resolve the “rights and liabilities” of all the parties, even though the order signaled the complete end to K&R’s representation of the Bithells in the case.
Irrespective of whether these technical misfits between the collateral estoppel doctrine and the facts of this case would merit ignoring the duplicative nature of presenting the withdrawal question to the jury, they point to the true problem in this case: K&R was not a party to the underlying proceedings. Porter refers to applying collateral estoppel when the same parties participate in the first and subsequent actions. Without the same parties in the first and subsequent action, mutuality of estoppel is difficult to prove. K&R was not a party to the underlying action, at least not when looking at the formal pleadings rather than the narrow context of the motion to withdraw. K&R and the Bithells did not even occupy adverse interests in the underlying action. Rather, the Bithells and K&R were aligned as clients and attorneys against defendants Bloomfield Township, the Club, and Korzon.
The court rules fail to provide a mechanism by which K&R and the Bithells could have become named opponents for the purpose of a dispute over whether to withdraw. K&R certainly could not file a separate civil action in the same circuit asking to withdraw because MCR 2.117(C)(2) instructs that “[a]n attorney who has entered an appearance may withdraw from the action or be substituted for only on order of the court.” Logically, this court rule suggests that the judge presiding over the case has the authority to control whether an attorney, or in this case an entire law firm, can withdraw from representing a client. Indeed, because MRPC 1.16 sets out fact-based criteria that largely require a knowledge of the parties and attorneys, the judge presiding over the case has an important role in determining whether withdrawal is proper. A judge in a separate action would likely not have this insight, much less the authority to intervene in the other suit in order to allow the firm to withdraw. Consequently, K&R took the only steps available to withdraw from the underlying action, though those steps did not involve a formal “pleading” or “final judgment.” In deciding whether the collateral estoppel doctrine tolerates the absence of a formal pleading and final judgment when an issue is very clearly being relitigated, we see a useful analogy in case law that stems from the criminal context.
The Sixth Amendment of the United States Constitution and Const 1963, art 1, § 20, both afford a criminal defendant the right to effective assistance of counsel. Criminal defendants, if convicted, often claim to have been denied this right to effective assistance of counsel, though they face a difficult task in proving such a claim. There are a small number of cases in which criminal defendants, in addition to seeking a remedy for the denial of this constitutional right in the form of a new criminal trial, also seek civil damages by suing their attorneys for malpractice. The best known examples are Barrow v Pritchard, in which the defendant attorney and law firm in the malpractice action represented the plaintiff in a federal tax prosecution; Schlumm v Terrence J O’Hagan, PC, in which the defendant law firm in the malpractice action had been hired to represent one of the plaintiffs in a criminal sexual conduct prosecution; and Knoblauch v Kenyon, in which the defendant attorney in the malpractice action had represented the plaintiff in state court prosecution for criminal sexual conduct. In these cases, the former clients who had been criminal defendants asserted that the same conduct that constituted ineffective assistance of counsel also constituted legal malpractice. In each malpractice case, the former attorney asserted collateral estoppel as a defense. Despite any legal differences between ineffective assistance of counsel and legal malpractice claims, this Court applied the collateral estoppel doctrine, effectively barring the malpractice claims in each case. As this Court explained in Barrow, “[T]he standards [for legal malpractice and ineffective assistance of counsel] are sufficiently similar in substance to support the application of the defense of collateral estoppel.” Thus, once an appellate court has rejected an ineffective assistance of counsel claim in an appeal from the criminal prosecution, or the trial court in the criminal prosecution rejects an ineffective assistance of counsel claim and the defendant does not appeal, the criminal defendant may not challenge the attorney’s conduct in a subsequent legal malpractice action.
This conclusion that collateral estoppel applies to a subsequent legal malpractice claim can be reached even though there was no formal pleadings between the parties in the underlying criminal prosecution and the criminal defendants and their attorneys were not adverse parties in the underlying criminal prosecution. This precedent suggests that there are times when the formalities surrounding a previous action bend to the unalterable reality that the parties have already disputed an issue to the fullest extent possible and the trial court deciding the previous dispute resolved the issue as formally as the court rules permit. As the Michigan Supreme Court has said:
[L]ack of mutuality does not always preclude the application of collateral estoppel. There are several well-established exceptions to the mutuality requirement, such as when an indemnitor seeks to assert in its defense a judgment in favor of its indemnitee, or where a master defends by asserting a judgment for a servant. The Court of Appeals has [also] recognized that there may be other situations in which the mutuality requirement is relaxed. [ ]
There are definite parallels between a criminal defendant who attempts to relitigate his attorney’s conduct in the underlying criminal action when suing the attorney for malpractice and the Bithells’ attempt to relitigate K&R’s ability to withdraw in the trial in this case. In both cases, there have been definitive factual findings paired with the legal conclusions that flow from those findings. In neither example is it possible for the attorney and the client, in the underlying action, to have truly adverse interests, even if the client in both cases is ultimately displeased with the attorney’s conduct. Neither the attorney in the criminal case nor K&R in the Bithells’ civil suit against the Club, Bloomfield Township, and Korzon were named parties. Applying collateral estoppel in the criminal defendant’s malpractice claim against the trial attorney certainly meets the doctrinal goal of preventing “multiple litigation, consenting] judicial resources, and, by preventing inconsistent decisions, encourag[ing] reliance on adjudication.” Applying the collateral estoppel doctrine in this case would serve the very same goals.
There are two obvious distinctions between this suit and the malpractice cases. The first distinction is that this suit involves two civil actions, not a criminal case preceding a civil action. However, in searching the case law, we found no reason to believe that a case must have what is called a “cross-over” element for collateral estoppel to apply. For instance, in Alterman v Provizer, Eisenberg, Lichtenstein & Pearlman, PC, this Court considered whether the trial court erroneously granted summary disposition to the defendant law firm in the malpractice action, which concerned the firm’s representation of the plaintiff in a federal civil suit against his employer for a work-related injury. The plaintiff and his employer settled, but after the settlement the plaintiff obtained new counsel and moved to set aside the settlement, claiming that he was not competent at the time he entered into it. The plaintiff refused to let his former attorney and the attorney’s staff waive the attorney-client privilege at the evidentiary hearing regarding the motion to set aside the settlement. When the federal court denied the motion to set aside the settlement, the plaintiff did not appeal. Rather, the plaintiff filed a lawsuit against his former attorney and the attorney’s firm alleging that they had committed malpractice when they allowed him “to settle his federal case while mentally incompetent.”
On appeal in Alterman, the plaintiff in the malpractice action evidently argued that the trial court had erred in granting summary disposition on the basis of collateral estoppel because the defendant lawyer and firm had not been parties to the underlying action, and therefore mutuality of estoppel did not exist. Though this Court was unwilling to hold that mutual ity had become irrelevant, as the defendants urged, it nevertheless examined and applied the collateral estoppel doctrine as explained in Knoblauch and Schlumm. Observing that the competency issue had been litigated fully in the federal court and was the very issue disputed in the malpractice claim, the Alterman Court held that the “plaintiff is collaterally estopped from relitigating the issue, even though the parties are not identical, no mutuality exists, and no traditional exceptions apply.” Clearly, the fact that the collateral estoppel doctrine was being invoked in a case that lacked a cross-over element had no bearing on the Court’s approach in Alterman. In comparison to this case, Alterman also presents a less compelling set of facts favoring collateral estoppel. In Alterman, the hearing to set aside the settlement did not provide the client and the former attorney the same motivation for litigating the competency issue fully because they were not adverse in the same way that K&R and the Bithells had adverse interests in the withdrawal proceeding. As a result, on the basis of the stronger facts in this case, we see no problem in applying Barrow, Knoblauch, and Schlumm simply because this case lacks a criminal component.
The second significant distinction between this case and the malpractice cases is that K&R is using collateral estoppel offensively. The malpractice cases that provide such a useful analogy for this case applied collateral estoppel defensively. As a result, those cases applied mutuality of estoppel, a component of the collateral estoppel doctrine, much more loosely, if at all. As this Court briefly mentioned in Knoblauch, mutuality is a critical prerequisite when using collateral estoppel offensively.
The Michigan Supreme Court’s decision in Howell v Vito’s Trucking & Excavating Co is, perhaps, the best known Michigan case that discusses mutuality. In Howell, a Vito’s Trucking vehicle struck and killed Hattie Howell and injured her daughter Anna Sue Collins, who was also riding in the Howell vehicle. William Howell, evidently Hattie Howell’s husband, filed a wrongful death suit in Michigan against Vito’s Trucking on behalf of Hattie Howell’s estate, himself, and as guardian for their son, James Howell. Before the case went to trial, Collins obtained a judgment in federal court for the injuries she sustained in the accident. This prompted William Howell to move for partial summary disposition, arguing that Vito’s Trucking should not be allowed to relitigate its negligence. The trial court denied the motion as it concerned William Howell, but granted it to the extent that Collins might be involved or have interests in the Michigan suit as Hattie Howell’s heir. This Court reversed the trial court’s decision and remanded the case with instructions for the trial court to reconsider whether William Howell, in all his capacities, should have been granted partial summary disposition. This Court also indicated that “[t]he trial court had discretion to apply collateral estoppel against defendant, mutuality not being a controlling factor.”
When the Howell case reached the Supreme Court, the Court thoroughly reviewed the collateral estoppel doctrine and the mutuality requirement, though often mentioning res judicata. The Court observed that, despite the familial relations and factual connections between the federal suit and the action in Michigan’s courts, William Howell in each of his three roles in the suit (representative, individual, and guardian) and Collins were distinct legal entities. The Court concluded that William Howell was not “bound” in the instant case by the federal court decision, which precluded applying the federal court result concerning the alleged negligence against Vito’s Trucking. In other words, William Howell could not use the determination in the federal proceeding to bar Vito’s Trucking from challenging its negligence in the state court action. Thus, Howell essentially prohibited nonmutual offensive collateral estoppel.
In reaching this result, the Howell Court acknowledged a compelling interest in balancing two competing concerns: “that the litigant against whom the doctrine is asserted has had his day in court; vis-a-vis that repetitious and needless litigation which burden our already overloaded court dockets must be avoided.” The Court, however, concluded that the need to give litigants their day in court did not require it to “sacrifice a well-established and valuable rule to achieve this balance.” The risk of eliminating mutuality was no less than the risk that some litigants might be denied their significant rights, such as the right to due process of law.
In deciding whether Howell prevents collateral estoppel from applying in this case, we consider four factors. First, the Supreme Court was not concerned as much about William Howell’s attempt to use collateral estoppel offensively, but by his attempt to rely on the doctrine when not bound by the federal decision. That problem does not arise in this case. Judge Schnelz’ order equally bound K&R and the Bithells, regardless of the names of the parties in the pleadings in the underlying action. Had the trial court reached the opposite decision, K&R would have been obligated to continue to represent the Bithells in the underlying action. This is the essence of mutuality.
Second, the Supreme Court in Howell did not focus exclusively on the pleadings when determining whether the parties bound by the federal court decision were participating in the Michigan action. Rather, the Court also looked to the legal identities of the parties. Though the Club, Bloomfield Township, and Korzon were parties to the underlying action, the
withdrawal order did not bind them in any respect because they had no interest in whether K&R was able to withdraw and did not participate in the related proceedings at all. Their identity as parties in the underlying action do not, practically or legally, complicate the identity of the participants in the withdrawal proceeding in this case in the same way Collins’ multiple interests as an injured plaintiff and a potential heir of a decedent complicated Howell. In this case, the participants in the motion for withdrawal proceeding, K&R and the Bithells, are not only bound by the order, but are identical to the parties in this case. As a result, to the extent that the identity of the parties shapes whether mutuality of estoppel exists, K&R’s identity and the Bithells’ identity are sufficiently clear to conclude that this mutuality exists.
Third, the facts of this case do not conjure up fears about denial of due process or other important rights identified in Howell. As indicated above, the Bithells had their day in Judge Schnelz’s court to dispute whether withdrawal was proper. This was the adversarial system Howell held in such high esteem. Judge Schnelz simply disagreed with the Bithells’ viewpoint. This surely demonstrates that the equities of this case are aligned in favor of collateral estoppel; collateral estoppel, which would have provided all the usual efficiencies had the trial court applied it, would not have sacrificed the Bithells’ interest in a full and fair adjudication because they had already taken advantage of that opportunity in the underlying action.
Fourth and finally, failing to apply collateral estoppel in this case has consequences that the Supreme Court did not consider in Howell. Applying collateral estoppel in this case will play an important role in encouraging only proper withdrawal by counsel in future cases. If clients could challenge a withdrawal after an attorney or law firm established the grounds to withdraw identified in MRPC 1.16 and acquired permission to withdraw in the form of a court order, then attorneys and law firms would have no incentive to go through this formal procedure. Stated another way, if collateral estoppel did not apply in this situation, withdrawing under court order would expose an attorney or law firm to exactly the same consequences as abandoning a client. This exposure, in turn, would discourage law firms and attorneys from taking the time and incurring the expense of obtaining permission from the court to withdraw, which is what MRPC 1.16, operating in conjunction with MCR 2.117(C), contemplates. Alternatively, failing to apply collateral estoppel in this case may force some attorneys and law firms to remain counsel in cases in which the attorney-client relationship has degraded to the point where it is no longer beneficial to the client. Moreover, applying collateral estoppel in this way would have little effect on a subsequent malpractice action. After an attorney or law firm withdraws, the client could still challenge the attorney or firm’s conduct in the time preceding the withdrawal, which would not have been necessarily litigated in the decision concerning a motion to withdraw. Thus, the value of applying the collateral estoppel doctrine in this case is not only significant, it has few negative effects.
The trial court, therefore, erred when it refused to instruct the jury to accept as fact that K&R had withdrawn properly in the underlying action. The trial court should have instructed the jury that, if it found that K&R and the Bithells had a contingent fee agreement it had to accept as fact that K&R did nothing wrong by withdrawing. As a result, the trial court should have also informed the jury that it should only consider the reasonable value of the services K&R rendered. Unlike in other cases, the failure to issue this instruction was prejudicial, not harmless. The jury’s communication with the trial court concerning what constituted proper withdrawal suggests that it was contemplating this aspect of the Bithells’ defense. This communication, when coupled with the trial court’s many instructions concerning the withdrawal, leave little doubt that, absent the opportunity to decide anew the question whether K&R withdrew properly, the jury would have returned a verdict in favor of K&R, even if the attendant award was vastly lower than the $414,726.85 the firm claimed the Bithells owed it. A new trial in which the trial court instructs the jury that it must accept it as fact that K&R withdrew properly from the underlying action is < the only viable remedy for this error.
D. CONTRACT
The trial court instructed the jury that K&R had the burden of proof
with respect to any claim [f]or breach of contract on the hourly rate, plus agreement between the parties on each of the following four propositions: 1) The plaintiff [K&R] has to prove the existence of a valid contract; 2) Plaintiff has to prove the terms of the contract; 3) Plaintiff has to prove the performance of things to be performed by the plaintiff; and 4) The plaintiff has to prove non-performance by the defendant [the Bithells],
Soon thereafter, the trial court informed the jury that the Bithells
have the burden of proof with respect to their claim that the fee agreement between themselves and Keywell and Rosenfeld was changed through [the] Contingent Fee Agreement. In order to find the agreement was changed to a Contingent Fee Agreement you must find three things: 1) The existence of a valid agreement to change the fee agreement; 2) The terms of the Contingent Fee Agreement; and 3) That Mr. Cleary had actual or apparent authority to change the fee agreement interest [to] a Contingent Fee Agreement on behalf of Keywell and Rosenfeld.
K&R does not contend that the Bithells had any burden of proof concerning the breach of contract claim. Rather, it argues that the trial court erred in inserting the words “plaintiff has to prove” in the instructions because those words do not appear in the model instruction. It claims that this additional language had the effect of erroneously placing a higher burden of proof on K&R than it was supposed to have. The language in both sets of instructions correctly allocated each party’s burden of proof though the instructions were not identical as concerned the burden. Though not perfect, the instructions adequately informed the jury of which party had to prove what elements of which claims. This was not error requiring reversal, although on remand the trial court would be well-advised to adopt a more even-handed approach in describing the parties’ respective burdens of proof.
E. QUANTUM MERUIT
When explaining the term quantum meruit to the jury, the trial court defined the term as meaning “an amount of recovery as much as deserved,” explaining that quantum meruit is “an equitable principle that measures recovery under an implied contract to pay compensation as reasonable value of services rendered.” The trial court informed the jury that “among the factors to consider is what percentage of total work has been completed by the attorney or attorneys seeking fees to obtain results of the parties.” K&R argues that this instruction was improper because there was no evidence of the percentage of work completed on the underlying action. K&R adds that this theory was inapplicable because, at the time of trial in this case, the underlying action had yet to be completed.
This Court affirmed a trial court’s decision to calculate quantum meruit as a percentage of work completed in Morris v Detroit and approved that approach in Reynolds v Polen. Thus, the trial court’s quantum meruit instruction was not, per se, incorrect. However, this instruction was of little value to the jury in light of the evidence that the underlying action had yet to be resolved. Unlike in Morris and Reynolds, the underlying action in this case had not yet been tried or settled, making it impossible to calculate quantum meruit as a percentage of the recovery obtained as a result of a trial or settlement.
Nevertheless, as the Reynolds Court indicated, “[Q]uantum meruit is generally determined by simply multiplying the number of hours worked by a reasonable hourly fee.” The trial court properly defined quantum meruit, which does mean “as much as deserved.” The trial court also instructed the jury on the factors relevant to reasonable attorney fees. Thus, the trial court gave the jury an alternate and appropriate method for calculating quantum meruit. Nevertheless, on retrial, the trial court should consider whether this method of calculating damages is appropriate in light of the status of the underlying action.
F. REASONABLE VALUE OF LEGAL SERVICES
The trial court instructed the jury consistently with SJI2d 180.03, which essentially identifies the factors in MRPC 1.5 that are relevant to determining whether attorney fees are reasonable, not excessive. The trial court added:
A lawyer is bound by the Michigan Rules of Professional Conduct. The rule [MRPC 1.5] states that a lawyer shall not enter into an agreement for[,] chargef,] or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is excessive of a reasonable fee. A lawyer of ordinary prudence is just a lawyer who — he’s not crazy or anything— but just a lawyer acting reasonably.
K&R argues that the trial court erred in including this additional language about MRPC 1.5 because it raised the firm’s burden of demonstrating that its fees were reasonable. Though somewhat repetitive, the instructions were accurate and not confusing.
K&R also contends that the trial court improperly left the jury to come to its own understanding of a “lawyer of ordinary prudence.” This was not the trial court’s smoothest instruction to the jury, but the trial court redeemed itself by defining a “lawyer of ordinary prudence” as “a lawyer acting reasonably.” “Prudence” means “[c]arefulness, precaution, attentiveness, and good judgment, as applied to action or conduct. That degree of care required by the exigencies or circumstances under which it is to be exercised.” Reasonable action is a fair explanation of the concept of prudence. K&R provides no authority, not even a dictionary definition, to suggest that this instruction was erroneous.
Reversed and remanded for further proceedings consistent with this opinion. K&R may present all the claims and theories it originally pressed at the trial in this case in a new trial. We do not retain jurisdiction.
Given the considerable overlap between these four actions and their genesis from the same problem, we refer to all four collectively as the “underlying action.” We use “Bithell” to refer to Thomas Bithell and the “Bithells” to refer to the family.
Emphasis added.
This Court partially reversed the trial court’s ruling in the underlying action, allowing the Bithells to sue Bloomfield Township under the trespass-nuisance exception to governmental immunity, one of the claims K&R had pleaded on their behalf. See Bithell v Oakland Hills Country Club, unpublished opinion per curiam of the Court of Appeals, issued March 7, 1997 (Docket No. 185106).
We could not find the note in the lower court record, and the transcripts do not reflect that the attorneys and the trial court ever discussed any such note. The Bithells, however, do not contest K&R’s factual assertions concerning this note. Thus, we assume that the jury actually sent this note to the trial court.
See Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997).
See Wickens v Oakwood Healthcare Sys, 465 Mich 53, 59; 631 NW2d 686 (2001).
See Meagher, supra at 708.
Derbabian v S&C Snowplowing, Inc, 249 Mich App 695, 703; 644 NW2d 779 (2002).
Id.
Barber v SMH (US), Inc, 202 Mich App 366, 375; 509 NW2d 791 (1993).
Id.
Id.
See HJ Tucker & Assoc, Inc v Allied Chucker & Engineering Co, 234 Mich App 550, 573-574; 595 NW2d 176 (1999).
Id. at 573.
Id. at 573-574.
Id. at 573.
See Barber, supra at 375.
See Derbabian, supra.
Watkins v Ford, 69 Mich 357, 361; 37 NW 300 (1888).
Id.
See Corey v Jaroch, 229 Mich 313, 315; 200 NW 957 (1924) (“When an account is stated in writing by the creditor and accepted as correct by the debtor, either by payments thereon without demur or by failure within a reasonable time to question the state of the account as presented, it becomes an account stated . . . .”).
Kaunitz v Wheeler, 344 Mich 181, 185; 73 NW2d 263 (1955), quoting White v Campbell, 25 Mich 463, 468 (1872).
See Kaunitz, supra at 185, quoting White, supra at 468 (“When [an account stated is] accomplished, it does not necessarily exclude all inquiry into the rectitude of the account.”).
See Derbabian, supra.
See Hilgendorf v St John Hosp & Medical Ctr Corp, 245 Mich App 670, 688; 630 NW2d 356 (2001).
See MRE 608(b).
See, generally, McPeak v McPeak (On Remand), 233 Mich App 483, 496; 593 NW2d 180 (1999) (evidence with little weight is not necessarily inadmissible).
Emphasis added.
MRE 702.
See People v Beckley, 434 Mich 691, 727-728; 456 NW2d 391 (1990) (Brickley, J.).
See Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
See Isagholian v Transamerica Ins Corp, 208 Mich App 9, 16; 527 NW2d 13 (1994).
Burnett v Bruner, 247 Mich App 365, 375; 636 NW2d 773 (2001).
Id.
Id., quoting Case, supra at 6.
Now M Civ JI 3.13.
Porter v Royal Oak, 214 Mich App 478, 485; 542 NW2d 905 (1995).
Eaton Co Bd of Co Rd Comm'rs v Schultz, 205 Mich App 371, 376; 521 NW2d 847 (1994).
Arim v Gen Motors Corp, 206 Mich App 178, 194-195; 520 NW2d 695 (1994).
Lichon v American Universal Ins Co, 435 Mich 408, 427-428; 459 NW2d 288 (1990).
Dearborn Heights School Dist No 7 v Wayne Co MEA/NEA, 233 Mich App 120, 124; 592 NW2d 408 (1998).
In this case, a firm. See MCR 2.117(B)(3)(b).
MRPC 1.16(b)(5).
MRPC 1.16(b)(6).
See Arim, supra at 194-195.
Baton Co Bd of Co Rd Comm’rs, supra at 376.
See Plunkett & Cooney, PC v Capitol Bancorp, Ltd, 212 Mich App 325, 329-330; 536 NW2d 886 (1995) (“Where an attorney’s employment is prematurely terminated before completing services contracted for under a contingency fee agreement, the attorney is entitled to compensation for the reasonable value of his services on the basis of quantum meruit, and not on the basis of the contract, provided that his discharge was wrongful or his withdrawal was for good cause.") (emphasis added).
See Dearborn Heights, supra at 124.
See Ditmore v Michalik, 244 Mich 569, 577; 625 NW2d 462 (2001) (“Collateral estoppel, or issue preclusion, precludes relitigation of an issue in a subsequent, different cause of action between the same parties or their privies when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding.”) (emphasis added); VanDeventer v Michigan Nat’l Bank, 172 Mich App 456, 463; 432 NW2d 338 (1988) (“Collateral estoppel conclusively bars only issues ‘actually litigated’ in the first action. A question has not been actually litigated until put into issue by the pleadings, submitted to the trier of fact for a determination, and thereafter determined.”) (emphasis added).
See MCR 2.113(A).
See, generally, Huntington Woods v Ajax Paving Industries, Inc (On Rehearing), 179 Mich App 600, 601; 446 NW2d 331 (1989) (applying plain language in MCR 2.110[A] to conclude that motion for summary disposition was not a “pleading”).
See MCR 2.604(A).
Porter, supra at 485.
See, generally, Minicuci v Scientific Data Mgt, Inc, 243 Mich App 28, 37; 620 NW2d 657 (2000).
Collateral estoppel does not require adversity, and we do not intend to suggest that we have incorporated adversity as an element of the doctrine. In this case, adversity is a useful analytical tool because it helps us focus on the identity of the “parties” to the previous action and whether those parties litigated the withdrawal issue fully.
Emphasis added.
See, generally, People v Pickens, 446 Mich 298, 308-309; 521 NW2d 797 (1994).
See People v Watkins, 247 Mich App 14, 30; 634 NW2d 370 (2001) (With respect to a claim of ineffective assistance of counsel, “[t]his Court presumes that counsel’s conduct fell within a wide range of reasonable professional assistance, and the defendant bears a heavy burden to overcome this presumption.”).
Barrow v Pritchard, 235 Mich App 478, 479; 597 NW2d 853 (1999).
Schlumm v Terrence J O’Hagan, PC, 173 Mich App 345, 348-352; 433 NW2d 839 (1988).
Knoblauch v Kenyon, 163 Mich App 712, 713-714; 415 NW2d 286 (1987).
See Barrow, supra at 485; Schlumm, supra at 351-352; Knoblauch, supra at 715.
See Barrow, supra at 479; Schlumm, supra at 352; Knoblauch, supra at 725.
See Barrow, supra at 485; Schlumm, supra at 356; Knoblauch, supra at 715.
Barrow, supra at 484-485.
See Sclúumm, supra at 351; Knoblauch, supra at 714.
See Barrow, supra at 479.
Lichon, supra at 428, n 16 (citations omitted).
Dearborn Heights, supra at 124.
See Barrow, supra at 481.
Alterman v Provizer, Eisenberg, Lichtenstein & Pearlman, PC, 195 Mich App 422, 423; 491 NW2d 868 (1992).
Id.
Id.
Id.
Id. at 423-424.
Id. at 424-425.
Alterman, supra at 425-427.
Id. at 427.
See Lichon, supra at 427-428.
See Alternan, supra at 427.
See Knoblauch, supra at 720.
Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971).
Id. at 40.
Id.
Id.
Id. at 40-41.
Id. at 41.
Id.
Id.
Id. at 41-51.
Id. at 44.
Id. at 46.
See Knoblauch, supra at 720.
Howell, supra at 48.
Id.; see id. at 51.
Id. at 49-50.
Subsequent case law suggests that collateral estoppel is not necessarily inappropriate when used offensively in the noncriminal context. See, e.g., Nummer v Dep’t of Treasury, 448 Mich App 534, 548, n 14; 533 NW2d 250 (1995).
See Howell, supra at 45-46.
See Knoblauch, supra at 720.
Howell, supra at 51.
Id. at 48, 51.
We wish to make clear that we are not holding that every decision permitting an attorney or law firm to withdraw is subject to the collateral estoppel doctrine. Rather, when the record supports the conclusion that the clients and their attorney or law firm have fully litigated withdrawal using the appropriate procedures available under the court rules and rules of professional conduct, then the usual collateral estoppel analysis applies, which may preclude relitigating the issue.
See Hilgendorf, supra at 695-696.
See Case, supra at 6 (“Even if somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury.”).
Morris v Detroit, 189 Mich App 271, 280; 472 NW2d 43 (1991).
Reynolds v Polen, 222 Mich App 20, 29-31; 564 NW2d 467 (1997).
Morris, supra at 279-280.
Reynolds, supra at 23.
Id. at 28.
Black’s Law Dictionary (6th ed, 1990), p 1243.
Now M Civ JI 180.03.
See Morris, supra at 278-279, quoting Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973) (enumerating nonexhasutive list of factors relevant to reasonable attorney fees).
See Black’s Law Dictionary, supra at 1226. | [
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Bandstra, J.
Defendants appeal as of right from a judgment for plaintiff in this medical malpractice case. Plaintiff cross appeals the trial court’s decision to reduce the damages awarded by the jury pursuant to MCL 600.1483. We affirm.
I. basic facts and proceedings below
In April 1995, Dr. Donald Meyer referred plaintiff to defendant John M. Murphy, M.D., for treatment of a cancerous thyroid tumor. Dr. Murphy, who was the chief of surgery at defendant William Beaumont Hospital, performed the surgery at a Beaumont facility on June 12, 1995. Another physician, Dr. Bruce Macintosh, and a physician’s assistant, Frank Mercandonte, assisted Dr. Murphy in performing the surgery. According to Dr. Murphy, plaintiff’s thyroid was “cement-like” and adherent to other structures because of past radioactive iodine treatment, which made the surgery more difficult. In addition, Dr. Murphy concluded that plaintiff’s recurrent laryngeal nerve needed to be removed because it was encased by the tumor.
The day after the surgery, Dr. Murphy noted that plaintiff had an elevated temperature and drainage from the incision, and he ordered an esophagoscopy, which revealed a perforation in plaintiff’s esophagus. Plaintiff was taken directly to surgery and a thoracic surgeon, Dr. Robert Welsch, repaired the perforation. Plaintiff recovered from this second surgery and was released from Beaumont on June 20, 1995.
Following the surgery at Beaumont, plaintiff had difficulty breathing, swallowing, and eating. In July 1995, plaintiff was admitted to another hospital because she was suffering from aspiration pneumonia. According to plaintiff, no one informed her or her family that her recurrent laryngeal nerve was removed during the operation. Dr. Murphy completed a handwritten operative note following the surgery, but did not dictate his operative report until June 21, 1995, the day after plaintiff was discharged from Beaumont. The operative report stated that the recurrent laryngeal nerve was removed; however, the handwritten note contained no reference to the nerve removal, and the pathology report showed no indication that the nerve was involved in the tumor. In her complaint filed in March 1997, plaintiff alleged that Dr. Murphy and Beaumont or its “agents, servants and/or employees, either real or ostensible” were negligent.
In May 1998, Beaumont moved for partial summary disposition, arguing that it could not be liable for any alleged negligence of Dr. Murphy because he was not an agent of Beaumont. Beaumont claimed that plaintiff’s treating physician referred her to Dr. Murphy, there was a preexisting relationship between Dr. Murphy and plaintiff before the June 1995 surgeiy, and it did not take any action that would lead plaintiff to reasonably believe that Dr. Murphy was acting on its behalf. The trial court noted that plaintiff asserted that she relied on Beaumont for treatment because of the recommendation of her brother. The court further noted that plaintiff’s injuries might have occurred because of the negligence of Dr. McIntosh, who plaintiff did not seek out for treatment. The trial court denied ■ Beaumont’s motion, stating that it could not find as a matter of law that there was no ostensible agency relationship between Beaumont and Dr. Murphy or that Dr. Murphy’s actions were the sole cause of plaintiff’s injuries.
Before trial began in this case, plaintiff submitted proposed jury instructions that included a request for SJI2d 30.05, which is the standard jury instruction regarding res ipsa loquitur, to which defendants objected.
At trial, plaintiff presented three theories of negligence: that defendants allowed plaintiff’s esophagus to be perforated during surgery, that defendants failed to preserve plaintiff’s recurrent laryngeal nerve, and that Dr. Murphy failed to timely dictate his operative report. Plaintiff’s and defendants’ experts agreed that an esophageal perforation is a rare complication in a thyroidectomy. Plaintiff’s expert, Dr. Levey, testified that an esophageal perforation does not happen in the absence of negligence, and defendants did not object to this testimony. Dr. Levey further opined that the perforation was caused either by Dr. Murphy or by one of the other members of the surgical team. Defendants’ expert testified that the perforation likely occurred because plaintiff’s thyroid and esophagus were scarred and weakened by previous radioactive iodine treatment, and traction during the surgery pulled on this weakened tissue, causing it to tear.
Plaintiff produced evidence demonstrating that Dr. Murphy’s claim that the nerve was encased by cancer was noted on the operative report, but was not included on the handwritten operative note, on the pathology report, or on the discharge summary. Regarding the delay in dictation of the operative report, Dr. Levey testified that the delay violated the standard of care because the “Joint Commission of Hospitals Association” requires operative reports to be completed within twenty-four hours after surgery. Dr. Levey further opined that an operative report dictated nine days after surgeiy is not likely to be accurate, and suggests “lackadaisicalness” and “sloppiness.” When asked whether the delay in compiling the report resulted in any harm to plaintiff, Dr. Levey admitted that plaintiff was not directly harmed by the delay.
At the conclusion of her proofs, plaintiff moved to amend the pleadings to add a claim of res ipsa loquitur. Plaintiff argued that, under MCR 2.118(C)(1), issues tried by express or implied consent of the parties are treated as if they had been raised by the pleadings and amendment should be allowed to conform to the evidence. Plaintiff noted Dr. Levey’s testi mony that an esophageal perforation does not ordinarily occur in the absence of negligence. Defendants denied that they consented to litigating res ipsa loquitur, claiming that it came up for the first time during Dr. Levey’s testimony and that defense counsel objected to it. Plaintiff contended that the theory was raised during discovery and that the broad language in the complaint put defendants on notice of the possibility of this theory. The trial court agreed with plaintiff’s reasoning and granted her request to amend.
Defendants moved for a directed verdict on plaintiff’s theory of negligence regarding the delayed dictation of the operative report, arguing that the delay did not violate the standard of practice and did not harm plaintiff. Plaintiff argued, and the court agreed, that defendants failed to object to Dr. Levey’s testimony or move to have it stricken. The court also noted that defense counsel did not question Dr. Levey regarding his foundation for testifying that a delay in dictating a report was a violation of the standard of care. Defendants argued that, as a matter of law, failure to timely dictate a report is a charting issue and does not constitute malpractice. Defendants further argued that even if it were a violation of the standard of practice, plaintiff failed to show how she was harmed by the delay. Plaintiff countered that the delay indirectly harmed her “by the fact that it’s information that’s being utilized really to her detriment in terms of these proceedings,” that the delay in dictation “implies as to how the conduct was during the surgery,” and that the information in the report was not accurate regarding what transpired on the day of surgery.
The court denied defendants’ motion, stating:
[I]t may not be a fair focus on the standard of care, which encompasses everything that went into this, not just an operative report, but everything. Frankly, the — the Court would maybe entertain a motion to strike that testimony if . . . you show me a case that says that what a doctor does or does not do within the operative report ... is not included in the standard of care. But so far the testimony is in, you were allowed cross-examination on it, there’s been no motion to object — or to strike the testimony. . . . But if you provide me with a case that says that that is not a part of the standard of care, that is . . . the completing of an operative report, I’ll be happy to entertain out of — out of fairness, . . . anything further [in that regard]. But at this juncture, I’m denying your request for directed verdict on that basis.
After both parties rested and gave their closing arguments, the court gave jury instructions that included the following:
For the purpose of this case, ladies and gentlemen, Dr. Murphy, Dr. McIntosh, Frank Mercandonte, are to all be considered as agents of William Beaumont Hospital. As such, if you find that Dr. Murphy or Dr. McIntosh or Frank Mercandonte were professionally negligent, then William Beaumont Hospital shall be held liablé for their negligence.
There is no indication in the record that defendants objected to this or any other instruction. It appears that the parties also agreed to a very basic and general jury verdict form that required the jury to determine (1) whether the defendants were negligent, (2) whether plaintiff sustained damages, (3) whether plaintiff’s damages were proximately caused by defendants’ negligence, and (4) the amount of plaintiff’s damages.
Following deliberations, the jury returned a verdict for plaintiff, finding that defendants were negligent and that plaintiff was damaged as a result of defendants’ negligence. The judgment awarded plaintiff $174,686 in past economic damages and $200,000 in past noneconomic damages. The judgment also awarded $256,678 in future economic damages and $256,678 in future noneconomic damages, both amounts having been reduced to present cash value. The judgment awarded plaintiff noneconomic damages in a total amount reduced from the jury’s verdict, pursuant to MCL 600.1483.
The parties filed numerous posttrial motions. Plaintiff filed a motion seeking mediation sanctions under MCR 2.403(0), which the court granted in part, awarding plaintiff $86,583 in attorney fees based on 577.22 hours at a rate of $150 an hour. Plaintiff also asked the court to hold that MCL 600.1483, the statute that places a cap on noneconomic damages in medical malpractice actions, violated plaintiff’s constitutional right to a jury trial, violated plaintiff’s rights to equal protection and due process, and violated the separation of powers provision of the Michigan Constitution. The trial court concluded that the statute was constitutionally sound and denied plaintiff’s motion.
Defendants filed motions to “Reduce the Verdict in Accordance with MCL 600.6303,” for judgment notwithstanding the verdict (jnov), for a new trial, and for remittitur, all of which the court denied. Plaintiff also moved for an additional award of attorney fees under MCR 2.403(0), seeking fees incurred during the posttrial proceedings. The trial court granted plaintiff’s motion in part, awarding an additional 77.3 hours at $150 an hour.
n. DEFENDANTS’ APPEAL
A AMENDING THE COMPLAINT
Defendants first argue that the trial court abused its discretion by granting plaintiffs request to amend her complaint dining trial to add a claim of res ipsa loquitur. Defendants claim that the trial court erred by applying MCR 2.118(C)(1) because defendants did not consent to litigate plaintiffs claim of res ipsa loquitur, and that the correct standard governing plaintiffs request was MCR 2.118(C)(2), which required plaintiff to establish that defendants would not be prejudiced by the amendment and that no such showing was made.
MCR 2.118(C), which governs the amendment of complaints at trial, states:
Amendments to Conform to the Evidence.
(1) When issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings. In that case, amendment of the pleadings to conform to the evidence and to raise those issues may be made on motion of a party at any time, even after judgment.
(2) If evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, amendment to conform to that proof shall not be allowed unless the party seeking to amend satisfies the court that the amendment and the admission of the evidence would not prejudice the objecting party in maintaining his or her action or defense on the merits. The court may grant an adjournment to enable the objecting party to meet the evidence.
Defendants argue that subsection C(2) is the applicable standard to apply in this case because they objected to plaintiffs amendment. However, this argument is belied by the clear language of the rule. MCR 2.118(C)(2) applies only where a party objects to admission of evidence. Although defendants are correct that they objected to the amendment, defendants did not object to the admission of evidence regarding res ipsa loquitur and subsection C(2) is inapplicable. The trial court correctly reasoned that subsection C(l) is the correct standard here because defendants’ failure to object to the admission of res ipsa loquitur evidence implied their consent to litigate the issue. See Grebner v Clinton Charter Twp, 216 Mich App 736, 744; 550 NW2d 265 (1996).
Because MCR 2.118(C)(1) was the correct standard, defendants’ argument that plaintiff was required to show lack of prejudice to defendants must fail. That requirement of subsection C(2) is not included in subsection C(l). To the contrary, subsection C(l) is liberal and permissive, treating issues tried by consent of the parties “as if they had been raised by the pleadings.” The only requirement is that the party seeking amendment move to have the court amend the pleadings, and plaintiff here properly moved for an amendment. The trial court did not abuse its discretion in deciding to allow plaintiff to amend her complaint to conform to the evidence on her theory of res ipsa loquitur.
Defendants also argue that plaintiff failed to prove all the elements of res ipsa loquitur and a new trial should be granted on this basis. However, there is no indication in the record that defendants raised this issue at trial. Defendants did argue in their motion for jnov or a new trial that the trial court should have granted their “motion for a directed verdict as to the res ipsa theory.” However, defendants had never moved for a directed verdict on plaintiffs res ipsa loquitur claim. This Court need not address issues first raised on appeal, Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993), and we decline to address this argument.
B. MOTION FOR A DIRECTED VERDICT
Defendants next argue that the trial court erred in denying their motion for a directed verdict on plaintiffs claim that Dr. Murphy was negligent for failing to timely dictate his operative report. Defendants claim that the internal policies of defendant Beaumont and the rules of the Joint Commission on Accreditation of Healthcare Organizations (jcaho) cannot be used to establish the standard of care for a physician. Defendants are correct in their assertion that internal policies of an institution, including a hospital, cannot be used to establish a legal duty in a negligence claim. See Buczkowski v McKay, 441 Mich 96, 99, n 1; 490 NW2d 330 (1992); Gallagher v Detroit-Macomb Hosp Ass’n, 171 Mich App 761, 764-765; 431 NW2d 90 (1988). However, we have distinguished between internal policies and external rules promulgated pursuant to law. Id. at 765; Kakligian v Henry Ford Hosp, 48 Mich App 325, 332; 210 NW2d 463 (1973). In this case, plaintiff alleged not only a violation of internal policy, but also a violation of jcaho rules. Defendants have not cited any authority hold- mg that the rules of an external regulatory agency such as jcaho could not be used to establish defendants’ duty to plaintiff. Therefore, we reject defendants’ argument that the trial court should have granted its motion for a directed verdict on that basis.
Defendants also argue that a directed verdict on the issue of negligent charting was appropriate because plaintiff failed to show how she was harmed by the delay in dictating the operative report. In order to prove negligence, plaintiff must show not only a duty and a breach of that duty, but that her injuries were caused by the breach. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). In order to prove causation, plaintiff must show both cause in fact and proximate cause. Haliw v Sterling Hts, 464 Mich 297, 310; 627 NW2d 581 (2001). Cause in fact requires plaintiff to show that her injuries would not have occurred but for defendants’ negligent conduct. Id.
In this case, plaintiff’s claimed injuries included (1) severance of her recurrent laryngeal nerve, (2) a prolonged recovery, (3) an additional hospitalization for pneumonia, (4) permanent difficulties in breathing, swallowing, and aspiration, (5) out-of-pocket expenses for medical care related to her physical injuries, and (6) pain and emotional distress. At trial, neither plaintiff nor her expert testified how the delay in dictation harmed her and, in fact, her expert admitted that she was not directly harmed.
On appeal, plaintiff argues that she was harmed because the operative report was the only document that noted that her recurrent laryngeal nerve was severed, and because the operative report was not timely dictated, neither she nor her subsequent medical care providers were informed of the loss of the nerve. However, plaintiff failed to establish that, but for the lack of knowledge of this condition on the part of her subsequent providers, her claimed injuries would not have occurred. Id. Further, the failure to keep adequate records may raise issues regarding credibility or burden of persuasion, but it has no bearing on whether the defendant medical care providers were negligent. Boyd v Wyandotte, 402 Mich 98, 104-105; 260 NW2d 439 (1977). Because plaintiff failed to bring forth evidence that she was in fact injured by defendants’ negligent charting, the trial court erred in denying defendants’ motion for a directed verdict on this issue.
Although the trial court erred in denying the motion for a directed verdict, reversal is required only if allowing the verdict to stand would be inconsistent with substantial justice. MCR 2.613(A).
In this case, the jury returned a general verdict finding that defendants were negligent and that plaintiff’s injuries were caused by this negligence. There were no specific findings by the jury regarding how defendants were negligent or how the negligence caused plaintiff’s injuries. However, there was sufficient evidence from which the jury could reasonably conclude that defendants were negligent on the basis of plaintiff’s alternate theories regarding the severed recurrent laryngeal nerve or the perforated esophagus. Moreover, it is clear from the fact that the jury awarded substantial future damages that the jury found for plaintiff on one or both of those theories, the delayed reporting error clearly having no long- term effect. We also note that after the denial of the motion for a directed verdict, defendants did not request a more detailed verdict form by which the extent of the jury’s reliance on the delayed reporting theory would have been clearly registered. In the absence of such a detailed verdict, we cannot conclude that defendants have been denied substantial justice.
C. OSTENSIBLE AGENCY
In their next assertion of error, defendants argue that the trial court should have granted defendant Beaumont’s motion for summary disposition because Dr. Murphy was not an ostensible agent of the hospital and Beaumont could not have been vicariously liable for Dr. Murphy’s negligence. Although the trial court did not state whether it decided the motion under MCR 2.116(C)(8) or (10), the court considered documentary evidence outside the pleadings. Therefore, we will analyze the motion under MCR 2.116(C)(10).
A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When deciding the motion, the court considers pleadings, affidavits, depositions, admissions, and other evidence submitted in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmovant. Ritchie-Gamester v Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999); Hall v McRea Corp, 238 Mich App 361, 369-370; 605 NW2d 354 (1999). If the admissible evidence submitted by the parties fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999).
We agree with defendants that the evidence of ostensible agency between Dr. Murphy and Beaumont was tenuous at best. In order to prove that Dr. Murphy was the ostensible agent of Beaumont, plaintiff must show that (1) she dealt with Dr. Murphy with a reasonable belief in the physician’s authority as an agent of Beaumont, (2) her belief was generated by some act or neglect on the part of the hospital, and (3) she was not guilty of negligence. Chapa v St Mary's Hosp of Saginaw, 192 Mich App 29, 33-34; 480 NW2d 590 (1991). Further, an independent relationship between a doctor and a patient that preceded a patient’s admission to a hospital precludes a finding of ostensible agency, unless the acts or omissions of the hospital override the impressions created by the preexisting relationship and create a reasonable belief that the doctor is an agent of the hospital. Hinkleman v Borgess Medical Ctr, 157 Mich App 314, 323; 403 NW2d 547 (1987); Strach v St John Hosp Corp, 160 Mich App 251, 263; 408 NW2d 441 (1987).
Here, it is undisputed that there was a preexisting relationship between plaintiff and Dr. Murphy before she underwent the surgery at Beaumont. Although plaintiff testified that she chose Beaumont because of a recommendation from her brother, she failed to present any evidence of actions or omissions on the part of Beaumont that would cause plaintiff to reasonably believe that Dr. Murphy was an agent of the hospital. Chapa, supra. Because plaintiff was unable to establish that Dr. Murphy was an ostensible agent of Beaumont, the doctor would be presumed to be an independent contractor, and Beaumont would not be vicariously liable for his negligence. Grewe v Mount Clemens Gen Hosp, 404 Mich 240, 250; 273 NW2d 429 (1978). To the extent that the trial court found that there was a genuine issue of material fact regarding Beaumont’s vicarious liability for Dr. Muiphy, the court erred.
However, there was evidence supporting an agency relationship between Dr. McIntosh and Mr. Mercandonte and Beaumont. Defendants presented no evidence of a preexisting relationship between plaintiff and Dr. McIntosh or Mr. Mercandonte, and plaintiff testified that she did not even know of the existence of these two medical professionals until after the surgery. Further, neither plaintiff’s nor defendants’ experts could determine with any degree of certainty whether the injury to plaintiff’s esophagus was caused by the actions or inactions of Dr. Muiphy, Dr. McIntosh, or Mr. Mercandonte. Plaintiff’s expert testified that, although Dr. Muiphy was ultimately responsible for what occurred during the surgery, any one of the three individuals participating in the surgery could have caused the esophageal laceration. Because there were genuine issues of material fact regarding whether Dr. McIntosh and Mr. Mercandonte were ostensible agents of Beaumont and whether one of them caused plaintiff’s injury, the trial court did not err in denying defendant Beaumont’s motion for summary disposition.
Further, even if the trial court erred in denying the motion for summary disposition, the error was rendered harmless when defendants failed to object to a jury instruction that specifically informed the jury that Dr. Murphy, Dr. McIntosh, and Mr. Mercandonte were agents of Beaumont. An error in a ruling or order is not a ground for setting aside a verdict or disturbing a judgment unless failure to do so would be inconsistent with substantial justice. MCR 2.613(A). By allowing the jury to be instructed regarding the agency of Dr. Murphy, defendants effectively waived their claim of error arising from the trial court’s denial of defendant Beaumont’s motion for summary disposition.
D. COLLATERAL SOURCE
Defendants next claim that the trial court erred in refusing to reduce the amount of economic damages awarded to plaintiff in the verdict by the amount of medical expenses paid by plaintiff’s health insurers. Defendants argue that plaintiff’s insurers paid more than $88,000 of her medical expenses, yet they claimed less than $30,000 in their liens against plaintiff’s judgment. According to defendants, the difference between the amounts paid by plaintiff’s insurers and the amounts asserted by the insurers in their liens constitutes a collateral source benefit under MCL 600.6303, and the trial court erred by failing to reduce the judgment pursuant to the requirements of the statute.
MCL 600.6303 provides, in part:
(1) In a personal injury action in which the plaintiff seeks to recover for the expense of medical care, rehabilitation services, loss of earnings, loss of earning capacity, or other economic loss, evidence to establish that the expense or loss was paid or is payable, in whole or in part, by a collateral source shall be admissible to the court in which the action was brought after a verdict for the plaintiff and before a judgment is entered on the verdict. Subject to subsection (5), if the court determines that all or part of the plaintiff’s expense or loss has been paid or is payable by a collateral source, the court shall reduce that portion of the judgment which represents damages paid or payable by a collateral source by an amount equal to the sum determined pursuant to subsection (2). This reduction shall not exceed the amount of the judgment for economic loss or that portion of the verdict which represents damages paid or payable by a collateral source.
(2) The court shall determine the amount of the plaintiff’s expense or loss which has been paid or is payable by a collateral source. . . .
* * *
(4) As used in this section, “collateral source” means benefits received or receivable from an insurance policy; benefits payable pursuant to a contract with a health care corporation, dental care corporation, or health maintenance organization; employee benefits; social security benefits; worker’s compensation benefits; or medicare benefits. . . . Collateral source does not include benefits paid or payable by a person, partnership, association, corporation, or other legal entity entitled by contract to a lien against the proceeds of a recovery by a plaintiff in a civil action for damages, if the contractual lien has been exercised pursuant to subsection (3).[ ] [Emphasis added.]
In this case, plaintiffs health care insurers, Blue Cross Blue Shield of Michigan (bcbsm) and Medicare made payments for plaintiffs medical care. Under MCL 600.6303(4), these payments would meet the initial definition of a collateral source benefit. However, BCBSM and Medicare also exercised their right to liens against plaintiffs verdict. According to documents filed in the lower court record, as of April 1999, Medicare was seeking approximately $20,000 in benefits paid and bcbsm was seeking approximately $1,700. MCL 600.6303(4) further states that “benefits paid or payable by a . . . corporation, or other legal entity entitled by contract to a lien against the proceeds of a recovery by a plaintiff in a civil action for damages, if the contractual lien has been exercised pursuant to subsection (3)” are not a collateral source. Here, as of April 1999, BCBSM and Medicare properly exercised their liens under the statute. The record is not clear whether they have further exercised their lien rights since then or whether they may do so in the future. Regardless of those considerations, the statute does not make any provision for a situation where a lien has been exercised, but for an amount less than the lienholder would be legally entitled to recover. Because the statute clearly states that benefits subject to an exercised lien do not qualify as a collateral source, and BCBSM and Medicare exercised their liens, health insurance benefits provided by BCBSM and Medicare to plaintiff do not constitute a collateral source under MCL 600.6303(4). Because we will not reverse a decision of a trial court where the right result is reached for the wrong reason, Zimmerman v Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997), we affirm the trial court’s decision.
E. MEDIATION SANCTIONS
In their final assertion of error, defendants argue that the trial court should have denied plaintiff’s request for supplemental mediation sanctions for attorney fees incurred during posttrial proceedings. Defendants’ sole argument is that the requested fees were unreasonable and excessive. According to defendants, the issues in the posttrial motions were not novel or difficult, or they involved arguments the court had addressed before the trial. Defendants do not challenge the court’s initial decision to award mediation sanctions, or whether the trial court had the discretion to award attorney fees incurred in post-trial proceedings.
Where the trial court determines that sanctions are appropriate, the actual costs to be charged are the costs taxable in any civil action plus a reasonable attorney fee. MCR 2.403(O)(6); Forest City Enterprises, Inc v Leemon Oil Co, 228 Mich App 57, 81; 577 NW2d 150 (1998). A reasonable attorney fee must be based on a reasonable hourly or daily rate for ser vices necessitated by the rejection of the evaluation. MCR 2.403(O)(6)(b); Rafferty v Markovitz, 461 Mich 265, 267; 602 NW2d 367 (1999).
In determining a reasonable hourly rate, the trial court should consider relevant criteria, including “the professional standing and experience of the attorney; the skill, time and labor involved; the amount in question and the results achieved; the difficulty of the case; the expenses incurred; and the nature and length of the professional relationship with the client.” Temple v Kelel Distributing Co, Inc, 183 Mich App 326, 333; 454 NW2d 610 (1990). Reasonable fees are not equivalent to actual fees charged. Cleary v Turning Point, 203 Mich App 208, 212; 512 NW2d 9 (1993). Taxable costs can include fees incurred post-trial. Joerger v Gordon Food Service, Inc, 224 Mich App 167, 178-179; 568 NW2d 365 (1997).
In this case, the trial court properly exercised its discretion in determining that plaintiff was entitled to 77.3 hours of attorney fees at $150 an hour. The trial court’s determination that $150 an hour was an appropriate rate was not unreasonable on its face, given the duration of the posttrial proceedings and the fact that plaintiff’s counsel was an experienced trial attorney. Further, the court’s decision to award 77.3 hours was not excessive when considering the number of posttrial motions requiring extensive briefing and hearings, and the fact that plaintiff originally sought more than 135 hours. The trial court’s decision was neither grossly violative of fact and logic nor did it show a perversity of will, a defiance of judgment, or the exercise of passion or bias. Elia v Hazen, 242 Mich App 374, 377; 619 NW2d 1 (2000); Michigan Basic Property Ins Ass’n v Hackert Furniture Dis tributing Co, Inc, 194 Mich App 230, 235; 486 NW2d 68 (1992).
m. PLAINTIFF’S CROSS-APPEAL
A. HOURLY RATE
In a related issue, plaintiff argues on cross-appeal that the trial court abused its discretion by deciding to reduce the hourly rate for the attorney fees she was awarded pursuant to MCR 2.403(0). Plaintiff sought $350 an hour for her attorney’s time; however, the trial court decided to reduce that rate to $150 an hour. According to plaintiff, her counsel’s experience, skill, and reputation, combined with the difficulty of the case, required a higher hourly rate. Plaintiff also claims that her counsel was granted a higher hourly rate in a successful suit several years earlier. Defendant counters that $150 an hour was a reasonable rate given the circumstances of the case. The trial court stated, simply: “The Court is convinced, based on Defendant’s arguments, Plaintiff’s arguments, and having witnessed the trial, as well as cases with similar scenarios to this one which have appeared before this Court, that $150/hour is reasonable.”
The determination of a reasonable hourly rate for attorney fees to be awarded the prevailing party as a mediation sanction is within the trial court’s discretion, Hackert, supra at 236, and we find no abuse of discretion in this case. Although the hourly rate was much lower than the rate sought by plaintiff, it was not so low as to be completely outside the range of hourly rates typically charged by attorneys with the level of experience of plaintiff’s counsel. Further, it is clear that the trial court properly considered the factors argued by both parties, as well as personal obser vations from trial in making its determination, and the factors the court considered were appropriate factors. Temple, supra.
B. CONSTITUTIONALITY OF MCL 600.1483
Plaintiff also raises several issues pertaining to the constitutionality of MCL 600.1483, which imposes a limit on the amount of noneconomic damages a personal injury plaintiff can recover. Statutes are presumed to be constitutional, and we have a duty to construe a statute as “constitutional unless its uncon stitutionality is clearly apparent.” McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999). The party challenging the constitutionality of a statute has the burden of proving the invalidity of the law. In re Trejo Minors, 462 Mich 341, 355; 612 NW2d 407 (2000). A statute is not unconstitutional merely because it is undesirable, unfair, or unjust. In re Juvenile Commitment Costs, 240 Mich App 420, 440; 613 NW2d 348 (2000).
1. TRIAL BY JURY
Plaintiff first claims that the limitation on noneconomic damages in MCL 600.1483 infringes her right to trial by jury guaranteed under the Michigan Constitution. Plaintiff argues that her right to a jury trial includes the right to have all the fact questions of her case, including the amount of damages, determined by a jury. According to plaintiff, the statutory cap on noneconomic damages, which is imposed by the court after the verdict, interferes with the jury’s determination of damages, thereby , violating her right to trial by jury.
The Michigan Constitution guarantees plaintiffs in civil suits the right to trial by jury. Const 1963, art 1, § 14. Because the right to a jury trial may be waived, our Supreme Court has interpreted this right as permissive, not absolute. McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 183; 405 NW2d 88 (1987). The right to a jury trial includes the right to have damages determined by a jury. Leary v Fisher, 248 Mich 574, 578; 227 NW 767 (1929). However, in certain circumstances, a trial court may reduce a jury verdict without violating the right to a jury determination of damages. Id. (trial court may order a new trial unless a plaintiff agrees to accept a reduced verdict); Heinz v Chicago Rd Investment Co, 216 Mich App 289, 299-300; 549 NW2d 47 (1996) (statute requiring that a jury damage award be reduced by the amount a plaintiff receives from a collateral source does not violate the right to a jury trial).
Although our Court has not addressed whether MCL 600.1483 violates the right to a jury trial, a panel recently addressed the constitutionality of an analogous provision of MCL 257.401(3). In Phillips v Mirac, Inc, 251 Mich App 586; 651 NW2d 437 (2002), the panel held that a statutory damages cap imposed by MCL 257.401(3) does not violate a plaintiffs right to a jury trial for two reasons. The panel first noted that the Legislature has the authority “to abolish or modify common-law and statutory rights and remedies.” Phillips, supra at 592. In addition, the panel concluded that MCL 257.401(3) “does not impinge on a jury’s right to decide cases” because the damages cap “in no way removes from the jury the determination of the facts and of the amount of damages . . . incurred.” Id. at 594. “In other words, [MCL 257.401(3)] only limits the legal consequences of the jury’s finding. Once the jury has reached its verdict, the trial judge merely enters a judgment on the verdict that is consistent with the law.” Id. (Citations omitted.)
The reasoning in Phillips is equally applicable to the facts of this case and the requirements of MCL 600.1483. Plaintiff was able to try this case in front of a jury that rendered a verdict awarding plaintiff damages. Because MCL 600.6304(5) prohibits the trial court from informing the jury of the noneconomic damages limitation of MCL 600.1483, the jury rendered its damages award on the basis of the facts of the case, unaware of the limitation of the statute. There is no allegation here that the jury was constrained in reaching its verdict because of the requirements of MCL 600.1483.
Rather, plaintiff appears to argue that art 1, § 14 guarantees her not only the right to have a jury determine her damages, but the unfettered right to recover precisely what the jury awarded. In essence, plaintiff is challenging the right of the Legislature to limit her remedy. As was noted in Phillips, supra at 592, the Legislature has the authority to change or abolish common-law tort claims, including the ability to limit remedies for such claims. Const 1963, art 3, § 7; Shavers v Attorney General, 402 Mich 554, 612, n 36; 267 NW2d 72 (1978); Donajkowski v Alpena Power Co, 460 Mich 243, 256, n 14; 596 NW2d 574 (1999). We “ ‘can discern no logical reason why a statutory limitation on a plaintiffs remedy is any different than other permissible limitations on the ability of plaintiffs to recover in tort actions.’ ” Phillips, supra at 593, quoting Kirkland v Blaine Co Medical Center, 134 Idaho 464, 468; 4 P3d 1115 (2000).
In sum, we hold that the noneconomic damages limitation of MCL 600.1483 is not a violation of plaintiff’s right to a jury trial because the Legislature has the authority to limit remedies in tort actions, and the limitations of this statute impede neither plaintiff’s ability to present her case to a jury nor the jury’s ability to determine the factual extent of plaintiff’s damages.
2. EQUAL PROTECTION
Plaintiff also argues that the provisions of MCL 600.1483 limiting her right to recover noneconomic damages violates her right to equal protection under the Michigan and United States Constitutions. Plain tiff argues that the damages limitation is based on a classification scheme that treats medical malpractice plaintiffs differently from others. We disagree.
Both the United States and Michigan Constitutions guarantee equal protection of the law. US Const, Am XIV; Const 1963, art 1, § 2; Frame v Nehls, 452 Mich 171, 183; 550 NW2d 739 (1996). To determine whether a legislative classification violates equal protection, the reviewing court applies one of three tests. Crego v Coleman, 463 Mich 248, 259; 615 NW2d 218 (2000). If the legislation creates an inherently suspect classification or affects a fundamental interest, the “strict scrutiny” test applies. Vargo v Sauer, 457 Mich 49, 60; 576 NW2d 656 (1998). Other classifications that are suspect but not inherently suspect are subject to the “substantial relationship” test. Neal v Oakwood Hosp Corp, 226 Mich App 701, 717; 575 NW2d 68 (1997). However, social and economic legislation is generally examined under the traditional “rational basis” test. Wysocki v Felt, 248 Mich App 346, 354; 639 NW2d 572 (2001).
Plaintiffs argument that strict scrutiny should be applied to this statute is without merit. As was recently noted in Phillips, supra, the classification schemes created by various tort reform legislation are social or economic legislation subject to the rational basis test. Id. at 596-597; see also Heinz, supra at 300; Stevenson v Reese, 239 Mich App 513, 517; 609 NW2d 195 (2000). In addition, we reject plaintiffs argument that distinguishing between medical malpractice plaintiffs and other personal injury plaintiffs creates a suspect classification. In Stevenson, we rejected a similar argument that distinguishing between insured and uninsured motorists under Michigan’s no-fault act created a suspect classification. Id. at 518. A class of personal injury plaintiffs cannot be compared to classes based on race, gender, or mental incapacity. Id. Therefore, the appropriate standard for analyzing plaintiffs equal protection claim is the rational basis test.
Under the rational basis test, legislation is presumed to be constitutional and will survive review if the classification scheme is rationally related to a legitimate governmental purpose. Phillips, supra; Vargo, supra. The burden of proof is on the person attacking the legislation to show that the classification is arbitrary. Yaldo v North Pointe Ins Co, 457 Mich 341, 349; 578 NW2d 274 (1998). “ ‘Rational-basis review does not test the wisdom, need or appropriateness of the legislation,’ ” and the challenged statute is not invalid for lack of mathematical precision in its classification or because it results in some inequity. Phillips, supra at 597, quoting Crego, supra at 260.
The statute at issue here is rationally related to a legitimate governmental purpose. The 1993 legislation that created the current finite limitation scheme was prompted by the Legislature’s concern over the effect of medical liability on the availability and affordability of health care in the state. See House Legislative Analysis, SB 270 and HB 4033, 4403, and 4404, April 20, 1993, pp 1-2. The purpose of the damages limitation was to control increases in health care costs by reducing the liability of medical care providers, thereby reducing malpractice insurance premiums, a large component of health care costs. Id. Controlling health care costs is a legitimate governmental purpose. By limiting at least one component of health care costs, the noneconomic damages limitation is rationally related to its intended purpose. Because the noneconomic damages cap of MCL 600.1483 is rationally related to a legitimate governmental purpose, the statute does not violate plaintiffs right to equal protection.
3. SEPARATION OF POWERS
In her final argument, plaintiff claims that MCL 600.1483 and MCL 600.6304 are unconstitutional because they constitute impermissible legislative intrusions on the rulemaking power of the judicial branch of state government. According to plaintiff, the rules interfere with the court’s duty to instruct the jury on the applicable law and with the court’s function as the forum for redressing grievances. Again, we disagree.
The separation of powers doctrine of the Michigan Constitution is derived from a provision in article 3 stating that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Const 1963, art 3, § 2. The constitution also grants the Supreme Court the authority to make rules that “establish, modify, amend and simplify the practice and procedure in all courts of this state.” Const 1963, art 6, § 5. However, that authority extends only to matters of practice and procedure, and the Legislature, not the courts, has the authority to enact substantive law. Const 1963, art 3, § 7; McDougall, supra at 27, 36.
Because the Legislature may change the substantive law without infringing the Supreme Court’s rulemaking authority, MCL 600.1483 and MCL 600.6304 violate the separation of powers doctrine only if the statutes are purely procedural. A statute is procedural when there is “ ‘no clear legislative policy reflecting considerations other than judicial dispatch of litigation.’ ” McDougall, supra at 30, quoting Kirby v Larson, 400 Mich 585, 598; 256 NW2d 400 (1977). In other words, if the statutes in question are grounded on policy considerations other than regulating the procedural operations of the judiciary, they do not impermissibly infringe the Supreme Court’s rulemaking authority.
In this case, it is apparent that the statutes in question reflect legislative policy considerations other than court practice and procedure. As stated above, these statutes are intended to address perceived crises in the health care system. The purpose of the statutes is to control health care costs by reducing medical malpractice liability. Because the statutes are substantive in nature, rather than procedural, they do not infringe the Supreme Court’s rulemaking authority.
We affirm.
Gage, J., concurred.
SJI2d 30.05 states:
If you find that the defendant had control over the [body of the plaintiff/instrumentality which caused the plaintiff’s injury], and that the plaintiff’s injury is of a kind which does not ordinarily occur without someone’s negligence, then you may infer that the defendant was negligent.
However, you should weigh all of the evidence in this case in determining whether the defendant was negligent and whether that negligence was a proximate cause of plaintiff’s injury. [Emphasis in original.]
It appears that plaintiffs expert was referring to the Joint Commission on Accreditation of Healthcare Organizations (jcaho). Jcaho is an independent, not-for-profit organization that sets standards for and accredits health care organizations. A hospital’s participation in jcaho is voluntary. It was undisputed that defendant Beaumont participated in JCAHO.
Review of the trial transcript contradicts this claim. There is no record of defendants’ objecting to Dr. Levey’s testimony pertaining to res ipsa loquitur.
Thus, this case is not one where “it is impossible to know if the jury rejected the other theories advanced” rather than the theory that should have been dismissed by directed verdict. See Tobin v Providence Hosp, 244 Mich App 626, 645; 624 NW2d 548 (2001). The present case is also distinguishable from Tobin because, in Tobin, the defendants raised a number of meritorious issues on appeal, thus satisfying the “inconsistent with substantial justice” test. MCR 2.613(A).
Subsection 3 requires that the plaintiff inform potential lienholders of the verdict within ten days after the verdict is rendered and that the party entitled to a lien exercise that right within twenty days after receiving such notice. The parties do not dispute that plaintiff’s insurers properly exercised their rights to a lien under MCL 600.6303(3).
The trial court concluded that defendants had the burden of proving that bcbsm or Medicare was entitled to more than they claimed in then-liens, and defendants did not present evidence supporting their assertion. We agree with the trial court that defendants carry the burden of proving this fact. MCL 600.6303(1) states that evidence of collateral source benefits is admissible in the court after a verdict for the plaintiff, suggesting that defendants were obligated to present evidence. The statute then requires the court to make a determination whether “all or part of plaintiffs expense or loss has been paid or is payable by a collateral source.” Id. Here, defendants’ evidence of a disparity between the amounts paid by the insurers and the amounts claimed by the insurers in their liens was sketchy, but it was not specifically contradicted by plaintiff. Therefore, defendants did meet their burden of producing evidence that plaintiff’s insurers paid more than the amounts sought in their liens. To the extent that the trial court determined that defendants failed to meet their burden of proving that there were collateral source benefits, this finding was clearly erroneous. MCR 2.613(C).
MCL 600.1483 states, in pertinent part:
(1) In an action for damages alleging medical malpractice by or against a person or party, the total amount of damages for noneconomic loss recoverable by all plaintiffs, resulting from the negligence of all defendants, shall not exceed $280,000.00 unless, as the result of the negligence of 1 or more of the defendants, 1 or more of the foEowing exceptions apply as determined by the court pursuant to section 6304, in which case damages for noneconomic loss shaE not exceed $500,000.00:
(a) The plaintiff is hemiplegic, paraplegic, or quadriplegic resulting in a total permanent functional loss of 1 or more limbs caused by 1 or more of the foEowing:
(i) Injury to the brain.
(n) Iqjury to the spinal cord.
(b) The plaintiff has permanently impaired cognitive capacity rendering him or her incapable of making independent, responsible life decisions and permanently incapable of independently performing the activities of normal, daüy Eving.
(c) There has been permanent loss of or damage to a reproductive organ resulting in the inabüity to procreate.
* * *
(4) The state treasurer shaE adjust the limitation on damages for noneconomic loss set forth in subsection (1) by an amount determined by the state treasurer at the end of each calendar year to reflect the cumulative annual percentage change in the consumer price index. . . .
It is undisputed in this case that none of the exceptions of subsections l(a)-(c) apply to plaintiff and that the pertinent limitation in this case, as adjusted according to subsection 4, was $320,600.
Const 1963, art 1, § 14 states, in part, that “[t]he right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.”
MCL 257.401(3) addresses the civil liability of persons engaged in the leasing of motor vehicles for injury caused by the negligent operation of the leased vehicle. The provision at issue in Phillips states, in pertinent part, that
[u]nless the lessor, or his or her agent, was negligent in the leasing of the motor vehicle, the lessor’s liability under this subsection is limited to $20,000.00 because of bodily injury to or death of 1 person in any 1 accident and $40,000.00 because of bodily injury to or death of 2 or more persons in any 1 accident.
MCL 600.6304(5) states, in pertinent part:
In an action alleging medical malpractice, the court shall reduce an award of damages in excess of 1 of the limitations set forth in section 1483 to the amount of the appropriate limitation set forth in section 1483. The jury shall not be advised by the court or by counsel for either party of the limitations set forth in section 1483 or any other provision of section 1483.
Contrary to the argument raised by our dissenting colleague, post 83-84, the malpractice cause of action at issue here is not provided or guaranteed by any constitutional provision. The constitution’s guarantee of a trial by jury does not constitute a sub silentio guarantee that the causes of action demanding factfinding by a jury will be inviolate. In other words, the constitution guarantees the process by which legal disputes are to be determined, not the causes of action that give rise to those disputes.
Plaintiff also claims that the statute violates her right to due process. However, she failed to brief this issue, focusing solely on her arguments regarding equal protection. A party may not merely announce her position and leave it to this Court to discover and rationalize the basis for her claims, Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998), nor may she give issues cursory treatment with little or no citation of supporting authority, Silver Creek Twp v Corso, 246 Mich App 94, 99; 631 NW2d 346 (2001). Furthermore, even if this issue were properly before us, we would find no violation. As noted in Phillips, supra at 598, the tests for whether legislation violates the Due Process and Equal Protection Clauses of the Michigan Constitution are essentially the same. Because MCL 600.1483 survives an equal protection challenge, it also survives plaintiff’s due process challenge.
Further, because we have determined that MCL 600.1483 does not violate plaintiffs right to a jury trial, plaintiffs argument that strict scrutiny applies because a fundamental right is affected fails as well. | [
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Gage, J.
Defendant Detroit Automobile Inter-Insurance Exchange (daiie), appeals as of right the lower court’s order granting plaintiff Bradley Dunn summary disposition in this no-fault automobile insurance benefits action. We reverse and remand.
The facts in this case are largely undisputed. Plaintiff was injured in an automobile accident in April 1997. Plaintiff’s primary health insurance provider, Rockwell International Corporation Employee Health Plan (Rockwell), provided personal injury benefits, in the amount of $96,152.65, to cover plaintiffs medical expenses. At the time of the accident, plaintiff also had a no-fault insurance policy with defendant, which provided for the coordination of benefits (cob). Specifically, the COB clause provided:
If the Declaration Certificate shows “coordinated medical benefits,” it is agreed that all other medical insurance or health care benefit plans available to you or a resident relative are your primary source of protection. We will pay benefits for all reasonable charges incurred for reasonably necessary products, services (including chiropractic services) and accommodations for the care, recovery or rehabilitation of you or a resident relative, except to the extent that (1) benefits are paid or payable under your primary protection; ....
In October 1997, plaintiff initiated a third-party lawsuit for noneconomic damages resulting from the accident. The parties settled this suit for an undisclosed amount. Plaintiffs policy with Rockwell contained a provision that required plaintiff to reimburse Rockwell from any third-party recovery for any sums expended on plaintiffs behalf for the accident. Therefore, when plaintiff failed to reimburse Rockwell, Rockwell initiated suit in federal court (Rockwell v DAIIE, 1999 US Dist LEXIS 20284 [WD Mich, 1999]). The district court concluded that Rockwell was entitled to reimbursement from plaintiff. Rockwell, supra. In December 1999, plaintiff filed the instant action seeking reimbursement from daiie for the $96,152.65 that plaintiff paid to Rockwell.
In April 2000, plaintiff filed a motion for summary disposition, arguing that defendant was contractually bound for any and all benefits that were not paid or were not payable from any other source. Plaintiff argued that the requirement that he reimburse Rockwell for the $96,152.65 effectively forced him to pay his own medical expenses in contradiction to the no-fault act. Plaintiff also argued that under stare decisis, the trial court was bound by this Court’s decision in Yerkovich v AAA, 231 Mich App 54; 585 NW2d 318 (1998), rev’d on other grounds 461 Mich 732 (2000), which held that a no-fault insurer was required to reimburse an insured for sums paid by the insured to an erisa plan.
In response, relying on the dissent in Yerkovich, defendant argued that the plain language of dahe’s coordination of benefits provision provided that plaintiff’s voluntary election to have Rockwell listed as his primary insurer entitled him to receive a reduced premium, and thus, plaintiff should not be allowed to reap the benefits of a reduced premium, while obligating defendant to reimburse plaintiff for sums paid to his primary insurer. Defendant argued that while the no-fault act was concerned with the guaranteed recovery by a motor vehicle accident victim of economic losses, it was not “so concerned” about recovering in tort for noneconomic losses because that is the trade-off of the no-fault system. Further, defendant argued that plaintiff did not lose any benefits under the no-fault policy; rather, plaintiff only lost a portion of his third-party tort recovery, which would not have occurred had there been no tort recovery. Finally, defendant argued that plaintiff’s reliance on Yerkovich was misplaced because the Supreme Court reversed Yerkovich on other grounds, and thus, Yerkovich had no precedential value.
The trial court held that defendant was required to pay plaintiff $96,152.65, the amount plaintiff reimbursed to Rockwell. The trial court concluded that when the Supreme Court reversed Yerkovich, it never addressed the no-fault insurer’s obligation to reimburse an insured for sums paid to an erisa fund from a third-party tort recovery, and noted that the Supreme Court specifically declined to address the issue. In ruling in favor of plaintiff, the trial court noted that it agreed with Judge, now Justice, Markman’s dissent because the effect of the majority’s opinion in Yerkovich subjected defendant to a risk that it did not assume because plaintiff’s choice to pursue coordinated benefits in exchange for a discounted premium. However, the trial court found that it was bound by this Court’s decision in Yerkovich.
Because the facts in this case are largely undisputed, we are faced with two issues: (1) whether the trial court was bound to follow this Court’s majority opinion in Yerkovich, and (2) if the trial court was not bound by the decision, whether Yerkovich was correctly decided — i.e., whether defendant must refund to plaintiff the reimbursement to plaintiff’s health insurance provider.
i
MCR 7.215(I)(1) (formerly MCR 7.215[H][1]), provides that this Court must follow the rale of law established by a prior published decision of the Court issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court or a special conflict panel of this Court. The inteipretation of a court rule, like a matter of statutory interpretation, is a question of law that this Court reviews de novo. Cam Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002).
This Court recently interpreted the court rule in Taylor v Kurapati, 236 Mich App 315; 600 NW2d 670 (1999). In Taylor, this Court held that where a decision of this Court is reversed, even if on other grounds that were decisive of the entire case, this Court is not required to follow the decision. For an understanding of the application of MCR 7.215(I)(1) to Taylor, we will briefly outline the facts of the case.
In Taylor, this Court addressed whether, absent legislative action, the tort of wrongful birth had a rightful place in Michigan jurisprudence. Taylor, supra at 319. In a detailed opinion, this Court addressed the question whether it was proper to allow a plaintiff to receive, as an element of damages, the costs of raising a child in a wrongful birth action. Id. at 325. In addressing the issue, this Court discussed the birth-related torts of wrongful conception and wrongful life. This Court noted that the torts, of wrongful conception and wrongful life were closely similar to the birth-related tort of wrongful birth. Id. at 342. Accordingly, this Court addressed two post-November 1, 1990, Court of Appeals decisions that involved wrongful birth claims—Rouse v Wesley, 196 Mich App 624, 627; 494 NW2d 7 (1992), and Blair v Hutzel Hosp, 217 Mich App 502; 552 NW2d 507 (1996), rev’d on other grounds 456 Mich 877 (1997). In discussing these decisions, this Court recognized that under MCR 7.215(1), “unless one can distinguish these two cases or unless they have been later reversed or modified, [this Court] must apply [Rouse and Blair].” With regard to the present issue, this Court found that it was not bound by the Blair decision because the Supreme Court reversed Blair entirely, and, thus, this Court was free to address the viability of wrongful birth claims. Specifically with regard to this issue, this Court stated, “[b]ecause the Supreme Court entirely reversed the Blair panel’s decision, we conclude that under the plain language of MCR 7.215(H)(1), nothing in the Blair panel’s opinion is binding precedent under that subrule. We observe that MCR 7.215(H)(1) establishes a bright-line test and that such a test cannot be maintained if every opinion is to be parsed into its smallest components.” Taylor, supra at 346, n 42.
Under Taylor, a prior Court of Appeals decision that has been reversed on other grounds has no precedential value. See also People v Crear, 242 Mich App 158, 165; 618 NW2d 91 (2000). However, our Supreme Court has also addressed this issue. In Horace v City of Pontiac, 456 Mich 744, 754-755; 575 NW2d 762 (1998), our Supreme Court held that where the Supreme Court reverses a Court of Appeals decision on one issue and does not specifically address a second issue in the case, no rule of law remains from the Court of Appeals decision.
Horace involved a slip and fall action. On appeal, this Court remanded the case to the trial court for reconsideration in light of the recent decision in Maurer v Oakland Co Parks & Recreation Dep’t (On Remand), 201 Mich App 223; 506 NW2d 261 (1993), rev’d 449 Mich 606; 537 NW2d 185 (1995). However, the Supreme Court granted leave to appeal because fourteen days before this Court’s decision, the Supreme Court had reversed Maurer. In Maurer, this Court held that the plaintiff’s claim was not barred by the open and obvious danger doctrine and that the claim came within the public building exception. Horace, supra at 754. The Supreme Court reversed, finding that the claim was barred by the open and obvious danger doctrine, and thus, it did not specifically address the governmental immunity issue. Id. The Horace Court found that under the circumstances, no rule of law remained from the Court of Appeals Maurer decision because any statement made by the Court of Appeals regarding the building exception became no more than dictum once the Supreme Court reversed under the open and obvious danger doctrine. Id. The Court concluded that whether the area where the fall occurred came within the building exception became irrelevant once the Court found the claim barred by the open and obvious danger doctrine. Id. at 755.
We note this Court’s decision in Michigan Millers Mut Ins Co v Bronson Plating Co, 197 Mich App 482, 490-491; 496 NW2d 373 (1992). In that case, this Court rejected, while giving little analysis, an argument made by the defendant that the trial court erred when it followed a Court of Appeals decision that had been reversed on other grounds. In rejecting the argument that the decision lost its precedential value, this Court noted that when the Supreme Court reversed, it did not address the merits of the Court of Appeals holding. This Corut reasoned that, “ ‘Lj]ust as the discovery of one rotten apple in a bushel is no reason to throw out the bushel, one overruled proposition in a case is no reason to ignore all the other holdings appearing in that decision.’ ” Id. at 490-491, quoting Rouch v Enquirer & News of Battle Creek, Michigan, 137 Mich App 39, 54, n 10; 357 NW2d 794 (1984).
In Michigan Millers, this Court specifically found that the Supreme Court had expressly declined to review the issue that was before the Court of Appeals and reversed the decision on other grounds. This Court found that because the Supreme Court explicitly declined to review the issue that had been before the Court of Appeals, the entire decision was not without precedential value. Id. at 490. However, we note that this Court alternatively held that even if the reversed decision was without precedential value, because the Supreme Court had not addressed the exact issue in any other case, this Court could find the decision persuasive. Thus, this Court found the decision persuasive and held that it would follow the decision. Id. at 491.
In Yerkovich, an injured plaintiff brought suit against her employer ERISA plan (fund) and her auto insurance company, with whom the plaintiff had a no-fault insurance policy, for payment of medical expenses for iryuries the plaintiff’s daughter sustained in an automobile accident. Yerkovich, supra 231 Mich App at 58. The administrator of the self-funded employer ERISA plan paid the medical expenses after the plaintiff executed a “subrogation and assignment” form, which was required by the policy’s subrogation clause. Id. The plaintiff also received a settlement in a third-party tort action. Id. Both the fund and the plaintiff filed motions for summary disposition. The trial court granted the motions for summary disposition and ordered the no-fault insurance provider to repay the plaintiff any sums that she paid to the fund. Id. at 59. On appeal, this Court reviewed the language of the subrogation and assignment agreement signed by the plaintiff and concluded that the plain language of the agreement required the plaintiff to reimburse the fund. Id. at 61-62. Additionally, this Court concluded that the plaintiff was entitled to reimbursement from the no-fault insurance provider because federal preemption barred the application of the no-fault act, MCL 500.3116, and the plaintiff was entitled to rely on her no-fault carrier to make her whole. Id. at 67-68.
On appeal to the Supreme Court, two issues were presented: “(1) whether the subrogation agreement between defendant fund and plaintiff Yerkovich entitled the fund to reimbursement from plaintiff for medical expenses and, if so, (2) whether plaintiffs no-fault insurer, defendant AAA, must refund plaintiff for that reimbursement.” Yerkovich v AAA, 461 Mich 732, 734; 610 NW2d 542 (2000). The Court undertook a complete analysis of the subrogation clause contained in the ERISA policy between the plaintiff and the fund and found that under the clause, the plaintiff was not required to reimburse the fund. Id. at 740. The Court concluded that whether the second agreement signed by the plaintiff pursuant to the policy entitled the fund to reimbursement was irrelevant because the second agreement was void for lack of consideration and the fund was under a preexisting duty to pay for the plaintiffs medical expenses. Id. The Supreme Court stated that because it held that the fund was not entitled to reimbursement, “we do not reach the second question.” Id.
Taylor and Horace govern the effect of Yerkovich on the case before us. The Supreme Court in Yerkovich was faced with issues that were also before the Court of Appeals. The Court of Appeals found that on the basis of the subrogation agreement signed by the plaintiff, the fund was entitled to reimbursement from the plaintiff and decided that the defendant AAA had to reimburse the plaintiff. However, the Supreme Court held that, contrary to the rulings of both the trial court and the Court of Appeals, the specific language of the ERISA policy was such that plaintiff was not required to reimburse the ERISA plan from the plaintiff’s tort recovery, and the subsequent, signed agreement was void. This, in effect, mooted any further question regarding whether the plaintiff’s no-fault insurer would, in turn, be liable for the reimbursement. Therefore, in reversing on a dispositive issue, the Supreme Court entirely reversed the Court of Appeals and rendered any discussion by the Court of Appeals to be without precedential value. Thus, we find that because the Supreme Court completely reversed this Court’s decision in Yerkovich, the decision in Yerkovich is not precedentially binding. The finding that the first issue in the case was controlling rendered this Court’s discussion of the second issue irrelevant. See Horace, supra. Therefore, we conclude that the trial court erred in finding that it was bound by this Court’s majority decision in Yerkovich.
n
Although we find that Yerkovich is not precedentially binding, it can be persuasive authority. In its opinion on the motion for summary disposition in this case, the trial court noted that it agreed with the dis senting Court of Appeals opinion in Yerkovich that the ruling by the majority subjected the defendant to a risk it did not assume.
In this Court’s decision in Yerkovich, which both parties agree occurred under similar circumstances to the instant case, the majority concluded that the plaintiff should be reimbursed by her no-fault insurance carrier. We respectfully disagree with that conclusion. Plaintiff elected to purchase coordinated no-fault benefits in exchange for a reduced premium; therefore, plaintiff is not entitled to reimbursement from the insurer.
A no-fault insurer cannot seek reimbursement for medical benefits paid from an insured’s third-party tort recovery except under the limited circumstances set forth in § 3116 of the no-fault act, MCL 500.31116. Great Lakes American Life Ins Co v Citizens Ins Co, 191 Mich App 589, 596-597; 479 NW2d 20 (1991). Subsection 3116(4) expressly bars “subtraction or reimbursement” from a recovery “realized for non-economic loss.” Id.
In Sibley v DAIIE, 431 Mich 164; 427 NW2d 528 (1988), our Supreme Court found that worker’s compensation benefits received by a plaintiff, which were later required to be reimbursed from the proceeds of a tort settlement, were not government-provided benefits subject to coordination under subsection 3109(1) of the no-fault act, MCL 500.3109(1). In Sibley, supra at 170, the Court explained:
We axe pexsuaded that when the automobile no-fault act speaks of benefits “pxovided,” it means benefits permanently provided. To the extent that benefits' paid are retrieved by the alternative source provider out of the worker’s tort recovery, they at that point cease to be “bene fits provided” within the meaning of § 3109(1) relieving the automobile no-fault insurer of liability to the extent of “benefits provided” by alternative sources pursuant to state or federal law.
Because plaintiff was ultimately required to refund the FECA benefits he had received, he was left without that compensation for his medical services and lost wages. Therefore, his only recourse for economic damages was to seek payment from his no-fault carrier. Because, in fact, only single recovery was available to plaintiff, there was no duplicative recovery.
This Court’s majority in Yerkovich, relying in part on Sibley, held that where an ERISA-type plan is entitled to reimbursement of medical benefits paid from a tort settlement, the insured’s no-fault insurer is responsible for the payment of those medical benefits. Citing Great Lakes, supra, the Court found that it was “appropriate to use the approach set forth in Sibley and allow the plaintiff to look to her no-fault carrier to make her whole.” Yerkovich, supra at 68.
As the parties note, the situation presented in the present case is very similar to that in Yerkovich. Here, we are faced with a plaintiff who purchased coordinated no-fault insurance benefits in exchange for a reduced premium. His primary health insurance plan required reimbursement for any third-party recovery. Plaintiff pocketed savings by electing to coordinate benefits, but now seeks to hold his no-fault insurer to providing coverage exactly equivalent to what would have been appropriate had it not received a reduced premium. We find it illogical to hold the insurer liable for a risk it did not assume; therefore, we adopt Judge Markman’s dissent in Yerkovich stating:
Section 3109a of the Insurance Code, MCL 500.3109a; MSA 24.13109(1), provides:
“An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.”
Before the advent of statutory no-fault insurance in Michigan, persons injured in motor vehicle accidents bore the resulting financial burdens if negligent or contributorily negligent, or if no one else involved in the accident was negligent. By mandating first-party insurance without regard to fault, the no-fault system changed all of this, guaranteeing that injured motorists, passengers, and pedestrians alike will have their medical costs and some or all of their wage losses and incidental expenses covered by required insurance or through the assigned claims facility, MCL 500.3172 et seq.; MSA 24.13172 et seq.
Within this scheme of mandatory first-party insurance, the Legislature, in order to help make the required insurance affordable, added § 3109a within two years of enacting the original no-fault act. This section requires no-fault insurers to offer their insureds the option of coordinated benefits at a reduced premium. O’Donnell v State Farm Mut Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979), app dis 444 US 803; 100 S Ct 22; 62 L Ed 2d 16 (1979); Smith v Physicians Health Plan, Inc, 444 Mich 743; 514 NW2d 150 (1994). Fundamental to this statutory amendment is that insurers have no choice — they must offer such an option to their insureds. The insureds then have the right to elect coordinated medical benefits in exchange for a reduced no-fault insurance premium, or to reject that opportunity for such savings and, in the event of subsequent injury, to recoup a double recovery that is not a “windfall.” Tousignant v Allstate Ins Co, 444 Mich 301; 506 NW2d 844 (1993).
Perhaps the most fundamental rule of Michigan insurance jurisprudence is that an insurer can never be held liable for a risk it did not assume and for which it did not charge or receive any premium. Ruddock v Detroit Life Ins Co, 209 Mich 638, 653; 117 NW 242 (1920); Lee v Evergreen Regency Cooperative, 151 Mich App 281, 285-286; 390 NW2d 183 (1986); South Macomb Disposal Auth v American Ins Co (On Remand), 225 Mich App 635, 695-696; 572 NW2d 686 (1997)....
In this case, plaintiff pocketed the savings generated by electing to coordinate her employer-sponsored health and accident benefits with her no-fault insurance, thereby reducing her no-fault insurance premiums. Yet although she reduced her premiums in this way, she appears to have given up nothing in reality because the liability of the no-fault insurer is apparently unaffected by the reduced premiums under the analysis of the majority. The insurer here is held to have provided coverage exactly equivalent to what would have been appropriate had it not received a reduced premium. . . .
* * *
... In Sibley [supra] the issue was whether benefits initially tendered to the insured under the Federal Employees’ Compensation Act, 5 USC 8101 et seq., but recouped by the federal government pursuant to its statutory right of subrogation, 5 USC 8132, from the insured’s third-party tort claim, should nonetheless be treated as “[b]enefits provided or required to be provided under the laws of. .. the federal government” for purposes of MCL 500.3109(1); MSA 24.13109(1). The Supreme Court of Michigan answered that question in the negative, and correctly so, in my judgment. What distinguishes Sibley from the present case, however, is that, in Sibley, the insured did not arrange a lower premium on the basis of such federal benefits; rather, insureds generally receive the benefit of lower premiums because the no-fault statute requires that state and federal benefits of that type be deducted from no-fault benefits. Insurers thus calculate actuarially the extent to which the general population of insureds will be able to avail itself of such benefits, and premiums are determined accordingly, without regard to individual cases. Thus, in Sibley, the Court merely announced to the actuaries that they should consider only benefits to be paid and retained under such federal and state programs as being within the offset allowed.
Here, in contrast, the ERlSA-plan benefits are not provided “under the laws of any state or the federal government,” that is, from the public treasury, but rather by virtue of funding furnished by plaintiff’s employer. . . .
This is not a dispute over priority as between the erisa plan and the no-fault insurer; as has been acknowledged, in that situation the erisa plan would prevail, assuming a suitable coordination of benefits clause in the plan’s charter. [Auto Club Ins Ass’n v Frederick & Herrud, Inc (After Remand), 443 Mich 358, 387; 505 NW2d 820 (1993).] Nor is this a case in which a non-ERISA health insurer seeks to enforce subrogation rights against a tort recovery; that is precluded by § 3116 of the Insurance Code, MCL 500.3116; MSA 24.13116. Great Lakes American Life Ins Co [supra]. This is the only holding in Great Lakes; there is nothing therein, even dictum, that addresses the present factual situation or suggests a resolution of the issue here presented. This is a suit by an insured who has invoked her statutory right to a reduced premium in exchange for coordinated benefits, and who opted to use as her primary medical insurance an erisa plan that reserved and invoked subrogation rights against an eventual tort recovery. No one forced her to make that election, but now that it has come time to accept the consequences of that election, there is no reason in law or logic to relieve her of the concomitant burdens that attend the reduced premium benefits already enjoyed. [Yerkovich, supra at 68-75.]
In adopting the above, we adhere to Michigan’s most fundamental insurance jurisprudence rule — an insurer can never be held liable for a risk it did not assume and for which it did not charge or receive a premium. In this case, plaintiff pocketed savings by electing to coordinate the employer-sponsored health benefits with the no-fault insurance. Although he reduced his premiums, he would have given up nothing if his no-fault insurer were forced to reimburse him. Accordingly, we find defendant is not required to reimburse plaintiff for the amount he paid to Rockwell; therefore, defendant is entitled to summary disposition.
Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Bandstra, J., concurred.
Rockwell is a self-funded group health plan organized and governed by the provisions of the Employee Retirement Income Security Act of 1974 (ERISA), 29 USC 1002(1) et seq. Plaintiff was a covered dependent under the policy.
The parties do not dispute this fact. | [
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R. B. Burns, J.
Defendants were convicted of carrying concealed weapons. MCLA 750.227; MSA 28.424. They appeal and we affirm.
State police stopped an automobile in which defendants were driver and passenger for a defective light on the rear registration plate. As the police officers approached the vehicle, they observed one of the defendants bend over and apparently put something under the front seat. When one of the officers arrived at the passenger side of the vehicle, he noticed a large hunting knife under the car’s front seat. Consequently, the passenger was ordered out of the car, and his person was searched. The search produced a .45-caliber automatic weapon’s clip. On the basis of this discovery, the entire automobile was searched, and two pistols were found. Defendants did not have permits to carry the pistols.
Defendants raise several issues on appeal. The first is that the concealed weapons statute is unconstitutionally overbroad; that the statute includes innocent behavior as well as criminal behavior within its coverage. We agree with defendants that a scienter element must be imported into the statute to preserve its constitutional viability. We find that Michigan law has required such guilty knowledge since 1955, People v Petro, 342 Mich 299; 70 NW2d 69 (1955), People v Jerome Smith, 21 Mich App 717; 176 NW2d 430 (1970), and People v Sims, 23 Mich App 194; 178 NW2d 667 (1970). Furthermore, the trial judge instructed the jury that:
"In this offense, the prosecution charges, as I have stated, that these weapons come within the class of weapons specified in the statute and the defendants knowingly carried them concealed on or about their person in a motor vehicle operated or occupied by them.” (Emphasis added.)
The jury was thus informed of the scienter requirement. Defendants contend that this language insufficiently emphasizes the scienter requirement. Defense counsel made no such objection at trial. We will not entertain allegations of erroneous jury instructions where no timely objection was interposed before the jury retired to consider its verdict, absent a showing of manifest injustice. People v Bradley, 54 Mich App 89; 220 NW2d 305 (1974). While it may be the better practice to put greater emphasis on the scienter element, we cannot view the instruction given as so palpably inadequate that it perpetrated a manifest injustice.
Defendants challenge the legality of the search. They claim it is an example of the sort of pretext-arrests and bootstrapping searches prohibited by Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971), and People v Gonzales, 356 Mich 247; 97 NW2d 16 (1959). We disagree. Defendants’ automobile lights did not illuminate the rear license plate in violation of MCLA 257.686; MSA 9.2386. As indicated in People v Johnson, 48 Mich App 50; 209 NW2d 868 (1973), that statute plus MCLA 257.683; MSA 9.2383 gave the police authority to stop defendants’ car. Once the police had made a legal stop and had seen the passenger’s furtive gesture, they had a right to conduct a limited self-protective search. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Once the ammunition clip was found on the person of one of the defendants, the knowledge of its presence combined with the knowledge of the presence of the hunting knife amply provided the officers with probable cause to believe other weapons were being transported in the vehicle in violation of MCLA 750.227; MSA 28.424.
We cannot hold the search of the vehicle unrea sonable or illegal. People v Moore, 391 Mich 426; 216 NW2d 770 (1974).
The defendants’ next contention is that the prosecutor impermissibly commented upon their right to refuse to testify. In his closing argument the prosecutor made the following statement:
"There hasn’t been any evidence presented to you which contradicts the testimony given by the two state troopers that these two weapons * * * were found in the defendants’ car and that the defendants were in the car immediately prior to the weapons being found.
"Based upon all the evidence presented by the people, taking into consideration no evidence has been presented to contradict this, I ask you to bring in a verdict of guilty.”
Defense counsel responded in its closing argument that defendants did not have to testify on their own behalf and that it was improper for the prosecutor to intimate that they did. The prosecutor then made the following statement during rebuttal.
"The only evidence that you can consider when you retire to deliberate is the evidence that has been presented to you from the witness chair up there.
"As I have said before, there has been no evidence to contradict the evidence presented by these two police officers.
"I certainly don’t mean to give the impression that the defendants have to testify * * * . The judge is going to instruct you that * * * they have the right not to say a word.
* * *
"Again, no evidence has been introduced to contradict what we have put in * * * and I am not referring to the defendants because they don’t have to take the stand.”
Criminal defendants have a right to remain silent at trial, and no references or comments are to be made that subvert that right. MCLA 600.2159; MSA 27A.2159. The prosecutor’s initial statement that the state’s evidence was uncontradicted was permissible and did not affect defendants’ right to silence. People v Martin, 44 Mich App 254; 205 NW2d 96 (1972), and People v Peace, 48 Mich App 79; 210 NW2d 116 (1973). It was defense counsel, himself, who originally brought this subject to the jury’s attention and invited the prosecutor’s discussion. It would have been wiser for the prosecutor to have ignored the topic, but it is obvious that the prosecutor’s comments are not the kind that clearly and irreparably undermine the defendants’ rights and are, as a consequence, proscribed in People v Cahill, 147 Mich 201; 110 NW 520 (1907), or People v Wessel, 256 Mich 72; 239 NW 259 (1931). Defendants may have been harmed, but Michigan law holds that impermissible comments, like those at issue here, can be cured by an appropriate instruction. People v Alexander, 26 Mich App 321; 182 NW2d 1 (1970). Such an instruction was given in this case.
We have reviewed defendants’ other claims of error and find them without merit.
Affirmed.
All concurred. | [
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McGregor, P. J.
Plaintiffs are before this . Court on leave granted, to appeal a decision of the circuit court which ordered plaintiffs, inter alia, to construct a bridge over Traver Creek and taxed expenses against them for defendants’ court and attorney fees. GCR 1963, 313.3.
Prior to 1963, the defendants owned two parcels of land within the city limits of Ann Arbor. The northerly boundary of both parcels is Plymouth Road; the southerly boundary is Jones Drive. Both parcels are traversed by Traver Creek, a natural watercourse, which flows through the property from the northeast to the southwest. The land is a valley, with the stream at the center. The grade from the stream to Plymouth Road is fairly shallow, while the grade from the stream to Jones Drive is steep.
The defendants operate a water bottling plant on the westerly parcel of the property. In order to provide access to the plant to themselves and their customers, defendants built a 12-foot wide gravel surface road which ran in a north-south direction between Jones Road on the south and Plymouth Road on the north. The waters of Traver Creek were carried under this roadway through two 30-inch concrete culverts.
In 1963, defendants listed the property for sale with a real estate broker, who produced Congress Management Company, consisting of Mr. Rogers and Mr. Ross, as a prospective purchaser. During the negotiations, the purchasers wanted to buy the roadway but defendants refused and offered a joint easement instead. On December 11, 1963, the preliminary discussions culminated in a preliminary purchase agreement between defendants and Ross and Rogers as purchasers. The following language was included in the agreement:
"It is agreed that the road on the south side of the above property running from Plymouth Road to Jones Drive is to be: (?) a joint drive between the purchaser and the seller, twenty-four feet wide, initial paved surface and culvert tile to be paid by the purchaser and all subsequent maintenance to be paid equally by the purchaser and seller as joint users; addition of 12 feet to be on north side of present road.” (Emphasis added.)
The purchase agreement of December 11, 1963 was to be consummated by February 14, 1964, by the execution of a short-term land contract running to January 1, 1965, on which date the entire purchase price was to be paid. A few days after the execution of the purchase agreement between defendants and Congress Management Company, the plaintiffs began negotiations with Congress Management for the purchase of the land. The plaintiffs had no meetings with defendants at this time and all discussions concerning the land were held with Mr. Rogers, of Congress Management, who represented himself as the land contract purchaser, as evidenced by the purchase agreement of December 11. On January 22, 1964, a preliminary agreement was entered into between plaintiffs and Rogers and Ross, to purchase the same land that was then under negotiation of sale between defendants and Rogers and Ross.
On February 14, 1964, a land contract and deed were executed between the defendants and Rogers and Ross. The granting of the easement was for mally accomplished as a part of the legal description, as follows:
"Granting a right-of-way, 24 feet wide, for use in common with others over the following described land:”
At the end of the legal description in this land contract, the following appears:
"Purchaser agrees to improve said right of way as provided in paragraph 'L’ and parties hereto agree to maintain said right of way as provided in paragraph 'L’ hereof.”
The conditions relating to the use and improvement of the right-of-way were included in paragraph "L” of the land contract, which provided:
"Purchaser agrees to perform grading and initial paving of the surface of said right-of-way and in addition thereto to extend the present culvert completely across said right-of-way at purchaser's expense. Subsequent maintenance of said right-of-way to be paid equally by seller and purchaser thereof.” (Emphasis added.)
The warranty deed prepared the same day by defendants’ attorneys contained no reference to the paragraph in the land contract concerning paving and culverts, and no covenant as to the improvement or maintenance of the right-of-way or culvert was contained in the deed.
On March 25, 1964, the land contract and deed were executed between plaintiffs and Rogers and Ross. On the same day, Rogers and Ross assigned their interests in the land contract entered into with the defendants to the plaintiffs. The agreements and deeds between Rogers and the plaintiffs contained no covenant or promise with reference to the easement, but merely stated the existence of a 24-foot-wide right-of-way for use in common with others over the described land.
On March 27, 1964, an escrow agreement was signed pursuant to which the deeds from defendants to Ross and Rogers, and from Ross and Rogers to plaintiffs, were placed in escrow, along with the Ross and Rogers-plaintiffs contract, and an assignment of the defendants-Ross and Rogers contract.
At some time prior to 1963, the land involved had been zoned for multiple dwelling apartments and was acquired by the plaintiffs for that purpose. After the plaintiffs acquired the property they retained architects and engineers to prepare land plans and perform the engineering preparatory to the construction of the apartments. During the construction of the apartments, plaintiffs paved and widened the roadway from 12 to 24 feet; plaintiffs also extended the culverts completely across the right-of-way. Further, pursuant to the recommendations of the engineers who designed the apartment project, one of the 30-inch culverts was replaced with a 78-inch culvert.
Between 1964 and 1968, plaintiffs assumed the entire maintenance of the road and made all necessary repairs; no contributions to maintenance or repairs was ever made by the defendants.
During the period from 1964 to 1968, several apartment complexes were built, the city of Ann Arbor built a golf course on drained swamp land which had normally retained storm waters, the University of Michigan extended its north campus, and a shopping center was completed on adjacent lands. All of this construction was upstream from the plaintiffs’-defendants properties and drastically increased the amount of water normally emptied into and carried by Traver Creek.
In the summer of 1968, the apartment complex owned by the plaintiffs was subjected to a devastating flash flood as the result of increased runoff water from the Ann Arbor-drained swampland, the U of M north campus, and the upstream shopping center. The two culverts which had been installed by plaintiffs were partially blocked with debris from the upstream lands and the sanitary sewer was inundated and flooded onto plaintiffs’ land. Water, debris and sewage rose to a level of several feet in the lower apartments in plaintiffs’ apartment project. Repair costs amounted to $80,-000. Late in 1968, the property was again threatened by floodwaters, and again in 1969, when Traver Creek flooded to within a few feet of the apartment buildings.
The Ann Arbor building department contacted plaintiffs and informed them that the culverts under the roadway were inadequate for the amount of water then being carried by Traver Creek. The city indicated that, if plaintiffs did not remove the culverts, it would take action to do so. As a result of this warning, a meeting was held at which the city officials, plaintiffs and defendants were present. During this meeting several alternatives were considered, including the dedication of the entire right-of-way to the city, the request of the city to install culverts or a bridge, creation of a special assessment district by the county, and the contribution by both parties to the cost of a bridge over the stream. The testimony is in conflict concerning what agreement, if any, was reached as a result of this meeting.
In the spring of 1969, the culvert was removed by plaintiffs, thus severing the roadway and preventing both plaintiffs and defendants from reaching Plymouth Road from the Jones Drive side of the stream. Defendants demanded that a bridge be built; plaintiffs requested contributions for the cost of such a bridge from defendants; this request was refused. No agreement was ever reached between plaintiffs and defendants as to the building of a bridge or the sharing of its cost.
After the culvert was removed, Jones Drive was the only entrance to defendants’ property. Defendant testified that because of the sharp incline from Jones Drive to his plant, trucks entering and leaving could not negotiate the road from this entrance. Defendants’ testimony consisted of the fact that bottles on various trucks were broken and that there was damage to some trucks making deliveries to the defendants’ plant. The loss of these items totalled $1,532.38.
Following the severance of the defendants’ access to Plymouth Road the defendants thereupon blocked the entrance from the right-of-way to the plaintiffs’ apartment complex, thus denying their tenants and service vehicles access to the property via Jones Drive. The road remained open for defendants’ trucks and vehicle services.
Plaintiffs filed a complaint in circuit court, requesting a permanent injunction restraining interference with the right-of-way by defendants; defendants counter-claimed, requesting an order requiring that plaintiffs build a bridge over Traver Creek.
The trial court granted judgment for defendants, ordering plaintiffs to build a bridge over Traver Creek at an estimated cost of between $10,000 and $25,000. The court also awarded miscellaneous damages to the defendants of $1,532.38. The court sua sponte concluded that the defendants were unnecessarily required to prove facts denied by the plaintiffs in their answer to the defendants’ re quest for admissions of facts. The judge stated that the court rules require the taxing of costs in such instances and awarded costs to the defendants in the amount of $5,000. In addition to the $5,000, the court also ordered that the defendants be taxed $484.25 as additional costs, expenses and attorney fees.
The court ordered the plaintiffs taxed for any additional costs, expenses and attorney fees.
Plaintiffs appeal, claiming that the trial court erred in ordering them to construct a bridge over the creek, since paragraph "L” of the Rehberg— Ross and Rogers land contract was not enforceable against them. In support of this position, plaintiffs argue that paragraph "L” of the Rehberg — Ross and Rogers land contract was (1) intentionally excluded from the deeds given in fulfillment thereof, (2) merged in such deeds, and (3) does not run with the land.
Initially, we note that this is an equity action and our review is, therefore, de novo. However, great weight is given to the findings of the trial court and we will not substitute our judgment for its, unless convinced that we would have reached a different conclusion had we been sitting as the trial court. Stribley v Michigan Marine, Inc, 42 Mich App 218; 201 NW2d 702 (1972). Further, our Supreme Court has held that the "clearly erroneous” standard of GCR 1963, 517.1 applies to all non-jury trials and is consistent with the foregoing rules governing -appellate review in equity cases. Papin v Demski, 383 Mich 561; 177 NW2d 166 (1970).
With respect to defendants’ claim of merger, the trial court found:
"The court finds after having reviewed all the testimony taken in this case, the pleadings of the parties hereto, and especially by application of the rules found in Goodspeed v Nichols, 231 Mich 308 [204 NW 122 (1925)]; Mueller v Bankers Trust Co, 262 Mich 53 [247 NW 103 (1933)], as a matter of law that the doctrine of merger does not apply in this case so as to relieve plaintiffs herein from the obligations set out under said paragraph 'L\ * * *
"This court further finds as a matter of law that the deeds executed between the parties hereto only constituted part performance of the agreement between the original party and that paragraph 'L’ was and is a distinct and unperformed provision of the original contracting parties and that by virtue of such was not merged in the deed.”
Having carefully reviewed the record in this case, we find that the trial court’s reliance on Goodspeed, supra, and Mueller, supra, was wholly proper and that there was no error in the finding that the doctrine of merger does not apply to paragraph "L” of the land contract involved in this case. The covenant embodied in the paragraph "was collateral to the contract for the deed and an obligation independent of conveyance of title, possession, quantity, and emblements.” Mueller, supra, 58. Hence, "the deed constitutes only a part performance of the preceding contract”, and "other distinct and unperformed provisions of the contract are not merged in it.” Goodspeed, supra, 316. Michaels v Chamberlain, 26 Mich App 317; 182 NW2d 360 (1970). Thus, defendants’ claim of merger is without merit.
Defendants’ argument that paragraph "L” of the land contract was intentionally excluded from the deeds given in fulfillment thereof is essentially one aspect of their more general argument that paragraph "L” did not run with the land. In 21 CJS, Covenants, § 54, p 923, it is noted:
"The essentials of such a covenant [i.e., a covenant running with the land] have been stated to be that the grantor and grantee must have intended that the covenant run with the land; the covenant must affect or concern the land with which it runs; and there must be privity of estate between the party claiming the benefit and the party who rests under the burden.”
In Mueller; p 56, our Supreme Court quoted with approval from Keogh v Peck, 316 Ill 318; 147 NE 266; 38 ALR 1151 (1925), to the effect that:
"The test as to whether a covenant runs with the land or is merely personal, is whether the covenant concerns the thing granted and the occupation or enjoyment of it, or is a collateral and personal covenant not immediately concerning the thing granted. If a covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership, but to have that effect the covenant must respect the thing granted or demised and the act to be done or permitted must concern the land or the estate conveyed. In order that a covenant may run with the land its performance or non-performance must affect the nature, quality or value of the property demised, independent of collateral circumstances, or must affect the mode of enjoyment.”
The fact that the covenant in the instant case was affirmative in nature, i.e., called for the performance of the specific acts by the covenantor, does not alter the applicability of the foregoing rules. Although in England and arguably in New York, it has been held that the burden of affirmative covenants does not run with the land, that rule has not been adopted generally throughout the United States and has no application in Michigan. See generally, Annotation, 68 ALR2d 1022 (1959), Affirmative Covenants as Running with the Land; Adams v Noble, 120 Mich 545; 79 NW 810 (1899); Mueller, supra; Burton-Jones Development, Inc v Flake, 368 Mich 122; 117 NW2d 110 (1962).
An examination of paragraph "L” of the original Rehberg — Ross and Rogers land contract supports the trial court’s finding that the parties thereto intended that the covenant embodied in that paragraph would run with the land. It will be recalled that the paragraph in question provided:
"Purchaser agrees to perform grading and initial paving of the surface of said right-of-way and in addition thereto, to extend the present culvert completely across said right-of-way at the purchaser’s expense. Subsequent maintenance of said right-of-way to be paid equally by seller and purchaser thereof.”
Although it may be argued that the first sentence of paragraph "L” constitutes a personal covenant by Ross and Rogers to perform a noncontinuing service, it is nonetheless clear that the second sentence of that paragraph constitutes a continuing obligation. In light of the fact that the parties agreed to share equally the cost of maintenance, it seems clear that they viewed such maintenance as an obligation that would run with the land. Plaintiffs’ argument that the omission from the deeds of the covenant is indicative of an intent that it not run with the land is not well founded. It may well be that both purchaser and seller understood that the covenant contained in the land contract constituted an obligation unaffected by the conveyance of the land itself. In other words, they may have understood that the conveyance by deed would not constitute a merger of all the terms of the underlying contract for sale. Indeed, plaintiffs’ performance of the terms of paragraph "L” indicated that they, themselves, viewed the obligation as unaffected by the deed. In light of these facts, it cannot be said that the trial court erred in determining that the original par ties intended the covenant embodied in paragraph "L” to run with the land.
Paragraph "L” of the land contract obviously "touches and concerns” the use, value or enjoyment of the easement granted by Rehberg to Ross and Rogers, and by them to the plaintiffs in this case. The covenant deals with the improvement and maintenance of the easement itself and is obviously not for the personal benefit of the Rehbergs or any of the other parties involved in this suit. Rather, it is an undertaking the benefit of which inures to any subsequent owner of either the easement, the dominant, or the servient estate.
Next, there is no argument that plaintiffs are not in privity of estate with the original parties to the land contract, i.e., the Rehbergs and Ross and Rogers. The chain of title with respect to both the easement and dominant estate is unbroken from the defendants to Ross and Rogers, and then to the plaintiffs. Obviously, the privity of estate requirement has been fulfilled in this case.
In this Court, as in the trial court, the parties have devoted a great deal of their effort to the question of whether or not plaintiffs took the land with notice of the covenant embodied in paragraph "L”. With respect to this question, the trial court found:
"This court finds as a matter of fact in this regard that plaintiffs herein had actual knowledge of the content of paragraph -L’ or would have had knowledge of said paragraph 'L’ had they examined documents referred to in their own escrow agreement or had they simply looked into the rights of defendants herein as set out in their agreements with plaintiffs’ predecessors in title.”
This finding is fully supported both by the fact that title to the land passed from the Rehbergs to Ross and Rogers, and then to plaintiffs in essentially a single transaction, and further, by the fact that plaintiffs performed at least the first portion of the covenant embodied in paragraph "L” by paving, widening the road, and extending the culverts and replacing a 30-inch culvert with a 78-inch culvert. Plaintiffs, by their action, acknowledged the fact that paragraph "L” was an obligation binding upon them. The court’s finding with respect to the question of whether or not plaintiffs took title to the land with knowledge of the covenant is not clearly erroneous.
On the basis of the foregoing considerations, we cannot say that the trial court’s determination that the covenant ran with the land so as to bind plaintiffs is clearly erroneous.
Plaintiffs also claim that they had an absolute right, as upper riparian owners, to remove the culverts and sever the road, since the culverts acted as a dam and caused flooding on their land. However, unlike the cases cited by plaintiffs in support of their position, the dam-like construction was not an unlawful structure placed on the land by the defendants. Rather, the culverts formed part of the roadway which the plaintiffs covenanted, along with the defendants, to maintain. Plaintiffs cannot breach this covenant and permanently sever the road where a reasonable means exists to both fulfill the covenant and prevent future flooding of the apartments.
Plaintiffs next argue that the necessity of constructing the bridge was not within the contemplation of the original parties to the land contract and, therefore, the trial court erred in ordering such construction.
We can readily accept as true plaintiffs’ assertion that the original parties to the contract never foresaw the necessity of constructing a bridge. This does not, however, as plaintiffs urge, require a finding that the trial court erred in ordering the construction of a bridge.
The courts of this state have repeatedly held that "equity may shape her relief according to the situation as it may present itself when the time for the decree arrives”. Thompson v Enz, 385 Mich 103, 110; 188 NW2d 579 (1971). The parties clearly did intend that defendants would have an improved access to Plymouth Road, and plaintiffs would have an easement over defendants’ property for the same purpose. The trial court was faced with the situation in which the only feasible method of insuring that the originally expressed intent of the parties was fulfilled, was by ordering the construction of the bridge. Evidence was presented at trial which made it clear that culverts alone had not in the past, and probably would not in the future, relieve the problem of flooding. Thus, simply to order plaintiffs to reconstruct the roadbed, and utilize culverts for carrying the creek beneath it, would be only a temporary and wholly unsatisfactory solution to the problem. We cannot say, from the record before us, that the trial court erred in ordering the plaintiffs to construct the bridge.
We turn our attention now to plaintiffs’ most forceful argument. Plaintiffs contend that, if the trial court was correct in requiring the construction of a bridge over Traver Creek in order to maintain the usefulness of the easement, then defendants should be required to contribute one-half of the cost of the construction of such bridge. In support of this contention, plaintiffs note that the second sentence of paragraph "L” of the land contract provides:
"Subsequent maintenance of said right-of-way to be paid equally by seller and purchaser thereof.”
In response, defendants argue that, had plaintiffs properly constructed the roadway and culvert system in the first place, the flooding problem would never have arisen and that it is now inequitable, unfair and unjust to require defendants to contribute to the correction of a problem which had its genesis in plaintiffs’ own failure to cope properly with the increased waterflow in Traver Creek.
Defendants’ argument overlooks two important facts. First, the agreement was drawn up by the defendants’ attorneys and, therefore, must be strictly construed against them. Detroit Trust Co v Mason, 309 Mich 281; 15 NW2d 475 (1944). Defendants’ attorneys could have explicitly imposed an unlimited duty to provide the Rehbergs with access to Plymouth Road as a condition to the use of the easement. This was not done. Secondly, plaintiffs more than fulfilled the requirements of the first sentence of paragraph "L”. Plaintiffs did "perform grading and initial paving of the surface” of the right-of-way. Plaintiffs not only extended "the present culvert” but increased its capacity by replacing one of the two 30-inch culverts with a 78-inch culvert. The words "initial” and "present” clearly indicate the intent of the parties that the plaintiffs were to bear alone only the initial cost of extending the roadway to its present 24-foot width. This portion of the covenant was completely discharged when the plaintiffs widened, graded and paved the surface and extended the culverts completely across the right-of-way, at their own expense.
While only the plaintiffs agreed to improve the right-of-way, as provided in paragraph "L”, both parties agreed "to maintain said right-of-way as provided in paragraph TA” In regards to the maintenance of the right-of-way following the initial improvement of the easement, paragraph "L” clearly states:
"Subsequent maintenance of said right-of-way to be paid equally by seller and purchaser thereof.” (Emphasis added.)
The trial court correctly held that this covenant was binding on the plaintiffs. However, the trial court erred in failing to hold that this covenant was likewise binding on the defendants.
The clear intent of this provision is that the parties were to bear equally the expense of maintaining the right-of-way after its initial construction. As we have already indicated, the trial court did not err in ordering the construction of the bridge, since this was the only feasible method of maintaining the roadway and relieving the problem of flooding plaintiffs’ apartments. Therefore, the portion of the court’s order requiring the construction of a bridge over Traver Creek is affirmed. However, the judgment of the trial court is hereby modified to require that the costs of any construction be shared equally by plaintiffs and defendants.
Finally under attack is the trial court’s assessment of costs:
"This court notes that much of the time spent during the trial of this matter were covering matters of proof set out in Rule 312 and Rule 313 demands made upon the plaintiff and is of the opinion that such proofs were unnecessary and the denials of such proofs by plaintiffs herein were frivolous and put defendants to expenses herein unnecessarily and finds that defendants herein should be, and hereby are, awarded costs in the amount of $5,000 for such items of proof as were substantially covered in defendants’ demands on plaintiffs herein for admissions of fact.”
GCR 1963, 312.1 provides in part as follows:
" * * * a party may serve upon all other parties a written request for the admission by a designated party of the genuineness of any relevant documents described * * * or of the truth of any relevant matters of fact set forth in the request.”
In 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed) p 27, the author states that such admissions may dispose of matters over which there is no serious dispute, and hence avoid waste of time and preparation and a trial on unnecessary proofs. However, the author also states that unless a matter is completely free of controversy, it is not likely that a formal request for admissions will prove successful. GCR 1963, 313.3 provides:
"If a party, after being served with the request under Rule 312 to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matters of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses in making such proof, including reasonable attorney fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.” (Emphasis supplied.)
An examination of the demands for admission of fact submitted to the plaintiffs discloses that the "facts” which the defendants sought to have the plaintiffs admit were, in reality, not "facts” but were elements of the defendants’ claim.
It is stated in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 234:
"The mere fact that the matter was proved at the trial does not, of itself, establish that the denial in response to the request for an admission was unreasonable.”
After finding that the defendants proved that the covenants contained in paragraph "L” were binding on the plaintiffs and ran with the land, the trial court improperly imposed costs on the plaintiffs for their failure to admit these elements of the defendants’ case.
It should also be pointed out that at no time did the defendants "apply to the court for an order requiring the other party to pay him the reasonable expenses in making such proof.” The plaintiffs, therefore, were improperly denied the opportunity to demonstrate to the trial court that their refusal to admit was reasonable and not improper. Cf. Howard v City of Melvindale, 27 Mich App 227; 183 NW2d 341 (1970). Therefore, the trial court abused its discretion in assessing costs against the plaintiffs.
Reversed and remanded to the trial court for the entry of an order consistent with this opinion. No costs, neither party having prevailed in full.
All concurred. | [
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Van Valkenburg, J.
Plaintiffs, tenure teachers at Highland Park Community College, were advised on May 21, 1970 that their contracts would not be renewed for the following year because of the necessity to eliminate certain teaching positions because of declining enrollment and decreasing funds. Plaintiffs requested a hearing before the Board of Education of defendant school district, a request which was denied by the board on the basis that such a hearing was not required by the teacher tenure act in cases of reduction of personnel. Plaintiffs appealed to the State Tenure Commission urging that a 60-day notice was required and that they were entitled to a hearing before the board. The commission affirmed the board, holding that the notice and hearing provisions of the tenure act did not apply in cases of reduction of personnel due to economic reasons. Plaintiffs then appealed to circuit court, which affirmed, and now appeal to this Court on leave granted.
The question before this Court is:
Must tenure teachers be given a written 60-day notice and a hearing before the board of education, when, for economic reasons, their contracts are not renewed for the coming school year?
Plaintiffs do not seriously contest the fact that the board of education can eliminate teaching positions because of economic factors. While there is no express statutory authority for terminating a teaching position because of lack of funds, MCLA 38.105; MSA 15.2005 provides:
"Any teacher on permanent tenure whose services are terminated because of a necessary reduction in personnel shall be appointed to the first vacancy in the school district for which he is certified and qualified.”
Implicit in this language is the conclusion that school districts are excused from offering a tenure teacher a contract of employment when it is necessary to reduce personnel. See Bruinsma v Wyoming Public Schools, 38 Mich App 745; 197 NW2d 95 (1972). See also generally Anno., Right to dismiss public school teacher on grounds that services are no longer needed, 100 ALR2d 1141, §§ 7-16, pp 1158-1181 and Funston v District School Board, 130 Or 82; 278 P 1075 (1929).
As to the question of notice, it must be noted that we are here concerned with whether notice must be given 60 days before the end of the school year. There is no question that notice was in fact given, the only question being whether it was timely given. Plaintiffs argue that the 60-day notice provisions of MCLA 38.83; MSA 15.1983 and MCLA 38.102; MSA 15.2002 should be applied. As appealing as their argument might be, it is clear that neither of these sections are applicable here. MCLA 38.83, supra, is specifically limited by its own language to probationary teachers or teachers not on continuing contracts, and is thus not applicable to tenure teachers. Likewise, MCLA 38.102, supra, provides that "charges concerning the character of professional services shall be filed at least 60 days before the close of the school year”. Since we are not concerned with charges concerning the character of professional services, MCLA 38.102, supra, does not apply.
We are not unaware of the fact that there is also a 90-day notice provision with respect to the renewal of contracts for superintendents, principals, guidance directors and school administrators. While it may seem strange that the Legislature has provided that these temporal notice requirements with respect to superintendents, etc., probationary teachers and tenure teachers where charges concerning the character of these professional services is being brought, and yet make no similar provision with respect to tenure teachers where their services are being terminated because of economic reasons, this Court cannot add that which the Legislature has chosen to leave out. The change, if any, must come at the hands of the Legislature, not this Court.
As to the question of a right to a hearing before the local board of education, the statutory right to a hearing is invoked by bringing and acting upon "charges”. MCLA 38.101; MSA 15.2001; MCLA 38.102, supra. Since here no charges have been brought against the teachers, the statutory right to a hearing does not apply. Indeed, there would appear to be no real reason for a hearing where the reason for termination is a reduction in personnel rather than personal charges against a teacher, since the purpose of the hearing is to provide the opportunity for the teacher to answer the charges being brought against him. The protection which the act provides where the termination is the result of a reduction of personnel is not that of a pointless hearing but is rather that found in MCLA 38.105, supra, which provides that those tenure teachers thereby terminated shall be appointed to the next vacancy.
Affirmed. No cost, a public question.
All concurred.
MCLA 340.66; MSA 15.3066.
MCLA 340.119; MSA 15.3119.
MCLA 340.161; MSA 15.3161.
MCLA 340.201; MSA 15.3201. | [
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Morse, J.
William Walsh, who was confined in the State prison at Jackson, applied by his counsel, Charles A. Blair, to this Court, June 29, 1891, for the writ of habeas corpus. The writ was granted, and a hearing had upon the petition and return of the warden on June 30, 1891, when he was remanded back into the custody of the warden of said State prison, with the intimation that his time of imprisonment would expire July 12, 1891, at noon, if nothing growing out of his own conduct intervened before that time. It appears that Walsh was sentenced to such prison, October 3, 1885, for the term of seven years, and it is conceded that, if had not lost any of the good time given to him by the statutes of this State, his term would have expired March 21, 1891. But it was claimed by the warden that, by reason of infractions of the prison rules, his good time had been so reduced “that his term would not expire for some time. The statutes provide as follows:
“Sec. 9703. The board of inspectors may establish a proper scale or rate of debits and credits for good conduct or misconduct, which shall be a part of the rules •of discipline of the prison, and' in a book to be kept for that purpose may cause to be entered up, at the end of •each month, the total of credits to which each prisoner may be entitled; and they shall require the warden, on the first day of each month, by means of cards or otherwise, to announce such result to each prisoner.
“Sec. 9704. The warden shall keep a record of each and all infractions of rules of discipline by convicts, with the names of the persons offending, and the date and •character of each offense, which record shall be placed before the managers at each regular meeting of the board; and every inmate who shall have no infraction of the rules of the prison or laws of the State recorded against him shall be entitled to a deduction for each year of his sentence, and pro rata for each part of a year, when the sentence is for more or less than one year, as follows: Prona and including the first year, up to the third year, a deduction of two months for each year; from and including the third year, up to the fifth, a reduction of 75 days for each year; from and including the fifth up to the seventh year, a deduction of three months for each year; from and including the seventh year, up to the tenth year, a deduction of 105 days for each year; from and including the tenth year, up to the fifteenth year, a deduction of four months for each ye'ar; from and including the fifteenth year, up to the twentieth year, a deduction of five months for each year; from and including the twentieth year, up to the period fixed for the expiration of the sentence, six months for each year. The inspectors shall provide by rule how much of the good time thus earned a convict shall forfeit for one or more violations of the prison rules. The warden, in computing the diminution of time for those now in the prison, shall allow them for the good time made up to the time this act takes effect, in accordance with the provisions of law previously in force, and thereafter it shall be computed in accordance with the terms of this section. Whenever a convict has been committed under several convictions, with separate sentences, they shall be construed as one continuous sentence in the granting or forfeiting good time.”
This section, as it now stands, was enacted in 1877. This practice of permitting the convicts to earn good time by good conduct has been incorporated in our statutes since 1857. Its apparent object is to stimulate the prisoners to good behavior by the hope of reward in the shortening oh their terms of confinement. To obtain this end, it is wisely provided that the convict shall know what the rules of prison discipline are; what the penalty of his infraction of any rules will be; and that he shall be acquainted at the end of each month with his standing as to good time. It will also be noticed that he earns the good time provided for in the statute, unless the board of managers forfeit the whole or a part of it for breaches of the discipline of the prison. And it is evidently intended that such forfeiture shall not rest in the caprice or favoritism of the board in each particular case, but shall depend upon fixed and regular rules, applying to all alike, which shall be adopted by the board, and promulgated so as to be known and understood by the prisoners. The practice at the State prison at Jackson has not been in conformity with the spirit or letter of the statute.
The application of William Walsh for the writ of habeas corpus was first made to Hon. Erastus Peck, circuit judge of the circuit court for the county of Jackson, who, upon the hearing of the writ, refused to release the petitioner, and advised, because of the importance of the questions raised, that he apply to this Court for the writ. By agreement, and to expedite the hearing before us, a copy of the testimony taken befox-e Judge Peck was presented to this Court. The facts in Walsh’s case show that April 7, 1885, the board of inspectors of the prison adopted the following rules:
“Bule 1. Any convict who shall violate the rules of the prison shall lose a portion of good time .for each offense; and, if two or more offenses shall be committed in one month, he shall lose time for each offense, the same as though they were committed in different months.
“ Buie 2. Any convict who shall assault a keeper with intent to do him serious bodily harm shall, in the discretion of the board of inspectors, forfeit all the good time that he may have earned up to the date of his -offense.
“Buie 3. Any convict who shall escapé from the prison, or attempt or conspii’e with others to escape, or shall be found with tools or weapons to be used in escaping or attacking officers, shall, in the discretion of the board of inspectors, forfeit all the good time earned up to the date of the offense.”
These are all the rules to be found on the subject adopted by the inspectors, and now in force in said prison. There is not any written rules stating what the forfeiture will be for any infraction of the rules, excepting for assault of a keeper with intent to do serious bodily harm, escaping or attempting to escape from the prison, or having tools or weapons in possession for the purpose of use in escape or assault, and these rest in the discretion of the inspectors. There is ho written certain standard of the number of days that will be lost from the good time by the infraction of any rule of the prison, as was evidently intended by the statute. But a practice has grown up in the prison of taking for each offense, however trivial or heinous, the same number of days from the convict's good time, to wit, as many days as he would earn in a month if he lost no good time, by an obedience to the rules. When this practice originated, or who authorized it, is not definitely shown by the testimony, but it has existed for a long time, and the present warden and officers have followed it since their incumbency, commencing in January of this year.
The manner of keeping the record of the infractions,, and the consequent forfeitures, is as follows: In a book, called the “Warden's Daily Journal," there is entered the reports of the keepers and other officers of the prison of infractions of the rules by the various convicts. The reports are made by these officers to the warden, and filed by him, and the substance of such reports entered by his clerk in the journal. Sometimes the entries are not made of the same date as the report, or in consecutive order, which fact occasioned some trouble in determining the exact status of Walsh's forfeitures in the present case. When the inspectors meet, their action seems to consist in approving the reports, by signing their names in the journal. It does not appear that the prisoners are notified each month, if at all, of their standing as to lost time or good time, except the clerk testifies that, if they ask for it, “ we will figure up his time, and show him when his good time expires, counting the reports that are against him.” This is done by the warden’s clerk, and the computations are not presented to the board of inspectors, nor are the computations made monthly, as they should be. Under this loose system, the board of inspectors know but little, if anything, of any man’s standing as to lost time or forfeitures, and the computations of the clerk are not infallible, as was shown in the-present case. It would seem that the keepers and the warden’s clerk are really the persons who, under the practice grown up in this prison, fix the forfeitures of the convicts of their good time. The keeper reports an infraction of the rule, and the clerk files it away, and enters the substance of it in the daily journal, as, for instance:
“Nov. 17, 1890. Number 3,628. (Walsh.) Reported by Keeper Skinner for talking to men locking near him in the east end,”
When the clerk of the prison, Charles F. Knapp, was sworn in the proceedings before Judge Peck, he had a card upon which the lost time of Walsh had been computed by the warden’s clerk, showing two reports the first two years, 5 days each; one the third year, 6 days; five the fifth year, 7£ days each; and eight the sixth year, % days each; in all 113£ days. Knapp was unable to find three of the reports entered on the daily journal, and concluded that, under the practice of the prison, they ought not to be charged against the prisoner,, because they had not been approved by the signatures of' the prison inspectors in the journal; but, on examination of the journal by this Court, we found the entries, but under other dates. The book showed that January 15, 1891, there was a report entered in the journal against Walsh and three others for attempting to escape from the prison. At the time of the hearing before Judge Peek, the board of inspectors had not passed upon this attempt to escape, except by signing the journal as before .stated, in which the fact of ,the report being made was .entered; but under the practice in vogue he lost no more good time than he did for “ making a pipe in his cell,” or talking with another convict without permission; ' and in the computation of the clerk, presented to us, and made out in conformity with this custom, he is charged with 7-J- days of lost time, it being in the sixth year of his confinement, and 7-J- days being the amount of good time he would earn each month that year under the law. But after the hearing before the Jackson circuit judge, and before the application to this Court, two of the three inspectors of the prison met at a special meeting, June 22, 1891, — how called, it does not appear, or whether the other member of the board had notice of it, — and passed a resolution forfeiting all the good time earned by Walsh up to January 15, 1891, because of his attempted escape at that date.-
Considering that this irregular practice of forfeiting good time had existed in the State prison, as shown by the testimony, for at least 20 years, n*e are inclined to hold it, as far as those now confined in the prison are concerned, of the same efficacy as a written rule; and for each infraction of a prison rule, no matter what its import, whether a trivial or serious breach of discipline, the board of inspectors, the governing power of the prison, have ordained that the prisoner shall lose as many days of his good time as he would be earning under the law each month in the year of such infraction. This would deduct from Walsh's good time 113-J days, and release him from confinement on the 12th day of July, 1891, at noon, as we intimated in our oral decision.
The action of the two members of the board must be treated as of no force or effect. ¥e have held this unwritten r- ne or custom binding on the prisoners, and it must also be held binding upon the board of inspectors, until new rules are adopted, at a regular meeting of such board, and promulgated to the inmates of the prison. It is- held valid because it has existed so long that it must be presumed to be known and understood by all within the prison walls. Under this unwritten rule, or rather custom, Walsh has had his lost time for .attempting to escape once fixed and deducted from his good time. This custom cannot be thus set aside in his particular case. It would look, without explanation, as if this action were taken in view of Walsh’s application for this writ, as nearly six months had elapsed from the commission of the offense before any action was taken, other than the observance of the usual custom in such cases.
We are led by the facts in this case to suggest to the managers of this prison the speedy abolishment of this custom, which has no foundation in the law, nor any equity or justice in it, and which is in evident conflict with the plain purposes of the statute. The law clearly contemplates—
1. That the' rules in reference to the forfeiture of good time shall be plain, certain, and specific, and known to the inmates of the prison.
2. That they shall be adopted by the board of inspectors, and be of record.
3. That each convict’s record as to loss of good time, and for what reason he has lost it, shall be made known to him monthly.
4. That the reports of the infractions of the rules shall be investigated each month at the regular meeting of the inspectors, and passed upon by them, and that a record shall be made of such action, so that the amount of lost time to be deducted from a convict’s good time shall not rest upon the computation of the warden’s clerk, but may be shown at once from the inspectors’ records. In justice, also, to the convict who is reported by the officers, who are human, and liable to err, he should be given, if he desires, an opportunity to be heard upon such reports.
Under the statutes, the warden is required ££to read to the convicts, at least once in each month, the rules and regulations of the prison, so far as the same relate to such convicts." How. Stat. § 9686, subdiv. 8. These rules and regulations must be hung up in each cell in a conspicuous place, and they must be printed or written in a language known to the convict occupying the cell. Id. § 9680.
If the law is properly complied with, there will be no-occasion for any habeas corpus proceedings to determine-when a convict shall be released on account of his good time. Each prisoner will know and understand just what each infraction of the rules will cost him in forfeiture of such good time. If he is reported, he may have a hearing before the governing board of the prison. They will investigate and pass upon the reports against him, and their determination will be a matter of record; and, at the end of each month, he will be made acquainted with his exact standing as to loss of good time, about which there can be no mistake or dispute. If this had been done in the present case, there would have been, in all probability, no case here before us, or, if there had been, there would have been no difficulty in at once determining from the records the exact day that Walsh was entitled to deliverance. As it is, it was quite uncertain,, until this Court laboriously examined the warden’s journal, just how many days of his good time Walsh had lost under the custom in vogue at the prison.
It also appears from the record that, when the counsel for Walsh first applied to ascertain his standing as to good time, the warden’s clerk furnished him with a card, which showed his total lost time to be ten months and twenty days, and in which he was charged, “Dec. 9, j 90, att. escape, — 7—30 ” the “ 7 — 30 ” being figured in the total as 7 months and 30 days. When the present clerk of the prison, Mr. Knapp, testifies on the hearing before Judge Peck, he brings in the other card, which shows the lost time to be only 113|- days; and he says that the first card was filled out by Mr. Avery, the clerk who preceded him, and that it is a mere memorandum, and not correct. Such loose practice as this puts the convict, without resort to the courts, as far as his good time is concerned, at the mercy of the mistakes of clerks, whose business under the law is not to compute the lost time of the prisoners upon some custom or usage, but to record the acts of the board of inspectors, and to obtain the standing of the convicts as to good time from the records of such board. Most manifestly the board of inspectors have not performed their duties in this respect under the law. Their failure to do so has made business for the courts and expense to' the State, and ig an injustice to those confined in the prison, who, although convicts, are yet entitled to the rights which the law plainly and expressly gives them as such convicts.
The other Justices concurred. | [
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Grant, J.
Plaintiff recovered judgment against Kelly for $1,217.40. Upon bringing suit against the principal defendant, plaintiff instituted garnishee proceedings against Hill and Vincent. The circuit judge directed a verdict against the garnishee defendants, who appealed.
The defendants filed a disclosure, stating that at the time said writ was served upon them they were indebted to Kelly in the sum of $1,717.28, unless they had become liable to other parties upon certain orders which Kelly had given upon them, aggregating about $2,800. Defendants had not accepted these orders, and it is conceded that they were not liable upon them. Plaintiff demanded a trial under How. Stat. § 8068. Upon the trial defendants’ counsel objected to the disclosure, for the reason that it did not show an indebtedness due at the time it was made, and insisted that it was the duty of • the plaintiff to file special interrogatories to elicit more precise infor mation, under sections 8060 and 8061. We cannot concur in this position of the learned counsel. The disclosure was sufficient to entitle plaintiff to demand a trial, under section 8068.
Under our statute, if the indebtedness from defendants to Kelly had not been due at the time of the trial, the circuit judge should have instructed the jury so to find by their verdict. How. Stat. § 8075. This whole question, therefore, is, was' such indebtedness actually due? Kelly had constructed a building for defendants, the contract price being 823,000. Defendants were entitled to retain a certain percentage until the completion of the contract. Defendant Vincent testified that the building was completed, except that the work of “cleaning down ” was not finished. Kelly had given an order upon defendants for this work to the amount of 8150, upon which they had paid 8100, and retained 850 to cover the cost of its completion. This work was not finished at the time of the trial, and defendants’ counsel, therefore, insist that nothing was due, the total amount unpaid to Kelly being less than the percentage which defendants were entitled by their contract to retain. Kelly, before the disclosure, had presented his bill to the defendants covering the contract price and certain extras. The architect, after striking out certain extras, approved the bill. Defendant Vincent testified that he considered this amount due to Mr. Kelly at the time of the disclosure, and he was willing to pay it, and the only reason he did not was because the orders above mentioned had been presented to him, which covered considerably more than the amount due. He also testified upon the trial that he was willing to pay it then. No necessity exists for giving the testimony in full. Under the evidence, we think the instruction of the court correct. It is appar. ent from the record that this defense is made in the interest of other creditors who subsequently sued Kelly and garnished the defendants.
The judgment is affirmed, with costs.
The other Justices concurred.
Counsel cited Townsend v. Circuit Judge, 39 Mich. 407. | [
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Grant, J.
This is a suit upon two promissory notes executed by defendants to plaintiff.
Defendants were husband and wife. The husband applied to plaintiff for both these loans, but he would-not let him have the -money, because' the land on which they lived was owned by the wife. It was arranged that both should execute the notes. This was done, and the money paid; plaintiff testifying that he paid it to Mrs. Spencer, and defendants testifying that he paid it to Mr. Spencer. But it is immaterial to which one the money was paid. There was no evidence in the case tending to show that the money was borrowed for the use and benefit of the wife, or for her separate estate. In fact, it was borrowed and used for the sole benefit of the husband. Neither of the defendants informed plaintiff that the loan was for the benefit of the wife,' nor had he any reason to infer that it was for her benefit. In the absence of such representations by her, and the presence of the fact that the loan was for the husbands benefit, the note as to her is void.
It is jirue that the plaintiff testified that Mr. Spencer asked for the second loan as the agent of his wife, but this becomes immaterial, in view of the fact that he knowingly took the note of husband and wife. He must be held to know the law, that such a note is void as to the wife unless the money was borrowed for the benefit of her separate estate, or she has made representations which will estop her from setting up the defense.
The learned circuit judge should have instructed the .jury to render a verdict for the defendant.
Judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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McGrath, J.
This is case for assault and battery.
The declaration contains three counts. The first alleges that defendant made an assault upon the said plaintiff, to wit,—
“At the city of Detroit, in the county of Wayne, aforesaid, and then and there laid hold of the said plaintiff, and with great force and violence pulled and dragged about him, the said plaintiff, and then and there gave and struck the said plaintiff a great many violent blows and strokes, and then and there choked the said plaintiff, * * * whereby he, the said plaintiff, was not only then and there greatly hurt, bruised, and wounded, but was also thereby then and there greatly «xposed and injured in his credit and circumstances.”
The second count was abandoned. The third count is as follows:
“And, also, for that the said defendant on, to wit, the day and year aforesaid, with force and arms, etc., made another assault upon the said plaintiff, to wit, at the ■city of Detroit, aforesaid, and then and there again beat, bruised, wounded, and ill-treated him, insomuch that his life was then and there greatly despaired of, and thereby then and there the said plaintiff was forced to lay out and expend, and will in the future be necessarily forced to lay out and expend, large sums of money in and about the curing himself of the several wounds, lameness, and disorders (which plaintiff avers were thereby, by the said defendant, then and there inflicted upon him, the ■said plaintiff), for medicines, nursing, and medical attendance, to wit, the sum of one thousand dollars, and other wrongs to the said plaintiff then and there did, against the peace and dignity of the people of this ■State, and to the damage of plaintiff of fifteen thousand dollars; and therefore he brings suit.”
The plaintiff is 13 years of age. Defendant was informed that plaintiff had stolen some small articles from a notion stand in front of defendants place of business, whereupon defendant, in company with his informant, started out in pursuit of plaintiff, and caught him about a block away, and the plaintiffs testimony tended to show that plaintiff was caught by the throat, thrown down, kneeled upon, beaten, and bruised by defendant.
Plaintiff testified that—
“ After he [defendant] had hold of me he brought me over to the policeman, and he told the policeman to arrest me, and these men that were there [the by-standers], they told him not to arrest me, but to arrest him.”
Objection was made to this testimony, but counsel for plaintiff continued:
“ Q You said some other men spoke to the policeman. What other men? Do you remember?
“A. Yes, sir; there were some of them that gave me their names ‘that they would be witnesses. They are in here now, I guess. They says to arrest him, — to arrest Mr. Freund.
“ Q. Mr. Freund wanted you arrested?
“A. Yes, sir.
“ Q. And those people were strangers to you, were they?
“A. Yes, sir.
“Q. And they told the policeman to arrest Mr. Freund?
“A. Yes, sir.
“ Q. Why did they tell the policeman — what did they say — what reason did they give the policeman why he should arrest Mr. Freund?
“ A. .For hitting me.”
Another witness testified as follows:
“It made me very angry to see a man of the age and the strength of that man to hold a little boy the way he did there; and quite a crowd collected there; and a policeman came up, and the boy stated his story as best he could in his excited manner to the policeman, and the policeman took the name, I think, of the little boy, and let him go; and I, in company with two other gentlemen, took the little boy in charge. W% went down to Judge Robinson, and we advised the little boy to utter a complaint for criminal assault. ******
“Q. I want to know which was the first overture, — the statement that was made to the policeman; whether it was by the outsiders, — the spectators there desiring to have Mr. Freund arrested, and then he claiming to the policeman that he ought to arrest the boy.”
[Objection was then made, and exception taken, and counsel for plaintiff continued.]
“Q. Tell us about that as near as you may.
“A. I could not say as to which made the first overtures. I would not undertake to state as to that.
“Q. But the fact is, that both these things were contemplated, were they not?
“A. Both of them; yes, sir.
“Q. Mr. Freund desired to have the boy arrested, and the people there desired to have Mr. Freund arrested?
“A. Yes, sir.
“Q. What did they want Mr. Freund arrested for?
“A. For abusing the boy. * * * * *
“Q. Did you speak to Mr. Freund at that time at all, to ask why he was doing this, or whether any protest, or what did you say?
“A'. I entered a protest; yes, sir.
“Q. What did you tell him?
“A. I told him he ought to be ashamed of himself, and' if he would strike a boy like that of mine I would break his neck.
“Q. What reply, if anything, did Mr. Freund make tO' that?
“A. I could not tell you. I don’t remember.
“Q. State what the fact was, — whether the people in. the vicinity — whether there was quite a crowd congregated ?
‘‘A. Yes, sir; there was quite a crowd congregated.
“Q. State whether there were threats of personal violence to Mr. Freund engaged in, right in his hearing?
“A. They were; yes, sir.”
This testimony was clearly inadmissible and prejudicial. The last witness was permitted to give not only his own opinion and conclusion, but also the opinions and conclusions of other by-standers, who were not sworn, and whose identity was not disclosed. Neither his own conclusions nor those of the other on-lookers were material. Nor was it competent to allow the witness to testify as to the effect upon his own mind of the assault, or what “ the people there desired,” or that “ threats of personal violence ” were made by others. The judgment of a crowd is not generally so accurate that evidence of its ■clamor can be admitted, unless the crowd and the party sought to be charged are acting in concert. It was entirely proper to show by those present what was said or done by either party during the scuffle, but it was clearly improper to admit the comments volunteered by the by-standers, expressive of their partisanship. The opinion •of the crowd cannot be substituted for that of the jury. See Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99, 107. For this error the judgment must be reversed.
The point is here made that proofs that the injuries received had been followed by epilepsy, which would, in all probability, be chronic or permanent, were not admissible under the' declaration, but the testimony was .admitted without objection on that ground, and for the purposes of that trial the point must be deemed to have been waived. Merkle v. Bennington, 68 Mich. 133. Inasmuch as a new trial will be had, it is proper to say that under objection properly made, such proofs were not admissible. The object of a special count is to apprise the defendant of what he must be prepared to meet. Neither count of the declaration contains a suggestion of epileptic results or permanent injuries. Indeed, the third count indicates that the “wounds, lameness, and disorders” resulting are curable. Epilepsy, irritation of the spinal cord, a depression' of the inner table of the skull, and permanent mental disorder, cannot be said to be the ordinary results of an assault and battery, such as is set forth in the declaration here. Damages which are-peculiar to the case, and spring from exceptional circumstances, must be specially alleged, or they cannot be recovered. Brink v. Freoff, 44 Mich. 69, 72. The declaration here gives no notice of any such claim as is made by the proofs.
It is urged, however, that the defendant requested the court to charge that “ the plaintiff is not, under the pleadings in this case, entitled to recover,” and the court, refused so to instruct the jury. The court was right. The objection now made to the declaration goes to the extent of the recovery only. Defendant requested the court to instruct the jury as follows:
“That if the jury find that the epileptic characteristics alleged to exist are due to any other cause than the injury alleged, and that the defendant at the time of the injury was employing no more force than, on the whole, was reasonable and necessary, the plaintiff cannot recover ”
This request, in the absence of any specific objection to the declaration on the ground now stated, practically conceded that, if epileptic characteristics wére due to the assault and battery alleged, plaintiff could recover therefor under the declaration and proofs, and that it was entirely proper for the jury to determine the question Brzezinski v. Tierney, 22 Atl. Rep. (Conn.) 486.
Judgment is reversed, and a new trial ordered, with costs to defendant.
The “other Justices concurred. | [
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Morse, J.
The plaintiff, a boy about 14 years of age when the accident happened, brought this suit to recover damages for injuries received by him while upon defendant’s track in a public street in the city of Jackson. The court took the case from the jury on the ground of the contributory negligence of the plaintiff.
The injury occurred September 19, 1887. The boy could not speak or understand English very well, having arrived in this country from Germany in the latter part of July, 1887. He was 11 years of age in June of that year.' He was living with his uncle, and had started to go to his place of work ,in the north-western part of the city. He was hurt while crossing the railroad tracks on Park avenue. There are several tracks crossing the street at this point. As he approached the crossing, he saw an engine and tender on the east side of the street, and close to it, standing still, and one man with it. The tender was nearest the street, and there was some testimony tending to show that the tender stood in the •street. • He was walking nearly in the center of the street, intending, as he says, to cross the tracks, passing around the east end of the depot out on Main street, thence westerly and north-westerly to his work; but changed his mind while crossing the tracks, and concluded to go from the street he was on to Main street, along the platform on the south side of the depot. As this thought came in his mind, he stepped between the rails of the track upon which was this engine and tender, and, with his back to the tender, took two or three steps up the track to the west. While he was on the track the engine backed up, started quickly, and came towards him. When he saw it, he says he was “rattled,” and jumped first to the left and then to the right. The tender caught him by the heel. He was dragged some distance. One leg was cut off, the other foot was crushed, and he received some other injuries. He testified that no whistle was blown or bell rung before the engine started, and he did not hear it coming until it was right upon him. In this he is corroborated by two witnesses, —one who was a switchman in the employ of the defendant at the time of the accident, and the- other also a switchman. Both saw the accident, and testified that no whistle was blown or bell rung when the engine backed upon plaintiff. One said: “The engine is pretty quick. It responds quickly to the action of the engineer. A yard-engine is quicker than an engine used to pull trains.” t
Park avenue runs in a northerly and southerly direction, and the passenger or station house of the defendant extends out into what would be such avenue if it ran in a-straight course. But north of the railroad crossing it bears to the east, and passes around the station-house. Main street .intersects Park avenue about 16 rods north of the east end of the passenger-house, and also crosses-the railroad tracks a short distance north-westerly of the passenger-house or depot, and about 20 rods northwesterly of Park-avenue crossing; the said tracks, Park avenue, and Main street forming a triangle. There was no sidewalk along the west side of Park avenue next the depot building, and no platform on the east end of said building, but one on the south side. Therefore, when the plaintiff started to change his direction, he was taking a shorter out, and was also influenced probably by this platform.
It is contended, in support of the direction of the circuit judge, that the plaintiff had lived in Germany, in a town where there was a railroad; that he knew the danger of a railroad crossing; that he was a boy of average intelligence, and had no business to turn his back to the engine and walk upon the track as he did; that this was not ordinary prudence.
It is also claimed that he was a trespasser upon defendant's tracks. This claim is based upon the fact that, although in a public highway, he had turned to go-off from it, and was using the street, not as a traveler along and upon Park avenue, but was taking the track of the company to get off the street on a more direct route than the avenue to his work, and was traveling without reference to the public streets. It is said in the brief: “If in coming along the street onto defendant’s tracks he enjoyed the rights of a traveler, he had ceased to exercise those rights.”
I think the plaintiff had an undoubted right to use this street for the purpose of travel to his work, and he would not be a trespasser in walking upon any part of it, or in getting off. of it in any direction or way that he saw fit. He might be negligent in walking between the tracks of the defendant, but he could not be a trespasser while in the pursuit of his lawful business. I do not understand that the defendant has such an ownership in its tracks upon a public street crossing that a man is a trespasser unless he travels squarely across them.
The case of Kelly v. Railroad Co., 65 Mich. 186, is relied upon to sustain this claim that the plaintiff was trespassing upon the defendant’s right of way at the time he was run over. In that case, Kelly was not using the highway as the plaintiff was. It is true, he was struck while on Yinewood avenue, but he had not entered the avenue for the purposes of travel. He was simply crossing the street because it came in his way while he was traveling on the railroad track, when he knew that men had been placed at the crossings to warn people from traveling on the railroad tracks. Kelly left his home, and chose his route upon the railroad track, and had traveled upon it from a quarter to half a mile before he reached Yinewood avenue, and contemplated walking beyond the crossing upon the track to the shops where he worked. He was traveling on the track, and not on the street. “His meeting the engine at that particular spot was a mere coincidence.” If the language used in the majority opinion in the Kelly case is to be so con-' strued that a man, while walking in the street, cannot go diagonally across a railroad crossing, or, if he wishes to leave the street at that point, cannot walk between the railroad tracks in so doing, without being a trespasser, then I must respectfully decline to be bound by it. In Kelly’s case the decision of the Court rested upon the peculiar facts of his case, that he was not using the street for travel at all, but was walking on the company’s right of way, and was no more walking in the highway than he would have been in a field or wood through which the railroad track passed. The highway was not his road, but a crossing of his road, over which he was passing because it came in his way, and for no other reason. ,.
I also think that the question of the contributory negligence of the plaintiff was for the jury. The knowledge that he had of railroads was meagre, and he might well have supposed, considering his age, that the engine would not start up and cross the street without some signal of danger or warning of its approach. It is for a jury to determine his ability and capacity for understanding the danger, and whether he used such ability and capacity prudently for one of his years and under all the circumstances of the case. It seems he only took two or three steps between the rails, and there is no evidence that he intended to keep upon this track after he left the highway. He thought to take a short cut, and started for the platform, and to reach it he would soon have been obliged to leave the track. "Whether it was careless to take these two or three steps even, with his back to a standing engine, is something not in the province of a court to declare as a matter of law. I doubt if it would have been negligence as a matter of law in an adult, but in the case of this boy it is a question to be settled by 12 men.
The case of Bird v. Railroad Co., 86 Mich. 79, cited by defendant's counsel, does not apply. In that case the deceased was killed in attempting to climb over the bumpers between the cars. It has never yet, I think, been announced as negligence per se to cross the railroad track in a public highway either in the front or rear of a standing engine and tender; and whether it is negligence to turn one's back upon the rear of such engine and tender, and take a few steps away from them, seems to me to depend upon the circumstances of the particular case in which it is done, and, if so, the determination of the question is very appropriately one for a jury.
It is also contended that, if the plaintiff had not been “rattled,” he might have escaped. One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril. It would be absurd to require of this boy, when he saw and heard-the car upon him, and was suddenly called upon to decide how he should escape it, to exercise the same coolness and forethought that an uninterested by-stander might manifest. Strand v. Railway Co., 64 Mich. 219. Under our own decisions, this case should have gone to the jury. Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 100; Cooper v. Railway Co., 66 Id. 261; Hassenyer v. Railroad Co., 48 Id. 205.
In stating the facts of this case, regard has been had only to the evidence on the part of the plaintiff. If the witnesses for the defense are to be believed, there is no question but the plaintiff was negligent. But the truth of the issue made in the record is for a jury to deter minej and on the plaintiff's showing there is certainly made a case upon which reasonable men might fairly differ in passing upon the question of his negligence.
The judgment is reversed, and a new trial granted, with costs of this Court to plaintiff.
McGrath and Long, JJ., concurred with Morse, J. | [
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Lons, J.
This case was in this Court, and an opinion filed November 14, 1890, which is reported in 83 ■Mich. 165. After the decision was rendered, a motion for a rehearing was presented, and a rehearing granted. The case has now been fully argued by counsel.
The reasons given by plaintiff’s counsel for rehearing are:
“1. .Because the Court misapprehended the case, as shown by the “record, as to the point on which the judgment was reversed.
Because Mrs. Donahoe is estopped from claiming out of the proceeds of the millinery stock the payment of any portion of the indebtedness to herself, as against Mr. Downing.
<f3. Because Mrs. Donahoe cannot hold the stock, either under the bill of sale or under verbal agreement, to secure the payment for goods added to the stock by Mr. Donahoe, as purchaser or guarantor, and for which Mrs. Donahoe was in no respect liable.
“ 4. Because all the goods which were added to the stock subsequent to its purchase by Mrs. Southerland were fully paid for; part in cash, and .the remainder in goods taken from the store by Donahoe.
“5. Because it is undisputed that no payment upon the bill of sale was due Mrs. Donahoe before July 1. She took possession upon May 21, under a verbal agreement not sufficient to constitute a pledge. Her possession at the time the writ was issued must have been under such verbal agreement, which, being neither a pledge nor a mortgage, is no defense in this case.
“ 6. Because there has never' been a hearing upon the point upon which the judgment was reversed.”
Counsel for plaintiff now argue that it is not contended that the agreement between Mrs. Sutherland, Mrs. Dona-hoe, and Mr. Downing, by which Downing was induced to advance $500 to his daughter to enable her to buy the stock, constituted either a mortgage or an agreement for a mortgage on the stock; but it is contended that when Mrs. Donahoe agreed with Downing that, if he would advance this money, he should be repaid out of the first proceeds of sales of the property, and was thereby enabled to make a sale which she was seeking to accomplish, she is now estopped from setting up a subsequent agreement between herself and Mrs. Sutherland to defeat Downing’s claim for those proceeds.
The facts are so fully stated in the former opinion that it is not necessary to restate them here. It was there held by this Court that if Mrs. Donahoe went into possession of the goods under her bill of sale with the consent of Mrs. Sutherlahd, and was in such possession when the chattel mortgage was executed, then her rights were superior to the mortgagee, or his assigns, and therefore it would make no difference that the bill of sale was not on file. It is quite apparent from the argument now presented that the Court, in passing upon the case on the former argument, was laboring under a misapprehension as to what the real claim of the plaintiff was. It was understood by- this Court that the plaintiff was attempting to assert his rights as mortgagee, or as assignee of the-mortgagee, and claiming that his mortgage should have priority of lien over Mrs. Donahoe’s bill of sale, for the reason that she had kept it from the record, but that, if she claimed under a verbal arrangement made with Mrs. Sutherland as to possession, there was no such possession by Mrs. Donahoe as would operate as a prior claim to the mortgage in the hands of plaintiff, who apparently took it in good faith.
We think from the arguments now made, and after a thorough consideration of the points in controversy, that plaintiff’s counsel are right in their contention, that Mrs. Donahoe must be held estopped from setting up any claim to the goods to defeat the mortgage. The case was very fairly and fully submitted to the jury under the charge of the court. The court charged the jury that' if they found, from the • evidence, that the agreement between the parties was that Mrs. Sutherland was. to pay her father the $500 before paying the defendant,, then the plaintiff would be entitled to recover; for the mortgage under which he claims was one given by Mrs. Sutherland in pursuance of that agreement with her father, and by her fathef assigned to the plaintiff, and he would succeed in .that event to the rights of the mortgagee.
Had we understood the position of plaintiff’s counsel before the former opinion was rendered as we now understand it, a different conclusion would have been reached.
As we now understand it upon further argument, we are satisfied that there was no error in the case; and the former opinion must be overruled, and the judgment affirmed, with costs.
Morse and McGrath, JJ., concurred with Long,' J.
Ohahplin, C. J., took no part in the decision, and Grant, J., did not sit. | [
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Morse, J.
This is an action of replevin brought for a stock of goods owned by Jacob May at Frankfort, Mich.
The plaintiffs held a mortgage on this stoek, and there were also four other mortgages upon it. At the time of the trial these mortgages amounted to $6,129.84.
The defendant is the sheriff of Benzie county, and, at the time the writ of replevin was served, was in possession of the goods under attachment levies, and was taking an inventory of the same. Upon the trial the validity of the five mortgages was admitted by, the defendant, and the whole question in issue was whether the sheriff levied in opposition to the mortgage of plaintiffs dr subject to it. The jury found for the plaintiffs, and they had judgment.
We shall notice only such assignments of error as we deem important enough for discussion. Many are assigned that are of no importance whatever.
Mr. McAlvay, of counsel for defendant, stated to the court that they did not contest the mortgages, but did contest the use the parties were making of the mortgages to defraud the unsecured creditors. Mr. Parker, an attorney at law and a witness for plaintiffs, testified, on cross-examination, that, at the time the sheriff levied the attachments, he was in possession of the goods under a foreclosure of a mortgage to one Otto Krause, one of the five mortgages heretofore referred to. He was asked what he had done under "that mortgage. Mr. McAlvay stated, in support of this question, that he proposed to show that there had never been any legal foreclosure of the Krause mortgage; that Parker and Q-. A. Wolf, who were attorneys for all the five mortgagees, were acting jointly and in concert; that they did not intend to foreclose this mortgage legally, but took the steps they did in a pretended' foreclosure for the purpose of using these mortgages to “freeze out” the balance of the creditors. Mr. Pratt, of counsel for plaintiffs, objected to the question, on the ground that defendant’s counsel had stated in .the outset that they did not question the validity of plaintiffs’ mortgage, or' of any of the mortgages; that, if the defendant intended to show a fraudulent use of the mortgages, then it must be that it was proposed to show that the sheriff levied in antagonism to the mortgages, and to maintain that he had a right to do so, because of such fraudulent use. But defendant’s counsel maintained that they did not intend to claim that the sheriff levied in opposition to the mortgages, but subject to them; and that was their main defense upon the trial. This being so, it could not concern the jury whether a fraudulent use was made of the mortgages or not. If the sheriff levied subject to them, they were acknowledged by him to be a lien upon the goods, having preference over his levies. The defendant could not blow hot and cold. He could not claim that he was entitled to recover because he levied subject to the mortgages, and recognized their validity, and was, therefore, entitled to hold joint possession with them, and complete his inventory, and at the same time claim that he was entitled to hold the goods against the mortgages, because they were being fraudulently used to defeat the claims of other creditors. His levies were either made subject to the mortgages, or jn opposition to them. He could not maintain both defenses, as they were antagonistic. The court was right in not permitting any evidence of the fraudulent use of the mortgages to be introduced. The court, however, said to the defendant’s counsel that, if any fraudulent acts could be shown on the part of plaintiffs, such acts would be received in evidence. Nothing of this kind was offered.
' Defendant undertook to show by one Florsheim the estimate of value that Jacob May put upon the stock of goods. This was properly excluded. The admissions of May could not bind plaintiffs, and the offered testimony was purely hearsay. -
The following question was asked the defendant:
“ I will ask you whether or not he made any demand at that time on you, Mr.' Case, for joint possession?” (referring to a conversation on the 7th of January, 1889, with G-. A. Wolf, attorney for plaintiffs, the day before the writ of replevin was served in this suit.)
The question was objected to aS calling for a conclusion of the witness, and excluded by the court. We think the question was a proper one, but as he was permitted to and did give all the conversation he had with Wolf, and also testified that neither Parker nor Wolf asked him for joint possession before the writ of replevin was served, no error was .committed to the prejudice of defendant.
The court admitted considerable evidence as to what was done with the stock of goods after they were replevied, but afterwards struck it out of the case. The rights of the parties in this suit must be fixed by the situation at the time the’writ was issued. What was done with the gpods thereafter was immaterial to the issue in this suit. Cary v. Hewitt, 26 Mich. 228; Merrill v. Denton, 73 Id. 628.
Testimony was introduced of three or more appraisements made of these goods, touching upon their value. The appraisal partly completed by the sheriff before the service of this replevin writ was offered by the defendant. The plaintiffs showed the appraisal made in this suit, and also appraisals made in some attachments levied by the sheriff after the commencement of this suit. It would seem that other -attachments were levied by the sheriff after the service of this writ, and plaintiffs were compelled to replevin the second time. The evidence of the amount of the appraisals under these later attachments, coupled with testimony tending to show that there had been no material change in .the stock since the replevin in this suit, was competent as tending to show the value of the goods replevied.
The testimony of one Vorheis, taken upon another trial in this cause, was read in evidence, upon a showing that he was out of the jurisdiction of the court. This is assigned as error, as no showing was made that his deposition could not have been taken. It was shown that he left that spring or summer (the trial was in September, 1889) for the south, and was somewhere in Tennessee. His family still resided at Frankfort, Benzie county. We think no error was committed in the reception of this evidence. His testimony related to the appraisal in the present suit. He was one of the appraisers. A. J. Doyle and T. C. Anderson were the others. He identified his signature to the appraisal, and gave his opinion as to the' value of the goods, and that he noticed no material difference in the stock between his appraisal and the subsequent appraisal upon the last attachment. It appears that he was fully cross-examihed by the defendant's counsel, which cross-examination was also read in evidence. Mr. Anderson was sworn on this trial, and gave substantially the same evidence as that of Yorheis.
It is contended, that the sheriff had the right to finish his inventory, and could not be disturbed in the possession of the goods until it was completed; and that, after it was done, it was his right to fix the character of his levy, whether it should be in opposition to or subject to plaintiffs' mortgage, but until then his possession was rightful, in any event. The law in this State has been settled against this contention by Merrill v. Denton, 73 Mich. 634, 635.
The court instructed the jury that, if they found that the defendant levied subject to the mortgages, he could not recover, unless the value of the goods was found to be in excess of $6,129.84, the amount of the five mortgages. This is claimed to be error. It is argued that there was nothing due on any of these mortgages at the time the sheriff levied. This would make no difference. If the levies were made expressly subject to all these mortgages, as the defendant was contending they were, then he certainly could not claim anything except the balance remaining over and above the full ■ amount of them. It is said by defendant’s counsel that they were not'trying the case as to all these mortgages, and what the interest of their holders might have been in the goods was of no concern in this suit. But the defendant was beaten by the jury on one of two propositions:
1. That he levied in opposition to the mortgages, which were conceded to be valid, in which case his levies were illegal and void; or—
2. That the value of the goods taken was not in excess of the amount of the mortgages, in which event, if he levied subject to them, there would be nothing covered by his levy.
The charge of the court in this respect was correct.
' The court was asked to instruct the jury that, if plaintiffs’ mortgage had been paid and satisfied, they could not recover. This was refused, and properly so. There was no pretense that the mortgage was paid at the time this suit was commenced, but it was shown by the cross-examination of ope of the plaintiffs that their mortgage had been paid, since the beginning of this suit, by Mr. Krause, who held one of the other mortgages. If Krause’s mortgage was a valid one, and it was conceded on the trial by the defendant that it was, he had the right to pay the mortgage of plaintiffs, which was of the same date and filing of his own; and the plaintiffs could sell it, or receive their pay from him upon it, without detriment to their case in this suit. If, at the time of the issuing of the writ, they-were entitled to the possession of the goods as against the defendant, the fact that their mortgage was afterwards taken up and canceled by another mortgagee could not in any way affect their right to recover judgment against defendant.
It is claimed that the court erred in not instructing the jury, as requested by the defendant, that,—
“At the time of the levy of the attachments in question, the mortgage of the plaintiffs was not due, and they were not entitled to possession of the property levied upon for the purpose of foreclosure.”
The court very clearly submitted the case to the jury upon the only issues in the case, to wit, the character of the levies, whether opposed to or subject to the mortgages; and the value, as connected with the other issue, if they found the levies were subject to the lien of the mortgages. If the plaintiffs had the right of possession for any purpose, it was sufficient. The mortgage contained a clause authorizing them to take possession at any time when they deemed themselves insecure. When the sheriff levied upon the property, and made the levies-in opposition to the mortgage, and refused even to let the plaintiffs into joint possession with him, they were certainly justified in deeming themselves insecure, and in demanding possession of the property. Whether the mortgage was due or not was entirely immaterial, and the court was right in not lumbering up the case with matters entirely irrelevant to the issues involved.
The judgment is affirmed, with costs.
The other Justices concurred. | [
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Champlin, C. J.
This hearing is upon an order requiring respondent to show cause why he should not quash a writ of attachment, referred to in the affidavit of the relator, for the reason that said pretended writ is void, in that it was prepared, issued, and signed by one Marguerite E. Burr, a deputy county clerk; that said Marguerite E. Burr is a woman, and, being so, cannot, under the Constitution and laws of the State of Michigan, hold the office of deputy county clerk, or perform any of the duties of that office.
Article 10, section 3, of the Constitution provides that in each organized county there shall be chosen by the electors thereof a county clerk, whose duties and powers shall be prescribed by law. The duties and powers of the county clerk are prescribed by How. Stat. §§ 571-577. Other duties are prescribed by other provisions of the law. Section 573 authorizes the county clerk-to appoint one or more deputies, to be approved by the circuit judge, one of whom shall be designated in the appointment as the successor of such clerk in case of 'vacancy from any cause, and to revoke such appointment at his pleasure, and the deputy or deputies may perform the •duties of such clerk. The next section makes him and his sureties responsible for the acts of his deputy or dep. uties, and in case of vacancy in the office of clerk by death, etc., the deputies shall severally perform the duties -of clerk until the'vacancy is filled.
The following is the written appointment of Miss Burr:
■“ State of Michigan, Genesee County,
“By virtue of the power in me vested by the statute in such case made and provided, I, George 0. Crane, clerk of said county, do hereby constitute and appoint Marguerite E. Burr deputy clerk of said county, to hold office during my pleasure.
“Given under my hand at the city of Flint, Genesee county, this 3d day of June, A. D. 1889.
“George 0. Crane, -•“Clerk of Geneseé County.
“I approve the above appointment.
“ William Newton,
“Circuit Judge.”
Miss Burr subscribed and swore to the constitutional oath of office, and entered upon the duties of deputy clerk. It will be noticed that in this appointment she is .not designated as successor to the clerk.
The relator contends that under the provision of the ‘Constitution none but an elector can be chosen to the office of county clerk. In this I think he is correct, •but its decision is not essential to the determination of the present case. He further contends, as a necessary consequence, that no one except an elector can be appointed deputy, for the reason that such person may by the statute and the appointment become successor to the clerk until a vancancy can be filled. Miss Burr is not designated as his successor, and if she were it does not follow that the successor during the temporary time in which a vacancy occurs must be an elector. The elect ors have the constitutional right to choose their county clerk, and no one could be appointed for a full term to fill the position in an organized county; but in case of vacancy, the law may provide that another person may be appointed to fill the position and discharge the duties of the office. This is essential for the transaction of the public business, and it is competent for the Legislature to provide that the county clerk may appoint his own successor until a vacancy can be filled in the manner provided by law.
The office- of county clerk is wholly ministerial, and when the law provides that a ministerial officer may appoint a deputy, for whose acts he and his sureties are responsible, and does not limit or restrict him as to whom he appoints, he has authority to appoint whomsoever he pleases. The person appointed acts for him; or, in other words, he acts through his deputy. His choice is not. confined to any race, sex, color, or age. Moore v. Graves, 3 N. H. 408; Golding’s Petition, 57 Id. 146 (24 Amer. Rep. 66); Jeffries v. Harrington, 11 Colo. 191 (17 Pac. Rep. 505).
There was no error in the denial of the motion to quash the writ.
Long and Grant, JJ., concurred.
Morse, J., concurred in the result. | [
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Champlin, C. J.
On the 25th day of December, 1888, between 8 and 9 o’clock in the evening, the plaintiff took passage upon one of the defendant’s cars, but, on account of the number of passengers in the car and upon the rear platform, was compelled to stand upon the front platform of the car, from which he was thrown, and received very severe injuries by his leg being run over and crushed by one of the car-wheels. The court-took the case from the jury, and directed a verdict for the defendant.
The declaration in the case alleges the duty of the-defendant company, which plaintiff claims it violated, as-follows:
1. To provide and furnish said plaintiff a safe and convenient seat 'or place to ride while being so conveyed as such passenger.
3. To provide prudent, safe, and competent agents to-manage said car, and provide for his safety as such passenger.
3. Not to drive said ear at such a rate of speed as to be dangerous to said passengers, and to the plaintiff as a-passenger.
4. To have a chain or guard across the passage-way down the steps at the end of the front platform extending across the passage-way, for the safety of passengers.
5. To slacken the speed of the car and to stop when called upon to do so by the plaintiff at the time he-slipped and fell from the car, while he was hanging to-the guard-rail of the car.
The neglect of duty alleged by the plaintiff in his-declaration is as follows:
1. That the defendant wrongfully, negligently, and carelessly then and there furnished and provided imprudent and incompetent agents, to wit, the driver and conductor then in charge of the car.
3. That the defendant wrongfully and negligently failed to provide a safe and suitable seat or place for the plaintiff in and upon such car as such passenger, and negligently and carelessly allowed the car to be so filled and crowded as to prevent- the plaintiff from passing inside the car, which in the exercise of due care he endeavored to do, and thereby wrongfully compelled him to stand and ride upon the front platform of said car.
3. That while he was so lawfully standing and riding, and in the exercise of due care on his part, the defendant wrongfully and negligently had no chain or guard across the passage-way down the steps at the end of the front platform on the right hand of the car so moving eastward, but wrongfully and negligently allowed said chain or guard to be hanging there, not in’use, and not hooked up as a guard and protection across the steps in its usual place where it was customary to keep the same.
4. That the driver and conductor wrongfully, recklessly, and carelessly mismanaged said car, and were then and there going at a high rate of speed, when the driver wrongfully and carelessly, without any notice or warning to the plaintiff, struck .the horses a blow with his whip, causing them to jump forward, giving the car a sudden jerk and a pitching, rocking motion, and still further increasing its speed to a high and dangerous rate, just as it was passing the cross-walk on Biopelle street, thereby then and there throwing the plaintiff from the platform at the right hand thereof, causing him to slip from the step, and to'swing around to his right towards the car, while trying to save himself by clinging with his right hand to the hand-rail of the car, the swift motion of the car dragging him backwards, while struggling to recover himself, and while calling, as he then did, to the driver to stop or slacken the speed of the car, and causing him to fall upon his back with his leg across the rail of the track, so that the car-wheel ran over it, and crushed the ankle-joint and bones of the leg below the knee, and cut, crushed, and bruised the flesh of his leg.
The declaration, having set out the duty of the defendant, and its neglect to observe such duty, then states that, “by reason of the wrongful and negligent acts of the defendant aforesaid, the plaintiff was seriously hurt,” etc.: and concludes, “whereby, and by reason of the premises aforesaid, the plaintiff hath sustained damages,” etc.
The testimony introduced upon the trial showed that the plaintiff and his father took passage upon the car on the night stated, and that the car was filled inside, and the rear platform also, and that they were obliged to take passage upon the front platform; and that while riding in that, place, with his back against the car and holding onto the guard-rail at the right with his right hand, the driver struck the horses with his whip, which caused the car to swerve to the left; and, as he was standing on the right hand of the door of the car, his back was thrown against the end of the car, and he went to pitch forward to try to recover his footing, slipped down the step, striking his hip against it, and, hanging to the guard-rail, his back was turned towards the horses. He tried to regain his footing, and did regain it, and tried to get back on the car, but slipped off the lower step, and was swung around, and, still hanging by his right hand, was dragged along the ground, and his foot was caught under the wheel of the car, and run over. He called to the driver to stop, and he testifies that the driver “appeared to be having all he could do to attend to his horses. They were kind of unmanageable, and he did not see me, or did not stop the car until I was run over.” He testifies that he thought he shouted, loud enough for him to hear, but he did not make any attempt to stop the car. The word he used when he called out was “Stop!” as loud as he could. He testifies that the driver did not go over 10 or 15 feet after the car ran over him until it was stopped.
The plaintiff’s father was also sworn as a witness on behalf ;pf the plaintiff, and testified that he was also riding upon the front platform on the left of the door; that the road appeared to be very rough; that the car swayed and swerved a great deal, with a kind of rocking motion, and that he held onto the dash-board with both hands; that the driver struck the horses a blow with the whip, which caused them to start suddenly. He also, testified that the driver was driving with loose lines, and did not make any effort to stop when his son called out, “ until he went quite a little past; that he told the driver to stop, that the boy had fallen off; that the driver went only a short distance, he did not think he went over half a car, from the time he got hurt, but from the time he fell off “he must have gone three or four rods, anyway.” He also testified that there was no guard across the steps on either side of the platform. The plaintiff testified as to the speed at which they were going as follows:
“ They seemed to be going quite rapidly. I have seen them drive fully as, fast plenty of times, and a good deal slower. They seemed to have a good rate of speed; that is, at the time I fell off.”
Testimony was also introduced tending to show that the driver was behind time, and was endeavoring to make it up.
The plaintiff introduced in evidence sections 4 and 5 of chapter 107 of the Revised Ordinances of 1890, as follows :
“Sec. 4. Every street-railway company in the city of Detroit shall so inclose and guard the front platform of each car operated and run bjr any such company within the limits of the city as to prevent passengers from getting on or off such platform. (Approved July 14, 1873.)
“Sec. 5. No conductor or driver on any street-railway car, while such car is in use, shall permit any person to enter or leave the same by way of the front or forward platform; and no person, when the forward platform of any street-railway car in actual use is inclosed or guarded, as required in the preceding section, shall enter or leave, or attempt to enter or leave, such car by the forward platform thereof; and no person under the age of sixteen years shall ride on the rear platform of any street-railway car, or get on or off the same while said car is in motion. (Approved May 4, 1876.)”
There was no testimony introduced upon the trial which tended to show that the car upon which the plaintiff, was riding had a chain or any other device for preventing persons from entering or leaving by way of tbe forward platform, or to protect them while riding thereon.
The only testimony bearing upon the question of the negligence of the company or its agents, namely the conductor and driver, in the management of the car, was the testimony showing that the car was filled with passengers inside, and the rear platform was also filled, so-that the plaintiff could not obtain passage inside the car, and was thereby compelled, if he rode upon that car, to-take passage upon the front platform. This he had a. right to do, and it was not negligence on his part so to-occupy the front platform under the circumstances. Upham v. Railway Co., 85 Mich. 12. It does not appear from the plaintiff's own testimony that the car was driven at an unusual rate of speed, and it does appear that the accident happened upon a straight track, and that there was- nothing calling upon the defendant and its. agent to give any special warning that he was about to use his whip upon his horses. The plaintiff.was in position where he could observe the movements of the driver,, and was as well qualified to see and know when the whip-was used as if he had been warned by the voice of the driver that he was about to strike his horses. The position he occupied upon the ear was one fraught with danger, and called upon him to use diligence commensurate to the dangerous position he occupied. It is true-that the railway company owed to him, while riding in that place, increased care not to so conduct and manage its ears as by its neglect to cause him injury, and it is. a question of fact which ought to be submitted to a jury-to determine whether or not the position of riding upon the front platform of a street-car is so dangerous that the company, in discharging its duty to the public, should construct some kind of a guard to prevent them from being thrown from the car.
It was said in the case above referred to that it was difficult to see upon what reason the, courts can hold that platforms of cars are dangerous, and that persons who ride there assume all the risk, and thereby relieve such companies from all liability, except for gross, willful, and wanton misconduct; and, under the facts of that case, it was said that the question of the negligence of the plaintiff, as well as of the defendant, belonged to the jury to determine, and should have been submitted to them under proper instructions. We think this case comes within the ruling above referred to, and should have been submitted to the jury.
The judgment will be reversed, and a new trial ordered.
The other Justices concurred. | [
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•Long, J.
On the 24th day of January, 1888, plaintiff' became a member of the defendant company, taking out. a policy on his dwelling-house, furniture, clothing, and provisions therein, and upon his barn, hay, and grain. On the 20th day of January, 1890, his house and contents were destroyed by fire. He presented his proofs of loss to the secretary of the company, and asked to have it adjusted. The company refused payment upon the ground that he had voluntarily withdrawn from the company prior to the time of the fire. This action was commenced by declaration, and the defendant pleaded the general issue,' with notice of such voluntary withdrawal. On the trial, verdict and judgment were rendered for the defendant.
Plaintiff brings error. But two questions are raised in this Court.
The only question at issue below was whether the plaintiff, at the time of his loss, was a member of the -company. Mr. Rose, secretary of the company, testified that on November 21, 1889, the plaintiff paid up his dues and assessments, and directed him to take his name off the books, as he desired to withdraw from the company; and that in pursuance of that he made an entry upon the books in pencil, “ Withdrawn, Nov. 21, 1889;. policy not returned.” Mr. Rose further testified that he-had a conversation with plaintiff some time before( this, three or four weeks, in regard to his insurance, in which the plaintiff said the insurance was too high, and he-could not stand it, and he would have to carry his own-insurance thereafter; that when the $4 was paid, bn November 21, he told' the plaintiff he would take his-name off the books, and would do it that night, to which the plaintiff responded, “Very well,” and that he made an entry upon the books that same evening; that the $4 paid all the plaintiff's assessments and dues up to that time, and since which time the plaintiff has not been treated as a member of the company; that he reported this fact to the directors of the company at their meeting on January 7, 1890.
The plaintiff contends, and so testified upon the trial',, that he never stated to the secretary that he intended to-withdraw from the company, and had no talk with him in reference to a withdrawal, but that he paid his assess ments, when called upon, and still regarded himself as a member of the defendant company.
The question thus raised was submitted by the court in its general charge to the jury, and they were directed:
“If Mr. Schroeder did meet Mr. Rose, the secretary of the company, and square up everything with the company, and it was agreed between them, or was talked so that each undex-stood it, and undex-stood it alike, that that should end their relations under this policy, then I charge you, as a matter of law, it was a contract which rescinded or ended their x-elations; and if they agreed to it, and undex-stood it alike, and parted with that understanding, then I say that Mr. Schroeder ceased to be a member of the company, and the company ceased to be liable to him for any obligations, and he ceased to be liable for any."
The court further instructed the jury as follows:
“ Now, then, gentlemen of the jury, in this policy, if the company desired to, there is a provision in the charter whereby they could require of Mr. Schroeder, before they released him from the obligations, that he surrender the policy. That was a matter they had a right to demand of him. If he had the policy, they had a right to have it surrendered before they released him, because the charter says that any member may be released from his connectioxxs by delivering his policy, and so signifying, and having it understood it squared up his account; and the undisputed evidence is that he did square up all his account with the company." *■
The contention of plaintiffs counsel is that the court, was in error—
1. In leaving it as a question of fact for the jury to determine whether the plaintiff was a member of the company at the time of the fire.
2. In charging the jury that “ the undisputed evidence is that he [plaintiff] did square up all his accounts with the company.”
The defendant is a mutual insurance compan}', and each policy-holder is a member. Among the provisions of the defendant’s charter is the following:
“Any member may, at any time, withdraw therefrom by returning his or her policy or policies to the secretary, and by paying all assessments made, or liable to be made, for previous losses and debts, and claims then due, or liable to become due, from such member to the company.”
It appears that the policy was never surrendered, and that the plaintiff has at all times paid and kept up his assessments since the time he became a member of the defendant company. This provision of the charter, which required the surrender of the policy at the time of withdrawal, points out the manner in which the insured ceases to be a member of the company, and, under the circumstances here shown, it was the duty of the court to direct the jury that the plaintiff was yet a member at the time of the fire and of the trial of the case, for the reason that he had not complied with the terms and conditions of the charter by surrendering his policy at the time the secretary claims he withdrew from the company.
The court in its charge seems to have understood the right of the company to require the surrender of the policy before the withdrawal became operative and effective, so far as the rights of the company are concerned, and yet he directed the jury that the withdrawal became complete, if the secretary and the plaintiff so understood it, though the policy was not surrendered. In this the court was in error. There was no such act done as required by the charter in order to withdraw from the company, and, had a fire occurred by which other members met with losses, the plaintiff could have been held liable to an assessment for his proportionate share of such losses. This obligation still resting upon the plaintiff, the defendant company must be held equally bound, under the circumstances, to pay the plaintiff’s loss.
But even under the theory adopted by the court, that this arrangement, as testified to by the secretary, amounted to a release of the company, and operated to release the plaintiff from the company, the court was in error in stating to the jury that the undisputed testimony showed that plaintiff squared up all of his account with the company. The plaintiff testified that he paid all his assessments upon that date as demanded by the company, and did not intend to withdraw, contradicting what the-secretary had testified to in regard to his intended withdrawal. From the language used by the court in its charge, the jury must have understood that there was. no dispute by the plaintiff that he intended to and did square up his account, which is denied by the plaintiff, except that he paid his assessment as demanded.
The verdict and judgment must be set aside, and a. new trial ordered.
Champlin, 0. J., Morse and McGrath, JJ., concurred with Long, J.
Grant, J.
I cannot concur that the surrender of the policy was essential to withdrawal.
If the testimony of the secretary was disputed, it should have been left as a question of fact for the jury. | [
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R. L. Tahvonen, J.
The City of Mantón sued to recover losses it suffered because of the embezzlement of tax moneys by its former treasurer, Carol Ryder. The trial court granted summary disposition to all defendants other than the Ryders pursuant to MCR 2.116(C)(8) and (10). The city appeals as of right and we affirm.
In December, 1981, Carol Ryder embezzled $26,-468.03 in tax receipts she had collected from Man-ton taxpayers in her capacity as city treasurer. In March, 1982, Ryder paid the Wexford County Treasurer the amount of the tax receipts by misappropriating money from the city’s general fund. At the beginning of the 1982 tax year, Ryder embezzled an additional $3,567.87 in tax receipts before being discovered.
After discovering Ryder’s acts of embezzlement, the city filed this lawsuit, seeking to recover the missing moneys for the two tax years. In its complaint, the city claimed that St. Paul was liable for the $26,468.03 embezzled during December, 1981, because St. Paul was the surety on a short-term tax bond issued to the County of Wexford for the period of December 1, 1981, to April 15, 1982. The city claimed that it was an obligee under the bond, which listed Ryder as a principal and covered certain losses that might be sustained by Wexford County due to Ryder’s failure to pay over state and county taxes to the county treasurer.
St. Paul denied liability in its answer, asserting that the city was neither a real party in interest nor an obligee under the blanket bond. St. Paul subsequently filed a motion for summary disposition pursuant to MCR 2.116(0(10), contending that there was no genuine issue as to any material fact since St. Paul was bound only to the county and not to the city as a surety on the bond.
The city also filed a claim for the $3,567.87 embezzled from its 1982 tax receipts against the Wexford County Treasurer and the County of Wexford. The city alleged that the county treasurer’s failure to provide a corporate surety bond protecting the city for the delivery of its 1982 tax receipts was a breach of the county treasurer’s official duty and that the county and its treasurer was therefore liable for all losses proximately caused by that breach.
In response, the county and its treasurer filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), claiming that the city had failed to state a claim upon which relief could be granted.
The city also claimed that Auto-Owners was liable for the $3,567.87 because it was a surety of an official bond issued to the county treasurer as principal and the county as obligee. Auto-Owners moved for summary disposition pursuant to MCR 2.116(C)(8) on the ground that the city had failed to state a claim upon which relief could be granted because the county was the sole obligee on the county treasurer’s official bond, the purpose of which was to protect the county, rather than the city, from losses and wrongdoing.
After hearing arguments, the trial court issued its opinion granting defendants’ motions. The circuit judge ruled that the city was not an obligee under the bond issued by St. Paul and that Wexford County and its treasurer did not owe plaintiff a duty to provide a bond. Therefore, plaintiffs claims against St. Paul, Wexford County and its treasurer, and Auto-Owners were dismissed.
I
On appeal, the city first claims that the circuit judge erred in finding that the city was not an obligee under the 1981 short-term bond issued by St. Paul. We disagree.
St. Paul moved for summary disposition pursuant to MCR 2.116(0(10), claiming that there was no genuine issue of material fact. Such a motion tests the factual support for a plaintiffs claim. In ruling on the motion, the court must consider the affidavits submitted, pleadings, depositions, admissions and documentary evidence. MCR 2.116(G)(5). The party opposing the motion must show that a genuine issue of disputed fact exists. The test is whether, giving the benefit of any reasonable doubt to the nonmoving party, it is impossible for the claim to be supported at trial because of some deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 371-373; 207 NW2d 316 (1973); Davis v State Farm Mutual Ins Co, 159 Mich App 734; 407 NW2d 1 (1987).
The short-term tax bond issued by St. Paul was required by §43(2) of the General Property Tax Act, MCL 211.43(2); MSA 7.84(2), which requires a city or township treasurer to give the county treasurer a bond. That section states in pertinent part:
The treasurer, immediately upon authorization to raise money by taxation pursuant to an election held under section 36, or on or before the third day immediately preceding the day the taxes to be collected become a lien, shall give to the county treasurer a bond running to the county in the actual amount of state, county, and school taxes, except school taxes collected through a city treasurer, with sufficient sureties to be approved by the supervisor of the township and the county treasurer, conditioned that he or she will pay over to the county treasurer as required by law all state and county taxes, . . . which he or she shall collect during each year of his or her term of office and duly and faithfully perform all the other duties of the office of treasurer. If a corporate surety bond is provided, then the bond shall be approved only by the county treasurer. [Emphasis added.]
Although the statute refers to a township treasurer, the word "township” includes "city” whenever the act speaks of property tax collection functions. MCL 211.107(2); MSA 7.161(2).
The bond issued by St. Paul is a statutory bond because it is required by statute. Comm’r of Ins v Central West Casualty Co, 301 Mich 427, 432; 3 NW2d 830 (1942). We construe a statutory bond in light of the statute which requires it, interpreting the bond according to the statute’s purpose, intent and meaning. See General Electric Credit Corp v Wolverine Ins Co, 420 Mich 176, 191; 362 NW2d 595 (1985). As noted by the Court in Comm’r of Ins, supra, p 432:
A statutory bond is one commanded or provided by statute. In such a bond, the existing law becomes a part of the bond, omitted conditions required by law are read into the bond and conditions contrary to the law are read out of it. The doctrine of "what is omitted will be read in and what is in conflict will be read out” applies only to bonds required by statute.
The city here argues that the statute requires that the bond insure the public for any acts of malfeasance by township or city treasurers. In support of its argument, the city cites the language of § 43(2) that requires that the bond contain sufficient sureties that the local treasurer will pay over the tax receipts to the county and "duly and faithfully perform all the other duties of the office of treasurer.” We disagree with plaintiff for two reasons.
First, the language of the bond in question is clear. Township and city treasurers are designated as principals and St. Paul, having issued the bond, is the surety. Wexford County is the only named obligee. Should one of the principals fail to pay over to the Wexford County Treasurer all state and county taxes as required by law, St. Paul is obligated only to Wexford County to answer for the principal’s wrongdoing.
Second, when reading the bond in light of the statute, we conclude that the bond in question protects only Wexford County and not plaintiff. Section 43(2) expressly requires that the township or city treasurer "shall give to the county treasurer a bond running to the county in the actual amount of state, county, and school taxes . . . .” Thus the purpose of the bond is to secure a township or city treasurer’s obligation to pay tax receipts over to the county. The statute does not require a bond to protect townships or cities. We presume that the Legislature knew the meaning of the language used in drafting the statute and drafted the statute consistent with that meaning, unless a contrary intention is manifested. General Electric Credit Corp, supra, p 189; Advisory Opinion on Constitutionality of 1978 PA 426, 403 Mich 631; 272 NW2d 495 (1978). Had the Legislature intended that the bond required by § 43(2) protect local governments as well as the county, it could have drafted the statute to expressly require such a bond. However, the Legislature did not do so. '
As noted in the circuit judge’s opinion dismissing the city’s claim against St. Paul, the city’s interpretation of § 43(2) would require counties to provide sureties for all local treasurers, covering any acts of malfeasance, whether tax related or not. We find such an interpretation unreasonable. Section 43(2) is part of the General Property Tax Act, and we conclude the Legislature did not intend that it be interpreted as broadly as the city suggests. Furthermore, to interpret § 43(2) to require a bond that would protect cities in addition to the county would render superfluous the statute requiring city treasurers to give bonds to the city governments as security for the faithful discharge of their duties. See MCL 41.77, 85.11; MSA 5.69, 5.1633.
We find the reasonable interpretation of § 43(2) to be that it requires a bond protecting only the county from any losses or defalcations related to the remittance of the state and county taxes by local treasurers.
In light of the clear meaning of both § 43(2) and the statutory bond issued here, we conclude that the circuit judge properly ruled that the city was not an obligee under the bond issued by St. Paul. Therefore, the circuit judge properly granted St. Paul’s motion for summary disposition. We affirm the circuit court order dismissing plaintiffs claim against St. Paul.
II
The city also argues that the trial court erred in dismissing its claim against defendants Wexford County Treasurer, the County of Wexford, and Auto-Owners to recover the $3,567.87 embezzled from the city’s 1982 tax receipts. In its complaint, the city alleged that the county treasurer had a duty under § 43(2) to obtain a corporate surety bond indemnifying the city in the event that Carol Ryder breached her official duty to pay over the 1982 tax receipts to the county treasurer and that the county treasurer’s failure to obtain such a bond was a proximate cause of the loss the city suffered as a result of Ryder’s embezzlement. The city named the County of Wexford as a defendant, alleging that the county was chargeable with the loss occasioned by its treasurer pursuant to MCL 211.91; MSA 7.146. Auto-Owners was joined as a defendant because it had issued a bond covering the Wexford County Treasurer.
Defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The Wexford County Treasurer and the county filed a joint motion pursuant to GCR 1963, 117.2(1), and Auto-Owners filed its motion pursuant to MCR 2.116(C)(8). In deciding the motions, the circuit judge treated both as having been brought under MCR 2.116(C)(8).
A motion for summary disposition alleging failure to state a claim upon which relief could be granted tests the legal sufficiency of the pleadings. In deciding the motion, the lower court accepts as true all well-pleaded facts. The motion should be granted only if the claim is so clearly unenforceable as a matter of law that no factual development could possibly supply a basis for recovery. Abel v Eli Lilly & Co, 418 Mich 311, 323-324; 343 NW2d 164 (1984); Tobias v Phelps, 144 Mich App 272, 275-276; 375 NW2d 365 (1985).
We find that the circuit judge properly granted defendants’ motions and dismissed the city’s claims. As noted in our discussion of the dismissal of the city’s claim against St. Paul, § 43(2) requires only a bond protecting the county from defaults by local treasurers in remitting the state and county taxes to the county treasurer. The statute does not mandate that a bond for the benefit of townships or cities be provided. Therefore, the city’s allega tion that the county treasurer had a duty under § 43(2) to provide a bond for the city’s benefit was inconsistent with the law. Carol Ryder, as city treasurer, was required to give her own bond to the city conditioned on her faithful discharge of her duties as city treasurer. See MCL 85.11; MSA 5.1633.
In addition, the claim that the county treasurer’s failure to provide a corporate surety bond was a proximate cause of the city’s loss is without merit. As discussed above, the bond required by § 43(2) protects only the county from losses or defalcations resulting from a local treasurer’s misconduct. Such a bond would not indemnify the city for Ryder’s acts of embezzlement, which were the cause-in-fact of the city’s losses.
Because § 43(2) does not mandate that the county treasurer provide any bond for a township’s or a city’s benefit, we find that the city’s claim against the Wexford County Treasurer is clearly unenforceable as a matter of law. Consequently, Wexford County cannot be charged with the city’s loss, and therefore the city’s claims against the county and Auto-Owners, as the county’s surety, are also unenforceable. We affirm the circuit judge’s orders dismissing the claims against those defendants.
Affirmed. Costs to appellees. | [
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Per Curiam.
Plaintiff Andrew H. Veldhuis, M.D., appeals from the circuit court order granting summary disposition to defendants Christian Allan, M.D., John M. Caldwell, M.D., Jennifer L. Brendle-Kozar, D.O., Donald N. Nagler, M.D., Lloyd J. Helder, M.D., Gilbert Klickstein, M.D., Daniel P. Radowski, M.D., Victor B. Lebedovych, M.D., Glenn E. Lowery, Zachary Kanjuparamban, M.D., Davis Clinic and Central Michigan Community Hospital. MCR 2.116(0(10). Defendant John M. Lowenbergh, M.D., was dismissed by stipulation.
This controversy arose out of the termination of plaintiffs staff privileges at defendant Central Michigan Community Hospital. A brief synopsis of relevant procedural facts was set forth in this Court’s earlier opinion:
Plaintiff is a medical doctor specializing in obstetrics and gynecology. Defendant Central Michigan Community Hospital is a private community hospital and a Michigan non-profit corporation. Defendant Lowery is the administrator of the hospital.
Plaintiff had staff privileges at the hospital for upwards of twenty years. He was advised on or about November 7, 1983, that his privileges were being suspended and that he had a right to a hearing, which was set for November 15, 1983. The action was taken pursuant to a recommendation of the hospital’s Medical Executive Committee, which in turn was based on audits which had found substandard care by plaintiff. The notice cited over 400 cases of alleged inappropriate conduct extending over a period of more than four years. On November 9, 1983, plaintiff received an amended notice which listed over 300 cases.
Plaintiff filed an application in the circuit court for a restraining order and an order to show cause why a temporary injunction should not be entered until the complaint could be heard. The complaint alleged that plaintiff was being denied procedural due process under the federal and state constitutions. The restraining order was granted and a hearing was set to determine whether an injunction should issue.
Defendants moved for accelerated judgment. The trial court granted the motion, finding that it lacked subject-matter jurisdiction to review a private hospital’s decision to suspend a staff physician’s privileges. Plaintiff appeals. [Veldhuis v Central Michigan Community Hospital, 142 Mich App 243, 244-245; 369 NW2d 478 (1985), lv den 422 Mich 970 (1985).]
This Court affirmed, holding that there is no judicial review of a private hospital’s decisions on staff privileges or of the method by which hospital personnel reach such decisions. 142 Mich App 247.
Prior to this Court’s decision, the hospital board of trustees had revoked plaintiff’s staff privileges. After issuance of this Court’s decision, plaintiff commenced the instant lawsuit. In addition to hospital administrator Lowery, the individual defendants are physicians who had staff privileges at defendant hospital and were members of the medical executive committee of the hospital or members of the fair hearing committee which conducted an evidentiary hearing and which filed a report with the medical executive committee recommending that, unless an acceptable method of monitoring plaintiff’s judgments and procedures could be developed, his privileges should be revoked. Several of the individual defendants are associated with defendant Davis Clinic in Mt. Pleasant. As chairperson of the Ob/Gyn department of the hospital, defendant Allan submitted a request to the medical executive committee that plaintiff’s privileges be revoked. Defendant Allan also testified at the fair hearing and, pursuant to the medical staff by-laws, was a member of the medical executive committee which recommended to the board of trustees that plaintiffs privileges be revoked.
In his multicount complaint, plaintiff alleged the "malicious” nature of defendants’ conduct in the steps leading to revocation of his staff privileges. Citing MCL 331.531; MSA 14.57(21), the court granted defendants’ motions for summary disposition, finding no genuine issue of material fact. MCR 2.116(0(10). We affirm.
The function of a motion for summary disposition under MCR 2.116(0(10), is well established:
A motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(0(10), asserts that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Such a motion should not be granted when there is an issue of material fact, since the motion tests the factual support for plaintiffs claim. The trial court must consider the affidavits submitted, pleadings, depositions, admissions and documentary evidence. The opposing party must show that a genuine issue of disputed facts exists. The test is whether the kind of record which might be developed, giving the benefít of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. This Court is liberal in finding a genuine issue of material fact. Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309, 314; 385 NW2d 778 (1986). [Meeka v D & F Corp, 158 Mich App 688, 690-691; 405 NW2d 125 (1987). Emphasis supplied.]
Plaintiff argues that his claims are not barred because the defendants acted with malice. He relies on the malice exception to the immunity conferred upon persons and review entities under MCL 331.531; MSA 14.57(21):
A person, organization, or entity may provide information or data relating to the physical or psychological condition of any person, or the necessity, appropriateness, or the quality of health care rendered to any person, to any review entity. Review entity means a duly appointed peer review committee of the state, of a state or county association of health care professionals, of an officially constituted health care facility, or of a health care association; a professional standards review organization qualified under federal or state law; a foundation or organization acting pursuant to the approval of a state or county association of health care professionals; or a state department or agency whose jurisdiction encompasses such information. Liability of any kind shall not arise or be enforced against any person, organization, or entity by reason of having provided such information or data; by reason of any act or communication within its scope as a review entity; or by reason of having released or published the proceedings, reports, findings, or conclusions of the review entity subject to the limitations of sections 2 and 3. The immunity in this section shall not apply to a person, organization, or entity that acts with malice. [Emphasis supplied.] •
We agree with defendant Davis Clinic that the definition of malice applicable in defamation actions also seems appropriate in the context of MCL 331.531; MSA 14.57(21). See Regualos v Community Hospital, 140 Mich App 455, 463; 364 NW2d 723 (1985), lv den 423 Mich 861 (1985), citing Lins v Evening News Ass’n, 129 Mich App 419; 342 NW2d 573 (1983). Applying that definition, the statutory immunity does not apply only if the person supplying information or data does so with knowledge of its falsity or with reckless disregard of its truth or falsity. 129 Mich App 432. Similarly, a review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data which it communicates or upon which it acts.
In this case, plaintiff presented no evidentiary support for his allegations of malice. In contrast to the voluminous evidence supporting defendants’ claims that their actions were based on numerous instances of serious deficiencies in plaintiff’s medical judgment, plaintiff offered only speculation concerning defendants’ alleged nefarious motives. There was no evidence that false information was ever knowingly presented or that defendants acted in reckless disregard of the truth or falsity of the information which they presented or upon which they relied.
As in Regualos, supra at 463, the record in this case "reveals that the physicians responsible for reviewing plaintiff’s case in the intrahospital proceedings fair-mindedly sought to assess plaintiff’s competency.” The procedures set forth in the bylaws were followed in the consideration of plaintiff’s case. Three outside experts conducted extensive reviews of plaintiff’s files; they found serious problems of substandard care as evidenced primarily by numerous unjustified Caesarean sections, exploratory laparotomies, uterine suspensions and multiple surgeries. To the extent plaintiff complains of the decision of the board of trustees to revoke plaintiff’s privileges rather than to direct that he be monitored, judicial review is not available. Veldhuis v Central Michigan Community Hospital, supra at 247.
We find that the record which might be developed would not justify reasonable minds in concluding that defendants acted with malice. The order granting summary disposition to defendants is affirmed.
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Per Curiam.
This case is part of the continuing saga of interpretation of MCL 500.3106(2); MSA 24.13106(2), with a seeming conflict between Marshall v Roadway Express, Inc, 146 Mich App 753; 381 NW2d 422 (1985), and MacDonald v Michigan Mutual Ins Co, 155 Mich App 650; 400 NW2d 305 (1986), lv den 426 Mich 852 (1986).
Plaintiff in this case was an intercity truck driver for United Parcel Service who was injured on May 7, 1983, when he had made a run from Ohio to the ups center in Livonia. Plaintiff’s statement and deposition indicated that he arrived at the center on a Saturday when no unloading would take place. Plaintiff backed his truck up to a security door, flush with the door to prevent anyone from gaining entry to the trailer over the weekend. He indicated that he would not be unloading the trailer, but that someone from the Livonia center would do the unloading on Monday. After plaintiff had backed up the truck, he exited from the tractor, leaving the motor running and the door open. Plaintiff then pulled a lever that dropped the legs that would support the trailer when the tractor was pulled away. He released the trailer from the tractor, removed the air and electrical connections between the trailer and tractor, then attempted to dismount from the tractor by stepping on one of the fuel tanks, but slipped and fell, injuring his back. Plaintiff also claimed in his counterstatement of facts on appeal that it was his job to haul trailers from one city to another. Every day he would attach and decouple a trailer to or from the tractor, but plaintiff did not unload or load goods inside the trailer. Trailers that he dropped off would frequently be attached to another tractor and hauled to another city without being unloaded.
Defendant was voluntarily paying plaintiff compensation benefits due to the injury. Plaintiff com menced an action for first-party no-fault benefits against the defendant on November 1, 1984. In 1986, plaintiff filed a motion for summary disposition with defendant also filing a similar motion. Both motions, based upon MCR 2.116(0(10), alleged that no genuine issue of material fact existed. The Wayne Circuit Court granted plaintiffs motion and denied defendant’s motion. Defendant appeals as of right, claiming that plaintiffs suit is barred by MCL 500.3106(2); MSA 24.13106(2).
The statutory provision in effect at the time the incident occurred read as follows:
Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker’s disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. [MCL 500.3106(2); MSA 24.13106(2).][ ]
The trial judge, in granting summary disposition to the plaintiff, apparently relied upon Marshall, supra, where this Court held that a plaintiff who decoupled his trailer and was run over by the tractor was not precluded from receiving no-fault benefits under § 3106(2). As noted in the Marshall case, under prior law, dock workers, warehouse workers and mechanics were able to collect no-fault benefits as well as workers’ compensation benefits despite the fact that they never operated a motor vehicle. The Legislature sought to eliminate that duplication of benefits except where actual driving or operation of a motor vehicle is involved.
More recently, in the MacDonald case, decided in 1986, this Court held that § 3106(2) barred recovery of no-fault benefits when a plaintiff who was employed by a trucking company as a mechanic was injured during the process of placing a trailer axle in a different location on the trailer box. In dictum, the MacDonald Court dealt with the question of the loading or unloading language of § 3106(2) because plaintiff’s deposition testimony indicated that he was in the process of moving the trailer axle so that the trailer could more easily be backed into the loading dock to either load or unload. Judge T. M. Burns, who had been on the Marshall panel, dissented in the MacDonald case, stating that "plaintiff’s action in this case is more properly considered as a part of the delivery process than as a part of the unloading process.” 155 Mich App 661. We agree with Judge Burns’ dissent and affirm the trial court in this action._
Defendant relies on both Gray v Liberty Mutual Ins Co, 149 Mich App 446; 386 NW2d 210 (1986), lv den 425 Mich 885 (1986), where the plaintiff injured his back twice, first when he picked up packages in the back of his truck to be unloaded at his next stop and ten days later when he bent over to pick up a package to immediately unload it from his truck, and Bell v F J Boutell Driveaway Co, 141 Mich App 802; 369 NW2d 231 (1985), where the plaintiff who was delivering cars to a dealership removed a chain which secured a car to the trailer during transport and while walking around the trailer to release the chain on the other side fell and was injured.
We find that the instant case differs from both cases cited by defendant. In both of those cases a claimant in fact was involved in the process of loading or unloading, specifically dealing with the cargo or freight involved, while in the instant case plaintiff was not intending to deal in any way with the cargo or freight.
Defendant argues that the subjective intention of a particular claimant can create very difficult problems relative to evaluating each case; while we agree with that particular concern, it is necessary that the legislative intent be an important part of the consideration. In Bell, supra, this Court examined the legislative history of this subsection in depth, utilizing the House Legislative Analysis Section’s report on the legislation to discover the intended purpose of the amendment. The primary problem stemmed from double recovery permitted by the prior § 3106 where dock workers, warehouse workers and mechanics were able to collect both workers’ compensation benefits and no-fault benefits though they never operated a motor vehicle. We believe that the legislatively expressed intent is entirely different when it relates to the actual operator of a motor vehicle, as is found in this case.
Defendant, while not raising the issue in the trial court, on appeal raises the question of the claimant’s doing "mechanical work.” The issue was not argued at the motion hearing but was included in plaintiff’s written motion. This Court has determined that, like the words "loading or unloading,” the phrase "doing mechanical work” must be liberally interpreted. Dowling v Auto Club Casualty Ins Co, 147 Mich App 482; 383 NW2d 233 (1985); Marshall, supra. In Marshall, this Court stated:
While a broad definition of that term may be appropriate, we do not feel that it should include activity which is not designed to maintain or repair the truck and is routinely performed in the truck’s operation. . . . We feel that "mechanical work” means that work normally done by a mechanic which is for the purpose of maintaining or repairing the vehicle. [Marshall, supra, p 757.]
Defense counsel also, in oral argument, referred to Yates v Hawkeye-Security Ins Co, 157 Mich App 711; 403 NW2d 208 (1987), arguing that this Court has adopted a broad definition of maintenance of a motor vehicle. Yates is easily distinguishable from the instant case. In Yates it is noted that the trial judge granted summary disposition based upon a finding that plaintiff’s injuries did not arise out of the maintenance of a motor vehicle as a motor vehicle. Under MCL 500.3105(1); MSA 24.13105(1), a claimant is entitled to personal protection benefits "for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” This Court disagreed with the trial court and held that be cause plaintiff was injured while preparing to tow an automobile, and towing constitutes maintenance of a motor vehicle, plaintiff was entitled to benefits under § 3105(1) of the no-fault act. Furthermore, we believe Yates is inapplicable because this Court in Yates specifically found that the parked vehicle exception did not apply, while in this case we find that there clearly is a parked vehicle.
Plaintiff in this case was not "engaged in repairing a defect, performing preventative maintenance or making an adjustment to alter operating characteristics . . . .” MacDonald, supra, p 656. We agree with the trial judge that the plaintiff was not doing mechanical work when injured and we are satisfied that the finding in Marshall controls in this case.
Affirmed.
In oral argument plaintiff’s counsel noted that the Legislature has amended MCL 500.3106(2); MSA 24.13106(2) by 1986 PA 318, effective June 1, 1987, which now provides:
(2) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the workers’ disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, or under a similar law of another state or under a similar federal law, are available to an employee who sustains the injury in the course of his or her employment while doing either of the following:
(a) Loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. As used in this subdivision, "another vehicle” does not include a motor vehicle being loaded on, unloaded from, or secured to, as cargo or freight, a motor vehicle.
(b) Entering into or alighting from the vehicle unless the injury was sustained while entering into or alighting from the vehicle immediately after the vehicle became disabled. This subdivision shall not apply if the injury arose from the use or operation of another vehicle. As used in this subdivision, "another vehicle” does not include a motor vehicle being loaded on, unloaded from or secured to, as cargo or freight, a motor vehicle. | [
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Per Curiam.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendant Les Irwin.
This case is before us after second remand. The pertinent facts were stated in CNA Ins Co v Cooley (After Remand), unpublished opinion per curiam of the Court of Appeals, decided December 12, 1985 (Docket No. 69029):
Defendant Irwin is the owner of a front end loader, a type of construction tractor, which he lent to defendant Eldon Leroy Cooley, who is not a party to this appeal. Cooley drove the vehicle to Merl’s Towing Service, which had possession of a motorcycle owned by Cooley and planned to sell the motorcycle at an auction unless Cooley paid towing and storage charges. When Cooley arrived at Merl’s Towing Service, he demanded the return of his motorcycle, and upon refusal, proceeded to drive the front end loader into the building, fence, and other vehicles stored there. The $24,000 worth of damages incurred by Merl’s was paid by its insurer, plaintiff cna, which then brought suit as subrogee against defendant Irwin and defendant Cooley.
Plaintiff cna’s complaint alleged counts of negligence and intentional tortious conduct against defendant Cooley, and counts of negligent entrustment and vehicle owner statutory liability against defendant Irwin. A default judgment was entered against defendant Cooley. Plaintiff cna then moved for summary judgment under GCR 1963, 117.2(3) on its vehicle owner statutory count, based on MCL 257.401; MSA 9.2101, against defendant Irwin. This motion was granted, and defendant Irwin’s subsequent motion to set aside the summary judgment order was denied.
In response to our request for a clarification of its order of summary judgment, the trial court offered the following:
We granted summary judgment under the vehicle owner’s liability statute and
under the theory of negligent entrustment.
We therefore affirm our grant of summary judgment.
Upon reconsideration, this Court concluded that the order of summary judgment could not stand under either theory. Regarding the negligent entrustment theory, this Court said that it could not conclude as a matter of law from the facts presented that Irwin knew or should have known that Cooley would use the tractor to ram a gas station. Thus, summary judgment under GCR 1963, 117.2(3) could not be justified on the negligent entrustment theory.
In addition, this Court also found that the owner’s liability statute, MCL 257.401; MSA 9.2101, did not support the trial court’s ruling since the statute governs negligent conduct. The actions of Cooley could not reasonably be described as negligent. Rather, his actions most clearly constituted an intentional act. This Court then remanded the case to the lower court for proceedings not inconsistent with its opinion.
On February 6, 1986, this Court denied plaintiff’s motion for rehearing. Thereafter, on May 16, 1986, defendant Irwin moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). In an August 7, 1986, order, the trial court granted defendant Irwin summary disposition.
Plaintiff raises two issues on appeal. First, cna argues that the trial court erred by granting Irwin summary disposition on the issue of negligent entrustment. Secondly, cna contends that Irwin was not entitled to summary disposition under the motor vehicle owner’s liability statute, MCL 257.401; MSA 9.2101.
A motion based on GCR 1963, 117.2(3), now MCR 2.116(0(10), is designed to test the factual support for a claim or defense. The court must consider the pleadings, affidavits and other available evidence and be satisfied that the claim or position asserted cannot be supported by the evidence at trial because of some deficiency which cannot be overcome. The court must give the benefit of every reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party. Lloyd v Avadenka, 158 Mich App 623, 626; 405 NW2d 141 (1987).
In Muscat v Khalil, 150 Mich App 114, 121; 388 NW2d 267 (1986), this Court summarized the law on negligent entrustment:
Michigan courts have adopted the following definition of the theory from 2 Restatement Torts, 2d, § [390]:
" 'One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.’ ” Moning v Alfono, 400 Mich 425, 443-444; 254 NW2d 759 (1977).
As a result of further refinement of the applicable standard of care in Fredericks v General Motors Corp, 411 Mich 712; 311 NW2d 725 (1981), it is now clear that, in order to prove negligent entrustment, "plaintiffs must show either that defendant knew the entrustee was not to be entrusted or that defendant 'had special knowledge of [the entrustee] which would put defendant on notice.’ ” Buschlen v Ford Motor Co (On Remand), 121 Mich App 113, 117; 328 NW2d 592 (1982), aff'd 421 Mich 192; 364 NW2d 619 (1984), quoting Fredericks, supra, p 720.
Plaintiff contends that Irwin was aware of Cooley’s state of intoxication, his lack of capability to drive the loaned equipment, and his intended use of the vehicle. Giving the benefit of every reasonable doubt to and drawing inferences in favor of plaintiff, the party opposing the motion, we conclude that there is a genuine issue of material fact regarding whether Irwin knew or should have known that Cooley would use the front end loader in the manner he did. Thus, we reverse and remand for trial.
As to plaintiff’s second ground for error, we find no merit to this claim. This Court already determined in CNA Ins Co v Cooley (After Remand), that Cooley’s conduct was intentional and the statute solely applied to negligent conduct. This Court may not reconsider this legal question due to the doctrine of law of the case. In CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981), reh den 411 Mich 1119 (1981), the Supreme Court described the effect of this doctrine as follows:
As generally stated, the doctrine is that if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.
Because this legal question was already decided, and because plaintiff did not show any new facts in this case, the prior determination stands.
Reversed and remanded. | [
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R. C. Anderson, J.
Defendants Roscommon County Board of Road Commissioners and Roscommon County Drain Commission and defendants Michigan State Treasurer and Department of Commerce appeal as of right from a March 3, 1986, judgment entered by the Roscommon Circuit Court granting plaintiffs petition to vacate three platted roads in Lyon Township, Michigan. We affirm.
Plaintiff owns in fee simple land identified as Block 1 and Block A, Michigan Central Park. The land is located in Lyon Township, Roscommon County, Michigan, just west of Higgins Lake. Block A is a triangular plot of land west of Higgins Lake, separated from the lake by Michigan Central Park Boulevard. Block 1 is a rectangular plot due west of Block A, separated from Block A by Albemarle Street. Block 1 is bisected by an alley. Block A and Block 1 are bounded to the north by Hallie Avenue and bounded on the south by Newman’s Drive. Hallie Avenue and Newman’s Drive intersect Michigan Central Park Boulevard at the lake.
According to a stipulated set of facts, the perimeter of Block 1 and Block A is bounded by a white wooden fence, blocking off the property and the three roads from Newman’s Drive and Hallie Avenue. Additionally, the area is thickly overgrown with large trees and underbrush.
On August 8, 1984, plaintiff filed a complaint to vacate Albemarle Street, Michigan Central Park Boulevard, and the alley in Block 1 according to §§ 221 through 229 of the Subdivision Control Act, MCL 560.101 et seq.; MSA 26.430(101) et seq. In her complaint, plaintiff did not set forth specific reasons for the vacation, but stated merely that the roads do not abut any other property except plaintiff’s, that the roads have no useful purpose to anyone but plaintiff, and that the plaintiff wished to have the roads vacated. Plaintiff also alleged that none of the three roads had ever been accepted by Lyon Township or the county, and they had not been maintained by either party.
The state, county, and Lyon Township answered her complaint, generally denying that the roads were never opened and the dedication never accepted. On March 6, 1985, plaintiff filed an amended complaint, alleging adverse possession and asking the court to award her fee simple title in the three roads. Attached to the amended complaint was an affidavit stating reasons for her request for vacation of the roads. The affidavit stated that the roads should be vacated because the public had never used them for any purpose whatsoever, because her garage is partially located on Albemarle Street, and because the unimproved roads are a cloud upon the title and marketability of her property.
Sometime thereafter, the parties stipulated to waive a trial and submit the case to the court on the pleadings and legal briefs. The parties attached to the stipulation a list of admitted facts. The trial court viewed the property on October 9, 1985.
On January 21, 1986, the circuit court issued its opinion granting plaintiffs request. The court held that plaintiff had satisfied the requirements of §§ 221 through 229 of the Subdivision Control Act. Further, it found that the offers of dedication in the parcels had never been accepted and that it could not rule the alley arid Albemarle Street to be vacated without vacating Michigan Central Park Boulevard also. Finally, the court found that plaintiffs pleadings satisfied the statutory requirement that plaintiffs list in their complaint reasons for the vacation. On March 3, 1986, the court signed a judgment in accordance with its opinion.
The state and the county appeal as of right. Lyon Township is not a party to this appeal. The state appeals only the vacation of Michigan Central Park Boulevard, whereas the county appeals the vacation of all three roads.
First, the state argues that plaintiff’s complaint set forth insufficient reasons to vacate Michigan Central Park Boulevard. MCL 560.223(b); MSA 26.430(223)(b) provides that a complaint to vacate land must set forth reasons for seeking the vacation. The circuit court held that plaintiffs pleadings satisfied this requirement.
The standard of review is as follows. Only if the trial court’s findings are clearly erroneous will they be set aside on appeal. MCR 2.613. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
Under the clearly erroneous standard we cannot find that the trial court erred. While plaintiff did not state specific reasons for vacation in her complaint, she met the requirement in her affidavit attached to her amended complaint. There she gave the following reasons: (1) the public has never used the roads for any purpose; (2) her garage is partially located on Albemarle Street; and (3) the roads present a severe cloud upon the title and marketability of her property. We find these reasons sufficient to satisfy the requirements of MCL 560.223(b); MSA 26.430(223)(b).
Second, both the state and the county argue that the trial court erred by not applying MCL 560.255b; MSA 26.430(255b) to deny the vacation of the three roads.
MCL 560.221; MSA 26.430(221) provides that the circuit court may vacate, correct, or revise all or part of a recorded plat. However, there are certain exceptions to the court’s powers. One such exception is shown in MCL 560.226(l)(c); MSA 26.431(226)(l)(c), which provides:
A part of a street or alley under the jurisdiction of a city, village or township and a part of any public walkway, park, or public square or any other land dedicated to the public for purposes other than pedestrian or vehicular travel shall not be vacated, corrected, or revised under this section except by both a resolution or other legislative enactment duly adopted by the governing body of the municipality and by court order.
Thus, if the three roads are under the jurisdiction of the township, they may not be vacated without resolution of the township board in addition to the court order.
In Nelson v Roscommon Co Rd Comm, 117 Mich App 125, 131; 323 NW2d 621 (1982), this Court ruled that, in order for § 226(l)(c) to control, the land in question must have been "dedicated to the public.” Land is not considered dedicated to the public unless the owner of the fee appropriates it to some public use, and it is accepted for use on behalf of the public. Nelson, supra, 131. Acceptance must be manifested by some act of the public authorities, either formally confirming or accepting the dedication and ordering the opening of such street, or by exercising authority over it in some of the ordinary ways of improvement or regulation. Jones v Crawford Co Rd Comm, 45 Mich App 110, 115; 206 NW2d 267 (1973).
The original plat, dated 1901, contained the following dedication language, "The streets and alleys as shown on said plat are hereby dedicated to the use of the public.” However, by the facts admitted by the parties, it is clear that the dedication of the three roads was never accepted by the county or township. The state and county stipulated that the three roads had never been developed, improved or maintained as public roads or public areas, nor were they certified as part of the Roscommon County road system by the county board of road commissioners.
Nonetheless, the state and the county argue acceptance of the roads by virtue of § 255b, which provides that, ten years after the date a plat is first recorded, land dedicated to the use of the public in or upon the plat shall be presumed to have been accepted on behalf of the public by the municipality within whose boundaries the land lies. MCL 560.255b; MSA 26.430(255b). We find that the trial court did not err by not applying this statutory presumption since we hold it inapplicable to this case. This statutory presumption of acceptance did not become part of the Subdivision Control Act until 1978. 1978 PA 556, § 1, immediately effective December 22, 1978. Appellants argue that this section should be applied retroactively. We do not agree.
If an amendment to a statute affects substantive property rights, it is presumed not to operate retroactively unless the Legislature clearly and unequivocally has indicated otherwise. Nelson, supra, 130. Section 255b confers substantive property rights, i.e., the statute vests fee title to land dedicated to the use of the public in a municipality, in trust for the public, if that municipality establishes a ten-year lapse of time after an offer of dedication and establishes that the dedication has not been withdrawn by the proprietor. There is no clear and unequivocal indication that the Legislature intended the statute to operate retroactively and thus we hold it inapplicable to this case. Furthermore, our Supreme Court has ruled that acceptance must be made within a reasonable time and that, after a "considerable lapse of time,” such as the statute of limitations for recovery of land, the grant is no longer open for acceptance. Shewchuck v City of Cheboygan, 372 Mich 110, 114; 125 NW2d 273 (1963). The limitations period for recovery of this land expired long ago. See MCL 600.5821; MSA 27A.5821.
Since appellants have not shown that the township accepted the proprietor’s offer to dedicate the three roads, the roads are not under the township’s jurisdiction, and § 226(l)(c) does not apply. The circuit court order granting plaintiff’s petition to vacate three platted roads is affirmed.
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Per Curiam.
Respondent State Farm Mutual Automobile Insurance Company appeals as of right the probate court’s order requiring it to pay attorney fees incurred by petitioner as conservator of his minor daughter’s estate. We reverse.
Elizabeth Shields was an infant when she suffered injuries in an automobile-related accident. Respondent, which insured her father Walter’s vehicle, paid her medical expenses and has been paying for her care as part of the family’s personal injury protection (pip) benefits. A claim against the driver of the vehicle that struck Elizabeth was also settled, resulting in a payment to Elizabeth of approximately $30,000. As a result of this payment, Walter established an estate for Elizabeth and was appointed its conservator. At issue here are attorneys fees that were incurred in the filing of the first annual account for the conservatorship.
Respondent first argues on appeal that the probate court lacked jurisdiction to consider the issue whether respondent was responsible for the attorney fees at issue under the parties’ contract of insurance. We disagree. This is a question of law that we consider de novo. In re Hague, 237 Mich App 295, 299; 602 NW2d 622 (1999). Respondent cites In re Kus Estate, 136 Mich App 343, 347; 356 NW2d 23 (1984), in which this Court held that the probate court did not have jurisdiction to hear a contract claim brought on behalf of an estate. When that case was decided, probate court jurisdiction was governed by MCL 700.21 and MCL 700.22. However, after Kus was decided, the Legislature added a statutory provision granting the probate court concurrent jurisdiction over contract claims brought by an estate, see 1989 PA 69, and that provision was retained when the Legislature revised the statutory scheme in 1998, see 1998 PA 386 and MCL 700.1303(1)(i).
Under MCL 700.1303(1)(i), the probate court has jurisdiction to “[h]ear and decide a contract proceeding or action by or against an estate, trust, or ward.” The statute imposes no limits on the types of contract actions and, further, the Legislature explained in MCL 700.1303(3) that the purpose of the statute was to simplify the disposition of actions involving estates. The probate court in the present case had exclusive jurisdiction to settle the accounts of a fiduciary under MCL 700.1302(d), and concurrent jurisdiction to determine respondent’s liability for the fiduciary’s expenses under MCL 700.1303(1)(i). Accordingly, the probate court had jurisdiction to decide this case.
Respondent next argues that the probate court erred in finding respondent responsible for the attorney fees. On this point, we agree. This is again a question of law we consider de novo. In re Smith Estate, 252 Mich App 120, 123-124; 651 NW2d 153 (2002). The scope of pip benefits is dictated by statute. Rohlman v Hawkeye-Security Ins Co, 442 Mich 520, 524-525; 502 NW2d 310 (1993). Under MCL 500.3105(1), a PIP insurer must pay benefits for accidental bodily injury arising out of the use of motor vehicles. See Nelson v Transamerica Ins Services, 441 Mich 508, 517-518 n 23; 495 NW2d 370 (1992). However, a claimant’s recovery under MCL 500.3105(1) is limited to “allowable expenses,” which are defined by MCL 500.3107(1)(a) as “all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” See Owens v Auto Club Ins Ass’n, 444 Mich 314, 323; 506 NW2d 850 (1993). Although such expenses are not limited to medical care, they must be causally connected to the injured person’s care, recovery, or rehabilitation. Hamilton v AAA Michigan, 248 Mich App 535, 544-545; 639 NW2d 837 (2001).
Petitioner in the present case relies on Heinz v Auto Club Ins Ass’n, 214 Mich App 195; 543 NW2d 4 (1995). There, this Court held that services performed by a guardian or conservator can be allowable expenses under MCL 500.3107(1)(a) if a person “is so seriously injured in an automobile accident that it is necessary to appoint a guardian and conservator for that person . . . .” Heinz, supra at 198. However, the conservator in the present case was not needed because of the injuries Elizabeth suffered in the accident. The conservator was needed only because Elizabeth is a minor, unable to oversee her own financial affairs. Thus, in contrast to the situation in Heinz, the conservatorship here, and its related costs, did not “arise out of” the accident for which respondent was obligated to provide pip benefits. See MCL 500.3105(1).
It is insufficient that the conservator’s expenses would not have been incurred but for the accident; the expenses must be necessary for the injured person’s care because of the accident. See Hamilton, supra at 545 (to be recoverable, expenses must be “causally connected” to injuries resulting from an automobile accident). The conservatorship in the present case does not meet that requirement. The probate court erred in ordering respondent to pay the attorney fees at issue.
We reverse. | [
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O’Connell, J.
Defendants Future First Financial Group, Inc., Randy Stelk, Fidelity Group, Inc., and Charles R. Sussman appeal by leave granted from an order denying their motion for summary disposition and to compel arbitration and granting plaintiff Ernestine Dorothy Michelson summary disposition pursuant to MCR 2.116(I)(2) on her claims under the Michigan Uniform Securities Act (musa), MCL 451.501 et seq. We affirm.
After signing an agreement to purchase a viatical settlement through defendants, plaintiff commenced this suit alleging breach of contract, misrepresentation or fraud, and a violation of the MUSA for a sale of unregistered securities. In her complaint, plaintiff named as defendants Glenn A. Voison and Voison Agency, Inc., the person and the agency who sold the viatical settlement to her. Only defendants Future First, Stelk, Fidelity Group, and Sussman, the brokers and their officers, filed the motion for summary disposition under MCR 2.116(C)(7) and to compel arbitration. They argued that plaintiffs claim was improperly before the circuit court because the parties’ viatical settlement agreement contained a binding arbitration clause. The trial court held: (1) viatical settlements qualify as securities; (2) plaintiff’s claim was properly before the circuit court; (3) the parties’ agreement represented an improper unregistered security; (4) the agreement and its arbitration clause were void; and (5) plaintiff was entitled to summary disposition.
The grant or denial of summary disposition as well as the existence and enforceability of an arbitration agreement are questions of law for a court to deter mine de novo. Groncki v Detroit Edison Co, 453 Mich 644, 649-650; 557 NW2d 289 (1996); Watts v Polaczyk, 242 Mich App 600, 603; 619 NW2d 714 (2000). Under MCR 2.116(C)(7), we must accept the well-pleaded allegations of the nonmoving party as true and construe them most favorably to the nonmoving party. Grazia v Sanchez, 199 Mich App 582, 583; 502 NW2d 751 (1993).
Defendants first argue that the court erred in holding that viatical settlements are securities under the MUSA and that the parties’ agreement, including its arbitration clause, was therefore void. We disagree.
Under MCL 451.810(a), any person who offers or sells a security in violation of the MUSA or by misrepresentation of a material fact “is liable to the [buyer] . . . and the buyer may sue either at law or in equity to recover the consideration paid for the security . . . .” MCL 451.810(h) expressly states that “[t]he rights and remedies provided by this act are in addition to any other rights or remedies that may exist at law or in equity . . . .” (Emphasis added.) Because the MUSA does not specifically allow avoidance of a contract, we must determine whether the trial court was authorized to void the parties’ agreement under another right or remedy existing at law or in equity.
Contracts founded on acts prohibited by a statute, or contracts in violation of public policy, are void. Maids Int’l, Inc v Saunders, Inc, 224 Mich App 508, 511; 569 NW2d 857 (1997). The MUSA does not expressly include viatical settlements in its definition of a “security.” Furthermore, we have been unable to discover any statutory law or case law specifically indicating whether viatical settlements are included in the musa’s definition of a “security.”
“In interpreting our security statutes, we look beyond the form of the transaction to its substance, paying close attention to the economic realities of the situation.” Noyd v Claxton, Morgan, Flockhart & Van-Liere, 186 Mich App 333, 338; 463 NW2d 268 (1990). The musa “shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it and to coordinate the interpretation and administration of this act with the related federal regulation.” MCL 451.815. Thus, it is appropriate to consider other state and federal decisions.
Securities & Exchange Comm v Life Partners, Inc, 318 US App DC 320, _; 87 F3d 536, 538 (1996), held that viatical settlements are not securities under the federal securities laws. The court held that the investor was not dependant on the efforts of others, but instead relied “entirely upon the mortality of the insured . . . .” 318 US App DC _; 87 F2d 548. However, in Siporin v Carrington, 200 Ariz 97, 104; 23 P3d 92 (Ariz App, 2001), the court held that the “mortality of the viator is merely another factor to be considered . . . The Siporin court determined that viatical settlements are securities under Arizona’s securities laws, and that “[t]he Life Partners rationale does not serve the prophylactic and remedial purposes” of the laws. Id. Under current Arizona law, viatical settlements are securities. Ariz Rev Stat 44-1801.
Similarly, several other states have also included viatical settlements in the definition of a security: Alas Stat 45.55.990; Cal Corp Code 25019; Ga Code Ann 10-5-2; Ind Code 23-2-1-1; Iowa Code 502.102; Me Rev Stat Ann, Title 32, 10501; Miss Code Ann, 75-71-105; Neb Rev Stat 8-1102; NC Gen Stat 78A-2; ND Cent Code 10-04-02; SD Codified Laws Ann 47-31A-401; and W Va Code 32-4-401.
Finally, Michigan Department of Commerce Corporation & Securities Bureau Bulletin No. 2002-07-SEC by Commissioner of Financial and Insurance Services Frank Fitzgerald specifically includes viatical settlements within the MUSA’s definition of a “security.” Although it does not have the full force or effect of law, MCL 24.203(6), we generally give deference to administrative agency interpretations. McGill v Automobile Ass’n of Michigan, 207 Mich App 402, 407, n 1; 526 NW2d 12 (1994). Considering that the MUSA is intended to be broadly interpreted and provide conformity with other states’ securities laws, and the intent of the Office of the Commissioner of Financial and Insurance Services, we find that the musa’s use of the term “security” includes viatical settlements.
Therefore, the trial court properly rescinded a security contract made in violation of statutory law and public policy because defendants were not licensed or registered to sell securities. See Maids Int’l, supra at 511. Because plaintiff alleged a misrepresentation in defendants’ procurement of the viatical settlement agreement, the arbitration clause may be avoided. See Watts, supra at 609. When a contract is rescinded, the contract is abrogated from the beginning, and none of its provisions, including the present contract’s arbitration clause, are applicable. Lash v Allstate Ins Co, 210 Mich App 98, 102; 532 NW2d 869 (1995).
Defendants next argue that the court erred in finding that there was no genuine issue of material fact regarding plaintiff’s MUSA claims. We disagree.
The court granted plaintiff summary disposition pursuant to MCR 2.116(I)(2). “Summary disposition is properly granted [under MCR 2.116(I)(2)] to the opposing party if it appears to the court that that party, rather than the moving party, is entitled to judgment.” Sharper Image Corp v Dep’t of Treasury, 216 Mich App 698, 701; 550 NW2d 596 (1996). The musa’s definition of the term “security” and its application to the parties’ agreement are questions of law concerning statutory interpretation. See Oade v Jackson Nat’l Life Ins Co, 465 Mich 244, 250; 632 NW2d 126 (2001). Thus, the court’s decision was based on a legal inquiry and factual proofs were unnecessary. See MCR 2.116(I)(2).
Finally, defendants contend that not all defendants were liable for the MUSA claim and the court erred in granting plaintiff summary disposition against all defendants. We disagree.
Under the MUSA,
[e]very person who directly or indirectly controls a seller . . . every partner, officer, or director of the seller, every person occupying a similar status or performing similar functions, every employee of the seller who materially aids in the sale, and every broker-dealer or agent who materially aids in the sale are also liable jointly and severally with and to the same extent as the seller .... [MCL 451.810(b).]
According to the parties’ agreement, plaintiff purchased the viatical settlement from defendant Future First. Id. Thus, this defendant was liable under MCL 451.810(b) as a seller. Defendant Fidelity Group was also named in the agreement as the purchase administrator. Id. Therefore, as a material aid to the sale, Fidelity Group was also liable pursuant to MCL 451.810(b). Finally, defendants Stelk and Sussman were officers of defendants Future First and Fidelity Group, respectively. Thus, they were also clearly liable under MCL 451.810(b). Because the trial court has not granted or denied summary disposition with respect to plaintiff’s claims against defendants Glenn A. Voison and Voison Agency, we need not consider the appellants’ argument that the Voison defendants were similarly situated.
Affirmed.
Neff, P.J., concurred.
“A viatical settlement is an investment contract pursuant to which an investor acquires an interest in the life insurance policy of a terminally ill person [the viator] — typically an aids victim — at a discount of 20 to 40 percent, depending upon the insured’s life expectancy. When the insured dies, the investor receives the benefit of the insurance. The investor’s profit is the difference between the discounted purchase price paid to the insured and the death benefit collected from the insurer, less transaction costs, premiums paid, and other administrative expenses.” Securities & Exchange Comm v Life Partners, Inc, 318 US App DC 320, _; 87 F3d 536, 537 (1996).
Defendants Glenn A. Voison and Voison Agency are not parties to this interlocutory appeal.
The circuit court referred to the investment product defendants sold to plaintiff as a “viatical settlement contract.” We note that the investment product itself and the separate contract to purchase it are variously called viatical settlements, agreements, or contracts. In this case, the “agreement” was the purchasing vehicle that contained the arbitration clause.
We note that the Legislature has enacted a separate act in the Insurance Code regulating the sale of original viatical settlement contracts without reference to whether these contracts can be resold as securities. See MCL 550.521 et seq. The viatical settlement contract act largely regulates the original contract between the viator (the insured party) and the insurance provider, not its resale to investors such as plaintiff. No Michigan appellate court has interpreted the act.
“[A]n investment contract is a security subject to [the Securities Act of 1933, 15 USC 77a et seq.] if investors purchase with (1) an expectation of profits arising from (2) a common enterprise that (3) depends upon the efforts of others.” Life Partners, supra 318 US App DC _; 87 F3d 542, citing Securities & Exchange Comm v WJ Howey Co, 328 US 293, 298-299; 66 S Ct 1100; 90 L Ed 1244 (1946).
“Viatical investment” was added to the definition of a “security” in Ga Code Ann 10-5-2(a)(26) on July 1, 2002. See 2002 Ga L 792, §§ 1, 2.
“Viatical settlement” was added to the definition of a “security” in NC Gen Stat 78A-2 (11) on April 1, 2002. See 2001 Acts 308.
“Viatical settlement” was added to the definition of a “security” in W Va Code 32-4-401(n) in July 2001. See 2001 Acts 308.
Judge O’Connell finds it is unseemly and against public policy in a civilized society to have such a practice as buying a life insurance policy in the hope that someone will die to obtain the benefit. See Life Partners, supra. Plaintiffs appearing in court alleging that the principal did not die soon enough to satisfy the terms and conditions of the viatical agreement would present quite a sight in a Michigan court. | [
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Griffin, J.
Defendants appeal as of right the order of the circuit court granting summary disposition in favor of plaintiff on his claim alleging a violation of the Family and Medical Leave Act (FMLA), 29 USC 2611 et seq., awarding plaintiff back pay damages of $59,331.94, and reinstating plaintiff to his job as a track driver. Plaintiff cross appeals, asserting that the trial court erred in denying his request for liquidated damages and in concluding he was not discharged in retaliation for asserting his rights under the FMLA. We affirm.
i
On October 9, 1995, plaintiff, a track driver who delivered groceries for defendant Miesel Sysco Food Service Company (Miesel), was making a delivery at work when he began to experience chest pains. Plaintiff called Miesel’s dispatcher and advised him of his symptoms, but continued to unload his track until defendant Kenneth Angelosanto, plaintiff’s supervisor, arrived with another employee to relieve plaintiff. Plaintiff refused a ride to the hospital and, after retrieving his car at Miesel’s plant, picked up his girlfriend and drove himself to the emergency room. At the hospital, plaintiff was given a physical exam and an electrocardiogram (ekg), and medication was administered. There was no apparent heart damage and plaintiff was released from the hospital later that same day. However, plaintiff was told not to return to work until after he had a stress test, which was scheduled in approximately ten days. The written “Personal Discharge Plan” given to plaintiff by the examining physician indicated:
No work until stress test.
Your doctor has determined that you have chest pain of a minor or stable nature, presumably from the heart. Based on your current symptoms and evaluation, there is a low probability of a heart attack. . . . Most people with new, changing, or prolonged symptoms need hospitalization until the diagnosis is certain. [Emphasis added.]
Plaintiff did not immediately take this written discharge plan to Miesel following his visit to the emergency room, later offering several explanations regarding why he did not take the hospital form to Miesel. However, there appears to be no dispute that plaintiff did inform Miesel, through its employees, that he would be unable to work until he had the stress test. Plaintiff testified during his deposition that he telephoned Miesel’s dispatcher the same evening that he was released from the emergency room and informed the dispatcher that he was going to be off work on medical leave until the stress test was administered. He testified that he spoke again to a dispatcher on October 10 or 11 to remind Miesel that he would not be working until the stress test was done. Plaintiff further testified that he telephoned one of Miesel’s employees (Toni Kollios) in its human resources office on October 11 to discuss insurance issues related to the stress test and, on October 13, he called “Debbie” Williams in human resources regarding his absence from work.
Contrary to plaintiffs recollection, Debbie Williams testified that she told plaintiff that she “really had to have something to show why he was not at work.” Miesel alleged that attempts were made to contact plaintiff and tell him that he needed to submit the doctor’s note, but Miesel could not reach plaintiff because he had traveled out of town to winterize his cottage. On October 19, plaintiff delivered to Miesel the emergency room medical discharge plan that specified “No work until stress test.”
On October 23, plaintiff was given a stress test that revealed no heart conditions and he was released to return to work the next day. However, plaintiff, a union member, learned that his employment had already been terminated on October 16 for allegedly violating two rules of the collective bargaining agreement: (1) unauthorized, unexcused absenteeism, and (2) an absence for three successive days without written medical notification.
Plaintiff brought suit against defendants alleging a violation of the FMLA along with other claims.
The circuit court ultimately granted plaintiff’s motion for partial summary disposition and denied defendants’ motion pertaining to the FMLA claim, finding no genuine issue of material fact that defendants, by terminating plaintiff’s employment, violated the provisions of the fmla as a matter of law. An eviden tiary hearing was held to determine the extent of plaintiffs damages stemming from the fmla violation, and the trial court subsequently awarded plaintiff $59,331.94 in damages, attorney fees, and also ordered defendants to reinstate plaintiff to his “original position.” Defendants now appeal and plaintiff cross appeals. Both appeals involve only issues related to plaintiffs claim under the fmla.
n
Defendants first contend that the lower court erred in denying their motion for summary disposition and granting plaintiffs motion because plaintiff failed to give defendants adequate notice of his need for an unpaid leave of absence as required by the fmla, and, farther, that his employment was terminated for just cause separate and apart from any obligation under the fmla. Although our state appellate courts have not yet had occasion to address issues concerning notice requirements under the FMLA, “review by this Court of the federal law regarding this federal statute is proper.” Smith v Goodwill Industries of West Michigan, Inc, 243 Mich App 438, 443; 622 NW2d 337 (2000). See also Young v Young, 211 Mich App 446, 448, n 1; 536 NW2d 254 (1995). With respect to our review:
Where there is no conflict, state courts are bound by the holdings of federal courts on federal questions. Schueler v Weintrob, 360 Mich 621; 105 NW2d 42 (1960); Kocsis v Pierce, 192 Mich App 92, 98; 480 NW2d 598 (1991). However, [when the] issue has divided the circuits of the federal court of appeals, we are free to choose the most appropriate view. Schueler, supra at 634; Bruno v Dept’ of Treasury, 157 Mich App 122, 130; 403 NW2d 519 (1987). [Id. at 450.]
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Smith, supra at 442. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support of a claim. The motion should be granted if the evidence demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). In deciding a motion under MCR 2.116(C)(10), the trial court considers the pleadings, affidavits, depositions, admissions, or other documentary evidence in a light most favorable to the nonmoving party to determine whether a genuine issue of fact exists. Ritchie-Gamester v Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999).
Enacted in 1993, the fmla represents an attempt to reconcile “the demands of the workplace with the needs of families . . . .” 29 USC 2601(b)(1). Thus, while Congress sought to provide employees the right to “take reasonable leave for medical reasons,” it also sought to do so “in a manner that accommodates the legitimate interests of employers.” 29 USC 2601(b)(2) and (3). The FMLA applies to private-sector employers of fifty or more employees. 29 USC 2611(4). An eligible employee is entitled to twelve work weeks of unpaid leave during any twelve-month period because of, among other reasons, “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 USC 2612(a)(1)(D). At the conclusion of a qualified leave period, the employee is entitled to reinstatement to his former position, or to an equivalent one, with the same terms and benefits. 29 USC 2614(a). The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the FMLA. 29 USC 2615(a)(1).
The threshold issue raised by defendants involves the adequacy of the notice allegedly given by plaintiff regarding his need for fmla leave time. When the need for fmla leave is foreseeable, an employee must provide the employer with no less than thirty days advance notice. 29 USC 2612(e)(1) and (e)(2)(B); 29 CFR 825.302(a). However, where, as in the instant case, the need for FMLA leave is unforeseeable, the FMLA itself is silent regarding notice requirements, but the regulations implementing the act address the issue. In this regard, the fmla grants the secretary of labor authority to promulgate regulations implementing the act. See 29 USC 2654. “Regulations promulgated pursuant to such an express delegation of authority ‘are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.’ ” Miller v AT&T Corp, 250 F3d 820, 833 (CA 4, 2001), quoting Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837, 844; 104 S Ct 2778; 81 L Ed 2d 694 (1984). Thus, we examine those regulations in interpreting its provisions. Summerville v Esco Co Ltd Partnership, 52 F Supp 2d 804, 810 (WD Mich, 1999).
Specifically, 29 CFR 825.303 provides:
(a) When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for fmla leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when fmla leave is involved.
(b) The employee should provide notice to the employer either in person or by telephone, telegraph, facsimile (“fax”) machine or other electronic means. . . . The employee need not expressly assert rights under the fmla or even mention the fmla, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee . . . will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation. [Emphasis added.]
What is sufficient, both in terms of the timing of the notice and its content, will depend on the facts and circumstances of each individual case. Manuel v Westlake Polymers Corp, 66 F3d 758, 764 (CA 5, 1995); Mora v Chem-Tronics, Inc, 16 F Supp 2d 1192, 1209 (SD Cal, 1998). “The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” Manuel, supra at 764. See also Thorson v Gemini, Inc, 205 F3d 370, 381 (CA 8, 2000), quoting Browning v Liberty Mut Ins Co, 178 F3d 1043, 1049 (CA 8, 1999) (“ ‘Under the fmla, the employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of fmla leave.’ ”); Brohm v JH Props, Inc, 149 F3d 517, 523 (CA 6, 1998). As expressed in 29 CFR 825.303(b), in giving notice, an employee need not expressly assert rights under the fmla or even men tion the fmla, but need only state that leave is needed. As explained by the court in Stoops v One Call Communications, Inc, 141 F3d 309, 312 (CA 7, 1998):
When requesting unpaid leave, the employee need not mention the fmla. 29 CFR 825.303(b). In fact, the employee can be completely ignorant of the benefits conferred by the Act: it is sufficient notice if the employee provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed.
See also Price v Fort Wayne, 117 F3d 1022, 1026 (CA 7, 1997); Manuel, supra at 764; Mora, supra at 1208-1209; Stubl v T A Sys, Inc, 984 F Supp 1075, 1085 (ED Mich, 1997); Brannon v OshKosh B’Gosh, Inc, 897 F Supp 1028, 1038 (MD Tenn, 1995); Hendry v GTE North, Inc, 896 F Supp 816, 828 (ND Ind, 1995).
Once circumstances suggest that an employee may qualify for fmla leave, the employer has the obligation of inquiring further into the matter. Spangler v Fed Home Loan Bank of Des Moines, 278 F3d 847, 853 (CA 8, 2002); Mora, supra at 1209; Williams v Shenango, Inc, 986 F Supp 309, 319 (WD Pa, 1997). An employer may require that an employee’s leave be verified by a medical certification issued by the health care provider of the employee. 29 CFR 825.305(a). “When the employee first gives notice of his need for leave, employers who want such medical certification must give the employee specific, written notice of the requirement and the anticipated consequences for failing to meet this requirement.” Mora, supra at 1209, citing 29 CFR 825.301(b)(1) and (c); 29 CFR 825.305(a). See also 29 CFR 825.301(c)(2)(i). “Employers who fail to provide specific written request for medical certification may not take any action against the employee for failure to provide medical certification.” Mora, supra at 1209, citing 29 CFR 825.301(f). When the leave is not foreseeable and advance notice is not possible, the employer must allow at least fifteen days after its request for the employee to provide certification. 29 CFR 825.305(b).
In the present case, plaintiff left work on October 9, 1995, because of chest pains. Plaintiff testified that after being evaluated at a local hospital emergency room, he telephoned Miesel on October 9 and again on either the tenth or eleventh and informed defendants that he would be off work until he received the prescribed stress test. On October 19, plaintiff provided defendants with the written personal discharge plan from the emergency room physician that indicated “No work until stress test.”
Defendants argue that in granting summary disposition in plaintiffs favor, the lower court never should have reached the question whether plaintiff provided medical verification within fifteen days, 29 CFR 825.305(b), because under the circumstances of this case, plaintiff failed to provide adequate notice of a potential FMLA-qualifying “serious health condition.” Defendants contend that “[a] verbal statement that ‘I am waiting for a stress test’ is not adequate notice.” Defendants further maintain that “[g]iven the employee’s behavior on October 9th which negated any concerns over a serious medical problem of any immediate nature, and under all the facts of this, case, adequate notice of possible fmla implications could only be adequately achieved by the employee providing the medical statement to the employer as was the established policy and practice of the employer.” We disagree.
Generally, whether the notice is adequate is a question of fact. Mora, supra at 1209, citing Hopson v Quitman Co Hosp & Nursing Home, Inc, 126 F3d 635, 640 (CA 5, 1997). However, numerous courts have granted summary judgment for the employer or employee on the basis of the adequacy of .notice given for unforeseeable fmla leave. See Satterfield v Wal-Mart Stores, Inc, 135 F3d 973, 976-977 (CA 5, 1998); Mora, supra at 1209. Indeed, it is well established that a telephone call can constitute sufficient verbal notice as a matter of law under the regulations and fmla case law. As these courts have consistently noted, “if an employer is not sure whether an employee’s leave qualifies it has the burden to inquire further.” Mora, supra at 1213. See also Thorson, supra at 381; George v Associated Stationers, 932 F Supp 1012, 1016 (ND Ohio, 1996); Hendry, supra at 828.
In the instant case, we conclude that plaintiffs notice, by telephone, was sufficient as a matter of law to put defendants on notice that plaintiff might qualify for fmla leave. Although there is some factual dispute regarding whether defendants verbally informed plaintiff that he had to submit his doctor’s note, it is undisputed that plaintiff telephoned Miesel on more than one occasion within two days of his emergency room visit and informed its personnel that he would be off work until the stress test was done. Given defendants’ awareness of the events leading to plaintiff’s emergency room visit, plaintiff’s telephone calls to Miesel’s dispatcher and its insurance and human resources departments constituted adequate notice as a matter of law and indicated to defendants that the medical condition might be serious or that the fmla could be applicable.
Defendants complain that “common experience would not require that an employer equate a stress test with ‘incapacity,’ ” and in light of indications that plaintiff’s chest pain was of a “minor or stable nature,” plaintiff should have provided further details regarding his “serious” medical condition when he called Miesel. However, defendants’ argument improperly places the burden on plaintiff to explain how his leave qualified under the fmla. Mora, supra at 1212-1213. As previously noted, under the fmla it was incumbent on defendants to make a specific written request for medical certification; if an employer is uncertain whether an employee’s leave is covered by the fmla, it has the burden to inquire further. 29 CFR 825.301(b)(1), (c)(2)(i), and 29 CFR 825.305(a); Mora, supra at 1209, 1213; Stubl, supra at 1089; George, supra at 1016. Although defendants herein purportedly attempted to contact plaintiff to obtain further details regarding his absence, on October 19, 1995, plaintiff provided defendants with certification in the form of the treating physician’s personal discharge plan, well within the fifteen-day period specified by 29 CFR 825.305(b). Although plaintiff failed to comply with the leave provisions of his collective bargaining agreement, the fmla cannot be diminished by a collective bargaining agreement. 29 USC 2652(b); 29 CFR 825.302(g). See also George, supra at 1018. Thus, we hold that the trial court did not err in concluding that plaintiff gave defendants adequate notice of a possible FMLA-qualifying leave as a matter of law.
m
Defendants also argue that plaintiff did not establish that he had a “serious health condition” entitling him to the protections of the FMLA. Defendants maintain that plaintiff did not suffer from a serious health condition because he never actually had a heart attack but was merely tested for the condition, and no “serious health condition” was ultimately diagnosed following the stress test. We disagree.
As previously noted, the fmla provides that eligible employees are entitled to take leave “[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 USC 2612(a)(1)(D). With this requirement, “Congress sought to parse out [minor] illnesses which it believed should be treated under sick leave policy from those much more serious illnesses that implicate the protections of the fmla.” Bauer v Dayton-Walther Corp, 910 F Supp 306, 310 (ED Ky, 1996), aff’d 118 F3d 1109 (CA 6, 1997). The FMLA defines the parameters of a “serious health condition” as follows: “The term ‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 USC 2611(11).
The regulations of the Department of Labor (dol) further explain that “continuing treatment by a health care provider” includes
[a] period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider[.] [29 CFR 825.114(a)(2)(i)(A).]
Of particular import to the present case is an additional regulation that, in conjunction with the above provision, further explains that “[t]reatment . . . includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.” 29 CFR 825.114(b) (emphasis added).
Defendants argue that this language does not authorize fmla leave for the purpose of having an examination to determine whether one has a serious health condition. Rather, defendants maintain in their brief that the question of treatment does not arise until plaintiff has established that he has a “serious health condition”:
What it means is that one is entitled to leave if “incapacitated” by a “serious health condition” for more than three consecutive days and undergoes “treatment” two or three times, which “treatment,” under the cfr, could include an examination to determine a serious health condition. It does not purport to authorize leave unless a person meets the threshold of having a “serious health condition.”
* * *
The fmla, and its implementing regulations defining “serious health condition,” are not concerned with the potential dangers of an illness, but only with the present state of that illness. . . .
To construe the fmla to include conditions which are only potentially capable of evolving into serious illnesses would bring within the protection of the Statute, virtually every common malady. It would also be in direct conflict with Congress’ intention to exclude from the protection of the fmla, minor illnesses, even assuming a doctor suspects something more serious, that Congress believed these conditions only should be covered under the employer’s sick leave policy. [Emphasis in original.]
In support of their argument, defendants rely on Seidle v Provident Mut Life Ins Co, 871 F Supp 238 (ED Pa, 1994), in which the plaintiff sought fmla leave after being absent from work because of her son’s ear infection. The Seidle court, id. at 246, held that
the physicians’ [the plaintiff’s expert witnesses] opinions that otitis media is a “serious medical condition” are based largely on the potential dangers of otitis media, especially if left untreated. However, the fmla and its implementing reg ulations defining “serious health condition” are not concerned with the potential dangers of an illness but only wdth the present state of that illness. See 29 USC 2611(11). [Emphasis in original.]
However, we find Seidle to be inapposite for several reasons. First, the Seidle court held that the plaintiff could not establish that her son had a “serious health condition” because he had been incapacitated from attending daycare for only three days, not the statutory four or more. Id. at 243-244. Second, the plaintiff took her son to the doctor on only one occasion; thus, he was not receiving “ ‘continuing treatment by a health care provider,’ ” id. at 244, and, unlike the present case, no physician had recommended that the plaintiff’s son be kept home for more than three days. Finally, Seidle predates the implementation of 29 CFR 825.114(b), part of the final version of regulations that went into effect in April 1995; thus, the above-quoted statement by the Seidle court was made without the benefit of this regulation.
Defendants also cite Hodgens v Gen Dynamics Corp, 963 F Supp 102 (D RI, 1997), in support of their argument in this regard. In Hodgens, the plaintiff experienced chest pains, visual problems, and profuse perspiration — ultimately diagnosed as atrial fibrillation, an arrhythmia of the heart — and took time off from his job while his doctor monitored his blood pressure and adjusted his medication. The federal district court held that the plaintiff’s leave was not covered under the fmla because the plaintiff had failed to establish that he had a “serious health condition” or was “incapacitated.” The court held “an employee’s absence [from work] must be necessary to enable the employee to receive treatment. If an employee can obtain treatment without missing work, any period of absence cannot be attributed to the need to receive treatment.” Id. at 106. The court found that there was no evidence that Hodgens was required to be absent from work in order to receive treatment from his physician and no indication that he could not carry out the duties of his job, id., and thus granted summary judgment in favor of the defendant employer.
However, defendants fail to note that on subsequent appeal, Hodgens v Gen Dynamics Corp, 144 F3d 151 (CA 1, 1998), the First Circuit Court of Appeals affirmed the district court’s grant of summary judgment in favor of the defendant employer but, in so doing, based its decision on different reasoning and indeed criticized the above-stated rationale of the district court. The circuit court stated:
First, according to gd [defendant General Dynamics], Hodgens was not even entitled to medical leave under the FMLA because he did not suffer from a “serious health condition” as the statute requires. The district court granted summary judgment to General Dynamics largely on this basis. For the reasons set forth below, we hold that Hodgens did suffer from a “serious health condition” within the meaning of the FMLA.
* * *
Hodgens suffered horn numerous symptoms in July and August 1993. Dr. Wilkinson examined him and, concerned about angina and its serious implications, ordered a series of tests directed toward diagnosing the cause and nature of his problem, with a view toward prescribing treatment (which she eventually did, although she never was able to rule out angina). Then between September 22 and 27, Hodgens was diagnosed with atrial fibrillation, and again was required to make many visits to Dr Wilkinson’s office. This latter period constituted more than three consecutive days’ worth of absences from work for a serious health condition. And these absences were medically necessary: Hodgens’ treating physician, Dr. Wilkinson, filled out a work-restriction form — at the top of which appeared the date ... on which Hodgens could return to work. Dr. Wilkinson’s form carries the inference that that entire period of absence was medically necessary, and GD nowhere rebuts that inference. Indeed, on September 21, gd’s own nurse refused to let Hodgens return to work at least in part because of his atrial fibrillation. Thus, we cannot accept gd’s claim, based on Dr. Wilkinson’s initially clearing Hod-gens to return to work on September 20, that Hodgens’s health condition did not prevent him from working within the meaning of the fmla during the period September 22-27.
* * *
General Dynamics argues that many of Hodgens’s earlier absences were not covered by the fmla because “Dr. Wilkinson was never able to diagnose precisely what caused [Hod-gens’s] symptoms.”. . . It seems unlikely that Congress intended to punish people who are unlucky enough to develop new diseases, or to suffer serious symptoms for some period of time before the medical profession is able to diagnose the cause of the problem. ... It would seem that Congress intended to include visits to a doctor when the employee has symptoms that are eventually diagnosed as constituting a serious health condition, even if, at the time of the initial medical appointments, the illness has not yet been diagnosed nor its degree of seriousness determined. The Labor Department’s final regulations support this interpretation: “Treatment for puiposes of paragraph (a) of this section [defining ‘serious health condition’ in terms of ‘treatment’ received, inter alia] includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition.” 29 CFR 825.114(b) (1997) (emphasis added). Thus, as long as Hod-gens satisfied, at some point in time, the “more than three consecutive days” requirement for establishing a serious health condition, his intermittent absences for less than four days (even for portions of one day) were protected under the fmla if they were necessary “to determine if a serious health condition exists,” id., or to treat such a condition. This is true even if the intermittent absences occurred before the consecutive absences. [Hodgens, supra, 144 F3d 161-163.]
The Hodgens court then addressed the issue of the plaintiff’s inability to perform the functions of his position as required in 29 USC 2612(a)(1)(D) and once again disagreed with the district court’s interpretation of this statutory provision:
The district court’s alternative reason for rejecting Hod-gens’s fmla claim is that “there is no evidence that [his health] condition rendered him unable to perform the functions of his position,” as required in 29 USC 2612(a)(1)(D). The court therefore concluded that his absences were not protected conduct under the FMLA. We reject this contention as well. The court apparently read the statute to require Hodgens to be actually incapacitated, in the sense of medically too sick to work, for any absence that was to be protected by the fmla.
We disagree. The statutory language — “unable to perform” his job — in 29 USC 2612(a)(1)(D) does not necessarily mean that an employee’s physical condition itself “actually incapacitate [s]” him and prevents him from working. The statute could also be read to protect absences from work for whatever time the employee needs in order to be diagnosed and treated for a serious medical condition. Under this reading of the statutory language, the employee may be found to be “unable to perform” his job if his medical appointments conflict with his work (and the other statutory requirements are met), even if he is not “too sick to work.” The text of the statute does not specify which of these two interpretations of “unable to perform” (or any other) was intended by Congress.
In determining which interpretation to adopt, we must consider the fact that the fmla is a remedial statute.... The fundamental purpose of the fmla is “to entitle employees to take reasonable leave for medical reasons,” 29 USC 2601(b)(2), “to help working men and women balance the conflicting demands of work and personal life,” [Price v] City of Fort Wayne, 117 F3d [1022, 1024 (CA 7, 1997)]. This purpose is better served by adopting the broader reading than by adopting the district court’s more constrained construction requiring physical incapacitation. We hold that it will suffice if an employee is “unable to perform” his job because of the need to obtain medical treatment or a diagnosis; he does not have to be physically unable to work. [Hodgens, supra, 144 F3d 163-164 (emphasis added).]
The First Circuit Court of Appeals further noted, id. at 164, that its interpretation of 29 USC 2612(a)(1)(D) was supported not only by the legislative history of the FMLA, but also by the Department of Labor’s final (not interim) regulations, most notably 29 CFR 825.114(b), which includes “examinations to determine if a serious health condition exists and evaluations of the condition” within the definition of “serious health condition” in terms of “treatment” received. Thus, the First Circuit Court of Appeals opined that
[i]t is thus apparent that the agency charged with interpreting the fmia — and filling in any gaps or ambiguities in the Act — believed that the Act should be interpreted broadly enough to protect absences from work that are necessary for the purpose of having one’s medical condition diagnosed and treated, such as those at issue here. The agency did not interpret the statutory language — that Hodgens’s health condition render him “unable to perform” his work— as requiring him to be “too sick to work.” The agency’s interpretation is entitled to deference. ... We hold that Hodgens’s absences from work were protected by the FMLA if they were required for the diagnosis and treatment of his medical condition, as long as he satisfied the other requirements for “seriousness”; it is not necessary that the medical condition make him “too sick to work” on a particular day in order for an absence on that day to be covered under the statute. We therefore reverse the district court’s holding to the extent that it stated a contrary view. The fmla protected Hodgens’s absences whenever his health condition required him to visit his physician rendering him unable to work during the time it took to accomplish those visits. [Hodgens, supra, 144 F3d 165.]
The circuit court concluded that the district court “erred to the extent that it predicated its grant of summary judgment [to General Dynamics] on the ground that there was no FMLA-qualifying leave at issue.” Id. (Emphasis in original.) Thus, although General Dynamics ultimately prevailed on appeal in Hodgens, the rationale underlying that decision does not, as defendants contend, support their argument that plaintiff herein was not incapacitated because he allegedly could have obtained treatment without missing work. On the contrary, Hodgens supports the present plaintiffs position that, assuming the other requirements of a “serious health condition” are met, i.e., treatment two or more times by a health care provider and a period of incapacity of more than three calendar days, 29 CFR 825.114(a)(2)(i)(A), an absence due to a physician’s “no work” order pending an examination to determine if a serious health condition exists, even if the final diagnosis contraindicates a serious condition, may be protected by the fmla.
Another case that is relevant to the question whether plaintiff had a “serious health condition” within the meaning of the fmla is Thorson v Gemini, Inc, supra. In Thorson, the plaintiff left work on Wednesday, February 2, 1994, complaining of diarrhea and stomach cramps and went to see a physician. She was absent from work for the remainder of the week and returned Monday, February 7, with a note from her doctor indicating “no work” until Monday, February 7. On Monday, she worked only a few hours before returning to the doctor with stomach pain. The doctor, suspecting either a peptic ulcer or gallbladder disease, ordered tests for Friday, February 11. The test results were normal, and the plaintiff returned to work on Monday, February 14, once again with her doctor’s note stating “no work” until February 14. The plaintiff worked that week but her employment was terminated on February 18 for absenteeism exceeding five percent of her scheduled work hours during the previous twelve months. On March 9, another doctor determined that the plaintiff had a small hiatal hernia, mild antral gastritis that could be managed -with antacid, and duodenitis, all stress-related conditions. The plaintiff brought suit alleging violations of the fmla, and the federal district court granted summary judgment to her on the issue of FMLA liability. Following a jury trial on the issue of damages, the plaintiff was awarded damages. On appeal, the order and judgment in favor of the plaintiff was affirmed. The Eighth Circuit Court of Appeals, citing 29 CFR 825.114(b), Thorson, supra at 378, concluded that the plaintiff had a “serious health condition” within the meaning of the FMLA:
[W]e conclude that Thorson received “continuing treatment” under the objective standard set forth in the regulations, and thus her illness satisfied this part of the “serious health condition” test. Subjectively, it may be that Thorson’s condition was not “serious” in the usual sense of the word. Nevertheless, until February 11, her physician believed Thorson could have a potentially serious condition, and it was not until March 9, after Thorson had been terminated from her job at Gemini, that a diagnosis definitively ruled out her physician’s initial suspicions. Thorson was sufficiently ill to see a physician two times in a period of just a few days and that is all that the plain language of both the interim and final rules requires for “continuing treatment.”
* * *
. . . While Congress may have “expected” that minor illnesses “normally” would not come within the definition of “serious health condition,” that does not mean such ailments can never be fmla “serious health conditions.” Further, a non-exclusive fist of ailments [set forth in the fmla legislative history] that might qualify as “serious health conditions” that does not include Thorson’s final diagnosis does not preclude fmla leave for her absence. She missed work for more than a “few days” on the advice of a doctor. Thor-son’s treating physician originally thought she might have a peptic ulcer or gallbladder disease, conditions that could have been quite serious in any sense of the word.
... It is true that honest (or less than honest) errors by health care providers and fraud or abuse by employees are potential problems, given the objective nature of the test. Yet, ... in further defining “serious health condition” to require an “incapacity requiring absence from work,” Congress and the dol have devised protections for the employers that choose to use them. See 29 CFR 825.114(d) (1993) (“The scope of ‘serious health condition’ is further clarified by the requirements of the Act that the health care provider may be required to certify . . . that ‘the employee is unable to perform the functions of the position of the employee.’ ”).
Under the regulatory test promulgated by the dol in the interim final rule, as interpreted in light of the final rule and relevant dol opinions, there are no genuine fact issues on the question of whether Thorson received “continuing treatment” under the FMLA for her February 1994 illness. Thus, she met this part of the test for a “serious health condition.” [Id. at 379-381.]
With regard to the defendant employer’s claim that even if Thorson met the “continuing treatment” element of a “serious health condition,” she nonetheless failed to show that her condition resulted in an incapacity requiring absence from work, the Thorson court stated:
Thorson was absent for more than three days with notes from her physician, written on two different occasions within that period of absence, indicating that she was not to work. At that point, Gemini became obligated either to count Thorson’s absence as fmla leave under the “serious health condition” provision or to follow the procedures set out in the statute and the regulations designed to prevent employee abuse of the Act. . . . That ip, Gemini could have initiated the FMLA’s certification process before summarily terminating Thorson. . . . Had it done so, it may have been able to determine that Thorson did not have a “serious health condition” within the meaning of the FMLA.
. . . The responsibility to request fmla certification is the employer’s. Gemini never sought such certification, notwithstanding that Thorson had timely presented her employer with two notes from her physician indicating, without further explanation, that she was not to work until certain dates.
We agree with the District Court that, in these circumstances, Gemini cannot show that there is a genuine issue of fact regarding Thorson’s incapacity during the February absences, although it may have been able to do so (or even to prevail on this issue) had it availed itself of the protections provided for within the fmla. [Id. at 381-382.]
Other courts have similarly concluded that, under certain circumstances, absences based on examinations or evaluations to determine if a serious health condition exists pursuant to 29 CFR 825.114(b) are within the coverage of the FMLA. See Miller v AT & T Corp, 250 F3d 820, 830-831 (CA 4, 2001) (episode of flu may constitute serious health condition and the plaintiffs second visit to physician as a result of flu, which included physical examination and drawing blood, constituted “treatment” within meaning of 29 CFR 825.114[b] to determine if serious health condition existed, even though physician simply evaluated the employee’s condition); Stubl, supra at 1088-1089 (citing 29 CFR 825.114[b], the court held that the employee’s two visits to a doctor regarding the effects his son’s suicide had on his health constituted “continuing treatment” so that his illness could be considered a “serious health condition” under the fmla; the plaintiffs doctor diagnosed the employee as suffering from “prolonged grief reaction” and concluded that he needed a leave of absence from work, with a followup visit to assess whether he could return to work).
We find the reasoning of the Thorson court to be persuasive and applicable to the present, closely comparable circumstances. Here, the trial court found that although tests ultimately revealed that plaintiff did not have a serious heart condition, his absence nonetheless qualified under the fmla because, following an emergency room visit, a health care provider made “a professional assessment of plaintiffs conditions and determined that an extended absence from work was necessary.” We agree with the lower court’s conclusion. The legislative history of the fmla shows that Congress clearly contemplated that “heart attacks” and “heart conditions” would fall within the definition of “serious health condition.” See citations of fmla legislative history contained in Miller, supra at 834-835, Bond v Abbott Laboratories, 7 F Supp 2d 967, 973 (ND Ohio, 1998), aff’d 188 F3d 506 (CA 6, 1999), Olsen v Ohio Edison Co, 979 F Supp 1159, 1163 (ND Ohio, 1997), and Seidle, supra at 242. Certainly, then, it is reasonable and prudent for an emergency room physician, when presented with a patient complaining of chest pains, to err on the side of safety and prohibit any work-related activities until further testing either confirms or rules out a serious heart-related condition. Whether an illness qualifies as a “serious health condition” for purposes of the fmla is a legal question that an employee or an employer cannot avoid “ ‘simply by alleging it to be so.’ ” Bond, supra at 974, quoting Carter v Rental Uniform Serv of Culpeper, Inc, 977 F Supp 753, 761 (WD Va, 1997). As explained by the court in Olsen, supra at 1166:
[I]n order to show that he or she was “required” to miss work for more than three days, a plaintiff employee must show that he or she was prevented from working because of the injury or illness based on a medical provider’s assessment of the claimed condition. It does not mean that, in the employee’s own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a “health care provider” has determined that, in his or her profes sional medical judgment, the employee cannot work (or could not have worked) because of the illness. [Emphasis in original.]
“Generally then, a health care provider must instruct, recommend, or at least authorize an employee not to work for at least four consecutive days for that employee to be considered incapacitated for the required period of time under the fmla.” Bond, supra at 974. Here, on October 9, 1995, an emergency room physician instructed plaintiff he should not work until after his stress test, which was administered on October 23, 1995. Although defendants argue that plaintiff did not have a serious health condition and could have worked, those unsupported challenges do not overcome the undisputed fact that plaintiff was instructed by his physician not to work until after he had been given “examinations to determine if a serious health condition exists and evaluations of the condition.” 29 CFR 825.114(b). Defendants never properly initiated the fmla certification process, and it is otherwise undisputed that plaintiff has satisfied the other requirements of a “serious health condition involving continuing treatment,” 29 CFR 825.114(a)(2)(i)(A), i.e., having been treated two times by a health care provider and having a period of incapacity of more than three consecutive calendar days. Under these circumstances, we conclude that the trial court did not err in granting summary disposition in favor of plaintiff on his FMLA claim. Defendants failed to show that there is a genuine issue of material fact regarding the requisite statutory notice or plaintiff’s incapacity under the fmla; consequently, we hold defendants violated the act when they terminated plaintiff’s employment.
iv
Defendants also argue that the trial court erred in awarding plaintiff back-pay damages and by ordering that he be reinstated to his job. An award of damages following an evidentiary hearing is reviewed on appeal pursuant to the clearly erroneous standard. Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 177; 530 NW2d 772 (1995).
If an employer has violated the fmla, and if justified by the facts of a particular case, an employee may recover wages, employment benefits, or other compensation and may also obtain appropriate relief, such as' employment, reinstatement, and promotion. 29 USC 2614(a), 29 USC 2617; 29 CFR 825.400(c). However, the employee is not entitled to any more reimbursement or benefits “than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” 29 CFR 825.216(a). Moreover, if “ ‘the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the fmla.’ ” Reynolds v Phillips & Temro Industries, Inc, 195 F3d 411, 414 (CA 8, 1999), quoting 29 CFR 825.214(b). Thus, “[i]f the employee has been on a workers’ compensation absence during which fmla leave has been taken concurrently, and after 12 weeks of fmla leave the employee is unable to return to work, the employee no longer has the protections of fmla and must look to the workers’ compensation statute or ADA [Americans with Disabilities Act] for any relief or protections.” 29 CFR 825.216(d).
Here, defendants argue that plaintiff was not entitled to reinstatement because he filed a worker’s compensation claim concurrently with the instant case. Plaintiff testified, however, that he had not required treatment for his prior elbow injury in over two years and the trial court found that plaintiff was ready and willing to return to work. Plaintiff was not on a worker’s compensation absence at the time of the termination of his employment and, in fact, was ready to return to work immediately after taking the stress test. Consequently, the trial court did not err in awarding plaintiff back wages and reinstatement.
v
Plaintiff argues on cross appeal that the trial court erred in disallowing an award of liquidated damages pursuant to 29 USC 2617(a)(l)(A)(iii) and 29 CFR 825.400(c). We disagree.
Liquidated damages are to be awarded under the FMLA “unless such amount is reduced by the court because the violation was in good faith and the employer had reasonable grounds for believing the employer had not violated the Act.” 29 CFR 825.400(c). As explained by the court in Chandler v Specialty Tires of America (Tennessee), Inc, 283 F3d 818, 827 (CA 6, 2002):
Section 2617(a)(l)(A)(iii) of the fmla provides that, in addition to compensatory damages specified in § 2617(a)(l)(A)(i) & (ii), an employer shall be liable for an amount of liquidated damages equal to the amount of wages, salaiy, employment benefits, or other compensation denied or lost to an employee, plus interest, by reason of the employer's violation of § 2615 of the statute. However, the district court may reduce that award to only compensatory damages if the employer “proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615.” 29 USC 2617(a)(1)(A)(iii). The employer must therefore show both good faith and reasonable grounds for the act or omission. Dole v Elliott Travel & Tours, Inc, 942 F2d 962, 968 (CA 6, 1991). [Emphasis in original.]
The decision whether to reduce the damages is within the discretion of the trial court. 29 USC 2617(a)(1)(A)(iii); Nero v Industrial Molding Corp, 167 F3d 921, 928 (CA 5, 1999).
Here, the trial court awarded damages but concluded that liquidated damages were not warranted because defendants’ violation of the fmla was in good faith and defendants had reasonable grounds for believing the act was not violated. On these facts, we conclude that the trial court did not abuse its discretion in declining to award liquidated damages to plaintiff. Id.; Nero, supra.
VI
Finally, plaintiff argues for the first time on cross appeal that the trial court erred in not finding that he was discharged “in retaliation” under the fmla. See, generally, Skrjanc v Great Lakes Power Service Co, 272 F3d 309 (CA 6, 2001). An employer is prohibited from interfering with, restraining, or denying the employee’s exercise of rights under the fmla. 29 USC 2615(a)(1). The employer is also prohibited from dis charging or discriminating against the employee “for opposing any practice made unlawful” by the fmla. 29 USC 2615(a)(2). Discrimination is not permitted against an employee for filing a charge, giving information, or testifying in connection wdth an fmla action. 29 USC 2615(b). Plaintiff did not allege that defendants discriminated against him under the fmla, did not raise the issue of retaliation below, and now offers no factual support, other than generalized assertions, for his claim. Consequently, we decline to consider this unpreserved issue on appeal. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992). In any event, the trial court found for plaintiff on the substantive fmla claim. Thus, the trial court did not err in not specifically addressing an alternative ground for its decision.
Affirmed.
Hoekstra, J., concurred.
In a separate opinion and order, Hie trial court granted defendants’ motion for summary disposition in regard to plaintiffs remaining claims under the Handicappers’ Civil Rights Act, MCL 37.1101 et seq. (now the Persons with Disabilities Civil Rights Act [pwdcra]), alleging retaliation for filing a PWDCRA claim, and violation of public policy for discharging plaintiff for filing a worker’s compensation claim. Plaintiff had a prior work restriction imposed in 1995 because of an elbow injury and was limited to an eight-hour duty.
29 CFR 825.305(a) provides in pertinent part:
An employer may require that an employee’s leave . . . due to the employee’s own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee’s position, be supported by a certification issued by the health care provider of the employee .... An employer must give notice of a requirement for medical certification each time a certification is required; such notice must be written notice whenever required by § 825.301.
29 CFR 825.301(f) provides that “[i]f an employer fails to provide notice in accordance with the provisions of this section, the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice.”
29 CFR 825.305(b) reads as follows:
When the leave is foreseeable and at least 30 days notice has been provided, the employee should provide the medical certification before the leave begins. When this is not possible, the employee must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer’s request), unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.
See 29 CFR 825.303(b) (“The employee should provide notice to the employer either in person or by telephone . . . .”); Mora, supra at 1212 (“This Court finds that, as a matter of law, a reasonable jury must find that an employee who told [by telephone] his employer that his son was hiv positive and had a very high fever and that he ‘cannot leave him when he is so ill,’ provided sufficient notice that he needed leave because of his son’s serious medical condition.”); Viereck v Gloucester City, 961 F Supp 703, 707-708 (D NJ, 1997) (employee’s telephone call to her employer telling him about her car accident, that she had been hospitalized, giving him a brief description of her injuries, and reporting that because of her condition she would be unable to return to work for some time, constituted adequate notice); George v Associated Stationers, 932 F Supp 1012, 1016 (ND Ohio, 1996) (sufficient notice was given where, three days before being examined and having his diagnosis confirmed, employee telephoned employer and told him that he could not work because he was ill with chicken pox); Brannon, supra at 1039 (“On the mornings of January 10-11, and upon her return to work on January 12, 1994, plaintiff told Ms. Crisp that her daughter was sick. This was sufficient to put OshKosh on notice that the leave potentially qualified under 29 USC 2612(a)(1)(C).”); Hendry supra at 828 (the plaintiff arguably complied with notice requirement when she telephoned employer and reported herself ill with a migraine headache). Cf. Spangler, supra at 852-853 (genuine issue of material fact existed regarding appropriate notice where employee, who had a history of depression known to employer, telephoned and stated she would not be in because it was “depression again”), Collins v NTN-Bower Corp, 272 F3d 1006 (CA 7, 2001) (affirming summary judgment for the employer when an employee suffering from depression called and informed her employer only that she was “sick”), Satterfield, supra at 979 (evidence that employee’s mother told store manager that employee was “sick” and that mother delivered note from employee, advising that employee “was having a lot of pain in her side” and would not be able to work that day, was insufficient notice of fmlaqualifying leave), Gay v Gilman Paper Co, 125 F3d 1432, 1434-1435 (CA 11, 1997) (notice inadequate as a matter of law where, although employee was actually admitted to a psychiatric hospital for treatment for a nervous breakdown, employee’s husband deliberately withheld information and misrepresented to employer that she was in the hospital “having some tests run”), Carter v Ford Motor Co, 121 F3d 1146 (CA 8, 1997) (notice ruled inadequate where wife informed employer by telephone that she was sick and that she and her employee/husband would be out for awhile, and employee/husband, diagnosed two days later as suffering from anxiety and depression, later informed employer that he would be “out sick” but offered no further information regarding illness or return date), and Neide v Grand Court Lifestyles, Inc, 38 F Supp 2d 938, 948-949 (D Kan, 1999) (employee unable to work because of injuries sustained in automobile accident failed to provide employer with requisite notice absent any discussions with employer or co-workers about his condition, absence, or expected return date).
The George court, id. at 1016, explained:
Nor is there any requirement in the law or in defendants’ procedures that plaintiff already have received medical treatment at the time he gave notice of his illness to his employer or that he immediately submit a medical excuse (in fact there appears to be no reference at all to the Act [fmla] in defendants’ employee handbook). George contacted his supervisor the morning of January 3, thus supplying the required verbal notification that he needed the qualifying leave. He was not required to assert rights under the Act. 29 CFR 825.303(b) .... The obligation shifted to the employer to determine whether leave was sought under the Act and to obtain any additional information. ... If the Company required medical certification in conjunction with a leave request, it was required to give notice of its demand to George. 29 CFR 825.305.
29 CFR 825.302(g) provides:
An employer may waive employees’ fmla notice requirements. In addition, an employer may not require compliance with stricter fmla notice requirements where the provisions of a collective bargaining agreement, State law, or applicable leave plan allow less advance notice to the employer. For example, if an employee (or employer) elects to substitute paid vacation leave for unpaid fmla leave (see § 825.207), and the employer’s paid vacation leave plan imposes no prior notification requirements for taking such vacation leave, no advance notice may be required for the fmla leave taken in these circumstances. On the other hand, fmla notice requirements would apply to a period of unpaid fmla leave, unless the employer imposes lesser notice requirements on employees taking leave without pay.
As the George court noted, supra at 1017-1018:
An attendance policy which does not except as an “occurrence” an absence caused by a serious medical condition violates the Act. If an employee’s last “occurrence” is due to a serious health condition within the Act, the Company may not terminate the employee based upon its absenteeism policy. Fair or not, as seen through the eyes of the employer, this is the law.
See also Marrero v Camden Co Bd of Social Services, 164 F Supp 2d 455, 463-464 (D NJ, 2001).
The circuit court in Hodgens concluded that although Hodgens had established a prima facie case of retaliation, General Dynamics had articulated a legitimate nondiscriminatory reason for terminating his employment and Hodgens then “failed to demonstrate that a reasonable trier of fact could find his inclusion in the rif [reduction in force] to be based on his having taken fmla leave.” Id. at 166. Consequently, because the overwhelming evidence demonstrated that Hodgens’ employment was terminated because of his poor performance and his non-FMLA-protected absences, the circuit court in Hodgens affirmed the grant of summary judgment on the fmla claim. Id. at 172.
Certain other cases in which the plaintiffs/employees’ health conditions have not qualified as “serious health conditions” under the fmla are factually inapposite, and, unlike the present circumstances, neither involved a physician-ordered extended “no work” requirement nor, for various reasons, implicated 29 CFR 825.114(b). See, e.g., Bauer, supra; Stoops, supra; Bond v Abbott Laboratories, 7 F Supp 2d 967 (ND Ohio, 1998), aff’d 188 F3d 506 (CA 6, 1999); Olsen v Ohio Edison Co, 979 F Supp 1159 (ND Ohio, 1997); Boyce v New York City Mission Society, 963 F Supp 290 (SD NY, 1997); Brannon, supra. | [
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Markey, P.J.
In Docket No. 238003, defendant Eagle Alloy, Inc., appeals by leave granted from an order of the Worker’s Compensation Appellate Commission (wcac) affirming with modification the magistrate’s order on remand awarding weekly wage-loss benefits to plaintiff David Sanchez, an undocumented alien in the United States. We affirm in part and reverse in part.
In Docket No. 239592, plaintiff Alejandro Vazquez, also an undocumented alien in the United States, appeals by leave granted from an order of the wcac, sitting en banc, denying Vazquez weekly wage-loss benefits on the basis of its construction of subsection 361(1) of the Worker’s Disability Compensation Act (wdca), MCL 418.361(1). We affirm in part and reverse in part.
I. INTRODUCTION
In deciding these consolidated appeals, we answer two questions of first impression:
First, are plaintiffs “employees” under the definition provided by WDCA subsection 161(1)(l), MCL 418.161(l) (“[e]very person in the service of another, under any contract of hire, express or implied, including aliens”)? Yes. We hold that including undocumented aliens such as plaintiffs as “aliens” within the wdca definition of “employee” accords with the language and apparent legislative intent of subsection 161(1)(l). Plaintiffs are “employees” who are not only eligible but also required to invoke the exclusive remedy provided by the wdca in lieu of any tort-based remedy.
Second, does wdca subsection 361(1), which provides for suspension of weekly wage-loss benefits when the employee is unable to obtain or perform work because of commission of a crime, operate to temporarily suspend any award of weekly wage-loss benefits to plaintiffs? Yes. We hold that defendant has borne its burden of demonstrating that plaintiffs “committed” a crime under subsection 361(1) to the extent that any award of weekly wage-loss benefits to which plaintiffs are entitled should be suspended.
n. FACTS
A. DOCKET NO. 238003
Plaintiff Sanchez, a Mexican national, purchased a fake social security card in California and thereafter obtained a California driver’s license. Upon his arrival in Michigan, Sanchez presented defendant with the false documentation and signed an employment application that contained the averment that he was legally present in the United States. In March 1997, he began full-time employment for defendant doing grinding work, among other tasks. He simultaneously worked full-time doing grinding work for another employer.
In September 1998, Sanchez suffered a right hand injury when one of defendant’s machines closed on his hand, crushing and burning it between two heated metal plates. After many surgeries and physical therapy, he was released to restricted work in April 1999 and unrestricted work in September or October 1999. Sanchez did not attempt to also return to working for the other employer.
In August 1999, defendant terminated Sanchez’ employment because Sanchez was unable to refute a notice defendant received from the Social Security Administration in June 1999 that Sanchez’s social security number was invalid. Defendant informed Sanchez that it would rehire him if he became a documented alien in the United States.
In December 1999, still with his status as an undocumented foreign citizen, Sanchez obtained employment through a temporary employment agency, working forty hours a week.
Sanchez applied for worker’s compensation benefits, and defendant filed a petition seeking recoupment of benefits and reimbursement from the Second Injury Fund. The magistrate found that Sanchez was an “employee” under the wdca and awarded him a closed award of weekly wage-loss benefits through the date on which his employment status was discovered. The magistrate reasoned that Sanchez’ wage-loss benefits were forfeited on the date his employment status was discovered under subsection 361(1), which provides in pertinent part that “an employer shall not be liable for compensation ... for such periods of time that the employee is unable to obtain or perform work because of . . . commission of a crime.” MCL 418.361(1). The magistrate also ordered defendant to pay for all reasonable and necessary medical treatment of Sanchez’ right hand pursuant to MCL 418.315.
On appeal, a majority of the WCAC agreed with the magistrate that the definition of “employee” in wdca subsection 161(1) included Sanchez, but reversed the magistrate’s decision to forfeit benefits pursuant to wdca subsection 361(1). The wcac remanded to the magistrate for further fact finding on the question of compensable disability. On remand, the magistrate granted Sanchez an open award of benefits, which a majority of the wcac affirmed.
Defendant timely filed an application for leave to appeal to this Court, which this Court granted.
B. DOCKET NO. 239592
Plaintiff Vazquez, also a Mexican national, used a fake social security card and fake resident alien card to obtain work with defendant as a grinder. In January 1999, Vazquez lifted a heavy metal part at work and experienced sudden pain in his left shoulder. He was diagnosed with a left acromioclavicular joint separation. Defendant gave Vazquez favored work but subsequently terminated his employment in April 1999 for failure to adhere to defendant’s attendance policy.
Defendant received a notice from the Social Security Administration in June 1999 that Vazquez’ social security number may be invalid, a fact that was subsequently confirmed by counsel for Vazquez in October 1999.
Vazquez applied for worker’s compensation benefits from defendant, and the magistrate awarded Vazquez a closed award of weekly wage-loss benefits from the date his employment was terminated until the date on which his illegal status was confirmed. The magistrate also ordered defendant to pay for all reasonable and necessary medical treatment of Vazquez’ left shoulder pursuant to MCL 418.315.
The wcac heard the appeal en banc and split on the proper construction of WDCA subsection 361(1). The majority addressed only the “commission of a crime” language in subsection 361(1) and held that this subsection operated to temporarily suspend payment of all weekly wage-loss benefits to Vazquez. Accordingly, the majority affirmed the magistrate’s opinion with modification. The majority opined that its statutory interpretation discouraged further violations of the law by undocumented workers while keeping employers liable for paying the medical expenses of workers injured on the job.
The concurring commissioner would have found that Vazquez did not meet the threshold requirement of entering into a valid “contract of hire” as required by wdca subsection 161(1)(l).
The commissioners who joined the dissenting opinion would have relied on the prior decision of the wcac in Sanchez to reverse the magistrate’s closing of the award.
Vazquez filed an application for leave to appeal to this Court, which this Court granted. We consolidated these two appeals and accepted briefing from amicus curiae.
m. ANALYSIS
The wdca requires that employers provide compensation to employees for injuries suffered in the course of the employee’s employment, regardless of who is at fault. MCL 418.301(1); Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 570; 592 NW2d 360 (1999); Layman v Newkirk Electric Assoc, Inc, 458 Mich 494, 502; 581 NW2d 244 (1998), overruled in part on other grounds in Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691; 614 NW2d 607 (2000). In return for this almost automatic liability, employees are limited in the amount of compensation they may collect, and, except in limited circumstances, may not bring a tort action against the employer. MCL 418.131; Hoste, supra at 570; Welch, Worker’s Compensation in Michigan: Law & Practice (3d ed), § 1.2, pp 1-2 to 1-3.
The WDCA defines who is an “employee” in subsection 161(1)(l) and, by doing so, demonstrates which individuals have essentially traded the right to bring a tort action for the right to benefits. Hoste, supra at 570. Because the WDCA was intended as remedial legislation, it is liberally construed to grant, rather than deny, benefits. Goff v Bil-Mar Foods, Inc (After Remand), 454 Mich 507, 511; 563 NW2d 214 (1997), overruled in part on other grounds in Mudel, supra.
We review de novo questions of law involved in final orders from the WCAC. Mudel, supra at 697, n 3, citing DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).
A. CONSTRUCTION OF WDCA SUBSECTION 161(1)®
Our Supreme Court has held that the threshold inquiry in worker’s compensation cases is whether the worker is an “employee” under subsection 161(1)(l), Hoste, supra at 571-573, and we begin our analysis with this inquiry.
In subsection 161(1)(l), the Legislature defined “employee” as
[e]very person in the service of another, under any contract of hire, express or implied, including aliens; a person regularly employed on a full-time basis by his or her spouse having specified hours of employment at a specified rate of pay; working members of partnerships receiving wages from the partnership irrespective of profits; a person insured for whom and to the extent premiums are paid based on wages, earnings, or profits; and minors, who shall be considered the same as and have the same power to contract as adult employees. Any minor under 18 years of age whose employment at the time of injury shall be shown to be illegal, in the absence of fraudulent use of permits or certificates of age in which case only single compensation shall be paid, shall receive compensation double that provided in this act.
Whether plaintiffs in these cases are “employees” for purposes of the' wdca requires us to construe both the word “aliens” and the phrase “contract of hire” in the wdca definition of “employees.” The majority of the wcac in Sanchez found no impediment from wdca subsection 161(1)(l) to Sanchez’ receipt of benefits. The WCAC members who joined the controlling opinion in Vazquez did not expressly reach this issue, although their focus on subsection 361(1), an affirmative defense, indicates that they also found this threshold requirement satisfied. We, too, hold that plaintiffs are “employees” under the definition provided in WDCA subsection 161(1)(l).
1. “ALIENS”
Defendant argues that the reference to “aliens” in the definition of “employee” in wdca subsection 161(1)(Z) does not support the conclusion that illegal aliens are entitled to benefits under the act. Defendant opines that the act is “silent” in this regard and that it therefore only makes sense to inteipret the word “aliens” as referencing only legal aliens. We disagree with defendant’s statutory construction.
When reviewing matters of statutory construction, this Court’s primary purpose is to discern and give effect to the Legislature’s intent. Robertson v DaimlerChrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002). The first criterion in determining legislative intent is the specific language of the statute. Id. The Legislature is presumed to have intended the meaning it has plainly expressed, and, if the expressed language is clear, judicial construction is not permitted and the statute must be enforced as written. Id.
This Court must apply the language of the statute as enacted, without addition, subtraction, or modification. Lesner v Liquid Disposal, Inc, 466 Mich 95, 101; 643 NW2d 553 (2002). This Court may not read anything into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Id. In other words, the role of the judiciary is not to engage in legislating. Id. at 101-102.
Further, if the statute provides its own glossary, then the terms must be applied as expressly defined. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). However, where a statute does not define a term, resort to a dictionary for a definition is appropriate. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002); Lumley v Univ of Michigan Bd of Regents, 215 Mich App 125, 130; 544 NW2d 692 (1996).
In wdca subsection 161(1)(l), the Legislature included the word “aliens” within the definition of “employee” without the modifying adjectives “illegal” or “legal.” Without modification, “alien” means only “[a] foreign bom citizen who has not qualified as a citizen of the country,” Black’s Law Dictionary (6th ed), or “a foreign-bom resident who has not been naturalized and who owes allegiance to another country,” Random House Webster’s College Dictionary (1991). The plain meaning of “aliens” thus includes not only foreign bom citizens with documentation to work in the United States but also those without such documentation.
Further, the Legislature did not otherwise exclude undocumented aliens from the coverage of the wdca. In contrast, the Legislature has explicitly excluded agricultural workers, MCL 418.115; domestic workers, MCL 418.118; real estate brokers, MCL 418.119; and foreign exchange students, MCL 418.161(l)(b), from the coverage of the act.
Therefore, we hold that by expressly including the word “aliens” in the definition of “employee,” by failing to modify the word “aliens” with the adjective “illegal” or “legal,” and by failing to otherwise exclude illegal aliens from the act’s coverage, the Legislature intended to include undocumented aliens such as plaintiffs as “aliens” within the WDCA definition of “employee.”
We turn to the remaining inquiiy from wdca subsection 161(1)(l), whether plaintiffs worked under a “contract of hire” for defendant.
2. “CONTRACT OF HIRE”
Defendant argues that because plaintiffs fraudulently misrepresented their employment status when seeking employment from defendant, plaintiffs did not enter into a valid contract of hire with defendant that would permit payment of worker’s compensation benefits. We disagree.
Again, the threshold inquiry in worker’s compensation cases is whether the worker is an “employee” under subsection 161(1)(l). Hoste, supra at 571-573. In pertinent part, subsection 161(1)(l) defines “employee” as “[e]very person in the service of another, under any contract of hire, express or implied . . . .” Hence, the presence of a “contract of hire” is a precondition to receiving benefits under the WDCA.
The phrase “contract of hire” was first construed in Higgins v Monroe Evening News, 404 Mich 1; 272 NW2d 537 (1978), where the plaintiff, a five-year-old child, was injured while accompanying a substitute newspaper carrier on his newspaper route. The dis-positive issue was whether the plaintiff was acting under a “contract of hire” with the substitute paper carrier and, thus, an employee for purposes of receiving benefits under the wdca at the time he was struck by an automobile and seriously injured. Id. at 17-18.
Justice Moody wrote the lead opinion of the Court and found that no “contract of hire” existed in the case before it because there had been no bargained for exchange. Higgins, supra at 20-21. The relationship between the newspaper carrier and the plaintiff was merely social, illustrating a gratuitous promise rather than a contract of hire. The newspaper carrier gratuitously promised to “give” the plaintiff a dime, bottle of pop, or candy if he helped in delivering the papers. Id. at 21. Justice Moody found that to reach the conclusion that a contract of hire existed, each of the parties must have intended to suffer a detriment to receive a benefit and that each must have agreed to exchange those detriments and benefits. Id.
Subsequently, in Hoste, supra, where the plaintiff was a member of the National Ski Patrol System who suffered an injury while “forerunning” a course at a ski resort in advance of a race, the issue was also whether the plaintiff was an “employee” as defined in subsection 161(1)(l) of the wdca. Our Supreme Court expressly approved of the magistrate’s discussion of Higgins regarding the proper interpretation of the word “contract” in the phrase “contract of hire.” Because the plaintiff received privileges such as free skiing, complimentary hot beverages, and meal discounts in lieu of a regular income from the ski resort, the Court specifically considered the distinction between a “contract of hire” and a relationship that is contractual but not “of hire.” The Court concluded that the plaintiff was not entitled to worker’s compensation benefits because he was not an employee working under a “contract of hire” but a “gratuitous worker” or “individual assisting another with a view toward furthering his own interests.” Hoste, supra at 578-579.
Applying Higgins and Hoste here, we hold that the “contract for hire” element of the wdca definition of “employee” is satisfied and that plaintiffs were “employees” in the service of another. Plaintiffs agreed to perform certain work for defendant in exchange for wages, performed that work and received wages, and sustained injuries arising out of and in the course of this employment. Hence, defendant and plaintiffs intended to suffer a detriment to receive a benefit and each agreed to exchange those detriments and benefits. The parties’ agreement was a “contract for hire” the wdca was designed to cover.
Defendant’s argument that there was no “meeting of the minds” is without merit. Mutuality of agreement, or a meeting of the minds, means that “[t]here must be a meeting of the minds on all the material facts in order to form a valid agreement, and whether such a meeting of the minds occurred is judged by an objective standard, looking to the express words of the parties and their visible acts.” Groulx v Carlson, 176 Mich App 484, 491; 440 NW2d 644 (1989). Defendant’s actions here, notably its receipt of plaintiffs’ work, belie its claim that a meeting of the minds on the material facts was not present here. A meeting of the minds can be found from performance and acquiescence in that performance.
To the extent that defendant also argues that fraud or fraud in the inducement voids any “contract of hire” that could impose on it an obligation to pay plaintiffs worker’s compensation benefits, this argument does not offer defendant the relief it seeks. Defendant relies on traditional contract law for this argument because the WDCA is silent, with certain inapplicable exceptions, on the effect of a false representation.
However, where the WDCA is silent on the effect of a false representation, our Supreme Court has not turned to principles of contract law, such as the fraud and fraud in the inducement principles offered by defendant here, but has instead upheld the award of benefits to the injured employee. In Dressier v Grand Rapids Die Casting Corp, 402 Mich 243, 257; 262 NW2d 629 (1978), where the plaintiff misrepresented his preexisting health condition in applying for employment but did not suffer from an occupational disease, see MCL 418.431, the Court held the following: In Dressier, Justice Coleman, in a separate opinion, argued that “[i]t strains credibility to conclude that the Legislature deliberated and decided to permit misrepresentation in single injury/aggravation cases and not permit it in occupational disease cases,” id. at 260, but the majority did not adopt Justice Coleman’s reasoning. Hence, although Dressier concerns a different type of representation by an employee, the majority opinion in Dressier instructs that where the wdca is silent on the effect of a false representation, an award of benefits is not precluded by the misrepresentation.
While we can appreciate defendant employer’s frustration at having employed plaintiff under a false belief arising from his misrepresentation, and now being held liable for his worker’s compensation benefits, as well as plaintiff employee’s compulsion to misrepresent in order to secure a livelihood, the fact of the matter is that [MCL 418.431] does not permit the employer to avoid compensation payments.
In summary, we hold that the employment agreements between plaintiffs and defendant constituted a “contract of hire” as is required by subsection 161(1)(l) to establish the employer-employee relationship. Because the WDCA is silent on the effect of a false representation, an award of benefits to plaintiffs is not precluded by their misrepresentations about their immigration status.
Having determined that including plaintiffs as “employees” in the service of another under a contract of hire who, in order to obtain compensation for work-related injuries, are not only eligible but also required to invoke the remedy provided by the wdca, we next turn to the question whether wage-loss benefits to plaintiffs must nonetheless be suspended under the “commission of a crime” language in subsection 361(1).
B. CONSTRUCTION OF WDCA SUBSECTION 361(1)
Defendant argues that plaintiffs are not entitled to weekly wage-loss benefits in light of section 361 of the act, which absolves an employer of liability for such periods wherein the employee is unable to work “because of the commission of a crime.” We agree.
The wdca provides for suspension of weekly wage-loss benefits when the employee is unable to obtain or perform work because of imprisonment or commission of a crime. Subsection 361(1) of the act provides in pertinent part the following:
While the incapacity for work resulting from a personal injury is partial, the employer shall pay, or cause to be paid to the injured employee weekly compensation equal to 80% of the difference between the injured employee’s after-tax average weekly wage before the personal injury and the after-tax average weekly wage which the injured employee is able to earn after the personal injury, but not more than the maximum weekly rate of compensation, as determined under section 355. Compensation shall be paid for the duration of the disability. However, an employer shall not be liable for compensation under section 351, 371(1), or this subsection for such periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime. [Emphasis added.]
As noted above, we are to read statutes for their plain meaning. See Robertson, supra. Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, considering the context in which the words are used. MCL 8.3a; Roberston, supra at 748. If the legislative intent cannot be determined from the statute itself, then a court may consult dictionary definitions. Koontz, supra; Lumley, supra.
The last sentence of subsection 361(1) was added in 1985 (1985 PA 103). Before this legislation, a crimi nal conviction would not have disqualified a worker from receiving wage-loss benefits. See, e.g., DeMars v Roadway Express, Inc, 99 Mich App 842; 298 NW2d 645 (1980). A worker could draw benefits even while in prison. Sims v RD Brooks, Inc, 389 Mich 91; 204 NW2d 139 (1973). The amendment of subsection 361(1) was obviously intended to change the law and to require a connection between an employee’s ability to work for his employer and his eligibility for wage-loss benefits. Sweatt v Dep’t of Corrections, 247 Mich App 555, 578-579; 637 NW2d 811 (2001) (Griffin, J., dissenting).
Subsection 361(1) does not require conviction of a crime but precludes benefits when the worker is imprisoned or has committed a crime and is unable to obtain or perform work because of the commission of a crime. There is no statutory definition of “commission.” The Random House Webster’s College Dictionary (2000) defines “commit” as “to do; perform; perpetrate.” Therefore, subsection 361(1), when plainly read, does not require a person to be convicted or even to be formally charged with a crime.
Further, no restrictions are placed in subsection 361(1) concerning when the “crime” must be committed or whether it must be a violation of a particular code. Rather, the plain language of the statute applies whenever commission of a “crime” prevents the person from obtaining or performing work. Fortunately, a longstanding definition of that word is provided in our statute books. MCL 750.5 provides the following definition of “crime”:
“Crime” means an act or omission forbidden by law which is not designated as a civil infraction, and which is punishable upon conviction by any 1 or more of the following:
(a) Imprisonment.
(b) Fine not designated a civil fine.
(c) Removal from office.
(d) Disqualification to hold an office of trust, honor, or profit under the state.
(e) Other penal discipline.
This statutory definition provides no basis for limiting the scope of subsection 361(1) to state crimes. There can be no doubt that the word “crime” as used in subsection 361(1) refers to federal as well as state crimes.
The decision by the United States Supreme Court in Hoffman Plastic Compounds, Inc v Nat’l Labor Relations Bd, 535 US 137; 122 S Ct 1275; 152 L Ed 2d 271 (2002), is highly instructive here. Both of these appeals involve federal crimes, and the highest court in the land speaks with authority when it comes to determining what is a federal crime and when a violation has occurred.
In Hoffman, supra, Jose Castro, born in Mexico, was hired by the petitioner on the basis of false documents that appeared to verify his authorization to work in the United States. Following a union-organizing campaign, Castro and others were laid off. The National Labor Relations Board found the layoffs to be an unfair labor practice and ordered back pay for Castro and others. On review, the Supreme Court held that the federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986 (irca), foreclosed the board from awarding back pay to an undocumented alien who has never been legally authorized to work in the United States.
Writing for the majority of the Court, Chief Justice Rehnquist explained:
In 1986, . . . Congress enacted irca, a comprehensive scheme prohibiting the employment of illegal aliens in the United States. § 101(a)(1), 100 Stat 3360, 8 USC 1324a. As we have previously noted, irca “forcefully” made combating the employment of illegal aliens central to “]t]he policy of immigration law.” INS v Nat’l Center for Immigrants’ Rights, Inc, 502 US 183, 194, n 8; 112 S Ct 551; 116 L Ed 2d 546 (1991). It did so by establishing an extensive “employment verification system,” § 1324a(a)(l), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, § 1324a(h)(3). . . .
Similarly, if an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker’s undocumented status. § 1324a(a)(2). Employers who violate irca are punished by civil fines, § 1324a(e)(4)(A), and may be subject to criminal prosecution, § 1324a(f)(1). Irca also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents. § 1324c(a). It thus prohibits aliens from using or attempting to use “any forged, counterfeit, altered, or falsely made document” or “any document lawfully issued to or with respect to a person other than the possessor” for purposes of obtaining employment in the United States. §§ 1324c(a)(l)-(3). Aliens who use or attempt to use such documents are subject to fines and criminal prosecution. 18 USC 1546(b). There is no dispute that Castro’s use of false documents to obtain employment with Hoffman violated these provisions. [Id. at 147-148 (emphasis added).]
As in Hoffman, it is undisputed that plaintiffs here acquired and presented false documentation in order to obtain employment with defendant. Hence, in each case, the magistrate appropriately suspended weekly wage-loss benefits from the time the crime affected plaintiffs’ ability to work until such time as authorized documentation to work could be acquired.
In Sanchez, after taking note of plaintiff’s admitted use of an invalid social security card, the magistrate stated, “I take judicial notice of the fact that working in the United States without a valid Social Security card or work visa is illegal.” Similarly, in Vazquez, the magistrate declared, “there was no question at trial regarding the illegal status of Mr. Vazquez. He testified he illegally purchased his fake Social Security card and alien resident card on the streets of Chicago.” The magistrate again took judicial notice of the fact that “working in the United States without a valid Social Security card, or without permission of the United States government, is illegal.” She found that “Mr. Vazquez’s illegal status prevents Eagle Alloy from deciding to take him back or attempt to find him work elsewhere.”
In Sanchez, a panel of the wcac reversed this result by a two-to-one vote. Subsequently, in Vazquez, a majority of the seven-member appellate commission sitting en banc affirmed the magistrate’s ruling with modification.
We hold that the magistrate correctly reasoned that plaintiffs’ admitted use of fake documents to obtain employment constituted “commission of a crime.” We further hold that the magistrate correctly reasoned that when defendant learned of plaintiffs’ employment status and could not legally retain them as employees or find them other work, plaintiffs became unable to obtain or perform work “because of” the commission of crime within the meaning of subsection 361(1). This construction most accurately reflects the two-pronged language of the statute, requiring not only the commission of a crime but also that the employee is unable to work because of that crime. Further, this result is in accord with the policy of the federal government as set forth in Hoffman, as well as the policy of the state of Michigan indicated by the Legislature’s adoption of the last sentence of subsection 361(1).
Accordingly, in Sanchez, Docket No. 238003, we reverse the part of the wcac’s decision that granted weekly wage-loss benefits to Sanchez beyond the date on which his employment status was discovered and affirm the grant of benefits before that date. Applying the same reasoning to Vazquez, Docket No. 239592, we reverse the part of the wcac’s decision that denied plaintiff Vazquez weekly wage-loss benefits up to the date on which his employment status was confirmed and affirm the part denying benefits after that date. If plaintiffs obtain proper permission to live and work in the United States, then subsection 361(1) would no longer operate to suspend their wage-loss benefits.
IV. CONCLUSION
In Sanchez, Docket No. 238003, we affirm the holding of the wcac that Sanchez is an “employee” for purposes of the wdca. We reverse the part of the wcac’s decision that granted weekly wage-loss benefits to Sanchez beyond the date on which his employment status was discovered and affirm the grant of benefits before that date.
In Vazquez, Docket No. 239592, in which the WCAC expressly addressed only the proper construction of subsection 361(1), we reverse the part of the wcac’s decision that denied Vazquez weekly wage-loss benefits up to the date on which his employment status was confirmed and affirm the part denying benefits after that date.
For an alien to be “authorized” to work in the United States, the alien must possess “a valid social security account number card,” 8 USC 1324a(b)(1)(C)(i), or “other documentation evidencing authorization of employment in the United States that the Attorney General finds, by regulation, to be acceptable for purposes of this section,” 8 USC 1324a(b)(1)(C)(ii). See also 8 USC 1324a(h)(3)(B) (defining “unauthorized” alien as any alien “[not] authorized to be so employed by this Act or by the Attorney General”).
Both of these cases were initially heard and decided by Magistrate Donna J. Grit.
The Hoste Court discusses subsection 161(1)(b), which was changed to 161(1)(l).
The majority of other jurisdictions considering the issue have also determined that undocumented aliens are eligible for worker’s compensation benefits. Most notably, the courts in California, Colorado, Florida, and North Carolina reached their conclusions on the basis of worker’s compensation’s statutes, which, like subsection 161(1)(l) of Michigan’s act, expressly include “aliens” within their definitions of “employee.” See Del Taco v Worker’s Comp Appeal Bd, 79 Cal App 4th 1437, 1441; 94 Cal Rptr 2d 825 (2000), Champion Auto Body v Industrial Claim Appeals Office, 950 P2d 671, 673 (Col App, 1997), Gene’s Harvesting v Rodriguez, 421 So 2d 701 (Fla App, 1982), and Rivera v Trapp, 135 NC App 296; 519 SE2d 777 (1999). However, these state statutes are not completely analogous to our state statute because they also specifically provide worker’s compensation coverage to persons “whether lawfully or unlawfully employed.” See Cal Labor Code 3351; Colo Rev Stat 8-40-202(l)(b); Fla Stat 440.02(15)(a); and NC Gen Stat 97-2(2).
See MCL 418.431 (false representation about occupational disease), MCL 418.383 (false representation in a notice of injury or claim), and MCL 418.222(6) (false representation made in an application for benefits).
Wdca subsection 361(1) applies only to “weekly compensation.” Defendant remains responsible to pay for plaintiffs’ reasonable and necessary medical treatments pursuant to MCL 418.315. | [
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Kelly, P.J.
These consolidated appeals concern the power of the Public Service Commission (psc) to sanction telecommunications providers in credit reporting matters and require them to adopt procedures to protect customers against identity theft and respond to complaints regarding related credit reporting issues. In Docket No. 230540, Ameritech Michigan appeals as of right a psc opinion and order finding it in violation of subsections 502(a) and 502(b) of the Michigan Telecommunications Act (mta), MCL 484.2101 et seq. The PSC ordered Ameritech to (1) pay restitution to the complainant, (2) pay fines to the state, (3) apply to the psc for approval of procedures to better protect its customers from identity theft, and (4) ensure the removal of negative credit information from the complainant’s credit reports. In Docket No. 232820, Ameritech appeals as of right an order approving Ameritech’s procedures and ordering that they remain in effect until further order. We reverse.
I. BASIC FACTS AND PROCEDURAL BACKGROUND
A. DOCKET NO. 230540
In 1996, Patricia Pelland discovered that someone had fraudulently opened an account in her name for telephone service. Pelland suspected that her former husband had given her social security number and other personal information to a friend, who used the information to fraudulently open accounts. When Pelland contacted Ameritech, an agent informed her that the service would be cancelled and the account turned over to the fraud department. Pelland never received a bill for the service.
In 1999, after being rejected for credit, Pelland discovered a large number of fraudulent accounts on her credit report. Included among them was a debt to Ameritech for $1,022. Pelland sent Ameritech a letter disputing the debt. In response, she received a June 11, 1999, letter indicating that Ameritech had removed Pelland’s name from the account and that it would take up to ninety days to clear up the matter. Ameritech’s collection agency, Risk Management Alternatives, Inc., also wrote to Pelland on June 15, 1999, stating that the account had been returned to Ameritech and Risk Management would remove any information it placed on Pelland’s credit report. Pelland did not receive this letter.
Eight months later, Pelland received another credit report that included the Ameritech account as well as fifteen other fraudulent accounts. Pelland filed a complaint with the PSC alleging that Ameritech’s conduct violated § 502 of the mta. Pelland’s subsequent amended complaint asserted that Ameritech: (1) assessed charges against her without authorization; (2) made false, misleading, or deceptive representations regarding rates, terms, or conditions of providing a telecommunications service; and (3) charged her as an end-user for services she did not order. Pelland sought reimbursement of $2,672 for the unauthorized charges and for her time spent correcting the matter. Pelland also requested that fines be imposed on Ameritech.
Following a hearing, the psc issued an opinion and order. The psc concluded that Ameritech violated subsection 502(a) because:
[the June 11, 1999, and June 15, 1999, letters] represent that [Ameritech] and its agent will do all that is necessary to clear this account with [Pelland’s] name and social security number from their records and those of the credit reporting agencies with whom the companies share credit information. The February 2000 credit report indicates that Risk Management was still reporting an account due of $1,022 under [Pelland’s] name. Contrary to [Ameritech’s] asser tions, the Commission finds that, absent evidence supporting its theory that something went awry at the credit reporting agencies after the notice was given, it is fair to infer that [Ameritech] did not take the action that the letters indicated had been accomplished.
The PSC also found Ameritech violated subsection 502(b) by charging Pelland for service she never ordered. Although Ameritech never billed Pelland, the PSC found that the report to the credit agency amounted to a charge for service.
The PSC ordered Ameritech to (1) pay Pelland restitution of $2,825, (2) pay the state of Michigan $40,000 for two noncontinuing violations of subsection a and $2,000 a day for a continuing two-year violation of subsection b, (3) file an application in a new docket seeking approval of procedural changes, and (4) take steps necessary to “ensure that credit reporting agencies remove the negative credit information related to the fraudulent account from [Pelland’s] credit reports.”
B. DOCKET NO. 232820
Part of the psc order required Ameritech to file an application within thirty days for approval of proposed procedures to better protect its customers from the risk of identity theft. Ameritech was ordered to specifically address (1) procedures to verify the identity of persons ordering service, (2) procedures to ensure that accounts referred to collection agencies and credit reporting bureaus are attributed to the responsible parties, (3) record retention policy, (4) procedures to remove negative information from a customer’s credit report when an account has been determined to be fraudulent, and (5) procedures to timely respond to complaints regarding fraudulent accounts or identity theft. In response, Ameritech filed an application under protest, asserting that the psc exceeded its statutory authority by essentially governing Ameritech’s internal business procedures. The psc approved the application. Ameritech’s appeal is limited to the power of the psc to regulate these matters, and does not concern the actual procedures proposed or implemented.
n. standard of review
The standard of review and analysis applied to decisions of the psc is summarized in Attorney Gen v Pub Service Comm, 231 Mich App 76, 77-78; 585 NW2d 310 (1998):
Our review of a PSC order is limited. Pursuant to MCL 462.25 ... all rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasonable. Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973). An aggrieved party bears the burden of proving by clear and convincing evidence that the order appealed is unlawful or unreasonable. MCL 462.26(8) .... An order is unlawful if it is based on an erroneous interpretation or application of the law, and it is unreasonable if it is not supported by the evidence. Associated Truck Lines, Inc v Public Service Comm, 377 Mich 259; 140 NW2d 515 (1966). A reviewing court must give due deference to the administrative expertise of the psc and may not substitute its judgment for that of the agency. City of Marshall v Consumers Power Co (On Remand), 206 Mich App 666, 677; 523 NW2d 483 (1994). However, this does not mean that courts may abandon or delegate their responsibility to interpret statutory language and legislative intent. Miller Bros v Public Service Comm, 180 Mich App 227, 232; 446 NW2d 640 (1989).
Whether the PSC exceeded the scope of its authority is a question of law that we review de novo. Consumers Power Co v Pub Service Comm, 460 Mich 148, 157; 596 NW2d 126 (1999). Indeed, the PSC possesses only the authority granted to it by the Legislature. The statutes that confer power on the PSC are strictly construed, and this Court does not weigh the economic and public policy factors that underlie the actions taken by the PSC. Id. at 156.
III. SUBJECT-MATTER JURISDICTION
Ameritech first argues that the PSC lacked subject-matter jurisdiction over the complaint filed by Pelland. We disagree.
Subject-matter jurisdiction concerns a body’s abstract power to hear a case of the kind or character of the one pending, and is not dependent on the particular facts of the case. Campbell v St John Hosp, 434 Mich 608, 613-614; 455 NW2d 695 (1990). Subject-matter jurisdiction is determined only by reference to the allegations listed in the complaint. Trost v Buckstop Lure Co, Inc, 249 Mich App 580, 586; 644 NW2d 54 (2002), quoting Grubb Creek Action Comm v Shiawassee Co Drain Comm’r, 218 Mich App 665, 668-669; 554 NW2d 612 (1996). If it is apparent from the allegations that the matter alleged is within the class of cases over which the body has power to act, then subject-matter jurisdiction exists. Id. Any subsequent error in the proceedings amounts to error in the exercise of jurisdiction. Id. The erroneous exer cise of jurisdiction does not void a body’s jurisdiction, but may be challenged only on direct appeal. Thus, the question before us is not whether the facts of Pelland’s case supported a finding of a statutory violation, but whether the class of case was properly before the psc.
The relevant psc jurisdiction is provided by the MTA. In re Complaint of Southfield against Ameritech Michigan, 235 Mich App 523, 529; 599 NW2d 760 (1999). The Court is not required to look outside the four comers of the mta to determine the power of the psc with respect to telecommunications services. Id. at 530.
Section 502 of the MTA provides in relevant part:
(1) A provider of a telecommunication service shall not do any of the following:
(a) Make a statement or representation, including the omission of material information, regarding the rates, terms, or conditions of providing a telecommunication service that is false, misleading, or deceptive.
(b) Charge an end-user for a subscribed service that the end-user did not make an initial affirmative order. Failure to refuse an offered or proposed subscribed service is not an affirmative order for the service. [MCL 484.2502.]
Pelland’s amended complaint set forth specific violations of subsections 502(a) and 502(b). Pelland alleged that Ameritech misrepresented rates, terms, or conditions of service, and that it charged her as an end-user for a service she did not order. Considering the character of the pending case, and not the particular facts of the alleged violations, the PSC was authorized by the mta to determine if Ameritech’s actions violated its provisions.
IV. VIOLATION OF MCL 484.2502
Next, Ameritech argues that the psc erred in finding that it violated subsections 502(a) and 502(b) of the mta. We agree.
A. SUBSECTION 502(A)
The psc alleged that Ameritech misrepresented that it would take measures to ensure the correction of Pelland’s credit report. The false representations at issue are contained in the June 11, 1999, letter from Ameritech, stating that it would remove the information from its file and suggesting that it would have the information removed from Pelland’s credit report. The only evidence supporting a finding of a misrepresentation is the fact that the Ameritech account remained on Pelland’s credit report as of February 2000. Three other accounts also remained on complainant’s report, although the creditors also informed complainant that they would be removed from her report.
The psc’s finding is based on the assumption that Ameritech had the power to correct complainant’s credit report, and on the inference that the Ameritech listing remained on the credit report because Ameritech failed to take action. The Fair Credit Reporting Act (fcra), 15 USC 1681 et seq., regulates creditors’ reports to credit-reporting agencies, and prescribes the actions that must be taken when a customer reports an error in a credit report. Pursuant to the FCRA, Ameritech was required to provide the credit- reporting agency with the correct information, but it was not required to ensure that the incorrect information was removed from the credit report. 15 USC 1681s-2(b). Because the psc is precluded by federal law from imposing requirements or prohibitions on persons who furnish information to credit bureaus, 15 USC 1681t(b)(l)(F), the psc could not sanction Ameritech for its report of Pelland’s account to the credit bureau or its response to Pelland’s notice of the error.
However, despite the preemptive effect of federal law, the psc could sanction Ameritech if it found that it made a representation that was false, misleading, or deceptive pursuant to MCL 484.2502(a). In this regard, the PSC found that Ameritech represented that it would “do all that was necessary” to have the fraudulent account cleared from Pelland’s credit report but failed to do so. This finding was not supported by competent, material, and substantial evidence on the record. Substantial evidence is any evidence that reasonable minds would accept as adequate to support the decision. It is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Michigan Ed Ass’n Political Action Comm v Secretary of State, 241 Mich App 432, 444; 616 NW2d 234 (2000).
The only evidence that Ameritech did not act in accord with its representation to Pelland is the fact that Pelland’s credit report remained uncorrected. This presumes that if Ameritech had acted, the report would have been corrected. Yet, neither party presented evidence proving Ameritech’s action or inaction regarding Pelland’s credit report. Ameritech did not present evidence of its communication with the credit-reporting agency. Pelland did not present evidence of her contact with the agency or its resolution of her complaint. Pelland’s testimony showed that other creditors had also assured her that their accounts would be removed; yet they remained on her record as well. This evidence indicates that the problem may rest with the credit-reporting agencies, rather than the creditors. Upon review of the record, the uncorrected report by itself did not establish Ameritech’s inaction.
Pelland bore the burden of proof because she was the party who filed the complaint with the PSC. MCL 484.2203(3). She failed to meet that burden. The PSC engaged in unsupported speculation when it found that Ameritech had committed a misrepresentation.
B. SUBSECTION 502(B)
The PSC also erroneously found that Ameritech charged Pelland as an end-user for a subscribed service that she did not order. Although it does not reference § 502, MCL 484.2505(3)(a) defines an end-user as the retail subscriber of a telecommunications service. Statutes in pari materia are statutes sharing a common purpose or relating to the same subject. They are construed together as one law, regardless of whether they contain any reference to one another. State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998), quoting Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558; 132 NW2d 660 (1965). The Legislature elected to use a technical term as opposed to a more general term, such as “person.” The Legislature is presumed to be aware of the consequences of the use of language when it enacts laws. People v Ramsdell, 230 Mich App 386, 392; 585 NW2d 1 (1998). Technical words and phrases and those that have acquired a peculiar and appropriate meaning in the law are to be construed according to such meaning. MCL 8.3a; In re Pub Service Comm Determination, No 2, 204 Mich App 350, 353; 514 NW2d 775 (1994). By using the term “end-user,” the Legislature intended to limit the application of subsection 502(b) to existing retail subscribers, and to leave nonsubscribers to other remedies.
Ameritech apparently received an initial affirmative order for the service in question. However, the subscriber ordered the service in Pelland’s name rather than her own. Pelland was not the retail subscriber of the service nor was she the end-user. Ameritech did not initiate the contact, and it was defrauded by the action as well. These facts do not support a finding that subsection 502(b) was violated.
V. AMERITECH’S INTERNAL MANAGEMENT PROCEDURES
Ameritech also argues that the psc exceeded its authority in ordering it to develop procedures to verify the identity of persons ordering service, ensure that accounts referred to collection agencies and credit-reporting bureaus are attributed to the responsible parties, retain records, remove negative information from customers’ credit reports when accounts have been determined to be fraudulent, and timely respond to complaints regarding fraudulent accounts and identity theft. We agree.
First, the psc is barred by 15 USC 1681t(b)(l)(F) from dictating procedures regarding credit reports. Thus, the PSC is precluded from ordering Ameritech to institute procedures to ensure that accounts referred to collection agencies and credit-reporting bureaus are attributed to the responsible party and develop procedures to remove negative information from a customer’s credit report when an account is found fraudulent. The matters that are not preempted by federal law are procedures for verifying the identity of persons ordering service, record retention, and timely response to complaints regarding fraudulent accounts or identity theft. We find the MTA does not give the psc authority to control these matters.
The psc relies on three statutory provisions as a basis for its actions. Pursuant to MCL 484.2202, the psc has power to promulgate rules to establish and enforce quality standards for providing telecommunications services. Pursuant to MCL 484.2205, the PSC has authority to investigate and resolve complaints and order changes if the quality, general availability, or conditions for the regulated service violate the act or an order of the commission, or are adverse to the public interest. The PSC may impose penalties pursuant to MCL 484.2601. The PSC’s reliance on these provisions is misplaced because the mta does not give the PSC jurisdiction to address issues of identity theft, collection practices, and credit reporting procedures.
A telecommunications service is not a public utility service. MCL 484.2102(dd). MCL 484.2202(c) empowers the PSC to promulgate rules and issue orders to establish and enforce quality standards for providing telecommunications services. The PSC adopted quality of service rules, 1996 AACS, R 484.61 et seq. These rules address demand for service, directory assistance answer times, customer trouble reports, and line transmission requirements. The quality of service rules do not address billing matters.
Other rules establishing billing standards are found in 1996 AACS, R 484.301 et seq. None of these rules addresses the matters at issue in this case. Enforcing inchoate “quality standards for providing telecommunications services” does not give the PSC power to regulate all aspects of Ameritech’s business. The provision of telecommunications services, like electrical service, is limited to the act of furnishing that particular service to customers. Consumers Power, supra at 163. Methods for avoiding fraudulent accounts, collecting debts, and clearing credit reports are management decisions not subject to the PSC’s authority. Union Carbide Corp v Pub Service Comm, 431 Mich 135, 148-149; 428 NW2d 322 (1988).
Section 205 of the MTA gives the PSC authority to investigate and resolve complaints brought pursuant to the mta. However, this section is limited to complaints that arise under the MTA, and § 205 does not grant the PSC unlimited jurisdiction to resolve all complaints against Ameritech. If the quality, general availability, or conditions for the regulated service violate the MTA or is adverse to the public interest, the PSC may require changes in how the telecommunications services are provided. The matters implicated in this case do not concern quality or availability of regulated service. The only possible basis for jurisdiction is if the matters are conditions for the regulated service, and if they are adverse to the public interest.
In GTE North, Inc v Pub Service Comm, 215 Mich App 137, 154; 544 NW2d 678 (1996), this Court found that dialing arrangements are conditions for regulated service under subsection 205(2). This Court found that the statute’s reference was sufficiently specific and the Legislature was not obligated to specifically enumerate all the conditions for regulated service. The Court has also found that an antislamming provision is a condition that affects how telecommunications services are provided within the meaning of subsection 205(2). In re Sprint Communications Co Complaint, 234 Mich App 22; 592 NW2d 825 (1999).
Here, verifying identity, referrals to collection agencies, record retention, credit reports, and response to complaints about fraud are not conditions affecting how telecommunications services are provided. None of these matters has a direct effect on how service is provided. Therefore, the PSC is without jurisdiction to regulate these matters.
Finally, MCL 484.2601 only concerns remedies for violations of the MTA. It does not define a violation, and it does not authorize the remedy ordered by the PSC.
Reversed.
The mta is repealed effective December 31, 2005. MCL 484.2604, as amended by 2000 PA 295, effective July 17, 2000. Before this amendment, the act had been set to be repealed on January 1, 2001.
The fine totaled $1.5 million.
The PSC improperly considered the June 15, 1999, letter from Risk Management because Pelland never received it.
In its brief on appeal, Ameritech provides a significant amount of information regarding unresolved complaints to credit bureaus and their failure to remove incorrect credit report entries. Ameritech asks this Court to take judicial notice of the phenomenon. A judicially noticed fact must be one not subject to reasonable dispute that is either generally known within the jurisdiction of the court or is capable of accurate and ready determination. MRE 201. Problems with credit reports do not meet this standard.
Because of our determination that Ameritech was not in violation of the mta, we need not address the issues raised in relation to restitution and fines. | [
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Kelly, J.
Defendant Mercy Community Health Care System-Port Huron appeals by leave granted and defendants Peter J. Clive, M.D., and X-ray Associates of Port Huron cross appeal an order denying their motion for summary disposition. This appeal is being decided without oral argument pursuant to MCR 7.214(E). We reverse.
I. basic facts and procedural history
The parties do not dispute these basic facts. Decedent, Donald M. Fournier, sought treatment for severe pain in his left side at defendant Mercy’s emergency department on July 6, 1998. Hospital staff conducted several tests including a chest x-ray, a ventilation profusion lung scan, and a computerized axial tomography (cat) scan. These tests were interpreted by defendant Clive. The next day, July 7, 1998, Fournier died from what was later determined to be a ruptured spleen. On July 13, 1998, the probate court issued letters of authority appointing plaintiff as personal representative of Fournier’s estate.
Pursuant to MCL 600.2912b, plaintiff sent notices of intent on July 12, 2000, to six intended defendants by Federal Express for next day delivery. Next day delivery was significant because the two-year statutory period of limitation, absent tolling provisions, expired on July 13, 2000. However, because of what appears to be a clerical mistake in the office of plaintiff’s counsel, all six notices of intent were placed in one Federal Express envelope and sent to Paul Bruer, M.D. at his residential address. Federal Express made the delivery to Bruer’s home on July 13, 2000. Because Bruer was out of town, his daughter accepted the delivery. Bruer returned home on July 16, 2000, and delivered the notices of intent to defendant Mercy’s risk management department on July 17, 2000. Defendant Mercy’s director of risk management delivered the notice of intent to defendant Clive on July 18, 2000. It appears that no notice of intent was drafted for defendant X-ray Associates; certainly, it never received one.
Plaintiff filed the complaint on January 10, 2001, alleging that defendants were negligent in their medical treatment and care of Fournier. Among other things, plaintiff alleged that defendant Clive did not properly interpret the cat scan results.
Defendants answered the complaint and moved for summary disposition, pursuant to MCR 2.116(C)(7) and (C)(10) on the ground that the statutory period of limitation had expired before defendants were served. Defendants argued that the limitation period was not tolled by MCL 600.2912b because plaintiff failed to comply with its express provisions. Specifically, defendants argued that plaintiff failed to mail the notices of intent to defendants’ last known residential or business addresses. In response, plaintiff asserted that she complied with the statutory requirement that notices of intent be mailed before the limitation period expires. Plaintiff contended that a good faith effort at mailing is sufficient and that an innocent mistake, causing defendants no prejudice, should not result in the overly harsh remedy of dismissal. Plaintiff further argued that the purpose of MCL 600.2912b, to encourage settlement, was not disrupted by the mailing error. Finally, plaintiff argued that defendants possibly received the notices of intent sooner than they would have had plaintiff sent them by ordinary mail on July 12, 2000. Plaintiff pointed out that the statute turns upon the mailing date, and not the receipt date.
The trial court found that plaintiffs mistake was not a “fatal one,” concluding that all defendants received notice “in a timely manner and the purposes of the Statute, in this Court’s opinion, were fulfilled.” The trial court denied defendants’ motion for reconsideration.
n. STANDARD OF REVIEW AND RULES OF CONSTRUCTION
We review de novo a trial court’s ruling on a motion for summary disposition brought pursuant to MCR 2.116(C)(7). Rheaume v Vandenberg, 232 Mich App 417, 420-421; 591 NW2d 331 (1998). In reviewing the record to determine if the moving party was entitled to judgment as a matter of law, we consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings in favor of the other party. Id. Absent a disputed question of fact, the determination whether a cause of action is barred by a statutory period of limitation is a question of law that this Court reviews de novo. Colbert v Conybeare Law Office, 239 Mich App 608, 613-614; 609 NW2d 208 (2000).
This Court also reviews de novo issues involving statutory construction. Haliw v Sterling Hts, 464 Mich 297, 302; 627 NW2d 581 (2001). The primary goal of statutory interpretation is to give effect to the Legislature’s intent. Rheaume, supra at 422. To dis cem legislative intent, this Court first analyzes the specific language employed in the statute. Id. The Legislature is presumed to have intended the meaning it plainly expressed. Id. If the language of a statute is clear and unambiguous, judicial construction is not permitted, and the statute must be applied as written. Id.
m. ANALYSIS
Defendants argue that the trial court clearly erred in denying their motion for summary disposition. We agree. A notice of intent served in contravention of MCL 600.2912b is ineffective and does not toll the period of limitation.
In general, the statute of limitations relating to a wrongful death action is the statute of limitations for the underlying theory of liability. Eggleston v BioMedical Applications of Detroit, Inc, 248 Mich App 640, 646; 645 NW2d 279 (2001). Plaintiffs underlying claim is for medical malpractice. Generally, the limitation period for malpractice actions is two years from the time the claim first accrues. MCL 600.5805(5); Solowy v Oakwood Hosp Corp, 454 Mich 214, 219; 561 NW2d 843 (1997). However, a wrongful death saving provision applies if the deceased died either before or within thirty days after the period of limitation ended. MCL 600.5852; McNeil v Quines, 195 Mich App 199, 202; 489 NW2d 180 (1992). Under the saving provision, the personal representative of an estate may begin a lawsuit within two years after letters of authority are issued, as long as the lawsuit is brought within three years after the two-year general period of limitation ended. MCL 600.5852; McNeil, supra at 202. Thus, under the particular facts of this case, the period of limitation expired July 13, 2000, two years after the letters of authority were issued.
Before filing suit, a plaintiff must serve a notice of intent on potential defendants. MCL 600.2912b provides:
(1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
Serving a potential defendant with a notice of intent under MCL 600.2912b may toll the limitation period to accommodate the 182-day notice period:
The statutes of limitations or repose are tolled:
* * *
(d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b. [MCL 600.5856.]
Because the language of MCL 600.5856(d) is clear and unambiguous, a plaintiff must comply with the stated requirements of the statute. See Rheaume, supra at 423 (“The negative implication of this section is that the statute of limitations is not tolled if the notice of intent to sue does not comply with § 2912b.”). In the case at bar, the issue is whether plaintiff complied with the statutory requirements for tolling the statutory period of limitation.
With respect to the general requirements of the notice, MCL 600.2912b(2) provides:
The notice of intent to file a claim required under subsection (1) shall be mailed to the last known professional business address or residential address of the health professional or health facility who is the subject of the claim. Proof of the mailing constitutes prima facie evidence of compliance with this section. If no last known professional business or residential address can reasonably be ascertained, notice may be mailed to the health facility where the care that is the basis for the claim was rendered.
The language of subsection 2912b(2) clearly requires that the notice “shall be mailed to the last known professional business address or residential address of the health professional or health facility who is the subject of the claim.” The Legislature’s use of the word “shall” in subsection 2912b(2) makes mandatory the requirement that the notice be mailed in accordance with its provisions. See Scarscella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000), quoting Scarscella v Pollak, 232 Mich App 61, 62-65; 591 NW2d 257 (1998) (explaining that use of the word “shall” indicates a mandatory rather than a discretionary provision).
In this case, Fournier died on July 7, 1998. The letters of authority were issued on July 13, 1998. Therefore, the two-year statutory period of limitation began on July 13, 1998, and extended to July 13, 2000. On July 12, 2000, plaintiff mailed six notices of intent to Bruer’s residential address. Because plaintiff did not provide notice “in compliance with” MCL 600.2912b, the limitation period was not tolled by MCL 600.5856(d). Consequently, the limitation period expired on July 13, 2000. Plaintiff filed the complaint on January 10, 2001, well after the limitation period expired.
Plaintiff urges this Court to affirm the trial court’s ruling on several grounds. First, plaintiff argues that that her “good faith” efforts to deliver the notices to defendants should save her cause of action. However, this argument ignores the fact that MCL 600.2912b does not contain a good faith requirement, but, rather, a specific requirement that the notices be mailed to the last known business or residential address of defendants. For the same reason, it is irrelevant that defendants “may have actually received the notice earlier” than if plaintiff had mailed the notices by regular mail. Likewise, the fact that defendants cannot show prejudice or delay is also irrelevant because the language of the statute is clear.
Plaintiff failed to comply with the notice requirements of MCL 600.2912b. The two-year statutory period of limitation expired before plaintiff filed her complaint. Therefore, the trial court erred in denying defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7).
Reversed.
Defendant Mercy filed a motion for summary disposition. Defendants Clive and X-ray Associates filed a concurrence in the motion.
One of the notices of intent was addressed to Bruer. However, the notice of intent does not indicate what role, if any, Bruer had in Fournier’s treatment. Bruer was not named as a defendant in plaintiffs complaint.
Defendant Mercy argues that the trial court erroneously found that the notice was received by defendant’s Mercy’s risk management department on July 13, 2000. We find that the trial court simply misspoke when it stated: “Doctor Brauer [sic] was on vacation until July 16th of 2000, but delivered the Notice to Mercy Risk Management on July 13th of 2000.” Moreover, the trial court conceded that plaintiff made a mistake; it did not find that the notice was mailed before the statutory period of limitation had expired.
The exception permitting the notice to be mailed to the health facility where the care was rendered applies where the last known business or residential address cannot reasonably be ascertained. Plaintiff does not argue that this exception applies to this case. | [
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Per Curiam.
Defendant appeals as of right his jury convictions of first-degree murder, MCL 750.316, and possession of a firearm during the commission of a felony, MCL 750.227b. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises from the murder of a midlevel Grand Rapids area drug dealer found shot to death in his apartment. Forensic evidence admitted at trial indicated that the victim had been shot several times at close range while asleep in his bed. However, no evidence of forced entry into the apartment, which was generally secured by a deadbolt, was found.
Evidence offered at trial indicated that on the eve of his death the victim was in possession of a large amount of cash and cocaine and was alone in the apartment with defendant, who, despite being described as the victim’s “shadow,” was considered an “outsider” in a tightly knit group of associates centered around the victim. After the murder, defendant gave to the police and several individuals a number of inconsistent accounts regarding his whereabouts at the time of the murder. Defendant also began uncharacteristically spending money and was observed wearing more expensive clothing than usual. At about that same time, defendant was arrested and jailed for reasons unrelated to the murder and, while in jail, bragged to a fellow inmate that he had killed someone who had “disrespected” him. Defendant further related details of the killing that were consistent with the victim’s murder but that only the killer and those who actually examined the body would have known at that time. Defendant also told the inmate that he had stolen both cash and cocaine in conjunction with the murder.
During the course of the year-long investigation into the murder, defendant spoke with the police on several occasions. Although initially denying any involvement in the killing and theft, defendant ultimately acknowledged that he “may” have shot the victim, but indicated that he must have blacked out because he could not specifically recall the events of that evening. On the basis of this evidence, the jury convicted defendant as stated above. Defendant now appeals as of right, raising allegations of evidentiary and instructional error.
□. ANALYSIS
A. HEARSAY CONCERNING MOTIVE AND INTENT OF OTHERS
Defendant first argues that the trial court erred by declining to allow him to present hearsay testimony regarding persons other than himself who may have harbored a motive and intent to kill the victim. Specifically, defendant claims that the court should have admitted testimony that the victim was “upset” after driving from a meeting with a fellow drug dealer to the home of a friend, and that a mechanic who knew the victim heard someone in his automobile repair shop boasting that he had killed a man by shooting him in the head. Defendant claims that the first of these statements was admissible as either a present sense impression or excited utterance under MRE 803(1) or (2), and that the second was admissible as a statement against penal interest under MRE 804(b)(3). We disagree.
We review for an abuse of discretion a trial court’s ruling on the admissibility of evidence. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). With respect to the admissibility of the first challenged statement, a present sense impression is defined under MRE 803(1) as “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” This Court is not overly literal in construing the phrase “immediately thereafter” and will allow a statement made less than a minute or even several minutes after the event observed to qualify under this exception. See People v Cross, 202 Mich App 138, 142; 508 NW2d 144 (1993). However, the statement at issue here was not made merely a few minutes after the conversation being related took place, but following a drive of an indeterminate length from one house to another, and then in a separate conversation with someone not present during the first conversation. To call such an account a “present sense impression” is to rob the phrase of its meaning, and we will not interpret the language of this evidentiary rule in a sense so contrary to its “ ‘fair and natural import.’ ” See People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999), quoting People ex rel Twitchell v Blodgett, 13 Mich 127, 168 (1865) (Cooley, J.). Accordingly, we do not conclude that the trial court abused its discretion by declining to admit the subject statement under MRE 803(1).
We similarly find no support for defendant’s contention that this testimony was admissible as an excited utterance under MRE 803(2). The excited utterance exception applies only to a statement that arises from a truly “ ‘startling occasion’ ” and was “ ‘made before there has been time to contrive and misrepresent.’ ” People v Kreiner, 415 Mich 372, 378-379; 329 NW2d 716 (1982), quoting People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979). In addition to considering whether there was time to fabricate the statement, a court must also consider whether the declarant’s emotional state would have permitted such fabrication. People v Edwards, 206 Mich App 694, 697; 522 NW2d 727 (1994). Under none of these standards does the statement in question qualify as an excited utterance. Although defendant offered some detail regarding the substance of and circumstances giving rise to the challenged testimony, the fact that one drug dealer was “upset” after seeing another does not suggest any “startling” event. Indeed, we have found the sexual harassment of a corrections officer at work two days before being murdered (allegedly in connection with the harassment) not to have constituted a startling event, McCallum v Dep’t of Corrections, 197 Mich App 589, 592-593, 604; 496 NW2d 361 (1992), and have similarly ruled that viewing a daughter’s body in an open casket four days after she was murdered is not a startling event that allows the admission of a hearsay statement under MRE 803(2), People v Lobaito, 133 Mich App 547, 558-559; 351 NW2d 233 (1984). In light of these precedents, a disagreement, even a heated or upsetting one, between drug dealers simply cannot be regarded as a “startling event.” Moreover, the time between the event in question and the statement itself gave the victim “time to contrive and misrepresent” before making the statement, Kreiner, supra, and it does not appear that the victim’s emotional state when he made the statement necessarily would have excluded the possibility of such fabrication, Edwards, supra. Accordingly, the trial court did not abuse its discretion in refusing to admit the statement as an excited utterance under MRE 803(2).
We similarly find no error in the trial court’s decision not to admit the second statement in question, i.e., that, at some indeterminate point, a mechanic heard a certain “Little Tony,” who allegedly owned a handgun similar to that with which the victim was killed and was affiliated with a drug organization rival to that of the victim, remark that he had killed someone by emptying a gun into him, and in the process had kicked in both a front door and a bedroom door. Defendant sought to admit this statement under MRE 804(b)(3), which permits the admission of hearsay statements against the penal interest of the declarant. However, under this rule, “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trust worthiness of the statement.” MRE 804(b)(3). The requirement of corroborating circumstances for the application of this exception to the general rule excluding hearsay has been enforced in a number of our cases, including People v Jensen, 222 Mich App 575, 582-583; 564 NW2d 192 (1997), vacated in part on other grounds, 456 Mich 935 (1998), People v Underwood, 184 Mich App 784, 788; 459 NW2d 106 (1990), and People v Sanders, 163 Mich App 606, 610; 415 NW2d 218 (1987), and we agree with the trial court that the evidence proffered here lacked such corroborating circumstances. Indeed, the condition of the doors in the victim’s apartment actually contradicted the statement. Accordingly, the statement was insufficiently trustworthy to warrant its admission into evidence under MRE 804(b)(3), and the trial court did not abuse its discretion in so ruling.
B. INSTRUCTION ON REASONABLE DOUBT
Defendant next argues that the trial court’s instructions regarding the standard for finding him guilty beyond a reasonable doubt were erroneous. The trial court instructed the jury that
[p]roof beyond a reasonable doubt simply means evidence presented here which after you have assessed it leaves you firmly convinced in your own mind that he’s guilty. If you are firmly convinced based on the evidence, then you have been convinced beyond a reasonable doubt.
... If based on your careful consideration of the evidence and whatever inferences follow from the evidence you’re firmly convinced that [defendant] is guilty of some criminal offense, then you may find him guilty.
If, on the other hand, based on the evidence, the lack of evidence, and inferences which follow, there’s a real possibility in your mind, not just a mere possibility, that he’s not guilty, then, of course, he’s entitled to the benefit of the doubt and has to be found not guilty.
Defendant argues that the instruction, by equating proof beyond a reasonable doubt with proof that leaves the jurors “firmly convinced” of guilt without any “real possibility” of innocence, diluted the standard for a criminal conviction and therefore constituted structural error that deprived him of a fair trial and requires automatic reversal. See Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999). We disagree.
Defendant cites, and we are able to find, no case in which any appellate court has found the challenged instruction, which was taken from the pattern criminal jury instructions developed by the Federal Judicial Center, to be constitutionally defective. See Federal Judicial Center, Pattern Criminal Jury Instructions, pp 17-18. To the contrary, this instruction has been upheld in a number of federal cases, see, e.g., Harris v Bowersox, 184 F3d 744, 751-752 (CA 8, 1999), and United States v Artero, 121 F3d 1256, 1257-1259 (CA 9, 1997), and has been highly praised in the concurring opinion of a United States Supreme Court justice:
[W]e have never held that the concept of reasonable doubt is undefinable, or that trial courts should not, as a matter of course, provide a definition. . . .
.... The Federal Judicial Center has proposed a definition of reasonable doubt that is clear, straightforward, and accurate. That instruction reads:
“[T]he government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.” Federal Judicial Center, Pattern Criminal Jury Instructions, at 17-18 (instruction 21).
This instruction plainly informs the jurors that the prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty. The “firmly convinced” standard for conviction, repeated for emphasis, is further enhanced by the juxtaposed prescription that the jury must acquit if there is a “real possibility” that the defendant is innocent. This model instruction surpasses others I have seen in stating the reasonable doubt standard succinctly and comprehensibly. [Victor v Nebraska, 511 US 1, 26-27; 114 S Ct 1239; 127 L Ed 2d 583 (1994) (Ginsburg, J., concurring).]
Considering the absence of authority finding this instruction to be erroneous, and the weight of authority upholding and commending it, we find no basis for a determination of error.
C. SUFFICIENCY OF THE EVIDENCE
Finally, defendant argues that there was insufficient evidence to convict him of first-degree murder, either on the theory that he acted with premeditation or that he committed the crime in the course of another felony, in this case, larceny. The elements of first-degree murder are that the defendant killed the victim and that the killing was either “willful, deliberate, and premeditated,” MCL 750.316(l)(a), or committed in the course of an enumerated felony, such as larceny, MCL 750.316(l)(b). Defendant was convicted under both theories.
We review de novo challenges to the sufficiency of evidence in criminal trials to determine whether, when the evidence is viewed in the light most favorable to the prosecutor, a rational trier of fact could have found all the elements of the charged crime to have been proved beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). Viewed in this light, the evidence was sufficient to sustain the conviction. The evidence that defendant killed the victim was overwhelming. He confessed to the police and to a fellow inmate. Further, there was overwhelming circumstantial evidence of his guilt, including opportunity, presence at the crime scene, improvement in his financial circumstances immediately after the victim’s death, and defendant’s apparent knowledge of details about the killing that no one but the police and the murderer could have known.
With respect to premeditation, the evidence is even more compelling. In the first place, there is the manner of the death. The victim was shot multiple times at close range while lying asleep, two of the bullets having penetrated his face. One cannot, under normal circumstances, kill a sleeping person at close range in any fashion other than with premeditation, especially when the person is a close companion and benefactor. As made clear by the pathologist’s testimony, there was no evidence suggesting sudden rage or self-defense, or any other circumstance under which an unpremeditated killing might occur. Moreover, defendant’s own jailhouse confession admitted not only premeditation, but motive, i.e., that the victim “disrespected” him. Defendant’s statement regarding the disrespect was, moreover, corroborated by independent evidence concerning the relationship between defendant and the victim. Given this evidence, a rational trier of fact could conclude that, in the middle of the night, when the two were alone, defendant shot the sleeping victim at point-blank range, resentful of the condescending treatment he felt he was receiving. Viewed in the light most favorable to the prosecution, this evidence is more than sufficient to establish premeditation beyond a reasonable doubt.
There was also more than sufficient evidence to conclude beyond a reasonable doubt that the murder was committed in the course of a larceny. Evidence at trial indicated that money, drugs, and guns belonging to the victim were in his apartment immediately before he was shot, but that these items were missing when the victim’s body was discovered. This in itself would be enough, when viewed in the light most favorable to the prosecution, to establish beyond a reasonable doubt that the murder was committed in the course of larceny. However, there was also evidence of defendant’s newfound wealth immediately following the crime, including his throwing a large outdoor party on Memorial Day and his noticeably more expensive wardrobe. Combined with the evidence that it was defendant who committed the murder, and that he knew that the victim had the missing items in his possession, this was more than sufficient evidence to show beyond a reasonable doubt that defendant committed the larceny.
We affirm.
Defendant also asserted at trial, without any elaboration, that this statement was admissible as “a present sense impression or excited utterance.” However, like the previously discussed statement, there is nothing to indicate that this statement was made “while” or even within a few minutes after the killing being discussed took place. MRE 803(1); Cross, supra. Nor was there any indication that the statement was made “while the declarant was under the stress or excitement” caused by that allegedly startling event. MRE 803(2). | [
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Wilder, J.
Defendant appeals as of right his conviction after a jury trial of one count of second-degree criminal sexual conduct (esc n), MCL 750.520c(l)(a) (sexual contact with a person under thirteen years of age), and two counts of indecent exposure, MCL 750.335a. Defendant was sentenced to fifteen months’ to fifteen years’ imprisonment for the CSC n convic tion, and one year for each of the indecent exposure convictions, all sentences to be served concurrently. We affirm, but remand for correction of the presentence investigation report (psir).
Defendant first argues on appeal that the trial court abused its discretion in permitting the prosecution to introduce extrinsic rebuttal evidence that he had inappropriately touched the genitals of a minor boy while they were in a swimming pool. We disagree. The trial court’s decision to admit or exclude evidence is generally reviewed for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). Here, however, the defendant did not object to this testimony at trial. Accordingly, we review the record to determine whether plain error occurred that affected defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764, 774; 597 NW2d 130 (1999).
The admission of the testimony did not result in plain error affecting defendant’s substantial rights. Defendant testified on direct examination that in his capacity as a mentor he took several boys to swim in swimming pools and that he had never inappropriately touched any of them. On cross-examination, defendant was asked if he specifically denied inappropriately touching a specific boy. In response to defendant’s testimony reiterating his denial in that specific instance, the prosecution introduced testimony from a witness who testified he observed defendant touch the specific boy inappropriately.
Although MRE 608(b) generally prohibits impeachment of a witness by extrinsic evidence regarding collateral, irrelevant, or immaterial matters, a party may introduce rebuttal evidence to contradict the answers elicited from a witness on cross-examination regarding matters germane to the issue if the rebuttal evidence is narrowly focused on refuting the witness’ statements. People v Vasher, 449 Mich 494, 504; 537 NW2d 168 (1995). The testimony challenged by defendant fits within this narrow exception and therefore it was not plain error to admit it. Furthermore, defendant makes no argument that admitting the testimony affected his substantial rights, thereby failing to carry his burden of establishing that it was more probable than not that the alleged error affected the outcome of the trial. Lukity, supra at 496. Therefore, reversal on this ground is not warranted.
Defendant also urges this Court to remand his case for resentencing on the basis of an alleged scoring error regarding offense variable (ov) 8, MCL 777.38(l)(a), as well as the sentencing court’s alleged failure to address several errors in the PSIR. Although we agree that certain factual errors in the psir require correction, our review of the record revealed no errors requiring resentencing.
Defendant contends that the trial court should not have scored fifteen points under ov 8. Although he admits that he moved the victims to his home, he contends that the movement was voluntary, was not forceful, and was too remote from the commission of the crime to constitute asportation within the meaning of the sentencing guidelines.
Whether the term asportation as used in MCL 777.38(1)(a) contemplates movement by force is a matter of statutory interpretation and is therefore a question of law that we review de novo. Etefia v Credit Technologies, Inc, 245 Mich App 466, 469; 628 NW2d 577 (2001), citing Oakland Co Bd of Co Rd Comm’rs v Michigan Prop & Cas Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998); In re S R, 229 Mich App 310, 314; 581 NW2d 291 (1998).
As our Supreme Court stated in Macomb Co Prosecutor v Murphy, 464 Mich 149, 153; 627 NW2d 247 (2001):
“In considering a question of statutory construction, this Court begins by examining the language of the statute. We read the statutory language in context to determine whether ambiguity exists. If the language is unambiguous, judicial construction is precluded. We enforce an unambiguous statute as written. Where ambiguity exists, however, this Court seeks to effectuate the Legislature’s intent through a reasonable construction, considering the purpose of the statute and the object sought to be accomplished.” [Citations omitted.]
Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used, Phillips v Jordan, 241 Mich App 17, 22, n 1; 614 NW2d 183 (2000), citing Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 539; 565 NW2d 828 (1997), and if a term is not expressly defined in the statute, it is permissible for this Court to consult dictionary definitions in order to aid in construing the term “in accordance with [its] ordinary and generally accepted meaning[].” People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999), citing Oakland Co, supra at 604. Further, the language must be applied as written, Camden v Kaufman, 240 Mich App 389, 394; 613 NW2d 335 (2000); Ahearn v Bloomfield Charter Twp, 235 Mich App 486, 498; 597 NW2d 858 (1999), and nothing should be read into a statute that is not within the manifest intent of the Legislature as indicated by the act itself. In re S R, supra at 314. [People v Lange, 251 Mich App 247, 253-254; 650 NW2d 691 (2002).]
MCL 777.38(l)(a) directs the trial court to add fifteen points in scoring ov 8 if “[a] victim was asported to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense.” The trial court added fifteen points to defendant’s score under ov 8, and we uphold the sentencing court’s scoring decisions if there is any supporting evidence in the record. People v Elliott, 215 Mich App 259, 260; 544 NW2d 748 (1996).
The term “asportation” is not defined in the sentencing guidelines statute. However, in order to establish asportation as an element of the crime of kidnapping, MCL 750.349, there must be some movement of the victim taken in furtherance of the kidnapping that is not merely incidental to the commission of another underlying lesser or coequal crime. People v Green, 228 Mich App 684, 696-697; 580 NW2d 444 (1998). While asportation is an element of forcible kidnapping, there is no requirement that the movement itself be forcible. Rather, the only requirement for establishing asportation is that the movement not be incidental to committing an underlying offense. Id. When the Legislature acts in a certain subject area, it is presumed that the Legislature is aware of existing judicial interpretations of words and phrases within that subject area. “The Legislature’s silence when using terms previously interpreted by the courts suggests agreement with the courts’ construction.” Lange, supra at 255, citing People v Babcock, 244 Mich App 64, 74-75; 624 NW2d 479 (2000). We therefore find that consistent with prior judicial interpretations of the term, “asportation” as used in MCL 777.38(1) (a) can be accomplished without the employment of force against the victim.
Examining the record in light of the definition we ascribe to the term “asportation,” we find that the trial court did not abuse its discretion in its scoring of ov 8. The victims were moved, even if voluntarily, to defendant’s home where the criminal acts occurred. The victims were without doubt asported to another place or situation of greater danger, because the crimes could not have occurred as they did without the movement of defendant and the victims to a location where they were secreted from observation by others.
Finally, defendant argues that the sentencing court failed to address several inaccuracies in the psir. Defendant objected first that the PSIR inappropriately referred to defendant’s making sexual contact with two victims rather than one, as well as referring to “assaults” when only one assault occurred; second, that the psir stated that defendant entered the shower with the victims; third, that the psir stated that “it appears that [defendant] remains in denial about the whole situation”; and finally, that the psir stated that defendant suggested that all three of them — defendant and both victims — remove their swimsuits and skinny-dip. We review the sentencing court’s response to a claim of inaccuracies in defendant’s psir for an abuse of discretion. People v Harrison, 119 Mich App 491, 496; 326 NW2d 827 (1982).
The sentencing court must respond to challenges to the accuracy of information in a presentence report; however, the court has wide latitude in responding to these challenges. People v Newcomb, 190 Mich App 424, 427; 476 NW2d 749 (1991), overruled on other grounds People v Randolph, 466 Mich 532; 648 NW2d 164 (2002). The court may determine the accuracy of the information, accept the defendant’s version, or simply disregard the challenged information. Newcomb, supra at 427. Should the court choose the last option, it must clearly indicate that it did not consider the alleged inaccuracy in determining the sentence. People v Brooks, 169 Mich App 360, 365; 425 NW2d 555 (1988). If the court finds the challenged information inaccurate or irrelevant, it must strike that information from the PSIR before sending the report to the Department of Corrections. People v Hoyt, 185 Mich App 531, 535; 462 NW2d 793 (1990).
We find that the sentencing court adequately addressed each of these factual inaccuracies. First, the court agreed that contact only occurred with one victim and, despite the use of the plural in the psir, corrected the ten-point assessment of ov 9, for multiple victims, to zero. Second, the court agreed there was no evidence that defendant showered with the victims. The third factual inaccuracy, the statement that defendant suggested that all three of them remove their swimsuits and skinny-dip, had no bearing on the scoring of ov 10; rather, the points were assessed for the fact that defendant suggested that the victims go skinny-dipping, in addition to defendant’s conduct in inviting the victims to his home, checking them for leeches, and having them shower in his presence.
Finally, the statement that defendant “appeared to be in denial” regarding the situation need not be stricken from the psir. This statement was the opinion of the investigating officer, not a statement of fact, and defendant does not explain on appeal why or how the statement should be corrected. At sentencing, defense counsel’s objection stemmed from the rule that a sentencing court cannot base its sentence on a defendant’s refusal to admit guilt. People v Yennior, 399 Mich 892 (1977). Assuming defendant adopted this argument for appeal on this point, the fact that the sentencing court made reference to defendant’s failure to address his “personal issues” does not require resentencing.
The sentencing court may consider evidence of a lack of remorse in determining an individual’s potential for rehabilitation. People v Wesley, 428 Mich 708, 711; 411 NW2d 159 (1987). Resentencing is required only if it is apparent that the court erroneously considered the defendant’s failure to admit guilt, as indicated by action such as asking the defendant to admit his guilt or offering him a lesser sentence if he did. Id. at 716; see also People v Drayton, 168 Mich App 174, 178-179; 423 NW2d 606 (1988). Even assuming the sentencing court based its decision on the investigating officer’s opinion that defendant was “in denial,” rather than its own perception of defendant during the course of the trial, neither a correction of the PSIR nor resentencing is required on this point.
In sum, because the trial court did not rely on the challenged information in the psir in sentencing defendant, resentencing is not required; rather, the remedy is to remand for the limited purpose of correcting the psir. People v Harmon, 248 Mich App 522, 533-534; 640 NW2d 314 (2001). The PSIR should be corrected to reflect the facts that defendant only had contact with one of the victims, was convicted of only one assault, did not take a shower with the victims, and did not suggest that all three of them should skinny-dip.
Affirmed, but remanded for correction of the psir. We do not retain jurisdiction. | [
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Van Valkenburg, J.
Plaintiff-appellee, Ben T. Young Company, is a waterproofing subcontractor. Defendant-appellant, Lafayette East Company, is a general contractor. On August 4, 1967, Lafayette subcontracted to Young installation of membrane waterproofing on the roof of a building Lafayette was constructing in Lansing, Michigan.
Part of the agreement entered into on that date provided as follows:
"Guarantee: The subcontractor guarantees that all work to be performed hereunder will be first class in every respect. He further agrees to execute and deliver prior to the final payment a written guarantee in form approved by the Owner, guaranteeing all materials and workmanship, to be free from defects, for a period of three (3) years extending from the date of completion and acceptance of the entire project by the Owner, Architect and Contractor. He further agrees to make all necessary corrections of any found defects, all at the expense of the Subcontractor.”
Young installed the waterproofing to specifications. Its work was regularly inspected by Lafay ette employees. No complaints were made concerning the materials or workmanship during installation. Lafayette thereafter overlaid the waterproofing with several inches of poured concrete. Lafayette evidently neglected to insulate the waterproofing membrane as called for in the architect’s plans. Both Young’s performance and the concrete overlay were complete by the end of October, 1967.
The following spring the roof began to leak. Lafayette requested Young to honor its guarantee and repair the leaks. An inspection of the site convinced Young that the leaks were not düe to faults in its material or workmanship and it accordingly declined to take responsibility for the damage.
Lafayette then refused to forward the final portion of the installment payments due Young on the subcontract. Young filed suit on November 28, 1968 to collect this balance ($1,553.80); Lafayette counterclaimed for $50,000 damages for breach of the work-quality guarantee. The case was removed to Wayne County Circuit Court on May 29, 1969. After a non-jury trial, judgment was entered for Young on July 31, 1973 in the full amount of $1,553.80. Lafayette’s counterclaim had been dismissed on June 11,1973. This appeal followed.
The trial court held that Young had established its right to the final installment payment. Lafayette does not dispute the fact of performance but asserts that the performance rendered was not of the quality warranted.
Since Lafayette claimed breach of the guarantee, it had the burden of demonstrating that Young did not perform in accordance with the contract. The trial judge held that Lafayette did not discharge this burden. That finding cannot be disturbed unless it is clearly erroneous. GCR 1963, 517.1.
The trial judge’s conclusion that Lafayette did not adequately show breach on the part of Young depended on his interpretation of the guarantee. Lafayette argued that Young guaranteed a leak-proof roof when he promised that "all work” would be "first class in every réspect”. The trial judge disagreed, holding that Young guaranteed only that its work would be of the highest quality.
The language used is concededly ambiguous. Ambiguities must be resolved against the party drawing the contract. Michigan Chandelier Co v Morse, 297 Mich 41, 46; 297 NW 64 (1941); Gary Boat Club, Inc v Oselka, 31 Mich App 465, 471; 188 NW2d 127 (1971). Since Lafayette drew this contract, the ambiguity must be resolved in Young’s favor.* It would be manifestly unreasonable to suppose that Young would agree to guarantee the work of others, especially Lafayette, or to become an insurer as to leakage. The trial judge’s conclusion that Young’s guarantee only covered its workmanship and materials was clearly correct.
The trial judge concluded that "it was not shown that the leaks in the area of the construction joint were attributable to the improper installation or defective material applied by plaintiff”. That finding is amply supported by the record. Lafayette did not demonstrate that Young breached its own guarantee, as correctly construed by the trial judge. Dismissal of the counterclaim and judgment for Young on the installment balance was therefore properly entered.
Affirmed. Costs to appellee.
J. H. Gillis, J., concurred.
Oakland Metal Stamping Co v Forest Industries, Inc, 352 Mich 119, 125; 89 NW2d 503 (1958). The burden remains Lafayette’s even though, as it maintains, it is virtually impossible to determine the cause of the water seepage.
The fact that Young suggested changes in the plans which were eventually adopted is of no consequence since Lafayette’s architect reviewed and approved the changes before they were implemented. In so doing, Lafayette made them its own. Cf. McFarland v Gillioz, 327 Mo 690, 700; 37 SW2d 911, 916 (1931). | [
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R. L. Smith, J.
Plaintiff Joel Julius Tarver, III, was injured when he was struck by a garbage truck operated by the defendant municipality. An action to recover for his personal injuries and the medical expenses incurred by his father resulted in a jury verdict of $10,000 for the boy and $5,000 for the father. The defendant’s motion for a new trial, or, in the alternative, for a remittitur was denied as to the minor’s verdict but the trial court ordered a remittitur to $1,506.50 by the father. From this order and the denial of the motion, both parties appeal.
The defendant municipality’s contention that the trial court erred by denying the motion for a new trial because the verdict was against the weight of the evidence and excessive cannot be sustained. Cleven v Griffin, 298 Mich 139; 298 NW 482 (1941); Morgan v Engles, 13 Mich App 656; 164 NW2d 740 (1968).
The evidence and testimony presented by the plaintiffs indicated that the total medical expenses, including future treatment, would reach $1,834. The jury’s verdict of $5,000 was not within the range of the testimony presented; the trial court did not abuse its discretion in requiring the remittitur. Dillard v Braunstein, 32 Mich App 216, 219; 188 NW2d 203 (1971).
It appears, however, that the lower court made a minor miscalculation when computing the total of the various medical bills introduced by the plaintiffs. The correct total is $1,834. Therefore, the order of the trial court is amended to reflect this figure. GCR 1963, 820.1.
Affirmed. No costs, neither party having prevailed in full.
R. B. Burns, J., concurred. | [
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Long, J.
This suit was brought in justice’s court upon the following promissory note:
“$72.12. Lake City, February 27, 1887.
“Nine months after date, I promise to pay to the Aultman & Taylor Company, or bearer, seventy-two & 12-100 dollars, at bank at Lake City, value received, with interest at the rate of 7 per cent, per annum.
“P. J. Gorham.
“F. L. Decker.”
The defendant Decker, upon the trial before the justice, pleaded the general issue, and gave notice as follows:
“1. That he joined as maker of said note declared upon in the cause as accommodation merely, and never had any interest in the consideration, and never received any benefit, either directly or indirectly, on account of' the note; and plaintiff knew when it was made, and when it received said note, that the defendant was only in fact surety upon it for Gorham.
“2. That said note was given as part payment for a certain saw-mill purchased of plaintiff by Gorham; that a-short time after said note was given, to wit, some time in the month of May, 1887, said mill was nearly all consumed by fire, and on or about June 1, 1887, the plaintiff herein verbally agreed that, in consideration of all' the remainder of said saw-mill not consumed by fire being turned over to it, it would cancel said note and return it to said Gorham; that said Gorham immediately informed said Decker of the said agreement, and discharge of the note; and that said Decker had always supposed that said note had been paid until a short time before the suit was brought.
“3. That said Decker has never received any notice of the presentment and non-payment of said note, as agreed between said plaintiff and said Decker when said note was executed."
The cause was tried before a jury, who returned a verdict in favor of the defendants. An appeal was taken to the circuit court for the county of Missaukee, where, upon a trial before a jury, the plaintiff had verdict and judgment by direction of the court. The defendants bring error.
It appeared upon the trial that the note was given in payment of a purchase by defendant Gorham of the sawmill from the plaintiff. Defendant Decker claims to have signed the note at the request of Gorham and the agent of the plaintiff, and that 'he was a mere surety upon the note. Upon the trial he sought to show:
1. That he signed as a mere accommodation maker, and without any consideration moving to him.
2. That he executed it at plaintiff's request, and it was delivered to plaintiff upon condition that, if it was not paid at maturity, he would receive notice of the non-payment at once.
3. That the mill had been paid for and the note discharged.
Upon this last proposition the only claim made upon the trial was that, the mill for which the note was given having burned, the agent of„ the plaintiff thereafter agreed to take from the mill certain machinery, and give up the note. No claim is made that this agreement was ever carried out, or that the agent ever took possession of the machinery, or ever surrendered the note. Defendant Gorham testified that he wanted the agent to give up the note at that time, and to take the machinery, which he refused to do .until he went and saw. the attorneys of the plaintiff. From this testimony it is apparent that, if any such agreement was entered into, it was conditioned upon the approval of plaintiff's attorneys, as nothing further was done in regard -to it.
Counsel for defendants claimed' upon the .trial, and claim here, that, though the note was in form the joint note of the two defendants as makers, yet, defendant Decker being a mere surety, he had the right to show that the condition was annexed to it by which he was to be released unless notice was given to him of non-payment of the note at its maturity, and that, no notice having been given at once after it became due, he was therefore released from all liability upon it. This proposition cannot be acceded to by this Court. The note itself was the contract between the parties, and it cannot be permitted to be altered or varied by proof of an oral agréement or understanding between the parties made at or before the • time of its execution. By the contract made, defendant Decker seeks to limit his liability to a mere indorser, entitled to a notice of non-payment. He does not stand in that position towards this note, and he had no right to introduce parol proof to show that such was the agreement, and. the court was not in error in excluding it. Cook v. Brown, 62 Mich. 473.
Defendant, upon his first proposition, that he was an accommodation maker, , and no consideration moved to him,' claims that he cannot be held liable upon the note, ■under the ruling of this Court in Kulenkamp v. Groff, 71 Mich. 675. In that case it appeared, however, that the surety on the note did not sign until after the note had been executed by the maker and delivered to the plaintiff. In the present case it appears that the agent of the plaintiff went to defendant Gorham’s saw-mill, and had practically taken possession of it under a chattel "mortgage, and the defendant Gorham, in .order to get more time, executed the note, and Decker signed it before it was delivered to the plaintiff’s agent. This ■syas a sufficient consideration, not only to hold the maker, but the surety.
No fraud or mistake is claimed in the making of the note, ■ and, under well-settled rules, the court very properly directed a verdict in favor of the plaintiff.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
Plaintiffs sued the defendant, who is sheriff of the county of Livingston, in trover, for the conversion of the goods seized by him under a writ of attachment issued in the suit of Henry Wright and Orry Waterbury v. John Weimeister and Albert Weimeister, in which the judgment rendered in favor of the plaintiffs has been« affirmed by this Court. 87 Mich. 594.
John Weimeister made a general assignment for the benefit of his creditors on September 35, 1889, to the plaintiffs, now his administrators. The assignees took no possession of the property, filed no bond, and made, no inventory, for the reason, as they testified, that John Weimeister died before these were completed, and before the time had expired within which they should have completed and filed them. It is unnecessary to consider the effect of this assignment, for it did not purport to convey the partnership property of John Weimeister & Co., if such a partnership existed. The assignees, therefore, would take no title 'to, and have no right to the possession of, the partnership property. If, therefore, the partnership actually existed between John and Albert, the title to the property belonging to it still remained in the firm, and upon the death of John the title thereto became vested in Albert as the surviving partner. In all matters connected with the partnership he was the proper party to sue and to be sued. If a partner, it became his duty to close up the partnership matters, collect the assets, pay the debts, and then distribute the fund. Until the partnership fund is ready for distribution, the representatives of the deceased partner have no right to interfere, so long as the surviving partner is proceeding, in good faith, to wind up its affairs. Barry v. Briggs, 22 Mich. 201; Pfeffer v. Steiner, 37 Id. 537; Merritt v. Dickey, 38 Id. 41; Bassett v. Miller, 39 Id. 133.
On all other material questions, except the assignment, the evidence is the same in the present case as in that of Wright v. Weimeister, ante, 594, and it is unnecessary to repeat it here. Mr. Hammell was a witness in this case, but not in the other, and does not deny the statements, made by Wright and others, that he informed them that the firm of John Weimeister & Co. was composed' of John and Albert.
It is insisted by the defendant that the former suit involved the same issues as this, and that it therefore concludes the rights of the parties. If John Weimeister had lived till the suit was tried and judgment rendered, the question would have been res jzidicata, both as to him and Albert. It is undoubtedly true that all the acts of a surviving partner, and the result of suits brought by and against him as survivor, are binding' upon the representatives of the deceased partner, so long as they are conducted in good faith. But in the present case the existence of the partnership is disputed, and is the real question at issue. This being settled, there can be but little doubt as to the rights of the parties. Upon this question John Weimeister, in his life-time, did not have his day in court, nor have his representatives since his death. The judgment in that suit is therefore not binding upon them. '
The rights of the parties to this suit depend upon two questions of fact:
1. If John and Albert Weimeister were copartners in fact, then verdict and judgment should be rendered for the defendant.
2. If they were not in fact copartners, but ha$ held themselves out as such, and the plaintiffs in the attachment suit had dealt with them upon the faith of such representations, and in the honest belief that they were copartners, and the property levied upon belonged to the business in which they represented themselves as copartners, then verdict and judgment should be for the defendant.
Persons who deal with parties representing themselves as partners in a business are entitled to have the property used in that business applied to the payment of their debts in preference to the individual debts of those representing themselves as partners. This rule may operate severely upon the individual creditors, but a contrary rule would operate just as severely upon the partnership creditors.
The testimony of Albert Weimeister that he was misled by the statements of John as to the value of his property was incompetent. Whether John intentionally or unintentionally made false statements to Albert, and thus induced him to enter into the partnership, could not affect his liability to those who had meanwhile trusted them. Albert was in a better position than were their creditors to ascertain the assets of John, and their value. He cannot avoid liability by saying John defrauded him.
Plaintiffs introduced evidence tending to show that Albert was present when John executed the assignment, and was then asked by the attorney for John if he should also execute the assignment, and then he disclaimed having any interest in the property. This might be competent evidence in a controversy between John and Albert, and the fact might estop Albert from laying any claim to the property as against John or his assignees; but this doctrine cannot be invoked by the representatives of John in an adverse proceeding brought by creditors against them. both. If they were partners, it was the duty of Albert, as well as of John, to protect the partnership creditors. If they had held themselves out as partners, while not so in fact, the same duty rested upon them both. Albert could not, in either event, avoid this liability by consenting that the property might be assigned as the individual property of John. The same rule also applies to statements made by John at the same time. This testimony should have been excluded.
The circuit judge was in error in instructing the jury that the prosecution of the suit against Albert as survivor was an abandonment of the suit against John, and that the plaintiffs in the attachment suit should have proved their claim against John's estate, or have proceeded in equity to settle the rights of the estate and creditors. TVe need not determine whether the administrators might properly have been made parties defendant. It is sufficient to say that they were not necessarily parties, and that the action was properly revived against Albert as survivor. How. Stat. § 7401. They might have presented their claim against the estate, but this would not have operated as an abandonment of their suit. Manning v. Williams, 2 Mich. 105.
No attempt was made to obtain a dissolution of the attachment, and it will therefore be presumed that there were valid grounds for the issuance of the attachment. A creditor who, by his diligence in instituting proper legal proceedings, has obtained a lien, is not deprived of it by the death of one of his debtors, when the suit is revived and prosecuted in the manner provided by law. His lien is continued, and upon the rendition of judgment the property attached may be seized and sold under an execution.
Judgment is reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Long, J.
This is an action of trover for the unlawful conversion by the defendant, Graham Blandy, of 1,000 shares of the capital stock of the Colorado Central Consolidated Mining Company, a corporation organized and existing under the laws of the state of New York.
The defendant was a stock-broker doing business in the city of New York. The plaintiff is a citizen of Michigan, and had had business dealings with the defendant prior to 1882. It is conceded that in the fall of 1882 the plaintiff placed the certificate of stock in question in charge of the defendant for safe-keeping. In the fall of 1886 the plaintiff asked the defendant for a list of his stocks then in the possession of defendant. The defendant sent plaintiff a list of the. stocks in his hands, and included the stock in question. On the next day the defendant discovered that he did not have this stock, but that it had been delivered to the officers of the company in the fail of 1884. On the trial it-was a disputed question whether the stock had been so delivered by the defendant upon an order of the plaintiff ■or not, the defendant and his clerk testifying that the stock had been so delivered upon the plaintiff’s written order, while the plaintiff testified that he had never • given such an order, and, if the stock had been so ■delivered; the order was a forgery. The defendant testified that he took'the stock at plaintiff’s request, and for his accommodation only.
It was contended by defendant’s counsel on the trial that, if defendant was a bailee without reward, he was not responsible for the loss of the stock, intrusted to him, unless he was guilty of gross negligence, and that this gross negligence must be equivalent to fraud in order to make him liable in an action; and that a promise by a bailee, without reward, to' keep safely, does not render him liable for injury or losses occasioned by the acts of wrong-doers. The circuit judge refused to submit that question to the jury, but submitted to the jury one ■question only, and that was,—
“Did or did not the plaintiff authorize Mr. Blandy to deliver the stock in question to the officials of the mining company, where Mr. Blandy testified that he did deliver it ? ”
The jury, having found against the defendant upon this question, returned a verdict in favor of plaintiff for $4,426.25. Judgment upon this verdict being entered, defendant’s executor brings error.
It appears in the case that the defendant died in the city of Brooklyn, • N. Y., four days after the entry of this judgment, leaving a last will and testament. His will having been admitted to probate in this State on March 24, 1891, and letters testamentary having been issued to his executor, Graham F. Blandy, the death of the defendant was suggested of record, and the cause was revived in the name of such executor. The writ of error was sued out by the executor. Plaintiff contends that the executor has no standing in this Court, as it does not appear that Graham Blandy left any property within this State to be administered. This point is not well taken. We think this question was ruled by In re McCarty, 81 Mich. 460, and In re Nugent’s Estate, 77 Id. 500.
But two questions are raised by this record upon the part of the defendant, and under which his counsel contend the case should be reversed, namely:
1. Did the court err in not submitting to the jury the question whether or not the defendant was a gratuitous bailee, and, if so, as to the extent of his liability and degree of care required as such?
2, Did the court err in his instruction to the jury as to the proper measure or rule of damages?
It is contended by defendant's counsel upon the first proposition that, Graham Blandy having testified that he received and held the stock solely for the accommodation of the plaintiff, the burden of proof was upon the plaintiff to show that the loss was owing to the bailee's negligence; that, in order to recover, it devolved upon the plaintiff, not only to show a depiosit of the stock with defendant, and that defendant did not restore it, but,.further, to show that the non-restoration was produced by the lack of due diligence on the part .of defendant; and that the evidence in the case did not warrant a recovery by the plaintiff. The proposition of defendant's counsel is that the defendant was a mere gratuitous bailee, and not responsible for losses occasioned by the acts of wrong-doers, and not even for a theft not caused by his own neglect. Counsel cite numerous authorities upon this proposition.
This is an action of trover for the conversion of the property by the bailee. The conversion shown was a transfer and delivery over by Graham Blandy of these shares of stock to the company issuing them, without the ■consent or authority of the plaintiff. It appears that, at the time the stock was delivered over to the company, it was of great value, and the plaintiff, by reason of its wrongful delivery to the company, was put in a position where he was unable to recover the stock, and upon the part of Graham Blandy it amounted to a conversion. Demand was made upon him for it, and he wholly failed to replace it. It was held in Dearbourn v. Bank, 58 Me. 273, .where the bank was intrusted with bonds for safekeeping, which, when called for, were found to be gone, and the evidence tended to show that they had been lost, stolen, or misdelivered, that trover would not lie, since it could only be by a misdelivery that the bank, under the circumstances, could be held liable, and the misdelivery was not established. In the present case we think the court very properly left the only question to the jury which could arise; that is, “ Did Mr. Hubbell authorize the delivery?” The finding of the jury that Mr. Blandy delivered the stock without Mr. Hubbell’s assent amounts to a finding in fact that he was guilty of the conversion charged.
The cases cited by defendant’s counsel, we think, have no application to the present case, under the finding of the jury that Mr. Blandy converted the property, as it would make no difference whether the conversion was to his own use or to the use of another, inasmuch as the plaintiff was thereby deprived of the property. In such cases the bailee is liable for the value of the property converted, and it makes no difference how good his intentions are, or how careful he may have been in the premises/ In Hawkins v. Hoffman, 6 Hill, 586, it was said that trover may be maintained against a common carriel' where the goods intrusted to him are lost by his act, though without any' wrongful intent; as where he delivers them to the wrong person by mistake, or under a forged order. It is said by Mr. Justice Cooley in his work on Torts, page 632, that—
“Liability as gratuitous bailee only arises when the trust has once been assumed, * . * * but any dealing with the subject of the bailment in a manner not warranted by the understanding is, in law, wrongful. Therefore, if one having undertaken to carry and deliver money for another shall hand it over to a third person to be carried, from whom it is stolen, or by whom it is-lost, the loss must fall upon the bailee, who alone was trusted by the owner.”
Defendant’s counsel also cite in support of their proposition Beller v. Schultz, 44 Mich. 529. In that case it appeared that Schultz went to work for Beller, and took two flags with him, a large one and a small one. He-lent the large one to Beller, and helped to put it uponBeller’s building. He went away without taking the small one, and permitted the other to remain flying where he-had assisted in placing it. Subsequently a hail-storm injured it. He sent for both flags, and received the small one, but failed to receive the other. He sued in assumpsit for its value. It was held by this Court that there-was no cause of action. It was said in that case that the bailment was not shown to have been abused; that there was no proof that Beller failed in his duty.
“If there was any want of such care to guard the flag against injury from storms as the law would consider due, which is not probable, it was for Schultz to give evidence to prove it. He gave none whatever, and it is not to be presumed that Beller was in fault.”
In the present case it appears that the property was actually converted, either to the defendant’s use or the use of the company, and that without the consent of the plaintiff.
The second question raised relates to the charge of the court upon the measure" of damages, as follows:
“In case you decide in favor of the plaintiff, he is entitled to recover such an amount of damages as would legally compensate him for the loss he has sustained by reason of not receiving back his stock, — the loss he has suffered in consequence of Mr. Blandy’s default in preserving it for him, and returning it to him; and that would be the price and value of the stock as it was at the time Mr. Hubbell received information from Mr. Blandy of the loss of the stock; and, in addition to that, he would be entitled to recover all dividends paid upon the stock from the time it came into his hands — that is, in Mr. Blandy’s hands — up to the day when information of its loss was given to Mr. Hubbell, with interest at the rate of 6 per cent, per annum, to be computed on the value of the stock from the date when its loss was made known to Mr. Hubbell, and also to be computed on the dividends at the same rate from the dates when they were respectively payable.”
It is contended upon the part of the defendant that this is not the rule by which plaintiff’s damages are to be measured; that .the conversion occurred,, if at all, in the state of New York, and that whatever would be a, good defense to the action if brought where the wrong was committed must be a good defense everywhere; that this rule extends to the measure of damages in actions ex delicto, for wrong or injury to personal property; and that there is no testimony in this case tending to show that defendant acted in bad faith. It. is therefore contended that the true measure of damages was what it would have cost the plaintiff to replace the stock within a reasonable time after knowledge came to him of its alleged conversion by the defendant, and that the testimony shows that the value of the stock depreciated from $3 per share — which was the market value at the time the knowledge came to the plaintiff of its alleged conversión, and the one allowed by the jury — to $2.60 per share within 60 days from that date, and before the commencement of this suit. August 22, 1887, it had gone down to $2.20 per share. Counsel cite, in support of their proposition as to the measure of damages, the case of Wright v. Bank, 110 N. Y. 237 (18 N. E. Rep. 79). That was an action for the conversion of stock owned by the plaintiff. It appeared that the defendant acted in good faith in disposing of it, and the rule was there laid down by the court as follows:,
“ Justice and fair dealing are both more apt to be promoted by adhering to the rule which imposes the duty upon the plaintiff to make his loss as light as possible, notwithstanding the unauthorized act of the defendant, assuming, of course, in all cases that there was good faith on the part of the appellant. It is the natural and proximate loss which the plaintiff is to be indemnified for, and that cannot be said to extend to the highest price before trial, but only to the highest price reached within a reasonable time after the plaintiff has learned of the conversion of his stock, within which he could go in the market and repurchase it. What is a reasonable time, when the facts are undisputed, and different inferences cannot reasonably be drawn from the same facts, is. a question of law.”
This is, in substance, the language of the court in that case, which is quoted by defendant’s counsel in their brief; but the court went further in the case, and said:
<fWe think that, beyond all controversy, in this case, •and taking all the facts into consideration, this reasonable time had expired- July 1, 1878, following the 9th day of May of the same year. The highest price which the stock reached during that period was $2,795, and, as it is not certain on what day the plaintiff might have purchased, we think it fair to give him the highest price it reached in that time.” \
Applying that rule to the present case, we think the result reached would not give the plaintiff a less amount of damages than was allowed him under the rule adopted by the court in its charge to the jury. The conversion took place in the fall of 1884, but the plaintiff was not notified of it until the fall of 1886., At that time the stock was of the value of 83 per share; and if we adopt the rule contended for by defendant's counsel, under the ruling of the court in Wright v. Bank, supra, at 83 per share, with interest upon this amount at 6 per cent, upon dividends to which the plaintiff would be entitled, the amount would be no less than the amount of the judgment actually rendered in the case. We therefore see no error in the case, and the judgment must be affirmed, with costs.
The other Justices concurred.
The certificate was canceled by the corporation, and a new one issued to another party.
Counsel cited Scott v. Bank, 72 Penn. St. 471; Comp v. Bank, 94 Id. 409; Whitney v. Lee, 8 Metc. 91; Davis v. Gray, 141 Mass. 531; Jones v. Morgan, 90 N. Y. 4; Green v. Birchard, 27 Ind. 483; Schermer v. Neurath, 54 Md. 491; Dougherty v. Posegate, 3 Iowa, 88; 2 Amer. & Eng. Cyc. Law, 52. | [
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Long, J.
On the 25th day of July, 1887, the Michigan Cushman Telephone Company, a corporation, was organized under the laws of this State, and was doing business as such corporation between the 1st day of August, 1887, and the first day of', December, 1887. Between those dates it was engaged in constructing a line of telephone within the State of Michigan, and for that purpose, and for a part of the material to be used in said construction, purchased of the plaintiff a quantity of telephone poles, which were during the time aforesaid delivered and used ,in the construction of said line. The telephone poles were worth and were contracted for by the said corporation at the sum of $490.50. On the 25th day of February, 1889, a judgment was duly obtained in the circuit court for the county of Eaton, by the plaintiff, against the corporation, for the sum of $490.50, and costs taxed at $22.60. The judgment was rendered for the debt due the plaintiff for said telephone poles,-and no part of the judgment has ever been paid. At the time of the organization of said corporation, and ever since, the principal office of said corporation has been in the city of Charlotte, Eaton county, Mich. On the 2d day of May, 1889, the plaintiff caused an execution to be issued out of said circuit court, which was delivered to the sheriff of said county, and was after-wards returned wholly unsatisfied.
On the 17th day July, 1889, an order was entered in the said circuit court on the application of the plaintiff, requiring the secretary of the Michigan Cushman Telephone Company to file in said circuit court and cause a statement under oath, disclosing the name, residence, and amount of stock held by each of said stockholders of said corporation. On the 25th day of October, 1889, the secretary of said corporation, in pursuance of said - order, filed a statement, which showed that the defendant in this case, John Evans, together with four others, held each $10,000 in nominal amount of stock in said corporation. On or about the 15th day of November, 1889, the plaintiff filed a petition for judgment against the individual stockholders, and -a citation was thereupon issued and served upon each of said stockholders, requiring them to show cause why judgment should not be rendered against them for the amount so recovered against said corporation. The respondent in this case and two other stockholders appeared in said cause, and filed separate answers to said petition. The default of the other two defendants was entered. The answer of this respondent alleged:
1. That at the time of the issuing and the return of said execution, and at the time of the filing of said answer, the said corporation had a large amount of property subject to levy and sale on execution, and more than sufficient to satisfy- the same, which should be exhausted before judgment could be rendered against the individual stockholders.
2. That the law does not authorize a judgment to be entered .against the individual stockholders for the debt described in the petition.
3. That the statute (Act No. 129, Laws of 1883) under the provisions of which said petition was filed, so far as it attempts to make the stockholders of said corporation individually liable for materials furnished for said corporation, is unconstitutional and void, for the reason that the title of said act does not cover that portion "or section of said act which purports to make stockholders individually liable for materials furnished for such corporation.
4. That the object of such act is not sufficiently stated in its title.
5. That there is no law authorizing the proceedings by petition in a court of law to hold stockholders individually liable for debts contracted by such corporation, for materials furnished to such corporation.
The cause came on for trial before a jury in the circuit court for the county of Eaton, on the 23d day of July, A. D. 1890, and' judgment was’ rendered against this respondent for the whole amount of the judgment recovered by the plaintiff against said" corporation, being for the sum of $532.15. On the 25th day of November, 1890, an order apportioning said judgment was duly entered in said court and cause. On the trial of the cause the defendant offered to prove the amount of property owned by the Michigan Cushman Telephone Company at the time the execution against the corporation was returned unsatisfied. Upon - objection being made to the introduction of this proof,-the'counsel for defendant stated to the court that he purposed to show by the secretary of the company that, at the time the execution was issued and returned, there was $8,000 worth of property belonging to the company, consisting of a line of telephone poles and wires extending from Lansing to Detroit, and situate in the counties of Ingham, Shiawassee, Genesee, Oakland, Wayne, and Clinton, but no property within the county of Baton, where the action was brought, -except the franchise of the company. The court sustained plaintiff's objection to this testimony. Counsel for defendant then offered to show that, at the time the execution was issued, this property was subject to levy and sale on execution, and that the company still owned said property situate in the above-named counties. This was ruled out by the' court.
The errors relied- upon for which it is claimed judgment should be reversed are:
1. The introduction in evidence by the plaintiff of the execution, the petition requiring the secretary 1 of the company to file the statement showing the name, residence, and amount of stock held by each stockholder, and the statement filed by the secretary.
2. The refusal of the court to allow the defendant to show the amount of property held by the corporation at the time the. execution was issued and returned unsatisfied.
3. The refusal of the court to allow the defendant to show by the witness Samuel Pollock that he, as sheriff, made no attempt to levy the execution upon the franchise of the corporation, or to find any other property, and, if he did, to show what he did do.
4. The ruling of the court in refusing to direct a verdict in favor of the defendant.
The reasons given for this last proposition are.
1. The statute under which the Michigan Oushman Telephone Company was organized is unconstitutional and void, so far as it undertakes to make stockholders individually liable for the debts of the corporation for materials, for the reason that said act is broader than the title, and is in conflict with section 20 of article 4 of the Constitution of the State of Michigan.
2. The said act makes an unlawful and unconstitutional discrimination in favor of persons furnishing material for such corporations.
3. By the terms of the act under which the Michigan Cushman Telephone Company was organized the remedy to enforce the individual liability of stockholders is by bill in chancery.
4. The act of 1877, being the act authorizing these proceedings and under which this petition is filed, is unconstitutional and void, for the reason that it gives a remedy to one class of persons, which by the terms of the act is denied to all others.
5. The said act of 1877 is so defective in its provisions as to be incapable of enforcement.
6. The execution issued .against the Michigan Cushman Telephone Company should have been levied upon the franchise of the corporation, and such franchise sold, before the execution was returned unsatisfied, in whole or in part.
7. The corporation has property within the reach of an execution issued out of the court which should have been levied upon and sold before the execution was returned unsatisfied, and before these proceedings could be commenced.
We shall discuss the objections of defendant's counsel in the order in which they are raised.
It appears that the following facts were stipulated by counsel for the respective parties:
“1. That on the 25th day of July, 1887, the Michigan Dushman Telephone Company, a corporation, was duly organized under and by virtue of the laws of the State cf Michigan, and under and by virtue of said organization and said laws was doing business as said corporation between the 1st. day of August, 1887, and the 1st day of December, 1887.
“ 2. That between the said 1st day of August, 1887, said corporation was engaged in constructing a line of telephone within the State of Michigan, and for that purpose, and for a part of material to be used in said construction, purchased of the plaintiff, Henry C. Eipley, a quantity of telephone poles, which were between the last aforesaid dates delivered and used in the construction of said line.
“3. That said telephone poles, so purchased and used as aforesaid, were worth and were contracted for the sum of $490.50, and that on the 25th day of February, 1889, a judgment was duly obtained, rendered, and entered in the circuit court for the county of Eaton, State of Mich- , igan, for said sum of $490.50, upon which judgment costs were afterwards taxed at $22.60, and that no part of said judgment and costs has ever been paid.
“4. That at the time of the organization of said corporation, and ever since said organization, and now, the principal office of said corporation has been and is at the city of Charlotte, in the county of Eaton and State of Michigan.”
The corporation was organized under Act No. 129, Laws of 1883. Section 3 of that act provides that “ the stock of every such corporation shall be divided into shares of $100 each, and shall be deemed personal property.” Section 7 of the act provides as follows:
“ The stockholders of all corporations organized under this act shall be individually liable for all labor performed ahd materials furnished for said corporation during the time they were stockholders as aforesaid, which said liability may be enforced against any stockholder,' founded on this ^statute, at any time after an execution shall be returned not satisfied against such company: Provided, always, that if any stockholder shall be. compelled, by any such action, to pay such debts of ány creditor, or any part thereof, he shall have the right to call upon all the stockholders to contribute their part of the sum so paid by him as aforesaid, and may sue them jointly or severally, or any number of them, and recover in such action the ratable amount due from the person or persons so sued.”
It is provided by section 8 of the act that—
“Every corporation organized hereunder shall be subject to the provisions of chapter 130 of the Compiled Laws of 1871, so far as applicable, and of Act No. 168 of the Session Laws of 1881, approved May 26, 1881, entitled ‘ An act to provide for the assessment of and taxation of telegraph and telephone lines within the State of Michigan, and to repeal Act No. 77 of the Session Laws of 1879, approved May 20, 1879/”
Chapter 130 of the Compiled Laws of 1871 contains the general provisions of the statute relating to corporations, and, in substance, contains the provisions of chapter 55 of the Eevised Statutes of 1846, with the amendments thereto since that date.
In 1877 the Legislature passed an act entitled “An act to provide for the enforcement of the individual liability of stockholders of corporations.” Act No. 141 (How. Stat. §§ 4886-4899). This act provides as follows:
“Sec. 1. That whenever, by the Constitution or laws of this State, the stockholders of any corporation are individually liable for any debts of such corporation, the remedy for the enforcement of such liability shall be as hereinafter prescribed and not otherwise: Provided, that this act shall not apply to cases where the suit is for labor, and the action is brought by the person who performed the labor.
“Sec. 2. No proceeding shall be taken to enforce such liability until after a judgment has been recovered against the corporation on account of such indebtedness, and an execution issued upon such judgment to the county in which its principal office is situated or its business carried on has been returned unsatisfied, in whole or in part.
“Sec. 3. Whenever judgment has been recovered against any corporation for an indebtedness for which the stockholders of such corporation are by law liable, and an execution has been issued thereon as above provided, and returned unsatisfied, the court, upon application of the plaintiff, shall enter an order in such suit requiring the secretary, or other proper officer of such corporation, within a time designated in such order, to file in said cause a statement, under oath, of the names and residences of all persons who appear by the books of such corporation, or that such officer has reason to believe were stockholders therein at the time the debt for which such judgment was recovered accrued, and the amount of Stock held by each of said persons, and, upon service upon such officer of a duly-certified copy of such order, it shall be his duty to comply therewith.
“Sec. 4. The statement mentioned in the last preceding section having been filed, plaintiff may make and file in the case his petition in writing, setting forth:
“First, That he has obtained a judgment against the corporation, and the amount thereof.
“Second. That execution has been issued thereon, and returned in whole or in part unsatisfied, as the same may be, and the sum remaining unpaid thereon.
“ Third. That the several persons named in such statement of the officer of the corporation were, at the date the debt accrued on which the judgment.was rendered, stockholders in such corporation, and the amount of stock held by each.
“Fourth. What was the consideration received by the corporation for the debt on which such judgment was rendered; and praying that judgment may be awarded against said several stockholders in favor of the plaintiff for the sum so as aforesaid averred to be due from said corporation, and that a citation may issue from said court, under the seal thereof, to the said several stockholders, requiring them to appear in said cause on a certain day, to be therein named, and answer why judgment should not be entered against them as therein prayed.”
This act further provides that on the filing of the petition the citation shall issue, to be served upon the stockholders, and that on the return-day the person so cited shall make separate and several answer in writing, signed by him, to such petition, and if the liability be denied, or facts shall be relied upon in defense against such charge of liability, such answer shall contain a statement of such facts, or the specific grounds of defense; and that the issue thus made by the petition and answer, whether of fact or law, shall be tried in the same manner as like issues of fact or law are tried. Section 7 of the act provides that—
“On the trial of any issue of fact formed as aforesaid, the judgment against the corporation, and the amount thereon remaining unpaid, as shown by the return of the execution thereon, shall be prima facie evidence of the sum due to the plaintiff, but not that the debt on which said judgment was rendered is one for which respondents are personally liable.”
The act provides further that, after the several issues shall have been determined and judgment awarded against'the several persons named in the petition, the court shall make an order in the cause apportioning between them the sum for which they have been severally adjudged liable, pro rata, according to the stock held by each.
Section 14 of the act provides as follows:
“All acts and parts of acts inconsistent with this act, or giving any other or different remedy, or jEorm of remedy, are hereby repealed.”
It appears that the proceedings by the plaintiff in this cause have been conducted strictly in accordance with the provisions of this act, and we think that, under the provisions of section 2 of the act, .after the execution which shall have been issued upon the judgment rendered against the corporation to the county in which its principal office is situated, or its business carried on, has been returned unsatisfied, proceedings may then be commenced under "the act for the enforcement and collection of the debt by judgment against the individual stockholders; and that it is not necessary to issue and have returned unsatisfied an execution to any other county in the State, although it may appear that the corporation had property or effects situate in such other county.' The execution was issued, as appears by the record in this case, to the county where the principal office of the corporation was situated, that is, Eaton county, where its business was carried on, and returned wholly unsatisfied. , It further appears that the corporation had no property, except its corporate franchise, situate within that county.
It is contended by counsel for defendant that Act No. 129, Laws of 1883, under which the corporation was organized, does not provide that the execution shall issue to and be returned by the sheriff of the county where judgment was obtained. This is true. Section 7 of that act makes stockholders liable individually for labor and materials furnished for the corporation during the time they were stockholders, “which said liability may be •enforced against any stockholder, founded on this statute, at any time after an execution shall be returned not satisfied against such company.” But these two statutes (Act No. 141, Laws of 1877, and Act No. 129, Laws of 1883) must be construed together, and, under the provisions of section 2 of Act No. 141 of 1877, the execution is to issue to the county where the principal office •of the company is situated. The court was not, therefore, in error in refusing to permit the defendant to introduce testimony showing that the corporation had property outside the county of Eaton which might have been levied upon by execution.
It is insisted, however, that the court should have permitted the defendant to show, notwithstanding the sheriff’s return, that the corporation had property sitúate within that county. All that is claimed for this is that the franchise of the company was liable to levy and sale on execution. The sheriff’s return upon that question, as between these parties, is conclusive. Michels v. Stork, 52 Mich. 263, and cases there cited.
Counsel for defendant in his brief, however, contends that section 9 of chapter 130 of the Compiled Laws of 1871 authorizes the franchise to be levied upon, and that such franchise was property which should have been seized and sold before return of execution. The section reads as follows:
“When any judgment shall be recovered against any turnpike or other corporation, authorized to receive toll, the franchise of such corporation, with all the rights and privileges thereof, together with all their corporate property, both real and personal, may be taken on execution, and sold at public auction.”
Section 13 of the same act provides as follows:
“The officer’s return on such execution shall transfer to the purchaser all the privileges and immunities which by law belonged to such corporation, so far as relates to the right of demanding toll; and the officer shall, immediately after such sale, deliver to the purchaser possession of all the toll-houses and gates belonging to such corporation, in whatever county the same may be situated.”
From the reading of these two sections it clearly appears that the words “ other corporation,” in section 9, mean other corporations having toll-houses and toll-gates, and do not refer to a different character of coi'porations to which other provisions of that chapter relate.. We think, therefore, that there is no force in the claim that the sheriff should have levied upon and sold the corporate franchise of the company before he could return hie execution unsatisfied. There was no property situate in that county except the bare franchise or right to erect telephone lines, which is not an exclusive right to these persons who- are the organizers of the corporation.
We may now paks to the principal question raised in the case, and that is upon the claim of defendant’s ■counsel that the court was in error in not directing a verdict in favor of the defendant. The grounds of this ■claim have been heretofore set out. It is claimed that the act under which the company was organized is ■unconstitutional, so. far as it undertakes to make stockholders' individually liable for the debts of the corporation for materials, for the reason that the act is broader than the title, and is therefore in conflict with section 20 of article 4 of the Constitution. The title of the act is—
“An act for the organization of telephone and messenger service companies.”
As we have before said, this act must be construed in-connection with Act No. 141, Laws of 1877, which became a part of chapter 130, as it now stands, of the Compiled Laws of 1871, and having reference to different classes of corporations, and rights and liabilities of stockholders therein. The part of the act of 1883 complained of is section 7, which provides for the individual liability of stockholders for labor performed and materials furnished for the corporation. The claim made by defendant’s counsel is that under this title the duties, liabilities, and obligations of the corporation might have been defined, and the method of carrying on the business of the corporation in its corporate capacity might have been provided for; but that when the Legislature attempted to include in the provisions of this act something which had no relation to the corporation in its corporate capacity in any way, and attempted to operate upon private individual rights, it was entering a new field, and that such provisions were not within the title of the act; and that any action of the Legislature, looking to the making or creating of an obligation which would not ■otherwise exist, ought to be clearly stated in the title of the act imposing such liability or obligation. We think this provision making stockholders liable for the debts of the corporation is germane to the organization of the corporation, and not a violation of the constitutional provision as claimed by defendant’s counsel. This constitutional provision is—
“No law shall embrace more than one object, which shall be expressed in its title.”
This provision requires that the title shall fairly indicate the general object of the law. Mr. Cooley, in his work on Constitutional Limitations, page 144, speaking upon the subject, says:
“ The general purpose of these provisions is accomplished' when a law has but one object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation impossible.”
It was said by Mr. Justice Graves in Harrington v. Wands, 23 Mich. 389:
“If we were to hold that no act can have any operation further than the title actually expresses, we shoiild outrun the Constitution, unsettle much of the legislation of the last 20 years, and throw an obstacle in the path of future legislation which no human wisdom could overcome.”
In Johnson v. Higgins, 3 Metc. (Ky.) 566, that court, speaking of similar provisions of their constitution, say:
“The constitutional provisions should receive a reasonable construction, and any provisions of the act directly or indirectly relating to the subject expressed in the title, and having a natural connection therewith, and not foreign thereto, should be deemed embraced by it.”
This Court in Ryerson v. Utley, 16 Mich. 278, quote this language from the supreme court of Kentucky, and say: “We approve of the principle of this decision as thus stated.” We are satisfied, within the previous decisions of this Court, that section 7 of the act of 1883, making stockholders individually liable, for corporate debts, is fairly embraced within the title, and therefore not within the constitutional prohibition.
Counsel for defendant also claims that Act No. 141, Laws of 1877, is unconstitutional, for the reasons:
1. That it is class legislation.
2. That it amends or alters other statutes, without re-enacting or- publishing at length the section to be altered or amended.
Upon the point that it is class legislation, counsel refers to section 1 of that act, which we have heretofore set out, and bases his claim upon the provision of that section which exempts claims for labor from the operation of the act. We think there is no force in this claim. All labor claims are treated alike, and provision is made for the enforcement of such claims under other statutes. The fact that the act of 1877 only includes claims for materials furnished the corporation, and expressly exempts labor claims from its operation, does not make the act class legislation, within the meaning which counsel seeks to put upon it. All that can be required in such cases is that the act shall be general in its application to the class to which it is intended to apply. It is a question qf legislative discretion and policy to determine what class of claims shall be embraced within the act. Cooley, Const. Lim. 390.
Upon the second point it is urged by defendant’s counsel that the act of 1877 takes away all other remedies provided by law for the . enforcement of the individual liabilities of the stockholders of corporations, except where the suit is for labor, without re-enacting or pub lishing at length the section to be altered or amended; and that, therefore, the act is in violation of section 25 of article 4 of the Constitution of this State. Section 14 of the act of 1877 provides that “all acts and parts of acts inconsistent with this act, or giving any other or different remedy, or .form of remedy, are hereby repealed.” We need not discuss this question. The remedy for the enforcement of such claims prior to the act of 1877 was by bill in chancery. By the provisions of the act of 1877 the form of the remedy is changed so that after. judgment against the corporation, and return of execution unsatisfied, a citation may issue to the stockholders to appear and answer, and show cause why judgment should not be rendered against them individually. By implication, chapter 130 of the Compiled Laws of 1871, in its provisions as to the enforcement of the liability against individual stockholders, was-amended by the act of 1877. It has been repeatedly held in this State that a statute Laving amendatory effect by implication to repeal inconsistent acts is not in conflict with section 25 of article 4 of the Constitution, because not re-enacting aDd publishing at length the acts so altered and amended by implication. People v. Mahaney, 13 Mich. 481; Underwood v. McDuffee, 15 Id. 361; Jones v. Commissioner, 21 Id. 236; Harrington v. Wands, 23 Id. 385; Mok v. Building Ass’n, 30 Id. 511.
We have quoted these statutes, and dwelt upon them at great length, for the reason ’ that this is the first case coming before this Court where the remedy to enforce the liability against individual stockholders has been sought under the provisions of act of 1877. We are sat isfied that the Legislature intended by the act of 1883, under which the corporation was organized, to make the previous statutes having reference to the remedy over against stockholders a part of that act, and that the plaintiff has substantially followed the' provisions of the several acts in the enforcement of his claim against the stockholders.
We find no error in the record, and the judgment must be affirmed, with costs.
The other Justices concurred,
This section provides that “No law shall be revised, altered, or amended by reference to its title only; but the act revised,'or the section or sections of the act to be altered or amended, shall be re-enacted and published at length.” | [
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Morse, J.
This is an action of replevin, brought to recover a quantity of saw-logs cut from 40 acres of land owned by Edward S. La Sallé, of Portland, Mich., and located in the county of Otsego. The circuit judge directed a verdict for the defendant. This was- error.
The plaintiff showed that she purchased the timber standing upon the land of one A. A. Crane. Crane testified that he sold the timber upon the authority of two letters received from La Salle, which letters are as follows:
“Portland, Mich., May 19, 1888.
“Cooper & Crane,
“ Gaylord, Mich.
“Dear Sirs: I have had several chances to sell a piece of land I have in Bagley township, or to sell the pine on it. I don’t care to sell the land, but perhaps the pine will sell now as well as ever. If you are still in the real-estate business, I wish you would look it over, and see what the pine is worth; and if there is enough to make it any object I think I will let you sell it, as you can attend to it much better than I can. Robert King, of Lapeer, who has a shingle-mill in or near Gaylord, wrote to me two months ago, wanting to buy the land, and a few days ago he came to Portland to see me. 'So if you will look it up, and report as soon as convenient, I can tell you at once what to do. No estimate was made on the pine on the list on R. R. books. I have the impression that there are not more than a dozen or fifteen trees. The land is the S. W. of the N. W •£ of Sec. 11, town 30 N., E. 3 W., — 40 acres.
“ Yours respectfully, E. L. La Salle,
“Portland, Mich.”
“Portland, Michigan, May 28, 1888.
“A. A. Crane,
“ Gaylord, Mich.:
“Yours of the 24th received. I did not suppose the pine was in so bad a condition. You may sell the pine if you can. I have written to King that I would leave it to you. Of course you will get all you can for it. Have you any idea what the land will bring after the pine is off? Possibly I may want to sell it before next spring.
“Yours truly, E. L. La Salle.”
July 11, 1888, Mr. Crane sold the pine timber to plaintiff for $115, of which she then paid $15 down. She paid the balance August 11, 1888, when Crane gave her the following receipt:
“ Gaylord, Aug. 11, 1888.
“ Eeceived of Mrs. John White $100, balance due for pine timber on the S. W. £ of the N. W. J,' Sec. 11, town 30 north, range 3 west.
“E. L. La Salle.
“Per A. A. Crane, Agent.”
Plaintiff entered upon the land about July 11, 1888, under a parol license granted by Crane as La Salle’s agent, and cut the timber into saw-logs, preparatory to removal. The cutting was completed September 1, 1888. October 17, 1888, defendant notified plaintiff that he claimed to own the timber, and forbade her removing the logs. This was the first knowledge she had of any adverse claim to the -timber by any one. Soon after this notice^ defendant removed the logs, against plaintiff’s protest, and she brought this suit. Defendant claims that he bought the timber of the owner, La Salle, June 28, 1888, and put in evidence a copy of a bill of sale of that date, which bill of sale also contained a license to enter upon the land and take off the timber at any time within two years from its date.
The circuit judge was of the opinion that there was no evidence to go to the jury showing that Crane had authority from La Salle to sell the timber to plaintiff. Crane testified that he received the two letters from La Salle, and when they were offered in evidence the defendant’s counsel said:
“.We will object to them. They are not shown to be the letters of Mr. La Salle. There is no proof that Mr. La Salle ever wrote them. Simply to save the point, — they may and they may not, as far as we know.”
The letters were received in evidence. It will be noticed that the first letter refers to the defendant. From this letter it appears that King had written to La Salle, and had also been to Portland to see. him, about this land. This appears to have been the occasion of La Salle’s writing this letter to Crane. This letter was directed to Cooper & Crane, with whom the record shows that La Salle had had correspondence with reference to this land .before. .Crane replies to this letter, and receives the second one. When the defendant takes the stand in his own behalf, he testifies that, when he called upon La ‘Salle at Portland, he told La Salle that his name as the owner of this land had been given him by Mr. Crane, and La Salle said that he would, write to Crane, and have him place a price upon the timber, and he would sell it, but he had no knowledge of the value of the timber. “ He said ho would write to Mr. Crane, and I could see Mr. Crane when I came up here, and perhaps could malee a deal with him for the timber.” He further testifies that about a month afterwards he saw Mr. Crane,' and tried to buy the timber of him. Not being able to do so, he wrote to La Salle that he thought Crane was not doing the fair thing in regard to the land, and that if' La Salle wanted to do anything with the defendant, and would place a price upon the timber, he would take it at what it was worth. La Salle wrote in reply, wanting to know if Crane would not make the defendant any price on the timber. ¥e think, with this evidence of the defendant supplementing the letters, the plaintiff was entitled to go to the jury upon the question of Crane’s .authority to sell the timber, as neither Crane nor the plaintiff received any word from La Salle, or any one else, in contradiction . to these letters, until the notice from the defendant of October 17, 1888. If La Salle sold the timber to defendant June 28, 1888, he did so without revoking the agency of Crane, and without the knowledge of Crane or the plaintiff. The plaintiff, having, under the circumstances shown, entered upon the land, and converted the timber into personalty, was •entitled to recover the value of the same, if Crane was authorized to sell it as the agent of La Salle.
It is true that the absolute title to standing timber in this State will not pass except by deed, in the same manner as the fee of the land; but a license to enter and cut such timber, and remove the same, can be given, which, unless revoked before the timber is cut, and thereby converted into personalty, will pass the title to so much as has been severed from the soil. Greeley v. Stilson, 27 Mich. 157; Haskell v. Ayres, 35 Id. 90; Wetmore v. Neuberger, 44 Id. 362; Spalding v. Archibald, 52 Id. 365. A sale of the land would revoke the license, but in this case the defendant had only a bill of sale of the timber, which was no inore than a license. Until the plaintiff received notice of this, it could not operate as a revocation of her license.
Other errors are assigned upon the record, but, as these are not likely to arise upon another trial, we shall not discuss them.
The judgment is reversed, and a new trial granted, with costs of this Court.
The other Justices concurred. | [
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G-rant, J.
The complainants, 16 in number, are residents of the village of Port Austin. They, together with others, numbering in all 147, were desirous of having a fiouring-mill built at said village. Conversation took place between some of 'the complainants and the defendant Henry C. Dutton, who was a practical miller, and then a stranger in that community. The result of these conversations was that Dutton offered to erect a mill of a certain capacity, provided that a bonus of $2,500 was raised by the citizens of the village and vicinity, and sufficient ground given on which to erect the mill. A meeting of citizens was called, and a committee of three was appointed, two of whom are complainants here, to complete the arrangement, and attend to the raising of funds. A subscription paper was drawn up, which reads as follows:
“In consideration of our mutual promises, and in consideration of and for the purpose of inducing H. C. Dutton to construct a roller process ffouring-mill in the village of Port Austin, Michigan, of seventy-five barrels per day capacity, severally promise to pay to said H. C. Dutton the" sums set opposite our respective names, as follows: Two-fifths thereof when the mill building is completed and ready for the machinery, and two-fifths thereof when the machinery is delivered at the mill ready to be set up, and the balance when the mill is completed of that capacity, and in operation, which shall be February 11, 1888.
“ Dated Port Austin, Mich., this 12th day of September, 1887.”
The subscriptions amounted to $2,374, of which $165 still remains unpaid.
Three of the complainants, Frederick, James, and Ebenezer Ayres, comprised the firm of Ayres & Co. They deeded the land to Dutton September 29, 1887, and at the same time Dutton executed an agreement with them by which, among .other things, it was provided “that in case said flouring-mill to be erected upon said lots should be destroyed by fire within three years, and another flouring-mill of like kind and capacity is not., erected upon said lots within said three years, or its erection begun within said three years, and completed within a reasonable time thereafter, said Dutton shall deed back said lots to ,said Ayres & Co.,” or, if he was unable to reconyey, he should pay Ayres & Co. $300 as liquidated damages. These áre the only two written documents in connection with the transaction. All else rests in parol.
The defendant Dutton erected the mill according to the terms and specifications, and carried on the business for about two years and a half. The investment was a losing one for him, and, after offering to sell the property to other parties, who are complainants in this suit, at a considerable sacrifice, he sold the machinery, and was proceeding to remove the same, when this bill was filed, and he' was enjoined.
The original bill set up a bonus of $2,500 paid to Dutton, and 'prayed that said sum, with interest from the time of payment, be decreed to be paid into court for payment back to the several subscribers; that the complainants Ayres be paid the sum of $300; and that, in default of such payments, the defendants be enjoined from removing the mill. Subsequently complainants filed an amended bill, in which their prayer for specific relief was to enjoin the removal of the mill and its machinery. There was also a general prayer for relief. The court below found that the amounts subscribed were paid upon the equitable and implied consideration that Dutton should erect the mill, and operate it with ordinary business skill, and fairly attempt to make the same a profitable and permanent business; that it was not carefully and skillfully conducted; and that it .was inequitable toward the subscribers to remove the mill. The decree was .for a lien upon the mill and machinery for the amounts paid by complainants, and that, until such payments be made, defendants be enjoined from removing the machinery.
There was no express stipulation, either verbal or written, that Dutton should continue the business for any specified time* The building and plant were erected by Dutton as agreed upon, at an expense of about $10,500.
1. Complainants have failed to establish a case for the relief asked. Complainant Campbell is in default upon his subscription, and makes no offer to pay the balance due from him. The bill alleges that the agreement was for a bonus of $2,500; that this amount was subscribed and turned over to Dutton, and accepted by him as money. It is now conceded that the whole $2,500 was not raised or subscribed. It is neither alleged nor prove.n that Dutton received the subscription pledges' as a fulfillment of the agreement on the part of the complainants and their co-subscribers. The demand of complainants, therefore, is in violation of the universal rule that they who ask equity must do equity.
2. It was undoubtedly contemplated by the subscribers and by Dutton that the business would be permanent, as the plant itself was permanent in character. It was undoubtedly also contemplated that the business would be successful. Neither party, therefore, thought of making any provision as to time. No bonus would have been subscribed, and Mr. Dutton would not have expended nearly all his means, if any serious doubt of the success of the enterprise had existed. The subscribers to the bonus gave no guaranty. It'was a common venture, in which the subscribers staked their bonus of $2,500, and Mr. Dutton the balance, about $8,000. It would be against reason and common sense, under these circum stances, to imply an agreement on the part of Mr. Dutton to continue the business at a loss. We have not before us the case of a successful business under like conditions, and upon such a case we intimate no opinion. It remains, therefore, to determine from the record presented to us whether defendant Dutton made a fair and honest effort to render the business a success, so as to warrant its continuance. The business was not successful, and the court below attributed the failure to want of care, skill, and attention on the part of Mr. Dutton. There is no charge or evidence of bad faith on his part. He fully complied with his agreement in erecting the mill. He had more at stake, and was more deeply interested in the success of the enterprise, than any other person. The chief complaint against him is that certain customers who took wheat to the mill did not receive good flour in return, and in some instances received short weights, and that in consequence farmers took their wheat to other mills, or sold it in other places. Several other mills of a like character were doing business not far from this one. Several millers testified in the case, and from the evidence it is at least doubtful whether the complaints against Mr. Dutton in this respect were more common than against millers generally. Several causes operated against Mr. Dutton, which it is not necessary to enumerate. I think the evidence • establishes the fact that Mr. Dutton fully complied with his agreement, and made an honest and faithful attempt to render the business a success. Having done this, he was no longer compelled to carry on the business, and had the right to sell and remove the machinery.
3. It follows that the complainants did not, by their subscriptions, obtain a lien upon the mill plant. There was no expressed provision for a lien, and none can be implied in such a case as this. It would be most inequitable to hold that Mr. Dutton took all the risks, and, in the event of failure, must pay the subscribers, in addition to the large loss which he has incurred.
The decree of the court below is reversed, and bill dismissed, with the costs of both courts.
The other Justices concurred. | [
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Grant, J.
This is an action of assumpsit, commenced by attachment September 25, 1889, against John and Albert Weimeister. John died October 3, 1889; and April 29, 1890, his death was suggested, and the suit revived against the defendant. The sole question in controversy was whether John and Albert were copartners.
John Weimeister and one Neil O'Hearn had been for many years engaged in general merchandising and banking in the village of Howell. August 8, 1889, they dissolved, O'Hearn selling to John Weimeister. John Weimeister continued in the business, and plaintiffs claim that Albert became a partner with John; and also that, whether he was in fact a partner or not, he is estopped by his acts and conduct from denying it. Upon the dissolution of the firm of Weimeister & O'Hearn the business was continued,- both in banking and merchandising, under the name of John Weimeister & Co., until September 25, 1889, when John Weimeister executed an assignment for the benefit of his creditors, and both the bank and the store were thereupon closed.
Albert admits that for some time prior to the dissolution on August 8 there had been an understanding between himself and John Weimeister that O'Hearn should go out and Albert should become a partner; that upon the dissolution of the old firm he immediately commenced to sign drafts by the name of John Weimeister & Co., and continued to do so up to the time of the failure; that he went to Detroit, and ordered a stamp, which read, “John Weimeister & Co., Successors;" also another, which l’ead, “John Weimeister & Co. Paid,"— which stamps were in constant use; that he bought goods in the name of the new firm, informing the vendors that he was a member of the firm; that he knew it was generally understood in the community that he was a member of the firm; that he was frequently congratulated upon the fact, and never denied it; that he ordered printed note-heads, headed “John Weimeister & Co.,” with the name of John Weimeister in one corner and Albert Weimeister in the other, which were used and circulated by them. Besides these admissions, the dissolution of the old firm and the formation of the new one, composed of John and Albert Weimeister, was announced in the two newspapers published in the village of Howell. This was done at the request of John Weimeister, and in one instance in the presence of Albert. Many witnesses testified that Albert informed them that he was a partner. Many more testified that John informed them that Albert was a partner. Albert had been in the •employ of Weimeister & O’Hearn, but after August 8 he performed duties, such as the signing of checks, which he had not done before, and which none but the partners'of the old firm had ever done. One Hammell, who had been for many years the cashier of the bank, and had had almost the entire charge of the banking business, informed the customers that the new firm was composed •of John and Albert.
No other conclusion could honestly have been reached by the jury than that John and Albert were not only estopped from denying that they were partners, but that they were partners in fact.
After this statement of facts, the alleged errors can be very readily disposed of.
1. The affidavit for attachment and the declaration did not alleged that John and Albert were partners. They simply alleged that John and Albert, the defendants, were justly indebted to the plaintiffs in a certain sum. It is insisted that proof of the partnership was inadmissible under, the pleadings. This objection was not made in the court below, and cannot now be raised here. The point is too technical to require further comment.
2. At the time of the change in the firm plaintiffs had a deposit in the bank, and were also contemplating future deposits, which were - afterwards made. On learning of the change, the plaintiff Wright went to the bank to-ascertain the facts in regard to it. Neither John nor Albert was there. Mr. Hammell was there, in sole charge-of the business, as was usually the case. Mr. Wright sought information in the due course of business. His future course would be shaped by the information obtained. He went to the usual place of 'business. He found there the general agent in charge. He went to the proper place and to the proper party to make inquiries. This testimony was objected to as incompetent, and this is the principal question now in controversy. When this testimony was offered, HammelFs agency had been fully established, and convincing evidence of the existence- of the partnership had been introduced. The evidence was properly admitted. The statements were part of the res gestae.
3. It was competent for the plaintiffs to testify that they subsequently deposited money in the bank, relying upon the information they received from Mr. Hammell. It was necessary for the plaintiffs to prove this under the theory of estoppel.
4. Under the circumstances of this case, we see no error in permitting the plaintiff Wright to testify that from the time of this conversation with Mr. Hammell he understood that John and Albert composed the firm. This point is ruled by Parshall v. Fisher, 43 Mich. 529.
5. The statute of Michigan requires that all persons engaged in the business of banking shall make and file with the county clerk a certificate in writing, setting forth the names of the members of the firm, and certain other facts. It also provides that in case of a change in the name or style of a firm a new certificate should be filed, and that until such new certificate shall have been filed the members of the old firm shall be held to be the actual members, liable for any obligation incurred by the firm. How. Stat. §§ 3128, 3129. The circuit court rejected evidence that no such certificate had been filed by John and Albert Weimeister. Defendant’s counsel insists that, until this certificate was filed, the old firm was not legally dissolved, and that Albert could not become a partner. This position is untenable. Persons engaged in the banking business will not be permitted thus to take advantage of their own neglect of duty.
We find no error in the record, and the judgment is affirmed.
The other Justices concurred. | [
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Champlin, C. J.
The bill of complaint in this cause was filed for the purpose, exclusively, of obtaining an injunction.
The complainants set out that they had leased certain mill premises of the defendants, and that the lease was to be operative for a year, commencing on the 11th day of November, 1889, and ending on the 11th day of November, 1890. They then set up that the defendants had forcibly taken possession of the premises and excluded them from the property, and asked for an injunction' restraining them from interfering with their possession of the mill. This injunction bill was filed on the 7th day of April, 1890.
The facts as claimed by the defendants, and as they appear to us by the record, are that the lease under which the complainants based their entire right to equitable relief was settled under an agreement in which they were relieved from the terms thereof, and the whole matter was adjusted, and the defendants were to have possession of the mill; but at that time, from oversight, the lease to the 'complainants was not surrendered or canceled otherwise than by the agreement which superceded it. The defendants, having acquired the right under the agreement to the possession of the mill and property, put their men in there in the month of April and earlier to prepare the mill for the season's sawing, and, when they had got it nearly prepared for work, the complainants then claimed that they had rights under that léase, and attempted to dispossess the defendants, and to get possession of the property for the purpose, as is quite apparent, of extorting black-mail- from the defendants, and compelling them to buy their peace. They obtained an injunction. As they well knew, if the defendants obeyed it, it would work great damage and injury to them, and before the suit could be gotten out 'of the way they would suffer great inconvenience, loss, and damage. The defendants refused to deliver up possession. It was their property, and in their own possession, and the court should not have awarded an injunction to dispossess them. Complainants proceeded against the. defendants for contempt of court in disobeying the injunction, under those provisions of the statute which allow proceedings for contempt in the enforcement of civil remedies. A reference was taken under this proceeding to ascertain the extent that their several rights and remedies had been impaired, and report the same to the court. The proof'is returned in the record.
Upon the hearing before the court, the Honorable S. B. D^boll, circuit judge, made the following order:
“In this matter, the defendants, who were heretofore enjoined by the injunction of this court from interfering with certain property as set forth in the proceedings therein, and on showing duly made, have been adjudged guilty of contempt in disobeying said injunction; and the same having been referred to J. S. Monroe, a circuit court commissioner, to take evidence of the amount of damages sustained by the complainants on account of the said contempt; and the said J. S. Monroe, commissioner as aforesaid, having made his report, whereby he reports that he is unable to decide the amount of damages, and returning the evidence taken before him; and the court having examined the said evidence and report, and duly considered the same, does adjudge and decree that the said defendants, Alfred Weed and Marshall Hubbard, are guilty of said contempt, and that they pay to the complainants, within ten days after the service of a copy of this order or decree, damages as follows:
For attorneys’ fees and expenses....................$160 00
Clerk’s fees----------------------------------------- 5 00
And the further sum of twenty-five dollars commissioner’s fees...............................-.....- 35 00
For witnesses’ fees and expenses.................... 10 00
Amounting in all to the sum of two hundred dollars__________________________■___________________$300 00
—And, in default of said payment within the said ten days, that the complainants have an execution therefor.
“Dated, August 35, 1890.
“ S. B. Daboll, Circuit Judge.”
From this order the defendants appeal.
The same circuit judge had previously, on the 30th day of June, 1890, entered his order, upon the coming in of the answer of defendants, dissolving the injunction theretofore issued, and restoring the possession of the mill property described in the injunction to the defendants.
The order made by the circuit judge in this matter of contempt merely orders that the costs and expenses of the contempt proceedings shall be paid by the defendants to the complainants. This order is unauthorized by the statute, which reads as follows:
“If an actual loss or injury has been produced to any party by the misconduct alleged, the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him, and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party to recover damages for such injury or loss.” How. Stat. § 7377.
It will be observed that the statute authorizes this imposition in place of a fine, and it is for the purpose of protecting the civil rights and remedies of the party, and'to compensate him for the injury or loss occasioned by the misconduct alleged; and it is only when, an actual loss or injury has been produced to the party by the misconduct alleged, and that is made to appear to .the satisfaction of the court, and some'sum sufficient to compensate the party or indemnify him is adjudged, that the court can impose the costs and expenses to be paid by such party. In this case there is no finding, and in fact the testimony would justify no finding of the court, that an actual loss or injury had been produced to the complainants by the misconduct alleged, and the court acted wholly without authority in compelling the defendants in such a case to pay the costs and expenses of the proceedings to the complainants.
The action of the complainants from the first was unjustifiable. Their proceedings,to obtain an injunction were a fraud and imposition upon the court, and it would be the grossest injustice to compel the defendants in this suit to pay them the costs and expenses that they have been put to in order to impose upon the court in the manner in which they have. It is true that the orders and process of a court, regularly issued, should be obeyed, and the court has it in its power, by punishment for contempt for disobedience of them, to protect its dignity and enforce its decrees. But in cases like this, where the orders of the court have been prostituted by unworthy methods in seeking unworthy ends, and where-a party appeals to the court for process of contempt to enforce his civil remedies when he has none 'to enforce, the courts are not called upon to protect their dignity by the imposition of any fine or costs.
I think the decree appealed from should be reversed, and the contempt proceedings dismissed, with costs of both courts against the complainants.
Morse and McGrath, JJ., concurred with Champlin, C. J.
Grant, J.
The bill of complaint in this cause was filed April 7, 1890, and a preliminary injunction granted ex parte, restraining the defendants from interfering with the property described in the bill, or with the complainants’ possession thereof, until the further order of the court. Defendants paid no heed to the injunction, but took and retained forcible possession of the property in defiance thereof. They took no steps to obtain a dissolution until June 20, 1890, when they filed their answer, and met the equities of the bill so fuliy that the court dissolved the injunction.
April 22, 1890, complainants instituted these proceedings to punish the defendants for contempt of court in violating the injunction. August 25, 1890, they were adjudged guilty of contempt, and were ordered to pay damages as follows:
For attorneys’ fees and expenses_____________$160 00
For clerk’s fees...________________________________ 5 00
For commissioner’s fees___________________________ 25 00
For witnesses’ fees and expenses__________________ 10 00
From this order defendants appeal.
Three objections are raised to the validity of the order:
1. The circuit judge had no jurisdiction to allow the order for an injunction.
2. Defendants were in possession of the property at and prior to the service of the injunction, and could not be dispossessed thereby.
3. The measure of damages included only the taxable costs.
1. The judge of the twelfth judicial circuit, within which Gogebic county is situated, was absent from the State sick. The adjoining circuit was the twenty-fifth, but there was a vacancy there on account of the resigna tion of the judge. Judge Steere, of the eleventh circuit, had been appointed by the Governor to fill such vacancy until the election. He was therefore the acting judge of the twenty-fifth circuit, with full power to do all acts which a regularly elected judge might do. By Chancery Buie 112 the circuit court commissioner was prohibited from issuing an injunction in this case. But, aside from these questions, it will be presumed that the circuit judge acted upon due proof of the existence of the facts necessary to give him jurisdiction. Landon v. Comet, 62 Mich. 80. Defendants have made no showing to rebut this presumption.
2. The bill made out a case for granting an ex parte preliminary injunction. It was then the clear duty of the defendants to respect and obey the injunction. They could have answered immediately, and have promptly moved the court for a dissolution or modification. They could easily have done this within five or six days. But they chose to take the law into their own hands, and wait more than two months before answering, and taking that orderly course dictated alike by reason and law. Such conduct cannot be too severely reprimanded. They cannot in this proceeding be heard on the merits of the controversy. By the terms of the lease executed by defendants to complainants, the complainants were entitled to possession, and claimed that they had it. Defendants in their answer claim that this lease had been superseded by other arrangements, and that they were in possession. The property was a saw-mill, which was not run in the winter, and this controversy appears to have arisen in the spring, when each party desired to put the mill in repair for the season's work. The was no actual occupancy of the mill during the winter.
If the defendants were in the actual possession of the property, fairly obtained, they ought not to have been dis possessed by an ex parte injunction. Under such circumstances, they would have been justified in retaining possession until they could have applied to the court.
3. This proceeding was brought under How. Stat. § 7277, which gives the court jurisdiction only in case where—
“An actual loss or injury has been produced to any party by the misconduct alleged.”
No actual loss or injury was found by the court, and the proceedings should therefore have been dismissed. The items decreed to be paid were costs which would follow a finding of loss or injury. Without such.loss or injury costs could not be decreed.
For this reason the order appealed from must be reversed, and proceedings dismissed, with costs of both courts against the complainants.
Long, J., concurred with Grant, J. | [
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Champlin, C. J.
The bill of complaint in this case was filed in March, 1890, and alleges:
“1. That complainant owned, for many years prior to June 18, 1889, lots 6 and 7, in block A of the Cass farm, in the city of Detroit.
“2. That complainant, by reason of the appointment of a special guardian over him, whereby his money and property were tied up, was in "need of money, and, in order to secure the same, made a deed of said premises to said defendant.
“3. That said deed was made .for the sole purpose of securing a loan upon said. premises; that no consideration was paid therefor, and it was given under an express agreement with defendant that she would hold the title merely for the purpose of obtaining the loan, and would reconvey the same to complainant at any time he desired.
“4. That defendant and her husband went with complainant, and secured a loan of $3,000, by mortgage to the Michigan Fire & Marine Insurance Company, for which complainant paid defendant $200, — $100 to defendant for personal services, and $100 for her attorney.
“ 5. That subsequently complainant demanded of defendant a reconveyance of the premises to him, subject to the mortgage, according to agreement; but defendant refused, and fraudulently claimed title, and had taken proceedings to secure possession and remove complainant's tenant.
“6. That defendant was wholly irresponsible, without property, and was endeavoring fraudulently to deprive complainant of said premises by -proceedings to secure possession and transfer of title, etc.
“7: Complainant prays that the deed may be declared a mortgage, and that the same may be canceled upon payment of the mortgage by complainant."
Defendant answered, admitting the transfer and mortgage, but denying the agreement for a reconveyance, and claiming a bona fide purchase of the premises.-
The defendant insists that much irrelevant testimony was introduced bearing upon the mental capacity of the complainant. We think such testimony was proper and relevant, as bearing upon the relations of the parties, and the true nature of the contract entered into between them. We have read the testimony very carefully, and we must say not without a feeling of indignation at the manner in which this old man has been first cajoled and then swindled out of his money by some of those who have undertaken to befriend him. He commenced life as a common laborer. By his frugality, diligence, and thrift in his youth and maturer manhood, he accumulated a handsome property. He is not able to read or write anything but his name. Because of old age, his intellect has become enfeebled, and he is suspicious of his children, and has become possessed of the idea that some one, in some way, is seeking to get his property away from him, and without cause he has endeavored to secrete it, so that this imaginary or real person cannot find it; and he has conveyed the title first to one person, and then to another, until finally he consummated the transaction with the defendant.
The pretense that she gave value for the property is not sustained by the proofs. She claims that she bargained for it for $3,000, but this money that she claims to have paid was obtained by the mortgage to the insurance company, and we are satisfied froip the proofs that the property was worth at least $6,000. When defendant and her husband applied for the loan, they represented the land, without the building, to be worth $6,000, and the building $3,000, and that it rented for $45 a month. This representation was made before any deed was executed, and is contained in the application to the insurance company for a loan, dated June 10, 1889, signed “Mary A. Brown, per H. L. Brown.” H. L. Brown is the husband of the defendant. It appears from the deed offered in evidence that it bears date the 1st day of May, 1889, but it will be noticed that it is not acknowledged until the 18th day of June, 1889, the same day the mortgage bears-date.
We deem it unnecessary to recite at any length whatever the testimony introduced in the cause. From the consideration of the whole testimony, we are entirely satisfied that the decree of the circuit court was correct, and that it ought to be affirmed.
We may further add, from a careful consideration of the testimony, in view of the age and mental condition of the complainant, we are of the opinion that it is-needful that a guardian should be appointed to protect him from disposing of his property without adequate-consideration, and from consequent want in his old age. The testimony in this case is ample to show that he is. incompetent to manage his property.
The decree of the circuit court is affirmed, with costs of both courts.
The other Justices concurred. | [
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Grant, J.
It is conceded in -this case that tbe court properly instructed the jury upon the measure of damages, but it is claimed that the court erroneously instructed them on the questions of negligence involved. Upon all these questions the jury found for the plaintiff, and I deem it unnecessary to discuss them.
It is insisted that the jury- were probably prejudiced upon the measure of damages by improper instructions upon the law of negligence. I cannot accede to this proposition. The law casts no such reflection upon honest and intelligent jurors. The law does not presume that a jury, which found the defendant liable notwithstanding erroneous instructions by the court, has been prejudiced thereby in their assessment of damages, especially in a case like the" present one. The verdict was for $150. What should have been the amount of damages so that the Court would say that they were not probably prejudiced? The result of this rule would be that a court must correctly instruct the jury upon all branches of every case, in order to avoid prejudicing the jury in their assessment of damages.
But, in determining the question as applied to the present case, it is proper to consider the allegations in the declaration as to the injury and the consequent damages, and the proofs. The only allegation of special damages is—
“That plaintiff had been put to great expense in procuring medicine, medical attendance, and care, in which he had expended the sum of $500 for physicians5 services, nurses, and help.55
It contains the general allegation that he was—
“G-reatly and permanently injured, suffered great physical and mental pain, and became sore, sick, lame, and languishing.55
No claim, is made of injury to his horses or wagon. He called no physician, and expended no money for nursing, medicine, or help. There is no evidence that Dr. Champlin attended plaintiff, at any time, in consequence of sickness claimed to have been the result of this accident. There was no evidence that plaintiff was unable to attend to his work for more than two weeks, and this testimony does not come from the plaintiff himself, but from his. son, who thought he was in bed four or five days, and that it was some two weeks before he got out. The declaration was not sufficiently specific to admit testimony of any permanent injury. No physician was called for the plaintiff, and the testimony of any permanent injury was of too 'indefinite a character' to form any reasonable basis for an award of damages. Plaintiff’s testimony on this point is as follows:
“I am hardly a day without headache ever since. My off side is kind of not exactly right. I cannot remember as well as I use to before I got hurt.”
The evidence in regard to the headache.s was stricken out by the court. Certainly no one would contend that the statement, “my off side is kind of not exactly right,” would furnish any basis for the jury to award damages. How was it not right? and why was it not right? were questions the jury must answer; and there was nothing to connect this trouble, whatever it was, with the injury. How much should the jury have awarded because he could not remember as well as he did before? It would be absurd to base damages upon such evidence.
The testimony of his son John is no more satisfactory. It is as follows:
“Since the injury I have noticed that father was sickly like a great many times, and seemed to be almost out of his head, and would refuse to eat his meals, and the like of that; and, furthermore, he has had one or two sick spells since that, and he always gets them when he does something that he stoops over.”
The other son testified:
“Since that time his mind does not seem to be as it was before, and his health has not been as it was before.”
This loose and indefinite testimony constitutes all the evidence of any peiunanent injury there is in the case. The jury evidently ignored it as of no value, as, indeed, they should have done. I think the court would have been justified in instructing the jury that there was no evidence of any permanent injury for them to consider. If there was no permanent injury, the damages assessed were ample under the proofs.
There was evidence from the plaintiff’s own witnesses that plaintiff had a runaway team at the time, and that this same team had run away with him and with others before. If he took such a team into this place, it was a proper question for the jury to determine whether he was guilty of negligence which contributed to the accident.
Under this record, I see no reason for holding that the jury were prejudiced by the alleged erroneous instructions. The errors, if any, were certainly not glaring ones.
Judgment should be affirmed.
Chamjplin, O. J., and Morse, J., concurred with CrRANT, J. | [
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Long, J.
This bill was filed to reform a mortgage as to the description -of the lands incumbered, and to correct a mistake in such description.
The mortgage was given March 25, 1887, for $2,109, to be paid in three years, at 6 per cent. It was given to Burgoyne Jones in his life-time, and the mistake, if one was made in the description, was not discovered until after his death. It is claimed by the bill that the mortgage as written covers less than 4 acres of the land intended to be conveyed, and that it was intended to cover 56.95 acres, including the four acres named in the mortgage. The vqlue of the land described is about $150, while the land intended to be described is claimed to be worth the full amount of the mortgage, and that the mistake occurred from inadvertence of the parties and of the scrivener who drafted the mortgage.
The defendant Washington I. Taylor answered, admitting the making of the mortgage and note, but denying that any mistake was made in the description of the premises. Defendant Annie Taylor also answered, denying that it was intended that the mortgage should cover the 56.95 acres, and averring that 40 acres of this land was a homestead, and that she had never executed any mortgage which she intended should incumber the' homestead. The township of Avon was defaulted for want of an answer.
An order was entered in the case to take proofs in open court, and the cause placed on the calendar for hearing, but before proofs were taken Annie Taylor died, March 27, 1890. On April 9 following, application was made to the court by defendants’ solicitor to suggest of record the death of Annie Taylor. On the same day application was made by the solicitor for complainant for leave to file a supplemental bill, to the effect that, since said cause had been at issue, said mortgage had become due and payable, and was yet unpaid, for the purpose of foreclosing the mortgage in the same bill, and also to allege the death of Annie Taylor, and the extin-' guishment thereby of all her rights, and those of her personal representatives, as to any homestead interest • which she might have had therein; and that the cause continue without abatement as to the'surviving defendants upon filing of such supplemental bill. An order was granted by the court upon this application, allowing the cause to proceed without abatement, and the filing of the supplemental bill, reciting the facts, and that the cause proceed solely against the surviving defendants. On April 10 the supplemental bill was filed, and served on the defendant Washington I. Taylor, to which he filed demurrer. In the mean time John R. Taylor was duly appointed administrator of the estate of Annie Taylor, and presented his petition setting forth the death of Annie Taylor, and his appointment, and claiming that the lands still continued as a homestead to her husband .and children, who still occupy them as such, and asking for the revival of said suit as to Annie Taylor. On December 15, the order was granted by the court reviving the cause as to Annie Taylor, and permitting her administrator to stand in her stead. On the same.day .an order was made by the court overruling the demurrer •of Washington I. Taylor. From this order overruling the demurrer the defendant Washington I. Taylor appeals to this Court.
The causes of demurrer are as follows:
1. That the said supplemental bill is filed with a change of the title of the cause without an order of the court authorizing such change, omitting, as it does, the name therefrom of the defendant Annie Taylor.
2. That the said supplemental bill does not continue Annie Taylor, or her legal representatives, a party defendant in said cause, although she appeared in said cause, and filed her cross-bill with her answer, as provided by rule 123, alleging important interests and defenses to the claims of said complainant, and asking in said cross-bill affirmative relief.
3. That said supplemental bill, by its allegations as, to the rights and interests of Annie Taylor and her representatives, and the relief therein prayed for, seeks to adjudicate and bar her said rights, without making her, cr her legal representatives, defendants therein.
4. That said Annie Taylor, or her legal representatives, is a necessary defendant in said cause, and said bill of complaint makes neither of them such defendants.
5. That said supplemental bill seeks to introduce an ■entirely new and distinct cause of action from that claimed by complainant in his original bill filed in said cause, and is in no way in aid of said original complaint, .and is not supplemental thereto.
6. That the maturing of the mortgage referred to in .said supplemental' bill, after filing the original bill, as is claimed in the former, is not the happening of such subsequent events as warrants in chancery the filing of said supplemental bill.
7. That said complainant in his said bill has not made cr stated a case which entitles him to file said supplemental bill in said cause, or any bill in the nature thereof, or a case which entitles him to the relief therein prayed for.
How. Stat. § 6737, permits parties who may think themselves aggrieved by an order overruling a general demurrer to appeal therefrom. Prior to this statute, which was passed in 1883, no appeal was allowed from .■an order overruling a demurrer; but this statute was not intended to allow appeals from such orders, unless the demurrer is general. Babcock v. McJury, 76 Mich. 316; Shaw v. Chase, 77 Id. 436.
It is claimed by counsel for the defendant that the court was in error in overruling this demurrer, and that an appeal will lie to this Court for the reason that, while special causes of demurrer are set up and alleged, yet the seventh clause of the demurrer may be treated as a general demurrer to the bill for want of equity.
We need not pass upon the question whether the demurrer should be treated as general as well as special, and therefore properly appealed from, or whether we should consider the question of the general demurrer so connected with special causes of demurrer, as an examination of what is termed the general demurrer in the seventh clause does not satisfy us that it comes within the definition of a general demurrer. A general demurrer is one going to the merits of the case intended to be made by the bill, and when no particular cause is assigned, except a formula required by the practice or rules of the court, that there is no equity in the bill, and -is always proper where the bill is defective in substance. In the present case the only claim made by the seventh clause is that the complainant has not stated a case which entitled him to file said supplemental bill, or a bill in the nature thereof, or a case which entitled him to the relief therein prayed for. The supplemental bill, as it is framed, asks the aid of the court in reforming the mortgage, and also for foreclosure, and we think sets up sufficient matter which, if true, would entitle the complainant to tb,e relief asked for, not only in the correction of the mistake, but for foreclosure of the mortgage.
But, even if this did not appear in the bill, the seventh allegation does not contain sufficient statement to entitle it to be treated as a general demurrer to the bill for want of equity. It does not allege that there is no equity in the bill, but is aimed at the question that the complainant is not entitled to file a supplemental bill in the cause, and that the supplemental bill does not state a case upon which the complainant • would be entitled to relief.
.The appeal from this order must be dismissed. • The defendant may have 60 ■ days within which to file his answer to the' bill, if he so elects. ' Complainant will recover the costs of this Court.
The other Justices concurred. | [
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D. F. Walsh, P.J.
The issue presented in this case is whether booking photographs (mug shots) of persons arrested, charged with felonies, and awaiting trial constitute information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of the arrestees’ privacy under § 13(l)(a) of Michigan’s Freedom of Information Act. MCL 15.231 et seq.; MSA 4.1801(1) et seq. We affirm the decision of the circuit court and hold that nondisclosure of the booking photographs at issue in this case is not justified under § 13(l)(a).
FACTS
In early March, 1986, a Detroit Free Press newspaper reporter requested that the office of the Oakland County Sheriff release to her, or permit her to copy, booking photographs of Benjamin Len Bullock and Ronnie Mitchell, both of whom were awaiting trial in Oakland County on bank robbery charges. According to a March 6, 1986, Free Press article, Bullock had been charged with robbing two banks located in the City of Birmingham. He was being held in the Oakland County Jail following arraignment in district court on March 3. A March 27, 1986, Free Press article disclosed that Bullock had also been charged with a Detroit bank robbery. That article further disclosed that Mitchell had been arrested with Bullock after the second Birmingham robbery. He had been charged with that robbery and had been released on bond from the Oakland County Jail on March 14. The March 27, 1986, article was accompanied by a photograph of Bullock which had been obtained from the Detroit Police Department. According to the Free Press, the two articles were based on information contained in public records released by public offices, including the fbi, and gathered from coverage of court proceedings.
By letter dated March 26, 1986, an assistant Oakland County corporation counsel, acting for the Oakland County Sheriff, denied the Free Press request for the booking photographs, citing § 13(l)(a) and § 13(l)(b) of the Freedom of Information Act and MCL 28.243; MSA 4.463. Counsel expressed concern for protecting taxpayers from litigation arising out of "unwarranted and inappropriate disclosure of private information.”
The Free Press, through its legal counsel, responded in an April 7, 1986, letter, emphasizing the public nature of criminal court proceedings. Counsel opined that the statutory requirement that a criminal file be returned to a person upon acquittal "does not require the clock to be turned back, nor does it bar contemporaneous release of news and full coverage of criminal prosecutions.” It was noted that the right to sketch defendants in court has been recognized and that "a majority of states now permit all or parts of court proceedings to be publicly televised.” Also noted was the "routine past practice of police departments throughout the state and Oakland County to release” booking photographs.
Defendant sheriff persisted in his refusal to release the booking photographs. On May 8, 1986, the Free Press filed its verified complaint against the sheriff. An order to show cause was issued. At the May 19, 1986, hearing, defendant’s counsel agreed that the booking photographs were public records but argued that their disclosure would be an unreasonable and unwarranted violation of individual suspects’ rights of privacy. The court disagreed, ordering defendant to make available to plaintiff "for inspection and copying any and all public records in the possession or control of the Sheriff known as booking photos, including without limitation, booking photos of Benjamin Len Bullock and Ronnie Mitchell.” Defendant appeals.
THE FREEDOM OF INFORMATION ACT
Section 1 of the foia contains the following declaration of public policy:
It is the public policy of this state that all persons are entitled to full and complete informa tion regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process. [MCL 15.231(2); MSA 4.1801(1X2).]
Except as otherwise provided in § 13 of the foia, a person has a right to inspect, copy or receive copies of a public record of a public body. MCL 15.233(1); MSA 4.1801(3X1). In § 13, MCL 15.243; MSA 4.1801(13), the Legislature authorizes, but does not require, nondisclosure of certain public records. See Tobin v Civil Service Comm, 416 Mich 661, 666-671; 331 NW2d 184 (1982). A public body which refuses disclosure bears the burden of justifying the refusal. MCL 15.240(1); MSA 4.18Q1(10)(1). Statutory exemptions from disclosure are narrowly construed. The Evening News Ass’n v City of Troy, 417 Mich 481, 503; 339 NW2d 421 (1983), reh den 418 Mich 1202 (1984).
THE PRIVACY EXEMPTION:
STATE EMPLOYEES ASS’N v DEP’T OF MANAGEMENT & BUDGET
In this case, defendant seeks to justify his denial of the Free Press request under § 13(l)(a) of the foia, the privacy exemption:
(1) A public body may exempt from disclosure as a public record under this act:
(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy. [MCL 15.243(l)(a); MSA 4.1801(13)(l)(a).]
Six members of the Supreme Court recently discussed the privacy exemption. Over Chief Justice Riley’s dissent, the Court held that nondisclosure of the home addresses of certain governmental employees is not justified under § 13(l)(a) of the foia. State Employees Ass’n v Dep’t of Management & Budget, 428 Mich 104; 404 NW2d 606 (1987).
In State Employees Ass’n, Justice Cavanagh, in whose opinion Justices Levin and Archer concurred, found that the Legislature did not intend that a balancing of interests be made in evaluating applicability of the privacy exemption contained in the Michigan foia. 428 Mich 116-121. These three Justices also found that, in reviewing a request for information under § 13(l)(a), the public body should not consider the requester’s identity or the purpose for which the information will be used. 428 Mich 121-122. The sole issue is whether disclosure would constitute a clearly unwarranted invasion of privacy. That inquiry is guided by common law and constitutional principles:
While neither balancing of interests nor consideration of purpose or identity is appropriate, the act requires a determination whether the release of the requested information would be a "clearly unwarranted invasion of an individual’s privacy.” The Legislature made no attempt to define the right of privacy. We are left to apply the principles of privacy developed under the common law and our constitution. The contours and limits are thus to be determined by the court, as the trier of fact, on a case-by-case basis in the tradition of the common law. Such an approach permits, and indeed requires, scrutiny of the particular facts of each case, to identify those in which ordinarily impersonal information takes on "an intensely personal character” justifying nondisclosure under the privacy exemption. [428 Mich 123.]
These three Justices found no common law or constitutional right to privacy in the requested home addresses. Thus they found no privacy invasion, much less a clearly unwarranted one, in release of that information. 428 Mich 123-125.
Justice Brickley concurred in the result because he found that the addresses of state employees did not amount to "information of a personal nature” within the meaning of the privacy exemption. 428 Mich 126-128. He wrote separately to indicate his preference for the balancing test which had been articulated by Justice Ryan in Kestenbaum v Michigan State University, 414 Mich 510; 327 NW2d 783 (1982), reh den 417 Mich 1103 (1983). Under that test, the privacy interest in information of a personal nature is balanced against the public interest in disclosure. 428 Mich 127.
Justice Boyle also concurred in the result, finding that the information sought was not of a personal nature and thus did not fall within § 13(l)(a). She also agreed that, when a request is initially made, the requester’s identity and the need or purpose for the information need not be provided. She wrote separately to express her view that, once it is determined that requested information is of a personal nature, applicability of § 13(l)(a) is determined by balancing "the intensely personal characteristics of the information sought . . . against the purpose for which the information is sought, the purposes for which it may be used, and the efficacy of restrictions upon disclosure where partial nondisclosure appears necessary.” 428 Mich 129, citing Kestenbaum, supra, 414 Mich 551-556 (opinion of Justice Ryan).
Dissenting, Chief Justice Riley adhered to her view, expressed in UPGWA v Dep’t of State Police, 422 Mich 432; 373 NW2d 713 (1985), that a balancing of the public interest and privacy interest is appropriate in determining which public records may be exempted from disclosure under § 13(l)(a) and that the foia’s core purpose as expressed in MCL 15.231(2); MSA 4.1801(1)(2) must be considered in weighing the public interest side. She found that the state employees had a strong privacy interest in their home addresses and that disclosure would do little, if anything, to further the foia’s core purpose. 428 Mich 130-131.
BOOKING PHOTOGRAPHS
Under any of the approaches of the majority Justices in State Employees Ass’n, we find that defendant’s nondisclosure of the booking photographs requested by plaintiff is not justified under § 13(l)(a). We first apply the threshold approach detailed in Justice Cavanagh’s opinion. Under that approach, common law and constitutional principles of privacy are applied to determine if an individual has a right to privacy in the requested information.
In Michigan, the right of privacy has long been recognized. See discussion in Beaumont v Brown, 401 Mich 80, 93-95; 257 NW2d 522 (1977). In the "reverse” foia case of Tobin v Civil Service Comm, supra, 416 Mich 672, upon which Justice Cavanagh relied in State Employees Ass’n, the Supreme Court discussed the common law right of privacy:
The common-law right of privacy is said to protect against four types of invasion of privacy.
" '1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
" '2. Public disclosure of embarrassing private facts about the plaintiff.
" '3. Publicity which places the plaintiff in a false light in the public eye.
" '4. Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.’ Prosser, Privacy, 48 Cal L Rev 383, 389 (1960).” Beaumont v Brown, 401 Mich 80, 95, n 10; 257 NW2d 522 (1977); see also 3 Restatement Torts, 2d, § 652A, p 376.
None of these branches of the right of privacy is implicated by making available the booking photographs sought by plaintiff in this case.
The elements of a cause of action under an "intrusion” theory are clearly not present under the instant circumstances. Under that theory, a person is subject to liability only when he or she has used an objectionable method to obtain secret and private information which the plaintiff has a right to keep private. Tobin v Civil Service Comm, supra, 416 Mich 672-674. See also 3 Restatement Torts, 2d, § 652B and comments, p 378-380.
Under the second theory, liability is precluded unless the matter publicized is not of legitimate concern to the public; there is no liability for giving publicity to matters already of public record or otherwise open to the public eye. Ledsinger v Burmeister, 114 Mich App 12, 23-24; 318 NW2d 558 (1982); Fry v Ionia Sentinel-Standard, 101 Mich App 725, 728-729; 300 NW2d 687 (1980). See 3 Restatement Torts, 2d, § 652D, comments f and g, pp 389-391:
f. Involuntary public ñgures. There are other individuals who have not sought publicity or consented to it, but through their own conduct or otherwise have become a legitimate subject of public interest. They have, in other words, become "news.” Those who commit crime or are accused of it may not only not seek publicity but may make every possible effort to avoid it, but they are nevertheless persons of public interest, concerning whom the public is entitled to be informed. The same is true as to those who are the victims of crime or are so unfortunate as to be present when it is committed, as well as those who are the victims of catastrophes or accidents or are involved in judicial proceedings or other events that attract public attention. These persons are regarded as properly subject to the public interest, and publishers are permitted to satisfy the curiosity of the public as to its heroes, leaders, villains and victims, and those who are closely associated with them. As in the case of the voluntary public figure, the authorized publicity is not limited to the event that itself arouses the public interest, and to some reasonable extent includes publicity given to facts about the individual that would otherwise be purely private. (See Comment g). Illustrations:
A is tried for murder and acquitted. During and immediately after the trial B Newspaper publishes daily reports of it, together with pictures and descriptions of A and accounts of his past history and daily life prior to the trial. This is not an invasion of A’s privacy.
g. News. Included within the scope of legitimate public concern are matters of the kind customarily regarded as "news.” To a considerable extent, in accordance with the mores of the community, the publishers and broadcasters have themselves defined the term, as a glance at any morning paper will confirm. Authorized publicity includes publications concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal. [Emphasis added.]
We find that the booking photograph of a person arrested, charged with a felony, and awaiting trial reveals no facts about the arrestee which are not matters of legitimate public concern. See Frith v Associated Press, 176 F Supp 671 (ED SC, 1959).
Under a "false light” theory of invasion of privacy, the false light in which the plaintiff was placed before the public must be highly offensive to a reasonable person, and the defendant must have known of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. Early Detection Center, PC v New York Life Ins Co, 157 Mich App 618, 630; 403 NW2d 830 (1986); 3 Restatement Torts, 2d, §652E, p 394. It is essential for recovery under this theory that the matter published concerning the plaintiff be false. Id., comment a, pages 394-395. While the handling of booking photographs may under some circumstances constitute an invasion of privacy under this theory, the facts of this case do not present such circumstances. Compare 3 Restatement Torts, 2d, § 652E, illustration 7, page 397:
A and other police officers of a city maintain in the police department a "Rogues Gallery” of photographs, fingerprints and records of those convicted of crime. B is accused of robbery, arrested, fingerprinted and jailed. He is released when the accusation proves to be a matter of mistaken identity and another man is convicted of the crime. Although B never has been convicted of any crime, A insists, over B’s objection, in including B’s photograph and fingerprints in the Rogues Gallery. A has invaded the privacy of B._
Finally, the fourth type of invasion of privacy— the appropriation of a person’s name or likeness— is clearly not at issue in this case.
Nor are we persuaded that the arrestees’ constitutional rights of privacy will be violated by the granting of plaintiffs request in this case. In Paul v Davis, 424 US 693; 96 S Ct 1155; 47 L Ed 2d 405 (1976), reh den 425 US 985; 96 S Ct 2194; 48 L Ed 2d 811 (1976), the Supreme Court rejected the invasion of privacy claim of the respondent, whose "mug shot” was included in a Louisville Police Department flyer depicting "active shoplifters.” The shoplifting charge against the respondent was dismissed following circulation of the flyer to approximately eight hundred Louisville merchants. Speaking for five members of the Court, Justice Rehnquist discussed the constitutional right of privacy:
While there is no "right of privacy” found in any specific guarantee of the Constitution, the Court has recognized that "zones of privacy” may be created by more specific constitutional guarantees and thereby impose limits upon government power. See Roe v Wade, 410 US 113, 152-153 [93 S Ct 705, 726; 35 L Ed 2d 147, 176-178] (1973). Respondent’s case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. See Katz v United States, 389 US 347, 351 [88 S Ct 507, 510-511; 19 L Ed 2d 576, 581] (1967); Terry v Ohio, 392 US 1, 8-9 [88 S Ct 1868, 1872-1873; 20 L Ed 2d 889, 898] (1968). And our other "right of privacy” cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are "fundamental” or "implicit in the concept of ordered liberty” as described in Palko v Connecticut, 302 US 319, 325 [58 S Ct 149, 152; 82 L Ed 288, 292] (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child, rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct.
Respondent’s claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be "private,” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. [424 US 712-713; 96 S Ct 1166; 47 L Ed 2d 420.]
Similarly, defendant presents no authority which suggests that disclosure in this case would violate rights guaranteed to the arrestees under the Michigan Constitution.
We conclude that the disclosure sought by plaintiff in this case would violate neither common law nor constitutional principles of privacy and that, using the approach outlined in Justice Cavanagh’s opinion in State Employees Ass% nondisclosure is not justified under § 13(l)(a).
We further find that the approach preferred by concurring Justices Brickley and Boyle does not compel a different result. The initial inquiry in any approach to issues arising under § 13(l)(a) is whether the information sought is "of a personal nature.” We find that the information sought in this case is not of such nature. According to plaintiff, Bullock and Mitchell had been arrested and charged with felonies and were awaiting trial at the time of plaintiffs request for release of the booking photographs. Any court proceedings had been open to the public. Based on the facts of this case, we are persuaded that the booking photographs of these two persons revealed no "information of a personal nature” within the meaning of § 13(l)(a). See Kestenbaum v Michigan State University, supra, 414 Mich 543-551 (opinion of Justice Ryan).
CONCLUSION
We find that the public records sought in this case do not contain information of a personal nature the public disclosure of which would constitute a clearly unwarranted invasion of an individual’s privacy. We thus affirm the decision of the circuit court. We emphasize that our decision is limited to the particular facts presented.
Affirmed. No costs, a public question being involved.
Defendant has abandoned any claim of exemption under § 13(l)(b) of the foia. MCL 15.243(lXb); MSA 4.1801(13)(l)(b). MCL 28.243; MSA 4.463 concerns, inter alia, the return of fingerprints, arrest cards and descriptions to arrestees who are released without charge or who are found not guilty.
See 428 Mich cxl (Michigan Supreme Court Administrative Order 87-4, released August 26, 1987), concerning Michigan’s one-year experimental program permitting cameras in trial and appellate courts on a limited basis. Limitations include the necessity of procuring the consent of the presiding judge, the parties and, in a criminal case, the victim(s). Film or electronic media coverage of a witness is not permitted if he or she objects.
Compare Harbolt v Dep’t of State, 616 F2d 772 (CA 5, 1980), cert den 449 US 856; 101 S Ct 154; 66 L Ed 2d 71 (1980), where the fifth Circuit Court of Appeals found that, under the privacy exemption in the federal foia, 5 USC 552, nondisclosure of the names and addresses of United States citizens imprisoned in foreign countries for narcotics offenses was justified. | [
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W. A. Porter, J.
Defendants appeal as of right from an order of summary disposition in favor of plaintiff township. The order enjoined defendants from continuing to maintain a mobile home for residential purposes on property that was zoned for commercial use. We reverse.
The pertinent facts were established by the allegations of plaintiffs complaint that were admitted by defendants’ answer. Defendants owned a parcel of property located within the Township of Fremont. This parcel, apparently exceeding five acres, is within a commercial district, as designated by the Fremont Township Zoning Ordinance. When defendants moved a mobile home onto the property to use as a residence, plaintiff denied defendants’ request for a permit, requested removal of the mobile home, and eventually instituted this suit for injunctive relief.
Article V of the Zoning Ordinance governs the use of land in commercial districts. Section 5.01 of that article states in pertinent part:
No land shall hereafter be used and no building or structure hereafter erected, altered or moved upon any premises and used for other than one or more of the following uses, except as otherwise provided in this Ordinance:
I. Mobile Home Parks.
Since defendants’ mobile home is not part of a mobile home park, but rather is a single unit, the use permitted by § 5.01(1) is inapplicable. The other permissible uses in § 5.01 do not contemplate a mobile home, but instead permit strictly nonresidential uses, e.g., retail businesses, barber shops, motels, banks, fraternal organizations. Therefore, Article V appears to unambiguously prohibit defendants’ mobile home, unless the § 5.01 exception for uses "as otherwise provided in this Ordinance” is applicable.
Defendants rely on Article IX-General Provisions. Section 9.01 states:
Except as otherwise provided in this Ordinance, no land or existing building (subject to Section 9.02) and no new building or structure shall hereafter be located, erected, altered or moved upon any premises other than in conformity with the provisions of this Ordinance.
With respect to mobile homes, § 9.07 provides in pertinent part:
A. All occupied mobile homes shall be located in mobile home parks under the jurisdiction of the Michigan Department of Health, except as hereinafter provided.
B. The owner of five (5) acres of real estate may erect or move not more than one (1) mobile home upon such premises permanently, providing they meet the minimum floor space of seven hundred twenty (720) square feet.
E. Upon removal of the wheels from a mobile home and its placement upon a permanently constructed foundation, it shall not thereafter be deemed a mobile home, but a dwelling within the meaning of this Ordinance.
Defendants argue that § 9.07(B), when satisfied, exempts the use of a mobile home from all other use restrictions in Article V of the Zoning Ordinance. We agree.
The underlying principle of the proper construction of a zoning ordinance is to discover and give effect to the intent of the lawmaker. Bangor Twp v Spresny, 143 Mich App 177, 179; 371 NW2d 517 (1985). When interpreting the language of an ordinance to determine the extent of a restriction upon the use of the property, the language must be interpreted, where doubt exists, in favor of the property owner. Talcott v Midland, 150 Mich App 143, 147; 387 NW2d 845 (1985).
The use provisions in Articles Ill-Residential Districts, IV-Agricultural and Residential Districts, and V-Commercial Districts are identical and provide:
No land shall hereafter be used and no building or structure hereafter erected, altered or moved upon any premises and used for other than one or more of the following uses except as otherwise provided in this Ordinance. [Emphasis added.]
In contrast, the use provisions in Articles VI-Industrial Districts I-I, VH-Industrial Districts 1-2, and VIII-Recreational Districts do not include a reference to other portions of the ordinance. We believe this is dispositive.
The use provisions pertaining to residential, agricultural and residential, and commercial districts allow sections of Article xx, including § 9.07(B), to be applied to such districts where they are not inapposite on their face. Further, since the article is entitled "General Provisions” and most of its sections, by their language, apply to several or all of the districts, it appears that § 9.07(B) was intended to apply to commercial districts as well as to residential and agricultural and residential districts.
Ambiguous statutes are interpreted as a whole and are construed so as to give effect to each provision and to produce a harmonious and consistent result. Hagen v Dep’t of Ed, 154 Mich App 662, 670; 398 NW2d 485 (1986). This rule of statutory construction applies equally to zoning ordinances. Plaintiffs interpretation of the ordinance gives no meaning to the emphasized portion of the use provision in Article v. The trial court’s order of summary disposition in favor of plaintiff, which permanently enjoined defendants from the continued residential use of their mobile home located in a commercial district, is reversed.
In light of our ruling, we will not address defendant’s additional claims.
Reversed.
Shepherd, J., concurred. | [
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M. J. Shamo, J.
Michigan State Fire Fighters Union Local 961, the collective bargaining representative of the fire fighters employed by the City of Hillsdale, appeals from an order of the circuit court vacating the minimum manning provision of an arbitration award. We reverse.
The bargaining unit which the union represents consisted of four fire fighters and one assistant chief at the time of negotiations over the terms of the parties’ collective bargaining agreement. Prior to the retirement of a fire fighter in March of 1983, the bargaining unit had six members. The city accomplished a reduction in fire fighting personnel by not filling the vacancy created by the retirement, and the union sought to restore the personnel level to six members during arbitration conducted pursuant to 1969 PA 312 (Act 312), MCL 423.231 et seq.; MSA 17.455(31) et seq.
The arbitration panel ordered restoration of the pre-March, 1983, personnel level. Judicial review was sought in the circuit court, which ruled that the arbitral decision was not supported by competent, material, and substantial evidence.
Initially, we note that judicial review of an Act 312 arbitration decision is circumscribed by' statute. In the instant case, the only plausible attack on the arbitration proceeding is that the resultant order was "unsupported by competent, material and substantial evidence on the whole record.” MCL 423.242; MSA 17.455(42). We may not reassess the wisdom of the arbitration panel or review the record de novo. Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 480; 294 NW2d 68 (1980), app dis 450 US 903; 101 S Ct 1337; 67 L Ed 2d 326 (1981); Hamtramck v Hamtramck Firefighters Ass’n, 128 Mich App 457, 462-467; 340 NW2d 657 (1983), lv den 419 Mich 871 (1984).
A manpower award is within the subject matter and jurisdiction of an Act 312 arbitration panel where there is support for the position that the number of firemen on duty affects the firemen’s safety. City of Alpena v Alpena Fire Fighters Ass’n, AFL-CIO, 56 Mich App 568, 575; 224 NW2d 672 (1974), lv den 394 Mich 761 (1975), overruled in part on other grounds in Detroit Police Officers Ass’n, supra, p 483, n 65. See also City of Sault Ste Marie v Fraternal Order of Police Labor Council, State Lodge of Michigan, 163 Mich App 350; 414 NW2d 168 (1987). In this appeal, the parties do not dispute that the minimum manning question was arbitrable. Compare Sault Ste Marie, supra.
In Detroit Police Officers Ass’n, our Supreme Court discussed § 9 of Act 312, MCL 423.239; MSA 17.455(39), which provides the factors underlying the arbitral decision. The Court held that competent, material, and substantial evidence must be adduced with respect to each applicable factor and that the failure of the parties to submit evidence on an applicable factor would require remand for further proofs. Detroit Police Officers Ass’n, supra, 481-483, n 65; 496-498, n 71. However, the panel need not assign equal weight to each factor; it is merely required to consider those factors that are applicable. Id., 484. Accordingly, it is our task to review the arbitration record with the § 9 factors in mind.
Section 9 provides:
Where there is no agreement between the parties, or where there is an agreement but the parties have begun negotiations or discussions looking to a new agreement or amendment of the existing agreement, and wage rates or other conditions of employment under the proposed new or amended agreement are in dispute, the arbitration panel -shall base its findings, opinions and order upon the following factors, as applicable:
(a) The lawful authority of the employer.
(b) Stipulations of the parties.
(c) The interests and welfare of the public and the financial ability of the unit of government to meet those costs.
(d) Comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours and conditions of employment of other employees performing similar services and with other employees generally:
(i) In public employment in comparable communities.
(ii) In private employment in comparable communities.
(e) The average consumer prices for goods and services, commonly known as the cost of living.
(f) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
(g) Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.
(h) Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between the parties, in the public service or in private employment.
We conclude that there was competent, material, and substantial evidence relating to each factor. We briefly summarize that evidence. Factor (a) — it was not disputed that the city had legal authority to employ an additional fire fighter, as it had done prior to March of 1983. Factor (b) — the facts that the union relied upon were accepted pursuant to the city’s stipulation. Factor (c) — there was evidence that an additional employee would enhance public safety. The financial state of the city was explored at length. Factor (d) — the union represented that a smaller community had ac cepted a similar minimum manning requirement. Factors (e) and (f) — these factors were addressed during that part of the arbitration proceedings designated for proofs on the disputed issue of a wage increase. Factor (g) — since there was no evidence of any change in circumstances, this factor is not applicable. Factor (h) — the union substantiated that a minimum manning provision was necessary to enhance the safety of procedures used in fire fighting.
The circuit court’s conclusion that the arbitral decision lacked evidentiary support was premised upon its view that the union’s proofs directed toward the minimum manning issue were deficient from an evidentiary standpoint. The union’s attorney at the arbitration proceeding recited the data in support of the union’s position, characterizing his recitation as an "offer of proof.” Obviously, this procedure would be wholly deficient in a court of general jurisdiction. We need not decide whether the arbitration panel’s decision to admit this recitation as evidence was an abuse of its expansive discretion under MCL 423.328; MSA 17.455(38), see Detroit Police Officers Ass’n, supra, 494, because the city’s attorney accepted these statements as true on the record and indicated that it was not necessary for the union to submit proofs. This amounted to a stipulation. See MCL 423.239(b); MSA 17.445(39)(b). The circuit court’s conclusion that this data lacked evidentiary value and its vacation of the arbitration award were error.
We do not decide what relief is .appropriate to enforce the arbitration award. There is no record of the circumstances since the arbitration hearing, although the city advises in its brief that the collective bargaining agreement giving rise to the arbitration has already expired. We remand to the circuit court for a determination of the relief, if any, to which the union is entitled.
Reversed and remanded. | [
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Per Curiam.
Defendant was charged with one count of carrying a concealed weapon, MCL 750.227; MSA 28.424, and was bound over to Detroit Recorder’s Court for trial following a preliminary examination. At the Recorder’s Court, defendant filed a motion to suppress evidence of the handgun which had been seized from him. At the conclusion of an evidentiary hearing, Wayne Circuit Judge Marvin R. Stempien, sitting in Recorder’s Court, granted defendant’s motion. Thereafter, the information filed against defendant was quashed. The people now appeal as of right from the ruling of the Recorder’s Court judge suppressing evidence of the handgun._
At the evidentiary hearing, Detroit Police Officer Fred Jorgensen testified that, at approximately 12:00 midnight, he and his partner, Terrence Wrona, were on routine patrol when they received a police radio dispatch of a "man with a shotgun in front of 2586 Harding” in the City of Detroit. As the officers were approaching the address with the headlights of their car off, Jorgensen observed three black males standing on the sidewalk in front of a vacant field, one of whom appeared to be holding a shotgun. As the officers pulled up, Officer Wrona turned on the headlights and a spotlight. The men began moving and both officers got out of the police car and requested that all three men stop. According to Jorgensen, the man holding the shotgun dropped it in the field. Meanwhile, one man threw a shiny object into the field as he walked south on the sidewalk. Lastly, the third man, identified as defendant, walked northward on the sidewalk. Defendant did not stop when Jorgensen ordered him to do so. Instead, he continued walking and was about fifty feet from the spot where he was first observed before Jorgensen stopped him by physically taking him by the arm. Jorgensen then led defendant back to the police car and frisked him. He found a handgun in defendant’s right jacket pocket.
Officer Jorgensen testified that he initially stopped defendant in order to question him concerning the man who was holding the shotgun. He frisked defendant merely as a precautionary measure.
Officer Wrona also testified at the evidentiary hearing. His testimony was similar to Officer Jorgensen’s testimony.
Defendant’s testimony presented a different story. He lives at the residence that borders on the north side of the vacant lot. At approximately midnight on the night he was arrested, he was getting out of his car when he noticed two persons, Roland Rawlins and Larry Harris (no relative), talking together approximately forty to fifty feet away on the sidewalk. Defendant was not talking with either of the two men. Defendant testified that when he saw the police car approaching, he was walking northward towards his home. He heard someone say "Hold it,” "Stop,” or "Come back” and he stopped by his gate. A police officer then grabbed him, led him back to the patrol car and frisked him.
In granting defendant’s motion to suppress evidence of the handgun, the Recorder’s Court judge noted that the officer had to go "fifty feet up the sidewalk to bring defendant back before he [the officer] made the intrusion [frisked defendant]” and that defendant had not committed any crime that would have justified the officer’s stop. The judge concluded:
[T]he officer, even by his own version, had to go fifty feet up the sidewalk to get this defendant and bring him back in order to conduct the pat down. That certainly does not indicate as a matter of fact that there was any imminent danger to the officer under Terry v Ohio that would cause him to have a necessity to pat this individual down. .
If he really felt he was in imminent danger, the pat down would have taken place where he seized the defendant.
So it appears to me that the defendant was doing nothing that was unlawful that would cause the officer to stop and arrest this individual. He never was arrested for anything.
Therefore, the court would find that the officer didn’t have reasonable grounds to apprehend this defendant, therefore, I will grant the motion to suppress the evidence.
Appellate review of grants or denials of motions to suppress evidence is made on the clearly erroneous standard. People v Burrell, 417 Mich 439; 339 NW2d 403 (1983). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v United States Currency, 148 Mich App 326; 383 NW2d 633 (1986).
Since defendant was not under arrest nor was there probable cause for an arrest at the time of the pat-down search, resolution of this case is governed by the "stop and frisk” rules of Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and its progeny. People v Blackburne, 150 Mich App 156; 387 NW2d 850 (1986).
In People v Blackburne, supra, this Court summarized the Terry "stop and frisk” rules:
Under Terry, in making a valid stop, the police officer must have reasonably concluded that criminal activity may be afoot based on specific, articulable, reasonable inferences which he may draw from the facts based on his experience.
The police officer, in conducting a pat-down search, must have reasonably concluded that the persons with whom he is dealing may be armed and dangerous based on specific, articulable, reasonable inference drawn from the facts. [150 Mich App at 163, 164.]
See also People v Parham, 147 Mich App 358, 360; 382 NW2d 786 (1985).
We conclude that, because the judge erred in applying the law in this case, the case must be remanded for further findings of fact.
As part of his holding, the trial judge attached great significance to the fact that the police did not observe defendant committing any crime prior to the time he was stopped and frisked. However, the relevant inquiry is not whether the officer observed defendant committing a crime, but, rather, whether the officer reasonably believed that criminal activity was afoot. Terry, supra; Blackburne, supra. Indeed, the arresting officer in Terry did not observe the commission of any crime. Instead, his search of the defendant was upheld because the officer reasonably believed that a crime was going to occur.
In order to decide whether Officer Jorgensen reasonably believed that criminal activity was afoot, it is necessary for the judge to resolve the fact question of whether defendant was with the other two men at the time the police officers first approached them, as Officers Jorgensen and Wrona testified, or whether defendant was forty to fifty feet from the men at the time the officers approached, as defendant claims.
We attach little significance to the fact that the officer stopped defendant and led him back to the police car before actually frisking him. The trial judge stated that if the officer felt himself to be in imminent danger, he would have frisked defendant at the spot where he stopped him. We believe that even if the officer believed that defendant was armed and dangerous, he could have felt secure in escorting defendant back to the police car before frisking him, particularly since the officer had defendant by the arm, presumably had his service revolver drawn, and defendant was not resisting the officer.
The ruling of the Recorder’s Court judge granting defendant’s motion to suppress is reversed. The case is remanded for further findings of fact, consistent with this opinion. | [
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Per Curiam.
Defendants appeal by leave granted from a judgment of the district court in favor of plaintiff on his claims of false arrest, false imprisonment and violation of civil rights under 42 USC 1983. The trial court had directed a verdict in favor of plaintiff on those claims, while directing a verdict in favor of defendants on plaintiff’s claim of malicious prosecution. The question of damages was submitted to the jury, which returned a verdict in plaintiff’s favor in the amount of $50,000 in actual damages and no award for punitive damages on the civil rights claim. Defendants appealed to the Wayne Circuit Court, which affirmed.
Briefly, the facts of the case are as follows. In December of 1977, fifty persons riding a dot bus in the City of Detroit were robbed at gunpoint. The investigating officers interviewed those witnesses who remained at the crime scene and created a description of the robber based on those features upon which a majority of the witnesses agreed. The description was of a black male, in his twenties, 165 pounds, dark complexion, glasses, with a beard and mustache, thick lipped, and wearing a black sweatshirt with hood, a black peacoat, light blue denim pants, black shoes and carrying a blue steel revolver, possibly .357 caliber. Police Sgt. Michael Dowd of the Armed Robbery Unit testified that the description was very general and could have fit a large number of people in the City of Detroit. Given the differences in the witnesses’ perception, Dowd suggested that the suspect could range in height from 5'5" to 6'2" and in weight from 150 pounds to 210 pounds.
Approximately two weeks after the robbery, the Armed Robbery Unit received an anonymous letter which seemed to indicate that a police officer named Charles Lockett committed the robbery. The letter was a combination of newsprint, printing and cursive writing. The investigating officers directed an inquiry to Internal Affairs, which indicated that plaintiff had been suspended from the police force based upon suspected involvement in an unrelated armed robbery. The officers also learned that plaintiff had recently been wearing a beard and mustache and that he was 5T1" tall and weighed 180 pounds. Furthermore, the interrogation record created when plaintiff was questioned about the prior armed robbery indicated that he had a one-inch scar on his left cheek (which had not been mentioned by any of the witnesses to the bus robbery). Finally, although the interrogation record had a place to indicate that the suspect has "thick lips,” the box was not checked.
Based upon this information, officers from the Armed Robbery Unit went to plaintiff’s home and forcibly entered the house without a warrant and placed him under arrest, again without a warrant. Plaintiff was placed in seven lineups. He was positively identified in the first lineup, but none of the other witnesses were able to make a positive identification in the subsequent lineups. A few did indicate that plaintiff "sort of”'looked like the robber.
Plaintiff was subsequently charged with eleven counts of armed robbery. At the conclusion of the preliminary examination, the magistrate bound plaintiff ovér for trial on four of the eleven counts. However, Recorder’s Court Judge Harold Hood quashed the information, finding that the magistrate abused his discretion in binding plaintiff over for trial.
The instant civil action followed. Following plaintiff’s proofs, the trial court directed a verdict in defendants’ favor on the malicious prosecution charge. Before submitting the case to the jury, the court directed a verdict in plaintiff’s favor on the false arrest and imprisonment charges, based upon its conclusion that, as a matter of law, there was no probable cause for plaintiff’s arrest. A verdict was also directed in plaintiff’s favor on the civil rights claim. Thus, only the question of damages was submitted to the jury.
Finally, we note that, during trial in the instant case, Sgt. Dowd testified that an arrest warrant was not obtained because the police officers did not believe that they had sufficient probable cause to obtain a warrant from a judge, or even to have the prosecutor’s office be willing to seek a warrant. However, they apparently believed that they had sufficient probable cause to make an arrest without a warrant.
I
Defendants first argue that the trial court clearly erred in concluding that the officers lacked probable cause to arrest plaintiff. We disagree.
First, we note that Sgt. Dowd testified that the police officers did not even seek a warrant because they did not believe that they had sufficient evidence to convince either the prosecutor or a judge that there was probable cause to arrest plaintiff. This by itself speaks volumes. We cannot imagine how defendants can reasonably expect the court to believe that there was probable cause to make an arrest without a warrant when the officers themselves did not believe there was probable cause to obtain a warrant for such arrest.
Of course, the officers may have merely been mistaken that probable cause did not exist to obtain a warrant. Thus, the crucial question in this case is whether probable cause did exist despite the officers’ beliefs to the contrary. The key to this issue is what reliance, if any, could the investigating officers place on the anonymous note sent to them.
Our consideration of this issue begins with the cases of Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969). In these cases, the Supreme Court established the requirement that, in determining probable cause for the issuance of a search warrant based upon an informant’s tip, there must be evidence of the reliability and credibility of the informant and the information provided. The past credibility of an informant may be used to establish the reliability of the current tip. See United States v Harris, 403 US 573; 91 S Ct 2075; 29 L Ed 2d 723 (1971). The Aguilar-Spinelli criteria were specifically applied by the Michigan Supreme Court in the determination of probable cause based upon an informant’s tip in People v Walker, 401 Mich 572, 580-581; 259 NW2d 1 (1977)._
Turning to the case at bar, we can find no indicia of reliability in the tip received by the investigating officers. The note was anonymous and merely stated that the author was on the bus at the time of the robbery and recognized plaintiff as the robber on the basis of having gone to school with him. However, there was nothing in the note to establish the veracity of the claim. It did not describe any events of the robbery to lend credence to the assertion that the author of the note was on the bus at the time. Simply put, the note could have been sent by any person familiar with plaintiff and who had read of the robbery in the newspaper.
Furthermore, the anonymous tip was not buttressed by any information gathered by the officers after their suspicion fell on plaintiff following the receipt of the note. The only other information the officers had upon which to base their belief of plaintiff’s involvement was the description of the perpetrator by the witnesses. However, that description was insufficient to establish probable cause because of its generality and the fact that it differed somewhat from what plaintiff actually looked like. That is, the description provided by the witnesses was so general that, as one witness testified, it would fit a large number of black males living in the City of Detroit. Further, the description described the robber as having "thick lips,” which plaintiff does not possess, and it did not indicate that the robber had a facial scar, which plaintiff does possess. The existence of plaintiff’s scar and the fact that he did not have thick lips were known to the officers before the arrest.
For the reasons stated above, we conclude that the officers were correct in the initial determination that there was a lack of probable cause to believe that plaintiff was involved in the robbery. Accordingly, the trial court correctly determined that defendant officers were without lawful authority to make an arrest without a warrant and, therefore, correctly directed a verdict in plaintiffs favor.
Before moving to the next issue, we wish to briefly consider defendants’ argument based upon the case of McCreary v Sigler, 406 F2d 1264 (CA 8, 1969). Defendants correctly point out that information provided by a victim or a witness is inherently more reliable than that provided by an ordinary police informant, even if made anonymously. However, defendants’ argument fails because the informant’s statement that he or she was a passenger on the bus at the time of the robbery lacks reliability. It is insufficient that the note sent to the police merely states that the author was a witness to the crime. Since nothing in the note supports the assertion that the author was actually on the bus, the police were not justified in relying on the unsubstantiated assertion to that effect.
II
Defendants’ next argument is similarly without merit. Defendants argue that the trial court erred in determining that the individual officers were not entitled to immunity under 42 USC 1983. We disagree.
The determination whether the individual offi cers may be held personally liable for their unlawful action turns on the objective legal reasonableness of their actions. Harlow v Fitzgerald, 457 US 800; 102 S Ct 2727; 73 L Ed 2d 396 (1982). The reasonableness of an official’s conduct should be measured by reference to clearly established laws, so that if a legal principle is not clearly established at a given time, the official could not reasonably be expected to know that the law would forbid his conduct. Id. In determining whether a body of law is clearly established, the court should not consider the very general body of law, but the more particularized and thus more relevant issue. Anderson v Creighton, 483 US —; 107 S Ct 3034; 97 L Ed 2d 523 (1987). That does not mean that an official will be protected by immunity unless that very action has been previously held unlawful, but it does mean that, in light of the existing law, the unlawfulness must be apparent and a reasonable official would understand that his action violates a constitutional right. Id. Furthermore, the individual defendant’s belief about the lawfulness of his conduct is irrelevant. Id.
Turning to the case at bar, the Aguilar-Spinelli test was in use at the time of plaintiffs arrest to determine the existence of probable cause. While there was some flux in the area of the law concerning the criteria to be used in determining the reliability of an informant’s tip, it was clear then, as it is now, that there must be some evidence of reliability and credibility to the informant’s tip. Although the Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983), decision may have broadened the methods which may be used to establish reliability and credibility, that requirement has itself remained constant.
As discussed above, there was no basis for placing any reliance or credence on the tip. Nothing in the tip itself or in the surrounding circumstances gave the officers any reason to believe that the tip was accurate. Indeed the fact that the state of probable cause law was sufficiently stable at the time of plaintiffs arrest so as to allow the officers to know that their actions were unlawful is reflected in the fact that the officers chose not to seek a warrant because they themselves believed that they lacked sufficient evidence to obtain a warrant. Nothing in the state of the law in 1978 would lead a reasonable police officer to believe that he could make an arrest without a warrant based upon facts which he himself did not believe would be sufficient to obtain an arrest warrant.
We recognize that the law cannot expect a police officer in the field to be able to make split-second, exacting judgments on complicated legal issues. If lawyers and judges, learned in the law, cannot come to agreement after afforded the opportunity of a leisurely and scholarly review of the finer points of constitutional law, we cannot hold police officers liable for a wrong judgment made as events unfold, particularly since police officers are not normally provided the same training in the law as judges and lawyers. However, this cannot excuse the officers where their conduct clearly violates established legal principles, or where they are afforded the opportunity to obtain legal sanction for their conduct (i.e., a warrant).
In the case at bar, defendant officers had the opportunity to seek a warrant to justify their conduct, but did not do so. Furthermore, nothing in the state of the law as it existed in 1978 could possibly justify their belief that they had probable cause to arrest plaintiff. Simply put, no reasonable officer could believe that he was justified in arresting plaintiff without a warrant. Accordingly, the trial court correctly concluded that defendants MacBride and Fabian were not entitled to immunity under 42 USC 1983.
III
Defendants’ final argument, that they are immune from tort liability for false arrest and imprisonment under the state governmental immunity act, has some merit, at least with respect to defendant city.
First, we must determine whether the circuit court was correct in concluding that the issue of governmental immunity was not properly preserved for appeal since it had not been raised in the trial court. We agree with the circuit court that the individual defendants had not raised the issue in the trial court and, therefore, the issue is not properly preserved for appellate review. However, with respect to defendant city, it did raise the issue in its responsive pleadings and, therefore, we believe that it sufficiently preserved the issue.
In turning to the question whether defendant city is immune from liability, we conclude that it is. For a governmental entity to be vicariously liable for the torts of one of its employees, the employee must have been acting in the course of his employment, within the scope of his authority, and must have committed a tort while engaged in an activity which is nongovernmental or proprietary in nature or which falls within a statutory exception. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591-592; 363 NW2d 641 (1984).
In the case at bar, two of the three prongs are not met. While the officers were acting in the course of their employment by the city, they exceeded the scope of their authority in making the arrest. At the risk of stating the obvious, police officers only possess the authority to make lawful arrests. Where they make an unlawful arrest (i.e., an arrest without probable cause), they have exceeded the scope of their authority. Second, the torts in the case at bar were committed while the officers were engaged in a governmental activity, i.e., the investigation of a crime and the arresting of a suspect. Ross, supra at 657-661. Accordingly, defendant city is not vicariously liable for the torts of the individual defendants.
The judgment of the circuit court is reversed with respect to defendant city and the case is remanded to the district court with instructions to enter a judgment of no cause of action in favor of the city on the basis of governmental immunity. The decision of the circuit court is affirmed with respect to defendants MacBride and Fabian. Plaintiff may tax costs against defendants MacBride and Fabian; no costs may be taxed against or by defendant city._
Indeed, an interesting question does present itself here. Specifically, is there any civil liability of a police officer who performs a lawful arrest while possessing the belief that it is unlawful? That question need not be addressed here since we conclude that the arrest was unlawful in the case at bar. Accordingly, we can leave the above question to the collective consideration of law professors and their hapless students.
We recognize that the Supreme Court, subsequent to plaintiffs arrest, did adopt a more flexible approach to the area of the determination of probable cause based upon an informant’s tip. See Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). However, we applied the Aguilar-Spinelli criteria to the instant case since that was the relevant law at the time of plaintiffs arrest. In any event, we would point out that we do not believe that probable cause could be established even under the more liberal requirements of Gates since the anonymous tip lacked any indicia of reliability.
We are not faced with the debate recently waged by our Supreme Court in People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984), over which test should be followed as a matter of Michigan law in finding whether a sufficient showing is presented to support the issuance of a warrant. Suffice it to say that even if Michigan were to follow the more liberal test announced in Gates, the police officers in this case lacked probable cause to secure a warrant.
We note that nothing in this case suggests that there existed any exigent circumstances which necessitated an immediate arrest without taking the time to seek a warrant. Indeed, the arrest occurred over two weeks after the robbery and there is no indication that the suspect was about to dispose of evidence of the crime or flee the jurisdiction. Thus, the only reason defendants apparently had for not seeking the warrant was their belief that no magistrate would issue one.
Although the issue is not properly before us, we do note that the fact that the individual defendants were acting outside the scope of their authority would defeat a defense of governmental immunity even if properly raised. Ross, supra at 592. | [
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Per Curiam.
Defendant was convicted by a jury of interfering with a police officer. MCL 750.479; MSA 28.747. On March 7, 1986, a sentence of eighteen months probation, a $75 fine and costs of $450 were imposed and defendant appeals as of right.
A summary pertaining to the two issues raised is briefly stated. Following a college football game, a street party was being held on September 23, 1984, in Mount Pleasant. More than five hundred people were estimated to be present. When police arrived to disperse the crowd, some people threw objects at the police. Defendant was arrested and charged with the crime of resisting and obstructing an officer in the discharge of his duties.
At the preliminary examination on October 9, 1984, Officer LaLone identified defendant as the person he observed throwing a bottle. During cross-examination at the preliminary examination, it was brought out that Officer LaLone reviewed a photograph of the defendant immediately before coming into the courtroom. Further, LaLone was advised in advance that he would be asked to identify defendant from the gallery.
Pretrial conferences were held on October 19, 1984, June 6, 1985, and October 1, 1985. No pretrial motions were filed raising identification as an issue or seeking to suppress evidence.
The trial took place on January 21, 22, and 23, 1986. Six witnesses were called by the prosecutor before Officer LaLone testified. The testimony indicated that the police officers had specific orders to look for, identify and apprehend people who were throwing objects. According to a plan, an officer who saw a person throw an object would run in the direction of the person who threw the object and the other officers would follow. Officer LaLone was the seventh and last witness called for the prosecution. He testified to seeing a person that night who later became known to him as the defendant. He first saw defendant when an object was thrown. He ran toward defendant, defendant ran as he approached him and a chase followed. LaLone fell momentarily, lost contact, got up, noticed Mischley was still running and apprehended him. Several other officers were present or appeared a moment later at the point of apprehension.
During cross-examination of Officer LaLone, in response to a question asked, the witness stated that he looked at a picture of the defendant before the preliminary examination. Defense counsel objected to LaLone’s identification of defendant as being tainted and, therefore, subject to suppression. The trial court noted the defense had such knowledge since October 9, 1984. The court found that each pretrial order stated that matters not raised were waived. In denying the motion to suppress, the court ruled there was no point' in holding an evidentiary hearing to see if the officer had an independent basis for his identification of defendant because that should have been done before his testimony was given and not, as here, after that testimony was before the jury.
On appeal, defendant claims the trial court erred in denying the defense motion to suppress Officer LaLone’s identification testimony. We do not agree.
The identification issue was not raised during the preliminary examination held on October 9, 1984. Nor at the pretrial conference. Nor prior to commencement of trial on January 21, 1986. The issue was raised approaching the completion of the prosecutor’s proofs during cross-examination of Officer LaLone.
The issue central to the proof of guilt was whether the defendant was the person the officer saw throw a beer bottle. Defendant denied the commission of the act in question. According to the record, the police officers had specific orders to apprehend people throwing objects. Officer LaLone saw an object being thrown by a person, ran toward that person and other officers followed. LaLone lost sight of the person who threw the object momentarily during the chase, but he eventually apprehended and arrested him. Other officers arrived a brief moment after apprehension.
The trial court found that in each of the pretrial conferences the parties were required to raise by motion matters such as the question of identification or to consider the issue waived. At trial the parties agreed to conduct a hearing pursuant to People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), during jury deliberations. The court agreed to a hearing to determine whether the witness had an independent basis for identification.
The trial court subsequently determined that such a hearing was precluded by People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), because it should have been conducted prior to the introduction of the allegedly tainted testimony. The trial court properly exercised its discretion governing the conduct of the trial. People v Holmes, 132 Mich App 730, 741; 349 NW2d 230 (1984). We note that in Anderson the issue was raised by "[t]imely and continuous objections by defendant’s counsel to the victim’s in-court identification ... at the preliminary examination, pretrial motions and by oral trial objections.” Anderson, p 165. The trial court found these requirements were lacking in this case. We find no abuse of discretion.
The second issue involves alleged prosecutorial misconduct. Prior to closing arguments, defense counsel made a motion in limine to preclude the prosecutor from making reference to the Bible in his closing argument, noting that there was a pastor sitting on the jury. The reference he expected the prosecutor to make was that the Bible says if you run, you are guilty. The motion was denied.
Several times during his closing argument the prosecutor quoted Proverbs, chapter 28, verse 1: "The wicked flee when no man pursueth.” The prosecutor interpreted the quote for the jury, "Even if you don’t think anybody is running after you, when you commit a crime, do something wrong, you run away.” The prosecutor also commented, "He runs away to hide because he knows he’s done something wrong,” contending that is how the phrase got into the Book of Proverbs.
The art of advocacy is the art of persuasion. It is counsel’s duty to use all legitimate means to convince the jury or the court that a finding for his client will be in accord with justice. Elliott v A J Smith Contracting Co, 358 Mich 398, 418; 100 NW2d 257 (1960). In closing argument, emotional language is an important weapon in counsel’s forensic arsenal limited by the principle that a lawyer cannot comment upon evidence which has not been introduced. State v Gonzales, 105 Ariz 434, 437; 466 P2d 388 (1970). Nor may the prosecutor appeal to a jury’s religious duties in calling for conviction. People v Rohn, 98 Mich App 593; 296 NW2d 315 (1980).
Criminal trials are adversary proceedings, not social affairs. The argument of counsel should not be so restricted as to prevent reference, by way of illustration, to principles of divine law or biblical teachings. Paramore v State, 229 So 2d 855 (Fla, 1969). The prosecution’s argument, when taken in context, shows that the biblical quotation was properly used as an illustration. The quoted passage did not misstate the facts or the law. The reference was not used in any prejudicial manner to inflame the passions of the jury. The prosecutor’s use of the identical quotation was affirmed by our sister state of Indiana. See Vaughan v State, 470 NE2d 374, 379 (Ind App, 1984). We find that the prosecutor’s argument was appropriate.
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J. B. Sullivan, P.J.
Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a). Sentenced to concurrent prison terms of thirty-five to seventy years, defendant now appeals as of right. We affirm.
The prosecution’s evidence at trial established that the victim of the offense was a nine-year-old girl. During the evening of the offense, defendant had been at the Happy Hour Bar with the girl’s mother, with whom defendant had resided on a periodic basis. The girl was dropped off at a babysitter’s house where she was to stay the evening. Her mother testified that, an hour and a half after they arrived at the bar, defendant left, indicating that he wanted to pick up personal belongings at an old girlfriend’s house. The mother later went to another bar, where she stayed until closing.
The victim testified that at approximately 11:00 p.m. that evening, defendant picked her up from the baby-sitter’s house. They drove back to the Happy Hour Bar, where defendant went inside to find the victim’s mother. Defendant returned to the car, told the victim her mother was not there and then rubbed her between the legs.
At that point, defendant drove away. When he later stopped to get gas, the victim went to the back seat and fell asleep. She testified that, later, in a wooded area, defendant, now also in the back seat, shook her awake and told her he was going to make her a woman. He threatened her, telling her to cooperate or he would beat her and her mother. Defendant then forced her to take her clothes off, put one of his fingers in her vagina and forced her to have repeated oral and anal sex with him. At some point during this offense, the victim complained to defendant that he had hurt her. Defendant responded by hitting her face with his open hand.
Defendant eventually drove the victim back to her home in Grand Rapids. She was unsure of the time it took to drive from the wooded area to her home, but said it was "probably a few minutes or a half hour.”
When they arrived at the victim’s home, defendant left after letting her in. She went upstairs and went straight to sleep. In the morning, she woke her mother and a man who apparently slept with her mother that evening and told them about the offense. According to her mother, the victim was crying as she reported the incident. The three of them then went to a restaurant where the mother worked. There, the mother telephoned the Rape Crisis Center and the police.
The victim was later taken to Butterworth Hospital. She was examined at the emergency room by Dr. Bruce Nugent, to whom she reported the of fense and appeared to be "very frightened.” Dr. Nugent noted a fresh "reddish-blackish” bruise in the area of the victim’s left jaw. Although he did not observe any evidence of trauma to the rectum, he indicated that the muscle tone of the anus was looser than he would have expected. This looseness was consistent with a finger or a penis having been put into the child’s rectal area. Over the victim’s external genitalia, he observed a "whitish-yellow secretion” which appeared to be semen. Dr. Nugent took swabs of the material and also collected other specimens from the rectum and the vagina. He put four of them into a kit. Later, Dr. Nugent examined a sample from a swab he had placed in sterile water under a microscope. He did not observe motile sperm on it.
Over renewed objection by defendant’s attorney, Dr. Nugent testified that the morning of his testimony he reexamined the rape kit slides. According to Dr. Nugent, he examined the slide of the whitish-yellow material he had earlier testified about and, at that time, observed two sperm.
It is this last piece of testimony which is the subject of the first issue on appeal. Defendant maintains that the prosecution sought to admit this evidence without first disclosing it to defense counsel, in violation of the parties’ discovery agreement. He asserts that, as the rape kit samples were not positively identified as sperm until after the trial had begun, he was prejudiced and denied a fair trial due to unfair surprise.
Until recently, this Court has equated prosecutorial failure to comply with discovery agreements and orders with a constitutional denial of due process and, accordingly, has held that admission of undisclosed evidence, even if not exculpatory, requires reversal unless the failure to divulge was harmless beyond a reasonable doubt. However, in People v Taylor, 159 Mich App 468, 471; 406 NW2d 859 (1987), this Court renounced the "view that this procedural problem should be elevated to constitutional rank and locked into an inflexible remedy.” Instead, the Taylor Court concluded that questions of noncompliance with discovery orders or agreements and appropriate remedies are subject to the discretion of the trial court, which it must regularly exercise as part of its inherent power to control the admission of evidence so as to promote the interests of justice.
We agree with Taylor that denial of discovery of inculpatory evidence subject to an order or agreement does not necessarily constitute a denial of due process and that trial courts have discretion to fashion appropriate remedies for such prosecutorial misconduct. In deciding how a court is to exercise its discretion, we again turn to Taylor, which suggests that, to remedy noncompliance with a discovery statute, rule, order or agreement, the court must "determine what legitimate interests of the courts and of the parties are involved and how they may be affected by the remedial choices available.” 159 Mich App 484. Thus, the court must commonly consider a criminal defendant’s interests in the optimal preparation of his own case and the ability to minimize prosecutorial opportunities to falsify evidence. Id., 485-486. As in Taylor, where the undisclosed evidence is unfavorable to the objecting party, it is the latter interest which primarily attracts our concern here. In balancing the defendant’s interests with the undisputed interest of trial courts to "facilitate the search for truth to the end of producing a just result,” id., 484, the court is compelled to utilize the remedy of suppression "only in the most egregious cases” where other remedies such as continuance would not serve to protect the foregoing interests. Id., 487. The Taylor Court concluded that the defendant there was not entitled to a remedy for the prosecutor’s nondisclosure of a letter written by defendant himself, since defendant had obvious knowledge of it independent of discovery. Id., 487-488.
Applying this analysis to the facts of this case, we initially agree that the prosecution violated the terms of the informal discovery agreement, in which it agreed to supply defense counsel with all medical documentation. Although it is true that the test results in question were not available to the prosecution until after the trial began, it had discovered just prior to trial that the rape kit existed but had inadvertently not been tested. At the time the prosecutor instructed the lab technician to examine the kit samples, he had an affirmative duty to advise defense counsel, who purportedly had been apprised that there would be no medical substantiation of the victim’s testimony, that this evidence was being developed. His decision to notify defense counsel of the existence of the tests only after they were concluded, at the time he sought to admit their results at trial, constituted a breach of the agreement. 159 Mich App 476, n 10.
However, we are not persuaded that the actions the trial court undertook to remedy the breach were an abuse of discretion. When defense counsel initially objected to the introduction of the evi dence concerning the sexual assault kit samples, the trial court reserved its ruling to allow counsel the opportunity to speak with the laboratory technician who had initially examined the kit samples. The court further instructed the prosecutor to have the technician available at a set time that afternoon for questioning. However, defense counsel did not avail herself of this opportunity. Later, after Dr. Nugent’s testimony, the trial court asked defendant’s attorney whether she desired a continuance in order to consult with an independent expert concerning the kit samples. Trial was adjourned to give defendant’s attorney that opportunity. When trial reconvened the next morning, defense counsel stated that the defense had elected not to provide any medical expert testimony on defendant’s behalf.
Since the defense was granted the opportunity to question the lab technician prior to the admission of the evidence, and since a continuance was given to allow it an opportunity to consult with an independent expert, we do not believe that defendant was deprived of his right to a fair trial by the introduction of the evidence.
Further, defendant’s general allegations of surprise and prejudice do not alter our result. 159 Mich App 486, n 26. The only possible prejudice resulting from the failure to divulge this inculpatory evidence was inadequate preparation for cross-examination. This, of course, was remedied by the trial court. People v McConnell, 124 Mich App 672, 681; 335 NW2d 226 (1983). Although defense counsel advised the trial court that she would not have employed a strategy of denying sexual contact with the child had she been aware of the potential positive test results, she did not advise the court what alternative defense would have been asserted, and we are not aware of any where, as here, the defense of consent is not available. Reversal is not required here merely because the evidence was of an incriminating nature. 159 Mich App 481 n 19, 486.
Defendant’s other claims of errors can be summarily rejected.
Defendant asserts that the trial court erred by allowing the victim’s mother to testify, over defendant’s objection of hearsay, about the description of the offense related to her by the victim the morning following the offense. We find no abuse of discretion in the trial court’s admission of the hearsay statements as excited utterances. People v Foreman, 161 Mich App 14, 20-23; 410 NW2d 289 (1986); People v Draper, 150 Mich App 481, 486; 389 NW2d 89 (1986); People v Soles, 143 Mich App 433, 437-438; 372 NW2d 588 (1985), lv den 424 Mich 863 (1985).
Next, defendant argues that the court erred in denying his motion for directed verdict which had been made on the basis that venue of the Kent Circuit Court had not been established. We disagree. The complainant’s testimony that the offense occurred within a three to thirty minute drive to her house which was located within the county created a sufficient factual dispute to warrant submission of the issue to the jury. People v Belanger, 120 Mich App 752, 757; 327 NW2d 554 (1982); People v Ragland, 14 Mich App 425, 427; 165 NW2d 639 (1968).
Defendant was not denied his right to be informed of the nature of the accusations against him by the alleged vagueness of the amended information, which charged defendant with committing two acts of sexual penetration against the victim while she was under the age of thirteen and which likewise specified the date and location of the alleged offenses. Under these circumstances, the information was sufficiently specific to enable defendant to prepare his defense, and a conviction or acquittal on the charges would bar any subsequent charges against defendant for the same offense. People v Adams, 389 Mich 222, 242-244; 205 NW2d 415 (1973).
Finally, while acknowledging that his sentences fall within the minimum sentence range recommended by the guidelines, defendant maintains that they should nonetheless be vacated as excessive and an abuse of trial court’s discretion. After reviewing the record, our collective consciences are not shocked by the sentences. People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
Affirmed.
People v Florinchi, 84 Mich App 128; 269 NW2d 500 (1978), lv den 405 Mich 828 (1979), People v Pace, 102 Mich App 522; 302 NW2d 216 (1980), and People v Turner, 120 Mich App 23; 328 NW2d 5 (1982).
Compare the trial court’s discretion to allow the late endorsement of witnesses, which it is encouraged to do following the grant of a continuance so as to obviate any protential prejudice. People v Suchy, 143 Mich App 136, 141; 371 NW2d 502 (1985); People v Cyr, 113 Mich App 213, 224; 317 NW2d 857 (1982). | [
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Per Curiam.
Defendant was charged with the first-degree murder of his wife, Jeanne Modelski. Following a lengthy jury trial, defendant was convicted of manslaughter, MCL 750.321; MSA 28.553, and was sentenced to ten to fifteen years’ imprisonment. He now appeals as of right, raising two issues: (1) that in admitting defendant’s confession the trial judge erred in ruling that the prosecutor had established the corpus delicti of homicide; and (2) that the prosecutor’s closing argument was so prejudicial as to deny defendant a fair trial. Finding no merit to either argument, we affirm defendant’s conviction.
Jeanne Modelski and defendant began cohabitating in October, 1977, and were married in December, 1979. By all accounts, the relationship was a stormy one. There were frequent and loud arguments, instances of violence and allegations by defendant of Jeanne’s infidelity. The couple was living together in an apartment in Kalamazoo when Jeanne disappeared suddenly in late April, 1980. She has not been heard from since and a body has never been found.
Following Jeanne’s disappearance, defendant telephoned her friends and relatives, asking whether they had seen her or heard from her. However, in the two years following Jeanne’s disappearance, defendant confessed to friends, a paramour and to police that he killed Jeanne in a fit of rage following an argument with her.
In April, 1980, on the day after he killed Jeanne, defendant told a co-worker and a friend, Maurice Morrison, that he had shot his wife and disposed of her body in Indiana. In February, 1981, he told a paramour, Laurie Verdille, that he had killed his wife. She testified that defendant told her of the killing after she and he had seen a movie depicting a husband killing his wife. Defen dant told her that he and Jeanne had been fighting, that both were drunk, and that he had removed his handgun from the closet and shot Jeanne once through the head while she was in the bathroom of their apartment. He could not recall where he had dumped the body. In May, 1982, while defendant was in the Army, stationed in Germany, he confessed that he killed his wife to his Army supervisor, David Meeks. Defendant and Meeks were drinking in a German discotheque and defendant was drunk when he told Meeks that he had shot his wife in the head with a revolver and then had driven across the state line and dumped her body in a wooded area.
Finally, when defendant was arrested on October 11, 1983, he made a full confession to police. He stated that he had shot Jeanne once through the head as she sat on the toilet. He caught her as she fell forward and laid her in the bathtub. Eventually, he removed the tarpaulin from his motorcycle, wrapped Jeanne’s body and placed it in the back of his truck, drove to a wetland, wooded area in Indiana, and dumped it. Defendant initially accompanied police to Indiana to attempt to locate the body. However, the body was not found and on the advice of his brother, an attorney, defendant refused further cooperation with police.
At trial, the judge overruled each of defendant’s objections that his confessions were inadmissible because the corpus delicti of homicide had not been established.
I
First, defendant claims that the trial judge erred in refusing to suppress his confession because the prosecutor failed to establish the corpus delicti of homicide.
The common law in Michigan, and many other jurisdictions, is that a defendant’s confession is inadmissible unless the corpus delicti of the offense is first established. People v Coapman, 326 Mich 321; 40 NW2d 167 (1949); People v Mondich, 234 Mich 590, 593; 208 NW 675 (1926); People v Skowronski, 61 Mich App 71; 232 NW2d 306 (1975). The Latin word "corpus” means body. "Delict” means wrong or injury. Thus, generally speaking, the corpus delicti of an offense is the body of the wrong or injury. People v Allen, 390 Mich 383; 212 NW2d 21 (1973). Consequently, the corpus delicti of a homicide is shown and a confession may be admitted when the prosecutor establishes that the victim is dead and that the death was the result of some criminal agency. People v Williams, 422 Mich 381; 373 NW2d 567 (1985).
The purpose of the corpus delicti rule is to guard against a conviction for a criminal homicide when none has been committed. Despite some confusion to the contrary, the corpus delicti of a homicide offense can be established without locating the body of the deceased. Williams, supra. The corpus delicti may be established by circumstantial evidence and the reasonable inferences drawn therefrom. People v Neal, 83 Mich App 102; 268 NW2d 303 (1978); People v Wise, 134 Mich App 82, 88; 351 NW2d 255 (1984).
Michigan law is not clear concerning the quantum of proof necessary to establish the corpus delicti of homicide. The prosecutor need not establish the corpus delicti beyond a reasonable doubt. Wise, supra. In Wise, this Court concluded that "the evidence adduced need only tend to show consistency with unlawfulness in causing the injury in question.” 134 Mich App 88. This standard appears to be similar to the standard adopted by the California Court of Appeals in People v Man son, 71 Cal App 3d 1, 41; 139 Cal Rptr 275, 297 (1977), where the court noted:
The preliminary proof of the corpus delicti need not be beyond a reasonable doubt but only a slight or prima facie showing is necessary.
A three-member dissent in People v Kirby, 223 Mich 440, 453-466; 194 NW 142 (1923), concluded that the corpus delicti was established where there was any evidence of the crime. However, cases thereafter have addressed the issue in terms of probabilities:
Where the probabilities from the facts shown and the inferences therefrom indicate the corpus delicti, a voluntary confession may be introduced, although there may be some testimony to the contrary. The testimony, however, must be very strong to show the corpus delicti. [People v Burlingame, 257 Mich 252, 260; 241 NW 253 (1932)]
See also People v Preston, 299 Mich 484, 493; 300 NW 853 (1941); People v Zwierkowski, 368 Mich 56, 60; 117 NW2d 179 (1962).
From the above authorities, we conclude that the corpus delicti of homicide is established when the prosecutor establishes by a preponderance of direct or circumstantial evidence that the victim is dead and that death was the result of some criminal agency
In the instant case, the prosecutor established the corpus delicti of a homicide by showing that Jeanne could not be located and has not been heard from since her sudden disappearance and by showing that defendant had a motive to kill her, his deteriorating marriage and his claim of infidelity, and by showing that defendant’s actions suggest that he had murdered Jeanne.
The evidence adduced at trial suggested that Jeanne had led a troubled life and was sometimes emotionally unstable and unpredictable. Born in 1959 and adopted by Milo and Edna Henkels at age 2Vi, Jeanne had a history of running away from the Henkelses. She ran away at age thirteen and apparently never returned, although she maintained regular contact with the Henkelses up until her disappearance. In 1975, she went into the foster home provided by Marcia and Mahlon Kuder. She was pregnant at the time. She gave birth and relinquished custody of the baby. Although Jeanne was physically healthy, on two occasions, most recently in April, 1980, she required hospitalization following an overdose of prescription drugs.
Both defendant’s mother and father testified that Jeanne had a history of leaving defendant. However, defendant’s mother testified that Jeanne usually returned after one day and that she had never been gone more than three days.
Despite Jeanne’s unstable upbringing, she established a close and consistent relationship with a number of people, none of whom have heard from her since April, 1980. The Henkelses testified that they normally heard from or saw Jeanne every two weeks or so. They last spoke with her on April 25 or 26, 1980. Similarly, the Kuders testified that they regularly heard from Jeanne until late April, 1980, when she disappeared suddenly. Patrice Reagan, the Kuders’ daughter, enjoyed a sister-like relationship with Jeanne. After Reagan moved to Canada, she and Jeanne kept in touch by telephone and regular correspondence. Shortly before Jeanne’s disappearance, they discussed a proposed visit of Jeanne’s to Reagan’s home. Reagan has not heard from Jeanne since then.
There was also substantial testimony concerning efforts to locate Jeanne. The prosecutor presented evidence that Jeanne had not filed either federal or state tax returns since 1980. Similarly, according to the social security records, there was no history of earnings since 1980. Nor had a driver’s license in the victim’s name been issued in any state or the District of Columbia. There was no credit history for the victim after 1979, nor was there a passport applied for or approved in the name of the victim.
In addition to establishing Jeanne’s sudden disappearance and the fact that she could not be located, the prosecutor also established that defendant had a motive for killing Jeanne. At the time of Jeanne’s disappearance, her marriage with defendant had seriously deteriorated. Jeanne had informed others that she was thinking of leaving defendant. A number of witnesses testified to hearing defendant and Jeanne arguing and fighting. At the time that Jeanne last telephoned the Henkelses on April 25 or 26, 1980, she was upset and crying and the Henkelses could hear yelling from defendant in the background. The Kuders testified that when defendant visited them on April 13, 1980, he complained about Jeanne’s lax housekeeping practices. In response, in the latter part of April, 1980, Mrs. Kuder went to help Jeanne with housekeeping in an effort to alleviate the marital difficulties. Upon arriving at the apartment, she sensed that she had interrupted a fight. Defendant and Jeanne suggested that she return at another time.
There was also testimony that defendant believed that Jeanne had been unfaithful to him. He had expressed this thought to co-workers and to Laurie Verdille. Apparently he had contracted venereal disease, for which he blamed Jeanne. Defendant’s fears were well-grounded. A co-worker of defendant’s testified that he had engaged in sexual intercourse with Jeanne six months before her marriage to defendant, presumably when she was living with defendant. A second witness testified that he had engaged in sex with Jeanne after meeting her in the course of his door-to-door sales work.
Certain of defendant’s actions after Jeanne’s sudden disappearance support a finding that she died as a result of some criminal agency perpetrated by defendant. Dennis Weesner, a co-worker of defendant’s, testified that shortly after Jeanne disappeared he directed defendant to listen to a song on the radio entitled "Kill My Wife.” Defendant became angry and asked Weesner if that was an accusation. In addition, when Weesner purchased defendant’s truck in the latter part of 1980, defendant told him:
What he [defendant] had done was so bad [that] he didn’t want to really tell [Weesner], and that his dad knew [about it], and it was so bad he couldn’t believe somebody could even write a book about it, that was his dad’s opinion of it.
Furthermore, when defendant reported that Jeanne was missing on May 1, 1980, he informed police that Jeanne was upset over losing a babysitting job for Professor Robert Ackerman, a single parent with a young son. However, Ackerman testified that although he was forced to lay off Jeanne in March, 1980, after he broke his leg, he went to great lengths to ensure that Jeanne would not accept other employment and would be available when the witness returned to work. He continued to pay Jeanne one-third to one-half of her salary so that she would not find other employment and he regularly telephoned her every eight to ten days.
Finally, there was evidence that defendant gave away Jeanne’s personal effects. Within a week or two after defendant met Laurie Verdille, he gave her all of Jeanne’s personal effects, jewelry and clothing, including her purse, which contained her makeup, her social security card and her marriage license. It is unlikely that Jeanne would have left defendant without taking these items.
We conclude that when all the evidence is considered, the prosecutor established by a preponderance of the evidence that Jeanne is dead and that her death was the result of some criminal agency. Accordingly, we conclude that the trial judge correctly ruled that defendant’s confessions were admissible.
II
Defendant also claims that the prosecutpr’s closing argument was so prejudicial as to deprive defendant of a fair trial. Specifically, defendant claims that the prosecutor obtained defendant’s conviction by improperly evoking sympathy for the dead victim. Defendant cites the following portion of the prosecutor’s closing argument:
There is nothing to suggest, nothing, that she deserved to die.
She sought love at one point from her natural parents, and we know that she was adopted, they gave her up for whatever reason, there’s nothing in the record for us to know why. She sought love from the Henkels[es], and she was placed in a foster home.
She sought love and understanding from her foster family even to the point of going into a daughter’s room and attempting suicide with pills all lined up saying, "I want to be found.”
And tragically, we have Mr. Kuder who basi cally tells you — you know — "I wasn’t that close to her.” She loved him, it just didn’t seem to be reciprocated.
She went out with men, she was looking for love there, she was looking for sympathy, didn’t find any, got — she got married to Adam Modelski; try to find what she had been looking for for her entire life, and didn’t find this there, either.
It is an established rule that a prosecutor may not appeal to the jury to sympathize with the victim. People v Wise, supra; People v Leverette, 112 Mich App 142; 315 NW2d 876 (1982). Nor may he argue facts not in evidence. People v Partee, 410 Mich 871 (1980); People v Wise, supra. However, the prosecutor is free to comment on the evidence and all the reasonable inferences that can be drawn from the evidence. People v Ernest Smith, 87 Mich App 18; 273 NW2d 573 (1978).
The prosecutor’s argument does not require reversal of defendant’s conviction. Initially, defendant neither objected to the argument nor requested a curative instruction. The failure to object to a prosecutor’s closing argument at trial bars appellate review, unless failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977). Reversal will not be ordered if an alleged prejudicial error could have been corrected by a curative instruction and one was not requested. People v Hall, 396 Mich 650, 655; 242 NW2d 377 (1976). Failure to consider the issue would not result in manifest injustice in the instant case because any error could have been cured by a timely objection and an accompanying cautionary instruction.
Moreover, the prosecutor’s argument was in response to defendant’s defense strategy, evident throughout the trial, of claiming that defendant had killed Jeanne in a fit of rage because of her infidelity. Thus, for example, in response to the prosecutor’s closing argument, defense counsel argued:
[Jeanne] was searching for love, alright, but it wasn’t the kind of love that was healthy or that was normal, and it was certainly the kind of situation that she created to slowly but surely drive a man into rage because he’s loved her, he’s put up with her, and perhaps at times he became exasperated; perhaps at times there were awful arguments, but that was a two-way street.
A prosecutor may properly respond tó issues previously raised by a defense counsel. People v Jansson, 116 Mich App 674; 323 NW2d 508 (1982). That is what occurred in the instant case. Thus, defense counsel not only failed to object to the prosecutor’s argument, he also used the argument as a springboard for his own closing argument. Accordingly, we conclude there was no error.
Affirmed. | [
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Per Curiam.
The Michigan Employment Security Commission appeals from a circuit court order allowing Seligman & Associates, Inc., a refund for contributions paid to the mesc on the value of lodging provided to its resident caretakers. Seligman, a Michigan employer, operates numerous apartment complexes and employs caretakers or managers at these complexes. The caretakers are provided rent-free apartments as part of their employment, and they are required to live on the premises to handle tenant complaints which might arise.
Under the Michigan Employment Security Act, MCL 421.1 et seq., MSA 17.501 et seq., Seligman, as an employer, is required to pay taxes on the wages paid to its employees. The issue presented here concerns whether the value of lodging provided by Seligman for its resident caretakers is considered wages for the purposes of mesa.
In July, 1982, the mesc issued a notice of assessment in the amount of $18,477.87, reflecting the value of the apartments provided by Seligman for its caretakers for the fourth quarter of 1981 and the first quarter of 1982. Seligman filed a protest of the assessment, and the mesc affirmed the notice of assessment in a redetermination issued in August, 1982. Seligman appealed the redetermination, and in a May, 1984, decision, an mesc hearing referee affirmed. Seligman appealed the hearing referee’s decision to the circuit court which reversed the referee’s decision and ordered a refund to Seligman. The mesc now appeals. Seligman has filed a cross-appeal seeking interest on the contributions refunded by the mesc. We affirm the ruling of the trial court and hold that the lodging provided to Seligman’s resident caretakers is not considered wages for the purposes of mesa.
The controversy centers on the definition of wages under mesa. At the time the dispute arose, MCL 421.44(2); MSA 17.548(2) provided:
"Wages”, subject to subsections (3) to (5), means remuneration paid by employers for employment.
Remuneration was defined in MCL 421.44(1); MSA 17.548(1) as follows:
"Remuneration” means all compensation paid for personal services, including commissions and bonuses, and except for agricultural and domestic services, the cash value of all compensation payable in a medium other than cash. Any remuneration payable to an individual which has not been actually received by that individual within 21 days after the end of the pay period in which the remuneration was earned, shall, for the purposes of subsections (2) to (5), be considered to have been paid on the twenty-first day after the end of that pay period. The reasonable cash value of compensation payable in a medium other than cash, shall be estimated and determined in accordance with rules promulgated by the commission. "Remuneration” shall not include money paid an individual by a unit of government for services rendered as a member of the national guard of this state, or for similar services to any state or the United States.
In addition, the mesc has promulgated the following rules:
(1) If board, rent, housing, lodging, meals, or similar advantage is extended in a medium other than cash as partial or entire remuneration for service constituting "employment” as defined in section 42 of the act, then the reasonable cash value of same shall be deemed wages. However, for purposes of this rule, payments in any medium other than cash shall not apply to agricultural or domestic service, except for purposes of subrule (6) of this rule.
(2) Where the cash value for such board, rent, housing, lodging, meals, or similar advantage is agreed upon in any contract of hire, the amount so agreed upon shall be deemed the value of such board, rent, housing, lodging, meals, or similar advantage. Check stubs, pay envelopes, and the like furnished to employees setting forth such cash value, are acceptable evidence as to the amount of the cash value agreed upon in any contract of hire, except as provided in subrules (4) and (5) of this rule.
(3) In the absence of such an agreement in a contract of hire, the rate for board, rent, housing, lodging, meals, or similar advantage, furnished in addition to money wages or wholly comprising the wages of an employed individual, shall be deemed to have the following cash value, except as provided in subrule (4):
Full board and room per week........$29.00
Meals (without lodging) per week..... 19.50
Meals (without lodging) per day....... 3.25
Meals (without lodging) per meal..... 1.00
Lodging (without meals) per week..... 9.75
Lodging (without meals) per day...... 1.50
However, when lodging is furnished, for example, to superintendents of properties, caretakers, and janitors, the value of such lodging shall be the amount that would be paid by such an employee for similar or equivalent accommodations furnished by an individual other than his employer. [1980 AACS, R 421.112.]
Under 1980 AACS, R 421.112 the reasonable cash value of lodging is only deemed to be wages if it is extended as partial or entire remuneration for services rendered. Such is not the case here. We have reviewed the stipulated facts and conclude that the lodging provided by Seligman to its caretakers is provided solely for the convenience of the employer. The lodging is not extended as partial remuneration for services rendered. The parties stipulated that "Seligman has many employees who act as Caretakers or managers of the various apartment complexes. These employees are provided the use of a rent-free apartment in connection with their employment.” Further, "Seligman requires these employees to live on the premises for its own convenience so that the employees will be available to handle tenant complaints or other problems which can arise at any time.” There was nothing in the stipulated facts indicating that the rent-free lodging was intended as partial remuneration for the employees. There was no indication of what compensation was received by the caretakers or whether they would have received additional compensation if they were not required to live on the premises.
A hearing referee’s decision will not be disturbed unless it is contrary to the law or unsupported by competent, material, and substantial evidence. MCL 421.38; MSA 17.540; Carpet Cleaning & Dye Co, Inc v Employment Security Comm, 143 Mich App 287, 291; 372 NW2d 332 (1985). We conclude that the hearing referee’s decision, finding that the lodging provided constituted remuneration, was unsupported by competent, material, and substantial evidence. Nothing in the record indicates that lodging was provided as partial remuneration; rather, the parties stipulated that lodging was provided for the convenience of the employer. The circuit court did not err in reversing the hearing referee’s decision.
This interpretation of the definition of wages under mesa is consistent with the United States Supreme Court’s interpretation of the definition of wages under the Federal Unemployment Tax Act in Rowan Co, Inc v United States, 452 US 247; 101 S Ct 2288; 68 L Ed 2d 814 (1981). In Rowan, the Supreme Court held that for the purposes of that act wages do not include the value of meals and lodging provided for the convenience of the employer.
Seligman raises one issue in its cross-appeal. Seligman argues that it is entitled to receive interest on the contributions refunded by the mesc. We find that Seligman has failed to properly preserve this issue for appeal. Seligman failed to raise the issue of interest in the administrative proceedings below; thus, appellate review is precluded. Ackerberg v Grant Community Hospital, 138 Mich App 295, 299; 360 NW2d 599 (1984).
The order of the circuit court granting Seligman a refund for contributions paid to the mesc is affirmed.
MCL 421.44; MSA 17.548 has been amended by 1982 PA 535 and 1985 PA 223; however, the portions of the statute pertinent to resolution of this dispute remain in effect. | [
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J. B. Sullivan, P.J.
Plaintiffs Desmer and Leona Walch initiated the instant action for specific performance in order to obtain the mineral rights in certain real property pursuant to a land contract entered into between themselves, as purchasers, and defendants Henry and June Crandall, as sell ers. The Crandalls counterclaimed for reformation or rescission of the land contract on the basis of mistake. The other named defendants were added as parties to this action because each purportedly possessed an interest in the mineral rights at issue. Plaintiffs now appeal as of right from the September 6, 1985, judgment of the circuit court denying their claim for title in the mineral rights under the dormant minerals act, MCL 554.291 et seq.; MSA 26.1163(1) et seq., or for an abatement in the purchase price reflecting the lack of mineral rights, plus recovery of attorney fees. Also, the Crandalls cross-appeal as of right from that same judgment’s denial of their counterclaim for reformation or rescission, and from the trial court’s October 1, 1985, order denying their motion for relief from judgment. We affirm the trial court in all respects.
On March 9, 1979, plaintiffs and the Crandalls executed the land contract at issue. According to the terms of that agreement, the Crandalls were to convey to plaintiffs legal title to almost 211 acres of property by warranty deed, as well as an abstract of title showing marketable title. No exclusion or reservation was made as to the mineral rights. The purchase price for the property was $75,500. The dispute here concerns the mineral rights to 171 of these acres.
The Crandalls had initially purchased the property in 1958 from added defendants Leonard and Elizabeth Allers. The Allerses themselves had purchased it in 1949 from defendant Walter Jones, as trustee for the heirs of Dexter Jones. At the time of the 1949 transaction between Jones and the Allerses, Jones reserved an undivided three-quarter interest in the mineral rights and the exclusive right to lease the land in question for mineral development (an executive right). The remaining one-quarter interest in the minerals was conveyed to the Allerses. In 1958, when the Allerses conveyed the property to the Crandalls, the Allerses reserved their mineral rights for a period of fifty years, a fact of which the Crandalls were aware at the time. Thus, at the time of the execution of the instant land contract in 1979, an undivided one-quarter interest in the minerals was vested in the Allerses and an undivided three-quarter interest was held by Walter Jones, as trustee of the Dexter Jones trust.
On April 14, 1981, plaintiffs’ attorney tendered the balance due on the instant land contract and demanded a warranty deed. Plaintiffs also advised the Crandalls that an examination of the abstracts of title to the property revealed that the Crandalls did not appear to have marketable title to the mineral rights. When the Crandalls were unable to convey such marketable title, plaintiffs filed suit seeking specific performance of the land contract or, in the alternative, partial performance with an award of damages. The Crandalls answered plaintiffs’ complaint, claiming that the parties had made a mutual mistake of fact as to the mineral rights in executing the land contract. They subsequently filed a counter-complaint, requesting the court to reform the contract to exclude the conveyance of mineral rights based on the alleged mutual mistake.
Following the trial, the court issued its findings of facts and conclusions of law. The court concluded that the Crandalls could provide marketable title to only forty of the 210.59 acres subject to the land contract. The court further held that the Crandalls had not sustained their burden of proving a mutual mistake regarding the mineral rights, thereby entitling plaintiffs to specific performance of the land contract to the extent the Crandalls could provide marketable title and to damages for breach of contract due to the Crandalls’ inability to convey the mineral rights at issue.
However, after reviewing the conflicting expert testimony on the value of the mineral rights, the court found that the Crandalls had not acted in bad faith so as to entitle plaintiffs to damages for loss of bargain. Moreover, the court declined to award plaintiffs an abatement from the purchase price because to do so would have been unconscionable and would have resulted in a windfall to plaintiffs. However, the court offered plaintiffs the opportunity to rescind the land contract and recover the amount paid on the contract, plus interest and expenses.
Plaintiffs rejected the trial court’s offer of rescission and ultimately filed a motion with the trial court for relief from the judgment, alleging for the first time that the dormant minerals act had operated to terminate the mineral rights held by the Crandalls’ predecessors in title. Plaintiffs thus reasoned that the Crandalls did have legal title in the minerals to convey to plaintiffs prior to the execution of the land contract. After ordering the addition of all interested parties as parties defendant and conducting an evidentiary hearing on the matter, the court denied the motion.
i
The first issue we address on appeal is whether the trial court erred in concluding that the dormant minerals act did not vest ownership of the disputed mineral interests in plaintiffs.
The dormant minerals act provides that any person holding a mineral interest (including oil and gas) in any land, other than the surface owner, shall be deemed to have abandoned the interest in favor of the surface owner , unless such person performs one or more of the enumerated "acts of possession” during any twenty-year period. These enumerated acts include: (1) securing a drilling permit; (2) producing or withdrawing oil or gas, either individually or as part of a pool; (3) selling, leasing, mortgaging or transferring such interest by recorded instrument; (4) using the subject property for underground gas storage; or (5) recording a notice of interest with the local register of deeds. MCL 554.291; MSA 26.1163(1); Wagner v Dooley, 90 Mich App 759, 765; 282 NW2d 469 (1979), lv den 410 Mich 896 (1981).
As stated by our Supreme Court in Van Slooten v Larsen, 410 Mich 21, 46-47; 299 NW2d 704 (1980), app dis 455 US 901 (1982), the act was passed
to reduce the likelihood that the presence of un-, known or unlocatable owners or fractionalized ownership of severed interests would unnecessarily hinder or prevent the development of these resources by requiring an owner to do certain specified acts indicating ownership or record a claim of interest every 20 years. It places no undue burden upon owners. Without such a requirement, knowledge of the ownership could be lost in time. Potential resources go undeveloped in the absence of viable ownership.
Thus, "[t]he primary purpose of the act is not to vest title to the severed interests in the surface owner but rather is to facilitate development of those subsurface properties by reducing the problems presented by fragmented and unknown ownership.” Id., p 44.
Plaintiffs first assert that the mineral interest owners did not undertake any acts of possession within a twenty-year period to protect their interest under the act. We disagree.
The record reveals that after Walter Jones reserved his three-quarter mineral interest in 1949, he executed and recorded oil and gas leases in 1954 and 1966. Plaintiffs claim that these leases did not toll the twenty-year period because they were signed by Jones as an individual (and by his wife), rather than as trustee for the Dexter Jones trust. Therefore, plaintiffs assert that the leases were not signed by the owner of the mineral interest. We are not persuaded that Jones should be divested of his asserted mineral interests simply because he failed to specify his title as trustee on the lease agreements. The relevant inquiry should not be whether such a specification was noted; rather the relevant inquiry should be whether the transaction was actually conducted on behalf of the trust. Plaintiffs have failed to provide us with any evidence that it was not.
More importantly, adopting the harsh result urged by plaintiffs would not further the purpose of the act. As previously stated, the purpose of the act is to facilitate mineral development by reducing the problems presented by fragmented and unknown ownership, not to vest title in the severed mineral interest in the surface owner. Van Slooten, supra, p 44. Where, as here, the subsurface properties were being developed under a lease executed by the legal owner, the trustee, the purpose of the act was satisfied. Thus, the Jones lease agreements were sufficient to protect his three-quarter interest in the subject mineral rights.
Similarly, and contrary to plaintiffs’ assertion, a lease executed by Allerses in 1972 served to protect his one-quarter interest in the minerals, notwithstanding that he may not have had authority to do so due to Jones’ prior reservation of that executive right. The act speaks only of an owner of a mineral interest undertaking some act of possession to give notice of nonabandonment. This Allers has done. We do not believe the spirit of the act will be promoted by granting plaintiffs standing to assert the executive right of another in this manner.
Consequently, by executing the stated lease agreements, added defendants Jones and Allers sufficiently protected their respective mineral interests under the act. The trial court did not err in ruling that their interests were not abandoned in favor of the Crandalls and not subject to conveyance by the land contract involving plaintiffs.
II
Given our finding of nonabandonment in favor of the mineral-interest holders, we must next consider whether the trial court erred in refusing to award plaintiffs damages due to the Crandalls’ failure to convey marketable title. Plaintiffs contend that they are entitled to an award of damages representing the value of the mineral rights reserved by the prior holders.
Initially, the trial court held that plaintiffs were not entitled to "benefit of the bargain” damages because the Crandalls had not acted in bad faith. Soloman v Western Hills Development Co (After Remand), 110 Mich App 257, 265-266; 312 NW2d 428 (1981). The trial court stated:
In the case at issue, the Court can find no bad faith on the part of the seller. Neither party addressed or examined the title to the land prior to the sale. The defendants thought they owned title to the oil, gas and mineral rights and are not refusing to convey such title as they have. Defendants have not conveyed title to a third party. The defendants did not sell the land with the expectation that they would acquire a better title from a third person prior to the time it became necessary for them to perform. Also, it was well established at trial that the plaintiff did not purchase the land for the purpose of oil and gas exploration but rather for the purpose dairy farming within which he was already engaged. The matter of the oil and gas rights to the real estate in question was of little concern to either the plaintiffs or the defendants until after plaintiff learned of the renewed interest in the Huber Oil Field.
After reviewing the record, we agree with the trial court that the Crandalls did not exhibit any wrongful conduct from which an inference of bad faith may arise. Their failure to review the abstracts prior to the transaction and their reliance on the prior representations of a Mobil Oil Company leasing agent concerning the status of the mineral rights, as complained of by plaintiffs, may have been indicative of negligent behavior, but it certainly did not constitute bad faith.
Given its finding of a want of bad faith on the part of the Crandalls, the trial court offered plaintiffs damages in the amount which would be recoverable on rescission, the money already paid plus interest and expenses. Soloman, supra. Plaintiffs however sought the alternative remedy of partial specific performance with an abatement of the purchase price in the amount of the value of the reserved mineral rights. See, e.g., Kruger v Agnor, 321 Mich 131, 136-137; 32 NW2d 365 (1948). Plaintiffs now maintain that the trial court’s refusal to grant them this alternative remedy was likewise error.
In responding to this claim, we note that the trial court’s equity jurisdiction was invoked by the complaint for specific performance. See, e.g., Edidin v Detroit Economic Growth Corp, 134 Mich App 655, 660; 352 NW2d 288 (1984). It is the historic function of equity to grant such relief as justice and good conscience requires. Levant v Kowal, 350 Mich 232, 241; 86 NW2d 336 (1957). Thus, a strict legal right, if incompatible with the equities of the case, does not necessarily entitle a party to equitable redress. Michner Plating Co v Davis Drilling Co, Inc, 10 Mich App 358, 367; 159 NW2d 366 (1968), lv den 381 Mich 760 (1968). The court may deny equitable relief if such relief, as requested, would cause defendants considerable hardship. Zlydasdyk v Lucas, 29 Mich App 584, 588; 185 NW2d 838 (1971), lv den 384 Mich 821 (1971). A trial court’s decision in an equity action is reviewed de novo and will not be reversed unless the findings are clearly erroneous or the reviewing court is convinced that it would have reached a different result had it occupied the position of the trial court. Vergote v K mart Corp (After Remand), 158 Mich App 96, 103; 404 NW2d 711 (1987).
Reviewing the lower-court record in this man ner, we affirm its decision that plaintiffs ought not be compensated as they desire. According to the court-appointed expert, plaintiffs paid $75,500 for all 211 acres. At the time of the contract, the 171 acres in question had a surface value of $67,200 and mineral rights valued at $41,600. As of the date of the breach, the surface value remained the same, while the mineral rights increased in value to $46,000. Accordingly, if plaintiffs were to receive an abatement from the purchase price in an amount equal to the value of the mineral rights at the time of the breach, they would receive property with a surface value of $67,200, plus the additional acreage for a new purchase price of $29,500. Moreover, the surface value of all the acreage purchased was approximately $35 more per acre than what plaintiffs contracted to pay already. Granting plaintiffs’ request for damages, as the trial court noted, would thus grant plaintiffs a considerable windfall, as well as cause the Crandalls a considerable hardship not intended at the time of the bargain.
Additionally, we consider the conflicting evidence on the factual issue of whether plaintiffs purchased the property for dairy farming and not for mineral development. Although plaintiffs assert that the trial court erred in finding that their sole purpose for buying the land was for dairy farming, our review of the testimony indicates that this finding was not clearly erroneous. We are not persuaded that the damages claimed now by the plaintiffs, to wit, the loss of the mineral rights, were in the contemplation of the parties at the time the contract was made. Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 414; 295 NW2d 50 (1980).
For these reasons, we are not convinced we would have reached a different result had we been in the position of the trial court. The trial court did not err in fashioning a remedy to suit all the equities of the case. Because we affirm the trial court in the Crandalls’ favor in this regard, we find it unnecessary to review their claims concerning mutual mistake and conspiracy to defraud.
III
Finally, plaintiffs argue that the trial court erred in denying them attorney fees incurred in prosecuting this action.
Generally, attorney fees may not be awarded unless expressly authorized by either statute or court rule and we will not reverse a decision to deny attorney fees absent an abuse of discretion. Century Dodge, Inc, v Chrysler Corp, 154 Mich App 537, 544-545; 398 NW2d 1 (1986).
As to the Crandalls, plaintiffs cite no statutory or court-rule authority to support their claim for fees. Instead, they argue that the trial court had inherent authority within its equity jurisdiction to grant such an award. Because we found the remedy granted by the trial court to be equitable, plaintiffs have not demonstrated the inequitable result required to justify the award. Kennedy v Brady, 43 Mich App 760, 765; 204 NW2d 779 (1972).
As to the added defendants, plaintiffs maintain they should have been granted attorney fees under the common-law exception that a present plaintiff may recover fees incurred in a prior action caused by the wrongful conduct of the present defendants. This claim is equally without merit, as the exception is simply not applicable. The action against the Crandalls and the action against the added defendants are one and the same. It makes no difference that they are separate parties who were brought into the litigation at different times. See G & D Co v Durand Milling Co, Inc, 67 Mich App 253, 258; 240 NW2d 765 (1976). Additionally, even assuming arguendo that there was a prior action, it was not caused by the wrongful conduct of the added defendants. Certainly, the added defendants did not cause plaintiffs to bring this action merely by being heirs of Dexter Jones.
Affirmed.
We note in this regard that the fact that Jones’ wife signed the lease agreements proves nothing more than that her signature appeared unnecessarily on those documents.
We find this case to be distinguishable from Wagner, supra, relied on by plaintiffs. There, a panel of this Court held that the recordation of a deed to the surface rights by the buyers of such rights after the original deed was destroyed by a fire did not operate to toll the twenty-year period of the act in favor of the sellers who had reserved the mineral rights. We reasoned that "[i]mplicit in the legislative scheme is the requirement that the owner of the interest in oil and gas take some action to indicate nonabandonment of the interest.” 90 Mich App 765. Mr. Jones, the legal owner of such an interest here, complied with this requirement.
Our disposition of the issue in this manner renders it unnecessary to address plaintiffs’ argument that the actual production by the oil and gas wells on the property was an insufficient act of possession because production was not at commercially productive levels. | [
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Hood, P.J.
This case has been remanded to us by the Michigan Supreme Court for a determination of whether a jury instruction on gross negligence, which we found erroneous, was harmless. 429 Mich 859 (1987).
The facts of this case are set forth in our prior opinion, People v Thinel, 160 Mich App 450; 408 NW2d 474 (1987). Defendant was convicted of involuntary manslaughter, MCL 750.321; MSA 28.553, arising out of a traffic accident. While intoxicated, defendant attempted to make a left turn onto westbound Woodside Street in Royal Oak. His automobile struck Carla Anderson’s automobile head-on, killing Ms. Anderson. A blood alcohol test revealed that defendant’s blood-alcohol level was 0.23 percent at the time.
At trial, the court instructed the jury that it was gross negligence for a person to operate his automobile while under the influence of liquor. We reversed and remanded for a new trial on the ground that the instruction took the determination of gross negligence, an essential element of involuntary manslaughter, away from the jury. Citing People v Reed, 393 Mich 342; 224 NW2d 867 (1975), cert den 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975), we reasoned that defendant had the right to have the jury decide whether all the elements of involuntary manslaughter had been established and that the harmless error rule did not apply to this instructional error. The Supreme Court remanded, stating that the harmless error rule is applicable, under People v Woods, 416 Mich 581; 331 NW2d 707 (1982), reh den 417 Mich 1113 (1983), cert den 462 US 1134; 103 S Ct 3116; 77 L Ed 2d 1370 (1983). In Woods and its companion case, People v Alexander, the Court applied the harmless error rule to instruc tional errors in two different contexts. In Woods, the defendants were charged with first-degree murder. In its instruction on implied malice, the trial court stated:
"Implied malice is where the law draws inferences and conclusions from the act itself. For instance A meets B on the street. A is armed with a revolver. A takes the gun out of his pocket and shoots and kills B without any provocation, without any explanation or justifícation. This is a showing that this is done with malice. And it’s said to be implied malice because the law will imply the existence of malice from the very act itself, from the circumstances under which it was committed.
"The proof of either expressed or implied malice is all the law requires in order to have malice.” [Woods, supra, 595-596.]
The Supreme Court stated that it was error to instruct that the law will imply malice from the unprovoked, inexcusable, unjustifiable killing of another. Woods, supra, 597. The Court then stated:
Given that the instruction was erroneous, the issue becomes whether this error was harmless. The standard applied on appellate review is whether the error was prejudicial. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972).
Under the facts of the immediate case, the defendants were not prejudiced by the erroneous instruction, for the testimony of Willie Lee Lewis, which must have been believed by the jury to find the defendants guilty as accomplices . . ., indicated acts of express malice. No acts supported or allowed the implication of malice; thus the instruction on implied malice was completely superfluous.
A per se harmless error rule cannot be justified by quoting the general rule from cases such as People v Visel, 275 Mich 77, 81; 265 NW 781 (1936), that a "[defendant has a right to have a [properly instructed] jury pass upon the evidence.” Whether an instruction is reversible depends on whether it was prejudicial, and no reasoning or case law suggests that we should now discard that sound approach. [Woods, supra, 597-598, 600-601.]
In Alexander, the defendant was charged with second-degree murder after shooting the victim, her boyfriend, after an argument at the defendant’s house. The defendant claimed the shooting was accidental. The trial court instructed the jury that people are presumed to intend the consequences of their acts. The Supreme Court held that this instruction was error, as it infringed upon the defendant’s right to be found guilty of the crime beyond a reasonable doubt. Id., 612-613. The Court then stated:
We must next determine whether the error was harmless beyond a reasonable doubt. "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt,” by a showing that "the error complained of did not contribute to the verdict obtained.” Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967). When the improper evidence is merely cumulative and the admissible evidence overwhelming, a constitutional error may be deemed harmless. Harrington v California, 395 US 250; 89 S Ct 1726; 23 L Ed 2d 284 (1969).
In the immediate case, the defendant was charged with and convicted of second-degree murder. Intent was an element of the offense. However, this essential element was directly disputed by the defendant, for one of her theories of defense was that the killing was accidental. Because the erroneous instruction allowed the shifting of the prosecutor’s burden on a critical element of the case, we cannot say that it did not contribute to the verdict obtained.
This conclusion is further supported by the lack of overwhelming evidence on the element of intent. [Woods, supra, 613-614.]
The Court went on to state that the evidence supported the defendant’s theory of accident, and that, thus, the error was not harmless as the testimony on the defendant’s intent was conflicting.
In the instant case, we find the instructional error to be harmless because of the overwhelming evidence of defendant’s guilt. Defendant had a blood-alcohol level of 0.23 percent. At the accident site, defendant was staggering and incoherent. His eyes were bloodshot and watery, and he smelled of alcohol. He was verbally abusive to the police officers, and thought he was registering for classes at the police station. He did not know why his car was damaged. The accident reconstruction expert testified that defendant’s car was struck by Ms. Anderson’s vehicle when he made a left turn into her path under circumstances such that she had no time to apply her brakes. This case is not similar to Alexander, in which the crucial issue of intent was hotly disputed by the defendant. Rather, defendant in the instant case admitted drinking before driving and stated only that he thought he had enough distance to turn in front of Ms. Anderson. We feel that the instructional error was not one which likely affected the verdict.
Since we find the instructional error to be harmless, we must consider the other issues raised by defendant which were not addressed in our prior opinion. First, defendant claims that there was insufficient evidence that he committed involuntary manslaughter and that the jury’s verdict was against the great weight of the evidence. The standard of review in a sufficiency claim is whether a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), reh den 407 Mich 1164 (1980), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). People v Ross, 145 Mich App 483, 492; 378 NW2d 517 (1985). The crime of involuntary manslaughter is established if a defendant acts in a grossly negligent, wanton or reckless fashion in causing the death of another. People v Harris, 159 Mich App 401, 406; 406 NW2d 307 (1987). A finding of gross negligence for purposes of involuntary manslaughter requires:
(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.
(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. [People v Orr, 243 Mich 300, 307; 220 NW 777 (1928).] [Harris, supra, 406.]
In People v Allan, 158 Mich App 472; 404 NW2d 266 (1987), this Court found sufficient evidence to convict the defendant of involuntary manslaughter under facts similar to those in the case at bar. The Allan defendant had a blood-alcohol level of 0.15 percent, crossed the center line of the highway, and hit the victim head-on. Allan, supra, 474, 476-477. After a review of all the evidence in the instant case, we likewise find that a reasonable juror could find the elements of involuntary manslaughter established beyond a reasonable doubt.
To preserve the issue of a verdict being against the great weight of the evidence, the losing party must file a motion for a new trial, and the standard of review is whether the court abused its discretion in denying the motion. Ross, supra, 493-494. Defendant in the instant case did file a motion for a new trial, setting forth many claims of error, including a great weight argument. We find that the evidence adduced at trial supports the trial court’s decision that the verdict was not against the great weight of the evidence. Thus, we find no abuse of discretion.
Next, defendant claims that he was denied the effective assistance of counsel because his counsel failed to move for a directed verdict of acquittal on the grounds of insufficient evidence. However, since we have already determined that there was sufficient evidence to convict defendant of involuntary manslaughter, defendant’s claim of ineffective assistance of counsel must fail. People v Viaene, 119 Mich App 690, 693-694; 326 NW2d 607 (1982); People v Chinn, 141 Mich App 92, 97-98; 366 NW2d 83 (1985), lv den 422 Mich 963 (1985).
The next three issues raised by defendant involve sentencing. Defendant was sentenced to seven to fifteen years imprisonment. According to the sentencing transcript, the probation department found defendant to fall within the C-2 sentencing guideline block, which results in a minimum sentence recommendation of thirty-six to eighty-four months, and the court found defendant to fall within the C-l block, resulting in a recommended minimum of twelve to sixty months. The sentencing judge stated:
I have exceeded the sentencing guidelines because of the defendant’s actions in this case and because of his prior record and because of the great tragedy that involved so many people and the Court believes in light of what happened with the department of corrections in any event the defendant will probably be released fairly early.
The judge did not explain what she meant by her comment regarding the Department of Corrections. On appeal, defendant argues that the court was referring to the Prison Overcrowding Emergency Powers Act, MCL 800.71 et seq.; MSA 28.1437(1) et seq., and that this was an improper sentencing consideration, citing People v Fleming, 142 Mich App 119, 125-126; 369 NW2d 499 (1985), aff'd 428 Mich 408; 410 NW2d 266 (1987). In Fleming, this Court stated that it was improper for a sentencing court to use as one of its reasons for departure the Prison Overcrowding Emergency Powers Act. Fleming, supra, 125-126. We do not feel that resentencing is warranted in the instant case. In the instant case, the sentencing court stated it was departing from the guidelines for four reasons, defendant’s actions, defendant’s prior record, the tragedy of the incident, and the Department of Corrections’ policy. First of all, it is unclear what policy the court was referring to. Secondly, the policy was clearly not a primary reason for departure, as it was in Fleming. We believe that defendant’s prior record and the tragic consequences of the incident alone warranted departure.
We also disagree with defendant that his sentence of seven to fifteen years was an abuse of discretion. Defendant had a prior criminal record going back four years, including a conviction for assault. Defendant was on probation at the time of the accident, and admitted he had a substance abuse problem. The sentence does not shock our conscience. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983).
Finally, we disagree with defendant’s contention that the sentencing court stated insufficient reasons for departure. To the extent that the court considered factors already taken into consideration by the guidelines, i.e., defendant’s prior record, this is permitted. People v Ridley, 142 Mich App 129; 369 NW2d 274 (1985).
The judgment of the circuit court is affirmed. | [
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Cynar, J.
Plaintiff appeals as of right from the June 29, 1987, judgment of divorce which awarded custody of the parties’ three minor sons to defendant. We affirm.
Plaintiff and defendant were married on October 2, 1970. Four children were born from the marriage: Laura Jo, born April 5, 1971; Michael W., born June 1, 1972; James L., born May 29, 1980; and Ryan J., born December 25, 1981. Following the deterioration and eventual breakdown of the marriage, on August 21, 1986, plaintiff filed a complaint for divorce. Simultaneously, plaintiff filed a motion for temporary child support and custody. The trial court granted plaintiff’s motion on August 27, 1986, and gave temporary custody of the four children to plaintiff. Defendant was afforded reasonable visitation.
On September 2, 1986, defendant filed objections to the August 27, 1986, order for temporary child custody and support. A brief hearing on defendant’s objections took place on October 13, 1986. After the hearing, the court ordered that the status quo be maintained, without prejudice to either party. In addition, the court ordered the Friend of the Court to conduct a child custody investigation and make a recommendation.
Trial took place on April 10, 1987. At the hearing, Gayle Marie Miller, plaintiff’s sister, testified that defendant was a good father and the children loved him. Miller said that one of the sons, however, "hates” his mother because of the introduction of a third-party male who is involved with plaintiff. Miller also said that although plaintiff has placed her boyfriend ahead of God and the children, nonetheless, plaintiff is a good mother.
Kathleen Cardenas, another of plaintiff’s sisters, also testified that defendant is a good father and a good provider. She said defendant has loved and disciplined the children in a manner consistent with being a good father. Cardenas knew of no reason why defendant’s employment would prohibit him from taking care of the children. Cardenas had never heard defendant swear at the chil dren or see him hit them. The children openly demonstrate their affection for the father by sitting on his lap and giving him hugs.
Cardenas also said that plaintiff was a good mother. However, since plaintiff and the children moved to Kentwood, the children seem unhappy, frustrated and uneasy. Apparently, plaintiffs male friend resides in Kentwood. According to Cardenas, plaintiffs "bad choices,” e.g., her extramarital affair, her decision to divorce defendant, her move to Kentwood, and her violation of the "laws of God and man,” have had a great adverse effect on the children.
Delores Hassevoort, defendant’s sister, testified that defendant has a very good relationship with the children. He is very attentive to their needs. He does not hit the children or swear at them. He takes the children to church every Sunday.
John Rooks, plaintiffs male friend, also testified and said he had been recently divorced. Prior to his divorce, he had been dating plaintiff and was involved with her seven years prior to the trial. During their relationship, Rooks was also married. Rooks said that he loves plaintiff and intends to marry her. Rooks indicated that one of the minor boys attempted to run away from plaintiff and return to defendant father. Finally, Rooks testified that he has a good relationship with the four children. They seem to love him.
A friend of the parties, Vanetta Shumake, testified that plaintiff is a "super mother” and defendant is a "good father.” Shumake said that plaintiff took care of the children. Shumake believed that defendant only sought custody so as to prolong the divorce. She said that the children seemed to love Rooks and were happy with plaintiff.
Timothy C. Vandyke, an employee from the Friend of the Court office, testified regarding his investigation. He noted some confusion in the children, but no more than what he has observed in other children experiencing the divorce of their parents. Vandyke concluded that an established custodial environment existed with plaintiff. However, he did not investigate the Kentwood environment since plaintiff was still living in Zeeland when he conducted the investigation.
Vandyke further found that during the parties’ marriage the children spent most of their time with plaintiff because of defendant’s long work hours. Since plaintiff’s move to Kentwood, the children spend virtually twenty-four hours per day with plaintiff. Defendant, on the other hand, works long hours. When the children visit defendant, he spends most of the time with the boys. Laura stays in the home doing laundry, dishes, or taking a nap. There is a real possibility that Laura would be placed in a parenting role if defendant was awarded custody of the children. Finally, Vandyke indicated that Laura prefers to be with her mother while Michael wants to be with defendant. He believed that the other boys were too young to express a preference.
Plaintiff testified that she did not want defendant to have custody because she primarily cared for the children during the marriage. Plaintiff said that defendant never cared for them and that defendant felt that it was a "woman’s job.” She said that defendant is unable to provide for the emotional needs of the children, especially Laura. She said defendant is very critical of females and has stated that he should only have had boys.
Plaintiff basically raised the children. She registered them for school and helped them with their homework. She attended the parent-teachers’ conferences and athletic events. Plaintiff also ar ranged their piano lessons. Defendant was hardly at home, working sometimes as late as 9:00 p.m. Plaintiff was in charge of the children’s discipline. However, on one occasion, defendant apparently kicked Michael in the back and called him "stupid” because Michael did not return one of defendant’s tools to its proper place.
Finally, defendant testified. He denied all of plaintiff’s allegations of neglect. He did the "father’s share as much as she did as a mother.” Defendant attended some of the children’s sports events. He could not attend the teachers’ conferences since they were scheduled during the day when he was working. He helped the little boys with their prayers. He takes the children to church twice on Sundays. He acknowledged kicking Michael because he was angry. Defendant denied that he belittles the children. Finally, defendant said he loves his children and they love him. He does not believe that his work schedule would interfere with the children’s needs.
After the trial, on April 13, 1987, the court rendered its decision from the bench. The court concluded that an established custodial environment existed with plaintiff only in regards to Laura. No custodial environment existed with the mother regarding the three boys. On balance, the court ruled that it was in the best interests of the boys to place them in the father’s custody. The court incorporated its ruling in a May 1, 1987, order of custody from which plaintiff appeals raising three issues.
First, plaintiff alleges that the trial court failed to find an established custodial environment with her because the court misunderstood the concept of what constitutes an established custodial environment. The court believed that no custodial environment can be established if one of the par ents objects to that environment or does not view it as permanent. Defendant claims that the trial court’s determination was not solely based on how the parents view the custodial environment, but also on how the children viewed the environment as revealed by their conduct, their attitude towards each parent, their parental preference and the permanence of the custodial relationship.
The trial court’s findings in child custody cases are reviewed de novo by this Court. The reviewing court must appraise the evidence apart from the trial court’s findings. Glover v McRipley, 159 Mich App 130, 133; 406 NW2d 246 (1987). However, relief is ultimately governed by § 8 of the Child Custody Act which provides:
To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. [MCL 722.28; MSA 25.312(8).]
The first step in deciding any child custody dispute is to determine if there exists an established custodial environment. Stringer v Vincent, 161 Mich App 429, 434; 411 NW2d 474 (1987). The Child Custody Act requires that a court refrain from changing custody if it would change the established custodial environment, unless presented with clear and convincing evidence that such change is in the best interest of the child. MCL 722.27(l)(c); MSA 25.312(7)(l)(c).
In determining whether an established custodial environment existed, our inquiry begins with ref erence to MCL 722.27(l)(c); MSA 25.312(7)(l)(c), which, in pertinent part, provides:
The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
In Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981), the Michigan Supreme Court reviewed this statutory language:
Such an environment depended instead upon a custodial relationship of a significant duration in which [the child] was provided the parental care, discipline, love, guidance and attention appropriate to his age and individual needs; an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability and permanence.
In Baker, a son, Arthur Lee, was born to the parties. The parties had another child who was a product of the wife’s previous marriage. From the time of Arthur’s birth, August, 1970, until June, 1978, the two children resided with the parents.
In June, 1978, defendant wife took the children to Colorado for a vacation. One month later she returned and told her husband she wanted a divorce. After the divorce complaint was filed, the parties agreed that defendant wife and the children would return to Colorado where they would establish a new home. Two months later, the father appeared unannounced in Colorado and took Arthur back to Michigan. Arthur remained with the plaintiff father’s parents for seven weeks prior to trial. The Supreme Court found no established custodial environment with the father since Arthur did not return to the home or the settled environment from which he was taken in June. Instead, he was living in the home of his paternal grandparents. The Court also noted that whatever community contacts and familiar associations Arthur may have had before June, 1978, were not by their very nature sufficient to preserve that environment. It dissolved and the boy entered into a new custodial relationship with his father alone, in an altered lifestyle and in a new home. The Court concluded by stating that at the time of trial there was no appreciable time during which the child looked to the father alone for "guidance, discipline, the necessities of life and parental comfort” in a stable, settled atmosphere. 411 Mich 581-582.
More recently, this Court has suggested that in order to determine whether an established custodial environment exists, we need to examine the circumstances surrounding the care of the children in the years immediately preceding the divorce trial. See Schwiesow v Schwiesow, 159 Mich App 548, 557; 406 NW2d 878 (1987). In Schwiesow, this Court found an established custodial environment where the children had lived all their lives on their father’s farm. During the parties’ five-year marriage, plaintiff mother was absent from the home for long periods of time attending college. In Breas v Breas, 149 Mich App 103; 385 NW2d 743 (1986), we affirmed a trial court finding that no established custodial environment existed where the mother had physical custody, pending a divorce, but where the father exercised frequent visitation, sought permanent custody and where the environment provided for the child was not permanent. In Curless v Curless, 137 Mich App 673; 357 NW2d 921 (1984), we also affirmed a trial court finding of no established custodial environment where the children were staying with the mother pending a divorce, but the father frequently visited and asked for permanent custody in the divorce proceedings.
In this case, the trial court’s determination that no established custodial environment existed with plaintiff as to the three boys was not error or against the great weight of the evidence. The trial court explained the concept of an established custodial environment as follows:
Second, we would observe that under the statute a custodial environment becomes established both in fact and legally only when or at such time as the affected parents and the children view it as an established custodial environment or treat it as a custodial environment in terms of their conduct and their attitude toward each other and desire that relationship to continue.
We do not find the court’s characterization of the requirements of MCL 722.27(l)(c); MSA 25.312(7)(l)(c) to have been erroneous. In order to discern whether a child naturally looks to the custodian in that environment for guidance, discipline, life’s necessities and parental comfort, the court needs to consider the conduct and attitudes of the parents and children. Thus, the court applied the proper standard in determining the existence or nonexistence of an established custodial environment.
The court’s decision is supported by the evidence. The boys expressed resentment over plaintiffs continued involvement with Rooks. On one occasion, one of the boys ran away to his father. Based on the evidence presented, it appears to this Court that there was no appreciable time during which the boys looked to the mother alone for guidance, discipline, the necessities of life and parental comfort. Hence, we find the trial court’s determination that no established custodial environment existed with plaintiff not to be against the great weight of the evidence.
Secondly, plaintiff alleges that it was error for the trial court not to determine whether the two youngest boys were of sufficient age to express a preference and whether their preference was reasonable and unbiased. We disagree.
It is well settled that, when deciding a custody matter, the trial court must evaluate each of the eleven factors contained in the Child Custody Act and state a conclusion on each, thereby determining the best interests of the children. Arndt v Kasem, 135 Mich App 252, 255; 353 NW2d 497 (1984).
One of the eleven factors a tried judge must consider is the "reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.” MCL 722.23(i); MSA 25.312(3)(i). In the within case, the trial court interviewed the children in camera. There is no record of this interview. Although the trial court did not specifically state on the record that he found Ryan and James to be of a sufficient age to express a preference and that their preference was reasonable and unbiased, the record does support the conclusion that the trial court in fact considered the boys’ preferences since the court so indicated. Hence, we find no error.
Finally, on balance of the eleven factors, we find that the evidence, as a whole, supports the court’s determination that it is in the best interests of the boys to grant custody to their father and the court’s decision was not against the great weight of the evidence.
Affirmed.
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Per Curiam.
Defendant appeals by delayed leave granted the trial court’s order continuing child support abatement. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
i
Defendant and plaintiff were divorced in December 1987. The judgment of divorce granted defendant physical custody of the parties’ son, Kevin, bom April 7, 1986, and required plaintiff to pay $35 a week in child support. In May 1990, the court entered a stipulated order of abatement of child support. The reasons for the abatement order are not clear from the record. In July 1990, defendant qualified for social security disability benefits in the amount of $1,185 a month, which included $617 in social security benefits for Kevin. The defendant also began receiving $432 a month from disability insurance. Defendant testified that despite the order of abatement, plaintiff voluntarily paid child support in the amount of $65 a week until he lost his job in April 1992. In December 1992, plaintiff qualified for social security disability benefits and began receiving benefit payments of $1,080 a month in September 1993. According to defendant, plaintiff made three additional voluntary child support payments totaling $800 after qualifying for social security benefits.
In 1996, defendant’s health worsened and she requested that plaintiff resume voluntary weekly payments of child support, but plaintiff refused to do so. Plaintiff then filed a motion to modify or eliminate his child support obligation. The parties stipulated that the matter be referred to the friend of the court (foc) for a recommendation. After its review, the foc recommended that plaintiff pay $47 a week in child support. Plaintiff sought review de novo of the FOC recommendation, and the trial court held an evidentiary hearing. Both parties agreed that in deciding the question before it, the trial court was required to determine whether § ii.d of the child support guidelines applied where both parties received social security disability benefits.
After hearing testimony from both parties and representatives of the foc, the trial court found that the child support guidelines did not expressly apply to the circumstances presented here where both parents of the minor child received social security disability benefits. The trial court noted that if plaintiff had commenced receiving his disability benefits before defendant had received them, the disability benefits received directly by the minor child would have derived from plaintiff rather than from defendant. The trial court also noted that these direct benefits to the child would have exceeded plaintiff’s support obligation as the noncustodial parent and that, therefore, no support would have been required under the guide lines. The trial court then applied the formula set forth in § II.D, as though plaintiff had commenced receiving disability benefits before defendant, and found that after applying that formula to the facts in this case, and further considering that plaintiff had substantial uninsured medical expenses, as a matter of equity plaintiff would not be required to pay child support. This appeal ensued.
ii
Modification of a child support order is a matter within the trial court’s discretion, and, therefore, we review the trial court’s decision for an abuse of discretion. Burba v Burba (After Remand), 461 Mich 637, 647; 610 NW2d 873 (2000). Whether a trial court operating within the statutory framework of MCL 552.17 has stated adequate reasons for departure from the child support guidelines formula is, however, a question of law that we review de novo. Id.
m
The parents of a minor child have a duty to support that child. Macomb Co Dep’t of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002). In determining the relative levels of support to be provided by each parent, the Legislature has required the application of the formula set forth in the Michigan Child Support Formula Manual. Burba, supra at 643. The Legislature commanded that the formula be based on the needs of the child and the actual resources of each parent, and, as drafted, the formula is based on factors such as parental income, family size, and the children’s ages. Id.; MCL 552.519(3)(a)(vi); Michigan Child Support Formula Manual (West, 2001), p VI. Pursuant to MCL 552.17, a support order may be modified by a court “as the circumstances of the parents and the benefit of the children shall require.” Burba, supra at 643. The court may deviate from the formula only if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate. Ghidotti v Barber, 459 Mich 189, 198; 586 NW2d 883 (1998).
Section n.D of the Child Support Formula Manual states:
When children receive dependent benefits from a Social Security Retirement, Survivor’s or Disability Insurance Program based on the earnings record of the noncustodial parent, those benefits should not be considered as income to the custodial parent. However, those benefits should be considered, for the purpose of making a child support determination, according to the following instructions:
Step 1: Determine the noncustodial and the custodial parents’ net weekly income.
Step 2: Determine the normal support amount from the appropriate schedule.
Step 3: Determine the weekly amount of Social Security benefits attributable to the noncustodial parent received by the child(ren) and subtract from the appropriate amount of support calculated based on the parents’ incomes.
If the grant received by the child(ren) from Social Security is greater than the normal support recommendation, no support should be recommended. If the grant received by the child(ren) from Social Security is less than the normal support recommendation, the difference between the grant amount and the support recommendation should be made up by the support.
Example: Adjust support for noncustodial social security benefits paid for minor children.
Step 1: Determine the noncustodial and the custodial parents’ net weekly incomes.
The noncustodial parent earns $400 net per week.
The custodial parent earns $200 net per week.
Step 2: For the five minor children, determine the normal support amount from the five or more children schedule.
$214 support per week for five children.
Step 3: Determine the weekly amount of Social Security benefits attributable to the noncustodial parent received by the child(ren).
The benefits received for the children on behalf of the noncustodial parent are $430 per month.
$430 (per month) 4.345 (weeks per month) = $99 per week
and subtract from the appropriate amount of support calculated based on the parent’s incomes.
$214 support per week - $99 social security per week = $115 per week
All other Social Security Retirement, Survivor’s or Disability Insurance Benefits received by the children shall be considered income of the custodial parent. (For Supplemental Security Income (ssi), see Means Tested Sources of Income on page 6)[.]
We find that the trial court correctly concluded that § n.D of the guidelines did not apply to the facts presented here. The guidelines do not account for the unique circumstance in which both parents receive social security disability payments and, because the custodial parent was first to receive her benefits, the child receives direct disability benefits based on the earnings record of the custodial parent rather than the noncustodial parent. Instead, the guidelines only account for a circumstance in which the child receives disability benefits based on the earnings record of the noncustodial parent. Because the circumstances presented in this case are not accounted for in the guidelines manual, the trial court correctly found that it would be appropriate to deviate from the child support formula. Ghidotti, supra.
We further find that the trial court did not abuse its discretion in using the guidelines formula to calculate child support as though plaintiff had first received disability benefits and that the minor child’s benefits derived from plaintiff’s earning records, thus determining that plaintiff had no support obligation. As we noted above, a support order may be modified by a court “as the circumstances of the parents and the benefit of the children shall require.” Burba, supra at 643. Here, the trial court correctly found that had the minor child’s benefits derived from plaintiff’s disability, plaintiff would have no support obligation under the guidelines. The trial court also correctly identified the fact that the minor child derives a greater disability benefit based on defendant’s earnings record than he would have under plaintiff’s earnings record. Therefore, considering the needs of the child and the health circumstances of plaintiff, the trial court did not abuse its discretion in treating the guidelines as though they applied to these facts.
Defendant further contends that the trial court’s deviation from the guidelines formula was based on income disparity between the parties and therefore was an abuse of discretion. We disagree. Defendant correctly asserts that income disparity between the parties does not render the application of the child support formula unjust or inappropriate. Burba, supra at 648-649. However, the trial court did not consider income disparity as a factor, but instead determined that because the child’s needs were appropriately met by the disability benefits received and derived from defendant, and because plaintiffs health and lack of insurance required him to incur substantial medical expenses without assistance, application of the guidelines in this unique circumstance was unjust and inappropriate. An abuse of discretion occurs if the results of the trial court’s decision are so grossly violative of fact and logic that they evidence a perversity of will, a defiance of judgment, or the exercise of passion or bias. Mixon v Mixon, 237 Mich App 159, 163; 602 NW2d 406 (1999). Far from an abuse of discretion, the trial court carefully fashioned a result intended to comply with the directives of the child support formula while appropriately recognizing the needs of the child and the unusual circumstances of the parents.
Affirmed.
Defendant did not actually receive a disability check until 1992, but benefits were retroactive to July 1, 1990. | [
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Murphy, J.
Defendant St. Clair County Road Commission appeals by leave granted the trial court’s order denying defendant’s motion in limine to preclude application of the five percent damage reduction cap authorized by MCL 257.710e(6) in circumstances where the injured parties were allegedly not wearing safety belts at the time of the accident. We affirm.
Under the controlling language of Klinke v Mitsubishi Motors Corp, 458 Mich 582; 581 NW2d 272 (1998), and principles governing analysis of issues under the Title-Object Clause, Const 1963, art 4, § 24, any comparative negligence of plaintiffs, if established at trial, is subject to application of the statutory five percent damage reduction cap. In this action involving the alleged liability of defendant road commission under the highway exception to governmental immunity, MCL 691.1402, application of the cap under subsection 710e(6) does not violate the Michigan Constitution’s Title-Object Clause.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs allege that Patrick Mann, Sr., and Patrick Mann, Jr., suffered various injuries after their vehicle “slipped” off the edge of the roadway and onto the shoulder. Plaintiffs represent that Maim, Sr., had difficulty returning the vehicle to the roadway because of a “significant shoulder drop-off.” As a consequence, Mann, Sr., lost control of the vehicle and it eventually collided with a tree on the side of the roadway. Thereafter, plaintiffs filed an action against defendant, alleging in part that defendant’s negligent maintenance of the shoulder of the roadway proximately caused plaintiffs’ injuries.
Defendant filed an affirmative defense alleging plaintiffs’ comparative negligence based on their failure to wear safety belts. Defendant moved in limine for a ruling that the statutory provision, MCL 257.710e(6), does not apply in this highway liability case. The circuit court disagreed, ruling that the statutory cap of five percent applies and declining to extend the rationale of Klinke, supra. Defendant’s interlocutory application for leave to appeal was granted, and the circuit court has stayed the trial pending a decision from this Court.
H. ANALYSIS
On appeal, defendant argues that the trial court erred in concluding that the five percent statutory cap on the reduction of damages for failure to wear safety belts applies to a claim against a road commission for failure to maintain a roadway in reasonable repair. We disagree.
A. THE “SEAT BELT DEFENSE’
This case turns on the interpretation of the safety belt law, Klinke, and the Title-Object Clause, Const 1963, art 4, § 24. Some perspective on the history of the “seat belt defense” is helpful.
For years, an injured party’s failure to mitigate or eliminate the risk of injury by using safety belts was not considered a valid defense under the common law. Hierta v Gen Motors Corp, 147 Mich App 274, 278-280; 382 NW2d 765 (1985), remanded for reconsideration on other grounds 429 Mich 887 (1987); Schmitzer v Misener-Bennett Ford, Inc, 135 Mich App 350, 359-360; 354 NW2d 336 (1984); Romankewiz v Black, 16 Mich App 119, 127; 167 NW2d 606 (1969). At the time, the law in Michigan did not require a driver or passengers to use safety belts, so the court declined to impose such a duty and create a common-law seat belt defense. Id. at 127.
1. LEGISLATION
In 1984, the federal Department of Transportation announced that passive restraint systems (such as air bags) would be required beginning with 1990 model year vehicles unless states representing two-thirds of the nation’s population enacted and enforced mandatory safety belt laws. Senate Analysis, SB 6, January 15, 1985; Casenotes: Lowe v Estate Motors Ltd.—The Michigan Supreme Court says yes to the seat belt defense, 5 Cooley L R 159, 163 (1988); 49 Fed Reg 28962 (July 17, 1984).
In response, the Legislature in 1985 enacted MCL 257.710e(3) to generally require the. use of. safety belts. In another subsection, MCL 257. 710e(6), the Legislature allowed defendants to use a seat belt defense as evidence of negligence, but the Legislature capped the amount of comparative negligence to five percent. Thus, for the first time, defendants could argue that a plaintiffs failure to use safety belts contributed to the plaintiff’s injuries, but this failure to mitigate could result in a reduction of the recovery by no more than five percent. At the time, any defense for failure to use safety belts was legislatively created. If the statutory defense were not applied, a defendant would be deprived of any seat belt defense whatsoever. The purpose for the five percent cap was “to protect plaintiffs against [a] drastic reduction in damage awards.” Thompson v Fitzpatrick, 199 Mich App 5, 8; 501 NW2d 172 (1993).
2. CHANGE IN COMMON LAW
Shortly after these statutes were adopted, the Supreme Court decided to create a common-law seat belt defense as well. Lowe v Estate Motors Ltd, 428 Mich 439; 410 NW2d 706 (1987) (products liability action against manufacturer and distributor of automobile). This was occasioned at least in part by the abolition of contributory negligence in favor of the less harsh system of comparative negligence. Id. at 459-460 (Riley, C.J.). The effect of Lowe is that the five percent cap can be increased under the common law if the statute does not apply. Thus, if the statutory cap does not apply, a defendant would be free to seek a more substantial deduction for a plaintiff’s comparative negligence for failing to wear safety belts.
The Supreme Court in Lowe addressed the possible effect of the safety belt statute on comparative negligence and reduction of damages even though the parties had not briefed the issue. Id. at 485 (Levin, J., dissenting). In part v of Chief Justice Riley’s separate opinion, she wrote:
Before addressing the second issue, we pause to acknowledge the recent enactment of the mandatory seat belt usage legislation, MCL 257.710e; MSA 9.2410(5), and to respond to the positions expressed in the dissenting opinions as they relate to that legislation. That statute, which took effect on July 1, 1985, requires drivers and front-seat passengers of motor vehicles operated in this state to wear seat belts, making the failure to use them unlawful. Section five provides, furthermore, that failure to use a seat belt in violation of the statute may be considered evidence of negligence, also providing that such negligence shall not reduce a plaintiff’s recovery by more than five percent. The statutory seat belt usage requirement and its accompanying provisions are inapplicable in the instant case because: (1) the accident occurred prior to the statute’s effective date, (2) plaintiff was a rear-seat passenger to whom the statute, by its terms, would not have applied, and (3) the accident occurred beyond the territorial boundaries of this state where it would not have been contrary to this statute for any passenger not to have used a seat belt. [Id. at 462-463.]
This section of the opinion received four votes. See id. at 476. Although Lowe was a products liability case, the Supreme Court did not include a violation of the Title-Object Clause in its list of reasons the safety belt statute would not apply. Nonetheless, because this section of the opinion was dicta, it did not bind the Supreme Court in Klinke.
3. KLINKE-. EXCEPTION TO THE STATUTE
In 1998, the Supreme Court considered the case of Klinke, in which an automobile manufacturer argued that it was not bound by the five percent cap in a products liability case. Klinke, supra at 589. In a plurality decision, the Supreme Court agreed with the manufacturer’s position.
The Supreme Court wrote three opinions. The lead opinion, written by Justice Weaver and joined by Justice Taylor, interpreted the state constitution’s Title-Object Clause to mean that the vehicle code’s safety belt section did not affect the civil liability of manufacturers. Id. at 590-591. The title of the vehicle code stated that it was in part an act “to provide for civil liability of owners and operators of vehicles . . . .” The title could not be used to extend civil lia bility to manufacturers not mentioned in the title. Klinke, supra at 589-591.
Justice Boyle penned the second opinion, joined by Chief Justice Mallett and Justice Brickley. In it, she wrote that the terms of art used in MCL 257.710e(6)— namely, its statement that it applies in cases “ ‘arising out of the ownership, maintenance, or operation of a motor vehicle’ ” — tracked the language of the no-fault act and showed a legislative intent to apply the statute only to no-fault cases. Klinke, supra at 594. Justice Boyle also agreed with Justice Weaver’s position regarding the Title-Object Clause:
However, the Vehicle Code, designed to regulate the liability of “owners and operators of vehicles,”[ ] was not intended to regulate the liability of a manufacturer in a products liability action by subjecting the manufacturer to liability for an owner’s or operator’s negligent operation of a motor vehicle. The dissent would extend the safety belt statute beyond the context of the owner’s or operator’s lia bility and require the manufacturer to pay for losses the jury has attributed to the conduct of the driver. Because the Vehicle Code does not contemplate regulation of manufacturer liability, such an extension of its scope would be error. [Id. at 594, n 3.]
Two justices therefore supported limiting the safety belt statute to the dimensions found in the title to the vehicle code and three supported hmiting it to no-fault actions. All five agreed, however, that the title of the vehicle code did not contemplate regulation of manufacturer liability. Klinke is binding authority because a majority agreed on this line of reasoning. Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976); People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973).
B. ROAD COMMISSION LIABILITY
1. TITLE-OBJECT CLAUSE ANALYSIS
We find that there is a distinction between a products liability action and an action brought against a governmental unit under the highway exception to governmental immunity in the context of determining whether MCL 257.710e(6) is applicable. The distinction involves relevant language in the title of the vehicle code that supports a finding that the damage reduction cap of § 710e does not violate the Title-Object Clause if applied in the case before us today. The title of the vehicle code states, in part, that it is an act “to provide for the regulation and use of streets and highways.” Justice Weaver suggested that this language would provide for application of the cap in actions other than those against owners and operators of vehicles. Klinke, supra at 591, n 7. We agree and conclude that such a reading is proper pursuant to the guiding principles concerning title-object analysis and that the referenced phrase in the title allows application of the damage reduction cap against defendant.
The decisive question here is whether applying subsection 710e(6) to the liability of governmental units for defective highways results in the subsection exceeding the scope of the title of the vehicle code. See Klinke, supra at 590. With regard to the liability of manufacturers in a products liability action, Justice Weaver concluded in Klinke, id. at 591:
As a matter of statutory interpretation, we must not, and under constitutional principles we cannot, apply statutes in the motor vehicle code to cases involving the civil liability of manufacturers. Accordingly, § 710e’s cap on the reduction for comparative negligence for failure to wear a seat belt, which is part of the motor vehicle code, does not apply in the present action, which involves the liability of a manufacturer.
As noted above, Justice Weaver and Justice Boyle focused on the language contained in the title of the vehicle code, which expressed that it was an act “to provide for civil liability of owners and operators of vehicles . . . .” Klinke, supra at 589, 594, n 3. At first glance, it would appear that this language would support a finding that the title, and therefore subsection 710e(6), was not meant to cover the liability of governmental units under the highway exception to governmental immunity because the title does not directly speak of the civil liability of governmental units. However, the failure of the Legislature to particularly state that the act provides for “civil liability” should not defeat application of the damage reduction cap, where a governmental unit fails to properly maintain a highway over which it exercises control regarding the highway’s use and regulation.
In Justice Kelly’s dissent in Klinke, she stated:
The seat belt statute affects the liability of manufacturers, but does not mention manufacturers in its title. It does not follow that its application to the civil liability of manufacturers is unconstitutional. If that were the case, would it not be unconstitutional to apply the motor vehicle code to the civil liability of pedestrians, bicyclists, passengers, and the state? [Id. at 603.]
In direct response to Justice Kelly’s comments regarding the civil liability of those not directly mentioned in the title of the vehicle code, Justice Weaver stated:
The dissent incorrectly suggests that our holding (that application of the motor vehicle code to products liability actions would violate the Title-Object Clause) compels a conclusion that applying the code to pedestrians, bicyclists, passengers, or the state would similarly be unconstitutional. This critique ignores the fact that the title of the code includes provisions that address these examples, e.g., the title states that it provides for “regulation and use of streets and highways” and for the “regulation of certain vehicles operated upon the public highways of this state. ” [Id. at 591, n 7 (emphasis added).]
This language indicates that Justice Weaver would not require the title to specifically provide for “civil liability” before application of subsection 710e(6), where there is reference in the title to a topic that necessarily encompasses the subject of a legal action.
We do not rest our position solely on the statements made by Justice Weaver in Klinke, but also on the principles guiding judicial analysis of a constitutional challenge under the Title-Object Clause.
“[A]ll possible presumptions should be afforded to find constitutionality.” Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 464; 208 NW2d 469 (1973). The Title-Object Clause, Const 1963, art 4, § 24, provides, in part, that “[n]o law shall embrace more than one object, which shall be expressed in its title.” In Pohutski v City of Allen Park, 465 Mich 675, 691-692; 641 NW2d 219 (2002), our Supreme Court, discussing the general nature of the Title-Object Clause, stated:
This constitutional provision requires that (1) a law must not embrace more than one object, and (2) the object of the law must be expressed in its title. This constitutional limitation ensures that legislators and the public receive proper notice of legislative content and prevents deceit and subterfuge. The goal of the clause is notice, not restriction of legislation.
The “object” of a law is defined as its general purpose or aim. The “one object” provision must be construed reasonably, not in so narrow or technical a manner that the legislative intent is frustrated. We should not invalidate legislation simply because it contains more than one means of attaining its primary object; “[hjowever, if the act contains ‘subjects diverse in their nature, and having no necessary connection,’ ” it violates the Title-Object Clause. The act may include all matters germane to its object, as well as all provisions that directly relate to, carry out, and implement the principal object. The statute “may authorize the doing of all things which are in furtherance of the general purpose of the Act without violating the ‘one object’ limitation of art 4, § 24.” Finally, the constitutional requirement is not that the title refer to every detail of the act; rather, “[i]t is sufficient that ‘the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general puipose[.]’ ” [Citations omitted; alterations in original.]
The Legislature can make the title of an act as restrictive as it desires and may sometimes frame the title so as to preclude many matters being included in the act that might have been embraced in one enactment with the matters indicated by the title, but that must now be excluded because the title has been made unnecessarily restrictive. Klinke, supra at 590, quoting In re Hauck, 70 Mich 396, 403; 38 NW 269 (1888). Courts are without authority to enlarge the scope of a title, and the constitution has made the title the conclusive index to the intent of the Legislature with regard to what shall have operation. Klinke, supra at 590, citing Hauck, supra at 403.
Here, there is a natural correlation or connection between governmental liability for failing to maintain a highway in reasonable repair and the Michigan Vehicle Code, which governs the operation of vehicles on those same public highways. No such correlation with the vehicle code arises in the context of a products liability action that can conceivably cover anything from a defective motor vehicle to a defective toaster. If the title to the vehicle code allows the Legislature to enact statutes addressing the regulation and use of streets and highways within the code, it would be illogical to conclude that the scope of the title did not necessarily include legislative authority to enact statutes directing limits on liability and comparative negligence, where streets and highways are not kept in reasonable repair.
The title of the vehicle code provides sufficient notice that statutes found within the code may affect the liability of governmental units for defective highways, where the title enunciates that its purpose is to provide for the regulation and use of streets and highways. Although the title does not specifically reference the “civil liability” of governmental units, the general purpose or aim clearly encompasses that matter, and any other reading would be so narrow and technical as to frustrate the legislative intent. It is proper to interpret subsection 710e(6) as being applicable in the context of the case at bar because the statute directly relates to, carries out, and implements the object of the title in regard to the regulation and use of streets and highways. The title is not framed in such a manner so as to preclude application of subsection 710e(6) to the liability of road commissions. Moreover, as our Supreme Court stated in Pohutski, supra at 692, the title need not refer to every detail, and it is sufficient if a legislative enactment contains matters germane, auxiliaiy, or incidental to the general purpose stated in the title. On the bases of the language in Pohutski and Justice Weaver’s comments, we cannot agree with defendant that application of the comparative negligence cap is unconstitutional because the vehicle code fails to specifically mention the liability of road commissions. Reading subsection 710e(6) as being applicable to an action against a governmental unit under the highway exception to gov emmental immunity does not result in subsection 710e(6) exceeding the scope of the vehicle code’s title. There is no violation of the Title-Object Clause if the statutory five percent damage reduction cap is applied in the case at bar.
2. STATUTORY INTERPRETATION OF MCL 257.710e(6)
Defendant mischaracterizes the holding in Klinke by arguing that the Supreme Court focused on the language of subsection 710e(6), which provides a cap on “damages arising out of the ownership, maintenance, or operation of a motor vehicle.” Defendant maintains that the Klinke Court, in analyzing subsection 710e(6), examined the defendant’s activity and whether it involved the ownership, maintenance, or operation of a motor vehicle. As we ruled above, the only binding principles emanating from Klinke concern the Title-Object Clause and the language in the title of the vehicle code in relation to a products liability case, not interpretation of subsection 710e(6). Nevertheless, we will address the issue concerning the proper interpretation of subsection 710e(6) because the matter is raised in defendant’s brief.
Questions regarding statutory interpretation are reviewed de novo. In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). Recently our Supreme Court in Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002), reaffirmed the following rules concerning statutory interpretation:
An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. People v Wager, 460 Mich 118, 123, n 7; 594 NW2d 487 (1999). To do so, we begin with an examination of the language of the statute. Wickens v Oakwood, Healthcare System, 465 Mich 53, 60; 631 NW2d 686 (2001). If the statute’s language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999).
When a statute is clear and unambiguous, judicial construction or interpretation is unnecessary and precluded. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). Only if judicial construction is necessary must this Court determine and give effect to the Legislature’s intent. Id.
Subsection 710e(6) does not provide that “liability” must arise out of the operation of a motor vehicle, but rather that “damages” must so arise, and subsection 710e(6) does not provide that damages must arise out of the operation of a particular party’s motor vehicle, but rather only that the damages arise out of the operation of a motor vehicle. Therefore, the clear language of subsection 710e(6) required only that plaintiffs suffered damages arising out of the operation of a motor vehicle as alleged here. If plaintiffs had not been operating a motor vehicle, there would not have been an accident, injuries, and damages. The operation of a motor vehicle was a necessary component giving rise to plaintiffs’ cause of action, and there was a nexus between their damages and the operation of a motor vehicle.
Even if construction were required, the Legislature clearly intended such a result regardless of the fact that the potentially hable road commission was not operating a motor vehicle at the time of the accident. In Jonas v Carissimi, 219 Mich App 546, 552; 557 NW2d 148 (1996), this Court stated:
In Ullery v Sobie, 196 Mich App 76, 80; 492 NW2d 739 (1992), this Court, while upholding the constitutionality of the five-percent cap, determined that its purpose was “to prevent the injured party from recovering substantially less based solely on the failure to wear a safety belt.” Similarly, this Court in Thompson v Fitzpatrick, 199 Mich App 5, 8; 501 NW2d 172 (1993), held that the five-percent cap was “intended by the Legislature to protect plaintiffs against drastic reduction in damage awards.”
The Senate Bill Analysis regarding supporting arguments for the 1985 amendment of MCL 257.710e indicated that “seat belt use saves lives and reduces the number and severity of injuries. Experience has shown that mandatory seat belt laws produce a significant and lasting increase in the use of seat belts, even when enforcement is relaxed.” Senate Analysis, SB 6, February 26, 1985. It is abundantly clear that the Legislature intended to encourage all drivers to wear their seat belts for purposes of public safety and to limit attacks on damage awards based on comparative negligence where a defendant is negligent. We fail to see how the Legislature’s intent would be furthered in any conceivable manner by limiting application of the damage reduction cap to situations involving a defendant’s liability for operating a motor vehicle. It would be nonsensical to conclude that the Legislature intended to protect drivers from the horrific results of vehicle accidents where safety belts are not worn, but only where at least two motor vehicles are involved, i.e., where the occupants of a vehicle are injured through the negligence of a driver of another vehicle. Such a reading is contrary to the legislative intent and inconsistent with the plain language of the statute.
Affirmed.
Hood, P.J., concurred.
Subsection 710e(6) provides that the “[f]allure to wear a safety belt in violation of this section may be considered evidence of negligence and may reduce the recovery for damages arising out of the ownership, main tenance, or operation of a motor vehicle. However, such negligence shall not reduce the recovery for damages by more than 5%.”
Defendant sought to avoid application of MCL 257.710e(6) presumably so that defendant could present testimony concerning the degree plaintiffs’ failure to use safety belts exacerbated their injuries and perhaps obtain a greater percentage reduction in damages that a jury would award.
Subsection 2(1) provides, in part:
Except as otherwise provided in section 2a, each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from (he governmental agency.
Plaintiff Gaye Mann is next friend of her son, Patrick Mann, Jr., and has a loss of consortium claim.
Plaintiff Patrick Mann, Sr., testified during Ms deposition that he and Ms son were wearing safety belts.
MCL 257.710e.
The term “seat belt defense” dates back to a time when the only belts in a car were lap belts (seat belts). Now, a three-point harness is used (lap and shoulder belts), so the term “safety belt” is generally used to describe the feature. MCL 257.710e uses this modem terminology. The legal expression, however, has remained the “seat belt defense.”
An early draft of the bill, HB 4203, would have required seat belt usage but prohibited the seat belt defense. Schmitzer, supra at 358, n 5.
Placek v Sterling Hts, 405 Mich 638, 650; 275 NW2d 511 (1979). Coincidentally, Placek was a “seat belt defense” case when it first came to the Court of Appeals. See Placek v Sterling Hts, 52 Mich App 619; 217 NW2d 900 (1974). The Court of Appeals found that the defendant’s reference to the plaintiff’s failure to wear a safety belt was irrelevant and prejudicial and remanded for a new trial. Id. at 622. When Placek was appealed after the second trial, contributory negligence became the issue, leading to our Supreme Court’s historic decision to adopt comparative negligence in Michigan. 405 Mich 650.
The full title of the act is:
An act to provide for the registration, titling, sale, transfer, and regulation of certain vehicles operated upon the public highways of this state or any other place open to the general public or generally accessible to motor vehicles and distressed vehicles; to provide for the licensing of dealers; to provide for the examination, licensing, and control of operators and chauffeurs; to provide for the giving of proof of financial responsibility and security by owners and operators of vehicles; to provide for the imposition, levy, and collection of specific taxes on vehicles, and the levy and collection of sales and use taxes, license fees, and permit fees; to provide for the regulation and use of streets and highways; to create certain funds; to provide penalties and sanctions for a violation of this act; to provide for civil liability of owners and operators of vehicles and service of process on residents and nonresidents; to provide for the levy of certain assessments; to provide for the enforcement of this act; to provide for the creation of and to prescribe the powers and duties of certain state and local agencies; to impose liability upon the state or local agencies; to repeal all other acts or parts of acts inconsistent with this act or contrary to this act; and to repeal certain parts of this act on a specific, date.
This quoted language comes from the title of the vehicle code as relied on by Justice Weaver, not the text of the safety belt statute.
Interestingly, the Klinke holding would apparently support application of subsection 710e(6) to an action against a governmental unit under the motor vehicle exception to governmental immunity pursuant to MCL 691.1405.
With regard to the dissent’s argument that definitional conflicts exist between the vehicle code and MCL 691.1401 concerning the definition of “highway,” we fail to see how this has any effect on the title-object analysis. If a plaintiff is not entitled to file suit on the basis of governmental immunity under the highway exception because of the limiting language defining a “highway” under MCL 691.1401(e), there is no need to reach subsection 710e(6). If a plaintiff can maintain the suit under the narrower highway definition found in MCL 691.1401(e), the broader highway definition found in the vehicle code, MCL 257.20, would not bar application of subsection 710e(6). Even if a governmental unit could be liable under the immunity statutes and application of the “highway” definition in the vehicle code resulted in a plaintiff’s not being required to wear a seatbelt pursuant to § 710e, the effect would simply be the inability of the plaintiff to utilize the comparative negligence cap. See Lowe, supra. We do not agree that in applying the cap, courts would be confronted with the dilemma of deciding whether to apply the definitions found in the governmental immunity statutes or those found in the vehicle code. The definitions in MCL 691.1401 would apply to analyses of issues regarding interpretation of the governmental immunity statutes, and the definitions in the vehicle code would apply to analyses of issues regarding interpretation of the statutes found in the code. Moreover, the binding holding in Klinke did not rely in any part on definitional conflicts.
The dissent also argues that the Legislature obviously intended that the liability of governmental units be controlled by the governmental immunity statutes, not the broader vehicle code. We respectfully disagree because the liability of governmental units can be affected or controlled by statutes other than the immunity statutes. For example, statutes concerning periods of limitation, collateral source benefits, MCL 600.6303, and allocation of fault, MCL 600.6304, can all affect and control a governmental unit’s liability despite the fact that those provisions are not included as part of the governmental immunity statutes. If other statutes directly conflicted with the immunity statutes in any meaningful manner, we would agree that the more specific immunity statutes control, but there is no such conflict with regard to subsection 710e(6).
The Michigan Constitution provides that political power is inherent in the people and that government “is instituted for their equal benefit, security and protection.” Const 1963, art 1, § 1. Our constitution further provides that “[t]he legislature shall pass suitable laws for the protection and promotion of the public health.” Const 1963, art 4, § 51. With these principles in mind, we cannot conceive of any rationale for the Legislature not to have been equally concerned with vehicles involved in accidents where the vehicles strike animals, pedestrians, bicyclists, and inanimate objects, or simply where a vehicle caroms out of control. Statutes should be construed in a manner to prevent absurd results. Camden v Kaufman, 240 Mich App 389, 395; 613 NW2d 335 (2000). We recognize that the absurd result method of statutory interpretation plays no role when the statutory language is clear and unambiguous. People v McIntire, 461 Mich 147, 155-159; 599 NW2d 102 (1999). However, in this part of our analysis, we are merely assuming that judicial construction is necessary because of supposed ambiguities; therefore, the absurd results doctrine would be applicable. We reemphasize our position that the statute, as written, is clear and unambiguous and applies to the case before us today. | [
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Cooper, P.J.
Defendant appeals as of right from the trial court’s imposition of prejudgment interest, MCL 600.6013; no-fault penalty interest, MCL 500.3142; and attorney fees, MCL 500.3148. We affirm in part, reverse in part, and remand.
I. FACTUAL BACKGROUND
In November 1995, plaintiff, a resident of England, was involved in an accident during a visit to Michigan. Plaintiff sustained serious injuries when she was struck by an automobile while crossing a street. As a result of these injuries, plaintiff was subsequently required to undergo the amputation of her right leg above the knee. Plaintiff was fitted for a prosthetic leg but encountered complications, mandating the use of a wheelchair. Defendant, plaintiff’s insurer, compensated her for the majority of expenses arising out of the accident. However, a dispute arose over her request for home modifications.
On December 2, 1997, plaintiff’s husband submitted a letter to defendant, with an occupational therapist’s report, detailing the need for modifications to plaintiff’s home. In the letter, he noted that he had contacted a local architect to prepare a proposal and an estimate for the necessary modifications. Plaintiff paid the architect $815 for the proposal. The architect’s proposal, bill, and estimate were forwarded to defendant in March 1999. According to plaintiff’s architect, it would cost approximately $250,000, including the value added tax of 17.5 percent, to make the necessary modifications.
A few months after receiving plaintiff’s proposal, defendant sent its own occupational therapist to assess plaintiff’s situation. On the basis of its therapist’s findings, defendant claimed that the necessary modifications could be accomplished for substantially less money. Defendant denied plaintiff’s reimbursement request for the architect’s bill and failed to provide any money toward the home modifications she requested. Defendant conceded the necessity of home modifications but maintained that plaintiff’s requests were unreasonable. At the time of trial, plaintiff’s home remained unmodified.
The jury determined that plaintiff incurred allowable expenses as a result of the accident in the amount of $815 for the architect’s bill. According to the jury, defendant received reasonable proof of this expense on March 2, 1999. The jury further found that modifications to plaintiff’s home were reasonably necessary and that the amount of the allowable expense was $220,500, plus the value added tax. The jury stated that reasonable proof was supplied to defendant for the home modifications on December 2, 1997. On January 5, 2001, the trial court entered a judgment against defendant pursuant to the jury’s verdict. The trial court awarded plaintiff $815 for the architect’s bill and $259,087.50 for the home modifications. In addition, the trial court awarded plaintiff attorney fees and costs and assessed no-fault penalty interest from April 1, 1999, for the architectural services and the future home modifications. The trial court further assessed judgment interest against defendant on the architect’s bill, the no-fault interest on the architect’s bill, the future home modifications, the no-fault attorney fees and costs, and the no-fault interest on the home modifications. The judgment interest began to accrue November 27, 1997.
II. A HISTORICAL EXAMINATION OF MICHIGAN’S NO-FAULT ACT
To resolve the issues presented in this case, we must first discuss the history and purpose of the no-fault act. It has been held that “[t]he overall goal of the no-fault insurance system is to provide accident victims with assured, adequate, and prompt repara tions at the lowest cost to both the individuals and the no-fault system.” Williams v AAA Michigan, 250 Mich App 249, 257; 646 NW2d 476 (2002).
Our Supreme Court upheld the constitutionality of the no-fault act in Shavers v Attorney Gen, 402 Mich 554, 621-622; 267 NW2d 72 (1978), noting the Legislature’s rationale for abolishing tort remedies for personal injuries arising out of motor vehicle accidents. Specifically, the Supreme Court cited the Legislature’s view that a change was necessary in part to reduce the heavy burden placed on the court system. The Supreme Court further noted that one of the operational deficiencies that the Legislature endeavored to change with the no-fault act was the fact that the former tort system “discriminated, in terms of recovery, against the uneducated and those persons on a low income scale.” Id. at 622. The Supreme Court determined that the no-fault act’s requirement of prompt payment would ease delays in the court system by decreasing the number of motor vehicle personal injury tort suits. Id. at 622-623. Additionally, the Supreme Court suggested that timely payments under the no-fault act would help to protect the disadvantaged or lower income individuals by relieving some of the pressures on them “to settle serious claims prematurely and for less than an equitable amount.” Id. at 623.
The avowed overall goals and purpose of the no-fault act are defeated if no-fault insurers are allowed to unreasonably deny benefits, thereby requiring their insureds to seek recourse in the legal system. See Lakeland Neurocare Ctrs v State Farm Mut Automobile Ins Co, 250 Mich App 35, 42-43; 645 NW2d 59 (2002). To encourage no-fault insurers to promptly pay an injured party, the Legislature enacted penalty provisions allowing for the payment of attorney fees on unreasonably denied claims and interest on overdue payments. Univ of Mich Regents v State Farm Mut Ins Co, 250 Mich App 719, 739; 650 NW2d 129 (2002).
III. STANDARD OF REVIEW
The interpretation and application of statutes are questions of law that are reviewed de novo on appeal. Lincoln v Gen Motors Corp, 461 Mich 483, 489-490; 607 NW2d 73 (2000). The primary goal when construing a statute is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). When determining the Legislature’s intent, this Court must first look to the statute’s specific language. Gauntlett v Auto-Owners Ins Co, 242 Mich App 172, 177; 617 NW2d 735 (2000). Judicial construction is unnecessary if the meaning of the language is clear. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). However, judicial construction is appropriate when reasonable minds can differ regarding the statute’s meaning. Gauntlett, supra at 177. Terms contained in the no-fault act are read “ ‘in the light of its legislative history and in the context of the no-fault act as a whole.’ ” Id. at 179, quoting Gobler v Auto-Owners Ins Co, 428 Mich 51, 61; 404 NW2d 199 (1987). Further, courts should not abandon common sense when construing a statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). Given the remedial nature of the no-fault act, courts must liberally construe its provisions in favor of the persons who are its intended beneficiaries. Spencer v Citizens Ins Co, 239 Mich App 291, 300-301; 608 NW2d 113 (2000).
IV. DECLARATORY JUDGMENT VERSUS MONEY JUDGMENT
Defendant initially characterizes the judgment entered by the trial court as a money judgment, rather than a declaratory judgment for plaintiff’s future home modifications, and by implication indicates that a trial court may not establish an escrow account to enforce its judgment. However, defendant fails to explain or offer any authority for its position that a trial court is without the authority to establish such an account. See Chapdelaine v Sochocki, 247 Mich App 167, 174; 635 NW2d 339 (2001). A declaratory judgment is unique in that it is neither completely legal nor equitable in nature. See Coffee-Rich, Inc v Dep’t of Agriculture, 1 Mich App 225; 135 NW2d 594 (1965); see also 9 Michigan Pleading & Practice, Declaratory Judgments, § 69.03, p 797.
In Michigan, courts of record have the authority to declare the rights of an interested party seeking a declaratory judgment. MCR 2.605(A)(1). “Declaratory judgments have the force and effect of, and are reviewable as, final judgments.” MCR 2.605(E). Damages may also be granted after the entry of a declaratory judgment. Durant v Michigan, 456 Mich 175, 208-209; 566 NW2d 272 (1997); see, generally, 20 Michigan Law & Practice (2d ed), Judgment, § 86, p 93. However, such supplemental relief requires reasonable notice and a hearing. MCR 2.605(F). Conversely, a money judgment simply requires the immediate payment of a sum of money as opposed to directing an act to be completed. In re Forfeiture of $176,598, 465 Mich 382, 386; 633 NW2d 367 (2001).
In this case, the trial court entered the following judgment with regard to plaintiffs future home modifications:
It is further ordered and adjudged that Plaintiff recover future home modifications as awarded by the jury in the amount of $220,500.00 plus value added tax of 17.5% for a total future home modification award in the amount of $259,087.50 is awarded, [sic] such amount to be overseen by the Court as the expenses are incurred under the no-fault law.
In Manley v DAIIE, 425 Mich 140; 388 NW2d 216 (1986), the Supreme Court ruled that a trial court may enter a declaratory judgment for a specific amount of money when future damages are involved. However, it is important to note that the future damages awarded in Manley, involved reimbursement for future nursing care. Such an award was truly a declaration of future rights because the hourly rate for nurses aides and the amount of nursing care necessary fluctuates and is an ongoing expense.
In the instant case, the term “declaratory,” as used on the verdict form, is really a misnomer. Unlike Manley, this case involves a sufficiently definitive one-time expense that a jury deemed reasonable and necessary. Furthermore, it is important to note that declaratory relief is not considered exclusive and that additional monetary relief may be appropriate where the parties had notice and a hearing. See Durant, supra at 208-209. A jury trial was held in this case to determine what constituted a reasonable amount for home modifications. Both defendant and plaintiff had an opportunity to argue the viability of plaintiffs plan during the trial and defendant has not contested the jury’s verdict. See id. at 209-210. As pointed out in Durant, supra at 211, “[t]o deny monetary relief here might provide incentive for protracted litigation in the future” given defendant’s refusal to provide plaintiff any home modifications since her initial request in 1997. Thus, we find that the trial court appropriately ordered defendant to pay the total amount of home modification benefits to the trial court for distribution.
V. no-fault attorney fees
Defendant next argues that the trial court clearly erred in awarding plaintiff attorney fees under MCL 500.3148(1). Specifically, defendant claims that there was a bona fide factual dispute regarding the architectural plans and that the personal protection insurance benefits for the home modifications were not overdue under the no-fault act. We disagree.
An insurer is responsible under Michigan’s no-fault act for all personal protection insurance benefits arising out of “allowable expenses.” MCL 500.3107(1)(a). Allowable expenses consist of “all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(1)(a). In Nasser v Auto Club Ins Ass’n, 435 Mich 33, 50; 457 NW2d 637 (1990), our Supreme Court instructed that an item is an “allowable expense” under the no-fault act if: (1) the charge is reasonable; (2) the expense is reasonably necessary; and (3) the expense is incurred.
If litigation results from an insurer’s unreasonable refusal to pay benefits for an allowable expense, attorney fees are awardable. Specifically, MCL 500.3148(1) provides:
An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.
Personal protection insurance benefits are considered overdue if “not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained.” MCL 500.3142(2); see also Beach v State Farm Mut Automobile Ins Co, 216 Mich App 612, 629; 550 NW2d 580 (1996) (holding that the term “overdue” must be similarly construed for purposes of determining the applicability of no-fault attorney fees and no-fault interest).
Absent clear error, this Court will not reverse a trial court’s finding regarding an unreasonable refusal or delay in paying benefits. Attard v Citizens Ins Co of America, 237 Mich App 311, 316-317; 602 NW2d 633 (1999). Clear error exists when a reviewing court is left with the definite and firm conviction on the entire record that a mistake was made. Christiansen v Gerrish Twp, 239 Mich App 380, 387; 608 NW2d 83 (2000). However, “[i]f the insurer’s refusal or delay in payment is the product of a legitimate question of statutory construction, constitutional law, or a bona fide factual uncertainty, the refusal or delay will not be found unreasonable under MCL 500.3148(1) . . . .” Beach, supra at 629. In such a situation, the insurer must overcome a rebuttable presumption of unrea sonableness and justify its delay or refusal of benefits. Id.
A. ARCHITECTURAL SERVICES
Defendant questions whether the “proposed architectural drawings” amounted to an allowable expense because they lacked approval and provided no necessary service or accommodation to plaintiff.
The record indicates that plaintiff hired an architect to determine the feasibility and cost of the home modifications that were recommended and deemed necessary by her occupational therapist. It is uncontested that plaintiff paid the architect for these services. Because the architect’s plans and estimate sought to implement home modifications that were deemed by a jury to be reasonably necessary for plaintiff’s care, we find that the architectural services were an allowable expense chargeable to defendant. See MCL 500.3107(l)(a).
To the extent defendant further claims that it legitimately refused payment of the architect’s bill because of a bone fide factual dispute, we disagree. Plaintiff notified defendant of her need for home modifications in December 1997, and informed defendant that she was obtaining the services of an architect for that purpose. Defendant received the architect’s proposal and bill in March 1999, and it was not until several months later that defendant attempted to verify or assess plaintiff’s needs. Defendant never questioned plaintiff’s intention to hire an architect. Indeed, defendant notes in its appellate brief that the plans created by plaintiff’s architect could be utilized in forming a compromise plan. It is apparent that defendant’s dis pute lies with the extent of the modifications recommended and not with plaintiff’s consultation with an architect. Thus, we find no clear error in the trial court’s award of attorney fees.
B. HOME MODIFICATIONS
In addition, we find that plaintiff is also entitled to attorney fees as a result of defendant’s failure, despite reasonable proof of need, to make necessary modifications to plaintiff’s home. Defendant does not contest the reasonableness of its refusal to modify plaintiff’s home. Rather, defendant argues that personal protection insurance benefits were not due in this case until plaintiff became liable for the home modifications. In fact, defendant agreed that some home modifications were necessary and the record shows that plaintiff was without full access to her home. In spite of this, defendant never presented a plan definitively expressing the modifications it would approve or proffered any money for home modifications to plaintiff during the three years before trial. The jury found that reasonable proof of the need for these modifications was supplied to defendant on December 2, 1997, with a viable proposal and cost estimate on March 2, 1999. Consequently, there is proof to support the trial court’s determination that defendant’s delay was unreasonable and that the home modifications were overdue.
1. MANLEY AND FUTURE EXPENSES
Our Supreme Court has found that attorney fees are permissible in no-fault cases involving declaratory judgments for future expenses. Manley, supra at 160. The trial court in that case entered a declaratory judgment for future nursing services and awarded the plaintiff attorney fees under the no-fault act. Id. at 147. The Supreme Court in Manley upheld the award of attorney fees because the insurer unreasonably refused to pay for nursing services and the insured’s attorney was forced to litigate the claim to establish the insurer’s obligation to pay. Id. at 160. In holding that declaratory judgments providing for necessary and allowable future expenses were permissible, the Supreme Court stated that it would be “neither a workable nor a sound rule of law” to permit an insurer to relitigate previously decided issues when an insured seeks payment for expenses incurred after the date of trial. Id. at 157.
Similarly, in the case at bar, plaintiff was forced to seek legal action to establish defendant’s obligation to pay for necessary home modifications. Defendant failed to provide any assistance to plaintiff. Absent independent financial means, plaintiff was unable to commence or obligate herself for these modifications. The record reveals a lack of any realistic finalized plan that defendant was prepared to implement at the time of trial. Consequently, the trial court properly decided that plaintiff was also entitled to attorney fees because defendant’s delay in proffering a finalized alternative plan or payment was unreasonable.
2. THE PURPOSE OF MICHIGAN’S NO-FAULT ACT
It is important to remember that the no-fault act was created in part to ease the burden on the court system and provide a manner in which all parties would have a fair opportunity to litigate legitimate no-fault claims. See Shavers, supra at 622-623; Williams, supra at 257. Defendant essentially asks this Court to accept the premise that an insured must be able to. pay for or have the economic ability to obligate oneself for all benefits before they become due. However, this argument would result in economic disparity wherein only the wealthy or those with a healthy credit line would be able to pursue a dispute with their insurance company over benefits. Such a construction would condone the very injustices that the Legislature enacted the no-fault act to prevent.
In terms of home modifications, defendant’s position would preempt insureds from receiving potentially costly accommodations unless they could afford the modifications themselves or find someone willing to complete the job without any assurance of payment. Indeed, in the instant case the home modifications that the jury found to be reasonably necessary totaled nearly a quarter million dollars. To require plaintiff to pay for these modifications before defendant could become hable would be inequitable given the remedial nature of the no-fault act. See Spencer, supra at 300-301. For example, Williams, supra, involved extensive home modifications that ultimately led to the no-fault insurer’s decision to provide its insured with a new home to accommodate his needs. There was no indication in Williams that the insurer would require its insured to purchase the home before it would provide benefits. Id. It would be illogical to deny plaintiff’s request for attorney fees when defendant’s refusal to pay for reasonable modifications served to prevent plaintiff from receiving the reasonable and necessary accommodations for her disability.
The jury determined that defendant received reasonable proof of the need for modifications. At the time of trial, defendant had not paid for any of plaintiff’s home modifications despite its acknowledgement that some modifications were in fact necessary. Even if defendant disagreed with respect to the extent of the modifications, it had a duty to pay for those costs it did not dispute. See Butt v DAIIE, 129 Mich App 211, 220-221; 341 NW2d 474 (1983). Thus, defendant’s complete refusal to pay for any modifications since December 1997 was unreasonable and ultimately forced plaintiff into litigation.
To find that defendant was not liable for attorney fees, when it was necessary for plaintiff to litigate in order to obtain the necessary home modification benefits, would defeat the purpose of the no-fault act. Access to the court system would be limited to those who had the financial wherewithal to prepay or obligate themselves for modifications or those who could afford to retain the services of an attorney. We award attorney fees in no-fault cases so that insurers promptly pay injured parties for reasonable claims. Univ of Mich Regents, supra at 739. On the basis of the record presented, we find no clear error in the trial court’s determination that the home modifications were overdue and that attorney fees were awardable for defendant’s inaction.
VI. NO-FAULT INTEREST
Defendant contends that it was similarly exempt from paying no-fault interest on the home modifications. Essentially, defendant argues that any benefits it owes plaintiff for home modifications are not “overdue” under the no-fault act because they have yet to be incurred.
Again, we disagree with defendant’s contention that an insured has to become personally indebted in order to receive benefits under the no-fault system. The same principles that we discussed in determining defendant’s liability for attorney fees based on the home modification award applies to no-fault interest. “Unlike prejudgment interest, which is intended to compensate a party for the delay in receiving its damages, no-fault interest is intended to penalize an insurer that is dilatory in paying a claim.” Attard, supra at 319. Thus, for the same reasons discussed in awarding plaintiff attorney fees for defendant’s failure to timely provide reasonable home modifications, we determine that the trial court’s decision to award plaintiff no-fault interest on this ground was also proper.
VH. JUDGMENT INTEREST
We agree, however, with defendant that plaintiff is not entitled to judgment interest on the future home modifications. Under MCL 600.6013(1):
Interest is allowed on a money judgment recovered in a civil action, as provided in this section. However, for complaints filed on or after October 1, 1986, interest is not allowed on future damages from the date of filing the complaint to the date of entry of the judgment. As used in this subsection, “future damages” means that term as defined in section 6301. [Emphasis added.]
According to MCL 600.6301, future damages are those damages that arise from a personal injury that the jury determines will accrue after the damage findings are made.
We note that defendant does not contest the trial court’s award of judgment interest on the architect’s fee and we find that this award was proper. We further find that the trial court properly granted judgment interest on the no-fault interest awarded to plaintiff for the architectural services. Moreover, the trial court’s award of judgment interest on the attorney fees was also appropriate.
In summary, we find the trial court’s award to be equitable and consistent with the no-fault act’s goal of promoting judicial economy and equal access to the courts. To deny plaintiff the relief granted in this opinion would merely reward defendant for its failure to timely provide plaintiff her rightful benefits for several years.
We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Jansen, J., concurred.
The figures used in this opinion have been converted from English pound sterling to American dollars, using the conversion rate stipulated by the parties at trial.
The amount for the home modifications includes the 17.5 percent value added tax.
We note that the parties stipulated at trial that $69,300 is a reasonable amount for attorney fees in this case. While defendant claims that the full amount of attorney fees cannot be assessed on its failure to timely reimburse plaintiff solely for the architect’s bill of $815, it fails to cite any authority to support this position. See Davenport v Grosse Pointe Farms Bd of Zoning Appeals, 210 Mich App 400, 405; 534 NW2d 143 (1995). | [
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J. H. Gillis, P. J.
On March 5, 1970 the City of Inkster and the Wayne County Road Commission entered into an agreement to share the cost of widening and reconstructing that section of Mid dlebelt Road which runs through Inkster. Middle-belt is a county primary road which extends north and south through Wayne County. Prior to reconstruction, Middlebelt Road within Inkster was two lanes wide, asphalt paved without curbs or gutters. It handled not only local traffic, but also heavy through traffic, due to its proximity to Wayne County Metropolitan Airport. However, a bottleneck existed at Inkster’s north and south boundaries because Middlebelt was four lanes immediately to the north and five lanes immediately to the south.
On July 7, 1971, the Inkster city council, by resolution, determined the necessity for the improvement of Middlebelt and further resolved that the City’s 40% share of the estimated $604,000 reconstruction cost should be financed in part by special assessment. The resolution also described the area to be assessed, Special Assessment District No. 169.
The special assessment district consists primarily of nonabutting residential property directly east and west of Middlebelt Road. It extends to a depth of approximately 1500 feet on each side of the road. The outermost east-west limits of the district correspond with the halfway point between Middlebelt and the next major north-south street. The residential properties directly abutting Middlebelt were not included in the assessment district. The city assessor concluded that under Michigan law a municipality cannot assess abutting property for road widenings. His opinion, based on two Michigan Supreme Court decisions, Fluckey v City of Plymouth, 358 Mich 447; 100 NW2d 486 (1960); and Brill v Grand Rapids, 383 Mich 216; 174 NW2d 832 (1970), is not challenged by plain tiff. Therefore, we do not have to decide whether Fluckey and Brill would have, on the facts of this case, prohibited the assessment of abutting property owners.
By resolution of August 2, 1971 the city council gave its final approval to the procedure and formula adopted by the assessor to figure the amount of the special assessment. The, assessor determined that the project would cost the city $30.50 per frontal foot. He then adopted a "unit of benefit” method of assessment, the dollar value of a unit being $30.50. He determined that each interior lot received 3.6 units of benefit, the assessment per lot, therefore, being $109.80. The "unit of benefit” plan was applied to all lots, improved or unimproved, vacant or otherwise, irrespective of the value of the structure thereon. However, if there was a two or four-family structure on the lot, the units of benefit were doubled to 7.2.
On September 1, 1971, plaintiff Willie Johnson, representing the class of all interior property owners in district No. 169, filed this lawsuit in Wayne County Circuit Court challenging, on a number of grounds, the validity of these special assessments. The circuit court upheld the actions of the City of Inkster, and plaintiff appeals.
I
Does the reconstruction of Middlebelt Road specially beneñt the property within the assessment district?
In order for a special assessment to be valid, there must be a benefit conferred on the assessed property "over and above that conferred upon the community itself’. Fluckey v City of Plymouth, supra, 453; 100 NW2d 489. See Carmichael v Beverly Hills, 30 Mich App 176; 186 NW2d 29 (1971). Fluckey, 453-454; 100 NW2d 489, quoting from 2 Cooley, Taxation (3d Ed), pp 1153, 1154, said:
"'The general levy-of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it. The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay.’ ”
Where a municipality has the power to levy special assessments, it does not have to confine its assessments to abutting property owners, but can assess any land within its borders which derives a special benefit from the improvements. 14 Mc-Quillin, Municipal Corporations (3d Ed), § 38.72, p 205; 16 Callaghan’s Michigan Civil Jurisprudence, Local Improvements and Assessments, § 51, pp 247-248; see Crampton v Royal Oak, 362 Mich 503; 108 NW2d 16 (1961). Specifically, it has been held that where a street is widened or paved, nonabut ting property may be assessed. Goodrich v City of Detroit, 123 Mich 559; 82 NW 255 (1900); Roberts v Evanston, 218 Ill 296; 75 NE 923 (1905); Jacksonville v Padgett, 413 Ill 189; 108 NE2d 460 (1952).
The trial court held, based on extensive expert testimony, that the interior properties were specially benefited by the reconstruction of Middlebelt Road. Specifically, the trial judge found that the nonabutting lots benefited because of:
"(a) Improved access to Middlebelt Road.
"(b) Improved movement of through traffic on Middle-belt.
"(c) Elimination of the deteriorated condition of Middlebelt.
"(d) Elimination of open ditches and swales which occasionally contain stagnant water.
"(e) Elimination of hazardous traffic conditions.
"(f) Stabilization of the neighborhood from further deterioration.
"(g) Enhancement of property values for potential buyers.”
Our review is de novo. Ordinarily, we "will not reverse the lower court where there is evidence and testimony to support the finding of the lower court unless justice demands, or the evidence clearly preponderates the other way”. Osius v Dingell, 375 Mich 605, 611; 134 NW2d 657 (1965); see Wabeke v City of Holland, 54 Mich App 215; 220 NW2d 756 (1974).
We have reviewed the record carefully. We think that the evidence supports the holding and factual findings of the trial court. While it is not necessary to summarize all the testimony, we do think it is important to mention the testimony which most persuasively supports the actions of the City of Inkster.
The new Middlebelt Road is five lanes wide, two lanes for traffic in each direction and a center left-turn lane. By adding three lanes and eliminating the bottleneck situation, access to the interior properties has been substantially improved. This is important for a number of reasons. First, policemen and firemen can reach their destinations considerably faster. We think this benefit, which is not shared by the city at large, is in itself sufficient to justify this assessment.
Second, traffic surveys indicated that the residents of each interior lot make an average of three automobile trips per day from their homes, and that Middlebelt is used for a portion of many of these trips. This also proves that a safer and faster-moving Middlebelt is used for a portion of many of these trips. This also proves that a Middlebelt Road is more of a benefit to the residents of district # 169 than it is to the rest of the city.
Third, two appraisers testified that facilities for ingress and egress to property affect the value of that property. Each testified that the reconstruction of Middlebelt Road improved the access to the interior properties and that the reconstruction enhanced the value of these lots in an amount at least equal to the assessment.
Plaintiff contends that the primary reason for the reconstruction of the road was to improve access to Wayne County Metropolitan Airport. He argues that any benefit to the assessed properties is purely incidental. This may be true, but it’s irrelevant. If property receives a special benefit from an improvement, it is subject to assessment regardless of the reason or motive for the improvement.
II
Was the method used to determine the perime ters of the special assessment district arbitrary, capricious and unreasonable?
The east-west boundaries of the assessment district correspond with the halfway point between Middlebelt and the next major city street. These perimeters were based on the city assessor’s determination that those residents located closer to Middlebelt than to the next major street would specially benefit from the reconstruction because they were the ones who used Middlebelt. Those residents located beyond the perimeters would naturally use, not Middlebelt, but the closer through street for ingress and egress from their neighborhoods. Crampton v Royal Oak, 362 Mich 503, 514-515; 108 NW2d 16, 21 (1961), said:
"It is further contended by appellants that the special assessment district is not properly constituted. It may be stated generally that the district as created by action of the city commission embraces lands within reasonable proximity to the contemplated improvement. There is nothing in the record before us to suggest fraud or mistake, or that the action of the commission was arbitrary or capricious. Invariably when a special assessment district is created, as in the instant case, opinions may differ as to its proper extent and its inclusion, or noninclusion, of specific property therein. The creating of the district was within the legislative powers of the commission, and the presumption of validity attaches to the action taken. We find no basis for a conclusion that the legislative discretion vested in the commission was abused. City of Detroit v Weil, 180 Mich 593; 147 NW 550 (1914).”
We hold that the City of Inkster did not abuse its discretion in establishing the boundaries of the special assessment district.
Ill
Was the formula used to determine the amount of the special assessment arbitrary, capricious and unreasonable?
Earlier in this opinion we briefly described the "unit of benefit” formula used by the city assessor for determining the amount of assessment. At trial he described the process in much greater detail, and testified that he consulted with various experts concerning his assessment methods. A municipal financial consultant testified that the unit of benefit formula used by the city was a "proper and equitable” method of assessment.
The City of Inkster charter, § 12.4, provides in part that "all special assessments levied shall be in proportion to the benefits derived from the improvement”. See Panfil v Detroit, 246 Mich 149; 224 NW 616 (1929); Wood v Village of Rockwood, 328 Mich 507; 44 NW2d 163 (1950). The burden is on the property owner to prove that the amount of the assessment is not proportionate to the benefit received. Thompson v Dearborn, 349 Mich 685; 85 NW2d 122 (1957). Plaintiff has failed to meet that burden, and we hold that the amount of the assessment was proper.
IV
Did the City of Inkster violate its charter and special assessment ordinance, thereby invalidating the assessment?
The contract between the Board of Wayne County Road Commissioners (hereinafter referred to as the "Board”) and the City of Inkster is essentially a construction contract. The Board contracted in the role of a general contractor responsible for the reconstruction of Middlebelt Road.
The Inkster City charter, § 13.1(e) provides:
"No public work, or improvement shall be com menced, nor any contract therefor be let or made, until a valid specific appropriation to pay the cost thereof shall have been made by the Council from funds on hand and legally available for such purpose, or until a tax or assessment shall have been levied or bonds authorized and sold to pay the cost and expense thereof.”
Similarly, the special assessment ordinance No. 114, § 25 provides:
"No contract for the construction of any improvement shall be let nor shall the construction of any such improvement be begun until money to pay the cost thereof has been provided for in the manner in this Chapter required; nor shall any contract be but otherwise than as provided.”
The contract was entered into March 5, 1970. On August 2, 1971, the special assessment district was approved by the city council. The reconstruction of Middlebelt Road began on August 15, 1971. And on September 7, 1971 the council approved the sale of motor vehicle highway bonds to provide for the additional financing of the project.
First, plaintiff contends that since the contract was made before financing arrangements had been completed, the contract violates the charter and the ordinance. He further contends that since the contract is invalid the assessments are also invalid. Plaintiff relies on Smith v Garden City, 372 Mich 189; 125 NW2d 269 (1963). We disagree with plaintiff’s argument.
First, Smith, supra, is not controlling authority. Its factual setting is inapposite with the facts here. Most importantly, in Smith the construction (sewers and water mains) was completed three years before the attempted special assessment.
Second, performance of the contract is made conditional on successful financing by the city. The contract specifies:
"The Board shall, upon the approval of the plans and specifications by the City and subsequent to the successful issue of bond issues by the Board and the City, which applications for these bond issues refer to the construction of this project as part of the proposed use of the bond issue, proceed toward the construction of the project, for which the total estimated cost is Six Hundred Four Thousand Dollars ($604,000.00).”
Relying on this provision the trial court held that the contract "substantially complies with § 13(e) * * * of the Inkster charter because it contains a clause which reasonably indicates the intentions of the parties to place the construction of the project contingent upon the raising of the proper revenue”. On the particular facts of this case, we agree with the trial court that this contract substantially complies with the intent of the charter and ordinance provisions.
While this is a construction contract, we think it is different in kind from the typical construction contract envisioned by the charter and ordinance. Normally a contract for a municipal improvement involves only one municipality. For example, if Inkster wanted to improve a street wholly within its jurisdiction, it would contract for the work with a private construction firm. The purpose of charter and ordinance is to insure that in these typical situations the financing arrangements will be complete prior to the city’s assumption of a contractual obligation.
However, here the road to be improved was a county road running through a city. Agreement had to be reached between two municipalities. In this situation the only logical course for Inkster to follow was to enter into a contract before it attempted to secure financing. It could not make financial plans until it knew its share of the proposed project’s cost. We think the City of Inkster acted responsibly here. By making the contract conditional on successful financing, it did all it could reasonably be expected to do to comply with the spirit and purpose of its charter and ordinance provisions. The spirit and purpose of a statute should prevail over its strict letter. Smith v City Commission of Grand Rapids, 281 Mich 235; 274 NW 776 (1937); Aikens v Department of Conservation, 387 Mich 495; 198 NW2d 304 (1972).
Second, plaintiff contends that the charter and ordinance provisions were violated because construction began prior to the city council’s approval of the sale of the bonds, and that, therefore, the special assessment is invalid. We disagree.
The contract provides that the Board will not begin construction until after "the successful issue of bond issues” by the city. By exacting this promise from the Board, Inkster did all it could do to insure that construction would not begin until after financing arrangements were completed. The Board, by commencing construction prior to the city’s approval of the bond issue, breached the contract. If Inkster had not secured financing, it could have asserted the breach of this contract provision as a defense to an action by the Board against it for construction costs. However, this breach does not support plaintiff’s claim that the city’s special assessment of their property is invalid.
Plaintiff’s other allegations of error are without merit. We affirm the trial court’s holding. No costs, a public question being involved.
All concurred.
The estimated cost was later increased to $620,000.
His original determination of $33.55 per frontal foot was reduced to $30.50 after public hearings. | [
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] |
Per Curiam.
Plaintiff appeals as of right from summary disposition granted to defendants under MCR 2.116(C)(8) and (10). Plaintiff’s claims are for wrongful discharge and tortious interference with an employment contract. The circuit court granted summary disposition on the basis that plaintiff’s oral employment contract was terminable at will rather than for just cause.
Plaintiff was employed by Clinton Oakland Employees Credit Union, the predecessor of defendant Hospital and Health Services Credit Union. The credit union’s main office was in Pontiac and a branch office was in Ypsilanti. Plaintiff worked at the Pontiac office under the direct supervision of defendant Dowling. Plaintiff was hired in 1967 and was told in 1985 that she was being transferred to the position of branch manager at the Ypsilanti office. Plaintiff’s employment was terminated by Dowling after she refused to report for work at the Ypsilanti office.
Plaintiff’s complaint alleged that the credit union’s practices and policies gave her a reasonable expectation that she would only be terminated for just cause. However, plaintiff’s deposition disclosed that the employee policy manual contained no termination procedures. In addition, plaintiff could not recall being informed that she would be terminated only for just cause. Plaintiff said she felt that she would not be terminated without just cause.
In opposition to the motion for summary disposition, plaintiff filed an affidavit saying she believed and expected that she would only be terminated for just cause. Plaintiff said her belief was supported by the credit union’s past practice of terminating employees only for just cause. According to answers to interrogatories, three other employees had been terminated within the last five years. Two employees were terminated for lack of work and one employee was terminated for unsatisfactory job performance.
The claim against the credit union is based on wrongful discharge. Summary disposition was granted under MCR 2.116(0(10). A motion for summary disposition under MCR 2.116(0(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions and documentary evidence available to it. The nonmoving party is given the benefit of every reasonable doubt. The motion must not be granted unless the court is satisfied that it is impossible to support the claim at trial because of some defi ciency which cannot be overcome. Friske v Jasinski Builders, Inc, 156 Mich App 468; 402 NW2d 42 (1986).
Generally, an employee hired under an oral contract for an indefinite term may be terminated at any time and for no reason. Valentine v General American Credit, Inc, 420 Mich 256; 362 NW2d 628 (1984). However, Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), established that a contract of employment for an indefinite term may provide that it is not terminable at will. Such a provision may become part of the contract either by express oral or written agreement or "as a result of an employee’s legitimate expectations grounded in an employer’s policy statements.” Toussaint, supra, p 598. Established procedures, although not reduced to writing, may also demonstrate a right to continued employment absent cause for termination. Toussaint, supra, pp 618-619. However, a mere subjective expectancy of continued employment on the part of an employee will not justify an expectation of termination for just cause only. Dzierwa v Michigan Oil Co, 152 Mich App 281; 393 NW2d 610 (1986).
In the present case, plaintiff had only a subjective expectation that her employment would be terminated only for cause. The employee policy manual contained no policy statement or procedures governing the termination of employees. Plaintiff’s expectation of continued employment was similar to that of the plaintiff in Dzierwa. Plaintiff merely felt that her employment would not be terminated unless there was just cause. In addition, the mere fact that three employees were terminated during a five-year period for reasons that may imply just cause is not enough to create a genuine issue of fact as to whether plaintiff had an expectation that her employment would be terminated for just cause only. Summary disposition was properly granted to the credit union.
The claim against Dowling was based on tortious interference with an employment contract. Summary disposition was granted under MCR 2.116(C)(8) for failure to state a claim upon which relief may be granted. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a complaint. Summary disposition should not be granted unless the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recover. Graves v City of Lansing, 149 Mich App 359; 385 NW2d 785 (1986).
A prima facie case of tortious interference with contractual relations requires a showing that (1) a contract existed, (2) the contract was breached, (3) the defendant instigated the breach, and (4) defendant did so without justification. Safie Enterprises, Inc v Nationwide Mutual Fire Ins Co, 146 Mich App 483; 381 NW2d 747 (1985). Plaintiff cannot show that a contract had been breached because her employment contract was terminable at will. Plaintiff’s complaint alleged breach of contract, but there was no factual support for plaintiff’s claim that her contract of employment was terminable only for just cause. Therefore, plaintiff’s claim against Dowling should have been dismissed under MCR 2.116(0(10) rather than MCR 2.116(C)(8). However, this Court will affirm the trial court when it reaches the right result for the wrong reason. Lucas v Michigan Employment Security Comm, 132 Mich App 232; 347 NW2d 25 (1984), lv den 419 Mich 903 (1984). Summary disposition was properly granted to defendant Dowling.
Affirmed. | [
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M. J. Kelly, P.J.
Defendant pled nolo contendere to a charge of involuntary manslaughter, MCL 750.321; MSA 28.553. He was subsequently sentenced on February 4, 1985, to eight to fifteen years imprisonment. Defendant appeals as of right. We affirm.
On April 6, 1984, defendant was the driver of one of two cars involved in a head-on collision. As a result of the accident four persons died and defendant was subsequently charged with four counts of involuntary manslaughter. A jury trial was requested.
On October 16, 1984, defendant moved to suppress statements made by him to the arresting officers. Defendant also moved to suppress the results of a blood test that revealed defendant’s blood-alcohol level.
On November 8, 1984, both motions were denied. On the next day, November 9, 1984, defendant pled nolo contendere to the amended information’s charge of a single count of involuntary manslaughter. Defendant’s plea was accepted and he was subsequently sentenced to a minimum of eight years and a maximum of fifteen years imprisonment.
. Despite his plea of no contest, defendant argues his conviction should be reversed and the case remanded or, in the alternative, the charges dismissed. The first basis for this claim is his contention that the trial court erred in failing to suppress evidence of the results of a blood test and the statements made by defendant prior to his being given Miranda warnings. See Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 644; 10 ALR3d 974 (1966). As stated previously, defendant brought timely motions to suppress both the test results and the statements. Subsequent to a pretrial Walker hearing, these motions were denied. See People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
In People v New, 427 Mich 482; 398 NW2d 358 (1986), defendant New, who had pled no contest, claimed the trial court erred in failing to suppress statements made by him to the police. In a consolidated case, defendant Perez, who had pled guilty, claimed the trial court erred in denying his motion to suppress evidence of narcotics.
The Supreme Court held:
[A] defendant, after pleading guilty, may raise on appeal only those defenses and rights which would preclude the state from obtaining a valid conviction against the defendant. Such rights and defenses "reach beyond the factual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial . . . .” [People v White, 411 Mich 366, 398; 308 NW2d 128 (1981)] (Moody, J., concurring in part and dissenting in part). In such cases, the state has no legitimate interest in securing a conviction. On the other hand, where the defense or right asserted by defendant relates solely to the capacity of the state to prove defendant’s factual guilt, it is subsumed by defendant’s guilty plea. [People v New, supra at 491.]
New also held that, since in pleading nolo contendere a defendant indicates he does not contest his factual guilt, "claims or defenses which relate to the issue of factual guilt are waived by such a plea.” Id. at 493.
The convictions of the defendants in New rested upon their admissions in open court and not upon illegally seized narcotics or involuntary statements. By pleading to the charges, the issue of factual guilt became irrelevant, and the state did not have the burden to produce "sufficient evidence to prove defendants’ guilt beyond a reasonable doubt.” Id. at 494.
Likewise, by pleading no contest, defendant’s conviction here rested upon his admission in open court. When he pled to the charge of involuntary manslaughter his factual guilt became irrelevant. Therefore, issues of whether evidence of his blood-alcohol level was admissible or whether his statements made prior to Miranda warnings were admissible became irrelevant. The state did not have to produce sufficient evidence to prove his guilt beyond a reasonable doubt.
Defendant next argues that his plea was entered without full knowledge of the nature of the accusation and without knowingingly and voluntarily giving up his right to a trial. This claim is without merit. Defendant merely makes a general claim and has not pointed to any specific instance where the trial court erred in accepting his plea, and we can find none.
The trial court, before accepting defendant’s plea, fully informed defendant of the effect of his plea and of the fact that conviction on the charged offense carried a maximum term of fifteen years imprisonment. The trial court also ascertained defendant’s age, education, and the fact that defendant, at the time of the plea, was not on any drugs or medication. The trial court then meticulously informed defendant of the rights he was waiving by pleading no contest.
Upon review of the entire plea hearing we find that defendant was fully informed of the rights he was waiving and of the potential consequences of that decision.
Affirmed.
Cynar, J., concurred in the result only. | [
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Per Curiam.
Paragon Transport, Inc., appeals as of right from an order of the St. Clair County Probate Court granting the petition brought by Comerica Bank-Detroit, executor of the Prichard estate, for authority to pay legal fees and expert witness fees in a suit brought against Comerica in its capacity as executor of the Prichard estate. Paragon claims that Comerica, and not the estate, should be charged with the expenses of defending the Paragon litigation.
The background facts which gave rise to the petition in the probate court are described in a prior Supreme Court opinion involving the estate, In re Prichard Estate, 410 Mich 587; 302 NW2d 554 (1981). Prichard’s will granted Ronald C. Murrell a right of first refusal in the sale of stock of a trucking company solely owned by Prichard. After Prichard’s death, Comerica, as executor, recognized a right of first refusal in Murrell and solicited bids to establish the fair market value of the trucking company stock. Paragon submitted the highest bid, which was accepted subject to Murrell’s right of first refusal. Comerica gave Murrell one month to match the Paragon offer and denied his request for a thirty-day extension. On December 15, 1986, within the original one-month period, Murrell exercised his right of first refusal and tendered a $50,000 deposit.
On January 21, 1977, Murrell notified Comerica that one of his loan applications had been rejected. The same day, Paragon increased its offer. On January 24, 1977, Comerica told Murrell that his right to buy the stock had expired. Murrell did not object at that time. Comerica then accepted Paragon’s latest offer. On January 26, 1977, Murrell wrote the executor, asserting the continued existence of a right to purchase the stock and objecting to the acceptance of Paragon’s offer. He continued to seek financing to purchase the stock and filed suit in St. Clair County Probate Court to enjoin the sale to Paragon. The case proceeded through the appellate process, and our Supreme Court found that Comerica’s termination of Murrell’s right of first refusal without prior notice was unreasonable. Prichard Estate, supra, p 592. Since Comerica had not given Murrell reasonable time in which to perform, the Supreme Court reinstated the probate court’s order enjoining the sale to Paragon, and the trucking company was sold to Murrell in January of 1982.
Paragon, while Murrell’s case was pending, had filed suit for breach of contract against Comerica, as executor of the Prichard estate. After the Supreme Court’s decision in favor of Murrell, a jury in Paragon’s suit in St. Clair Circuit Court returned a verdict for $2,724,051. Judgment was entered against "Comerica Bank-Detroit, as Executor of the Estate of C. Carlton Prichard.”
Comerica then petitioned the probate court for authority to pay legal and expert witness fees incurred in defending the suit against Paragon. The petition was opposed by Paragon and the residuary legatees of the Prichard estate. The residuary legatees also filed a petition to surcharge and remove the executor. The amended petition to surcharge and remove the executor alleges that Comerica’s handling of the sale of the trucking company stock constituted a breach of fiduciary duty. The petition to authorize payment of fees was allowed by the probate court. The probate court’s order authorizing payment of legal fees does not prejudice the residuary legatees’ right to bring a petition for surcharge. The residuary legatees have not appealed this order, but Paragon has.
This case is governed by the provisions of the Revised Probate Code, which applies to any probate proceeding pending on July 1, 1979, or commenced after that date. MCL 700.992(a); MSA 27.5992(a). Since this case was pending on the effective date of the revised code, the code’s provisions apply even though some of the relevant actions of the executor were taken before the effective date of the code.
The Revised Probate Code authorizes compensation to a fiduciary for his work on behalf of the estate, MCL 700.541; MSA 27.5541. The Revised Probate Code also authorizes the payment by the estate of reasonable compensation to attorneys who perform necessary legal services on behalf of the estate:
Without obtaining a court order, a fiduciary of an estate may employ counsel to perform necessary legal services in behalf of the estate and the counsel shall receive reasonable compensation for the legal services. [MCL 700.543; MSA 27.5543.]
To be chargeable against the estate, the attorney fees must be for services rendered on behalf of and benefitting the estate. In re Baldwin’s Estate, 311 Mich 288, 314; 18 NW2d 827 (1945); In re Brack Estate, 121 Mich App 585, 591; 329 NW2d 432 (1982).
The probate judge determined that the legal services rendered by the law firm of Smith and Brooker, P.C., and the services of the expert accounting witness, Jay Alix & Associates, were rendered on behalf of the estate and were necessary to it. There is no question that Comerica was acting in its capacity as executor at all times relevant to Paragon’s allegations in this case. Paragon, in fact, admits that it sued Comerica in its capacity as executor. The facts in these cases could support a finding that Comerica was attempting to comply with the will’s provision giving Murrell a right of first refusal on the sale of the trucking company stock. When Murrell was unable to obtain the necessary financing, Comerica accepted Paragon’s increased second offer for the stock. As the executor, Comerica had a duty to attempt to sell the stock for the best price. After the Supreme Court held that Murrell was entitled to purchase the stock, Comerica retained the attorneys to defend the suit by Paragon in order to preserve the assets of the estate.
An estate is benefitted by legal services that increase or preserve the size of the decedent’s estate. In re Brack Estate, supra, p 591. "The estate of the deceased exists to distribute the deceased’s property and to preserve such property pending distribution. . . .” In re Valentino Estate, 128 Mich App 87, 93-94; 339 NW2d 698 (1983). The origin of the Paragon litigation was the executor’s attempt, on behalf of the estate to distribute the estate assets in accordance with the will. The legal fees at issue here were incurred in an attempt to preserve the estate and may be charged to it. The probate court did not err in determining that these legal services were rendered on behalf of the estate.
As previously indicated, several of the residuary legatees under the will have filed a petition to surcharge and remove the executor, alleging that the sale of the trucking company stock constituted a breach by Comerica of its fiduciary duty. If a breach of fiduciary duty is found, the residuary legatees could presumably recover these attorney fees and expert witness fees as well. Not every error of judgment is, however, a breach of fiduciary duty. That determination must be made in connection with the residuary legatees’ proceedings, and the probate judge quite properly refused to make such a determination at the hearing on this petition. In the absence of a finding that Comerica’s actions constituted a breach of fiduciary duty and caused this litigation, the trial court properly found that the legal services were rendered on behalf of and for the benefit of the estate. We reject Paragon’s contention that the litigation must be successful in order for attorney fees to be properly chargeable to the estate. Cornerica had not only a right but also a duty to defend the Paragon action. This case is distinguishable from those instances where attorney fees have been denied as being not beneficial and even detrimental to the estate. See In re Davis’s Estate, 312 Mich 258; 20 NW2d 181 (1945), Valentino Estate, supra, p 95, and In re Humphrey Estate, 141 Mich App 412; 367 NW2d 873 (1985).
Having determined that the legal services were necessary and rendered on behalf of the estate, the probate court must then determine what amount is reasonable compensation for those services. MCL 700.543; MSA 27.5543.
In ascertaining the reasonable value of services to an estate, the court should consider time spent, the amount involved, the character of the services rendered, the skill and experience called for, and the results obtained. This determination by the probate court will be reversed by this Court only if there has been an abuse of discretion. Humphrey Estate, supra, p 439. We find no abuse of discretion in this case.
Comerica submitted a written description of legal services performed and an itemized description of the charges for legal work and expert witness services which totalled $98,246.22. The fact that two partners of the estate’s law firm attended the trial is not conclusive and is understandable, considering the $5,000,000 claim by Paragon and the $2,724,051 verdict. The probate judge also consid ered the testimony of the expert accounting witness J. Alix of Jay Alix & Associates, whose services Comerica argued were absolutely necessary given the nature of the litigation. The record indicates that the probate court considered the request for attorney and expert witness fees in light of the proper criteria before ruling on the petition. We find no error requiring reversal.
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Doctoroff, J.
The people appeal by leave granted from a circuit court order that reversed defendant’s conviction following a bench trial in district court for operating a motor vehicle with a blood-alcohol level in excess of 0.10 percent, MCL 257.625(2); MSA 9.2325(2). We reverse._
Defendant was arrested and charged under a local ordinance for operating a vehicle while under the influence of intoxicating liquor. The charge was subsequently dismissed, however, due to a legal infirmity in the ordinance. The Oakland County Prosecutor’s Office then charged defendant under state law with operating a vehicle under the influence of intoxicating liquor, MCL 257.625(1); MSA 9.2325(1), or, in the alternative, operating with a blood-alcohol level in excess of 0.10 percent, MCL 257.625(2); MSA 9.2325(2).
Trial testimony revealed that defendant had been given a Breathalyzer test less than one hour after his arrest. After the parties stipulated to the expertise of the Breathalyzer operator, he testified that he had observed defendant for fifteen minutes before administering the Breathalyzer test. During that time, defendant did not eat, drink or smoke anything. The Breathalyzer operator also testified as to the actual procedures he used in administering the test, as well as to the fact that the Breathalyzer is periodically tested for accuracy. The tests that are performed on the instrument include a weekly calibration, a monthly simulator test, and a quarterly certification by a state police inspector/operator. These periodic tests for accuracy are logged in a book kept in the ordinary course of business at the police department.
Two Breathalyzer tests were administered to defendant. Both the first and second tests, given six minutes apart, resulted in a reading of a 0.14 percent alcohol level.
Defendant was found guilty of operating a motor vehicle with a blood-alcohol level in excess of 0.10 percent. On appeal to the Oakland Circuit Court, defendant’s conviction was reversed on the basis that the prosecutor did not lay a proper foundation for admission into evidence of the Breathalyzer test results.
On appeal, the people now contend that the circuit court erred by finding that an inadequate foundation had been laid for introduction of the Breathalyzer test results and that it therefore erred in reversing defendant’s conviction. We agree.
The admissibility of evidence is a matter confined to the discretion of a trial court. People v Amison, 70 Mich App 70, 74; 245 NW2d 405 (1976). The trial court’s determination will not be reversed on appeal unless the court abused its discretion. See People v Charles O Williams, 386 Mich 565, 571-572; 194 NW2d 337 (1972).
Although expert testimony is not necessary to demonstrate that Breathalyzer tests are generally accepted as reliable by the scientific community, this in no way obviates the state’s responsibility to introduce certain foundational evidence. People v Krulikowski, 60 Mich App 28, 31; 230 NW2d 290 (1975). The prerequisites for admissibility include establishing the qualifications of the operator administering the test, the method or procedure followed in administering the test, that the test was performed within a reasonable time after the arrest, and the reliability of the testing device. People v Carter, 78 Mich App 394, 397; 259 NW2d 883 (1977), modified 402 Mich 851 (1978). See also People v Kozar, 54 Mich App 503, 509; 221 NW2d 170 (1974).
In this case, the circuit court reversed defendant’s conviction without determining that the district court abused its discretion. It found that the prosecutor had failed to lay a proper foundation for admission of the test results because of noncompliance with 1984 AACS, R 325.2651, Emergency Rule 5(l)(b)(v), promulgated pursuant to enabling legislation which authorizes the state police to enact rules for the administration of chemical tests, MCL 257.625g; MSA 9.2325(7).
The rule pursuant to which the Breathalyzer test was performed, 1984 AACS, R 325.2651, Emergency Rule 5(l)(b)(v), provides:
Any person may be administered a breath alcohol analysis on a quantitative breath alcohol test instrument only after being observed for fifteen minutes prior to the collection of the breath specimen, during which period the person shall not have smoked, regurgitated, or placed anything in the mouth.
The circuit court concluded that the test results were inadmissible because there had not been compliance with this rule, finding that the prosecutor had failed to establish that defendant did not regurgitate during the fifteen minutes prior to the Breathalyzer tests and that the arresting officer had testified that defendant "may have had a drink of water.” The court then reasoned that because of the noncompliance with this rule, the test results were not obtained in conformity with MCL 257.625g; MSA 9.2325(7) and were therefore inadmissible pursuant to the authority of McNitt v Citco Drilling Co, 397 Mich 384, 393; 245 NW2d 18 (1976), wherein the Court held:
Test results obtained pursuant to the exercise of statutory authority are not admissible unless obtained in conformity with the requirements of the statute.
McNitt, however, addressed a violation of MCL 257.625d; MSA 9.2325(4). Pursuant to that statute, a driver must be informed of his right to refuse a blood-alcohol test. The concern in McNitt was that evidence of a driver’s possible intoxication should not be extracted for use against him without his consent. The Supreme Court ruled that test results not obtained in conformity with statutory requirements, in that case through obtaining consent, are inadmissible.
In this case, however, the Breathalyzer tests were administered pursuant to a rule promulgated by the Department of State Police rather than pursuant to a statute. The only statute involved in this appeal, MCL 257.625g; MSA 9.2325(7), is enabling legislation empowering the state police to promulgate such rules. We are therefore unpersuaded that the McNitt case governs the result in this case.
The instant record indicates that the people introduced testimony of the Breathalyzer operator himself on all four foundational criteria for admission of the Breathalyzer test results. See Carter, supra. Notwithstanding the arresting officer’s testimony that defendant may have had a drink of water, the Breathalyzer operator testified that during the fifteen minutes he observed defendant, defendant did not eat, drink or smoke anything. His failure to mention that defendant did not regurgitate does not render the test results inadmissible. To hold otherwise would contravene common sense and hinge admissibility on recitation of certain words. We decline to require the supertech nical. By negative implication, nothing was in defendant’s mouth for that period of time. The district court determined that the evidence was admissible, a matter that was within its sound discretion to decide. Amison, supra. As a panel of this Court so appropriately noted in Krulikowski, supra, p 33, we do not want to
place the trial bench in a judicial straitjacket with respect to the laying of a foundation as a condition precedent to the admission of evidence. The trial bench still possesses considerable discretion as to the adequacy of the foundation in any given case. Their determination as to this matter should not be lightly set aside.
We find no abuse of the district court’s discretion. The circuit court erred by reversing defendant’s conviction.
Accordingly, the circuit court’s order reversing defendant’s conviction is reversed and defendant’s conviction is reinstated.
Reversed.
MCL 257.625g; MSA 9.2325(7) provides:
The department of state police may promulgate uniform rules for the administration of chemical tests for the purpose of this act.
MCL 257.625(1; MSA 9.2325(4) provides in relevant part:
A person who is requested pursuant to section 625c(3) to take a chemical test shall be advised of the right to refuse to submit to chemical tests; and if the person refuses the request of a peace officer to submit to chemical tests, a test shall not be given without a court order. | [
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M. J. Kelly, P.J.
Defendant appeals as of right his conviction for first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a). We affirm.
On January 23, 1986, after a plea agreement had been reached, defendant pled nolo contendere to first-degree criminal sexual conduct. Defendant had originally been bound over on the first-degree criminal sexual conduct charge in February, 1985, but subsequently did not appear and a bench warrant for his arrest was issued. Eventually he was picked up and brought back for trial. In exchange for the plea, an absconding charge was dismissed. Subsequently defendant’s plea was accepted and on August 18, 1986, defendant was sentenced to ten to fifteen years imprisonment.
On appeal defendant challenges his conviction. Defendant’s first argument is that the trial court committed clear error by concluding that defendant’s confession was voluntary and by denying defendant’s motion to suppress his statements.
The confession took place on December 17, 1984. On that date defendant was scheduled to take a polygraph examination conducted by the police. This examination took place after defendant had been charged and arraigned. Subsequent to the arraignment defendant was represented by retained counsel and his counsel had agreed to the polygraph examination. After the polygraph examination was completed, the examiner, a police officer, asked defendant why he was lying. Another police officer, who had attempted to interrogate defendant prior to his arraignment (until defen dant invoked his Fifth Amendment right to counsel), then began to interrogate defendant and a confession resulted. Defendant’s attorney was not present during the interrogation. The trial court denied defendant’s motion to suppress his statements, finding that they were "made freely, knowingly and voluntarily, with a full apprehension of the rights that were existent, present and available to him.”
Defendant claims that he was deprived of both his Fifth and Sixth Amendment rights to counsel when he was interrogated by police without assistance of counsel. On this basis, defendant contends that the trial court erred in denying his motion to suppress the statements made by him on December 17, 1984; therefore, his conviction should be reversed.
Although the practice by the police in this instance is without justification and is not condoned by this Court, defendant’s claim that the trial court erred in failing to suppress the statements given to the police was waived by his plea of nolo contendere. By pleading to the charge, defendant has made the issue of his factual guilt irrelevant, since his voluntary and intelligent plea conclusively resolved the issue of factual guilt in favor of the state. People v New, 427 Mich 482, 494; 398 NW2d 358 (1986).
In People v New, defendant New, who had pled no contest, claimed the trial court erred in failing to suppress statements made by him to the police. The Supreme Court concluded:-
Today, we hold that a defendant, after pleading guilty, may raise on appeal only those defenses and rights which would preclude the state from obtaining a valid conviction against the defendant. Such rights and defenses "reach beyond the fac tual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial . . . [People v White, 411 Mich 366, 398; 308 NW2d 128 (1981)] (Moody, J., concurring in part and dissenting in part). In such cases, the state has no legitimate interest in securing a conviction. On the other hand, where the defense or right asserted by defendant relates solely to the capacity of the state to prove defendant’s factual guilt, it is subsumed by defendant’s guilty plea. [Id. at 491.]
Defendant, by reply brief, has also argued that his case should be decided on the basis of case law existing at the time the plea was taken in August, 1986. People v New, supra, was decided in December, 1986. The basis for defendant’s claim that People v New should not apply retroactively to this case is that any possibility of an interlocutory appeal of the 1985 hearing on the admissibility of his confession had passed and the only avenue left to him was this appeal.
As a general principle full retroactivity is the rule and prospectivity is the exception. People v Caldwell, 111 Mich App 174, 177; 314 NW2d 469 (1981). However, retroactive application may be limited. In order to determine whether retroactive application should be limited, the following three factors should be considered and balanced: (1) the purpose of the new rule; (2) the general reliance on the prior rule; and (3) the effect of retroactive application on the administration of justice. People v Wilson, 102 Mich App 626, 630; 302 NW2d 303 (1981), lv den 410 Mich 919 (1981).
In applying these factors to the rule announced in People v New, We find no justification for prospective application. The purpose of the rule appears to be to provide appellate courts with a clear statement of what rights are waived by a defen dant in pleading guilty or no contest. Defendant’s reliance is not a factor here. It would be hard to imagine that at the time he waived his constitutional right to a trial, defendant actually relied on People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), and its statement that illegally obtained evidence could be an example of a right not waived by a guilty plea. Here, defendant’s argument is not so much that he relied on Alvin Johnson, but that the rule in Alvin Johnson should apply to him. Regardless, as stated in People v New, this statement from Alvin Johnson cited by defendant to support his claim is "not only a misreading of the previously cited federal authority, it also was not necessary to the decision of that case” and "is dictum.” People v New, supra at 489-490. The third factor to consider focuses primarily on the impact of the new rule on prosecutorial and judicial resources. People v Caldwell, supra at 178-179. Here, retroactive application will not burden the courts by requiring new hearings or trials. Consequently after balancing these factors we see no reason not to give full retroactive application to the rule announced in People v New.
Defendant’s final argument is that his plea of nolo contendere should be set aside because his trial counsel was ineffective. Defendant claims two instances of ineffective assistance of counsel. The first was when defense counsel waived the preliminary examination and the second was when defendant was exposed to an unnecessary interrogation after his polygraph examination.
Previous to the decision in People v New, panels of this Court held that a claim of ineffective assistance of counsel was not waived by a guilty plea. See People v Snyder, 108 Mich App 754, 755-756; 310 NW2d 868 (1981). However, at least insofar as ineffective assistance of counsel claims relate only to the capacity of the state to prove defendant’s factual guilt, People v New appears to hold that such claims are likewise "subsumed by defendant’s guilty plea”. 427 Mich 491.
For purposes of this decision, however, that question is not reached. Here, there is no record of defendant’s claim of ineffective assistance of counsel at defendant’s plea hearing.
Where the record made in connection with a defendant’s plea proceeding does not factually support his claim of ineffective assistance of counsel, it is incumbent upon the defendant to move to set aside the plea and to make a separate record factually supporting this claim. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Blythe having failed to provide record evidence for this claim, we have no basis for considering it. [People v Blythe, 417 Mich 430, 438; 339 NW2d 399 (1983).]
No Giiither hearing was requested in this case. Consistent with Blythe, defendant’s having failed to provide record evidence for this claim, we have no basis for consideration.
Affirmed. | [
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M. J. Kelly, P. J.
Following a preliminary examination on February 5, 1986, defendant was bound over on a charge of breaking and entering of a building with intent to commit larceny, MCL 750.110; MSA 28.305. Subsequently, following a plea agreement, Count n was added charging defendant with larceny over $100, MCL 750.356; MSA 28.588. In exchange for dropping the charge of breaking and entering with intent to commit larceny (now Count i), and the promise by the prosecutor not to pursue charging defendant for a separate undertaking that would have resulted in an additional charge similar to the one dropped, defendant pled guilty to Count ii on March 31, 1986. On appeal defendant contends that the sentence he received should shock the judicial conscience and it therefore requires reversal. We disagree.
The guidelines sentence range in this case recommended a minimum sentence of from twelve to twenty-four months. Defendant was sentenced to a minimum of forty months and a maximum of sixty months. On the Sentence Information Report the trial judge gave the following reasons for departure: "I do not feel that the guidelines give sufficient weight to defendant’s seven prior felony convictions or the fact that defendant was on prison escape status when he committed the instant offense.” At sentencing the trial judge stated he departed from the guidelines and imposed the sentence because during defendant’s previous incarcerations rehabilitation had not taken place. The sentence defendant received in this case was made consecutive to the term he was serving at the time of the offense, but concurrent with his sentence for escape from prison.
On appeal, defendant argues that the trial judge’s departure from the guideline recommendation was not justifiable and resulted in a sentence that should shock the conscience of this Court. In People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983), the Supreme Court stated that an appellate court may afford relief to a defendant if "the trial court, in imposing sentence, abused its discretion to the extent that it shocks the conscience of the appellate court.”
Defendant argues that the sentence imposed by the trial court exceeds the rational bounds of decency. In People v Coles, supra, an excessive sentence was defined as one "which far exceeds what all reasonable persons would perceive to be an appropriate social response to the crime committed and the criminal who committed it.” Id., pp 542-543.
Admitting that departure from the guidelines may in a given case be proper, defendant argues that the reasons given by the trial court for departure here were, if not explicitly then implicitly, incorporated into the variables used to generate the recommended minimum sentence range. Therefore, defendant argues, since there was no independent justification for departure the departure here was presumptively improper. Defendant contends that a reasonable sentence in this instance would be one that conformed to the guideline range of twenty-four months.
This Court has previously held that it is not an abuse of discretion for a judge to rely on some of the same factors considered in the sentencing guidelines as a basis for departure. See People v Kenneth Johnson, 144 Mich App 125, 137; 373 NW2d 263 (1985), lv den 424 Mich 854 (1985), where defendant did not claim that his sentence should shock the conscience but that the sentencing judge abused his discretion by considering the same factors considered in the guideline recommendations to justify departure; People v Naugle, 152 Mich App 227, 237; 393 NW2d 592 (1986), where defendant raised the same issue as presented here, and this Court held that a sentencing judge was free to reconsider and give more weight to a factor included in the sentencing guidelines; and People v Garland, 152 Mich App 301, 310; 393 NW2d 896 (1986), where the same factors that were considered in the guidelines were again considered in departure because the sentencing judge did not feel the guidelines adequately met the requirements of the case.
Since defendant’s sentence fell within the maximum sentence allowed by statute, the sentencing judge articulated reasons for departure, the decision in People v Kenneth Johnson withstood review by the Supreme Court, and the minimum sentence in this case only exceeded the twenty-four month guideline recommendation by sixteen months, we hold that the sentencing judge did not abuse his discretion on the facts presented here.
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Hood, J.
In Docket No. 239116, defendant appeals by leave granted the trial judge’s order denying its request to remove plaintiffs’ attorneys, Prison Legal Services of Michigan (flsm), from its offices located at the Egeler Correctional Facility. In Docket No. 240101, defendant appeals by leave granted the trial judge’s order barring defendant from transferring certain prisoners from the Egeler Correctional Facility. We reverse.
After eight years of pretrial litigation, the Supreme Court in Cain v Dep’t of Corrections, 451 Mich 470, 518; 548 NW2d 210 (1996), returned the case to the original trial judge with the directive to investigate the advisability of appointing special counsel. An agreement was reached that plsm would represent plaintiffs and defendant would “house” plsm in office space until the completion of the case. In December 1997, plsm’s office space was moved to the Egeler Correctional Facility, and plaintiffs’ class representatives and prisoner workers were permitted to transfer to the Egeler facility as shown by a court order.
In 2001, defendant sought to have the employees of PLSM, located in office space in trailers on the property, removed from prison grounds. The rationale for the elimination of the office space varied. One proffered reason given for the elimination of the office space was the need to renovate the facility. However, it was later theorized that plsm trailers would be utilized to house supplies that could not be stored elsewhere because of potential fire code violations. Ultimately, it was alleged that Executive Order No. 2001-9 required defendant to reduce its budget expenditures by $54.9 million. As a result of budget reductions, defendant would return prisoner-parole violators to the Egeler facility who were currently housed in county jails and utilize the trailers for storage. In response, plaintiffs alleged that the basis for the removal of the office staff was not credible and would unreasonably burden plaintiffs’ preparation of the case. Following an evidentiary hearing, the trial judge rendered factual findings in favor of plaintiffs and denied the motions to remove PLSM offices and transfer to other facilities the prisoners participating in the litigation.
We conclude that the focus of the underlying hearing — the factual basis and motivation of defendant to remove plsm as opposed to the desire of plaintiffs, who are civil litigants despite their status as inmates, to conveniently and cost effectively manage their litigation with offices located on prison grounds — was inappropriate. Rather, the real question is whether plaintiffs’ interest in the continued advantage of an on-site legal office takes precedence over defendant’s interest in exercising its judgment over the management of prisons under its authority. On the basis of our review of United States Supreme Court authority, we conclude that plaintiffs’ interest does not supersede defendant’s interest in prison management.
In Lewis v Casey, 518 US 343, 347; 116 S Ct 2174; 135 L Ed 2d 606 (1996), the United States Supreme Court reviewed a case involving prisoners’ claims that the Arizona state prison system was denying inmates their constitutional right of access to the courts by failing to provide sufficient law libraries in prisons. The prisoners alleged, inter alia, that library staff was not adequately trained and materials were not kept updated. Id. The federal district court agreed with the prisoners that the libraries were inadequate, and that two particular groups of prisoners — those who did not speak English and those who were segregated for security reasons — were disadvantaged by the system’s inadequacies more than the general prison population. Id. The district court appointed a special master to investigate and recommend relief. Id. The district court eventually entered an injunctive order specify ing library hours, the number of hours inmates could use the library each week, the qualifications for prison librarians, and so forth. Id.
The Supreme Court, in reversing, relied on Bounds v Smith, 430 US 817; 97 S Ct 1491; 52 L Ed 2d 72 (1977), which held that “ ‘the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.’ ” Lewis, supra at 346, quoting Bounds, supra at 828. The Court then clarified the scope of the holdings in Bounds:
It must be acknowledged that several statements in Bounds went beyond the right of access recognized in the earlier cases on which it relied, which was a right to bring to court a grievance that the inmate wished to present.... These statements appear to suggest that the State must enable the prisoner to discover grievances, and to litigate effectively once in court. . . . These elaborations upon the right of access to the courts have no antecedent in our preBounds cases and we now disclaim them. To demand the conferral of such sophisticated legal capabilities upon a mostly uneducated and indeed largely illiterate prison population is effectively to demand permanent provision of counsel, which we do not believe the Constitution requires. [Lewis, supra at 354 (emphasis in original).]
Significantly for the instant case, the Supreme Court’s decision was based not only on the scope of Bounds, but also on judicial deference to prison administration. Id. at 361. The Court held that the district court failed to accord adequate deference to the prison authorities. For example, in finding that the segregated prisoners were unfairly denied adequate library time, the district court failed to acknowledge the legitimate penological interests for segregating violent prisoners. Id. at 361-362. The Court also criticized the district court’s injunctive order for being “inordinately — indeed, wildly — intrusive.” Id. at 362. The Court described the injunctive order as “the ne plus ultra of what our opinions have lamented as a court’s ‘in the name of the Constitution, becoming . . . enmeshed in the minutiae of prison operations.’ ” Id., quoting Bell v Wolfish, 441 US 520, 562; 99 S Ct 1861; 60 L Ed 2d 447 (1979).
Additionally, in Shaw v Murphy, 532 US 223; 121 S Ct 1475; 149 L Ed 2d 420 (2001), the respondent, Murphy, was an “inmate law clerk” who provided legal assistance to his fellow prison inmates. Id. at 225. Muiphy learned that another inmate had been charged with assaulting a correctional officer. Muiphy tried to send this inmate a letter offering to assist him with his defense, but the letter was intercepted. Id. at 225-226. Murphy’s attempt to send the letter was a violation of prison rules because of the difference in prison security levels. Id. at 226. Murphy was punished for insolence and interference with a due process hearing. Id. Murphy brought a class action against prison officials under 42 USC 1983, seeking declaratory and injunctive relief. He claimed that his punishment violated due process, the rights of inmates to access the courts, and Muiphy’s First Amendment right to provide , legal assistance to other inmates. Id. 226-227.
Analyzing Muiphy’s constitutional claim, the United States Supreme Court concluded that the legal advice content in Murphy’s attempted communication to the charged inmate was not entitled to First Amendment protection. Id. at 230. The Court held that, under Tur ner v Safley, 482 US 78; 107 S Ct 2254; 96 L Ed 2d 64 (1987), the prison had a legitimate penological interest in restricting communications that outweighed Murphy’s constitutional right, and the content of the communication did not affect that balance. Id. The Court then stated:
Moreover, under Turner and its predecessors, prison officials are to remain the primary arbiters of the problems that arise in prison management. . . . Courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. If courts were permitted to enhance constitutional protection based on their assessments of the content of the particular communications, courts would be in a position to assume a greater role in decisions affecting prison administration. Seeking to avoid unnecessarily perpetuating the involvement of the federal courts in affairs of prison administration ... we reject an alteration of the Turner analysis that would entail additional federal court oversight. [Id. at 230-231 (internal quotation marks and parentheses omitted).]
It is clear from these cases that a prisoner’s constitutional right of access to the courts must be balanced against legitimate penological interests, and a court cannot unreasonably intrude into prison management merely to give prisoners more effective access than the constitution requires. Applying the Lewis and Shaw balancing test by analogy to the instant case, we conclude that the trial judge erred in requiring defendant to continue housing plsm for the duration of the case. Plaintiffs’ interest did not implicate any constitutional right because plaintiffs have no constitutional right to a legal office on prison grounds. Knop v Johnson, 977 F2d 996, 1005, 1014 (CA 6, 1992). On the other hand, defendant has a legitimate penological interest in managing its prison facilities — including making decisions about where new and returning prisoners will be received, where supplies will be stored, how clothing will be issued, what recreational activities will be provided, and the number of auxiliary trailers it can safely deploy. When the trial judge scrutinized these decisions, second-guessed their soundness, and substituted its own judgment about defendant’s plans for the old store and Building 142, he unreasonably intruded into prison management decisions. Accordingly, the trial judge erred in denying defendant’s motion to remove the plsm offices from prison premises and erred in concluding that the motion was frivolous and warranted the imposition of sanctions.
Defendant further alleges that the trial judge erred in precluding the transfer of certain inmates from the Egeler facility. We agree. Prisoners have no constitutionally protected liberty interest in remaining in a particular wing of a prison or a particular institution within a prison system. Williams v Faulkner, 837 F2d 304, 309 (CA 7, 1988); Thomas v Deputy Warden, 249 Mich App 718, 726-727; 644 NW2d 59 (2002).
Reversed and remanded. We do not retain jurisdiction.
The underlying foundation for this litigation is set forth in Cain, supra at 473-474.
See Knop v Johnson, 977 F2d 996, 1005, n 6 (CA 6, 1992), noting the distinction between use of taxpayer dollars for a defense in a criminal trial as opposed to preparation of a prisoner lawsuit.
While the trial judge also concluded that defendant had an improper motivation for its request to remove the plsm offices, judges are not to concern themselves with the motivation of an administrative decision or rule. See, e.g., Kuhn v Dep’t of Treasury, 384 Mich 378, 383-384; 183 NW2d 796 (1971). Improper motivation may prove to be valid and beneficial, while a law or rule passed with good intent and the best of motives may prove to be bad and invalid. Id. | [
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Hood, P.J.
Defendant, state of Michigan, appeals as of right from the trial court’s determination that legislative approval, by resolution, of compacts allowing operation of casinos by Indian tribes violated provisions of the Michigan Constitution. We affirm in part and reverse in part.
In 1997 and 1998, Governor John Engler negotiated compacts with four Indian tribes to permit class in gaming by the tribes on eligible Indian lands in Michigan. The terms of the compacts contained various regulatory provisions. The tribes agreed to hiring criteria for their employees and management and agreed to provide benefits and disability compensation in conformance with Michigan law. The tribes also agreed to a minimum age requirement of eighteen years for participation in any class m game. The tribes adopted Michigan law regarding the sale and regulation of alcoholic beverages. Compact provisions addressed revenue payments to the state and to local governments and the creation of an oversight body to address the manner of distribution of revenues. However, the compacts did not provide the state with any authority to enforce the provisions of the compacts. Rather, they provided that representatives of the tribes and the state would meet to resolve any dispute regarding alleged noncompliance. If resolution could not be reached, the matter would be submitted to arbitration. The compacts provided that the Governor would endorse the compacts and concurrence in that endorsement by the Michigan Legislature would occur by “resolution.” The governor had the ability to receive and agree to any amendments of the compacts.
A bill becomes law when it has the concurrence of a majority of members elected to and serving in each house. Const 1963, art 4, § 26. However, the approval of the compacts was submitted to the Legislature through the joint resolution process that required only a majority of voting members. The Legislature approved the compacts by a majority of voting members. House Concurrent Resolution No. 115 (Decern ber 10, 1998). The maimer of approval of the compacts is challenged in this appeal.
I. THE ORIGINS OF FEDERAL AUTHORIZATION FOR OPERATION OF CASINOS
In California v Cabazon Band of Mission Indians, 480 US 202, 204-207; 107 S Ct 1083; 94 L Ed 2d 244 (1987), two federally recognized Indian tribes conducted bingo games on their reservations pursuant to an ordinance approved by the Secretary of the Interior. Other card games, including draw poker, were also played at the facility. The games were open to the general public and were played predominantly by non-Indians who came onto the Indian reservation. The games were the primary source of employment for tribal members, and the profits were the sole source of tribal income. The state of California sought to apply provisions of its penal code to preclude the gambling activity. California law permitted bingo games, as long as the games were staffed and operated by members of a designated charitable organization who were not paid for their services. Profits could only be utilized for charitable purposes, and prizes were limited to a nominal amount. The state sought to enforce these restrictions on the Indian reservations. The tribes sued in federal court for a declaration that state ordinances could not be applied against the reservation and for an injunction against any enforcement. Id.
The Supreme Court held that state jurisdiction over the tribes could only occur under limited circumstances:
The Court has consistently recognized that Indian tribes retain “attributes of sovereignty over both their members and their territory,” and that “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States,” .... It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided. [Id. at 207 (citations omitted).]
The state alleged that congressional authority was granted by 18 USC 1162, a statute granting broad criminal jurisdiction and limited civil jurisdiction to six states, including California, over specified areas of Indian country, and by the Organized Crime Control Act (occa), 18 USC 1955. However, the United States Supreme Court concluded that congressional law neither permitted regulation nor precluded operation of the gaming activities conducted by the Indian tribes. Specifically, the Court noted that California law did not ban all forms of gambling. The state itself operated a state lottery and encouraged its citizens to participate in this state-run gambling. Additionally, the state allowed pari-mutuel horse-race betting, and more than four hundred card rooms similar to the card rooms operated by the tribes were active in the state. When state law permitted conduct, subject to regulation, it was civil regulatory law, and federal statutes did not authorize enforcement on an Indian reservation. Thus, in light of the substantial amount of gambling activity permitted and the state’s active operation of a state lottery, the Supreme Court concluded that California regulated rather than prohibited gambling in general and bingo in particular. Therefore, the state could not interfere with this permitted conduct that occurred on an Indian reservation. Cabazon, supra at 207-214.
The United States Supreme Court then analyzed the burden on Indian tribes when the state sought to regulate the dealings of non-Indians participating in bingo games on Indian reservations. The United States Supreme Court held that state jurisdiction was preempted if it interfered with or was incompatible with federal and tribal interests reflected in tribal law. Throughout history the congressional goal was to allow Indians, self-government, including self-sufficiency and economic development. After examining the congressional laws and policies designed to achieve this goal by allowing tribal bingo enterprises, the United States Supreme Court stated:
These policies and actions, which demonstrate the Government’s approval and active promotion of tribal bingo enterprises, are of particular relevance in this case. The Cabazon and Morongo Reservations contain no natural resources which can be exploited. The tribal games at present provide the sole source of revenues for the operation of the tribal governments and the provision of tribal services. They are also the major sources of employment on the reservations. Self-determination and economic development are not within reach if the Tribes cannot raise revenues and provide employment for their members. The Tribes’ interests obviously parallel the federal interests.
We conclude that the State’s interest in preventing the infiltration of the tribal bingo enterprises by organized crime does not justify state regulation of the tribal bingo enterprises in light of the compelling federal and tribal interests supporting them. State regulation would impermissibly infringe on tribal government, and this conclusion applies equally to the county’s attempted regulation of the Cabazon card club. We therefore affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. [Id. 218-222.]
In response to the Cabazon decision, Congress enacted the Indian Gaming Regulatory Act (igra), 25 USC 2701 et seq. This act explicitly authorizes licensed gaming activities on Indian lands by Indian tribes to generate tribal revenue, 25 USC 2701(1), and promote the goals of tribal economic development and self-sufficiency, 25 USC 2701(4). The regulation of gaming activity on Indian lands is exclusively the province of the Indian tribes. 25 USC 2701(5). The operation of gaming activity by Indian tribes is permitted within a state that does not as a matter of law and public policy prohibit such gaming activity. Id. Class hi gaming activities are lawful on Indian lands only if the activities are authorized by ordinance or resolution and conducted in conformance with a tribal-state compact entered into between a tribe and a state. 25 USC 2710(d)(1)(A),(C). Upon receiving a request to enter into negotiations to complete a compact, the state “shall negotiate” in good faith to enter into such a compact. 25 USC 2701(d)(3)(A). While the compact “may” include provisions addressing application of criminal and civil law, allocation of criminal and civil jurisdiction, cost allocation, taxation, remedies for breach of contract, and operation standards, there is no provision for enforcement of these provisions. 25 USC 2701(d)(3)(C). The state must demonstrate that it has negotiated in good faith, and failed negotiations may be challenged in court and submitted to a mediator for resolution. 25 USC 2710(d)(7)(B).
n. THE FEDERAL COMPACT CLAUSE
US Const, art I, § 10, cl 3 provides:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
A compact is a contract. Texas v New Mexico, 482 US 124, 128; 107 S Ct 2279; 96 L Ed 2d 105 (1987). For interstate agreements that fall outside the scope of the Compact Clause, congressional consent is not required. Cuyler v Adams, 449 US 433, 440; 101 S Ct 703; 66 L Ed 2d 641 (1981). An agreement falls outside the scope of the Compact Clause when it is not directed to the formation of any combination tending to increase the political power in the States, which may encroach upon or interfere with the just supremacy of the United States. Id. Thus, if an agreement falls outside the scope of the Compact Clause, it will not be invalidated on the basis of lack of congressional consent. Id. Congressional consent to a compact elevates the interstate compact into a law of the United States. Texas, supra. Because an interstate compact can be categorized as both a contract and a statute, it is appropriate to look at contractual rules and rules of statutory construction in the event of an ambiguity. Oklahoma v New Mexico, 501 US 221, 236; 111 S Ct 2281; 115 L Ed 2d 207 (1991). Accordingly, it is appropriate to look at legislative history, extrinsic evidence of the compact negotiations, and negotiation history of other interstate compacts when construing a compact. Id.
The use of compacts predates the United States Constitution. The Articles of Confederation contained the Compact Clause provision that was later incorporated into the United States Constitution without much explanation. United States Steel Corp v Multistate Tax Comm, 434 US 452, 459-462; 98 S Ct 799; 54 L Ed 2d 682 (1978). However, historically, congressional consent was not deemed essential to the validity of a compact. For example, in Wharton v Wise, 153 US 155, 168-170; 14 S Ct 783; 38 L Ed 2d 669 (1894), the United States Supreme Court acknowledged that congressional consent was required before a state could enter into an agreement with a foreign state or before two or more states entered into “treaties, alliances, or confederations.” However, the lack of congressional consent was not deemed essential to the 1785 compact between Virginia and Maryland to govern the navigation and fishing rights in the Potomac River, the Pocomoke River, and the Chesapeake Bay. United States Steel Corp, supra at 460, n 10.
The validity of a compact lacking congressional approval was examined in United States Steel Corp, supra. As a result of a decision by the Supreme Court, net income from interstate operations of a foreign corporation could be subjected to state taxation provided that the levy was nondiscriminatory and fairly apportioned to local activities that form a sufficient nexus to support the exercise of taxing power. In response to the decision, Congress authorized a study of uniform taxing standards, but there was no resulting legislation. In the interim, the Multistate Tax Compact was drafted. The compact created a Multistate Tax Commission comprised of tax administrators from member states. It authorized the study and development of state and local tax systems to create uniformity and compatibility of tax laws. The commission was also authorized to adopt uniform administrative regulations when two or more states had uniform provisions related to specified types of taxes. These regulations were advisory only, and each member state had the power to reject, disregard, amend, or modify any rule or regulation promulgated by the commission. For the regulations to have any force, each state had to adopt the regulations in accordance with their own law. The commission also allowed audits that would occur on the state’s behalf, provided this provision was adopted by a state by statute. Each state retained complete control over all aspects of the computation and rate of taxation, and a state could withdraw from the compact by enacting a repealing statute. The plaintiffs were multistate taxpayers “threatened with audits by the Commission.” The complaint attacked the constitutionality of the compact, alleging that, never having received the consent of Congress, it was invalid under the Compact Clause.
The United States Supreme Court acknowledged that most multilateral compacts had been submitted for congressional approval, but concluded, “this historical practice, which may simply reflect considerations of caution and convenience on the part of the submitting States, is not controlling.” Id. at 471. However, the general rule was that “ ‘application of the Compact Clause is limited to agreements that are “directed to the formation of any combination tending to increase the political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” ’ ” Id. at 471, quoting New Hampshire v Maine, 426 US 363, 369; 96 S Ct 2113; 48 L Ed 2d 701 (1976), quoting Virginia v Tennessee, 148 US 503, 519; 13 S Ct 728; 37 L Ed 537 (1893). Thus, the fact that the tax compacts lacked congressional consent was not dispositive. Rather, whether the compacts enhanced “state power quoad the National Government” was the key test. The plaintiffs alleged that the “Compact’s effect” threatened federal supremacy. The Supreme Court rejected the constitutional challenges to the compact based on encroachment upon federal supremacy, enhancement of state power, and encroachment upon federal commerce power. United States Steel Corp, supra at 473-476.
Specifically, the Supreme Court rejected the constitutional challenges because of the appellants’ failure to demonstrate aggrandized power and the failure to demonstrate that any enhanced power could be exercised, stating:
The third aspect of the Compact’s operation said to encroach upon federal commerce power involves the Commission’s requirement that multistate businesses under audit file data concerning affiliated corporations. Appellants argue that the costs of compiling financial data of related corporations burden the conduct of interstate commerce for the benefit of the taxing States. Since each State presumably could impose similar filing requirements individually, however, appellants again do not show that the Commission’s practices, as auditing agent for member States, aggrandize their power or threaten federal control of commerce. Moreover, to the extent that the Commission is engaged in joint audits, appellants’ filing burdens well may be reduced.
Appellants’ final claim of enhanced state power with respect to commerce is that the “enforcement powers” conferred upon the Commission enable that body to exercise authority over interstate business to a greater extent than the sum of the States’ authority acting individually. This claim also falls short of meeting the standard of Virginia v Tennessee. Article VHI of the Compact authorizes the Commission to require the attendance of persons and the production of documents in connection with its audits. The Commission, however, has no power to punish failures to comply. It must resort to the courts for compulsory process, as would any auditing agent employed by the individual States. The only novel feature of the Commission’s “enforcement powers” is the provision in Art VIII permitting the Commission to resort to the courts of any State adopting that Article. Adoption of that Article, then amounts to nothing more than reciprocal legislation for providing mutual assistance to the auditors of the member States. [Id. at 475-476 (emphasis added).]
The significance of this decision to the case pending before this Court is two-fold. The consent or approval of compacts is the result of historic practice based on caution or convenience, and the procedure for approval, whether by resolution or legislation, has not been mandated by law. The key test to determine the validity of a compact, in the absence of congressional approval, was an examination of the power structure that was established by the contracting states in relationship to the federal government. Additionally, the allegation of enhanced power through compacts was insufficient to void the compact where there was an inability to exercise that power.
III. MICHIGAN LAW ADDRESSING COMPACTS
While federal law has been established to govern the construction and interpretation of a compact and the necessity of congressional consent or approval, Michigan has not delineated standards for passage of compacts or contracts. However, two Michigan appellate court decisions contain dicta that address compacts. In 1990, pursuant to the igra, several Indian tribes filed suit against Governor Engler to compel him to enter into a gaming compact. Tiger Stadium Fan Club, Inc v Governor, 217 Mich App 439, 443; 553 NW2d 7 (1996). Before trial, the parties entered into a consent judgment. This consent judgment provided that the tribes would make semiannual payments of eight percent of gaming revenues to the Michigan Strategic Fund (msf), a public corporation established by the Michigan Strategic Fund Act, MCL 125.2001 et seq.; for a specified period. Additionally, the tribes would make payments of two percent of certain gaming revenues to local units of government in the immediate vicinity of each tribal casino. The consent judgment became effective upon execution and approval of the compacts by resolution of the Legislature. The Legislature approved the compacts by resolution in September 1993, although the resolution did not specifically mention the payments to the msf. However, the Legislature was aware of the terms. Tiger Stadium Fan Club, supra at 443-444.
After the tribal casinos began making deposits to the msf, the City of Detroit Downtown Development Authority (DDA) requested a grant. The msf adopted a resolution and agreed to the grant request in an amount not to exceed $55 million. This grant agreement provided that the funds would be used to assist with costs associated with infrastructure, land development, and site development necessary for the construction of a new stadium for the Detroit Tigers. A complaint was filed, alleging that the gaming revenues were state funds within the meaning of the Appropriations Clause of the state constitution and any disbursement from the fund by the MSF without an appropriation by the Legislature was a violation of the Separation of Powers Clause of the state constitution. It was also asserted that the MSF did not have the statutory authority to make a grant to the dda. Id. at 448-449.
This Court concluded that the revenues involved were not public funds subject to appropriation because they were gratuitous payments negotiated by the Governor and designated for a specific purpose, and payment to and disbursement from the msf without an act of the Legislature did not violate the Appropriations Clause. Id. at 452-454. The Court of Appeals also concluded that the Governor did not violate the Separation of Powers Clause by negotiating and effectuating the settlement, stating:
We conclude, however, that because the revenues are not subject to the Appropriations Clause and are gratuitous payments for a designated purpose, no appropriation was necessary and the Governor did not usurp the Legislature’s power in entering into an agreement providing for the payment of the revenues directly to the msf and that the Separation of Powers Clause does not require legislative action before the revenues may be spent by the MSF. It has long been Michigan law that courts should not interfere with the actions of the Governor when he acts pursuant to constitutional or statutory authority. See Sutherland v Governor, 29 Mich 320, 328 (1874). We also observe that the Legislature was aware that the consent judgment provided that the gaming revenues were to be paid directly to the msf. Thus, the Governor constitutionally caused the equivalent of a grant to be made, with the approval of the Legislature, to a state corporation authorized by the Legislature to receive and accept grants, gifts, and other aids. [Tiger Stadium Fan Club, supra at 454-456.]
In a footnote, the Court of Appeals noted that the House of Representatives concurred in the tribal-state gaming compacts. However, the resolution when considered by the Senate drew criticism. It was questioned whether the Governor had the authority to negotiate the compact, whether the general procedures for enacting a law should apply, and whether the generated funds should be utilized for the construction of a team stadium. However, ultimately, the Senate approved the resolution. This Court, in dicta, rejected any concern about usurped powers:
It is thus clear, first, that the Senate was aware of the terms of the compacts and consent judgment, including the provision for the payment of eight percent of certain gaming revenues directly to the MSF, and, second, that the Senate rejected challenges to the Governor’s constitutional authority to negotiate the compacts and adopted the concurrent resolution with the intention of ratifying and approving the compacts and settlement agreement as negotiated by the Governor. We recognize that it is a separate question whether the concurrent resolution would constitute sufficient legislative action if the revenues were determined to be subject to appropriation, one we do not address because our decision that the revenues are not subject to appropriation makes it unnecessary to do so. Putting aside Appropriations Clause considerations, and having in mind that the Legislature ratified and approved the Gover nor’s actions and the resulting compacts and consent judgment, we reject the argument that the Governor usurped the powers of the Legislature. [Id. at 455-456, n 5.]
Thus, previously, in the context of a compact, the Legislature questioned how a compact should be approved, but took no action to implement rules regarding passage of compacts. Significantly, this Court held, albeit in dicta, that there was no usurping of power by the Governor because the Legislature ratified and approved the consent judgment through the use of a joint resolution. However, this Court may find dicta persuasive and choose to follow it. Dykstra v Dep’t of Transportation, 208 Mich App 390, 392; 528 NW2d 754 (1995).
In McCartney v Attorney General, 231 Mich App 722, 724-725; 587 NW2d 824 (1998), the plaintiff filed suit when the defendant failed to provide six documents relating to the Governor’s negotiations with three Indian tribes regarding casino gambling as requested under the Freedom of Information Act (FOIA), MCL 15.231 et seq. The documents were categorized as those delivered by the Governor’s office to the defendant, seeking legal advice, and internal memoranda of the defendant with regard to the legal advice. The trial court held that the documents were exempt from production under the attorney-client privilege exemption of the FOIA, MCL 15.243(l)(h), and the deliberative process exemption, MCL 15.243(1)(n). As a preliminary matter, the plaintiff alleged that the defendant and the Governor did not enjoy an attorney-client relationship with regard to the documents and that the Governor’s actions were “ultra vires” or outside the scope of his authority. This Court held that there was a reasonable basis for the Governor’s authority to negotiate tribal-state gaming compacts:
The Governor is constitutionally authorized to present and recommend legislation. Const 1963, art 5, § 17. There is no prohibition in Michigan law that would bar the Governor’s actions in negotiating a gaming compact and then presenting it to the Legislature. Several other jurisdictions have reached similar conclusions in addressing the precise issue whether a state governor has authority to negotiate gambling compacts with Indian tribes pursuant to the federal Indian Gaming Regulator Act (IGRA), 25 USC 2701 et seq.
In State ex rel Stephan v Finney, 251 Kan 559, 582-583; 836 P2d 1169 (1992), the court held that the governor had power to negotiate a gaming compact with an Indian tribe, but could not bind the state to the resulting terms of any compact. Absent “an appropriate delegation of power by the Kansas Legislature or legislative approval of the compact, the Governor had no power to bind the State to the terms” of the compact. State ex rel Stephan v Finney, 254 Kan 632, 635; 867 P2d 1034 (1994). In State ex rel Clark v Johnson, 120 NM 562; 904 P2d 11 (1995), the court recognized that the governor could not enter into a gaming compact solely on his own authority. It held that the governor lacked constitutional authority to bind the state by unilaterally entering into compacts. Id. at 576. However, the court also recognized that the legislature could authorize the governor to enter into a gaming compact “or ratify his actions with respect to a compact he has negotiated ....’’ Id. at 574 (emphasis added). Thus, although the governor could not bind the state, he could negotiate a compact subject to legislative ratification. Finally in Narragansett Indian Tribe of Rhode Island v State, 667 A2d 280 (RI, 1995), the court held that the governor lacked constitutional and legislative authority to bind the state to a compact negotiated by him. However, the court noted:
“We also take care to note that our opinion in no way suggests that the Governor, in his capacity as Chief Executive officer of this state, lacks the authority to advocate, to initiate, and to negotiate, short of executing, a tribal-state compact. All that we determine herein is that the Governor, absent specific authorization from the General Assembly, had no express or implied constitutional right or statutory authority to finally execute and bind the state to such a compact by his execution thereof. [Id. at 282.]” [McCartney, supra at 726-728.]
This Court then recognized the Tiger Stadium decision:
Recently, this Court indicated that the Governor had the ability to negotiate and enter into compacts with an Indian tribe under the igra. In Tiger Stadium Fan Club, Inc v Governor, 217 Mich App 439; 553 NW2d 7 (1996), the Governor had been sued by Indian tribes to compel him to conclude a gaming compact. Subsequently, the Governor negotiated and entered into a consent judgment, which included a provision that certain gaming revenues would be paid into the Michigan Strategic Fund as long as the compact remained in effect. Id. at 443. “The consent judgment was to become effective upon execution of compacts between the tribes and the Governor and approval of the compacts by resolution of the Legislature.” Id. (emphasis added). Although the issue in Tiger Stadium Fan Club was different than that presented to this Court in this case (the plaintiffs in Tiger Stadium Fan Club were arguing that the Governor did not have authority to agree that revenues would be paid directly to the strategic fund), this Court ruled that the Governor “did not violate the Separation of Powers Clause in negotiating and effectuating the settlement.” Id. at 454. The Governor negotiated and executed the compact and then presented it to the Legislature as part of the consent judgment. Thus, this Court acknowledged that the Governor has the ability to enter into compacts with Indian tribes, subject to the approval of the Legislature.
We emphasize that the Governor has executive power, Const 1963, art 5, § 1, and the power to suggest legislation, Const 1963, art 5, § 17. We also emphasize that there is no constitutional impediment to the Governor’s negotiating with an Indian tribe where the product of his negotiations has no effect without legislative approval. We find that there are bases upon which the Governor had authority to negotiate with the Indian tribes on proposed compacts, which were subsequently presented to the Legislature for approval. For that reason, we cannot conclude that his actions were clearly ultra vires. Rather, we conclude that the Governor did not usurp legislative power because he did not attempt to bind the Legislature or the state to any terms in the compact. He did not enact legislation or force legislation on the Legislature. In its well-reasoned opinion, the trial court also recognized that the Governor did not exceed the scope of his authority when he conducted negotiations and discussions with the Indian tribes and later presented gaming compacts to the Legislature for its approval or rejection. We agree with the trial court’s analysis. [Tiger Stadium Fan Club, supra at 728-729.]
As previously stated, this Court may adopt dicta that we find persuasive. Dykstra, supra. The Governor clearly had the authority to negotiate the compacts with the Indian tribes. Following these negotiations, the compacts were submitted to the Legislature for approval. This approval took the form of a joint resolution, rather than legislation. The difference between the forms of approval is that legislation receives an enhanced standard of adoption. The resolution process required only a majority of members who were present or chose to participate, not a majority of elected members. The compact agreements were not the result of a decision by the citizenry at large or a policy choice by members of the Legislature, but rather, were the result of congressional policy in an area where state law is preempted. Accordingly, we adopt the dicta set forth in McCartney, supra, and Tiger Stadium Fan Club, supra, and reject plaintiffs’ constitutional challenges as set forth in this opinion.
IV. APPELLATE REVIEW
Our review of constitutional issues is de novo. Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 582; 640 NW2d 321 (2001). The party asserting the constitutional challenge has the burden of proof. Taylor v Gate Pharmaceuticals, 248 Mich App 472, 477; 639 NW2d 45 (2001). Before addressing the constitutionality of a provision, this Court must examine alternative, nonconstitutional grounds that might obviate the necessity of deciding the constitutional question. VandenBerg v VandenBerg, 231 Mich App 497, 499; 586 NW2d 570 (1998). Furtheimore, constitutional questions will not be addressed when the issue is not ripe for review. Dep’t of Social Services v Emmanuel Baptist Preschool, 434 Mich 380, 389; 455 NW2d 1 (1990).
V THE CONSTITUTIONAL CHALLENGES
Plaintiffs allege that the submission of the compacts for approval through the joint resolution process instead of through the legislative process for passage of a bill violates Const 1963, art 4, § 22, art 3, § 2, and art 4, § 29.
Const 1963, art 4, § 22 provides: “All legislation shall be by bill and may originate in either house.”
Const 1963, art 3, § 2 provides: “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”
Const 1963, art 4, § 29 provides:
The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by two-thirds of the members elected to and serving in each house and by a majority of the electors voting thereon in the district affected. Any act repealing local or special acts shall require only a majority of the members elected to and serving in each house and shall not require submission to the electors of such district.
However, we also note that plaintiffs repeatedly question the astuteness of the process by asserting that lame duck members, to avoid contravening the public policy of this state against casino gambling, resorted to joint resolution for approval. This assertion ignores the process through which these casinos originated. Michigan voters did not approve and could not approve of the casinos at issue. Furthermore, state legislators did not have the option of approving or disapproving casino gambling operated by Indian tribes. States that permit gambling activities, subject to regulation, may not prohibit casino gambling. Cabazon, supra. Indeed, this state, before the voter initiated referendum approving casinos in the city of Detroit, permitted various forms of gambling. This state authorized horse racing, MCL 431.301 et seq., and established and operates a state lottery, MCL 432.9, that is promoted through advertising. See MCL 432.41(4). Finally, a voter initiated law authorized casino gambling in the city of Detroit. Thus, Michigan regulates rather than prohibits gambling. Pursuant to Cabazon, supra, the state cannot prohibit Indian tribal gaming. In light of statutory regulation authorizing gambling activities in this state, federal law dictates that the state negotiate compacts with Indian tribes to allow casino gambling on Indian reservations. 25 USC 2701 et seq.
As an initial matter, we note that the IGRA sets forth the authorization for class m gaming activities between Indian tribes and individual states in 25 USC 2710(d):
(d) Class III gaming activities; authorization; revocation; Tribal-State compact
(1) Class III gaming activities shall be lawful on Indian lands only if such activities are—
(A) authorized by an ordinance or resolution that—
(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands,
(ii) meets the requirements of subsection (b) of this section, and
(iii) is approved by the Chairman,
(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and
(C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect. [Emphasis added.]
Review of the plain language of the igra, In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999), reveals that authorization may occur through ordinance or by resolution. In light of the acknowledged preemption in this area, see MCL 432.203(5), the resolution process is a sufficient method for approval of compacts. The approval by resolution contained in the igra is consistent with federal law addressing compacts. Congressional approval was generally one of historic occurrence rather than necessity. The true test of congressional approval occurs when powers of an entity are usurped. United States Steel Corp, supra. State legislative power cannot be usurped in this context because of the congressional decision to permit casino gambling on tribal land and the terms of the IGRA. While states may have the ability to negotiate and include regulatory terms in the compacts, there is no mechanism for enforcement. Rather, any dispute is submitted to arbitration or a mediator. Consequently, the challenge to the method of approval by resolution is without merit.
However, we also independently conclude that Const 1963, art 4, § 22 was not violated. Irrespective of the terms of the compacts that impose obligations on the Indian tribes themselves and the administrative functions assumed by the state, there is no enforcement provision within compacts to ensure that the compact terms are satisfied. Similarly, irrespective of whether the terms of the compact encroach upon legislative functions, the inability to enforce those terms precludes a challenge to the constitutionality of the compact. United States Steel Corp, supra. There is no indication that the limited role of the states and the plenary authority held by Congress has been altered by the terms utilized in the compacts. Plaintiffs cannot theorize that the language of the compacts rises to the level of legislation, but rather has the burden of proof to establish the alleged constitutional violation. Taylor, supra. Plaintiffs have faded to meet this burden.
Additionally, to construe a compact, we examine its history, extrinsic evidence of the negotiations concerning the compact, and the negotiation history of other compacts. Oklahoma, supra. Defendants allege and plaintiffs do not dispute that contracts executed by the state of Michigan are routinely approved by the resolution process. Taylor, supra. Furthermore, in 1993, compacts were approved by the resolution process. Tiger Stadium Fan Club, supra. The Legislature has a prior course of conduct, albeit unwritten, for approval of contracts. “Neither an administrative agency nor the judicial branch should trump the legislative process.” Michigan Gaming Institution, Inc v State Bd of Ed, 211 Mich App 514, 522; 536 NW2d 289 (1995), rev’d on other grounds 451 Mich 899 (1996).
Plaintiffs next allege that the compacts violate the Separation of Powers Clause, Const 1963, art 4, § 29, because the compacts give the Governor the authority to amend the compacts without a provision for legislative approval of the amendments. We disagree. Constitutional questions will not be addressed when the issue is not ripe for review. Emmanuel Baptist, supra. There is no indication that amendment was requested or made in this manner. Accordingly, this issue is not ripe for appellate review.
Lastly, plaintiffs allege that the compacts violated the provision requiring passage of legislation affecting local communities. Const 1963, art 4, § 29. We disagree. This state has no authority to regulate conduct on Indian tribal lands. Thus, while cities surrounding the designated casino areas may be affected, the IGRA has provided that Indian tribes may operate casinos on tribal lands. The citizens of the state of Michigan cannot vote on the propriety of placing tribal casinos on tribal lands. Thus, this argument is without merit. Accordingly, we reverse the trial court’s conclusion that the approval of the compacts by way of resolution violates Const 1963, art 4, § 22 and Const 1963, art 3, § 2, and affirm the trial court’s conclusion that the approval did not violate Const 1963, art 4, § 29, albeit on other grounds.
Affirmed in part and reversed in part. We do not retain jurisdiction.
Following the hearing regarding cross-motions for summary disposition, the trial court granted in part and denied in part each motion. Specifically, the trial court held that approval of the compacts by joint resolution violated Const 1963, art 4, § 22, requiring that all legislation shall be passed by bill. Additionally, the trial court held that Const 1963, art 3, § 2, governing separation of powers, was violated because of the Governor’s authority to amend the compacts. Lastly, the trial court held that Const 1963, art 4, § 29, requiring that all local measures be approved by two-thirds of the members of each house and a majority of electors voting in the affected district, was inapplicable.
The tribes involved are the Little River Band of Ottawa Indians, the band described in the compacts as the Pokagon Band of Ottawa Tribe and in the briefs as the Pokagon Band of Potawatomi Indians, the Little Traverse Bay Bands of Odawa Indians, and the Nottawaseppi Huron Potawatomi. In order to facilitate establishment of a casino, Indian tribes frequently retain consultants. Intervening defendants North American Sports Management Company, Inc., IV (dismissed from the action on August 12, 2002), and Gaming Entertainment, LLC, are consultants that provide financial and other support to Indian tribes that open and operate casinos.
The parties do not dispute the classification of gaining at issue.
See Northwestern States Portland Cement Co v Minnesota, 358 US 450; 79 S Ct 357; 3 L Ed 2d 421 (1950).
Despite the creation of rules governing establishment of a compact, there do not appear to be any uniform rules of procedure for congressional consent. For example, Congress approved a compact between the state of Ohio and Commonwealth of Pennsylvania addressing Pymatuning Lake as an act of Congress, 75 PL 398; 50 Stat 865 (1937), but a compact of free association was passed by joint resolution, 99 PL 658; 100 Stat 3672 (1986). There does not appear to be a rule of procedure to determine whether an act or a joint resolution may be utilized as the method of congressional consent.
We note that plaintiffs rely on an opinion of the Attorney General that concluded that the compacts should have been submitted as legislation. OAG, 1997-1998, No 6960, p 83 (October 21, 1997). The opinion of the Attorney General is not binding on courts as precedent, and it is questionable whether a governmental agency is even bound by an opinion of the Attorney General. Danse Corp v Madison Heights, 466 Mich 175, 182, n 6; 644 NW2d 721 (2002). Following an in-depth analysis of the historical context of tribal gaming, the historical approval of compacts, the origins of tribal gaming through igra, and Michigan case law, we decline the invitation to adopt the opinion of the Attorney General.
MCL 432.202(l)(i) permits gambling based on a population of at least 800,000 at the time of issuance of a license. We note also that the Michigan Gaming Control and Revenue Act (mgcra), MCL 432.201 et seq., contains an exception to its application with regard to casino gambling conducted under the igra. MCL 432.203(2). Additionally, in the event that states are given authority by the federal government to regulate gambling on Indian tribal land, new legislation would be passed to regulate those casinos. MCL 432.203(5).
We note that, despite the extensive pleadings filed in this action, plaintiffs failed to address various facts raised by defendant For example, defendant noted that the compacts executed in 1993 were approved by the resolution process and that a declaration that the compacts of 1998 are invalid because they were approved by resolution would necessarily negate the prior compacts. Additionally, defendant asserts, and plaintiffs do not dispute, that approval by resolution is the form of approval employed for state contracts. If, by course of conduct, contractual approval occurs through the resolution process, it is inappropriate to seek judicial interference with this legislative process. We note that the standing rules of each legislative body contain references to contracts, resolutions, and appropriations under certain circumstances. A written policy of contract approval in these rules or passage of legislation addressing approval of contracts would alleviate a challenge to the manner of contract approval. Additionally, we note that the parties failed to address what remedy would be available if we had determined that the resolution process was unconstitutional in light of Const 1963, art 1, § 10.
In Michigan Gaming Institution, the petitioner applied to the respondents for a license to operate a school to teach prospective gambling employees. Then appellate Judge, now Justice, Corrigan concluded in her dissent that the application should be denied because the school would be teaching behavior that violates provisions of the Penal Code. However, the dissenting opinion, adopted by the Supreme Court, expressly noted that public opinion regarding casino gambling was “in flux” and that Michigan did not choose to allow casino gambling on Indian reservations, but was required to negotiate with the tribes by virtue of the igra. Plaintiffs’ contention that this opinion supports their position is without merit. Rather, the forecast of change in the context of casino gambling was realized as shown by the mgcra.
Although procedural challenges were raised regarding plaintiffs’ standing and regarding real party in interest based on the failure to add the Indian tribes to the litigation, we have addressed the merits of the appeal because the issue was one of recurring public significance that was not definitively resolved by McCartney, supra, and Tiger Stadium Fan Club, supra. See Camden v Kaufman, 240 Mich App 389, 393; 613 NW2d 335 (2000). | [
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Meter, J.
Defendant appeals by leave granted from an order denying his motion to quash an information charging him with operating a motor vehicle while being under the influence of intoxicating liquor (ouil) or while having an unlawful blood alcohol content (ubal), third offense (ouil 3d), MCL 257.625(1) and MCL 257.625(8)(c). We affirm.
The police arrested defendant in Oakland County in January 2001 for operating under the influence of alcohol. Defendant was charged with ouil 3d because of two prior convictions in Wayne County, one in the 20th District Court in 1995, for impaired driving, and one in the 21st District Court in 1996, for UBAL. Defendant waived his right to a preliminary examination in the district court and was bound over for trial in the Oakland Circuit Court.
Defendant then filed an emergency motion in Wayne County to withdraw the guilty plea entered in the 20th District Court in the 1995 impaired driving case. Defendant claims in his brief filed with this Court that his motion was based on the deprivation of counsel. The district court granted the motion in an order dated February 14, 2002. Defendant then filed a motion in the Oakland Circuit Court to quash the information in the instant case, arguing that he could not be charged with ouil 3d because he now had only one prior conviction for enhancement purposes under MCL 257.625(23).
The trial court denied defendant’s motion to quash, reasoning, in part, that the order setting aside the 1995 impaired driving conviction was invalid because defendant moved to set aside that conviction years after being sentenced and only after being charged with ouil 3d.
On appeal, defendant contends that the trial court erred in denying the motion to quash. This Court reviews a trial court’s decision with regard to a motion to quash an information for an abuse of discretion. People v Hamblin, 224 Mich App 87, 91; 568 NW2d 339 (1997). An abuse of discretion occurs if an unbiased person, considering the facts on which the trial court based its decision, would find no justification for the ruling made. People v Orzame, 224 Mich App 551, 557; 570 NW2d 118 (1997). To the extent our analysis involves the interpretation of court rules or questions of subject-matter jurisdiction or constitutional law, our review is de novo. CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002); Etefia v Credit Technologies, Inc, 245 Mich App 466, 472; 628 NW2d 577 (2001); People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999).
MCR 6.610(E)(7) sets forth the time limit for challenging a guilty plea in district court. It states, in part:
The following provisions apply where a defendant seeks to challenge the plea.
(a) A defendant may not challenge a plea on appeal unless the defendant moved in the trial court to withdraw the plea for noncompliance with these rules. Such a motion may be made either before or after sentence has been imposed. After imposition of sentence, the defendant may file a motion to withdraw the plea within the time for filing an application for leave to appeal under MCR 7.103(B)(6).
MCR 7.103(B)(6) states that a “delayed application [for leave to appeal in the circuit court] may not be filed more tha[n] 6 months after entry of the order or judgment on the merits.”
Defendant contends that the six-month deadline for challenging a district court guilty plea does not apply to his 1995 conviction because the amended rules setting forth this deadline — MCR 6.610(E)(7)(a) and MCR 7.103(B)(6) — did not take effect until September 1, 2000. We agree that defendant was not required to challenge his guilty plea within six months of the entry of the 1995 conviction, because the rules in question had not been amended at that point.
However, the staff comment to the September 2000 amendment of MCR 6.610 states:
The amendment of MCR 6.610(E)(7) [effective September 1, 2000] establishes time limits for moving to withdraw pleas in district court criminal cases, comparable to those in circuit court cases. See MCR 6.311. New MCR 6.610(H) sets time limits for filing a motion for a new trial in district court criminal cases.
The amendment of MCR 7.103(B)(6) [effective September 1, 2000] places a 6-month time limit on applications for leave to appeal to circuit court, corresponding to the 12-month limit applicable in appeals to the Court of Appeals. See MCR 7.205(F)(3). As to judgments entered before the effective date of the amendment, the 6-month period specified in MCR 7.103(B)(6) begins on the effective date, September 1, 2000. [Emphasis added.]
The staff comment to the 2000 amendment of MCR 7.103 reiterates:
The amendment of MCR 7.103(B)(6) [effective September 1, 2000] places a 6-month time limit on applications for leave to appeal to circuit court, corresponding to the 12-month limit applicable in appeals to the Court of Appeals. See MCR 7.205(F)(3). As to judgments entered before the effective date of the amendment, the 6-month period specified in MCR 7.103(B)(6) begins on the effective date, September 1, 2000. [Emphasis added.]
These staff comments make clear that defendant had six months from September 1, 2000, to challenge his 1995 guilty plea. We acknowledge that staff comments are not part of the text of a court rule and that their interpretation of the rules is not binding. People v Petit, 466 Mich 624, 632, n 9; 648 NW2d 193 (2002). Staff comments are published for the benefit of the bench and bar, but are not authoritative. See Michigan Coalition of State Employee Unions v Michigan Civil Service Comm, 465 Mich 212, 232; 634 NW2d 692 (2001). Nevertheless, we conclude that the staff comments at issue in this case represent a correct interpretation of the law and that the challenge defendant made to his 1995 guilty plea was indeed prohibited as dilatory.
A particularly instructive case is People v Ward, 459 Mich 602; 594 NW2d 47 (1999), amended 460 Mich 1204 (1999). In Ward, the defendant pleaded guilty in February 1995 to a charge of OUIL 2d. Id. at 605. Although the defendant was represented by an attorney at the plea proceedings, the district court that accepted the plea did not comply with other plea-taking requirements of MCR 6.610(E). Ward, supra at 606. In February 1996, the defendant was again arrested for driving under the influence of alcohol and was charged with ouil 3d. Id. The defendant then moved to withdraw his 1995 guilty plea because of the court rule violations, and the district court granted the motion. Id. at 606-607.
The Supreme Court held that the district court abused its discretion in setting aside the defendant’s OUIL 2d conviction. Id. at 611-612. The Court noted the following:
[BJecause the validity of the plea was contested merely out of subsequent sentencing concerns, defendant’s ability to directly attack his ouil 2d conviction was foreclosed when he was arrested and charged with ouil 3d.
* * *
. . . Defendant has never claimed actual innocence, and the principal motivation behind the motion is plainly extrication from the sentencing implications of ouil 3d. [Id. at 612-614.]
The Court further noted:
Siimlarly, where an appeal to the Court of Appeals is delayed by more than twelve months after judgment, appeal is foreclosed and defendant is limited to the post-appeal relief provisions under MCR 6.501 et seq. MCR 7.205(F)(3). In essence, a long delayed direct appeal is treated as collateral. No principle countenances giving a defendant in district court greater freedom to attack a plea-based conviction than our rules allow for felony convictions. [Ward, supra at 614 (emphasis added).]
Finally, the Court noted, “In view of the ambiguity in the rules regarding delayed appeals, we are today, by separate order, publishing for comment proposed amendments of MCR 6.610 and 7.103 to clarify the time limits for challenging plea-based convictions in district court.” Ward, supra at 614-615.
The amendments of MCR 6.610(E)(7)(a) and MCR 7.103(B)(6) make clear the Supreme Court’s intention to unequivocally foreclose appeals of district court guilty pleas brought over six months after entry of the judgment. Moreover, the interplay of Ward, MCR 6.610(E)(7)(a), and'MCR 7.103(B)(6) convinces us that the staff comment to the September 2000 amendment of MCR 6.610(E)(7)(a) and the staff comment to the 2000 amendment of MCR 7.103(B)(6) are entirely correct: A defendant who pleaded guilty to an offense in district court before the effective date of the amendments had only six months from September 1, 2000, to challenge the plea. Any other interpretation would contravene the Ward Court’s strong disavowal of delayed challenges to guilty pleas and the Court’s corresponding intent to limit the period for challenging a plea-based conviction. Defendant missed the six-month deadline in the instant case, and therefore the district court erroneously allowed defendant to withdraw his guilty plea in the 1995 case.
Defendant contends, however, that we are not at liberty to invalidate the district court’s ruling because the prosecutor in the 1995 case did not appeal that ruling. He further argues that the Oakland County prosecutor in this case had no jurisdiction to challenge the ruling concerning the 1995 conviction, because the conviction and ruling occurred in Wayne County. We disagree, because the issue involved is one of jurisdiction.
“The term jurisdiction refers to the power of a court to act and the authority a court has to hear and determine a case.” In re Waite, 188 Mich App 189, 196-197; 468 NW2d 912 (1991). The district court had a responsibility to take notice that it lacked subject-matter jurisdiction regardless of whether the parties raised the issue. In re AMB, 248 Mich App 144, 166-167; 640 NW2d 262 (2001). A court is bound to notice the limits of its authority and to sua sponte “recognize its lack of jurisdiction or any pertinent boundaries on its proper exercise.” People v Erwin, 212 Mich App 55, 64-65; 536 NW2d 818 (1995). Moreover, as stated in Waite, supra at 197, “When a court is without jurisdiction of the subject matter, its acts and proceedings are of no force and validity; they are a mere nullity and are void. . . . Thus, an order entered without jurisdiction may be challenged collaterally as well as directly.” Because the district court was without jurisdiction under the court rules and thus was without authority to act, the trial court correctly disregarded the order setting aside the 1995 conviction.
Defendant contends that applying the six-month time limit to his situation would violate the constitutional prohibition of ex post facto laws. See US Const, art I, § 10, cl 1; US Const, art I, § 9, cl 3; and Const 1963, art 1, § 10. However, defendant’s treatment of this issue is so cursory that we need not address it. See, generally, People v Leonard, 224 Mich App 569, 588; 569 NW2d 663 (1997). At any rate, even if we were to address this issue, we would find no constitutional violation, because the amendments at issue here relate to procedure. The prohibition against ex post facto laws “ ‘was intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit . . . control of remedies and procedure that do not affect matters of substance.’ ” People v Jackson, 465 Mich 390, 402; 633 NW2d 825 (2001), amended 465 Mich 1209 (2001), quoting People v Russo, 439 Mich 584, 592; 487 NW2d 698 (1992). Moreover, the amendments at issue did not criminalize a theretofore innocent act, did not aggravate a crime previously committed, 'did not provide greater punishment for a crime, and did not change the proof necessary for a conviction. Jackson, supra at 402. Finally, defendant had six months after the effective date of the amendments to challenge his 1995 conviction and thus cannot complain that the amendments severely prejudiced him.
The trial court correctly concluded that defendant had two prior convictions for purposes of MCL 257.625(23). Accordingly, the court properly rejected defendant’s motion to quash the OUIL 3d information.
Affirmed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
The order does not set forth the district court’s reasons for setting aside the 1995 conviction.
We note for the sake of completeness that the district court erred in setting aside the 1995 conviction under the explicit language from Ward, even disregarding the amended court rules at issue here. The Ward Court noted the fourteen-month delay in the defendant’s challenge to his plea and noted that the challenge occurred only after the defendant was charged with ouil 3d. Ward, supra at 612. It explicitly stated that the defendant’s challenge was “foreclosed” because it resulted from subsequent sentencing concerns. Id. The instant case presents facts analogous to those at issue in Ward. Indeed, defendant waited over five years to challenge his guilty plea, and he did so only after being charged with ouil 3d. Therefore, a challenge by the prosecutor to the district court’s order of dismissal in defendant’s 1995 case would have been meritorious under Ward, even disregarding the amendments of MCR 6.610(E)(7)(a) and MCR 7.103(B)(6).
We note that under MCR 6.610(E)(2), a district court conviction obtained by guilty plea may not be used to enhance a later sentence or charge “unless a defendant who is entitled to appointed counsel is represented by an attorney or waives the right to an attorney.” However, if the conviction did not actually result in imprisonment, the conviction may be used for enhancement purposes regardless of the involvement of counsel. See, generally, People v Reichenbach, 459 Mich 109, 120; 587 NW2d 1 (1998). The record before us sheds little light on the situation surrounding defendant’s 1995 conviction. However, because defendant did not raise the issue of MCR 6.610(E)(2) either below or on appeal to this Court, we assume that it does not apply to his situation (i.e., that he either was not entitled to appointed counsel at the time of the 1995 plea or that his conviction did not result in actual incarceration). | [
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Neff, J.
Plaintiff appeals as of right from an order denying his motion for summary disposition, dismissing his claims under the Freedom of Information Act (FOIA), MCL 15.231 et seq., and dismissing his retaliatory harassment and civil rights claims after the trial court concluded that defendant city of New Baltimore properly issued a citation for the storage of plaintiffs boat on vacant property in violation of a city ordinance. We reverse and remand.
I. BASIC FACTS AND PROCEDURAL HISTORY
The chronology and alleged underlying facts of this case are not at issue on appeal. On February 12, 2001, plaintiff made an FOIA request to defendant Ann Billock, the clerk of the city of New Baltimore, for certain public records related to a development project in the city:
[1] All materials submitted to the City of any date relating to the compliance of Bay-Rama, Inc. with the New Baltimore Woodlands Ordinance at the Festival Park property adjoining St. Claire Drive, of any date.
[2] All reports, analyses, memoranda or correspondence prepared by Mayor Joe Grajek or his designee in response to the application of Bay-Rama, Inc. for a woodlands permit for Festival Park, of any date.
[3] All proposals, plans, and drawings for the construction of Festival Park, of any date.
[4] All agendas, minutes, resolutions, and permits relating to the consideration and approval or rejection of the proposals, plans and drawings for the construction of Festival Park, of any date.
Defendant Joseph Grajek, the city’s mayor, responded to the request the same day by producing three records and orally assuring plaintiff that these were all the public records within the scope of the request. However, when plaintiff later attended a city council meeting that evening, he discovered two undisclosed public records posted on a bulletin board outside council chambers. The following day, on February 13, 2001, plaintiff hand-delivered an FOIA appeal letter to the mayor, pursuant to MCL 15.240(l)(a). In that letter, plaintiff expressly stated that, “[b]ecause it is evident that the City has wrongly denied the existence of records about Festival Park that were described sufficiently in the FOIA request to allow them to be identified, I request that you [the mayor] undertake another search of City records and provide me with an amended disclosure of the results.” Subse quently, the mayor responded to the appeal by producing a booklet containing the two public records and orally assuring plaintiff that there were no other documents.
Nonetheless, at a subsequent city council meeting on February 26, 2001, plaintiff learned of city planning commission records, also allegedly within the scope of his foia request, which the city had failed to produce. On March 1, 2001, plaintiff filed this foia action seeking disclosure of the requested records.
On March 6, 2001, plaintiff amended his complaint to add claims of “retaliatory harassment” and civil rights violations based on alleged harassment by the mayor and New Baltimore Police Officer Michael Mertens in retaliation for plaintiffs opposition to the Festival Park plans and his legal action against the city. According to the amended complaint, on March 5, 2001, Officer Mertens told plaintiff that he had orders, originating from the mayor, to issue a citation to plaintiff for any violation of law, and that plaintiff’s boat was stored on a vacant residential lot in violation of a city ordinance. The boat, which was on a trailer and properly registered, had been stored seasonally for several years on a lot adjoining a duplex plaintiff rented, which was destroyed by a fire on October 8, 2000. Until March 2, 2001, plaintiff had rented and occupied a garage on the duplex property, which was demolished on March 5, 2001, in preparation for reconstruction of the dwelling unit. Officer Mertens informed plaintiff that the boat must be removed or Mertens would issue a citation. Plaintiff’s lessor was subsequently issued a citation for a municipal civil infraction for the storage of plaintiff’s boat on the vacant lot.
On March 21, 2001, defendants mailed plaintiff the minutes of the city’s planning commission meeting, dated March 21, 1995, completing the requested foia production. Plaintiff moved for summary disposition regarding the foia claim and for a declaratory judgment regarding his right to store his boat on the vacant residential lot. The court denied plaintiff’s motion for summary disposition and dismissed plaintiff’s foia claim on the ground that it was moot because plaintiff had received the remaining public records. With respect to plaintiff’s request for a declaratory judgment, the circuit court concluded that the zoning ordinance prohibited the storage of a boat on a vacant residential lot, and accordingly, dismissed plaintiff’s claims of retaliatory harassment and civil rights violations.
II. FOIA claim
Plaintiff argues that he was a “prevailing” party pursuant to the FOIA, and that the circuit court erred in failing to award him actual costs and dismissing plaintiff’s foia claim as moot. We conclude that plaintiff completely prevailed on this issue and that the circuit court abused its discretion in denying plaintiff actual costs.
This Court reviews de novo a trial court’s grant or denial of a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). In reviewing a motion under MCR 2.116(C)(10), this Court must consider all documentary evidence in a light most favorable to the nonmoving party. Scharret v Berkley, 249 Mich App 405, 410; 642 NW2d 685 (2002). A motion for summary disposition under MCR 2.116(C)(10) may properly be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
This Court reviews a trial court’s factual findings for clear error and reviews de novo questions of law. Schroeder v Detroit, 221 Mich App 364, 366; 561 NW2d 497 (1997). Statutory inteipretation is a question of law reviewed de novo. Oakland Co Bd of Co Rd Comm’rs v Michigan Prop & Cas Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998).
The foia is a mechanism through which the public may examine and review the workings of government and its executive officials. Messenger v Ingham Co Prosecutor, 232 Mich App 633, 641; 591 NW2d 393 (1998). It was enacted to carry out this state’s strong public policy favoring access to government information, recognizing the need for citizens to be informed so that they may fully participate in the democratic process and thereby hold public officials accountable for the manner in which they discharge their duties. MCL 15.231(2); Scharret, supra at 411; Messenger, supra at 641. By its express terms, the FOIA is a prodisclosure statute; a public body must disclose all public records not specifically exempt under the act. MCL 15.233(1); Herald Co v Bay City, 463 Mich 111, 119; 614 NW2d 873 (2000); Scharret, supra at 411.
The foia sets forth specific requirements that must be followed in filing and responding to information requests. Unless otherwise agreed to in writing, a public body must respond to a request for a public record within five business days after it receives the request, and the failure to so respond constitutes a final determination to deny the request. MCL 15.235(2) and (3); Scharret, supra at 411-412. “[I]f a public body makes a final determination to deny a request, the requesting person may either appeal the denial to the head of the public body or commence an action in the circuit court within 180 days.” Id. at 412-413, citing MCL 15.235(7). If a plaintiff prevails in an action to compel disclosure under the foia, the circuit court must award reasonable attorney fees, costs, and disbursements to the plaintiff. Scharret, supra at 414.
In this case, the trial court dismissed plaintiffs FOIA claim, concluding that the claim was moot because plaintiff had received the requested public records. The court denied plaintiff’s request for costs pursuant to MCL 15.240(6), finding “no evidence that the City had the information at the time requested,” and further that the costs incurred were not related solely to plaintiff’s foia claim because plaintiff’s complaint included a count for a declaratory judgment. We disagree.
Under the foia, the trial court must award reasonable attorney fees, costs, and disbursements to a prevailing party. MCL 15.240(6). “A party prevails in the context of an foia action when the action was reasonably necessary to compel the disclosure, and the action had a substantial causative effect on the delivery of the information to the plaintiff.” Scharret, supra at 414 (emphasis in original). The mere fact that plaintiff’s substantive claim under the FOIA was rendered moot by disclosure of the records after plaintiff commenced the circuit court action is not determinative of plaintiff’s entitlement to fees and costs under MCL 15.240(6).
The record indicates that defendants violated the foia by failing to respond to plaintiff’s foia requests as required by statute, MCL 15.235(2); MCL 15.240(2), and by failing to follow their duty to timely disclose all records within plaintiffs request, particularly when defendants do not allege that they were specifically exempt under the act. MCL 15.233(1).
Although the mayor partially responded to plaintiff’s requests and to his appeal, it is undisputed that the city omitted the 1995 planning commission meeting minutes pertaining to Festival Park, and did not disclose the minutes until after plaintiff commenced his action in circuit court. If an FOIA request is denied, the burden is on the public body to justify its decision. MCL 15.240(4); Swickard v Wayne Co Medical Examiner, 438 Mich 536, 544; 475 NW2d 304 (1991).
On appeal, defendants assert that “they never refused to disclose information compatible with plaintiff’s FOIA requests but simply encountered difficulty ascertaining the specific documents which plaintiff requested.” In effect, defendants argue that plaintiff failed to sufficiently describe the requested records to enable them to find the records. We find this argument unconvincing.
A request for disclosure under the foia must be sufficiently descriptive to allow the public body to find the public records containing the information sought. MCL 15.233(1); Herald Co, supra at 121. A request need not describe the specific public records to be disclosed. Id.
Neither in the lower court nor on appeal have defendants pointed out which part of plaintiff’s FOIA request and appeal they claim is ambiguous or unclear, and the lack of a sufficient description was not cited as a basis for denying any part of plaintiff’s FOIA request. MCL 15.235. A review of plaintiff’s requests shows that the information sought was suffi ciently described. We conclude that the request was valid under MCL 15.233(1). Herald Co, supra at 121. The planning commission minutes included a presentation of the Bay-Rama conceptual plan. Defendants have failed to sustain their burden to justify their failure to timely provide plaintiff complete access to the requested public records.
We conclude that the circuit court erred in denying plaintiff costs on the basis that there was no evidence that the public record was in defendants’ possession at the time of plaintiff’s February 12, 2001, request. The factual basis for the court’s finding is unclear. It may stem from confusion over the date of the public record, i.e., the court simply overlooked the six-year difference between the date of the March 21, 1995, meeting minutes, and the date that they were mailed to plaintiff, March 21, 2001, and erroneously concluded that this document was created after plaintiff’s February 2001 foia request. Regardless, as discussed above, the court’s conclusion fails to recognize that defendants have failed to justify their denial. Swickard, supra at 544.
Plaintiff’s FOIA action was reasonably necessary to compel the disclosure because the facts show that, despite the mayor’s several assurances that the requested records had been provided, plaintiff continued to discover the existence of additional public records within the scope of his request. Given the lack of any evidence to the contrary, we conclude that the action had a substantial causative effect on the delivery of the 1995 planning commission minutes to plaintiff. Therefore, plaintiff prevailed in his FOIA claim. Scharret, supra at 414.
With respect to whether plaintiff has completely prevailed in the foia claim, this Court has previously explained:
In drafting MCL 15.240(4); MSA 4.1801(10)(4), the Legislature apparently intended to enforce the obvious salutary purposes of the foia to encourage voluntary compliance with requests under the foia and to encourage plaintiffs who are unable to afford the expense of litigation to nonetheless obtain judicial review of alleged wrongful denials of their requests. In light of these purposes, we believe that a plaintiff “prevails” in the action so as to be entitled to a mandatory award of costs and fees where he is forced into litigation and is successful with respect to the central issue that the requested materials were subject to disclosure under the foia, even though the action has been rendered moot by acts of the public body in disposing of the documents. An otherwise successful claimant should not assume the expenses of the litigation solely because it has been rendered moot by the unilateral actions of the public body. The trial court’s order denying costs and attorney fees is therefore vacated. [Walloon Lake Water Sys, Inc v Melrose Twp, 163 Mich App 726, 733-734; 415 NW2d 292 (1987) (citations omitted).]
Defendants argue that Walloon is inapplicable to the facts in the instant case because of “the unique circumstances” in that case. In Walloon, the public body did not have the requested public record because it gave it to a third party after the plaintiffs request. Id. at 729, 732-733. We do not find defendants’ action of withholding the public record in the instant case distinguishable from actively disposing of a public record when the purpose and effect of both actions was to deprive the requester his statutory right to access those public records, thereby defeating the purposes of the foia. Therefore, in light of the above, plaintiff has completely prevailed in his foia action, and he is entitled to an award of his actual costs of $139.63 as verified in his uncontroverted affidavit detailing his costs and disbursements for Count I of his complaint, i.e., his FOIA claim.
HI. DECLARATORY JUDGMENT
Plaintiff argues that the circuit court erred when it construed the disputed provisions of the city ordinance and ruled that the ordinance prohibits the storing of plaintiffs boat on a vacant residential lot. We agree, albeit for a different reason.
The rules governing the construction of statutes apply with equal force to the inteipretation of municipal ordinances. Gora v Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998). The primary goal of statutory inteipretation is to ascertain and give effect to the intent of the Legislature. Draprop Corp v Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Id. The first consideration in determining legislative intent is the specific language of the statute. Id. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted and courts must apply the statute as written. Id.
The first section of the zoning ordinance at issue is § 1214, “Storage in Any Residential District,” which provides, in pertinent part: “A. The storage of tents, fish shanties, travel trailers, utility trailers, boats and recreation vehicles and similar items shall not be per mitted within the front yard. Reference should be made to Section 1401.A. and 1401.B.”
Here, the circuit court referred to subsection 1401(A), which provides:
A. No major recreational equipment shall be parked or stored on any lot in a residential district except in a garage, enclosed building, or in the rear yard, or located behind the front building line of the main structure and placed so as not to cause a nuisance to abutting residential premises. No such equipment shall be used for living, sleeping or housekeeping purposes when parked or stored on a residential lot.
According to subsection 1214(A), the storage of utility trailers and boats and similar items shall not be permitted within the front yard. According to the applicable provisions of subsection 1401(A), a boat may only be stored in the rear yard or behind the front building line of the main structure. The circuit court analyzed the terms “yard” and “structure” as defined by the ordinance, and, from the language of those definitions, concluded that the ordinance requires a structure or building to be present on the lot to satisfy the storage requirements of the ordinance. However, the circuit court failed to take the analysis a step further. Section 1900 of the ordinance, “Construction of Language,” provides the rules of construction that are to be applied to the text of the ordinance. According to subsection 1900(4), “[w]ords used in the present tense shall include the future . . . .” The ordinance does not define the word “future.” Therefore, the dictionary definition for its ordinary and plain meaning is warranted. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). According to Random House Webster’s College Dictionary (1997), the word “future” means “something that will exist or happen in time to come.”
The two provisions at issue and the definitions provided by the ordinance are in the present tense. Therefore, they include not only something that currently exists, but also something that will exist or happen in the future, but does not necessarily exist now. The ordinance defines “structure” as “anything [that is] constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground.” By using the ordinance’s rule of construction, the present tense form of this definition includes the future, which means that the structure on the property need not exist at the present moment, but may exist in the future. Accordingly, the circuit court erred in concluding that the ordinance prohibits the storage of a boat on a vacant lot.
Pursuant to subsection 1214(A), the boat may be stored at the point where the front yard ends, that is, where the front of the future building may be legally located. Pursuant to subsection 1401(A), the boat can be stored either in the rear yard (which begins with the back side of the future building) or behind the front building line (where the front of the future building may be legally located). Thus, subsections 1214(A) and 1401(A) are clear and unambiguous, and allow plaintiff to store his boat on the vacant residen tial lot as long as the boat is stored behind the front building line or in the rear yard.
Because the circuit court determined that the ordinance prohibited the storage of the boat on a vacant lot, the circuit court did not make a determination with respect to whether plaintiffs boat was stored behind the front building line or in the rear yard of the lot. This Court may address an issue not decided below if it is a question of law for which all the necessary facts were presented. D’Avanzo v Wise & Marsac, PC, 223 Mich App 314, 326; 565 NW2d 915 (1997). Although plaintiff provided the circuit court with a comprehensive analysis of the rear yard and front line requirements that apply to his residential lot pursuant to the ordinance, showing that his boat was stored well within the confines of the rear yard, which defendants did not challenge in the lower court, a determination whether plaintiffs boat was legally stored in the rear yard or behind the front building line is a factual determination that cannot be made by this Court. Therefore, on remand, the circuit court should make this determination.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Plaintiff acknowledges that because he proceeded in propria persona, he is not entitled to attorney fees. Haskins v Oronoko Twp Supervisor, 172 Mich App 73, 79; 431 NW2d 210 (1988).
The parties agree that subsection 1401(B) is inapplicable.
In fact, according to plaintiff’s affidavit, the lot still has the cinder-block foundation from the former two-story home on the lot, which was destroyed by fire in the 1960s. | [
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Per Curiam.
Defendant Richard Bearinger appeals as of right from an order granting summary disposition in favor of plaintiff Auto Club Group Insurance Company (acgic). We affirm.
Bearinger filed a personal injury tort claim against respondent Judith Daniel. Though acgic provided counsel to defend Daniel, acgic later filed this action for declaratory judgment to determine whether it was contractually obligated under its policy with Daniel to provide a defense for or indemnify Daniel. The trial court held that the “criminal act” exclusion in Daniel’s insurance policy eliminated any duty of acgic to defend or indemnify Daniel and, therefore, granted acgic’s motion for summary disposition under MCR 2.116(C)(10).
I
While deer hunting in the same deer blind on Daniel’s property, Daniel unintentionally shot Bearinger. As a result, Bearinger suffers from a fifteen-percent hearing loss in his right ear, tinnitus, and occasional dizzy spells. Both Bearinger and Daniel were drinking beer before the shooting incident. When police officers arrived, Daniel’s blood alcohol content measured 0.103 and she later pleaded guilty to a charge of careless discharge of a firearm resulting in injury, MCL 752.861.
This Court reviews de novo a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Under MCR 2.116(C)(10), a motion for summary disposition tests the factual support of the claim. Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001). When deciding a motion pursuant to MCR 2.116(C)(10), this Court must consider “[t]he affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties . . . .” MCR 2.116(G)(5). “This case [also] involves issues concerning the proper interpretation of contracts, which are questions of law that are subject to de novo review by this Court.” Archambo v Lawyers Title Ins Corp, 466 Mich 402, 408; 646 NW2d 170 (2002).
ii
Bearinger claims the trial court erred in ruling that the insurance policy’s criminal act exclusion provision is unambiguous and thus precludes coverage. An insurance company will not be held responsible for a risk that it did not assume. Allstate Ins Co v Fick, 226 Mich App 197, 202; 572 NW2d 265 (1997). An unambiguous policy must be enforced as written. Id. “A contract is said to be ambiguous when its words may reasonably be understood in different ways.” Raska v Farm Bureau Mut Ins Co, 412 Mich 355, 362; 314 NW2d 440 (1982).
Bearinger argues that the policy’s criminal act exclusion, which denies coverage for “bodily injury or property damage resulting from a criminal act or omission,” merely excludes reimbursement for actual bodily injury, but not for other damages such as medical bills, wage loss, mental anguish, fright and shock, denial of social pleasure and enjoyment, and so forth.
The policy unequivocally states that the term “bodily injury” includes “bodily injury, sickness, disease, including required care and loss of services.” Clearly, the damages Bearinger claims for medical bills, mental anguish, loss of social pleasure and the like are included in the phrase “required care and loss of services.” Therefore, the trial court correctly held that the criminal act exclusion is not ambiguous.
The policy’s criminal act exclusion provides that acgic will not cover bodily injury resulting from a criminal act or omission or an act or omission that is criminal in nature. There is no dispute that this incident meets the definition of “criminal act or omission” because Daniel pleaded guilty to the criminal charge of careless discharge of a firearm. Thus, the criminal act exclusion precludes coverage for Bearinger’s iryuries.
Bearinger also contends that the trial court committed error requiring reversal in holding that the criminal act exclusion is not void as against public policy. “Any clause in an insurance policy is valid as long as it is clear, unambiguous and not in contravention of public policy.” Raska, supra at 361-362. An insurance company is free to limit its liability as long as it does so clearly and unambiguously Fick, supra at 201.
The criminal act exclusion is not contrary to public policy because the policy language is clear and unambiguous and ACGIC is free to limit its liability. Further, Bearinger fails to support his claim that the criminal act exclusion provision renders the policy “illusory.” Again, when Daniel voluntarily pleaded guilty to a criminal charge, she excluded herself from insurance coverage. We further note that, as a matter of public policy, an insurance policy that excludes coverage for a person’s criminal acts serves to deter crime, while a policy that provides benefits to those who commit crimes would encourage it.
Further, Bearinger says that the trial court erred in failing to strike the criminal act exclusion as a term that is not subject to negotiation in an adhesion contract. In determining whether a policy constitutes an adhesion contract, this Court considers the relative bargaining powers of the parties and whether the disputed contract term is unreasonable. Rehmann, Robson & Co v McMahan, 187 Mich App 36, 43; 466 NW2d 325 (1991). Generally, this Court will not invalidate contracts as adhesion contracts where the challenged provision is reasonable. Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118, 157; 596 NW2d 208 (1999).
While Daniel may not have had significant bargaining power over the terms of the ACGIC policy, the criminal act exclusion is unambiguous and Bearinger has presented no evidence that a similar insurance policy, without a criminal act exclusion, was unavailable from another company. Most importantly, as discussed, the criminal act exclusion is neither unreasonable nor contrary to public policy.
Affirmed. | [
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T. M. Burns, J.
Defendant Robert W. Hall was convicted by a jury on January 9, 1973, of second-degree murder. MCLA 750.317; MSA 28.549. He was sentenced on February 13, 1973, to a prison term of from 30 to 50 years, with appropriate credit for time already spent in jail. Defendant now appeals his conviction and sentence as of right.
On the night of May 20-21, 1972, three young men from Michigan City, Indiana, Kenneth Beh rendt, Claude Novak, and the victim, John Blank, drove to Casey’s Pub in New Buffalo, Michigan. At the pub, these men talked to some friends for a short period of time and then talked to some girls. A short time later the defendant approached the three men and began staring at them, especially at John Blank. Defendant threatened Blank, but Blank attempted to ignore him. When the three men left, with John Blank in the lead, defendant followed taking a beer bottle with him. Defendant broke the beer bottle outside the pub and poked it at Blank when Blank was getting into his car. Blank apparently disarmed the defendant in some manner and chased him down the street.
As Blank was returning to his car after the chase, a group of young men led by the defendant attacked him and the other two Indiana men. After the fight which ensued, Blank, who had suffered chest and neck wounds, was taken to a state police post for aid by his two friends. He was subsequently transported to a hospital where he died a short time later.
The doctor who performed the autopsy on Blank testified at trial that the death was caused by a stab wound through the heart and that the wound was one of two in the chest area which could have been caused only by a knife, letter opener, or similar instrument at least two inches in length.
The primary question presented to the jury was whether or not the defendant killed John Blank. A customer at the pub testified that she went outside with a number of other people to see the fight, but that it had already broken up when she got there. However, she stated that she saw defendant holding an instrument resembling a knife in his hand while she was standing outside the bar.
Another witness testified that defendant had run up to a house near the pub at which she and others, including defendant, had been attending a party, and asked for a knife. A knife used by the witness to open beer bottles could not be found later. Other pertinent facts will be presented in our discussion of the several issues raised by defendant.
Defendant first contends that the prosecutor, during closing argument, improperly referred to the defendant’s failure to testify. No objection to the complained-of statements was raised at trial and no curative instruction was requested. Therefore, this issue is not properly before us. People v McLendon, 51 Mich App 543; 215 NW2d 742 (1974); People v Pacely, 51 Mich App 67, 71; 214 NW2d 561 (1974).
Second, defendant argues that the prosecutor improperly commented on the credibility of various witnesses. We consider this Court’s statement in People v Duke, 50 Mich App 714, 717; 213 NW2d 769 (1973), to be dispositive of this issue:
"A prosecutor is entitled to comment on the evidence and draw reasonable inferences therefrom. He is free in final argument to relate the facts to his theory of the case. In this case, the prosecutor attempted to establish a permissible relationship between his theory and the facts in evidence. Defendant made no objection at the time the allegedly offensive statements were made. There was no request for curative or corrective instructions. Hence the error, if any, was waived.” See People v Pacely, supra.
Third, defendant claims that the trial court committed reversible error by sua sponte instructing the jury to disregard defendant’s failure to testify. We decline to accept the authorities cited by defendant as controlling precedent, but rather feel that the following statement from our recent decision in People v Andrews #1, 52 Mich App 719, 725-726; 218 NW2d 379, 382 (1974), controls this issue:
"The essence of the defendant’s argument is that such sua sponte instructions amount to a comment or reference by the trial judge on the defendant’s failure to testify in his own behalf in violation of MCLA 600.2159; MSA 27A.2159. The appellate defender makes a cogent argument for that position. The policy behind the statute is that 'neglect to testify shall not create any presumption against [the defendant]’. To instruct the jury to that effect in the absence of request to do so represents commendable concern for the rights of the defendant and should in no way work against his interests. People v Waters, 16 Mich App 33, 36-37; 167 NW2d 487 (1969). There is no merit to this contention of the defendant. People v Harris, 52 Mich App 739; 218 NW2d 150 (1974).”
Fourth, the defendant contends that the trial court improperly instructed the jury on an offense higher than that charged, namely first-degree murder. In charging the jury on the elements of the charged offense of second-degree murder, the trial court referred to first-degree murder in precluding the jury from considering the element of premeditation. These references to premeditation and the higher offense of first-degree murder were contained in only 2 paragraphs of the trial court’s entire 25-page charge to the jury.
We note at the outset that defense counsel did not object to the instruction in question and in fact expressed satisfaction with it. Therefore, the giving of this allegedly erroneous instruction does not warrant reversal absent a showing of manifest injustice. People v McShan, 53 Mich App 407; 219 NW2d 792 (1974); People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972).
Jury instructions should be read in their en tirety to determine whether any manifest injustice occurred. People v Elkins, 39 Mich App 603; 198 NW2d 31 (1972). A close consideration of the instruction read as a whole fails to disclose any reversible error or prejudice to defendant, let alone manifest injustice. Therefore, defendant’s claim, raised here for the first time on appeal, is meritless.
Fifth, defendant asserts that the trial court’s instructions on lesser included offenses were coercive and unduly restricted the jury in their right to find defendant guilty of a lesser included offense. Defendant cites People v Ray, 43 Mich App 45; 204 NW2d 38 (1972), in support of his position.
After reading them in their entirety, we are convinced that these instructions on lesser included offenses do not sustain defendant’s contention. As opposed to the circumstances presented in Ray, here there was no "requirement of unanimous agreement on defendant’s innocence of the greater charge before discussion of the lesser charges [was] permitted”. 43 Mich App 45, 50. See also People v James, 51 Mich App 777, 216 NW2d 473 (1974).
Sixth, defendant maintains that the trial court imposed sentence on the basis of erroneous facts contained in the presentence report. At sentencing, the trial court noted that it had read the presentence report and talked with various probation officers and defendant’s attorney.
Defendant first argues that the trial court considered prior constitutionally infirm convictions contained in the presentence report. We refrain from considering this claim since defendant has not complied with the procedures set forth in People v Moore, 391 Mich 426, 440-441; 216 NW2d 770 (1974), i.e., defendant has not given the sen tencing court the initial opportunity to resolve this claim.
Defendant next contends that it was error for the trial court to consider this presentence report since it contained arrests which did not result in convictions.
Defendant presents no evidence that the trial court relied in any way on these arrests in determining the sentence defendant was to receive, nor does he challenge the arrests as being listed inaccurately. We, therefore, conclude that there was no error committed requiring resentencing and that defendant has suffered no prejudice. People v Pettis, 49 Mich App 503; 212 NW2d 266 (1973); People v Martin, 48 Mich App 437; 210 NW2d 461 (1973); People v Lotze, 47 Mich App 460; 209 NW2d 497 (1973).
Defendant’s claim that reference to an incident to which defendant was connected merely by insinuation was improperly included in the presentence report is likewise without merit. It is not challenged as inaccurate, and furthermore the trial court is presumed to attach the proper weight to the reference to such an incident. People v Martin, supra; People v Hildabridle, 45 Mich App 93; 206 NW2d 216 (1973).
Seventh, defendant contends that the prosecutor improperly threatened and intimidated a witness at trial and that he is, therefore, entitled to a new trial. Defense counsel did not object to any of the questions asked or any of the remarks made by the prosecutor. It is well settled that a claim of appeal, raised for the first time in the appellate court, which was not made in the court below, will not be considered in the appellate court. People v Harley, 49 Mich App 729; 212 NW2d 810 (1973); People v Eroh, 47 Mich App 669; 209 NW2d 832 (1973); People v Meier, 47 Mich App 179; 209 NW2d 311 (1973); People v Taylor, 46 Mich App 259; 207 NW2d 899 (1973); People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). Therefore, defendant’s failure to object below to the admission of this witness’s testimony precludes this Court from consideration thereof in this claim of appeal.
Eighth, defendant claims that the trial court committed reversible error in admitting into evidence as "past recollection recorded” a tape-recorded statement given to the police by a prosecution witness. However, we find it unnecessary to consider this claim at length because we are of the opinion that the error committed, if any, was harmless beyond a reasonable doubt, did not contribute to defendant’s conviction, and thus does not mandate reversal of that conviction. See People v Hutton, 50 Mich App 351, 364; 213 NW2d 320 (1973).
Only that part of the tape was admitted which dealt with the defendant’s demand for a knife. The witness had already testified to this identical statement by defendant, and by admitting that her preliminary examination testimony was correct, the witness adopted said testimony and it became substantive evidence. People v Couch, 49 Mich App 69; 211 NW2d 250 (1973). Thus the tape-recorded statement was merely cumulative and in our opinion, its admission into evidence if error at all, was harmless beyond a reasonable doubt. There was no miscarriage of justice. See People v Musser, 53 Mich App 683; 219 NW2d 781 (1974).
Ninth, defendant argues that the prosecutor improperly failed to indorse or produce several res gestae witnesses. The identity of these witnesses who were not produced at trial was made known to the defendant before the trial. Defense counsel’s failure to move for their indorsement and production below precludes an assertion of error on appeal. People v Bennett, 46 Mich App 598; 208 NW2d 624 (1973); People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973); People v Williams, 42 Mich App 278; 201 NW2d 286 (1972); People v Fuston Thomas, 36 Mich App 23; 193 NW2d 189 (1971). The recent opinion of our Supreme Court in People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), has no application here, since that opinion by its express terms is prospective and limited to appeals filed after its date of publication (January 28, 1974). See Judge O’Hara’s dissent in People v Koehler, 54 Mich App 624; 221 NW2d 398 (1974).
Finally, defendant contends that it was error for the trial court to allow a res gestae witness to invoke the Fifth Amendment and remain silent. Defendant’s position is that he was denied his right of confrontation when his friend, Bobby Johnson, refused to answer questions, instead pleading the Fifth Amendment.
Bobby Johnson was with defendant when the original altercation occurred in the bar and joined the "rumble” by fighting either Behrendt or Novak. He also testified that he observed defendant and the victim fighting under the fender of an automobile. On three separate occasions, he refused to answer questions put to him by the prosecutor. Defendant’s counsel did not object to these refusals by Johnson. In fact, Johnson stated that the defendant’s attorney had recommended that he plead the Fifth Amendment.
Of more significance is the fact that the witness did answer all questions put to him by the defendant’s attorney. Finally, there is no evidence in the record that the witness was either a codefendant, coconspirator or accomplice of defendant. More over, it does not even appear that he had been charged with any offense arising from the fight.
Defendant’s reliance on People v Mobley, 390 Mich 57; 210 NW2d 327 (1973), is misplaced. In Mobley, our Supreme Court held that on cross-examination an accomplice cannot invoke the privilege against self-incrimination about his involvement in the crime where on direct examination he has given testimony incriminating the defendant in a common criminal enterprise. That principle is distinguishable from the case at bar for numerous reasons. First, Johnson was not an accomplice to the murder, nor had he be.en charged with any crime stemming from the fight. Second, Johnson did not invoke the privilege against self-incrimination in response to cross-examination concerning his involvement in the same criminal activity for which defendant was tried and convicted, but rather invoked the privilege on direct examination in response to questions posed by the prosecutor. Finally, not only did Johnson answer all questions asked by defendant’s attorney, but defense counsel did not object to Johnson’s refusal to answer the prosecutor’s questions. In fact, defense counsel used Johnson’s invocation of the Fifth Amendment in closing argument to discredit Johnson’s testimony.
After consideration of all the aforementioned facts, we are of the opinion that no error was committed since Johnson had the constitutional right to remain silent. No waiver of that right appears on the record. See People v Sesson, 45 Mich App 288, 297-298; 206 NW2d 495 (1973).
Affirmed, but without prejudice to defendant to bring an appropriate motion in the trial court as permitted under People v Moore, 391 Mich 426; 216 NW2d 770 (1974).
All concurred. | [
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J. H. Gillis, J.
On September 22, 1972 the above named defendants were jointly tried and convicted by a jury in the 92nd judicial district court of Mackinac County of possession of a controlled substance, i.e., marijuana, without a license, contrary to MCLA 335.341(4)(d); MSA 18.1070(41)(4)(d). Each of the defendants was fined and given jail sentences.
On appeal, the circuit court upheld the convictions and sentences. Defendants’ application for leave to appeal was granted by this Court on March 12,1974.
On appeal, defendants raise three issues for our consideration: 1) Did the people fail to produce at trial, without adequate excuse or justification therefor, two female res gestae witnesses? 2) Did the trial court fail to adequately instruct the jury as to the elements of the offense charged? 3) Was the evidence introduced at trial sufficient to support a jury verdict in the absence of any tender or admission of physical evidence identified as a sample of the controlled substance which defendants are charged to have possessed? We reverse on the basis of each of the first two issues.
The record discloses that two young ladies were res gestae witnesses and were required to be produced by the prosecution. They had been interrogated by state police officers in the presence of their parents and were released. There was no showing made on this record as to why they were not produced, thus mandating reversal. People v Harrison, 44 Mich App 578, 599; 205 NW2d 900 (1973).
The court’s charge to the jury did not even mention the offense charged. This is plain error. On appeal from district court the prosecutor conceded, and we commend him for so doing, that this constituted reversible error, but the circuit court nonetheless affirmed the conviction. We reverse on this ground also.
We have examined the third allegation of error and determine that under the facts in this case a sufficient foundation was laid to present a factual issue before the jury. When marijuana has been consumed it is often impossible to bring physical evidence of the charge before the fact finder. The main witness testified that he was quite familiar with marijuana and had smoked some with the defendants. His testimony was sufficient to raise a question of fact before the jury.
Reversed and remanded for new trial as to each defendant.
All concurred. | [
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V. J. Brennan, P. J.
Defendants appeal from a Workmen’s Compensation Appeal Board’s affirmance of an administrative judge’s determination that plaintiff-claimant was entitled to a continuation of dependency benefits even after his son reached 18 years of age notwithstanding an amendment to the dependency statute, MCLA 418.353; MSA 17.237(353).
At the present time, plaintiff is receiving workmen’s compensation benefits of $69 per week for an alleged work-related injury of March 21, 1966. Plaintiff’s compensation benefits initially included a sum for the dependency of a son, who, at the time the dependency statute was changed, December 30, 1971, was 19 years of age. On March 27, 1972, the defendants stopped dependency benefits on the son’s account, claiming that the amended statute was applicable to terminate the requirement that benefits be awarded on account of a "dependent”.
On February 20, 1973, the Bureau of Workmen’s Compensation issued a "Notice of Rule V Hearing” to determine compliance with workmen’s compensation laws. On April 21, the hearing referee, Ray Ravary, determined that the dependency status of the plaintiff’s son was not affected by the amendatory legislation. His decision was based on a March 6, 1973 hearing and determined as follows:
"[Defendants shall continue to pay compensation with dependency being determined by the statute in effect at the time of the plaintiff’s injury. Compensation is being paid by the defendant and the only purpose of this Rule V hearing was to determine the effect of the change in Section 418.353 of the Act. I find that this change in the Statute is not applicable to the instant case.”
Defendants filed a claim for review with the Workmen’s Compensation Appeal Board on June 15, 1973. On August 28, 1973, the Workmen’s Compensation Appeal Board affirmed the decision of the hearing referee. On September. 24, 1973, the defendants sought application for leave to appeal with this Court. This Court granted defendants’ application for leave to appeal on December 3, 1973.
The question presented to the Court is whether the legislative enactment, which became effective on December. 30, 1971, reducing the upper limit of the age of dependency from 21 to 18 years, is applicable to plaintiffs son who, at the time of plaintiffs injury, was a minor and, therefore, a dependent but who, on the effective date of the enactment, was 19 years of age?
Defendants concede that on the date of plaintiffs alleged injury the controlling statute allowed the stoppage of dependency benefits at age 21 if the dependent was not physically or mentally incapacitated. MCLA 412.9; MSA 17.159. However, effective December 30, 1971, the applicable statuté was amended to reduce the age of dependency from 21 years to 18 years. MCLA 418.353; MSA 17.237(353). The amendatory workmen’s compensation legislation preceded by two days the enactment of the Age of Majority Act, MCLA 722.51; MSA 25.244(51), which reduced the age of majority from 21 years to 18 years.
Defendants maintain that by enacting the amendatory statute and the Age of Majority Act, the Legislature intended to discontinue benefits for anyone who, on the date of enactment, was 18 years old or anyone who thereafter attained the age of 18. In their brief, defendants cite cases to support the proposition that since the Workmen’s Compensation Act is remedial legislation, creating no vested rights in any person, any amendments thereto, absent legislative provisions to the contrary, are applicable to any and all claims under the act which occurred before or after the effective date of a given amendment. Lahti v Fosterling, 357 Mich 578; 99 NW2d 490 (1959); Ballog v Knight Newspapers, Inc, 381 Mich 527; 164 NW2d 19 (1969); Cosby v Pool, 36 Mich App 571; 194 NW2d 142 (1971).
Defendants’ arguments in this regard, however, ignore the savings clause provision of the Age of Majority Act contained in MCLA 722.54; MSA 25.244(54) and the similar language of the workmen’s compensation amendatory legislation contained in MCLA 418.891(3); MSA 17.237(891X3). The savings clause of the Age of Majority Act, MCLA 722.54; MSA 25.244(54), provides:
"Sec. 4. This act does not impair or affect any act done, offense committed or right accruing, accrued or acquired, or a liability, penalty, forfeiture or punishment incurred before this act takes effect, but the same may be enjoyed, asserted and enforced, as fully and to the same extent as if this act had not been passed. Such proceedings may be consummated under and in accordance with the law in force at the time the proceedings are or were commenced. Proceedings pending at the effective date of this act and proceedings instituted thereafter for any act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred before the effective date of this act may be continued or instituted under and in accordance with the law in force at the time of the commis sion of the act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred.”
The relevant portion of MCLA 418.891(3); MSA 17.237(891X3) is to the same effect. It provides:
"(3) This act shall not affect or impair any right accruing, accrued or acquired or any liability developing or imposed prior to the time this act takes effect, and all such rights and liabilities shall be governed by the provisions of Act No. 10 of the Public Acts of the First Extra Session of 1912, as amended, being sections 411.1 to 417.61 of the Compiled Laws of 1948.”
The foregoing provisions make clear that plaintiff’s right to dependency benefits are not affected by either the amendatory statute or the Age of Majority Act. The statute in effect at the time of plaintiff’s injury was MCLA 412.9(d); MSA 17.159(d) which provided in pertinent part:
"(d) Weekly payments to any injured employee shall be reduced by the additional amount provided for any dependent child or husband or wife or other dependent when such child either reaches the age of 21 years or after becoming 16 ceases for a period of 6 months to receive more than 1/2 of his support from such injured employee, if at such time he or she is neither physically nor mentally incapacitated from earning, or when such husband or wife shall be divorced by final decree from his or her injured spouse, or when such child, husband or wife, or other dependent shall be deceased.”
Under the above statute, since no claim was made that plaintiff’s dependent child had ceased to receive more than one-half of his support from plaintiff, it is clear that plaintiff was entitled to continue to receive dependency benefits until the child reached 21 years of age as the Appeal Board determined.
Affirmed. Costs to plaintiff.
All concurred. | [
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V. J. Brennan, J.
In 1970 petitioner, James Callison, was convicted in Eaton County Circuit Court of breaking and entering and sentenced to from 2 to 10 years in prison. He was later paroled from the prison facility at Jackson, Michigan and was, under the Interstate Compact for the Supervision of Parolees and Probationers, MCLA 798.101; MSA 28.1361, permitted to leave the state and reside in Kentucky. On July 24, 1973, Callison was arrested in Leitchfield, Kentucky and charged with driving under the influence of intoxicants. He was found guilty by a judge and fined. On August 13, 1973, the Michigan Department of Corrections received a parole-violation report from Kentucky requesting that petitioner be returned to Michigan as a parole violator because he had been convicted of driving under the influence of alcohol and had falsified reports to his parole agents. He was returned to Jackson Prison on August 24, 1973. On September 6, 1973, Callison was given a copy of the parole-violation charges and a parole-revocation hearing was held on September 18, 1973. At the conclusion of this hearing Callison was informed that he had been found in violation of his parole on both counts. His parole was, therefore, revoked.
Callison subsequently contacted an attorney and a petition for a writ of mandamus and a motion for immediate consideration was filed in this Court. On December 11, 1973, this Court granted the motion for immediate consideration and granted a motion for an order to show cause why the writ of mandamus should not be granted. On January 30, 1974, this Court ordered petitioner released on $1,000 bond pending the determination of this cause.
Petitioner presents several assignments of error in support of his claim that mandamus should issue. We base our decision on only one ground.
Callison contends that mandamus should issue because he was not properly informed of his right to counsel. We agree. In Hawkins v Michigan Parole Board, 45 Mich App 529; 206 NW2d 764 (1973), this Court, basing its decision on the Equal Protection Clause of the Fourteenth Amendment, held "that an indigent parolee who contests parole revocation be afforded the same right to counsel that a parolee of means enjoys”. Hawkins, supra at 533; 206 NW2d at 767. This Court further held that prior to a revocation hearing a parolee "must be advised of his right to counsel, if his parole is being revoked for any reason other than conviction of a felony or misdemeanor punishable by imprisonment”. Hawkins, supra at 533; 206 NW2d at 767. Hawkins was subsequently affirmed and the opinion of the Court of Appeals adopted by our Supreme Court in Hawkins v Michigan Parole Board, 390 Mich 569; 213 NW2d 193 (1973).
In the case at bar, Callison was never advised of his right to counsel in the manner required by Hawkins, supra. That he was entitled to be so advised is manifest from the record. Hawkins requires that a parolee be advised of his right to counsel before a revocation hearing takes place unless his parole is being revoked for conviction of a felony or a misdemeanor punishable by imprisonment. Callison was not convicted of an offense which would fall within either of these categories. The offense for which he was convicted in Kentucky was punishable by fine only. He was, therefore, entitled to be properly advised as to his right to counsel. This was not done. When he appeared before the board, Callison was advised of his right to counsel in the following terms:
’Mr. Thurston (Parole Board Member): You are an alleged parole violator — counselor’s request which, you may have one of the three kinds of hearings, a public hearing with counsel, also have a hearing with witnesses without counsel or you may have a public hearing before us here today. Which do you want?”
This is clearly not sufficient to apprise a parolee of his right to appointed counsel if he cannot afford one.
Despite the fact that Callison was convicted of another offense while on parole, our examination of the record indicates that an attorney would certainly have been of benefit to him. Throughout the proceeding Callison maintained that he had done nothing which would justify revocation of his parole. He admitted that he had been convicted of the offense in Kentucky and that certain statements he made to his parole officer were false but sought to explain what happened in each of these instances and attempted to argue that any determination made by the board should take into consideration his record while on parole for the prior 18 months. Furthermore, it appears that the parole board, in reaching its decision, considered certain materials contained in Callison’s file which he had no opportunity to examine before the hearing and which he sought to challenge at the hearing for their accuracy. In each of these circumstances an attorney could have assisted Callison in the presentation of the arguments he sought to assert and in assuring that the evidence used at the revocation hearing was properly disclosed and subjected to a close scrutiny with respect to both its accuracy and its reliability.
Callison was entitled to be properly advised as to his right to an attorney and the parole board’s failure to do so denied him the proper hearing to which he was entitled.
We also note that at no time was petitioner given a preliminary hearing to determine whether reasonable grounds existed for revocation of parole as required by Morrissey v Brewer, 408 US 471; 92 S Ct 2593, 33 L Ed 2d 484 (1972). While we are not unmindful of the fact that petitioner’s presence in a remote state does not relieve the 'parole authorities of the responsibility of conducting such a hearing, Gagnon v Searpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973), we do not consider the facts of this particular case such as would require a preliminary hearing before the parole authori ties can again proceed against petitioner. Petitioner, convicted of another offense, has failed to demonstrate how he has been in any way prejudiced by the parole authorities’ failure to hold such a hearing. We do not intend to make any hard and fast rule in this area nor do we intend to give the parole authorities a license to ignore the requirements laid down by the United States Supreme Court. We are only deciding that under the particular factual circumstances here presented no purpose would be served by requiring the parole authorities to conduct such a hearing. Our examination of the record convinces us that reasonable grounds to believe that Callison has committed acts which would constitute a violation of the terms of his parole do exist and that the cause should proceed to a formal hearing wherein all the relevant factors should be considered in determining whether petitioner’s parole should, in fact, be revoked.
Since Callison was not sufficiently advised of his right to counsel we hold that before his parole can be revoked he is entitled to a new revocation hearing conducted in conformance with the requirements of due process laid down in Morrissey v Brewer, supra. If, before any new hearing, Callison alleges indigency and requests appointment of counsel a hearing shall be held in the Jackson County Circuit Court to determine whether he is indigent. If, after such hearing, it is determined that Callison is indigent, counsel shall be appointed to represent him at the new revocation hearing. The costs of appointed counsel are to be borne by the Department of Corrections.
Since a proper revocation hearing was not held within 30 days as required by MCLA 791.240a; MSA 28.2310(1), mandamus compelling the De partment of Corrections to release Callison from custody until a proper revocation hearing is held is hereby granted.
This Court retains no further jurisdiction.
All concurred. | [
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Allen, P. J.
This appeal involves a wrongful death action brought by a mother, as administratrix of her husband’s estate, against her daughter for the accidental death of the father. The jury returned a verdict of no cause of action from which plaintiff appeals as of right.
We find only one issue of substantive impor tance. The remaining four claims of error and our response thereto are summarized in the footnote below. Did the trial court err reversibly by ruling that plaintiff could not utilize the theory of subsequent negligence unless plaintiff first conceded on the record that decedent had been contributorily negligent, and by refusing to instruct the jury regarding subsequent negligence when plaintiff refused to so concede? This issue arose when, at the conclusion of all proofs, plaintiff requested a jury instruction (instruction no. 36) on subsequent negligence and directed the court's attention to the fact that Count II of plaintiff’s pleadings contained a charge of subsequent negligence or, as it is sometimes called, gross negligence or last clear chance. In the absence of the jury, the trial court expressed the view that, "as the court understands the law * * * in order to invoke the doctrine, plaintiff must confess his own negligence which placed him in a dangerous position”. When counsel refused to so confess, the court stated it would not give the requested instruction. Despite appel lee’s protestations to the contrary we find the refusal to give instruction 36 was properly preserved for review. Disposition of the issue thus posed requires a statement of the skeletal testimony of the two eyewitnesses who testified as to the circumstances of the accident.
According to this testimony, which comprises only 42 pages of the record, about 11 am, August 1, 1970, decedent, his nephew Pat Harrington, then age 14, and the defendant, Deborah, then age 16, left L’Anse in decedent’s 1970 Chevrolet pickup truck to pick up building materials at a lumber yard in Skandia. The truck was equipped with automatic transmission, side-view mirrors on both the right and left sides, and a standard rear-view mirror. At Skandia, the truck was loaded under decedent’s supervision with wall board, paneling and metal stripping. The load protruded about four inches from the sides of the truck and hung over some four inches on the rear. The tailgate was left down for the return trip. On the way back deceased stopped and asked Pat to adjust the right side mirror so that deceased could see trafile from behind. Deceased was driving, Deborah sat in the middle, with Pat to the right of Deborah. Near Bovine, a community just south of L’Anse, some of the metal stripping fell off the truck. Deceased pulled over, stopping the truck on the shoulder of the highway. Pat opened the door, telling his uncle he would run back and get the stripping. Deceased opened the left door and stepped out. At this point the testimony becomes conflicting as to exactly what deceased said as he emerged from the cab. Pat testified that as deceased was getting out he said to Deborah, "Back up the truck when I say.” Deborah, on cross-examination under the statute first said she did not remember her father’s exact words but later, on direct examination, testified her father only told her to back up the truck. Pat claimed he had run back on the highway 25 to 50 yards when,
"I heard the truck motor roar and then my uncle yelled wait. I turned my head and seen him bent over behind the truck and at the time the truck had pushed him over on the ground. Then, the truck had backed up and then the left side of the truck went up in the air and then back down and stopped. At that time I was going back yelling to my cousin Deborah.
”Q. Then what happened?
"A. The truck then proceeded forward, ran over him again and my uncle came rolling out from underneath.”
Deceased was struck by the left rear wheel which was on the highway, with deceased bent over facing the shoulder, standing on the shoulder about a foot from the highway edge. Deborah claimed that before backing up she stuck her head out of the left door and looked but didn’t see her father, but further stated that in so doing she could see only up to the white (edge) line of the pavement and could not see the shoulder or behind.
”Q. Do you remember at your deposition Debbie you were asked how you could see with the mirrors and you said neither the mirror in the cab or the side mirrors were able to see with or that you were not able to see with the load on the truck, do you recall that?
”A. Yes.
"Q. That’s the way it was in any-
'A. Yes, well you couldn’t see, well like I’m not really sure cause how much I looked, you know, I thought he was behind there I just thought he was with Pat.
"Q. But in any event he told you to back up the truck?
“A. Yes.”
She testified that when she backed up she thought her father was quite a ways behind her, that she did not hear her father call "wait” or hear Pat’s call, that when she heard the thud she thought she had hit a "box or something”. Both Deborah and Pat agreed that to get the heavily loaded truck moving in reverse required pushing down hard on the accelerator. Deborah had driver’s training, obtaining her license about a month prior to the accident. She had driven the truck on several occasions but only once when it had a heavy load. There was no testimony at all as to how far the truck had moved in reverse gear before striking decedent. Importantly, the record is conflicting as to whether Deborah could not see through either side mirror (as appears in the deposition) or whether she did not fully look in the mirrors (as suggested in response to questioning at trial).
The trial court’s interpretation of the doctrine of subsequent negligence followed the minority rule and was clearly erroneous. The exact issue was decided in St. John v Nichols, 331 Mich 148, 153, 156; 49 NW2d 113 (1951), where the court held:
"Plaintiff refused to plead or concede decedent’s contributory negligence and contended for the right to go to the jury on the alternative theories that decedent was free from contributory negligence but, if found guilty thereof, that he was excused therefrom by defendants’ subsequent negligence. In that contention plaintiff was correct.” * * *
"That right of plaintiff to recover under either of those 2 sets of circumstances the court may not defeat by requiring her, at her peril, to gamble on whether the jury might prefer the theory of decedent’s freedom from contributory negligence or that of defendants’ subsequent negligence.”
Also, 25 ALR2d 254, 289 notes:
"However, the majority of the courts passing upon the question have held that an admission of contributory negligence is not an essential element of an attempt to set up a cause of action under the last clear chance doctrine.”
However, the trial judge’s error would not, ipso facto, call for a new trial if the record, construed in a light most favorable to the plaintiff, fails to set forth a factual situation permitting the doctrine of subsequent negligence. The key question is whether the abbreviated testimony in this case reasonably can be found to justify a subsequent negligence charge.
To establish a case of subsequent negligence, plaintiff would have to show that plaintiff decedent’s negligence had placed him in a position of peril, that decedent’s negligence had thereafter ceased to operate "as an efficient cause of the pleaded injury”, that Deborah Leemon, driver of the truck and defendant herein "could and should have discovered the * * * [decedent’s] peril in time to avoid such injury by the employment of safe means at ready hand”, and that she failed "to so discover and act as would a person exercising due care under like circumstances”. Shafkind v Kroll, 367 Mich 42, 45-46; 116 NW2d 58, 60 (1962). See also Brinks v Chesapeake & O R Co, 398 F2d 889, 891 (CA 6 1968) and Ruotsala v Holzhauer, 24 Mich App 571, 575-576; 180 NW2d 636 (1970), lv den, 383 Mich 823 (1970). A proper combination of time and distance is required to allow plaintiff to first understand the danger and then take preventive action.
"Determination thereof [subsequent negligence] by such trier or triers always depends on receipt of proof tending directly or by proper inference to show that the defendant did discover, or by the exercise of ordinary care should have discovered, that the plaintiff was helpless to avoid the impending harm, and that such discovery was made or should have been made in time to avoid such harm by means at hand. Invariably, the question involves fact elements of time and distance. Where, as here, allotted time and distance unite in providing that interval which reasonably calls for comprehension and preventive action, the doctrine rightfully comes into play for jury consideration.” Dunn v Detroit, 349 Mich 228, 235; 84 NW2d 501 (1957).
However, if plaintiffs decedent’s contributory negligence was concurrent with the negligence of his daughter, the subsequent negligence doctrine is inapplicable, and may not be invoked to excuse decedent’s conduct. LaCroix v Grand T W R Co, 379 Mich 417, 424; 152 NW2d 656 (1967). Morrison v Hall, 314 Mich 522, 528-529; 22 NW2d 838 (1946), said that the question of subsequent negligence should not have gone to the jury, and that a directed verdict should have been granted, where plaintiff failed to show that defendant’s negligence had ceased to be a proximate cause of the accident. See also 17 Michigan Law & Practice, Negligence, § 83, p 463, wherein it is stated that plaintiff may not recover if his negligence "continued to the moment of the accident”, was concurrent with defendant’s negligence, and was a proximate cause of the injury at issue. Davidson v Detroit, 307 Mich 420, 430, 12 NW2d 413 (1943), noted that defendant, "by the use of means at hand [should] have had time to avert the threatened injury”. The accident involved therein apparently occurred in less than 2-1/2 seconds from the time plaintiff began to cross the streetcar track, during which time the streetcar was able to travel 100 feet. 307 Mich 420, 427. The evidence failed to show that the streetcar operator could have avoided the accident, i.e., the proof failed to show that the streetcar operator could have stopped the train within the time and distance involved. 307 Mich 420, 432. In Griewski v Ironwood & Bessemer Railway & Light Co, 209 Mich 10, 17-18; 176 NW 439 (1920), the court felt that the failure to act during a time period "of at most a single second * * * ” did not justify the application of the doctrine of subsequent negligence, and said:
"An appreciable time must elapse before the brain can act upon the body; a further appreciable time must elapse during which the muscular movement of body performs the necessary functions * * * .”
Plaintiffs decedent had stepped in front of the moving streetcar about 12 feet in front thereof, and the failure of the streetcar operator "to act during the lapse of a fraction of a second or at most a single second * * * ” was not such a failure as would justify the application of subse quent negligence. 209 Mich 10, 19-20. Thus, subsequent negligence, or last clear chance, "implies thought, appreciation, mental direction, and the lapse of sufficient time effectually to act upon the impulse to save another from injury”. 57 Am Jur 2d, Negligence, § 401, p 817.
Assuming, arguendo, that plaintiffs decedent had negligently loaded the pickup truck so as to obstruct the driver’s vision, and that decedent was negligent in allowing his daughter, who was relatively inexperienced in driving a loaded pickup truck, having done so only once, to assume the driver’s position, without adjusting the side-view mirrors for the new driver, we must examine the facts to determine whether decedent’s contributory negligence, as a matter of law, continued thereafter, or whether at most there was a question of fact presented so as to allow the jury to determine whether or not decedent’s contributory negligence had ceased to operate as a proximate cause of the accident.
Viewing the evidence favorably to plaintiff, decedent told his daughter to "[b]ack up the truck when I say”. He then proceeded to a point on the road some distance to the rear of the vehicle. His nephew, Pat, after having the time to proceed some 25 to 50 yards to the rear of the vehicle, heard the truck engine roar, turned, and heard decedent yell "wait”. At this point decedent was bent over. Defendant testified that she was unsure as to whether she had looked in the rear-view mirror, although such an act might have been fruitless in view of the load in the rear of the truck. However, the evidence does show defendant could not see the shoulder, and said that she was unsure as to how much time she spent looking to the rear before backing the truck.
The facts herein obviously present a question for the jury as to defendant’s negligence, and we find that the question of decedent’s concurrent negligence, particularly in light of his advice to his daughter not to back up until he said to do so, was also a question which should have been submitted to the jury under a proper instruction on the doctrine of subsequent negligence. Although the record fails to disclose the exact distance traveled by the vehicle from the time it was engaged until the time it struck decedent, there was sufficient time involved for decedent’s nephew to travel 25 to 50 yards beyond the truck, hear the engine roar, turn, see his uncle in a bent position and hear him yell "wait” before he was struck by the vehicle.
We conclude a sufficient question of fact was presented for a submissible jury question on the issue of subsequent negligence. This is not to hold that, as a matter of law, subsequent negligence actually existed but only to state that the facts in the meager record before us are so conflicting that the determination thereof should have been left with the jury. As stated before, the plaintiff properly preserved exceptions to the trial judge’s failure to give the charge.
Reversed and remanded for a new trial, costs to plaintiff.
All concurred.
Plaintiff asserts error of the trial court both in allowing the issue of defendant’s negligence and plaintiff’s contributory negligence to go to the jury. As to both, it is only when the facts require all reasonable men to draw the same conclusion that the issue is considered to be one of law. In most cases negligence and contributory negligence are jury questions. Marietta v Cliffs Ridge, Inc, 385 Mich 364, 370; 189 NW2d 208 (1971). The record contains testimony on each issue sufficient to create a disputed question properly left with the jury for determination. Plaintiff also claims error in the trial court’s refusal to give requested instructions 33 (rights of a pedestrian vis-a-vis a motorist), 23 (the specific duties of a motorist in backing up) and 24 (effect of a driver’s breach of duties). Sub-paragraph (c) and (d) of 33 is argumentative. Sub-paragraph 5 of 23 and 24 contain statements of a duty to sound the horn or give other warning before backing up, which duty may not exist as applied to the facts in the instant case. The court did give the substance of all three instructions by way of a general charge. Therefore, we find no reversible error.
See LaCroix v Grand T W R Co, 379 Mich 417, 423; 152 NW2d 656 (1967), and Papajesk v Chesapeake & O R Co, 14 Mich App 550, 555; 166 NW2d 46 (1968), where the above terms are used synonymously with the court pointing out that "gross negligence” when so used is not to be confused with wanton, willful or reckless misconduct.
Plaintiffs counsel stated his objections to the court’s ruling both at the time of the ruling and again immediately following the court’s refusal to give instruction 36 citing as his reason for objecting the case authority and the fact the record contained evidence justifying the charge. We therefore conclude that plaintiff complied with GCR 1963, 516.2.
"Q. Speaking of your deposition again, do you remember answering questions of Mr. McCarthy’s, he asked you Debbie, might your father have told you something like back up the truck when I tell you to, do you remember anything like that? And you answered I just remembered he said we’ll go get it and you back it up. Do you remember that?
"A. Yes.
"Q. Is that the way you remember it now?
"A. That’s correct.
“Q. What I’m getting at is this, do you recall him telling you to stay where you are until he told you to come back or on the other hand did he just say back the truck up?
"A. Well it was just like a mix-up and all, cause I was going to go too and get the stuff, and he said no you stay here and that and back it up. That’s how I remembered it. ” | [
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Champlin, 0. J.
The bill of complaint is filed in this case to reform a certain deed of real estate described as “the entire of lot two, block two, Snell’s addition to the village of Lowell, as of record,” so that the same shall read, “all of village lot number two of block two, according to Caroline Snell’s recorded addition to the village of Lowell, excepting that portion heretofore sold by the first party hereto unto one Ann Loughlin by deed bearing date the tenth day of August, 1877;” and also to restrain the defendants from prosecuting a suit, or any suit, against the complainant for breach of covenant of warranty of seisin on account of that portion of lot two conveyed to Ann Loughlin prior to the deed from said Susan A. Bush to them.
The bill of complaint sets up that prior to the 10th day of August, 1877, complainant was the owner of lot 2, block 2, above mentioned, and on that day sold a. portion thereof, and conveyed the same, to one Ann Loughlin; that on the 20th day of February, 1888, she sold said lot 2, block 2, except the portion previously sold to Ann Loughlin, to the defendant David P. Merri man; that previous to her sale to him he was- shown that portion of the lot which had been previously conveyed, and which premises were surrounded by a fence, and that he was informed where the lines of the real estate were which was intended to be sold to him, and that the other portion of lot 2 had previously been sold to Ann Loughlin; that the price agreed upon for that portion of which the title remained in the complainant was $300; that after agreeing upon the price Merriman and complainant met at the office of Sylvester P. Hicks in the village of Lowell, for the purpose of consummating such bargain, and making a deed of that portion of said lot 2 that complainant then owned, and that she had bargained to sell, and to make delivery of the deed of the same; that Hicks had prepared a deed before complainant -went there, joining the complainant and her husband as grantors, and he commenced to read the deed which he had drawn; that, when he came to that portion, the complainant objected to her husband being named as one of the- grantors, as he did not own any interest in the land, whereupon Hicks drafted a new deed, and by the request of Merriman the deed was made jointly to David P. Merriman and Emily M. Merriman as grantees; that after the deed had been drafted it was read to the complainant in the presence of David P. Merriman, whereupon the complainant then and there objected to executing such deed on account of the description of the property, to wit, “the entire of lot two, block two, SnelPs addition to the village of Lowell, as of record;” that she then stated to said Hicks and David P. Merriman that she did not own all of said lot 2; that she had not bargained all of it; that she had previously sold a portion of said lot to Ann Loughlin, and that Merriman understood it; that Mr. Hicks then stated that the abstract did not show she had sold any of it; that com plainant then informed them that the abstract was wrong; that she had sold a portion to Ann "Loughlin, and she had bargained .to Merriman what was left; whereupon Mr. Hicks, in the presence of said Merriman, stated that it would make no difference, as both parties understood the matter fully; that the Merrimans could only hold what was left; that with that understanding, that the Merrimans could only hold her responsible for such part, of lot 2 as she then owned, she consented to and did sign and deliver to said David P. Merriman a warranty deed, a copy of which is appended to the bill, and which the defendants afterwards, on the 23d day of February, 1888, caused to be recorded in the office of the register of deeds of Kent county, in Liber 185 of deeds at page 20.
Complainant further alleges that, shortly' after the delivery of the deed, the defendants took actual possession of the premises, and have ever since been in possession thereof, and occupied the same as a home; and that, prior to the execution and delivery of the deed, the actual location and extent of the premises intended to be conveyed were ascertained by view and inspection thereof, and were understood correctly and alike by the' parties to said deed to be all of lot 2 of block 2 in the village of Lowell, Kent county, State of Michigan, according to Caroline Snell’s addition to said village, except that portion of said lot 2 that had been deeded to Ann .Loughlin, and which portion was then fenced in as aforesaid with her other land, and was then, and is now, and has ever since been, in her possession. She then charges that by mistake of said parties the description in said deed is so drawn that it includes not only the premises intended to be conveyed to the defendants by the complainant, but also the piece of land sold and conveyed to Ann Loughlin as aforesaid; that the defend ants well knew that complainant only intended to convey that part of lot 2‘which she then owned, and not that part inclosed by Ann Loughlin’s .fence; and she believed that said description actually written in said deed only conveyed the entire of what she then owned of said land, and no more. She further charges that soon after the execution of the deed the defendants .moved into the house on the lot, commenced keeping* house, and soon after that obtained a surveyor, and claimed to have established the boundary lines of said lot 2, and then for the first time they set up and claimed to own the whole of said lot 2, and they commenced to tear down the line fence between the land conveyed to Ann Loughlin and the land sold to defendants; whereupon Ann Loughlin forbade them from tearing down the fence, and showed them her deed, which deed had then been on record six years or thereabouts; whereupon the defendants then set up for the first time to the complainant the claim that she had sold and deeded to them the whole of lot 2; that up to this time the complainant supposed and believed the description to be correct, and a true description of the premises owned by her, and intended to be conveyed by her to said defendants.
Complainant further charges that the claim set up on the part of the defendants, after having obtained possession of the premises, is untrue, wicked, and fraudulent, and by means whereof they are trying to obtain an undue advantage of her by obtaining from her pay for that which they never purchased and paid for; that they now have and enjoy all that they purchased, and all that they paid for, and are seeking to take an undue advantage of the language usecl in the deed to extort a large sum of money from her; that on or about the 1st day of June, 1888, .they commenced a suit against her before a justice of the peace, based upon the covenants in her deed; that she put in a plea of the general issue, with a notice setting up substantially that Merriman examined the property and wag shown the lines before he purchased, and was informed that a part of lot 2 had been sold to Ann Loughlin, and then belonged to her, and was in her possession, and that she (Susan A. Bush) was not the owner of the whole of said lot, but war the owner still of the part that remained unsold, and that she so informed Hicks, and that it was a mistake and fraud in Hicks to insert the entire of lot 2; that she never authorized any person -to make a deed of the whole lot, and never bargained or sold the whole of lot 2 to the defendants; and that it was. understood the word "entire,” used in that deed, did not mean all of lot 2, but all'that remained unsold, and that plaintiffs accepted the delivery of the deed with that understanding; that the deed to Ann Loughlin was on record before the purchase by Merriman, and that it was an imposition and fraud for the Merrimans to set up a claim that she owed them anything on the sale of said land; that they had all the land they purchased or contemplated getting by the deed; and that they accepted it with the full knowledge that Mrs. Loughlin owned the strip hereinbefore described. She also set up'that the title of the land would come in question, and the cause was certified to the circuit court for the county of Kent, and was there tried before a jury, and the plaintiffs recovered a judgment for damages, on account of a breach of covenant, for more than $100, besides costs taxed at $57; and afterwards, upon her motion, a new trial was granted, and was had, when the plaintiffs again recovered a judgment for $95, and costs taxed at $110.40. She further avers that they threaten to enfore the collection of the same by execution and sale of her property.
The defendants, David P. Merriman and Emily M. Merriman, interposed a plea to the bill of complaint in which they set up with sufficient particularity the proceedings before the justice and in the circuit court, and the charge of the circuit judge to the jui’y; and by it defendants aver that the same issues set up in the complainant’s bill of complaint were tried and determined in the suit at law, and that it is res judicata.
The plea interposed by the defendants was brought on for argument, and was held by the court to be sufficient to bar the complainant of any relief in this suit; and, the complainant declining to take issue upon the plea, the court entered a decree dismissing complainant’s bill of complaint; and the question presented to us is whether or not the trial of the suit at law is a bar to a proceeding in a court of equity, by the complainant to reform the deed.
In this State the distinction between law and equity, as applied to remedies, has been kept up. The courts of law have no jurisdiction to reform written agreements. This jurisdiction is exclusively vested in courts of equity, and it has long been settled that if, by reason of fraud, mistake, accident, or surprise, an instrument does not express the true intent and meaning of the parties, equity will upon satisfactory evidence reform it. It was said by Chancellor Kent in Gillespie v. Moon, 2 Johns. Ch. 585, that—
“The written instrument, in contemplation of law, contains the true agreement of the parties, and the writing furnishes better evidence 'of the sense of the parties than any that can be supplied by parol; but equity has a broader jurisdiction, and will open the written contract to let in an equity arising from facts perfectly distinct from the sense and construction of the instrument itself.”
The rules of evidence at law and equity are the same, but when the question is not what the terms of the written contract are, but whether the contract as written was entered into or whether it was obtained by fraud, or is founded in surprise, accident, or mistake, these subjects of inquiry are open to parol testimony, irrespective of what the writing contains. The case of Bradford v. Bank, 13 How. 57, is an authority for holding that where there was no agreement to sell on one side, nor to buy on the other, and the contract was only to sell, hut the mistake, wTiich was of a given fact, namely, as to want of title to one parcel of land agreed to be conveyed, had given effect to the instrument far beyond the agreement and real understanding of the parties,’ parol evidence was admissible to show what the real contract of the parties was; and that such a case falls within the principles of equity in granting relief against contracts entered into by mistake and misapprehension of the facts, and where the enforcement of it would enable one of the party to obtain a most unconscionable advantage over the other.
It appears from the bill that the mistake did not consist in including the description of the whole lot in the deed, for that fact was known and understood when complainant executed it; but it consists in what the scrivener told her as to its legal effect, and her liability or responsibility thereunder. If the draughtsman was honest in his statements, and there was no collusion or fraudulent design in so procuring the deed to be executed with such description on the part of the grantees, then he made a mistake of law in so advising Mrs. Bush; but Mrs. Bush relied upon the fact, as it was stated to her, that she would incur no liability in executing the deed as presented, and was induced by that fact to execute it. In either view, it was such a mistake as equity would relieve against. If the advice given by the draughtsman was intended to mislead Mrs. Bush, then it is clear that the execution of the instrument was induced by the false and mistaken statement of its legal effect or operation, and the grantees should not be allowed to take advantage of the error which they have contributed to produce. It is accordingly established that chancery may afford relief under these circumstances, whether the misstatement was innocent or prompted by a wish to deceive, and although the complainant was acquainted with the contents of the instrument. 2 White & T. Lead. Gas. (4th Amer. ed.) pt. 1, p. 988.
The bill in this case, however, shows a stronger ground for relief. It is stated that soon after the deed was executed the defendants procured a surveyor to run the lines of their lot, claiming the whole of lot 2; that they attempted to tear down the line fence which separated the land intended to be conveyed to them from that of Mrs. Loughlin; and upon her exhibiting to them her deed, with the certificate of. the register showing that it had been recorded a long time before they purchased, they desisted, and immediately commenced suit against their grantor upon the 'covenant of seisin contained in the deed. These facts, taken in connection with what occurred upon the execution of the deed in Mr. Hicks* office, wherein he told complainant that, if she had conveyed the premises to Mrs. Loughlin, it did not appear upon the abstract, lead us most strongly to the inference that Merriman was attempting in that transaction to obtain undue and unconscionable advantage, and to lay claim to the whole of the lot as an innocent purchaser, basing it upon the idea that Mrs. Loughlin*s deed was not on record. But equity will interfere to protect the rights of parties to control the legal effect and operation of covenants obtained as this one was, when they are sought to be enforced by the party who has obtained them unde,r the representation that they would be of no binding force or effect. And such action upon the part oí Merriman was a fraud upon the complainant, and, if she is enabled to substantiate the facts alleged in her bill by sufficient evidence, the court will not hesitate to reform the deed, and make it to correspond with the actual agreement and intent of the parties. Taylor v. Gilman, 25 Vt. 413.
The claim set up in the plea that this‘case has been tried before a court of law, and found adversely to the complainant, does not meet the case made by the bill. The court in that case at law charged the jury that they must find a verdict for the plaintiffs in the suit at all events, "and, if they were satisfied that the defendant's testimony with reference to the transaction was correct, then they must assess damages at the merely nominal sum of one dollar, but, if otherwise, they should assess" the damages in proportion as the value of the part which had been previously sold to Mrs. Loughlin bore to the whole lot, valued at $300, the purchase price agreed to be paid by Merriman. Now, if the complainant's contention is the correct one, as stated in her bill of complaint, the plaintiffs in the action at law were not entitled to any judgment whatever, either nominal or otherwise, and she should not have been subjected to the costs following upon such judgment. If the deed had expressed what she claims was the true intent of the parties and the agreement between them, it would have been impossible for the plaintiffs in the suit at law to obtain a judgment against her even for a nominal damage. Therefore we think that she is entitled to present her bill in a court of equity, and ask to have the deed reformed.
We think that the plea tendered was insufficient, and that the decree must be reversed, and the cause remanded to the court below, with leave to defendants to answer within 20 days from the time of notice of the filing of the transcript in that court. The complainant may recover the costs, of this Court; the costs of the court below to abide the event.
The other Justices concurred.
Tlie defendant Bad tendered the sum of one dollar, and kept the tender good by paying the money into court, as payment in full of all the damages plaintiffs had sustained by reason of the alleged breach of covenant, which facts the jury were instructed were undisputed in the case. | [
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McG-rath, J.
This cause was commenced in justice’s court, and appealed to the' circuit court, where plaintiff had judgment.
The defendant, who was marshal of the village of Carrollton, received a tax warrant running against plaintiff’s wife, for the collection of a tax amounting to $31 or $33, and under this warrant he seized and took away a long list of articles of personal wearing apparel belonging to Mrs. Smith. Some of this had been purchased by her prior to the marriage, and others had been purchased after marriage, in the ordinary course of purchases by the wife. The replevin is brought by the husband only as to such articles as were purchased after the marriage. The balance of the property, purchased by the wife before the marriage, was treated as her separate property, and was left in the hands of the marshal.
The main question is whether the husband has the title to the wife’s wearing apparel so that he can maintain replevin, a,s between himself and the marshal.
The leárned circuit judge before whom the cause was tried filed a written opinion, in which he said:
“ The statutes of the State have made no change in •the common-law rule that the obligation to furnish the wife with her wearing apparel, the same as in the case of a man with minor children,' is imposed • upon the husband still, and, as in the case of a man with minor children, the wearing apparel belongs to the husband, as between himself and a third person who undertakes to remove it.”
We fully concur in that opinion. If the articles of clothing and personal ornament appropriated for the wife are purchased with the husband’s money, or upon his credit, the fact that they are selected or purchased by her, and are intended for her personal and exclusive use, does not render them any the less his property, as against third persons. He may insure it as his own property, and it cannot be that the law imposes an obligation upon him to furnish or restore it, and that he cannot prevent its taking upon an execution running against his wife. The purchase of the property for her use is no more a gift to her than is the purchase of apparel for a minor child such a gift to that child as would divest the parent of a right to recover it from a third person.
The statute of distribution of estates of intestates, re-enacted since the married woman’s act, provides that the widow shall be allowed all her articles of apparel and ornaments. This would indicate that, without such a provision, these articles would constitute a part of deced enFs estate, and would be liable, as such, to be sold for the payment of his debts. State v. Hays, 21 Ind. 288; Hawkins v. Railroad Co., 119 Mass. 596; Curtis v. Railroad Co., 74 N. Y. 116; State v. Pitts, 12 S. C. 180; Pratt v. State, 35 Ohio St. 514.
The judgment is affirmed, with costs.
Morse, Long, and Grant, JJ., concurred with McGrath, J.
Ohamplin, 0. J. I concur in the result.
Mrs. Smith testified as follows: “All the articles replevied in this suit were purchased with money furnished by my husband. Some of the least valuable articles I may have purchased without consulting my husband, but anything that amounted to much I always consulted my husband about buying, and he would furnish me the money to buy it with. He furnished all the money with which the clothes were purchased that were replevied in this suit.” | [
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Long, J.
The bill in this case is filed to restrain and enjoin the defendant from placing ties and laying rails, and operating its railway, over and along the complainants5 land, situate in the' public highway, and from running cars and trains of cars propelled by steam, or any other motive power, upon said highway, along and in front of complainants’ premises.
The bill sets forth, substantially,—
That two of the complainants reside in the township of i&nn Arbor, Washtenaw county, and that the complainant Lucy L. Granger resides in Bay City; that they are the children and only heirs at law of Erasmus D. Nichols, deceased, who was the owner in his life-time of certain lands situate in that township, having a frontage on the highway of about 40 rods, and that complainants, as such heirs at law, are the owners of. said lands.
That on the 30th day of August, 1890, the defendant railway company filed in the office of the Secretary of State a paper purporting to be the articles of association of the Ann Arbor & Yj^silanti Street Railway Company, and that said company proposes to run a railroad from Ann Arbor to Ypsilanti, upon and along the south side of the public highway between said cities called the-“Ann Arbor and Ypsilanti Road,” and that it has graded along the south side of said road from the terminus of said road, in the city of Ypsilanti, to the city limits of the city of Ann Arbor, and laid the ties and railroad-track or iron thereon, excepting a few rods along and in front of premises owned by one John A. Bohnet in the township of Pittsfield, and the premises of the complainants, which lie adjacent to the city of Ann Arbor; that said grading, placing of ties, and laying of the iron is on the south side of said highway nearly the whole distance,, except from what is known as the “stone school-house” to the limits of said city of Ann Arbor, over which last distance it is on the westerly side of said highway; that said grading along the line of said highway comes within two or three feet of the fences on the south and west, sides of the same; that said defendant has completed the construction of said road, except along the premises of the complainants and said Bohnet, and purposes and intends, when the same is completed, to run trains of cars thereon, drawn by steam-engines, for the purpose of conveying passengers and freight upon, along, and over said railway. Complainants show by their bill, and charge, that the defendant, under its articles of association, if the same are valid, has the right to use on said. railroad an engine or motor to be operated by steam; that under the said articles, if the same are legal and binding, the said company is not only permitted to carry passengers, but is authorized to use the said road for the transportation of freight and property.
The complainant Theodore S. Nichols shows and charges in the bill that one William Campbell, claiming to act for the defendant or some other corporation, applied to him for his consent and permission to build its said road upon and along said highway, and that he signed some paper which was then and there presented to him by the agent of said company, giving his consent to the building of some railway; but he avers that the agent falsely and fraudulently represented to him that the proposed road was simply a street railway, and that the motive power to be used thereon was to be ' either electricity or animal power, and, in reliance upon the statements so made by the agent of the defendant, he subscribed the paper presented to him, the contents of which he is now unable to state, but he avers that by reason of said false and fraudulent representations the said paper is and of right ought to be null and void, and of no binding'force and effect whatever. ■
The complainants Ella E. Nichols and Lucy L. Granger charge that they have given the defendant no consent or permission to construct and operate said railway in said highway in front of their premises, and that said railway has obtained no lawful consent of the supervisor and commissioner of highways of said township, but that 'the same was obtained upon the false- and fraudulent representation that the motive power to be used by said street-railway company was to be either animal or electricity, and that, therefore, whatever consent was given by said commissioner and supervisor was of no binding force or effect whatever; that the paper purporting to give the consent of said supervisor and commissioner does not in any particular comply with the statute requiring the consent of the supervisor and commissioner, and that the acts and doings of the defendant, as set forth, have been done without warrant of law, and are not only an invasion of the rights of the complainants, but are also an unlawful appropriation of the public highway for railroad purposes; 'that the statute under which said pretended company was organized is no longer in force, and that there is no statute in this State which authorizes the formation of any such corporation as the said, defendant claims to he; that the defendant, as a corporation, has no legal existence, and has no right to enter upon any of the highways of this State, and build thereon a railroad of any description; that the paper purporting to be the consent of the township board of said township to build said road was not executed in accordance with any action theretofore taken by said board, nor was the same made and executed at any meeting of said township board.
Complainants claim by their bill that the construction and operation of said railway will cause a serious and lasting damage and injury to their said real estate, and that the corporation is not personally responsible for any judgment for damages; that the location of said track within two or three feet of the road fence, upon the west line of said highway, makes it necessary for them, in order to get into their fields or to their house and barns situate thereon, to cross the track of said railway; that their house fronts upon said highway, and is only a distance of 90 feet from the line of said highway, and that it will be impossible to hitch horses or other animals in front of their sajd premises without danger of their being killed or injured by the cars of the defendant; that the construction and operation of said railway will largely decrease the value of their real estate, and if allowed to be constructed and put into operation, will occasion them irreparable injury; that the operation of said road along said highway will not only be an injury to their property, but will occasion serious and. lasting-injury to the entire length of the road over which said railway runs; that they are forced to come to Ann Arbor or Ypsilanti to market all the produce and crops from said farm; that the only highway over which they can pass to either city is this highway, and, if defendant is permitted to complete the construction and continue the operation of said road, along said highway, it will be and remain a continuous cause of injury and damage to complainants, and a permanent obstruction in said highway, and an object of fright to their teams while engaged in marketing .their produce and crops from said farm; that the construction and operation of said railroad will decrease the value of complainants3 property at least $3,000.
Complainants further charge that the defendant intends to proceed at once to complete the construction of said road along said highway, and to place thereon ties and railroad iron,-and to run over and upon the same steam-engines and cars for the transportation of passengers and freight thereon, as often as one train every hour.
Defendant demurred to a portion of this bill, and answered as to the remainder. The causes of demurrer are:
1. That it appears upon the face of the bill that the defendant has been and is duly incorporated.
%. That the court has no jurisdiction in the cause to hear and determine the question of the incorporation of the defendant.
By way of answer, the defendant admits—
That it has graded its road-bed from a point in the city of Ypsilanti, near the Michigan Central depot, to the south boundary line of the city of Ann Arbor; that all of said road within the city of Ypsilanti is completed, and nearly the whole of said road from Ann Arbor to Ypsilanti has been tied and ironed, and is now ready to be operated as a street railway.
Defendant denies that its said railroad is in any correct sense a commercial railroad for the transportation of passengers and freight, upon which ordinary steam-engines, freight and passenger cars, are to be used and operated, and says it is strictly and simply a street railroad for the conveying of passengers to and from the cities of Ann Arbor and Ypsilanti and intermediate points, and that the insertion in its articles of incorporation of authority to carry freight was' designed merely to authorize defendant to carry light articles of merchandise for the benefit and accommodation of the passengers and others who . may desire to have light articles of merchandise, purchaséd in Ann Arbor or Ypsilanti, transported to their homes in said cities, or on the line of said road; that the motor to be used on said road is no larger than a street-railway car, makes a less noise in operation than the electric car with overhead wires, emits little or no steam or smoke, and is as unobjectionable in., every way as an ordinary street railway propelled by animal power.
Defendant further claims that it has obtained the right to use said highway from the proper authorities; that it has also obtained a right of way from all the persons owning land upon the said highway on the south and west sides thereof, except for a distance of about 40 rods across lands owned by one John A. Bohnet; and it admits that it obtained said right of way for the construction and operation of a street railway, and not for a commercial road.
Defendant further says that it obtained the right of way and consent to construct and operate its said road in said highway, across the lands described in said bill as complainants'’ lands, from the said complainant Theodore S. Nichols, and it denies that in obtaining such consent and right of way it made any false representations whatever to said Theodore S. Nichols; that said complainant Theodore S. Nichols, in giving the defendant such right of way and consent to construct and operate its said road, did so without restriction or limitation as to the rights of any other person who was an owner of said premises in common with himself; and that, under and by virtue of such consent and right of way so given by the complainant Theodore S. Nichols, it has a right of way for the construction and operation of its said road as to all of the complainants.
The defendant denies that the construction and operation of said road will cause any damage whatever to the lands described in said bill of complaint, but says that they will be greatly increased in value by the construction and operation of said road. Defendant further claims that it has expended in grading its road, tieing and ironing the same, or become liable for, over $50,000, and that all of such expense has been incurred by the defendant, acting upon the consent and agreement of the said Theodore S'. Nichols, giving defendant the right of way across the premises described in the bill, and that, unless it is permitted to complete and operate its said road, it will thereby suffer great loss and damage, and that said loss and damage will amount to over $10,000.
The testimony in the^ case was taken in open court before his honor Judge Peck, then sitting in that court, who, upon the conclusion of the case, entered a decree dismissing complainants’ bill, but without prejudice to the right of the complainants to proceed in an action for damages.
From this decree complainants appeal.
The defendant corporation was organized under chapter 94, How. Stat. Its articles of association recite that the corporators desire to become incorporated under the provisions of chapter 94, How. Stat., being Act No. 148, Laws of 1855, as amended by Act No. 91, Laws of 1871, entitled “ An act to provide for the construction of train railways,’’ as added to by Act No. 14, Laws of 1861, as amended by Act No. 188, Laws of 1867, which provides for—
“The incorporation of persons for the constructing, owning, maintaining, and operating of train railways or roads for the conveyance of persons or property, to be operated by horse or other animal power, or by pneumatic or other motive power, or by any combination of them, or by steam, as shall be determined by the board of directors, and for the purpose of constructing and oper-* ating railways through the streets of any town or city in this State, and to fix the duties' and liabilities of such corporation.’’
Chapter 94, as it originally stood prior to the amendments, was Act No. 148, Laws of 1855, and, as originally passed, provided for the incorporation of train railway companies. In 1861, the Legislature, by Act No. 14 of that session, so amended the chapter that it provided for the organization of companies under the act to construct and operate railways in and through the streets of any town or city within the State. ’ The act was again amended in 1867 by adding three new sections, to stand as sections 38, 39, and 40. Act No. 188, Laws of 1867. By section 40 it was provided that—
“The cars on the street railway of .any company organized under this act may be operated by steam, or by any power other than, animal power, whenever the municipal authorities of the city where such railway is situated shall authorize the same.”
The question of the incorporation of street railways under this act came before this Court in Taylor v. Railway Co., 80 Mich. 79, and in Detroit City Ry. v. Mills, 85 Id. 634. In the last named case the constitutionality of this chapter and the several amendments was questioned, and the act upheld. We shall not, therefore, discuss the constitutional questions raised as to the act, or the proper and legal organization of the defendant company. If the defendant company is not' legally and properly organized under the act, or if the company is attempting to exercise corporate franchises not conferred by the' act, it is a matter between the defendant company and the State. The mere usurpation of corporate authority does not confer upon an individual the right to bring suit to restrain an unlawful exercise of authority. If the State chooses to waive' it, or permit the action, no others can complain, so long as personal or property rights of the individual are not invaded or affected.
The two principal questions raised by complainants* counsel are:
1. That the use of steam as a motive power is an additional burden or servitude upon their lands.
2. That the mode or manner of construction of the road-bed constructed by the defendant company is also an additional burden or servitude upon their lands.
The testimony shows that the motor used is what is known as "Porter’s Noiseless Motor;” that it is operated by steam, and inclosed like an ordinary street-car, and about the same' size, and makes less noise than an ordinary electric street-car with overhead wires; that it is so arranged that the steam makes a continuous circula tion, making no noise by emission of steam, and that tbe smoke is consumed.
It was held in Detroit City Ry. v. Mills, 85 Mich. 634, that an ordinary street railway is not an additional burden or servitude where the fee of the street is in the abutting owner, and' there is almost a consensus of judicial opinion in this direction. People v. Kerr, 27 N. Y. 188; Clinton v. Railroad Co., 24 Iowa, 455; Railroad Co. v. O’Daily, 13 Ind. 353; Dill. Mun. Corp. § 723 (574).
It was also held in that case by this Court that the use of electricity as a motive power did not create an additional servitude or burden upon the lands of the abutting owners. The manner in which the road of the defendant company is to be operated by the use of this steam motor', as it is, is no' more of a burden or servitude upon the lands of the abutting owners than an electric car with its overhead ■ wires. It is no more obstruction to the street, and no more of an object calculated to frighten horses passing and repassing upon the highway. Section 4.0 of the act, above quoted, expressly provides for the use of steam as a motive power upon street railways operated in cities, whenever the municipal authorities authorize it. In Briggs v. Railroad Co., 79 Me. 363 (10 Atl. Rep. 47), -the use of steam as a motive power upon street railways was expressly recognized. We think the complainants' are not entitled to the relief asked for by their bill by reason of the use of steam as a motive power in the manner in which it is shown the defendant proposes to'use it.
It appears that before the defendant company was organized a company known as the “Ann Arbor, Ypsilanti & Detroit Street Railway Company” had procured from the township board of the township of Ann Arbor the right and privilege to construct, maintain, and oper ate a street railway over this highway, to the rights of which company the defendant claims to have succeeded, and also claims the right to construct and operate this street railway by reason of permission, granted to it in writing by the supervisor and commissioner of highways of said township, to locate, establish, construct, and maintain its road over this highway, and to use thereon animal, motor, or electric power. Some question is raised by complainants’ solicitors in this record as to the authority thus granted. Without entering upon that question at length, it is sufficient to say that we are satisfied that there was proper authorization by the township to construct, maintain, and operate this road by the defendant, and, unless the complainants are in some manner affected in their private and property rights, the defendant cannot be interfered with by them in the operation of its road.
The second question raises the important point in this case, and that is the manner or mode in which the defendant’s road is constructed in and along the highway. A street railway, the rails of which are laid to conform to the grade and surface of the street, and which is otherwise so constructed that the public are not excluded from the use of any part of the street as a public way, carrying passengers, stopping at street crossings to receive and discharge them, is a street railway, whether'it be operated by horses or electric power, or by steam-motor, such as is shown to be used by the defendant in this case. The testimony shows, however, that, since issue was joined in this case, the defendant company has completed the construction of its road, which had been mostly completed at the time the bill was filed; that the road, as constructed, runs along upon the highway within two or three feet of the road fence upon complainants’ land; that the road-bed does not conform to the grade of the street, nor pass over and along the surface of the ground next to the fence, but that the grade for the road-bed is made by cuts and fills. In some places the cuts are two feet in depth, and the fills as great. Ditches are dug along the side of the road-bed on either side. Upon the road-bed so constructed ties are placed to the number of from 2,000 to 2,800 to the mile. Upon these ties is placed a T-rail, such as is ordinarily used in the construction of a railroad for commercial purposes, except that the T-rail is somewhat lighter. The complainants claim that this is a use of their property not warranted by the act under which the company is organized, and a taking of their private property for public uses without compensation; that it depreciates the value of their lands, in that they are unable to pass over from the highway to their lands without crossing this road-bed at great inconvenience; and that they are unable to hitch horses or other animals along the highway fence. The complainants’ lands have a frontage on the highway of about 40 rods.
The act under which the defendant is incorporated confers no power upon it to construct, maintain, and operate such a road without compensation to the property-owners abutting thereon, and the township authorities could confer upon the defendant no such power. It is from its mode of construction in all essentials a commercial road, and not an ordinary street railway. It is not constructed as street railways are usually constructed, on a level with the surface of the street, so that vehicles may pass and repass over it. As constructed, it blocks up the highway so far as *the complainants’ use of it is concerned in going to and from their premises, and is an additional burden upon their lands.
The rule is well established in this State that the dedication of a street to the public does not authorize it to be used for an ordinary railroad track, and the municipal authorities cannot authorize it to be so used without compensation to the adjacent owners. G. R. & I. R. R. Co. v. Heisel, 38 Mich. 62, 47 Id. 393; Riedinger v. Railroad Co., 62 Id. 29. It was said by Mr. Justice Cooley, in G. R. & I. R. R. Co. v. Heisel, supra:
“A. street railway for local purposes, so far from constituting a new burden, is supposed to be permitted because it constitutes a relief to the street; it is in furtherance of the purpose for which the street is established, and relieves the pressure of local business and local travel, instead of constituting an embarrassment. * * * It is enough that the use of the street for a city railway is a proper use, and therefore a lawful use; ”, citing Railroad Co. v. Railroad Co., 35 Barb. 364; Railroad Co. v. Railroad Co., 33 Id. 420; People v. Kerr, 27 N. Y. 188; Railroad Co. v. O’Daily, 12 Ind. 551; Brown v. Duplessis, 14 La. Ann. 842; Elliott v. Railroad Co., 32 Conn. 579; Hobart v. Railroad Co., 27 Wis. 194.
Speaking further in that case, the learned Justice said:
“But we cannot say the same in the case of the ordinary railroad. * * ' * In such a case it cannot be questioned that the laying of the railroad track in the highway without first legally appropriating the land for the purpose, and without making compensation, is a legal wrong to the adjacent owner; the track as to him is wrongfully laid.”
In Riedinger v. Railroad Co., 62 Mich. 29, a bill was filed to restrain the defendant company from construct-' ing a railroad over and across Front and Superior streets in the city of Marquette. The bill was dismissed in the court below, and complainants appealed to this Court? where, upon a hearing, a decree was entered for a perpetual injunction against this* use of the streets, unless within six months measures should be taken to condemn the complainants’ rights in the streets, and compensate them therefor.
Defendant contends, however, that the complainant Theodore S. Nichols is estopped' from, making this claim by reason of a release of the right of way over complainants’ premises. The writing is not put in evidence, and complainant contends that it was procured by fraudulent representations; that at the time of its execution the defendant company represented to him that it was to build a street railway similar to that in the city of Ann Arbor; and upon this understanding he consented to the construction of the road in front of his premises. We think the complainant borne out by this record in that claim, and that the complainants are not estopped from insisting upon their rights here to have a road — if one is to be built at all by defendant — such as was represented to him would be built;' that is, an ordinary street railway, conforming to the grade of the street.
In, view of these facts as to the mode in which the road is constructed, we are satisfied that the complainants are entitled to the injunction prayed. The decree of the court below will be reversed, and a decree entered in this Court granting a perpetual--injunction to the complainants, enjoining and restraining the defendant corporation from maintaining and operating its road in the manner in which itk constructed across the complainants’ premises.
Complainants will recover the costs of both courts.
Grant, J., concurred with Long, J.
Morse, J.
I think this case should be reversed, but I do not think that the law, as yet, has been settled in this State that an electric street railway is not an additional burden to the highway, and I am satisfied that a steam railway is such a burden.
The injunction should be granted as prayed.
McGrath, J., concurred with Morse, J. | [
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McGrath,-J.
Defendant owns and operates a flouring mill in the city of Detroit. Plaintiff, who is 50 years of age, had been in defendant’s employ for nearly 8 years. Plaintiff claims to haVe been employed to cooper barrels, fill them, and weigh them, and, when not thus engaged, wait on customers. Occasionally he was asked to deliver flour, but he claims to have objected to that kind of .work, because not employed therefor. He had, however, during the time that he was in defendant’s employ, delivered quite a number of loads of flour, and stated that he objected at least 40 times.
He sets up that defendant had a delivery horse which was balky and fractious; that the horse would start suddenly with a load, and plunge; that atone time while he was driving the horse it balked, and at another it became frightened at a hand-cart that was being trundled along the street; that he had several times objected to driving this horse; that defendant had used this horse as a delivery horse for about three years, and plaintiff had driven him a number of times; that on the day of the injury he was told by defendant’s son to deliver a load of flour, with this horse and truck, in the eastern part of the city, and then to go to the Michigan Central Railroad freight sheds, and get a load of flour; that he objected, for the reason that he had more work than he could do, and, more than that, “he was not hired to drive teams;” that he was told that it did not make any difference what he was hired to do there, — he had got to do whatever he was told to do; that thereupon he took the load of flour to the eastern part of -the city, and went- down Woodbridge street on his way to the freight sheds, and when between Eighth and Tenth streets the steam from a passing locomotive frightened the horse, and it began to rear, when plaintiff jumped from the truck, intending to take the horse by the head, but broke one 'of the smaller bones of his leg in jumping; that the horse did not run away, but one of the by-standers took it by the head. Plaintiff was laid up for some months, and brings this suit for injuries received, loss of time, etc.
It appeared from plaintiff’s own testimony that there were a number of railroad tracks in the vicinity of the place of the injury, and that the track upon which the engine, the steam from which frightened the horse, was moving, was a spur track running parallel with Wood-bridge street; that this engine was engaged in moving a train of freight-cars, and plaintiff was driving west, and within five feet of the train of cars, while the train was moving east, and when the horse reached the engine the «scape of steam caused the horse to jump. The court directed a verdict for defendant, and plaintiff appeals.
Irrespective of the question of the liability of the defendant as employer under such circumstances, the plaintiff was guilty of such contributory negligence as will defeat a recovery. He knew the character of the horse, and drove him to within five feet of a moving locomotive, from which steam was escaping. It is a matter of common knowledge that steam from a locomotive will frighten a gentle horse at close range. He says he did not see the engine, but he saw the rest of the train. He must have known that it was being moved by the locomotive, and it was his duty, under the -circumstances, to have seen both engine and cars.
The judgment is affirmed, with costs to defendant.
The other Justices concurred. | [
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McGrath, J.
Defendants were copartners in the bus iness of purchasing timber lands, logs, and other forest products, and in the manufacture and sale of lumber, shingles, lath, etc.
Plaintiff claimed to have been employed by Jacob Hetz, the husband of the defendant Katherine Hetz, on behalf of the firm, in the fall of 1887, in hauling logs, cutting roads; making skidways, and skidding logs; that Hetz represented that these logs belonged to, and that the work was done for, defendants. Plaintiff claimed that the work done, at prices agreed upon, amounted to $1,175; that he had been paid by defendants about $500; that he had allowed for teams furnished to him by defendants for said work the sum of $400; and judgment was rendered for him for $326.28, being about the balance, with interest.
The defendants claimed that certain of this work for which plaintiff had charged was done for Hetz individually, and not for the firm; that the firm had employed plaintiff to do certain, work, but part of which had been done, and that they were entitled to recoup for damages-sustained by reason of the non-performance of the work left undone; that defendants were entitled to a credit for over $500 for the teams furnished by them to plaintiff; that, during the progress of the work by plaintiff, several suits were commenced against plaintiff, by persons-claiming labor liens, and defendants’ logs were attached,, by reason whereof defendants were put to great expense in defending their property; that two of said suits were carried to this Court; and in all of said suits the defendants in the present case succeeded.
The record presents 21 assignments of error, 14 of. which depend upon the single question of the authority of Jacob Hetz to act for defendants. If Hetz had. authority to employ plaintiff, defendants were bound by the hiring, and plaintiff was not liable for damages for dis continuing work, when directed to do so by Hetz. This question was fairly submitted to the jury, but defendants contend that there was no testimony tending to establish his agency. Defendants’ articles of copartnership were introduced, and contain the following provisions:
“The said Katherine Hetz is hereby authorized to appoint Jacob Hetz as her agent, who shall have and exercise, with reference to the business and affairs of said firm, powers which, by this article, the said Katherine Hetz might and could exercise were said appointment not made; and it is understood and agreed that said appointment shall be made, and that said Jacob Hetz shall devote his time and services to the business of said firm, in lieu of the time and services of said Katherine Hetz.”
The articles contain certain restrictions upon the powers of the individual members, prohibiting certain transactions, but do not prohibit transactions of this nature. The firm paid to the plaintiff all of the moneys received by him in the course of the work, honored all the orders drawn upon them, and, through Hetz, furnished teams for the work. There was abundant testimony tending to establish the agency of Jacob Hetz; indeed, he was clothed by the articles with the general authority of a partner.
The court instructed the jury that defendants could not set off or recoup their expenses in defending the lien suits, if the failure of plaintiff to pay his men was due to the fault of defendants, or grew out of the fact that defendants failed to pay plaintiff. There was no error in this instruction. In the absence of any express agreement, plaintiff was not liable for costs incurred by defendants in defending their own property from a claim of lien made by a third party, to which such third party had no legal right.
Several errors are assigned upon exceptions taken to the admission of testimony, bnt the rulings of the court were correct.
The judgment is affirmed, with costs.
The other Justices concurred. | [
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Morse, J.
This is an action for personal injuries. The court below directed a verdict for the defendant on the ground that no. negligence on its part had been shown. There was no testimony given on behalf of the defendant, and the case rested upon the showing on the part of the plaintiff.
At the time of the injury plaintiff was 20 years of age, and had been in the employ of the defendant about five months. His duties consisted in making cores in a foundry for iron castings, placing them on a carriage,, pushing the carriage into the drying oven or furnace, lighting the fires, and adjusting an iron door in front of the furnace. The door was made of sheet-iron over an iron frame-work, and was 10 feet high by 6 or 7 feet in width, and weighed between 250 and 300 pounds. It was. moved up and down over the entrance to the furnace by means of a chain fastened to its top, and running up-over a trolley-wheel or fixed pulley, across to another wheel about four feet distant, and from thence down the wall of the foundry nearly to the ground. To this end of the chain a weight was attached, which counter-balanced the weight of the door. It will be seen that when the door was up there was a constant strain on the chain at least equal to the weight of the door. The door, when up, was higher than a person’s head. There was a rim on the inside of the door, or the frame, which was taken hold of by the hands to pull it down. It took two persons to do this.
As plaintiff and another employé, on the 28th of January, 1890, were pulling this door down, the chain broke, and tbe door fell upon plaintiff, breaking liis leg and otherwise injuring him. The chain was covered with grease and soot, so that its condition when in place was not well open to observation. The chain was of wrought, iron, and the links were about two inches in length, and from a quarter to five-sixteenths of an inch in thickness. It was found after the‘accident that this chain had been connected together in one place with coils or strands of wire, which had broken or pulled apart. The wire was rusty, and had evidently been there a long time. The fact of this wire connection was unknown to plaintiff; and James Hurley, who had worked in the foundry since 1882, testified that he did not know there was any wire there until it broke. He had never known of any repairs to the chain while he was there, or of any inspection of it by any one. The witnesses could not tell definitely what the dimensions of the wire were, but it was shown to be from one-sixteenth to one-eiglith of an inch in thickness; nor was it shown definitely how it was arranged, — how many strands there were in the coil, or whether it was twisted together or not. The fact was apparent, however, that the wire had become in some manner, probably from rust, so weakened that it could not stand the strain, and broke or parted. It was not shown with any certainty whether more than one strand of the wire was broken. One witness thought they were all broken, and that there were four or five strands in. all, but there might have been a dozen.
I think the plaintiff made a sufficient showing to go to-the jury, and that the case is ruled by the following cases in this Court: Van Dusen v. Letellier, 78 Mich. 492; Johnson v. Spear, 76 Id. 139; Morton v. Railroad Co., 81 Id. 423; Weiden v. Electric Light Co., 73 Id. 268.
It was the duty of defendant to provide a safe place for plaintiff’s work, and to furnish safe and suitable appliances to be used in and about his work. And its duty did not end here. It was also its duty to see that the appliances so furnished should be kept safe, so far as reasonable and proper watchfulness and inspection would enable it to do so. It was the duty of defendant to guard against the dangers liable to arise from the almost constant strain upon this chain, and the wear and tear of its moving. It is certainly shown by the testimony that the use of this wire weakened the strength of this chain, and therefore imposed upon the defendant more than ordinary watchfulness and care. The evidence tended to show that it had been in this condition for eight years without change or inspection. This chain must have been joined by this wire connection either by the defendant, or with its knowledge and consent, or it was negligent in its examination of it. If joined by the defendant, its duty was to examine it frequently, to note its condition. It may be that the defendant can explain the condition of this wire, so as to rebut any presumption of negligence arising from the facts shown by plaintiff; but until it does so the plaintiff, in my opinion, has made a case for recovery.
The judgment is reversed, and a new trial ordered, with costs of this Court to plaintiff.
The other Justices concurred. | [
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Grant, J.
This case was tried by the court, and the finding contains the following material facts:
Defendant is a mutual benefit association incorporated under Act No. 89, Laws of 1883 (3 How. Stat. chap. 163), for the improvement morally, socially, and intellectually of its members, and for the purpose of establishing a benefit fund, from which shall he paid a certain sum to the member, or his widow, or certain other relatives, as he may direct, and as the endowment laws of the order provide. Its constitution provides for á Great Camp, composed of certain officers and one representative from each of the subordinate tents in the State. This Great Camp meets annually, and its members are selected annually. Three of the principal officers constitute the executive committee. Article 18, § 2, of its laws reads as follows:
“The executive committee shall have power to pass on all death claims, and, if in their judgment any such claim is not on its face a valid one, they shall notify the beneficiary or beneficiaries of the deceased members thereof, and give them or their attorneys an opportunity to appear before such committee within sixty days thereafter, and present such evidence as they may have to establish the justness or validity of such claim, and the said committee shall try, hear, and decide upon the justness or validity of such claim, and such decision shall be binding upon such claimant, unless an appeal is taken to the Great Camp. The notice of the appeal from the decision of the said committee must be filed with the Great Record Keeper within sixty days thereafter. The decision of the Great Camp, in all such cases, shall be final, and no suit in law or equity shall be commenced or maintained by any member or beneficiary.”
Plaintiff's husband, now deceased, became a member of the defendant, and received what is termed a “half .endowment certificate,” which entitled him to receive one assessment on the membership, not exceeding $1,000, as a benefit to his wife, upon satisfactory proof of his death, and the surrender of the certificate, provided he shall have, in every particular, complied with all the rules and regulations of the order. Hpon his death plaintiff pre sented her claim to the committee, which decided against it on the ground that at the time of his death he was not a member in good standing, hut had been duly and regularly suspended therefrom, in accordance with the rules and regulations thereof. She then appealed to the Great Camp, which also disallowed the claim, after a full examination and hearing. She then brought this suit, and judgment was rendered therein against her.
It is claimed on behalf of plaintiff that the provision above quoted, which makes the decision of the Great Camp final, is contrary to public policy, and void, in that it ousts the court of jurisdiction. No charge is made that either the committee or the Great Camp acted fraudulently, or in any manner contrary to the rules and regulations of the order.
I am unable to see any difference between the present case and that of Van Poucke v. Society, 63 Mich. 378. These organizations are purely voluntary, and it may well be considered by their members important that claims of this character should be determined by methods more inexpensive than resorts to the courts. This reason is well expressed by my Brother Champlin in the case above cited.
Plaintiff seeks to maintain a distinction between that case and the present one, in that the plaintiff there was himself a member claiming for “sick benefits,” while the plaintiff here is not a member, and had no voice in the selection of members of the tribunal. Her right depends solely upon the voluntary act of her husband in becoming a member. Her right to receive the benefit depended upon his complying with the constitution and rules, to which he assented and which became a part of his contract. I can see no reason why a different rule should apply to plaintiff than to a member making a claim for benefits. Similar provisions have been sustained by the courts. Anacosta Tribe of Red Men v. Murbach, 13 Md. 91; Toram v. Association, 4 Penn. St. 519; Society v. Vandyke, 2 Whart. 309; Woolsey v. Independent Order of Odd Fellows, 61 Iowa, 492 (16 N. W. Rep. 576); Rood v. Association, 31 Fed. Rep. 62.
Judgment affirmed.
Champlin, C. J., Morse and McGrath, JJ., concurred. Long, J., did not sit. | [
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Shepherd, P.J.
Plaintiff city instituted condemnation proceedings in an attempt to acquire two parcels of property upon which were located a print shop, a party store, several apartments, a newspaper distribution center and vacant store space. Pursuant to MCL 213.56(1); MSA 8.265(6X1) defendants, the owners and tenants of the properties, filed a motion in Macomb Circuit Court challenging the necessity for the taking. Judge Frank E. Jeannette of the Macomb Circuit Court ruled that the proposed taking was for a private purpose and thus contrary to Const 1963, art 10, §2 and dismissed the condemnation action. We affirm because it seems clear that at the hearing on the necessity for the condemnation the reasons given by the city for the condemnation were revealed to be a complete fiction. The record reveals that the city acted as an agent for a private interest, a local car dealership, Rinke Toyota.
The city’s purported reasons for seeking the condemnation were set forth in the city resolution attached to its condemnation complaint:
(1). For the acquisition, demolition and removal of a use of land that is nonconforming under provisions of the City of Center Line’s Zoning Ordinance, which specify certain requirements for off-street parking and loading space not met by the present use; (2) for the acquisition, demolition and removal of a structure which, because of age, physical disrepair, deterioration, physical obsolescence, inadequate facilities and other conditions is a blighted structure, and a factor in and a cause of blight in the immediate vicinity thereof; (3) for the prevention of the deterioration of commercial property in the City to improve and stabilize the commercial business district and the tax base of the City; (4) for the demolition and removal of the structures and improvements on the land, and the conveyance of the land to a private developer for use and development for commercial purposes in a manner that will improve the economic viability of the existing commercial district of the City, and that will improve and stabilize property values in the area and the tax base of the City, all of which purposes are hereby found, determined and deemed to be public purposes necessary for the public use and benefit of the citizens of the City of Center Line.
Ronald D. Reiterman, Assistant City Manager, Community Development Director and City Assessor, testified that in June, 1984, a representative from Rinke Toyota had approached the city about the acquisition of these two parcels of property. Rinke Toyota, is located adjacent to the property in question. Representatives of Rinke Toyota explained to the city that it was extremely interested in acquiring the property so that it could expand its space for the storage of new cars. Reiterman indicated that Rinke Toyota representatives told the city that, without the ability to expand, it might have to relocate somewhere else, a move which Reiterman concluded would have a serious economic impact on the city. Rinke’s legal counsel indicated to the city that it had tried unsuccessfully to purchase the property privately, and this testimony was corroborated by Sabah Hermiz, land contract purchaser of one of the parcels. Reiterman also disclosed that the city planned to turn the property over to Rinke Toyota and had accepted its offer to financially underwrite all of the expenses incurred in acquiring the property, including court costs, attorney fees, appraisal and survey costs. The city contended that the private funding of the condemnation did not alter the significant public purpose behind the taking.
The city presented the proposed taking in the instant case as just one more logical step in its continuing and long-term efforts to address the parking shortage and other urban problems it was experiencing. Testimony at the hearing indicated that the city initiated a renewal program in 1962 to redevelop a blighted area near Van Dyke and Ten Mile Road. In 1979, to prevent further deterioration of the city’s business district, the city created the Downtown Development Authority (dda). The dda hired a consultant who identified a series of parking shortages in the city.
The city planner testified that neither parcel conformed to the off-street parking requirements of the city zoning ordinance. Thus the properties constituted nonconforming uses under the zoning ordinance. The city planner testified that the proposed taking would alleviate the parking shortage by eliminating the buildings causing the deficiency.
Defendants’ testimony rebutted the city’s parking shortage claim. John Chmelko, owner of the print shop, testified that a nearby parking lot was sufficient for his needs. He testified that he and his family lived close by and did not need a space. He testified that the three spots next to his shop were adequate since he rarely had more than one customer at a time.
Mikhael Sitto, owner and operator of a party store, testified that the nine off-street parking spaces next to his building were more than adequate. Hermiz testified that neither of the two renters owned a car. He testified that the users of the newspaper distribution center used the alley to drop papers. Delivery people picked up the papers relatively quickly and were generally on bicycles. Chmelko, Sitto and Hermiz all testified that they had never received a complaint from other businesses or city authorities about a parking problem.
Reiterman conceded that the alleged parking deficiency involved more of a shortage on paper than in fact. In regard to these two buildings, Reiterman acknowledged that, despite the inadequacy of oif-street parking as specified in the zoning ordinance, no actual parking shortage existed now or in the past at this location. Reiterman admitted that no critical parking problems had been observed and no complaints about any parking problems had been received from any city official or from other businesses. Reiterman suggested that the taking of the two properties would eliminate the parking deficiency but he conceded that Rinke’s redevelopment plans meant no new public parking places would be created.
City officials also testified that the structures were blighted. The buildings date back to the early 1900’s, but Reiterman conceded that the buildings were well-maintained. The consultant hired by the dda focused his criticism on the newspaper distribution center. Chmelko testified to a variety of improvements to his business and Hermiz testified to the structural soundness of his building.
The real rationale behind the condemnation was explained by the dda consultant, Gerald Luedtke. He testified to the necessity of preventing the deterioration of the tax base and improving the economic viability of the city’s commercial district. He indicated that Rinke Toyota was one of the "economic anchors” of the city and a "magnet” for consumers. "If that dealership were not there, this portion of downtown would be economically dead.”
The trial court was unconvinced "that the taking of these properties advances clear and significant public interests.”
I
The city first argues that the trial court changed the burden of proof by initially concluding, in a pretrial motion, that defendant property owners had the burden of proof to show a lack of necessity, either by fraud, error of law or abuse of discretion. MCL 213.56(2); MSA 8.265(6X2). That section of the statute provides:
(2) With respect to an acquisition by a public agency, the determination of public necessity by that agency shall be binding on the court in the absence of a showing of fraud, error of law, or abuse of discretion.
Plaintiff then argues that in its final ruling the trial court held against the city by applying a burden of proof other than that which the court originally stated and by holding that it could not find a clear and significant public interest in the taking, after applying the "heightened scrutiny” test of Poletown Neighborhood Council v Detroit, 410 Mich 616; 304 NW2d 455 (1981).
We can find no merit in plaintiff’s argument. This is not a case where the city presented only its resolution and left it to defendants to prove their case. In fact, plaintiff presented two top city officials and a consultant intimately familiar with the city’s condemnation action. Plaintiff does not argue that it did not put forward evidence in reliance on the prehearing ruling regarding the burden of proof. Plaintiff does not proffer other evidence which would weigh in its favor. We believe plaintiff received a full and fair hearing and was not, in fact, unfairly prejudiced by the court’s ruling.
In Poletown our Supreme Court ruled:
Where, as here, the condemnation power is exercised in a way that benefits specific and identifia ble private interests, a court inspects with heightened scrutiny the claim that the public interest is the predominant interest being advanced. Such public benefit cannot be speculative or marginal but must be clear and significant if it is to be within the legitimate purpose as stated by the Legislature. [Poletown at 634-635.]
In ruling, the trial court applied this standard to the facts here presented. The nonconforming use argument was a fiction. Proofs at the hearing indicated that parking was more than adequate. This case is distinct from one in which a nonconforming use presents a real hazard. Moreover, the city’s "blight” argument also lacked factual substance. We believe that the proofs at the hearing indicate that the city’s determination was either fraudulent or an abuse of discretion, especially under the heightened scrutiny test of Poletown. We therefore find no error in the trial court’s ruling. Plaintiff can show no prejudice to its position by the trial court’s ultimate holding which changed neither the law nor the burden of proof.
II
Plaintiff next argues that the city council’s determination of public purpose is conclusive and therefore the trial court erred in dismissing plaintiff’s condemnation action. Const 1963, art 10, § 2 provides:
Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.
The condemnation of private property for other than a public use is not sanctioned by the constitution. It is well-established that the power of eminent domain may not be exercised where the intention to confer a private use or benefit forms the purpose or a part of the purpose for the taking. Shizas v Detroit, 333 Mich 44, 59-60; 52 NW2d 589 (1952).
There are two lines of authority on the amount of deference a legislative determination as to "public use” is to be given. We first examine the cases under the federal constitution. The United States Supreme Court has recently taken the view that where the state legislature has determined that there are substantial reasons for an exercise of the taking power the courts must defer to that determination. Hawaii Housing Authority v Midkiff, 467 US 229; 104 S Ct 2321; 81 L Ed 2d 186 (1984); see also Berman v Parker, 348 US 26; 75 S Ct 98; 99 L Ed 27 (1954) (where Congress has made a determination of public purpose, such determination is "well-nigh conclusive”; the Legislature, not judiciary, is the main guardian of public need); United States ex rel Tennessee Valley Authority v Welch, 327 US 546; 66 S Ct 715; 90 L Ed 843 (1946) (congressional determination of public use entitled to deference unless shown to involve an impossibility).
Another line of Supreme Court cases holds that the ultimate determination of whether the nature of a use is public or private is for the judiciary rather than the legislature. See e.g. Cincinnati v Vester, 281 US 439; 50 S Ct 360; 74 L Ed 950 (1930); Rindge Co v Los Angeles Co, 262 US 700; 43 S Ct 689; 67 L Ed 1186 (1923). See generally Anno: When is taking of property for "public use” so as to be permissible under federal constitution if just compensation is provided — Supreme Court cases, 81 L Ed 2d 931.
We note that the cases upholding the deference given to legislative determinations involve a congressional decision or a state legislative determination upheld by a state court. However, in Cincinnati v Vester, supra, the case most similar to our facts, the Court rejected a city resolution of public purpose. While concluding that legislative declarations of local factors was due great deference, the Court ruled that public use was ultimately a judicial question.
In Michigan, a long line of eminent domain cases have held that the "public use” question is ultimately a judicial one. General Development Corp v Detroit, 322 Mich 495, 498; 33 NW2d 919 (1948); see also Lakehead Pipe Line Co v Dehn, 340 Mich 25, 39-40; 64 NW2d 903 (1954); Cleveland v Detroit, 322 Mich 172, 179; 33 NW2d 747 (1948); Portage Twp Bd of Health v Van Hoesen, 87 Mich 533, 539; 49 NW 894 (1891).
Plaintiff relies on language in Poletown, supra, in support of its proposition that the city resolution of public purpose should be conclusive on the courts. We now turn in greater detail to the Pole-town decision.
Poletown arose out of the economic crisis which faced Detroit and its most significant economic buttress, the automobile industry, in the 1970s and early 1980s. In 1981, unemployment in the City of Detroit reached eighteen percent. Poletown at 647 (Ryan, J., dissenting). In 1980 General Motors entered discussions with the city to build a "new generation facility” in Detroit if a suitable site could be found to replace its aging Cadillac and Fisher Body facilities. Underlying the discussions was the threat that if no such site could be found, taken and made available to General Motors, it would close its plant, take the six thousand jobs those plants represented and go elsewhere.
Reacting to the dismal economic climate and the steady loss of manufacturing facilities in Michigan, the Michigan Legislature had previously passed the Economic Development Corporations Act, 1974 PA 388, MCL 125.1601 et seq.; MSA 5.3520(1) et seq. The act provided that in order to "alleviate and prevent conditions of unemployment” municipalities were granted the power to assist "industrial and commercial enterprises” to revitalize their facilities. MCL 125.1602; MSA 5.3520(2). To further this objective, the Legislature authorized municipalities to acquire property by condemnation in order to provide industrial and commercial sites and the means of transfer from the municipality to private users. MCL 125.1622; MSA 5.3520(22).
The narrow question presented in Poletown was whether the statute authorizing the taking was constitutional. The Supreme Court deferred to the legislative determination of public purpose, and concluded that the benefit to the city was "clear and significant” and therefore sufficient to satisfy the Court that this "project was an intended and a legitimate object of the Legislature” even though "a private party will also . . . receive a benefit as an incident thereto.” Poletown at 634.
We read the factual context of Poletown as extremely significant to the holding in that case. We do not take Poletown to be a complete refutation of the judiciary’s ultimate power to review a city council’s determination of public purpose. Rather, we believe the decision illuminates the deference which must be accorded the state Legislature in the context of the Economic Development Corporations Act.
The Court did in fact place a predicate on its holding:
Our determination that this project falls within the public purpose, as stated by the Legislature, does not mean that every condemnation proposed by an economic development corporation will meet with similar acceptance simply because it may provide some jobs or add to the industrial or commercial base. If the public beneñt was not so clear and signiñcant, we would hesitate to sanction approval of such a project. The power of eminent domain is restricted to furthering public uses and purposes and is not to be exercised without substantial proof that the public is primarily to be beneñted. Where, as here, the condemnation power is exercised in a way that beneñts speciñc and identiñable private interests, a court inspects with heightened scrutiny the claim that the public interest is the predominant interest being advanced. Such public benefit cannot be speculative or marginal but must be clear and significant if it is to be within the legitimate purpose as stated by the Legislature. [Poletown at 634-635.]
The instant case is one in which "heightened scrutiny” should apply since the record readily indicates that the land, if condemned, would be made available to a private party, Rinke Toyota.
Plaintiff argues that a state statute provides that condemnation of a nonconforming use is a proper public purpose. MCL 125.583a; MSA 5.2933(1). At the hearing this argument was seen to be a mere pretense. The parking spaces available were more than sufficient for the two businesses. Furthermore, Rinke’s plan involves an inventory storage lot and not additional public parking. Testimony also revealed that the buildings, while older, were structurally sound and, according to Reiterman, the Assistant City Manager, well-maintained. We see no "clear and significant” public benefit. There is no "substantial proof’ that the public is to be primarily benefitted. In fact, the primary beneficiary will be Rinke Toyota. The public’s interest is marginal or, indeed, speculative. We therefore conclude that the city’s determination does not pass heightened judicial scrutiny under the standard of Poletown.
Our ruling here is further confirmed by a recent decision of the Delaware Supreme Court. In Wilmington Parking Authority v Land With Improvements, 521 A2d 227 (Del, 1986), the Wilmington Parking Authority brought a condemnation action against property in the downtown area of Wilmington adjacent to the News-Journal Company’s principal facility. The authority alleged that the property was necessary for a public parking facility. The condemnation plan, however, provided for the transfer of a substantial portion of the property to the News-Journal for construction of an addition to its facility. The trial court found that the "paramount benefit” of the project was to the News-Journal and dismissed the condemnation action.
The Delaware Supreme Court affirmed. Initially the supreme court noted the Poletown "heightened scrutiny” test and determined that the question of public purpose was ultimately a judicial one, citing Cincinnati, supra. Determining that a decision on public versus private primary purpose required an examination of the "consequences and effects” of a particular project, the court concluded that review of the "underlying purpose” was appropriate. In affirming, the supreme court concluded that the lower court had committed no legal error in its determination of the primary purpose of the project.
We approve the reasoning in that decision. Any benefit to the public is purely derivative of the primary purpose: the city’s continued good relations with Rinke Toyota. While it may be true that the public would derive some benefit from the expansion plans of Rinke Toyota, that would be true of any business. That the automobile dealer is a substantial factor in the business life of the city does not permit it to use city government to eliminate small businesses in order to facilitate its growth. We do not interpret Poletown to mean that whenever a substantial corporate enterprise needs room to expand it can threaten to move and then use that threat, even if real, as leverage to induce the local government to destroy smaller interests. Before that can be allowed to occur, the courts as protectors of the interests of all must look at the purpose of the taking with great vigilance. That is precisely what Judge Jeannette did. He reached the correct result.
III
Finally, plaintiff argues that the failure of the trial court to render its decision within sixty days amounts to error requiring reversal. MCL 213.56(4); MSA 8.265(6)(4). The city apparently did not raise the issue below and points to nothing which would evince prejudice. We believe the error was harmless.
Affirmed. | [
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J. B. Sullivan, P.J.
Third-party defendant Ford Motor Company appeals as on leave granted upon order of the Michigan Supreme Court from a denial of summary disposition by the Wayne Circuit Court. We reverse.
This case arises from the alleged wrongful death of Ford employee Robert N. Williams on January 26, 1979. On that date, Williams, during his employment, entered the third level of a high density robotic storage area to investigate a malfunction in the storage system, when he was struck from behind and crushed by a transfer vehicle. A complaint on behalf of his estate was filed against, among others, defendant-third party plaintiff, Unit Handling Systems Division of Litton Systems, Inc. The complaint alleged that Litton was negligent in designing, manufacturing and supplying the storage system and in failing to warn the decedent of foreseeable dangers in working within the storage area. The complaint also contained various allegations of breach of express and implied warranties and strict liability against Litton.
Prior to trial, Litton filed a third-party complaint against Ford. Litton sought indemnification from Ford in the event Litton was found liable to the decedent’s estate. Trial was then conducted on the primary action and, after Litton was found to be liable for negligence and breach of implied warranty, a $10,000,000 verdict was awarded against Litton. The parties subsequently entered into a settlement agreement in which they stipulated that Litton did not admit negligence, breach of warranty or the propriety of the jury verdict or the judgment.
After the circuit judge certified the judgment agreed upon by the parties, Litton filed an amended third-party complaint more specifically seeking indemnification against Ford under the theories of implied contractual indemnity and common-law indemnity. Litton alleged that Ford breached its contractual agreement by failing to submit the decedent for training programs provided by Litton and by allowing the decedent to enter the storage system when the lockout system was off.
On July 14, 1984, Ford moved for summary judgment on the basis that Litton failed to state a claim upon which relief could be granted. Upon the trial court’s denial of the motion, this appeal ensued.
Michigan jurisprudence recognizes three sources of a right to indemnity: the common law, an implied contract and an express contract. Skinner v D-M-E Corp, 124 Mich App 580, 584; 335 NW2d 90 (1983). This case involves the first two theories.
Ford asserts on appeal, as it did below, that it is entitled to summary judgment because the principal complaint alleged only active negligence against Litton. Indeed, it has been held on numerous occasions that a party may not seek indemnity under common law where the primary complaint alleges active, rather than passive, liability. See, e.g., Feaster v Hous, 137 Mich App 783, 787-788; 359 NW2d 219 (1984). As the primary complaint here alleged only active negligence on the part of Litton, Litton was not free to seek common-law indemnity against Ford. That part of the third-party complaint should therefore have been dismissed. Cutter v Massey-Ferguson, Inc, 114 Mich App 28, 32; 318 NW2d 554 (1982).
In addition to common-law indemnity, Litton. sought recovery under the theory of implied contractual indemnity. It has been said that, to sustain such a cause of action against an employer, the manufacturer must prove "a specific undertaking by the employer to perform some act or service for the manufacturer and an attempt by the employee of the employer to hold the manufacturer liable for the failure to perform the act which the employer had obligated itself to do.” Grayson v Chambersburg Engineering Co, 139 Mich App 456, 461; 362 NW2d 751 (1984). However, it is likewise the case that indemnification under this theory is, as under common law, not available to a party who is proven to be actively negligent in causing the plaintiffs injury. Id., p 462; Skinner, supra, p 585. Accordingly, where the primary complaint is void of allegations of vicarious or derivative liability against the third-party plaintiff, implied contractual indemnity is also precluded. Hadley v Trio Tool Co, 143 Mich App 319, 331; 372 NW2d 537 (1985).
Under this authority, our analysis might appear to end here. However, the trial court denied summary judgment and, citing the case of Hill v Sullivan Equipment Co, 86 Mich App 693; 273 NW2d 527 (1978), held that Litton was entitled to continue discovery. In Hill, the manufacturer and designer of a screw conveyor was sued for injuries sustained by an individual whose arm was caught in the conveyor. The manufacturer filed a third-party complaint for indemnification against the individual’s employer, alleging that the employer rejected the original design, which included a protective cover, and insisted on installation of the machine without the cover. Given these allegations, the Hill majority concluded that summary judgment in favor of the employer should have been denied.
Although Hill has been criticized as erroneously holding that freedom from active fault is not a prerequisite for a successful claim for implied contractual indemnity, it was recently cited with approval for the alternative proposition that where, in the unique situation that the allegations of the third-party complaint, if proven, establish that the sole cause of plaintiffs injury was the negligence of the third-party defendant, then the third-party plaintiff should be given an opportunity to prove that it was free of active fault. Kirin v Riise Engineering Co, Inc, 148 Mich App 278, 284; 384 NW2d 149 (1986), lv den 426 Mich 867 (1986). See also Reed v St Clair Rubber Co, 118 Mich App 1, 10; 324 NW2d 512 (1982).
Litton, citing Hill and Kirin, contends that it similarly should be given the opportunity to prove, as alleged, that it was without active negligence and that the decedent’s injuries were caused solely and proximately by the negligence of Ford.
Unfortunately, the law of indemnification is highly complicated and hardly a model of clarity. Nonetheless, at the expense of adding to the confusion, we are constrained to conclude that Hill and Kirin were wrongly decided and we decline to follow this line of authority.
As stated earlier in this opinion, the primary plaintiff alleged that Litton was negligent and breached its warranty in designing, manufacturing, and supplying a storage system not reasonably safe for its intended use and was negligent in failing to warn decedent of foreseeable dangers. In its third-party complaint, Litton alleged that the system was designed, manufactured and supplied in a reasonably safe condition, and further averred that decedent’s death was caused by Ford’s negligence in allowing decedent’s presence within the storage system while the lockout system, supplied by Litton, was not in operation and without submitting him to training provided by Litton. Litton has asserted, in essence, that it was not negligent and, therefore, should be entitled to indemnification from Ford, whose negligence was the sole and proximate cause of decedent’s death. If this position had been sustained by the evidence at the trial on the primary complaint (which it was not), then Litton would have won a judgment of no cause of action in its favor and the indemnity action would not have been necessary. On the other hand, if decedent were to win a judgment (not superseded by a settlement agreement), it would have been premised on Litton’s active negligence and Litton would not have been entitled to indemnity against the employer. By settling with the decedent’s estate and bringing the third-party complaint prior to the entry of an adverse judg ment by the trial court, Litton has attempted to obtain indemnification where it would otherwise have been impossible. Nonetheless, in the third-party complaint, Litton has merely alleged a complete defense to the original action, rather than a basis for implied contractual indemnification. Diekevers v SCM Corp, 73 Mich App 78, 81; 250 NW2d 548 (1976); Minster Machine Co v Diamond Stamping Co, 72 Mich App 58, 63-64; 248 NW2d 676 (1976). Where there are no allegations of vicarious liability and a primary defendant seeks to disprove his own active negligence, he should do so against the primary plaintiff who brought the claim. The denial of summary judgment as to the claim for implied contractual indemnification is therefore vacated.
We can summarily dispose of the two remaining issues discussed in the parties’ briefs.
The first of these issues is whether Litton al leged a cause of action for breach of an implied warranty of workmanlike service against Ford. Although Ford did not raise this issue below, nor with this Court until it filed its reply brief, we nonetheless choose to address it because the question is one of law and all the facts necessary for its resolution have been presented. Balogh v City of Flat Rock, 152 Mich App 517, 520; 394 NW2d 1 (1985). After reviewing the pleadings, we are persuaded that summary judgment should have been granted dismissing this claim also because nothing in the pleadings suggests that Ford, as the potential indemnitor, was, at the time of the injury, performing a service for Litton pursuant to a contract which required that service. Ingram v Interstate Motor Freight Systems, 115 Mich App 559, 568-569; 321 NW2d 731 (1982).
Finally, Litton invites this Court to adopt and apply to this case the doctrine of comparative indemnity. Pursuant to the dictates of Downie v Kent Products, Inc, 420 Mich 197; 362 NW2d 605 (1984), reh den 421 Mich 1202 (1985), we decline to do so.
Reversed and remanded.
Litton contends that the Supreme Court opinion of Dale v Whiteman, 388 Mich 698; 202 NW2d 797 (1972), should be read for the proposition that an implied contract of indemnity may be found in the alternative situation where the indemnitee is without personal fault or where the potential indemnitor was better situated to reduce the risk of injury. The same argument was considered and flatly rejected in Hadley. See also Langley v Harris Corp, 413 Mich 592, 599-600, n 4; 321 NW2d 662 (1982).
See, e.g., Skinner, supra, Feaster, supra, and Johnson v Bundy, 129 Mich App 393; 342 NW2d 567 (1983).
A determination whether the jury’s verdict of negligence on the part of Litton in the primary case has collateral estoppel effect in the instant third-party case is unnecessary. The disposition of this case on the motion for summary judgment was not dependent upon a prior judgment of liability against Litton, but rather upon the contents of the primary plaintiff’s complaint, which contained only allegations of active negligence against Litton. Parliament Construction Co v Beer Precast Concrete, Ltd, 114 Mich App 607, 612; 319 NW2d 374 (1982).
Due to the requirement that a party seeking implied contractual indemnification be free from active fault, it appears that in most cases a manufacturer-seller of a product will be unable to seek such indemnification from an employer-purchaser because the duties owed by each to the employer’s employees are distinct. While manufacturers owe duties not to introduce defective products into the market, employers owe duties to reasonably supervise employees who operate dangerous machinery and to further provide these employees with adequate instruction and precaution. Even if an employer breaches a promise with a manufacturer to submit employees to training programs involving the product or to take some other precautionary measure, the manufacturer’s liability will still result from its own active negligence, thereby precluding the opportunity for indemnification. See McPike v Die Casters Equipment Corp, 504 F Supp 1056, 1065 (WD Mich, 1980). Cf., Skinner, supra, and Grayson, supra, where manufacturers’-sellers’ potential liability for breach of warranty was passive in nature. | [
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M. J. Kelly, P.J.
On February 1, 1985, pursuant to a plea agreement, defendant pled nolo contendere to one count of manslaughter, MCL 750.321; MSA 28.553, and one count of larceny in a building, MCL 750.360; MSA 28.592. His appeal from the manslaughter conviction has already been affirmed by another panel of this Court. People v Rivera, unpublished opinion per curiam of the Court of Appeals, decided July 18, 1986 (Docket No. 82113). Now, defendant appeals his conviction on the larceny charge. We affirm.
In exchange for defendant’s plea, numerous charges including armed robbery, first-degree murder and a supplemental information were subsequently dismissed. Defendant’s sole argument here is that he was denied his constitutional right to a speedy trial. Defendant raised an identical issue in the previous appeal from his manslaughter conviction. In that instance this Court rejected defendant’s claim on the basis that defendant’s nolo contendere plea waived all nonjurisdictional defects. The Court concluded that the claimed denial of the right to a speedy trial was a nonjurisdictional defect and defendant’s argument was waived by his plea.
There has been a split on this Court over whether a right to raise on appeal a claim of a denial of the right to a speedy trial survives a guilty plea or a plea of nolo contendere. For authority for the proposition that a speedy trial claim is waived by a plea, see People v Parshay, 104 Mich App 411; 304 NW2d 593 (1981), lv den 411 Mich 1081 (1981), and People v Williams, 145 Mich App 614; 378 NW2d 769 (1985). For the contrary position, that a speedy trial claim survives a plea, see People v Davis, 123 Mich App 553; 332 NW2d 606 (1983), and People v Farmer, 127 Mich App 472; 339 NW2d 218 (1983).
The most recent case to decide this issue sided with those cases that have held that a speedy trial issue survives a guilty plea. See People v Sickles, 162 Mich App 344; 412 NW2d 734 (1987). However, Sickles based its conclusion not on the reasoning of the prior line of cases, but on the basis that People v New, 427 Mich 482; 398 NW2d 358 (1986), resolved the split.
The operant language taken from People v New is as follows:
Today, we hold that a defendant, after pleading guilty, may raise on appeal only those defenses and rights which would preclude the state from obtaining a valid conviction against the defendant. Such rights and defenses "reach beyond the factual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial . . . .” [People v White, 411 Mich 366, 398; 308 NW2d 128 (1981)] (Moody, J., concurring in part and dissenting in part.) In such cases, the state has no legitimate interest in securing a conviction. On the other hand, where the defense or right asserted by defendant relates solely to the capacity of the state to prove defendant’s factual guilt, it is subsumed by defendant’s guilty plea. [Id. at 491.]
From this language, Sickles concludes that, despite the fact that People v New did not involve a speedy trial defense, the rationale in People v New leads to the result that a plea of nolo contendere will not waive a speedy trial issue, because "[s]peedy trial issues do not relate to the state’s capacity to prove a defendant’s factual guilt but instead go more to the state’s right to ultimately bring a defendant to trial.” People v Sickles, supra at 351-351.
We are unable to agree that People v New has resolved this issue. The decision in People v New can only be characterized as more restrictive upon a defendant’s rights subsequent to the acceptance of a plea of guilty or nolo contendere. People v New expressly rejected the more expansive language of People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), cert den 429 US 951; 97 S Ct 370; 50 L Ed 2d 319 (1976). The portion of Johnson rejected by New as a misreading of federal authority and as unnecessary dictum provided that a guilty plea did not waive those rights "relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed . . . .” Id. at 444.
If panels of this Court could conclude that a guilty plea or plea of nolo contendere operated as a waiver of a due process claim based on a denial of the right to a speedy trial despite the holding in People v Alvin Johnson, such reasoning must still survive the holding in People v New in light of its broader application of waiver in guilty plea cases.
Consequently, we conclude, consistent with People v Parshay, supra, People v Williams, supra, United States v Freed, 688 F2d 24 (CA 6, 1982), and United States v Lee, 500 F2d 586 (CA 8, 1974), cert den 419 US 1003; 95 S Ct 322; 42 L Ed 2d 279 (1974), that a speedy trial claim is nonjurisdictional and thus waived by a defendant’s plea of guilty or nolo contendere.
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Beasley, P.J.
This case is before the Court on remand from the Supreme Court pursuant to the following order:
On order of the Court, the delayed application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals and remand the case to the Court of Appeals, which shall consider and decide Issue n in the plaintiffs Court of Appeals brief. [See 428 Mich 903 (1987).]
Issue ii of appellant’s Court of Appeals brief is as follows:
II. DID PLAINTIFF OFFER TO TENDER BACK THE DISPUTED CONSIDERATION WITHIN A REASONABLE TIME UNDER THE CIRCUMSTANCES OF THE CASE, THEREBY ALLOWING HER TO CONTINUE WITH HER SUIT?
On November 16, 1983, plaintiff signed a release and received a check from defendant for $2,090.65. The receipt attached to the check contained a recital that $1,042.31 was for "severence [sic] pay,” while $2,084.62 was for "vacation pay,” with $1,036.28 withheld in various taxes.
The within suit was filed on August 9, 1984. After extensive discovery, on September 27, 1985, defendant sought summary disposition for, inter alia, failure of plaintiff to return the consideration paid for the release, essentially on the basis of the Supreme Court’s decision in Leahan v Stroh Brew ery Co. The trial judge interpreted Leahan to require him to grant defendant’s motion. We affirmed, believing that Leahan was controlling.
In Leahan, the plaintiff claimed that none of the consideration that he received was in exchange for the release. The Supreme Court denied that argument because the very language of the release said otherwise. For that reason, the Supreme Court held that the failure to tender back the money paid for the release defeated the plaintiff’s attack on the validity of the release. Perhaps more important, in Leahan neither the Supreme Court, the Court of Appeals, nor the trial court extended to the plaintiff a period of time within which to make restitution. It was essentially for this reason that we interpreted Leahan to require dismissal of plaintiff’s case here where plaintiff signed a release that provided part of the money paid by defendant to plaintiff after termination of employment was in consideration of the release. However, we assume that the Supreme Court’s remand means that they do not interpret Leahan quite as we have suggested.
On remand, plaintiff-appellant argues that under Michigan law she should have been allowed a reasonable time to tender back the disputed consideration. She cites Carey v Levy, which upheld the general rule that a person seeking to avoid a compromise settlement or release must place the other party in status quo, that is, return any money paid in exchange for the release.
In Carey, the plaintiff attacked the release on the ground that he was mentally incompetent to contract because of brain damage suffered as a result of the very automobile collision for which he sought damages. The plaintiff claimed that restitu tion or tender thereof was not a prerequisite to bringing suit where the action to avoid, the release was based on mental incompetency. However, the Court noted that if the plaintiffs attack on the release had been based on a claim of fraud, then restitution or tender would have been required. In Carey, the trial court granted the defendant’s motion to dismiss based on the written release, unless the plaintiff returned to the defendant within forty days the $725 paid to the plaintiff for the release. The Supreme Court made a similar condition as part of its opinion, saying:
The circuit court’s order dismissing plaintiffs’ suit is affirmed, but without prejudice to hearing and determination by the trial judge of a motion by plaintiffs to reinstate their suit, provided within 30 days after our decision herein they make or tender restitution and file proof thereof in the circuit court, and promptly after filing such proof submit their motion for reinstatement.[ ]
Plaintiff here argues that, by analogy with Carey, a reasonable time within which to tender back any consideration paid to her should be at least two years. As indicated, the analogy is faulty because the plain language of Carey says fraud must be treated differently than mental incompetency. Thus, contrary to plaintiff’s claim, we be lieve that Carey would require restitution or tender either prior to starting suit or within and as part of the suit. The thrust of Carey is that a person cannot obtain a trial on the validity of a release while, at the same time, holding and not returning the consideration for the release.
In Leahan, supra, the Supreme Court noted that the plaintiff did not challenge the underlying principles of Carey and similar cases. As previously indicated, the plaintiff in Leahan claimed that, as none of the consideration he received was for the release, he was not required to return any, but the Supreme Court denied that argument saying that, as found by the Court of Appeals, the express language of the release negated the plaintiffs assertion.
In the within case, the release and receipt specifically referred to $1,042.31 as consideration. Plaintiff attacks the validity of the release she signed on the ground of fraud and misrepresentation, not mental incompetency as in Carey. Under these circumstances, it would appear that under Leahan and Carey plaintiff was required to make restitution of the $1,042.31 as a condition precedent to obtaining a determination of the validity of the release she admittedly signed.
In her supplemental brief on Issue ii of her Court of Appeals brief, plaintiff alleges that on November 27, 1985, she "offered to tender back the disputed consideration.” She goes on to say that, since her motion for reconsideration was denied, her offer to tender back "was rejected by the court.”
In its supplemental brief on Issue n of plaintiff-appellant’s Court of Appeals brief, defendant Cranbrook argues a different version, claiming: (1) that plaintiff has never in fact tendered back to defendant the money she accepted for signing the release; (2) that prior to dismissal of her suit plaintiff did not even suggest that she would consider repaying the money; and (3) that even after dismissal plaintiff merely made a "conditional offer” to repay the money if her case was reinstated and if she was given an additional thirty days to pay.
Defendant then concludes that plaintiff’s delay is unreasonable and inexcusable. We do note, however, that this differs somewhat from its position in the oral argument on November 6, 1985, concerning the motion for summary disposition, where counsel for Cranbrook said:
Everything that plaintiffs counsel attempts to raise as an issue is exactly what this decision says they can’t raise until they pay the money back. This decision does not prevent them from coming into Court and challenging the release on the basis of fraud or duress at a later point. That it clearly states that it cannot — they cannot dispute factual issues until the money is paid back.
Thus, striving to give effect to the Supreme Court order, we conclude that the trial judge erred in believing he was required to grant defendant’s motion for summary disposition. On the contrary, the trial judge possessed discretion to grant plaintiff a reasonable time to make restitution of the amount paid her as consideration for the release she signed. Under the unusual circumstances of this case where, among other things, defendant did not raise the fact of the release until September 27, 1985, which was Over thirteen months after suit was started on August 9, 1984, and where Leahan was not decided until December 28, 1984, we hold that plaintiff’s offer to tender back the disputed consideration was within a reasonable time.
Therefore, we remand this case to the trial court with instructions to issue an order permitting plaintiff to make restitution to defendant of the disputed consideration within thirty days of entry of the trial court’s order. If such restitution is made, trial shall be had on the merits, including determination of the validity of the release. If such restitution is not made, judgment may enter for defendant.
Nothing in this opinion is intended to preclude the trial judge from making appropriate findings of fact after trial, including resolution of how much, if any, of the monies paid plaintiff were in consideration of the release.
Remanded for proceedings consistent with this opinion._
420 Mich 108; 359 NW2d 524 (1984).
329 Mich 458, 463-464; 45 NW2d 352 (1951).
The Court said:
Plaintiffs concede that, if it were claimed that the release, which "plaintiffs confess,” was obtained by fraud, restitution or tender thereof would be a prerequisite to bringing this suit (See In re Clark’s Estate, 318 Mich 92); but they contend that restitution is not a prerequisite in the instant case because they seek to avoid the release, not on the ground of fraud, but on the ground that plaintiff Hosea A. Carey at the time was incompetent to enter into a binding release. [Carey, supra at 462.]
Carey, supra at 466.
Id. at 464-465.
Leahan, supra at 113.
Plaintiff’s brief on remand specifically states:
On November 27,1985, Plaintiff brought a motion for rehearing arguing that she should be allowed to tender back the disputed consideration and continue with her suit. At that time, Plaintiff offered to tender back the disputed consideration. Plaintiff’s motion for reconsideration was denied and her offer to tender back was rejected by the court. In accordance with the court’s original decision, Plaintiffs case was dismissed with prejudice. Thus, in the present case, two years and eleven days had elapsed between the date the release was signed and the date Plaintiff offered to tender back the disputed consideration.
In this connection, we leave to the trial judge’s discretion whether he will prefer that the money representing the disputed consideration be paid to the Clerk of the Court for disposition on resolution of the litigation, rather than directly to defendant. | [
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MacKenzie, J.
Defendant appeals by leave granted from a circuit court opinion affirming the district court’s grant of summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(10). We affirm.
The facts are undisputed. On April 6, 1973, plaintiff, George VanAlstine, and his wife, Effie VanAlstine, conveyed by warranty deed certain property to their daughter, Georgia Swanson, and her husband, defendant Stanley Swanson. The VanAlstines reserved a life estate in the property and plaintiff apparently still resides there. Effie VanAlstine died in 1973 and Georgia Swanson died in 1980.
On May 26, 1981, defendant, the remainderman of the property, entered into an oil and gas lease with Western States Oil Company, Inc. The lease provided for a bonus payment of $6,800, delay rentals of $40 per year for four years and $8,000 for the fifth year, and a 346 royalty. A $6,800 check representing the bonus payment, payable to plaintiff, was not honored and the lease was eventually assigned to Sun Oil Company. Sun Oil subsequently paid the $6,800 bonus plus three years’ delay rentals to defendant. It appears that no oil or gas has been removed from the property and no royalties have been paid.
Plaintiff, as life tenant, commenced the instant district court action on July 11, 1984, alleging that as the life tenant he, and not defendant remainderman, was entitled to the bonus and delay rental payments made pursuant to the oil and gas lease. Defendant filed a motion to remove the case to circuit court and both parties filed motions for summary disposition. Without elaboration, the district court judge found that that court had jurisdiction to decide the case. He then determined that plaintiff was entitled to the bonus payment and delay rentals paid to defendant. The circuit court affirmed both rulings.
On appeal to this Court, defendant again challenges the district court’s jurisdiction to decide this case. According to defendant, this action is actually an action to determine interest in land, MCL 600.2932; MSA 27A.2932. Defendant contends that because such actions are equitable in nature, see MCL 600.2932(5); MSA 27A.2932(5), they may only be brought in circuit court. MCL 600.8315; MSA 27A.8315.
We disagree. MCL 600.2932; MSA 27A.2932 codifies actions to quiet title and authorizes suits to determine competing parties’ respective interests in land. Here, plaintiff has not alleged that the lease represents an invalid incumbrance upon the land, nor has he sought a determination as to the parties’ interests in the land; it is undisputed that plaintiff has a life interest and defendant is the remainderman. Further, plaintiff has never asserted that defendant has disrupted his right to quiet enjoyment of the premises, an historically equitable claim. See 31 CJS, Estates, §67, p 138. Plaintiff’s sole claim was that, as life tenant, he was entitled to the lease proceeds paid to defendant. The district court had jurisdiction to decide that question.
The substantive issue this case presents is whether the life tenant or the remainderman of property subject to an oil and gas lease is entitled to the proceeds of the lease. The issue is one of first impression in this state._
The rights of life tenants and remaindermen, in the context of oil and gas leasing and development, are discussed in 2 Williams & Meyers, Oil & Gas Law, §§ 512.1 and 512.2, pp 638-642:
Absent special considerations . . . the life tenant is without the right to develop the minerals, either personally or through a lessee, by reason of the fact that this constitutes waste. Likewise, the owner of a future interest, since he is not presently entitled to possession of the land, is without the right to develop the minerals, personally or through a lessee. Drilling operations by either the life tenant or the owner of the future interest, or by a lessee of either, may be enjoined by the other. . . .
The mere execution of a lease by either the life tenant or the owner of the future interest does not constitute a wrong to the other party. As between the lessor and the lessee, the lease is valid.
The most frequently occurring question arising from leases by a life tenant and owners of future interests concerns the division of the proceeds of the lease. It is useful in this connection to distinguish among several typical situations:
(2) If either the life tenant or the owner of the future interest executes a lease which purports to give the lessee an unrestricted right to enter upon the premises to develop the minerals, the non-joining successive owner may elect to ratify the lease and share in the benefits accruing therefrom, on the same basis as if both had originally joined in the lease.
In the instant case, it would appear that plaintiff has ratified the subject lease, since he has been aware of it since its execution, has once before attempted to collect the $6,800 bonus, and has since continued to seek the lease proceeds. We turn, then, to the law of distribution as if both plaintiff and defendant had originally joined in the lease.
Oil and gas leases, such as the one at issue here, generally provide for three types of payments to the lessors: a bonus payment, a delay rental, and a royalty. The bonus payment is a cash consideration paid by the lessee for the execution of an oil and gas lease by the landowner. 8 Williams & Meyers, Oil and Gas Law, p 80. Payment is made when the lease is executed. A delay rental is a sum paid by the lessee for the privilege of deferring drilling or production until some future date. Id., pp 206-207. A royalty is paid to the lessor if and when oil or gas is actually produced. It is defined as a share of the production or profits, free of the expenses of production. Id., p 770. The allocation of royalties is not at issue here, since no production has taken place. Thus we need only decide whether plaintiff, as life tenant, is entitled to the delay rentals and the bonus.
Allocation of oil and gas lease proceeds between a life tenant and a remainderman is largely governed by common-law principles regarding the rights of present and futuré interests. At common law, a life tenant of real property is entitled to the income or profits from the property during the continuance of the life estate, 31 CJS, Estates, § 41, p 72; 2 Powell, Law of Real Property, ¶ 203[2], p 124, while the principal of the estate belongs to the remainderman, 31 CJS, Estates, § 41, pp 73-74. The life tenant is entitled to possession, control, and enjoyment of the property to the exclusion of the remainderman but may not commit waste. 31 CJS, Estates, §§ 38, 43, pp 68-69; 79-80; 2 Powell, supra, ¶ 203[2], pp 120-121. The remainderman, on the other hand, is not entitled to actual or constructive possession of the property until the termination of the preceding estate. 31 CJS, Estates, § 85, p 160.
In the instant case, both the district court and the circuit court concluded that plaintiff, as life tenant, was entitled to the delay rentals paid to defendant under the subject oil and gas lease. We agree. Since delay rentals represent the reservation of the right to drill, and do not involve waste, they are generally treated as ordinary rentals for the occupancy of land and therefore income payable absolutely to the owner of the present interest in the land. See Anno: Rights of tenant for life or for years and remaindermen inter se in royalties or rents under oil, gas, coal, or other mineral lease, 18 ALR2d 98, 125 and cases cited therein. Under this analysis, plaintiff is entitled to the delay rentals which defendant received under the instant lease, as the district court and circuit court held.
Plaintiff’s entitlement to the $6,800 bonus payment is more problematic. There is an irreconcilable conflict in authority as to whether a bonus paid for an oil and gas lease is income payable absolutely to the owner of the present interest in the land or is principal to be conserved for the remainderman. 18 ALR2d 98, supra, p 123. The majority of jurisdictions which have considered the question consider the bonus as principal. This conclusion is based upon the theory that the bonus is a cash consideration paid for a portion of the realty, the oil and gas in place. 18 ALR2d 98, supra, p 123 and 2 Williams & Meyers, supra, § 512.2, pp 640-647 citing Sewell v Sewell, 363 Ill 166; 1 NE2d 492 (1936); Mills v Mills, 275 Ky 431; 121 SW2d 962 (1938); In re Bruner’s Will, 363 Pa 552; 70 A2d 22 (1950); Andrews v Brown, 283 SW 288 (Tex Civ App, 1926), aff'd with directions 10 SW2d 707 (Tex Com App, 1928); San Antonio Loan & Trust Co v Hamilton, 155 Tex 52; 283 SW2d 19 (1955). Other jurisdictions consider the bonus to be income payable to the owner of the present interest in the land. These jurisdictions reason that the bonus represents payment for the use of the land and not purchase money paid for any oil and gas which may be extracted. 18 ALR2d 98, supra, pp 124-125 and 2 Williams & Meyers, supra, § 512.2, citing Aldridge v Houston Oil Co, 116 Okla 281; 244 P 782 (1926); Dixon v Mapes, 181 Okla 376; 73 P2d 1131 (1937); Franklin v Margay Oil Corp, 194 Okla 519; 153 P2d 486 (1944); Love v McDonald, 201 Ark 882; 148 SW2d 170 (1941).
We think that the sounder position is repre sented by the line of cases holding that bonus payments are income payable to the holder of the present interest in the property. We regard an oil and gas lease as the grant of a profit a prendre. A profit a prendre is primarily the power to acquire, by severance or removal from another’s land, something previously constituting part of the land, such as minerals. Evans v Holloway Sand & Gravel, Inc, 106 Mich App 70, 78; 308 NW2d 440 (1981). It is distinguishable from a mere license or easement because it includes the right to remove. 2 Sengstock, Real Estate Transactions, § 15.1300. A profit a prendre in the form of a right to carry on mining operations transfers no present interest in the minerals in place. The holder of the profit owns the minerals only after severance. Id., § 15.1400. There is no right to use the land except as incident to the mining. Until the right is actually exercised and possession is taken, it is a floating, indefinite, mere incorporeal right. Harlow v The Lake Superior Iron Co, 36 Mich 104, 119 (1877). Similarly, under any oil and gas lease, the lessee acquires the right to presently use and occupy that portion of the surface of the land needed to explore the premises for oil and gas. The failure to find oil or gas does not give the lessee the right to rescind the contract or to recover damages.
Since an oil and gas lease involves a profit a prendre, the bonus paid to secure the profit must be viewed as consideration for the grant of the right to presently occupy the land for purposes of, and to the extent necessary for, exploration and recovery. It is an "up front” payment for the power to remove oil and gas, in no manner contingent upon the actual recovery of oil and gas, if any. Under this view, the bonus cannot be considered a payment for oil and gas in place, the premise of the cases holding that the bonus is allocated to the remainderman. On the contrary, logical analysis concludes that payments received as compensation for the right to invade the present possessory interest should be deemed income to the holder of that interest, the life tenant.
Because the bonus represents payment for a right to use the surface of the land and does not constitute waste, we conclude that the bonus payment on an oil and gas lease is to be allocated to the owner of the present possessory interest in the land. We find no error in the determination of the district court and circuit court that plaintiff is entitled to the bonus and delay rentals paid to defendant pursuant to the oil and gas lease.
Affirmed.
In his appellate brief, defendant argues:
It is Defendant-Appellant’s position that the remainderman always has the right and privilege of executing a lease, conveyance, mortgage, whatever of his remainder interest with any third party and the life tenant cannot complain. As long as the remainderman does not convey or attempt to convey any interest owned by the life tenant, the life tenant has no cause of action. The lessee has not complained that it has received something less than what it bargained for. Neither has the lessee undertaken any action under its lease with the remainderman, to the detriment of the estate of the life tenant. In the instant case the life tenant has not been injured or damaged by the lease of the remainderman’s interest and therefore he has no cause of action.
This is a less than honest appraisal. The lease in question does not purport to limit the lessee to the remainderman’s interest; it calls for development of oil and gas drilling during the life tenancy of plaintiff. The real question here, where plaintiff has not sought to enjoin the drilling by lessee and merely wishes the Court to properly allocate the bonus and delay rentals, is whether he is entitled to such bonus and delay rentals.
Plaintiff concedes that, under prevailing law, he would not be entitled to royalties paid. Plaintiff is correct that in the majority of jurisdictions royalties from minerals produced by mining or drilling operations commenced after the creation of a life estate are allocated to the remainderman under the so-called “unopened mine rule.” The life tenant is entitled only to the interest from such royalties after their investment. See generally, Anno: Rights of tenant for life or for years and remaindermen inter se in royalties or rents under oil, gas, coal or other mineral lease, 18 ALR2d 98, and cases cited therein. See also 2 Williams & Meyers, supra, § 512.2, pp 640-647 and cases cited therein. The theory behind this allocation is that, by commencing new mining or drilling operations, the life tenant commits waste permanently injuring the future interest. The royalties thus serve as a substituted corpus to be preserved for the benefit of the owner of the future interest until it becomes possessory. We note, however, that the "unopened mine rule” has been expressly repudiated by our Supreme Court, at least to the extent that it operated to deprive a widow, under the dower statutes, of a share of royalties from mines on lands valuable only for minerals. Seager v McCabe, 92 Mich 186 (1892). | [
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Smolensk, J.
Plaintiff appeals as of right from a trial court order granting summary disposition under MCR 2.116(C)(10) in favor of defendants. We reverse. This case is being decided without oral argument pursuant to MCR 7.214(E).
This case arises from a traffic accident that occurred on September 19, 1999. Plaintiff was driving his motorcycle while defendant Phillip Collette was driving a car owned by both defendants. Collette turned onto a street in front of plaintiff, resulting in a collision. Importantly to this appeal, plaintiff suffered injuries to his nondominant left hand in the accident. In particular, he was diagnosed with a “closed left fifth metacarpal displaced neck fracture,” known less formally as a “boxer’s fracture,” as well as open wounds, including extensor tendon injuries, to his middle and ring fingers. Plaintiff underwent outpatient surgery, attended some physical therapy, and wore a cast for a time as a result of the injuries. Also, plaintiff was off work from his employment as a “cable lineman” until he returned to work part-time in November 1999.
In addition, according to plaintiffs undisputed deposition testimony, at the time of the accident, plaintiff had been playing the bass guitar in a band that performed almost every Friday or Saturday night, mostly at nightclubs and private clubs, and that additionally practiced three or four times a week. However, plaintiff did not play in the band from the time of the accident until mid-January 2000 because he “didn’t have the strength in [his] fingers. They wouldn’t work.” Plaintiff, who lived alone, also had difficulty with household and personal tasks until December 1999 and with operating his “bow shop” and with processing deer during the 1999 deer season.
Plaintiff returned to work full-time on December 14, 1999. However, he testified at his deposition that he has a continuing inability to completely straighten out his middle finger or to completely close his left hand.
Plaintiff argues that the trial court erred by granting summary disposition in favor of defendants under MCR 2.116(C)(10). We agree. In reviewing a grant of summary disposition under MCR 2.116(C)(10), we consider de novo the documentary evidence in a light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists. Schuster Constr Services, Inc v Painia Dev Corp, 251 Mich App 227, 230; 651 NW2d 749 (2002). However, in this case, the facts essential to our decision are undisputed with the real question being the proper legal characterization of those facts, particularly whether the left hand injuries suffered by plaintiff in the traffic accident underlying this case constituted a “serious impairment of body function.”
The no-fault act generally abolished tort liability with regard to the use of a motor vehicle. MCL 500.3135(3). However, a statutory exception to this general rule provides that tort liability remains for noneconomic loss if the injured person has suffered “serious impairment of body function.” MCL 500.3135(1). The issue whether a person has suffered a serious impairment of body function is a question of law for the court to decide where, as in the present case, there is no factual dispute regarding the nature and extent of the injuries. MCL 500.3135(2)(a); Kreiner v Fischer, 251 Mich App 513, 515; 651 NW2d 433 (2002). MCL 500.3135(7) defines “serious impairment of body function” as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” Given the nature of plaintiff’s left hand injuries and the medical treatment he received, it is obvious that the injuries were objectively manifested. Further, it is plain that the ability to use one’s hand is an important body function. The real question in this case, and the point disputed by the parties, is whether the left hand injuries affected plaintiff’s general ability to lead a normal life so as to constitute a serious impairment of body function. Because we believe that the left hand injuries in this case constituted a serious impairment of body function for some period, we conclude that the trial court erred in granting summary disposition in favor of defendants.
An injury does not need to be permanent in order to constitute a serious impairment of body function. Kern v Blethen-Coluni, 240 Mich App 333, 343; 612 NW2d 838 (2000). Thus, while we believe it is clear that plaintiff was free of any serious impairment of body function by mid-January 2000, that does not necessarily mean that there was no serious impairment of body function based on the effects of his left hand injuries between the occurrence of the collision on September 19, 1999, and mid-January 2000.
Turning to the relevant period between September 1999 and January 2000, we conclude that plaintiffs left hand injuries affected his general ability to lead his normal life and, accordingly, that he suffered a serious impairment of body function. In determining whether an impairment of an important body function is “serious,” a court should consider these nonexhaustive factors: “extent of the injury, treatment required, duration of disability, and extent of residual impairment and prognosis for eventual recovery.” Kern, supra at 341. In this case, the undisputed evidence indicated that the plaintiff had regularly performed as a musician playing the bass guitar, but was unable to do so for about four months as a result of the injuries that he suffered in the accident. Given plaintiffs undisputed deposition testimony that he performed in a band that gave performances almost every weekend and additionally practiced three or four times a week, being able to play the bass guitar was a major part of plaintiffs normal life. Further, the period of about four months that plaintiff could not perform musically was a significant amount of time. In addition, plaintiff was limited in his ability to work at his full-time employment for about three months. In deciding whether injuries constitute a serious impairment of body function, it is appropriate to compare a plaintiffs “lifestyle before and after the accident.” May v Sommerfield (After Remand), 240 Mich App 504, 506; 617 NW2d 920 (2000). It is also important to bear in mind that the plain language of MCL 500.3135(7) provides a “subjective” definition in that the determination centers on the effect on the particular injured party’s normal life, see May, supra, as opposed to the typical effect of injuries of a certain type on people generally. Applying these principles to the present case, we conclude that plaintiffs injuries constituted a serious impairment of body function because, albeit for a relatively limited time, they did affect his general ability to lead his normal life, particularly his ability to perform musically and to work, both of which were integral parts of his normal life. See Kreiner, supra at 518-519 (considering evidence that the plaintiff in that case was limited in the time he could work and unable to participate in “certain types of recreational hunting” as supporting a conclusion that he suffered a serious impairment of body function). It is immaterial that the same injuries if suffered by a hypothetical person, who led a more sedentary lifestyle than plaintiff or who did not rely on the use of the nondominant hand as much as plaintiff did, might not constitute a serious impairment of body function.
The trial court’s view of plaintiff’s “guitar playing” as an “extrinsic” consideration seems to incorrectly consider whether plaintiff’s injuries were serious in themselves, i.e., the general seriousness of such injuries, rather than how the injuries affected plaintiff’s general ability to lead his normal life. See id. at 518 (erroneous for trial court to consider whether impairment was “serious enough” where unambiguous language of MCL 500.3135[7] directs consideration of whether impairment “affects the person’s general ability to lead his or her normal life.”). Accordingly, we conclude that the trial court erred by granting summary disposition in favor of defendants on the basis of its effective conclusion that plaintiff did not present evidence of a serious impairment of body function.
We reverse the trial court’s grant of summary disposition in favor of defendants and remand this case to the trial court for further appropriate proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Quinn, P. J.
A jury convicted defendant of first-degree murder, MCLA 750.316; MSA 28.548. He was sentenced and he appeals. The first five issues raised and briefed on appeal arise from the admission, over objection, of a recorded telephone conversation between defendant and the wife of the victim.
Prior to the killing, defendant had been on intimate terms with Nancy McNeil, the estranged wife of the victim. At the time of the homicide, she was pregnant by defendant. Mrs. McNeil testified that defendant came to her apartment November 20, 1972 and told her that he had killed her husband with a gun that defendant had previously given to Mrs. McNeil. She testified further that when she looked for this gun and could not find it, she took an overdose of tranquilizer for which she was hospitalized.
When released from the hospital, Mrs. McNeil testified that she went to the police and informed them of defendant’s admissions to her. Mrs. McNeil’s testimony further indicated that at the request of the police, she telephoned defendant in an attempt to get him to admit the killing. She knew that this telephone call was to be recorded. During the call, defendant admitted killing Mr. McNeil.
In an attempt to evade the ruling of United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971), that consent by one party to a monitored conversation was sufficient to permit admission of the conversation in evidence, defendant argues that Mrs. McNeil’s consent was involuntary. The argument fails because the record establishes that the consent was voluntary, and no objection was made at trial based on involuntariness of consent.
There was no necessity to obtain a search warrant to intercept the telephone conversation between defendant and Mrs. McNeil after she had consented thereto, People v Karalla, 35 Mich App 541; 192 NW2d 676 (1971).
The interception of that telephone conversation with Mrs. McNeil’s consent involves no constitutional right of defendant, People v Karalla, supra.
Defendant contends that the trial court should have conducted a hearing on the voluntariness of defendant’s admission of the killing made in the intercepted telephone conversation. The question of defendant’s voluntariness in making the admission was never raised at trial.
Defendant stated at trial that the manner and tone of defendant’s speech and the whole content of the conversation as reflected by the recorded telephone conversation should lead the court to conclude that defendant’s mental state, because of drugs or alcohol, was such that he was incapable of speaking the truth. This would have required the hearing now contended for, if a confession was involved.
In People v Porter, 269 Mich 284, 290; 257 NW 705 (1934), the Supreme Court distinguished confession and admission as follows:
"If the fact admitted necessarily amounts to a confession of guilt, it is a confession. If, however, the fact admitted does not of itself show guilt but needs proof of other facts, which are not admitted by the accused, in order to show guilt, it is not a confession but an admission * * *
The admission by defendant that he killed McNeil would not establish that defendant murdered McNeil without proof of other facts not admitted by defendant. The trial court was dealing with an admission, the weight of which was properly left to the jury.
The record does not sustain defendant’s contention that he was incompetent at the time of the recorded telephone conversation and failure to exclude the conversation on that ground is not error.
Finally, defendant asserts reversible error occurred when the trial court instructed on all lesser included offenses as well as on first-degree murder after defendant requested that the charge be limited to murder in the first degree. It is understandable that defendant cites no authority for this position; all authority is to the contrary. The judge is statutorily bound to instruct on the law applicable to the case, MCLA 768.29; MSA 28.1052. If the record warrants, this includes lesser included offenses. The jury may find the defendant guilty of a lesser offense, MCLA 768.32; MSA 28.1055.
Affirmed.
All concurred. | [
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Carland, J.
Following a preliminary examination, the defendant, Johnny Busby, was charged in a one count information with violating the Controlled Substances Act of 1971 on February 18, 1973. Specifically, the defendant was charged with knowingly or intentionally possessing one capsule each of amobarbital and secobarbital contrary to the provisions of MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b).
There is before this Court the issue of the con struction or interpretation of MCLA 335.318(l)(b); MSA 18.1070(18)(l)(b) which provides as follows:
"(b) Unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
"Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid, except those substances which are specifically listed in other schedules.”
A motion to quash the. information was filed with and argued before the trial court. The defendant contended that while there had been a qualitative analysis of the capsules here involved, that a quantitative analysis was required by the statute in order to determine whether or not the amount contained in the capsules had the "potential for abuse” before a violation of the statute could be shown. Put another way, the defendant argues that it is "quantity” which must have "potential for abuse” and not the "substance”. The defendant further argues that the statute in question is vague and therefore violative of defendant’s due process rights. The trial judge, on May 24, 1973, denied the motion on the basis that it involved a controlling question of the law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may timely advance the ultimate termination of the litigation. The trial judge scheduled the case for trial and failed to stay the proceedings. On June 29,1973, this Court granted defendant’s motion for immediate consideration, leave to appeal and stay of proceedings.
In our attempt to construe, we note that the authorities cited by the defendant and those which our own research has revealed are all distinguishable from the instant case because of the difference in the controlling facts. Here we are not dealing with "a minute residue” as in People v Harrington, 33 Mich App 548; 190 NW2d 343 (1971), nor are we confronted, as was the Court in Beutler v State, 88 Nev 707; 504 P2d 699 (1972), with a quantity described therein as "useless for either sale or consumption”. In People v Leal, 64 Cal 2d 504, 512; 50 Cal Rptr 777; 413 P2d 665 (1966), it was similarly held:
"Hence the possession of a minute crystaline residue of narcotic useless for either sale or consumption, as [People v] Sullivan, [234 Cal App 2d 562; 44 Cal Rptr 524 (1965)], points out, does not constitute sufficient evidence in itself to sustain a conviction.”
In essence, these courts have held that what has been forbidden by the statutes involved is the possession of quantities of the prescribed substances capable of being sold or consumed.
In the case at bar, the defendant was found in possession of substances proscribed by the statute which regardless of the quantity was contained in capsules which with their contents are capable of being sold through simple transfer and may be consumed through the simple process of ingestion.
On appeal, the defendant raises the following questions:
1. Does the statute require proof of the quantity of derivative of barbituric acid or salt of a derivative of barbituric acid before criminal possession of such drugs may be established?
2. Is the statute vague and therefore violative of the due process clause of the United States and Michigan Constitutions?
Without question, we have no other duty to perform than to construe the statute here before us as written, without attempt to rewrite or to question the legislative wisdom. In so doing, we must look to the purpose of the enactment and be guided thereby. We are bound, if possible, to so construe the statute as to give it validity and reasonable operation.
The defendant argues that quantitative analysis is required by the express wording of the first paragraph of the statute and would have us interpret the language therein as though it read "any quantity * * * having a potential for abuse, etc.” To so construe would be to ignore the precepts of construction by which we are bound.
The intent of the Legislature is clearly expressed in the entitlement of 1971 PA 196 (Controlled Substances Act of 1971) and in § 1 thereof.
"An act to regulate the control, manufacture, production, compounding, prescribing, disposition, dispensing, sale, possession, use and administering of controlled substances * * * .
"Sec. 1 This act shall be known and may be cited as the 'controlled substances act of 1971’.”
In clear and unambiguous language the Legislature has stated its intent to control certain proscribed substances among them being the substances which the defendant allegedly possessed. No mention is made of the quantity or amount, again demonstrating that the intent of the act is to control substances regardless of quantity. There is no comma after the words "any quantity” and therefore the clause "having a potential for abuse associated with a depressant effect upon the central nervous system” is adjective and modifies the clause "any quantity of the following substances”.
It seems to be completely illogical to hold that it was the legislative intent that the words "having a potential for abuse” mean that in each prosecution that a determination must be made as to whether or not a particular amount has "a potential for abuse”.
Further, the second paragraph of § 18(l)(bj again demonstrates the legislative intent as to the substances here involved through the use of the words "any substance which contains any quantity”. It would seem that had the Legislature intended that quantitative analysis be required in those cases in which a derivative of barbituric acid or a salt of the derivative of barbituric acid was contained in a substance as here involved, such a requirement would have been included in (d) of § 18(1) where it is required as to eight different substances.
We therefore hold that quantitative analysis is not required before criminal possession of the drugs or substances allegedly possessed by the defendant may be established.
As to the question of vagueness raised by the defendant, we accept the statement of the law as enunciated in Connally v General Construction Company, 269 US 385; 46 S Ct 126; 70 L Ed 322 (1926), and cited in People v Austin, 301 Mich 456, 463; 3 NW2d 841 (1942). However, we feel compelled to hold that vagueness, if any there is, disappears with any common sense reading of the statute in its entirety. The mere fact that defendant rearranges the statute for argument in place of reading it as written does not render it violative of due process because of vagueness or ambiguity. The statute does not violate the due process clauses of the United States or Michigan Constitutions.
Affirmed.
All concurred. | [
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McGregor, P. J.
This equitable action was instituted on January 8, 1970, when plaintiffs filed a complaint in Oakland County Circuit Court, alleging that defendant Hull had misappropriated plaintiffs’ trade secrets in breach of a confidential relationship and, further, that the above named defendants conspired to and did compete against plaintiffs through the use of such trade secrets. A judgment was entered on January 24, 1973, permanently enjoining defendants from the continued use of plaintiffs’ trade secrets and, in addition, from the manufacture and sale of the hydrostatic drive equipment involved in this litigation. From this judgment, defendants appeal as of right.
Plaintiff Kubik, Inc. is a manufacturer of hydrostatic drive units for use in transfer and conveyor systems. It developed a unit known as the Kubik Hydradrive which is, in essence, a modification of the basic hydrostatic transmission used in the automation industry, developed by the Vickers division of the Sperry-Rand Corporation. The primary modification consists of a hydraulic cylinder and manifold which improves control of the basic hydrostatic unit as a whole and, apparently, repre sented in 1969 a new development in the hydrostatic drive industry.
Defendant Hull was employed as a salesman and vice-president for plaintiff corporation, beginning December 1, 1967. Although he had previously worked as a salesman in the hydraulics field, he had no prior experience with hydrostatic drive units. In September, 1969, defendant Hull notified plaintiff that he intended to leave his employment, and he did so, on November 22, 1969. Prior to this termination, in September of 1969, defendant Hull entered into an oral agreement with defendant Phillips, president of PSI Hydraulics, to make hydrostatic drive units. According to that agreement, Hull would supply Phillips and PSI, Inc. with technical information concerning the design and manufacture of the units, PSI would provide the necessary construction facilities and personnel, and Hull’s future corporation, the Melvin Corporation, would act as the sales agent for PSI. The profits from the manufacture and sale of the units would be divided equally between the Melvin Corporation and PSI.
Hull testified that he did not divulge any information pertaining to controls on the Rubik Hydra-drives prior to his leaving plaintiff’s employ. He did testify, however, that in October, 1969, he gave pricing information to Phillips and PSI to enable PSI to provide a competitive quote on a hydrostatic drive to the Jervis B. Webb Company, a prospective buyer. Hull supplied the quote he had made to Webb on behalf of Rubik, Inc., and the Webb contract was subsequently let to PSI.
Testimony at trial also indicated that on November 18,1969, Phillips visited Rubik, Inc. to pick up a "piece of equipment”. The equipment was a standard unmodified Vickers Drive, purchased through plaintiff, an authorized Vickers distributor. The drive was picked up for PSI by Phillips, "on behalf’ of defendant Walter Shank, of TruTech Corporation. (Defendant Shank is actually an officer of PSI and ordered the purchase on behalf of that corporation. Tru-Tech’s name was used on the purchase order to conceal from Rubik the fact that the drive was being purchased by Phillips. PSI purchased the standard drive with the intent subsequently to modify it.)
During his visit to the plant, Phillips was shown a hydrostatic drive in operation by defendant Hull.
Testimony also indicated that when he left Rubik, Hull took with him several drawings made by the Vickers Corporation which were the property of plaintiff, without plaintiff’s permission, and never returned them. Subsequent testimony disclosed that Hull believed that he used one of the drawings in designing a manifold. Apparently, however, the manifold was a general manifold used in the standard Vickers model, in contrast to the specific Rubik modification.
It is to be noted at this point that, other than the misappropriation of the Vickers drawings, there is no evidence that defendant Hull physically took any other tangible property belonging to plaintiffs. Hull testified that he turned over everything to plaintiff — except the Vickers drawing— upon the termination of his employment.
Defendant Hull also testified that, after leaving Rubik, he divulged information to defendant Phillips on the controls and other aspects of the Rubik hydrostatic drive units.
Phillips testified that Hull supplied him with both control and other information regarding the Rubik hydrostatic drive units. In particular, Phillips stated that in November, 1969, Hull supplied him with a list of components, "such as hydraulic cylinders, flow control valves, directional valves, etc. to be used with the drive”. Hull also prepared a drawing of the "type of control that we intended to furnish the industry, not Kubik’s control. This drawing was Mr. Hull’s and myselfs, for what little I contributed, our design, not Kubik’s design”. Hull testified that this drawing was prepared by one Ray Schihl through the use of a "photograph” and "the standard Vickers drawing for the Vickers hydraulic book we sell”.
It appears that the drawings which Hull took from Kubik were not used by Schihl to prepare his drawing. Apparently, Hull picked up the Vickers drawing book personally from Vickers. As noted previously, however, Hull believed that he may have used one of the stolen drawings in designing the unit to be manufactured by Phillips.
Defendant Phillips testified that he requested the information from Hull to enable him to build a hydrostatic drive unit. He believed that he could have built the unit that was finally developed without the information that was provided— through reverse engineering — but testified that it was Hull’s "duty” to supply the technical information learned at Kubik under their September agreement to build hydrostatic drive units. At one point in the testimony the following exchange occurred between Phillips and plaintiff’s counsel:
"Q. Was any of the information concerning the Kubik Hydradrive given to you by Mr. Hull?
"A Yes.
"Q. Did you request him to give you this information?
"A Yes.
”Q. What was your reason for requesting this information?
"A. I wanted to know as much about it as possible in order to build a similar drive.
”Q. Was it necessary even to know what the Kubik Hydradrive was, could you have gone to some other company in the field and looked at this equipment?
"A. At that time, Mr. Kubik was the only one involved in building that particular drive.
”Q. That is correct. In fact, as Mr. Hull has testified—
"The Court: Well, let’s not have your testimony. Your next question please.
”Q. (By Mr. Weiner, continuing): Mr. Phillips, were you in the courtroom when Mr. Hull testified that Kubik, Inc. had a unique position in the industry?
"A. Yes.
"Q. Was Mr. Hull correct in that testimony?
"A. I believe so.
”Q. So it is your feeling that Mr. Kubik did have a unique position in the industry?
'A. Yes.
”Q. To the extent that no one else could supply that equipment at that particular time?
"A. Yes.
"Q. Did this unique position in the industry give Kubik, Incorporated, an advantage over his so-called competitors or competition?
”A. Yes.
"Q. Would you consider that unique position and competitive edge a valuable asset of Kubik, Incorporated?
'A. Yes.
"Q. In requesting this information, as you did from Mr. Hull, were you in fact trying to obtain this valuable asset from Kubik, Incorporated?
(A. Yes.”
It should be added that the hydrostatic drive unit eventually developed by Phillips and Hull contained both a hydraulic motor and hydraulic cylinder. This is apparently the significant and distinguishing characteristic of the Kubik Hydra-drive involved in this litigation.
Thus far, it can be seen that testimony at trial establishes that defendant Hull conveyed to Phillips the technical information concerning the Kubik Hydradrive unit, which was obtained while Hull was in the employ of plaintiff. Hull, in addition, took Vickers Corporation’s drawings, belonging to plaintiff, and apparently used them to some extent in designing hydrostatic drive units for defendant Phillips and PSI. Hull furthermore provided Phillips with a quote previously furnished to the Webb Company by Kubik, Inc., which enabled Phillips and PSI successfully to bid for the Webb contract.
Although additional alleged trade secrets are involved in this action and will be discussed hereafter, the foregoing facts establish the basis of plaintiffs’ action against defendants, specifically, that allegedly confidential information concerning Kubik Hydradrives was conveyed by defendant Hull to defendant Phillips for the purpose of manufacturing hydrostatic drive units. Pertinent additional facts will be discussed as we deal with the issues raised on appeal.
At the conclusion of trial, the court issued findings of fact which included:
"The plaintiff, Kubik, Inc., is a design and manufacturing company for hydraulically-controlled hydrostatic drive units which are components in transfer and conveyor systems, to which there is limited access. The unit designed and manufactured by the plaintiff is sold as an integrated package, hereinafter referred to as the Kubik Hydradrive, employing a unique manifold with which the various components of the drive unit are hydraulically connected.
"Prior to the plaintiffs undertaking their activities in fabricating and supplying such integrated packages, such hydrostatic drive units were non-existent. To date, except for the plaintiff corporation, the only other sources of such units are those parties who have been associated with the defendant Hull.
"The plaintiffs developed, through their own efforts, secret information including methods of analysis of kinematic problems, unique hardware, customer lists and information, pricing information and lists, experimental machinery, and compiled detailed drawings and design assembly information, * * * all such secret information being available to no one other than those in relationship of confidence with the plaintiff.
"Prior to the defendant Hull leaving the employ of the plaintiff Kubik, Inc., the defendant Hull compiled, schemed to use, and disclosed to the other defendants, the secret information of the plaintiffs which was related to defendant Hull in confidence.
"The defendants Phillips, Shank, and PSI conspired with the defendant Hull to disclose the secret information which the defendant Hull garnered while serving in his fiduciary capacity with the plaintiffs. Such information was disclosed while defendant Hull was still in the employ of the plaintiff corporation.”
In addition, the trial court issued conclusions of law. The court determined that the plaintiffs possessed trade secrets under Michigan law and that the defendant Hull took this information "not only for his own benefit but also for the benefit of the other defendants who thereafter employed this information to the detriment of the plaintiffs”. Accordingly, the court determined that the other defendants were equally liable with defendant Hull.
On January 24, 1973, the trial court awarded plaintiffs:
"A. A judgment permanently enjoining all of the defendants, individually and jointly, their agents, successors, assigns, and all others in relation therewith from making, using, and selling hydrostatic drive equipment or components thereof, involved in this litigation. This is the only meaningful and enforceable injunctive relief which this court can impose. Head Ski Co, Inc v Kam Ski Co, Inc, 158 F Supp 919; 116 US P Q 242 (D M, 1958), ILG Industries, Inc v Scott, 49 Ill 2d 88; 273 NE2d 393; 171 US P Q 371 (1971).
"B. A judgment permanently enjoining all of the defendants, individually and jointly, their agents, successors, assigns, representatives, and others in relation therewith, from using, directly or indirectly, in any fashion any and all of plaintiffs’ trade secrets which form the subject matter of this lawsuit, including the method of analysis identified as "Total Equivalent Time,” customer lists and other information relating to selling of hydrostatic drive units, pricing lists and other pricing information relating to pricing for hydrostatic drive units, design assembly information relating to hydrostatic drive units, manifolds and manifold design information relating to hydrostatic drive units, technical drawings relating to the design and/or assembly of hydrostatic drive units, and detailed manufacturing drawings for hydrostatic drive units, involved in this litigation. Head Ski Co, Inc v Kam Ski Co, supra. ”
To avoid unnecessary confusion and repetition, we have consolidated and restated the issues raised by defendant on appeal.
The threshold question before us is whether the trial court properly determined that the information allegedly conveyed by defendant Hull to defendant Phillips constituted "trade secrets” of plaintiff.
The term "trade secrets” has come to embody a wide spectrum of varying commercial and technical information. For that reason, it is susceptible to no precise definition. There are, however, a number of Michigan cases which serve to highlight the factors relevant in determining whether a particular process, device or operation constitutes a "trade secret” and, hence, merits equitable protection in appropriate circumstances.
In Glucol Manufacturing Co v Schulist, 239 Mich 70, 75; 214 NW 152, 153 (1927), the court stated:
"The term trade secret, as usually understood, means a secret formula or process not patented but known only to certain individuals using it in compounding some article of trade having a commercial value, and does not denote the mere privacy with which an ordinary commercial business is carried on.
"It is a 'plan or process, tool, mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide it’.”
In Manos v Melton, 358 Mich 500, 508; 100 NW2d 235 (1960), our Supreme Court set forth further guidelines:
" * * * [T]his Court has also recognized that the law does not provide protection for knowledge which is common property in the trade, or for an idea which is well-known or easily ascertainable. Russell v Wall Wire Products Co, 346 Mich 581; 78 NW2d 149 (1956); Insealator, Inc v Wallace, 357 Mich 233; 98 NW2d 643 (1959).
"Ellis on Trade Secrets, § 239, pp 324-325, recognizes seven factors for consideration as to the existence of a legally protectible trade secret:
" '(1) The amount of labor and money expended. Those factors rather than brilliance of conception or execution determine whether an idea or information is worthy of court protection.
" '(2) The idea should be embodied or be capable of being embodied in concrete form to be protectible as a trade secret.
" '(3) Trivial advances or differences in formulas or process operation are not protectible as trade secrets.
" '(4) The plaintiff must prove that he was in possession of the alleged trade secret at the time defendant is alleged to have obtained it from plaintiff or one of his employees.
" '(5) Where the alleged trade secret was known to the recipient prior to its disclosure to him, the recipient is free to use it.
" '(6) A trade secret may not be protected if it is known generally to the trade although not known to the recipient.
" '(7) Plaintiff must prove that secrecy has been maintained either by non-disclosure or disclosure in confidence.’ ”
The Restatement of Torts, § 757, Comment B, p 6, notes:
"An exact definition of a trade secret is not possible. Some factors to be considered in determining whether given information is one’s trade secret are: (1) The extent to which the information is known outside of the business; (2) The extent to which it is known by employees and others involved in his business; (3) The extent of measures taken by him to guard the secrecy of the information; (4) The value of the information to him and to his competitors; (5) The amount of effort or money expended by him in developing the information; (6) The ease or difficulty with which the information could be properly acquired or duplicated by others.”
From the foregoing, several generalizations can be made:
(1) A trade secret consists of any valuable formula, pattern, device, process or other information that is used in one’s business and gives the possessor a competitive advantage over those who do not know or use the information.
(2) To be a trade secret, the information must, of necessity, be a secret; specifically, there must be evidence presented that sufficient measures have been taken to guard the secrecy of the information and preserve its confidentiality. Such measures generally include either an express agreement between the employer and employee restricting or prohibiting disclosure by the latter to third parties; a disclosure by employer to employee in confidence or with a tacit understanding, inferable from the attendant circumstances, that the information is confidential; or security precautions utilized by the employer to insure that only a limited number of authorized individuals have access to the information.
(3) The term "trade secret” does not encompass information which is readily ascertainable, i.e., capable of being acquired by competitors or the general public without undue difficulty or hardship.
Since a number of alleged "trade secrets” are involved in this appeal, we will discuss each separately, in light of the factors enumerated above.
MANIFOLD AND MANIFOLD DESIGN INFORMATION RELATING TO HYDROSTATIC DRIVE UNITS
In his "Conclusions of Law,” the trial court stated:
"Finally, we turn to the last alleged trade secret — the manifold design and the manifold, per se. The testimony elicited at trial has shown beyond any doubt that the manifold developed by the plaintiffs and employed in the design, assembly and manufacture of a Kubik Hydradrive is unique. The manifold design and the manifold were kept in confidence by the plaintiffs. The detailed drawings for the manifold were retained by the manufacturer thereof solely for the benefit of the plaintiffs. The defendants misappropriated same, and the defendants’ own testimony completely establishes this fact. The manifold and its design were an improvement which was a secret and was of value. Thus, it was a trade secret.”
It is apparent from both our review of the testimony elicited at trial and the trial court’s findings that the manifolds and manifold design information meet the first requirement discussed above, i.e., they are a formula or device developed by the plaintiff and used in his business that gives him a competitive advantage over those who do not possess the information. It is clear that the manifold in question is the primary distinguishing feature between the Kubik Hydradrive and the standard unmodified Vickers hydrostatic drive unit. The modification improves the control of the units by using a "variable displacement hydraulic pump to operate, through a closed loop arrangement, a hydraulic actuator that drives a load and which attains direction of reversing by a directional valve”. Such use of a directional valve, with a hydraulic motor and hydraulic actuator was apparently unique in the industry in 1969. Indeed, defendant Phillips recognized that plaintiffs’ improvements on the standard Vickers unit were "unique”, and gave plaintiff a competitive advantage.
Further, plaintiff Kubik, a former employee of the Vickers division of Sperry-Rand, testified that the modification was developed over a considerable period of time at a cost of between ten and twenty thousand dollars. On the basis of the foregoing testimony, the trial court could properly conclude that the manifolds and manifold design information were valuable devices, developed by plaintiff and used in his business and gave him a competitive advantage over others in the industry.
With respect to the question of confidentiality, i.e., steps taken by the plaintiff to insure the secrecy of its hydrostatic drive unit modification, the case is much closer. At trial, defendant Hull testified:
"Mr. Kubik didn’t want me to tell anyone anything * * * He wanted everything secret.”
Plaintiffs’ counsel asked plaintiff Kubik the following question:
"What instructions, if any, did you give to Mr. Hull as to information he would be permitted to convey to customers?”
Plaintiff Kubik responded:
"Told Mr. Hull that the thing that was necessary, the only thing that was necessary in my judgment to sell this product was to instill an enthusiasm in the customer, showing that we had a new idea and a new way to go, describe the basic function of the unit and what it would do. That was all that generally would be required, and based on my experience, that’s all that was required.
"We didn’t have to get down into the engineering detail with the customer. We had to tell him, make a recommendation as to what size unit he should use, what gear reductions he should use, and giving basic function of the unit and that was all.”
It is evident from the foregoing that there was little evidence presented at trial that would indicate that plaintiff took specific steps to keep his information secret and insure its confidentiality. In contrast to other Michigan cases involving disclosure of allegedly confidential information, there is no evidence that an express agreement existed between defendant Hull and plaintiff to keep this information secret. See, for example, Shwayder Chemical Metallurgy Corp v Baum, 45 Mich App 220; 206 NW2d 484 (1973); Glucol Manufacturing Co, supra; Manos v Melton, supra. Nor, for that matter, does the evidence reveal the sort of precautions taken by plaintiff in Dow Chemical Co v American Bromine Co, 210 Mich 262; 177 NW 996 (1920). Since there was neither an express agreement requiring secrecy nor evidence of a significant security precaution taken to avoid disclosure, plaintiff asserts that the information concerning the manifold design was given to Mr. Hull "in confidence” by virtue of the fiduciary relationship then existing between the parties. Since the uncontradicted evidence demonstrates that Mr. Hull utilized that information in breach of the trust reposed in him by Kubik, for his own private gain to the detriment of his employer, plaintiff concludes that a court of equity may properly enjoin Hull’s continuing breach of his fiduciary duty. This line of argument brings us to the crucial, aspect of the present appeal, for, as the evidence at trial also undeniably demonstrates, plaintiff Kubik marketed at least 22 of his hydradrives prior to defendant’s employment. Further, the parties agreed that the specific Kubik modification of the standard Vickers hydrostatic drive unit could be "reverse engineered” through the use of any of the marketed drives. Estimates as to how long this process would take varied. Defendant Phillips testified that he could have reverse engineered the product in 30 hours. Plaintiff Kubik, however, testified that it would take 2 to 4 months to reverse engineer the modification. The crucial question, therefore, becomes what effect public disclosure through product marketing has on the alleged trade secret status of information conveyed to an employee during the course of a confidential relationship.
The record before us vividly demonstrates the trial court’s recognition of this vital question. His conclusions of law reflect that awareness and embody his scholarly effort to resolve it in accordance with established equitable principles. In light of the novelty of the issue, the significance of its proper resolution and the clarity with which the trial judge has stated his views, we deem it appropriate to quote at some length from the relevant portions of his conclusions of law:
"Even conceding, as the Defendants contend, that all the trade secret information, acquired by the Defendants could have been legally obtained through investigation, research and the like, this does not negate the secrecy of the information as to the present Defendants, nor does it negate their culpability, for they failed to employ legal, proper and fair means in learning these trade secrets. As was stated in Smith vDravo Corp, 203 F2d 369, 374; 97 USPQ 98, 102 (CA 7, 1953):
" 'In Pressed Steel Car Co v Standard Steel Car Co, 210 Pa 464; 60 A 4 (1904), plaintiff sought to protect its secret construction design for railroad cars. These plans had been obtained by defendant through a known breach of confidence. It was urged by defendant that because it could have obtained the design from an inspection of the car (which was in public use) its use of knowledge gained through improper means would be condoned. In short, defendant suggested, as does defendant here, that the existence of a lawful means of acquiring the information precluded recovery for the employment of unlawful means. The Court said:
'""*** these engineers and draftsmen * * * should have been able to measure the cars made by the company, and to produce in a short time detailed and practical drawings from which the cars could be constructed. They did not do this, for the very obvious reason that blueprints of drawings were available and were accurate * * * .”
" 'The Court then affirmed recovery for the plaintiff.
" 'Confidential business information is not given pro-, tection merely as a reward to its accumulator. If the creator is entitled to reward, it is available to him in the patent and copyright statutes. Nims, Unfair Competition and Trade Marks, Sec 142 p 406-407. Instead our function is that of condemning 'the employment of improper means to procure the trade secret’. Restatement, Torts, Sec 757, comment. Those who gain their information improperly are brought to book in recognition of 'the general principle that intentionally inflicted harm is actionable unless privileged’. Protection and Use of Trade Secrets, 64 Harv L Rev 976 (1951).
" 'It is unquestionably lawful for a person to gain possession, through proper means, of his competitor’s product and, through inspection and analysis, create a duplicate, unless, of course, the item is patented. But the mere fact that such lawful acquisition is available does not mean that he may, through a breach of confidence, gain the information in usable form and escape the efforts of inspection and analysis.
" 'The fact that a trade secret is of such a nature that it can be discovered by experimentation or other fair and lawful means does not deprive its owner of the right to protection from those who would secure possession of it by unfair means.” ’ Nims, Unfair Competition and Trade Marks, Sec 148, p 419.
" 'This text citation is the distillate of many judicial decisions, Thus, in A. O. Smith Corp v Petroleum Iron Works Co, 73 F2d 531, 538-539 (CA 6, 1934), the court said: "The mere fact that the means by which a discovery is made are obvious * * * cannot * * * advantage the competitor who by unfair means, or as the beneficiary of a broken faith, obtains the desired knowledge without himself paying the price in labor, money or machines expended by the discoverer.” And in Shellmar Products Co v Allen-Qualley Co, 36 F2d 623, 625 (CA 7, 1929), this court announced: 'Whether it would have been possible to have discovered and purchased the Olsen patent, without the information disclosed to appellant in confidence, it is not necessary to determine, because it is clear from the record that by a breach of confidence the information was disclosed and used as a basis for the search that was made.’ And in Tabor v Hoffman, 118 NY 30; 23 NE 12 (1889), this is the language: "But because this discovery may be possible by fair means, it would not justify a discovery by unfair means.” ’
"The doctrine of Smith v Dravo is in complete accord with the other jurisdictions which have considered the issue of fair versus unfair acquisition of a trade secret. See, inter alia, Heatbath Corp v lfkovits, 117 Ill App 2d 158; 254 NE2d 139; 164 USPQ 537 (1970). Franke v Wiltschek, 209 F2d 493; 99 USPQ 431 (CA 2, 1953); Standard Brands, Inc v Zumpe, 264 F Supp 254; 152 USPQ 731 (ED La 1967); Sperry Rand Corp v Rothlein, 142 USPQ 172 (DC Conn, 1964); E. I. duPont de Nemours & Co, Inc v Christopher, 431 F2d 1012; 166 USPQ 421 (CA 5, 1970).
"The Defendants contend that the information which they obtained directly from the Plaintiffs could have been obtained by reverse engineering. However, even if this is true, this does not negate their liability because they admittedly and purposefully avoided using this procedure, i.e., Defendants admit that they did not reverse engineer. Tabor v Hoffman, supra.
"The Defendant Phillips has testified under oath:
" ’Q. (by Mr. Weiner): It is lawful if someone independently reverse engineers, buys a product, and reverse engineers it, that is lawful, you do understand that?
" A. (by defendant Phillips): To the best of my knowledge, it is lawful, yes.
" 'Q. And you didn’t take that lawful route, you didn’t do that, did you?
" A. I did not do it that way, no.
" 'Q. You took a short cut, is that correct?
" A. That is true.
" CQ. And that short cut was through the information supplied to you by Kubik’s employee, Mr. Hull, is that right?
" A. That is true.’
"Further testimony by Defendant Phillips himself attesting to the fact that the Defendants did not employ reverse engineering can be found in the August 18, 1972 Transcript, page 83, lines 11-18; page 85, lines 18-21; and page 159, lines 13-19.
"Assuming arguendo, but not conceding, that one or more of Plaintiff’s trade secrets might have been susceptible of being ascertained by reverse engineering, the question of whether or not liability attaches for misappropriation of such a trade secret is a question synonymous with the issue of 'fair versus unfair’ acquisition. The Courts have resoundingly resolved this issue by announcing that illegal and unfair acquisition of that which could have been legally obtained shall not absolve the tortfeasor for his wrongdoing. See paragraph 14, supra.
"Imposing liability for failure to invoke proper business procedures is not a means for rewarding the developer of the trade secret. Rather, it is a means for punishing the wrongdoer for failure to pursue the proper business ethic.”
Having carefully reviewed both the record before us and the authorities cited above by the trial court, we are persuaded that his ultimate determination — that the manifold design information constituted a trade secret — was correct. However, we do not subscribe to the views implicit in the approach which he adopted, specifically, that unrestricted product marketing is of little importance in either determining trade secret status or fashioning an appropriate remedy.
In our judgment, the first analytic step in any trade secret action is to determine whether the information equity is called upon to protect is, in fact, a trade secret. Insealator, Inc v Wallace, supra, p 250, "Before there can be a betrayal of anything in the nature of a trade secret, there must be a secret.” Russell v Wall Wire Products Co, 346 Mich 581, 586; 78 NW2d 149 (1956); Van Products Co v General Welding and Fabricating Co, 419 Pa 248, 268; 213 A2d 769; 30 ALR3d 612, 628 (1965), "The starting point in every case of this sort is not whether there was a confidential relationship, but whether, in fact, there was a trade secret to be misappropriated.”
In determining whether the information involved in a given case is "secret,” and thus arguably entitled to equitable protection, it is essential that the circumstances attending its possession and disclosure be closely examined. Secrecy is not, after all, an entity existing independent of the thoughts or acts of men; rather, information is "secret” only to the extent that those who possess it choose to treat it so. Accordingly, to warrant a finding that specific information is "secret,” it must be established that the possessor intended, and the employee (or other person to whom the information was disclosed) understood or should have understood that the information was not to be indiscriminately made available to third parties or the public generally. Relevant factors to be considered include (1) the existence or absence of an express agreement restricting disclosure, (2) the nature and extent of security precautions taken by the possessor to prevent acquisition of the information by unauthorized third parties, (3) the circumstances under which the information was disclosed by the possessor to the employee to the extent that they give rise to a reasonable inference that further disclosure, without the consent of the possessor, is prohibited, and (4) the degree to which the information has been placed in the public domain or rendered "readily ascertainable” by the third parties through patent applications or unrestricted product marketing.
The approach adopted by the trial court, and supported by the authorities he cites, unduly emphasizes the parties’ confidential relationship and neglects other criteria relevant in the determination of trade secret status. This emphasis is un doubtedly attributable to the fact that equitable intervention in trade secret cases has, as its purpose, the protection of confidential relationships rather than the safeguarding of some nebulous "property right” in the information. As one commentator has noted:
"Historically two principal justifications have been advanced for the protection of trade secrets: (1) the protection of a property right, and (2) the preservation of a confidential relationship with a person who has expended time and creative effort in developing new ideas. However, the Supreme Court laid the property right theory to rest in E. I. duPont deNemours Powder Co v Masland [244 US 100, 102; 37 S Ct 575; 61 L Ed 1016 (1917)], where it concluded that the property being protected was simply the 'secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith.’ This left the confidential relationship as the sole basis for protection of trade secrets. In an oft-quoted phrase, Mr. Justice Holmes stated that "the property may be denied but the confidence cannot be.’ ” Note, Trade Secrets Law After Sears and Compco, 53 Va LR 356, 364 (1967) (Footnotes omitted.)
In this connection, our Supreme Court has stated:
"The essence of the wrong is the breach of confidence, the betrayal of the trust placed in the recipient. As phrased in 4 Restatement, Torts, § 757, p 4:
" 'The theory that has prevailed is that the protection is afforded only by a general duty of good faith and that the liability rests upon breach of this duty; that is, breach of contract, abuse of confidence or impropriety in the method of ascertaining the secret.’ ” Russell v Wall Wire Products Co, supra, 585-586.
Somewhat more expansively, the United States Supreme Court has only recently had occasion to note that:
"The maintenance of standards of commercial ethics and the encouragement of invention are the broadly stated policies behind trade secret law.” Kewanee Oil Co v Bicron Corp, 416 US 470; 94 S Ct 1879, 1886; 40 L Ed 2d 315, 325 (1974).
This repeated assertion — that equitable relief in trade secret cases is granted to foster the integrity of confidential relationships — has given rise to the view, adopted by the trial court here, that public access to alleged trade secrets by virtue of product marketing does not affect the liability of one who misappropriates the information during the course of a confidential relationship. That view is succinctly but forcefully articulated in Franke v Wiltschek, supra, p 495:
"Defendants argue that the heart of plaintiff’s process was revealed by an expired patent, and that the improvements thereon were unpatentable applications of mechanical skill. This totally misconceives the nature of plaintiffs’ right. Plaintiffs do not assert, indeed cannot assert, a property right in their development such as would entitle them to exclusive enjoyment against the world. Theirs is not a patent, but a trade secret. The essence of their action is not infringement, but breach of faith. It matters not that defendants could have gained their knowledge from a study of the expired patent and plaintiffs’ publicly marketed product. The fact is that they did not. Instead they gained it from plaintiffs via their confidential relationship, and in so doing incurred a duty not to use it to the plaintiffs’ detriment. This duty they have breached.”
In our judgment, this approach is analytically unsound. Not because the relationship of the parties is irrelevant, but because even a confidential or fiduciary relationship cannot, standing alone, render information secret which has been disclosed to the world by product marketing. It cannot be fairly disputed that much of what transpires during the course of such a relationship, particularly between employer and employee, is common knowledge, freely available to all who seek it. For equity to protect by injunction all information imparted to an employee by his employer would do violence to "the principle that an individual has the right to change his employment for whatever reason he wishes and the right to utilize his general skill, knowledge and experience for the benefit of his employer.” Allis-Chalmers Manufacturing Co v Continental Aviation and Engineering Corp, 255 F Supp 645, 652-653 (ED Mich, 1966). To adequately and fairly protect the rights of both employer and employee, information which is truly "secret” in nature must be distinguished from that which is readily available to the public. That distinction cannot be based on simply the relationship existing between the parties at the time the employee acquired the information. Rather, it must be premised upon an understanding of the parties, that the information is not to be disclosed without restriction to third persons and a finding that it is not readily available to the public at large. To the extent that unrestricted product marketing, and the accompanying likelihood of reverse engineering evidences the absence of such an understanding and renders product design information readily available to the general public, we think it a crucial factor in the determination of trade secret status.
The question in this case, therefore, becomes whether the unrestricted public sale of at least 22 Kubik Hydradrives by plaintiif prior to defendant Hull’s employment rendered the design informa tion readily ascertainable, i.e., subject to discovery without undue effort or hardship. From a careful reading of the transcript, we think not. Our conclusion is based on a number of factors, including: (1) only 22 of the units were marketed; (2) the modification was part of an integrated package not easily subject to observation and examination; (3) both parties agreed that it would be most difficult to obtain a marketed unit from a customer for inspection; and (4) reverse engineering of the Kubik Hydradrive would take at least 30 hours and perhaps as long as 4 months. Under these circumstances, we cannot say that plaintiffs sale of the 22 units constituted a public disclosure of the manifold design information. Additionally, the record contains undisputed testimony that plaintiff instructed defendant that the design information was "proprietary” in nature and not to be transmitted indiscriminately to third parties. In light of these factors, we hold that the trial court correctly determined that the information concerning the design of plaintiff’s manifold constituted an equitably protectable trade secret.
Conceding plaintiff’s right to relief, there remains for our consideration the propriety of the remedy adopted by the trial court, a permanent injunction restraining defendants from "making, using, and selling hydrostatic drive equipment or components thereof, involved in this litigation”.
We have already discussed the significance of product marketing in determining initially whether specific information constitutes an equitably protectable trade secret. Having concluded that the limited extent of marketing involved in this case did not constitute a public disclosure of the information so as to deny plaintiffs the right to relief, the question remains whether that market ing, however limited, narrows the scope of the appropriate remedy.
One view, originating with Shellmar Products Co v Allen-Qualley Co, 87 F2d 104 (CA 7, 1936), cert den, 301 US 695; 57 S Ct 923; 81 L Ed 1350 (1937), is that one who acquires secret information unfairly, i.e., through a breach of a confidential relationship, may be permanently enjoined from its use even though members of the general public could have obtained the information fairly (by reverse engineering, inspection of an expired patent, etc.). The contrary rule, clearly stated in Conmar Products Corp v Universal Slide Fastener Co, 172 F2d 150, 155-156 (CA 2, 1949), is that permanent injunctive relief is inappropriate where the trade secret is available to members of the public, and that the relief granted should be limited to an award of damages or, at most, a temporary injunction. See generally, Developments in the Law, Competitive Torts, 77 Har L Rev 888, 958-959 (1964); Annotation, 38 ALR3d 572 Propriety of Permanently Enjoining One Guilty of Unauthorized Use of Trade Secret from Engaging in Sale or Manufacture of Device in Question. It is unnecessary to discuss at length the considerations which have prompted either rule. Briefly, it would appear that those courts adhering to the Shellmar rule seek primarily to encourage both higher standards of commercial conduct and inventiveness by preventing the use of trade secrets by those who acquire them through subterfuge or disloyalty. In contrast, those jurisdictions following the Conmar rule emphasize the importance of making the plaintiff whole by putting him in that position he would have occupied, had not the defendant misappropriated the trade secrets. Having considered both approaches, we think the Conmar rule prefer able, in that it is consonant with the basic tenet that equitable relief should bear some reasonable relationship to the extent of the injuries suffered by the plaintiff. Where, as in this case, the secret embodied in a tangible product is available to any member of the public, permanent injunctive relief grants the plaintiff that which he did not have before the misappropriation — the power to eliminate a competitor from the market.
In Franke v Wiltschek, supra, pp 503-504, Judge Frank discussed at some length the proper function of remedies in trade secret cases. We think that discussion pertinent here:
"Their differentiation as to remedies makes much sense, for these reasons: (a) The harm done by a defendant’s breach of a plaintiff’s confidence is the use of the secret to the plaintiff’s 'loss’ or 'detriment.’ (b) By defendant’s wrong he deprives plaintiff of a trade secret defined as something which gives plaintiff 'an opportunity to obtain an advantage over competitors.’ (c) Where the device or process consists of a 'novel invention,’ the plaintiff may have chosen not to patent it — which would limit the period of his monopoly — but to keep the invention to himself with the expectation that no one, except those in his confidence, will discover the secret, so that his monopoly will endure for an unlimited time. If the defendant comes to know the secret of such an invention by improper means his use of this knowledge will cause a loss to plaintiff for an indefinite future period during which plaintiff will lose his 'opportunity to obtain an advantage over competitors.’ Wherefore a perpetual injunction affords a proper protection — a protection as enduring as the monopoly grounded on the secret invention, (d) But where the secret involves only a slight, non-patentable and easily-discoverable improvement, competitors will soon, in all probability, legitimately learn how to contrive this improvement. Consequently, defendant’s wrong has caused a loss of plaintiffs 'advantage over competitors’ which, at most, would not have lasted long. Perpetually to enjoin de fendant in such circumstances would be to harm him without regard to the loss or detriment suffered by plaintiff.
"In short, such an injunction — continued beyond the time when, in all likelihood, the trade, by legitimate means will catch up with the plaintiff — is sheer punishment, nothing else. In a closely related tort field, when a defendant has knowingly copied plaintiff’s trade-name, a court will not issue a perpetual injunction against defendant’s doing business but will allow defendant to continue in business if he adopts a revised name that is not likely to confuse. When the damage to plaintiff ceases, the restraint of defendant ends; the restraint does not continue thereafter for the purpose of punishing the wrongdoer.
"So here, I think no injunction should issue. True, these defendants have done a legal wrong and acted unethically. But that is also true in many a tort case where there is no punitive or deterrent element in the judgment except that contained in the exaction of damages that will roughly compensate the plaintiff; when, in such a case, damages achieve the end of thus compensating plaintiff, the possibility that they do no more to punish the defendant is not regarded as showing that damages are so 'inadequate’ as to justify equitable relief; nor has the failure to issue injunctions in such cases been regarded as encouragement to wrongdoers. No more should it be so regarded in the case at bar. To say that a denial of a perpetual injunction in a case like this will be to destroy any real requirement of good faith in business-trust relations is to assert confidently that the grant of such an injunction would serve, punitively, to deter breaches of good faith in such relations. But as there is no basis in our present state of ignorance, about the deterrent effect of judgment in civil suits for such an assertion, I think we ought not rely on it to justify punitive injunctions.”
The record before us indicates that a large number of units embodying plaintiffs modification of the basic hydrostatic drive have been marketed commercially. The harm caused plaintiffs by de fendant’s misappropriation is thus diminished to the extent that other competitors in the industry could, and perhaps have, legally duplicated the equipment. The award of a permanent injunction in this case prevents defendant from doing that which others in the field could lawfully do. We think it obvious that such relief is punitive, rather than compensatory in nature, and therefore, inappropriate. Damages, properly assessed, will fully compensate plaintiff for the loss occasioned by defendant’s disloyalty.
Accordingly, we vacate the injunction issued by the trial court, as it applies to the manifold design information, and remand this case for the assessment of damages. In determining the amount of those damages, the trial court may properly consider inter alia the amount of time, labor and money expended by plaintiff in designing, fabricating, and testing the manifold’s modification; profits lost by plaintiff as a result of defendant Hull’s misappropriation; the existence or absence of competitors other than defendant who manufacture equipment embodying the modification. We are confident that the parties will present for the trial court’s consideration other factors to be considered in arriving at the aggregate damages assessable. Our suggestions here are only illustrative and are in no way to be construed as limiting the. traditional power of the trial court to assess damages for the purpose of compensating plaintiff for the loss he sustained as the result of defendant Hull’s misappropriation of the trade secret.
CUSTOMER LISTS
During the course of his conclusions of law, the trial court in this case noted that:
"The plaintiffs’ customers were not easily ascertainable. The customers of hydrostatic drive units are not found from a perusal of trade journals, telephone books, or the like. They are developed and nurtured solely by much investigation and 'door knocking.’ Thus, unquestionably, the customer list of plaintiffs is subject to trade secret protection. In Federal Laundry Co v Zimmerman, 218 Mich 211, 214; 187 NW 335 (1922), wherein the court stated, citing Grand Union Tea Company v Dodds, 164 Mich 50; 128 NW 1090 (1910):
" 'This Court there recognized the property right of the employer in his list of customers which had been given to and used by the employees, and inhibited by injunction the use thereof or the use of a copy surreptitiously obtained by the employee for the benefit of a competitor and required the employee to furnish the employer with lists he had withheld.’ ” (Emphasis in the original.)
However, in this case, the balance of the court’s remarks, in Zimmerman, supra, are pertinent:
"But upon the question here involved we declined to restrain the defendant from earning a living by soliciting business from his former employer’s customers. Mr. Justice Hooker, who wrote for the Court [in Dodds, supra], said:
" 'We are of the opinion, however, that he cannot be restrained from selling his commodities, for himself or for any employer, in any part of the city, or to any person, so long as he does not use any property belonging to the complainant, or copies thereof that were surreptitiously made.’ ”
In both Zimmerman and Dodds the Supreme Court denied injunctive relief, where there was no showing that the defendant had misappropriated tangible customer lists of his employer. Likewise, in this case, it was conceded that defendant Hull did not physically misappropriate plaintiff Kubik’s customer lists. Indeed, the evidence demonstrates that defendant Hull had established a number of customer contacts prior to his employment with plaintiff and that he was, in fact, hired because of those contacts. In the absence of any evidence that defendant physically misappropriated tangible customer lists owned by plaintiff, the trial court’s granting of injunctive relief is inappropriate. Further, under Dodds, and Zimmerman, supra, we think defendant’s actions in this regard were wholly lawful and violated no duty he owed to plaintiff. Cf. Shwayder Chemical Metallurgy Corp v Baum, 45 Mich App 220, 225; 206 NW2d 484 (1973) (physical misappropriation of customer list); and see Annotation, 28 ALR3d 7, Former Employee’s Duty, in Absence of Express Contract, Not to Solicit Former Employer’s Customers or Otherwise Use His Knowledge of Customer Lists Acquired in Earlier Employment.
Accordingly, the trial court’s grant of injunctive relief with respect to plaintiff’s customer lists is vacated.
MATHEMATICAL FORMULA — "TOTAL EQUIVALENT TIME”
The trial court enjoined defendants from the use of this mathematical formula, allegedly developed by plaintiff. The evidence adduced at trial, including the in camera testimony of expert witnesses, supports the proposition that this formula was unique, although defendant suggests that the contrary is true. The formula is used by plaintiff to determine the speed at which a conveyor system will have to move to transport products over a given distance within a specified time. The formula, not superficially complex, is apparently valuable in that it provides a simplified procedure by which to take into account the effects of acceleration and deceleration on the total elapsed time. However, from our review of the record, we think the trial court clearly erred in holding that it constituted a trade secret. Defendant Hull testified that, notwithstanding plaintiff’s prohibitions, he divulged the formula to customers and continued to do so, with plaintiff’s knowledge. Despite plaintiff’s anger and the instructions respecting confidentiality, plaintiff’s acceptance, however hesitantly, of defendant’s disclosure of the formula renders his claim to trade secret protection unfounded.
The trial court erred in determining that the formula in question constituted a trade secret, and his grant of injunctive relief with respect thereto is vacated.
In addition to the specific information discussed above, the trial court enjoined defendants from utilizing a number of less significant trade secrets.
First, defendants were enjoined from using any information derived from defendant Phillips’ examination of an "experimental machine” during his clandestine sojourn in plaintiff’s shop on November 18, 1969. Assuming that this machine was, in fact, a Kubik Hydradrive, continued injunctive relief would be pointless, in light of our remand for assessment of damages in connection with defendant’s misappropriation of the manifold design information. Accordingly, that portion of the judgment granting such relief is vacated.
Second, defendants were enjoined from using plaintiff’s system of pricing the modified hydrostatic drive units. It will be recalled that Hull, while still employed by plaintiff, conveyed to defendánt Phillips this information, enabling him successfully to bid against plaintiff for the Jervis B. Webb contract. The evidence indicates that this system, termed "price billed-up,” was unique only to the extent that it depended upon a particular familiarity with plaintiff’s product. Since that familiarity is now wrongfully shared by defendants, injunctive relief at this time would be inappropriate. Of course, the trial court will undoubtedly consider the conduct of the defendants in connection with the Jervis B. Webb contract in assessing damages. The trial court’s grant of injunctive relief with respect to plaintiff’s pricing information is vacated.
Finally, the trial court enjoined defendants from utilizing design assembly information and certain schematic drawings purloined by defendant Hull. Since this information is simply descriptive of the manifold modification, injunctive relief would be unavailing; consequently, the grant of such relief is vacated.
To summarize, we hold that the trial court properly concluded (1) that the manifold design information, experimental drive unit, pricing system, design assembly information, and confidential drawings constituted equitably protectable trade secrets; (2) that defendant Hull, in violation of a duty he owed plaintiff Kubik, Inc. misappropriated the above specified trade secrets and disclosed them to the other named defendants; (3) that such improper disclosure detrimentally affected the plaintiffs’ interests and entitles them to relief. We further hold that the granting of permanent injunctive relief, where the information sought to be protected has been publicly marketed without restriction, is inappropriate and erroneous. We remand this case to the trial court for further proceedings consistent with this opinion, specifically the assessment of damages attributable to the defendants’ unlawful disclosure and use of plaintiffs’ foregoing trade secrets.
Some may argue that our disposition of this appeal limits unnecessarily the power of equity to protect the integrity of relationships based on mutual trust and faith; that it encourages and promotes disregard of even minimal standards of business conduct; that it allows a faithless employee to pirate the painstakingly developed trade secrets of his employer if only he is willing to pay the price in damages. Of course, we neither intend nor expect our views here to produce such untoward results. We reaffirm the undisputed power of equity to protect trade secrets by injunction, temporary or permanent, in appropriate circumstances; we recognize the right of one who by his labor and efforts develops a trade secret to be compensated for any loss occasioned by its unauthorized disclosure. However, for equity permanently to enjoin a former employee from using information which the possessor himself has placed in the public domain is unabashedly punitive and wholly out of proportion to any harm suffered by the possessor as a result of the employee’s breach of faith. An award of damages, properly assessed, will make the plaintiff whole; he can neither ask for nor expect more.
Reversed and remanded for further proceedings consistent with this opinion. | [
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T. M. Burns, P. J.
Defendant Ralf Berne Roland Olsson was convicted by a jury of first-degree murder pursuant to MCLA 750.316; MSA 28.548. He was sentenced to life imprisonment and now appeals as of right.
On June 14, 1971, an information was filed alleging that the defendant "did wilfully, deliberately and premeditatedly and of his malice aforethought and during the perpetration of a larceny or robbery murder Per Torolf Baevre * * * ”. Mr. Baevre was fatally stabbed in his cabin aboard the Norwegian merchant ship "Bolinas” while the vessel was docked in the Saginaw River at Bay City, Michigan, on May 16, 1971.
Defendant was a second cook on the "Bolinas”. Evidence presented at trial showed that defendant was angry with the victim due to the fact that the crew had complained to defendant about meals, rather than complaining to the victim, who was the steward under whom defendant worked. Defendant had told the crew that there was no variation in the meals because the victim would not give the defendant the proper materials to work with.
The record also reveals that after the victim’s body was discovered and the police were notified, the police searched the cabin for the victim’s wallet, money, and identification papers, but all of these personal effects were missing. The police also attempted to locate the defendant, but he did not report for work that morning, and his whereabouts were unknown.
Defendant testified that he never had any personal trouble with the victim. Defendant further testified that during the period in question he suffered an "alcoholic blackout” due to excessive drinking and stated that he did not know if he killed the victim because he could not remember what he did on the night in question.
Although defendant has raised numerous issues in this Court, we think it necessary to deal with four which will be treated in the manner presented below.
Defendant first asserts that the evidence presented at trial was insufficient to prove murder in the first degree.
The information in this case charged defendant with both statutory first-degree murder and with felony-murder, all in one count. Defendant’s argument that the prosecution failed to prove premeditation and deliberation beyond a reasonable doubt in relation to the charge of statutory first-degree murder is not well taken.
The elements of premeditation and deliberation may be reasonably inferred from all the facts and circumstances surrounding a homicide. People v Vail, 49 Mich App 578; 212 NW2d 268 (1973); People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971). It is only where there is no evidence presented from which the jury could properly infer the presence of premeditation and deliberation that it is error for the trial court to submit a charge of first-degree murder to the jury. People v Meier, 47 Mich App 179; 209 NW2d 311 (1973). After carefully reviewing the records in the present case, we conclude that there was sufficient evidence presented by the prosecution from which the jury could have properly inferred the existence of premeditation and deliberation. Consequently, the trial court did not err by submitting the first-degree murder charge to the jury on the question of premeditation and deliberation.
However, defendant is correct in his contention that the evidence at trial was insufficient to support a guilty verdict of first-degree murder during the perpetration of a robbery or larceny. An essential requirement in a first-degree murder prosecution under the felony-murder theory is proof of one of the independent felonies listed in the statute. The two felonies listed in the information in the case at bar were larceny and robbery. However, the prosecution presented no evidence to show, even by inference, that the defendant was guilty of a felony other than the killing. The evidence presented at the trial only showed that the victim’s money, wallet, identification and personal effects were missing from his cabin. None of these items were found in defendant’s possession when he was arrested, nor were they discovered in his room aboard the ship. Nor did the prosecution introduce any other evidence to prove that the defendant had committed either a robbery or a larceny. We conclude that there was not sufficient evidence presented by the prosecution from which the jury could properly have inferred that the homicide was committed in the perpetration of a robbery or larceny. Therefore, the trial court erred by submitting the felony-murder charge to the jury.
Defendant’s second claim of error is directly related to the issue already discussed. Defendant contends that the jury’s verdict of "guilty in the first degree” was invalid where the jury was charged on alternative theories and did not indicate upon which theory it relied for its verdict.
As previously stated, the information in this case charged defendant, in a single count, with statutory first-degree murder and with felony murder. The jury, in its verdict, simply stated that "we find the defendant guilty in the first degree”. It is impossible to determine from this verdict whether the jury relied upon the statutory first-degree murder charge involving premeditation and deliberation, or upon the felony-murder charge, or both.
Since, as we have stated, the evidence was legally insufficient to support a conviction of murder committed in the perpetration of a larceny or robbery due to the fact that there was not adequate proof of one of the independent felonies, we cannot conclusively state that the jury did not convict defendant of that charge. This conclusion entitles defendant to a reversal of his conviction and a new trial.
Defendant’s next related claim is that the trial court’s instructions failed to inform the jury of their obligation to reach a unanimous verdict. The trial court instructed the jury on two theories of first-degree murder, felony-murder and premeditated murder. However, defendant contends that the trial court’s failure to charge the jury that a verdict on either theory must be unanimous was reversible error entitling defendant to a new trial.
The trial court, in instructing the jury, stated:
"Now in order to convict a defendant of murder in the first degree, you must be satisfied that he intended to kill Per Torolf Baevre and that the killing was wilful, deliberate and premeditated or that he committed it in the perpetration of a robbery or a larceny of any kind.” (Emphasis added.)
"There are four verdicts available to you under the instructions I have given you; guilty of first-degree murder, guilty of second-degree murder, guilty of manslaughter, or not guilty. Now, your verdict, when you render your verdict, must be a unanimous verdict of the twelve that will sit on this matter.”
We feel that these instructions did not adequately inform the jury of their duty to make a unanimous finding as to whether defendant was guilty of premeditated murder or murder in the perpetration of a felony. We agree with defendant that on the basis of these instructions, it is possible that the jury arrived at a compromise verdict, that is, some members of the jury may have felt defendant was guilty beyond a reasonable doubt of murder in the perpetration of a robbery or larceny while the remaining members may have felt that defendant was guilty beyond a reasonable doubt of premeditated murder. Such a verdict would not be unanimous and could not convict defendant. GCR 1963, 512.1.
Defendant’s final assertion is that the trial court improperly admitted into evidence certain photographs of the victim.
At trial, several photographs of the victim and his wounds were admitted into evidence. Defendant contends that these photographs were neither necessary in this case to prove any material point, nor were they instructive on any important matter.
The admissibility of photographs is a matter for the discretion of the court. Perri v Tassie, 293 Mich 464; 292 NW 370 (1940); People v Turner, 17 Mich App 123; 169 NW2d 330 (1969).
In People v Eddington, 387 Mich 551; 198 NW2d 297 (1972), our Supreme Court, directing itself to the claim that because other witnesses could have testified with regard to the crime and the defense admitted it was committed with malice the judge abused his discretion in admitting certain photographs, stated, p 562:
"We are unable to agree with such an evidentiary rule. The people are not required to present their case on any theory of alternative proofs.
"In a criminal case, the burden is upon the people to prove every element of the crime charged. These are not nice pictures but they are not any more gruesome than some of the testimony by witnesses. The pictures showed the victims as they were found. The pictures depict the corpus delicti. The admission of such evidence is in the sound discretion of the trial judge.”
Such is the case here. Though the photographs in this case were not "nice pictures”, they also were not any more gruesome than some of the testimony by witnesses. A thorough examination of the exhibits convinces us that these photographs were not inflammatory. The trial court did not abuse its discretion by allowing these photographs into evidence.
For the reasons set forth above, we reverse and remand for a new trial.
Bashara, J., concurred. | [
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J. H. Gillis, J.
This appeal arises out of a motor vehicle accident which occurred on August 30, 1970. A pickup truck, owned by defendant Davis and driven by defendant Slappy, struck and killed plaintiffs decedent, Robert A. Ulichnie, as he sat astride his minibike. Plaintiff sued individually for personal injuries sustained as a result of his viewing the accident; he also sued as administrator of his son’s estate.
Because defendant Slappy was uninsured, plaintiff joined his own insurer, Auto-Owners Insurance Company as a defendant. Plaintiff then moved for summary judgment against Auto-Owners, alleging that he was entitled to recover from it under the uninsured motorist’s coverage contained in the policy. Defendant Auto-Owners denied liability, pointing to a restrictive endorsement added to the original policy. The trial judge ruled that although the endorsement was not violative of public policy, it nonetheless did not apply to plaintiff since it was not bargained for. Before we decide the propriety of this ruling, it is necessary to examine the insurance policy itself.
The insurance policy in issue was first issued on December 8, 1967. It was renewable every six months. The policy contained provisions protecting the insured against injury and death caused by an uninsured motorist. Under the terms of the original policy, both plaintiff and defendant admit that defendant insurance company would have been liable. But on December 8, 1968, defendant claims to have sent plaintiff the following endorsement with its renewal offer:
"In consideration of the premium at which this policy is written, it is agreed that Coverage D — Uninsured Motorist shall not apply to any bodily injury to an insured sustained while in, upon, entering or alighting from any motor vehicle not described in the Declarations attached to this policy and that is owned by the named insured, spouse or relatives of either who are residents of the insured’s household; nor to any described motor vehicle unless a premium charge is shown under Uninsured Motorist for such vehicle.” (Emphasis supplied.)
Since deceased was a resident of the Ulichnie household, and since the minibike was not listed on the insurance policy, defendant insurance company denies any liability. Plaintiff contends that the endorsement was ineffective for three reasons: first, he never received it; second, he did not bargain for the additional restrictions set forth in the renewal; and, third, the endorsement violates MCLA 500.3010; MSA 24.13010 and public policy. Without examining plaintiff’s first two contentions, we hold that the endorsement did violate MCLA 500.3010; MSA 24.13010.
MCLA 500.3010; MSA 24.13010, in effect at the time the policy was issued held that:
"No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in section 504 of Act No. 300 of the Public Acts of 1949, as amended, being section 257.504 of the Compiled Laws of 1948, under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, including owners or operators insured by an insolvent insurer, because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured rejects such coverage in writing as provided herein. All such policies shall contain a notice, displayed prominently on the front page of the pohcy, in at least 8-point type that such protection coverage was explained to him and that he can reject such coverage by notice in writing. Unless the named insured requests such coverage in writing, it need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.” (Emphasis supplied.)
The language of the statue is plain, unambiguous, and mandatory. Blakeslee v Farm Bureau Mutual Insurance Co of Michigan, 388 Mich 464, 473; 201 NW2d 786, 791 (1972); Boettner v State Farm Mutual Insurance Co, 388 Mich 482, 487; 201 NW2d 795, 798 (1972). It requires that the "named insured” reject "in writing” his statutory right to uninsured motorist coverage. No such writing is shown here.
Defendant insurance company claims that its original coverage of plaintiff exceeded that required by the statute, and that the endorsement merely narrowed the coverage to that called for by the statute. Thus, defendant argues that no written waiver was required in this situation. While this may be true, we cannot accept defendant’s first premise. The statute does not so limit the scope of the insurer’s duty. The purpose of the statute is to "place the victim of an uninsured motorist in the same position he would have occupied had the tortfeasor been insured”. Hopkins v Auto-Owners Insurance Co, 41 Mich App 635, 638; 200 NW2d 784, 786 (1972). The statute focuses on the tortfeasor’s liability and not on the ownership of the motor vehicle driven by the victim. There can be no question that defendant’s endorsement attempted to limit their liability to something less than the statute requires.
While this statute indicates the Legislature’s desire to have insurance companies bear the burden of protecting against uninsured motorists, it did allow for waiver of liability by the insured. The written notice requirement served "to place the burden of guaranteeing a knowledgable rejection on the insurance company”. Oatis v Dairyland Insurance Co, 20 Mich App 367, 372; 174 NW2d 35, 37 (1969). The defendant insurance company has not met its burden,
Affirmed. Costs to appellee.
All concurred.
Repealed by 1972 PA 345, January 9,1973. | [
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Churchill, J.
Eddie Roberts, who is not a party to this action, was charged with a violation of Section 66-4-2 of the Detroit Municipal Code which reads as follows:
"It shall be unlawful for any person to transport or to have in possession in or upon any vehicle a firearm unless the same is unloaded in both barrel and magazine and carried in the luggage compartment of the vehicle. It shall be unlawful to carry a firearm on any public street or in any public place unless it is unloaded and in a case.”
On July 12, 1972, Honorable William Hague, Judge of the Traffic & Ordinance Division of the Recorder’s Court for the City of Detroit heard the proofs and found the defendant not guilty. His decision to acquit Roberts was not based upon the evidence. Instead, Judge Hague said that the City of Detroit was without authority to enact a gun control ordinance because the gun control field had been preempted by the State Legislature. He said:
" * * * The State of Michigan has enacted extensive and comprehensive legislation dealing with firearms. It includes statutes which cover the licensing of, the purchasing, carrying or transportation of a pistol, safety inspection and registration of pistols, carrying a concealed weapon, carrying firearms with unlawful intent, the sale of firearms and still other statutes covering the discharge of a firearm without malice, injury of a person by the discharge of a firearm without malice, the possession and use of firearms by a person under the influence of liquor or drugs, discharging firearms and injuring persons, and the reckless use of firearms. All of these acts are covered by state statute.
"The broad scope of these statutes in my opinion manifest the state legislature’s intent to occupy the field of firearms legislation and appear to be reasonable.”
Claiming that the other judges on the same court are treating the ordinance as valid, the City of Detroit filed a complaint for an order of superintending control against Judge Hague.
The Honorable Roland L. Olzark, Wayne County Circuit Judge, filed a written opinion, citing authorities, several of which will be cited herein, and concluded that the state had not preempted the gun control field and that Section 66-4-2 is valid. An order of superintending control was issued. It is from this order that Judge Hague appeals.
While appellant originally challenged the propriety of superintending control as an appropriate proceeding to raise the issue, he ultimately withdrew this objection and now concedes that the procedure followed was appropriate and jurisdictionally proper. We agree. People v Gebarowski, 47 Mich App 379; 209 NW2d 543 (1973), lv den, 390 Mich 785.
Several other issues were raised for the first time on appeal. One such issue to which much scholastic effort was devoted in the appellate briefs and arguments involves the validity of certain mandatory sentencing provisions in the ordinance. Section 66-5-1. The record does not indicate that either Judge Hague or Judge Olzark dealt with these issues, nor do we, such issues being raised for the first time on appeal.
Closely akin to the preemption doctrine, but different, is the rule or doctrine that an ordinance or provision of an ordinance which is in direct conflict with a statute is void. This distinction was recognized in Miller v Fabius Township Board, 366 Mich 250, 258; 114 NW2d 205, 208-209 (1962), in the following language:
"In City of Howell v Kaal, supra [341 Mich 585; 67 NW2d 704 (1954)], this Court held that an ordinance may not invade a field completely occupied by statute but may enter an area not preempted by the State act, and further held that what the State law expressly permits an ordinance may not prohibit.” (Emphasis in original).
Counsel devoted some effort in their brief and argument to the proposition that the provisions of Section 66-4-2 were or were not in conflict with specific provisions of state statutes.
If the state has preempted the field then the ordinance is void even if it is not in conflict with state statutes, and it would be void even if the ordinance followed the exact language of the state statutes in defining prohibited conduct. If the state has not preempted the field and if some provision of the ordinance was in conflict with the state statutes then, perhaps, the balance of the ordinance would be valid. Ritter v City of Pontiac, 276 Mich 416; 267 NW 641 (1936), Detroit v Sanchez, 18 Mich App 399; 171 NW2d 452 (1969).
It does not appear to us that Section 66-4-2 prohibits anything which the state law expressly allows.
In their final analyses, the judges below based their decisions upon the application or non-application of the doctrine of preemption alone, and not on the language of Section 66-4-2. For these reasons we deal with the preemption issue as the primary issue on appeal.
The leading preemption cases are cited in Miller v Fabius Township Board, supra, and in Walsh v River Rouge, 385 Mich 623; 189 NW2d 318 (1971). They contain few satisfactory guidelines in the application of the preemption doctrine in a given situation.
The most logical guideline we find in all of the cases appears in Walsh, supra, wherein the Supreme Court at p 639 said:
"Michael H. Feiler, in an article entitled, Conflict Between State and Local Enactments — The Doctrine of Implied Preemption, appearing in 2 Urban Lawyer 398 (1970), makes this observation (pp 404, 405):
" 'Preemption occurs where there is a conflict between the legislative intent to regulate an area and the very act of local legislation in conflict with this legislative intent.
" 'The question is properly whether the scheme can work effectively in the face of local intervention.’ ”
Can the state’s firearms control scheme work effectively in the face of local intervention?
In Walsh, the Supreme Court went to great lengths to explain the conflicting policy considerations and to demonstrate why unified state action is necessary in dealing with impending public crisis or disaster.
The problems that the City of Detroit is attempting to deal with by adoption of a firearms control ordinance normally involve only a few people at a time. It has not been demonstrated that the application of a city gun control ordinance in a given situation would in any way interfere with the orderly application of state gun control statutes in other situations.
While we are not bound by appellate court decisions of other states, we do respect them and we note that when confronted with similar preemption challenges, firearms control ordinances in New York City and the City of Chicago were upheld. Grimm v City of New York, 56 Misc 2d 525; 289 NYS2d 358 (1968); and Biffer v Chicago, 278 Ill 562, 569-570; 116 NE 182, 185 (1917). The Biífer court stated:
"[L]arge and compact aggregations of people necessarily give rise to peculiar conditions and create peculiar wants, and which, * * * are not common to rural populations and to the state at large. Special provisions are therefore necessary for the health, safety, convenience, and good government of populous communities crowded within a narrow space, and these must be supplied.”
We agree.
We therefore conclude that the State of Michigan has not preempted firearms control. The cir cuit court order of superintending control is affirmed.
No costs.
All concurred.
The state firearms control statute, MCLA 750.231a; MSA 28.428(1), was amended by 1974 PA 55, effective immediately, March 29, 1974, signed by the Governor April 1, 1974. 1974 Michigan Legislative Service Supplement (West), No. 2, pp 131-132. As the amendment was not effective until after this appeal was filed, we do not consider its effect. See cases cited in footnote 2.
People v Scott, 23 Mich App 568; 179 NW2d 255 (1970); People v Calvin, 28 Mich App 568; 184 NW2d 553 (1970).
See, also, Note, Conflicts Between State Statutes and Municipal Ordinances, 72 Harvard Law Review 737, 744-747 (1959).
See, also, People v Hanrahan, 75 Mich 611, 616; 42 NW 1124, 1126; 4 LRA 751, 753-754 (1889). | [
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Holbrook, P. J.
Defendant was found guilty by a jury of first-degree murder, contrary to MCLA 750.316; MSA 28.548. Defendant was sentenced to imprisonment for his natural life. The homicide involved was the death of defendant’s stepfather, Donald John Vasely. Defendant here appeals as of right and raises issues which we consider in proper order.
I
Did the trial court err in denying defendant’s motions to dismiss the first-degree murder charge on the basis that there was insufficient evidence to support the charge. The prosecution has stated this question as "Did the trial court err in submitting to the jury the question of whether appellant was guilty of murder in the first degree?” and has answered primarily on the basis that the prosecution requested an instruction on second-degree murder, as well as first-degree murder, but defense counsel objected and explicitly requested instructions only on first-degree murder and not guilty.
First-degree murder is a statutory offense. It is the common law offense of murder, i.e., committed with "malice aforethought”, with an added element of premeditation or deliberation. People v Morrin, 31 Mich App 301, 324; 187 NW2d 434, 446 (1971), lv den 385 Mich 775 (1971). "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem.” Id. 31 Mich App at 329; 187 NW2d at 449. Also, in accord with MCLA 750.316; MSA 28.548, murder in the first degree is murder which shall be perpetrated by means of poison, lying, in wait, or committed during the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping.
In the case of People v Meier, 47 Mich App 179, 191-192; 209 NW2d 311, 318 (1973), this Court stated:
"Our own answer to the question of the appropriate rule to follow as to what constitutes premeditation in a first-degree murder case is not a definition. Rather, it is a reaffirmation of the role of the trier of fact in deciding the degree of guilt of an accused under the following established principles:
"(1) Premeditation can be reasonably inferred from the circumstances surrounding the killing;
"(2) A defendant may not be found guilty of first-degree murder if he did not have an opportunity to subject the nature of his response to a second look or reflection, i.e., one cannot instantaneously premeditate a murder;
"(3) A sufficient time lapse to provide an opportunity for a 'second look’ may be merely seconds, or minutes, or hours, or more, dependent on the totality of the circumstances surrounding the killing;
"(4) Where it is factually clear that there is no evidence of premeditation, the trier of fact may not consider a charge of first-degree murder.
"Attempting to further clarify this 'definition’ in the past has, we believe, led to an invasion by the appellate courts into areas rightfully left to the trial court in its factfinding processes * * * .” (Emphasis in original.) See also People v DeRuyscher, 29 Mich App 515; 185 NW2d 561 (1971).
We must, then, determine if there were any facts and circumstances presented including reasonable inferences whereby premeditation may have been based. See People v Vail, 49 Mich App 578, 590; 212 NW2d 268, 274 (1973), Iv to app granted, 391 Mich 789 (1974).
In the early morning of March 10, 1972, the body of Donald Vasely was found in his home in Putnam Township, Livingston County. He was found near a wall in the dining area, lying on his back. There were severe wounds to his head and two bullet wounds in his chest. The deceased’s brother Eugene Vasely had been living with the deceased for two years prior to the homicide.
Early in the evening of March 9, 1972, the deceased had returned to the house and requested that his brother Eugene accompany him to a local lounge for drinks. At the lounge, the deceased consumed a few drinks of beer and whiskey. The brother testified that the deceased was drunk. Thereafter, the two returned to the house and, after having some soup, the deceased went to bed.
Defendant’s natural mother had been married to the deceased, but at the time of deceased’s death they were divorced. Defendant had previously lived in the deceased’s home for approximately 10 years. The defendant’s natural father resided in the State of Utah. Prior to his arrest on the charge herein, defendant was living with a high school friend in the friend’s trailer. He had recently been fired from a job. In the late afternoon or early evening of March 9, defendant, along with two friends, went to a local bar. There they consumed several glasses of beer. They returned to the friend’s trailer. Approximately an hour later, the individual who had accompanied the defendant and the owner of the trailer returned with another high school friend of defendant. The two left, with defendant and his friend going to bed. However, in attempting to leave, the friend’s car became stuck in the driveway. Defendant got up and with the others helped push the car out to the road. Then, the defendant asked the driver to take him to Hell, Michigan. The friend assented, took the defendant and dropped him off a short distance from Donald Vasely’s house. Defendant went to the door of the deceased’s home and knocked on it. The deceased’s brother came to the door and a conversation occurred, the substance of which is unclear. The defendant was invited in and stayed until a television program which the brother had been watching concluded. The two then took a short tour of the house, which was being remodeled. Testimony revealed that they passed the brother’s room, which apparently was darkened, and the deceased’s room where they saw the deceased lying in bed sleeping. Defendant had told Eugene that he needed gas for his automobile. The deceased’s brother then drove the defendant to where the defendant’s car was located. The car had been inoperable for some two to three days. Precisely what occurred when they reached the car is unclear. However, one fact is clear: that the defendant got into the brother’s car, while the brother was out of the car, and drove away. The brother then went to a home which was close by and called the police for assistance. Within approximately 20 minutes, a policeman arrived and the brother explained that his car had been taken. The policeman and the brother of deceased then drove to the parking lot of a bar where the policeman thought the car might be found. Having failed to find the car there, the two continued to the deceased’s home. Upon arriving, the brother approached the door and when knocking on the door it opened. The two entered and discovered the body of the deceased. Testimony revealed that the room was in a state of disarray and that there were two separate pools of blood some distance apart. One pool of blood was located in the middle of the room, the other located where the body was found near the wall.
Later that morning, the defendant was stopped, driving Eugene Vasely’s car. There was testimony showing that the defendant was calm and asked the reason for his being stopped. What was described as appearing to be blood was found on his hands and trousers. In the car was found a .410 chrome shotgun, which was later discovered to be that of the deceased. Other police had found a hammer in a small creek. Later, a young girl discovered a .22-caliber pistol lying alongside a road. This gun belonged to Eugene Vasely. He testified that it had been lying in a corner of his bedroom unloaded. The defendant testified that this was the gun used. It is single action, i.e., it has to be fully cocked before each shot, as compared with a double action gun which will fire time and again, simply by pulling the trigger.
After preliminary examination defendant was bound over to the circuit court for trial on the charge of murder in the first degree. At trial, medical testimony revealed that the blows to the deceased’s head could have come from the side of the hammer. It was testified that these wounds were serious and could have caused unconsciousness. The gunshot wounds were located, one on each side of the midline of the chest at nipple level. They entered the body at a 45° upward angle. The bullets were found relatively close together under the skin of the back. One severed the aorta from which four to five quarts of blood poured into the chest cavity. The medical examiner testified that the cause of death was acute traumatic shock and hemorrhage from the wounds. He said that either of the two gunshot wounds would have killed Donald Vasely and that the one severing the aorta would have caused death quite rapidly. He further stated that once the aorta was severed the external loss of blood would have lessened markedly as blood pressure would drop tremendously, very rapidly.
The defendant testified in his own behalf. He stated that he had wished to see his stepfather that night about possible employment. He said that he believed that Eugene would think that he was trying to get a gas can when he left with Eugene’s car. Defendant testified that he went back to the deceased’s home, knocked on the door, waited some period of time, the deceased answered the door, that he went in and some short discussion was had. Defendant testified that the deceased had begun to talk about men involved with the defendant’s mother, and then the deceased pulled a gun and said that he was going to blow the defendant’s brains out. In short, the defendant asserted that a fight ensued. In pertinent parts, he testified:
'A. I was sitting on this couch (indicating) and Don was sitting in this chair at the table.
"We fought into this room (indicating on diagram) and I picked up a hammer off the floor and hit Don in the head lightly and he cursed and I hit him again pretty hard and the gun went off and there was blood over my shirt, my hand and his head and he called out to Bob.
”Q. (By Mr. Cooper, defense attorney): What did he do, state specifically.
"A. He said, 'Bob,’ and then he looked at me and said, 'What’s the matter baby?’ Then he got up and we fought over to right here (indicating on diagram), and the gun went off again and I can’t remember why, but I picked a .410 chrome-plated shotgun off the rack and I went out and held it on him and I told him to give me the gun.
"Q. You picked up a hammer you said?
'A. Yes.
”Q. Where was it?
"A. On the floor.
”Q. Where were you?
'A. On the floor.
”Q. Where was Donald Vasely?
'A. On the floor.
"Q. The two of you were on the floor at that point?
'A. Yes.
"Q. You picked up the hammer?
’A. Yes.
"Q. And you hit him?
’A. Yes.
”Q. Where?
"A. In the head.
”Q. What happened when you hit him?
‘A. He cursed.
"<£?. Anything else happen then?
”A. No.
"Q. You hit him again?
’A. Yes.
"Q. That is when the gun went off?
"A. Yes.
”Q. I see, and did you get to your feet at that point, do you know?
”A. Yes.
”A. My position was on the floor lying down facing the ceiling.
"Q. (By Mr. Gallagher, plaintiff’s attorney): What was Donald’s position?
'A. The same.
"Q. On the floor on his back?
(A. Yes.
"Q. That was when the first shot was fired?
’A. Yes.
"Q. What took place between the two of you between the interval between the first and second shots?
"A. I tried to take the gun away from him.
”Q. What did you do, what physical motions did you make?
'A. Don picked me up in the air.
"Q. How much off the ground?
"A. Completely.
”Q. He was standing at this point?
'A. Yes.
"Q. He had been shot once already?
’A. Yes.
"Q. You don’t know how much in the air he picked you up?
“A. I guess about a foot.
"Q. Then what happened?
"A. Then he carried me to the wall.
"Q. And then what?
"A. And, then the gun went off again and he laid down and called out to Bob and I dropped the hammer and he said, 'What’s the matter baby,’ and I went in his bedroom and took the chrome-plated shotgun off the wall and I held it on him and asked for his gun.
"Q. What did he say?
"A. He didn’t say anything.
"Q. What was he doing?
”A. Coughing.”
Here, as in People v Vail, supra, it is patent from the verdict that the jury did not believe that the defendant acted in self-defense. This Court will not substitute its opinion for the finder of facts’ decision when it is based upon facts and reasonable inferences. People v Horn, 41 Mich App 755, 758-759; 201 NW2d 107, 108 (1972).
Deliberation and premeditation can be inferred from the character of the weapon used, wounds inflicted, circumstances of the killing, and the improbability of the story told by defendant. People v Griner, 30 Mich App 612, 615; 186 NW2d 800, 802 (1971), citing People v Wolf, 95 Mich 625; 55 NW 357 (1893). Medical testimony revealed that the deceased was first struck on the head twice with a hammer and subsequently shot twice in the chest with the bullets remaining in his body, indicating that he was lying on his back on the floor when shot. It appears that there was adequate time, even before, and certainly between the blows to the head and the gunshot wounds, for the defendant to premeditate, deliberate and take a second look. Further, it seems very improbable that defendant’s testimony was true, i.e., that a man who the defendant estimated to be 58 years of age, was 5' 4" tall and weighed 145 pounds, could pick up the heavier, approximately 6' 3", 20-year-old defendant off the floor after having been hit twice in the head and shot once in the chest. The motivation for taking Eugene’s car also remains unexplained, unless it was inferred that defendant wished to be alone with the decedent. We rule that there were sufficient facts present surrounding the homicide including the weapons used and reasonable inferences based on such facts and circumstances whereby the presence of premeditation and deliberation could have been well founded.
II
Did the trial court abuse its discretion in denying defendant’s motions to discontinue the procedure of allowing questions to be submitted by the jury?
In People v Heard, 388 Mich 182, 187-188; 200 NW2d 73, 76 (1972), the Supreme Court, speaking through Mr. Justice Swainson, ruled that a trial court had committed reversible error in not allowing the jurors to ask questions of witnesses. The Court said:
"We are dealing here with a very narrow issue. The trial judge in denying the motion misstated that there was no case which permitted this type of questioning. He ruled, erroneously, that under no circumstances in criminal matters, could jurors ask questions of the witnesses. We hold this view was error. The practice of permitting questions to witnesses propounded by jurors should rest in the sound discretion of the trial court. It would appear that in certain circumstances, a juror might have a question which could help unravel otherwise confusing testimony. In such a situation, it would aid the fact-finding process if a juror were permitted to ask such a question. We hold that the questioning of witnesses by jurors, and the method of submission of such questions, rests in the sound discretion of the trial court. The trial judge may permit such questioning if he wishes, and we hold that it was error for the judge to rule that under no circumstances might a juror ask any questions.”
This asserted issue arose directly because of a statement of defense counsel, during his opening statement, that "there are certain questions that are going to arise in each one of your minds during the trial that aren’t going to be answered or the questions that you are thinking about aren’t going to be asked”. Thereafter, the trial court having been prompted by this statement, said:
"Before we go into testimony, there is one point I want to cover that was mentioned in the opening statements here. That is this business about the jurors wondering why a certain question was asked or so forth. Now, in a given circumstance when conditions are right, and I make that determination, you jurors can compose or propound a question to be put to a witness. So, if it comes to the point you are back in your — in the jury room during a recess that you feel a question should be asked of a witness who has already testified that haS not been asked, you get to that stage, reduce that question to writing, what the question is of which witness, and then you give that question to the court officer. The court officer will show it to me. After conference with the defense attorney and the prosecuting attorney, I will make a determination as to whether or not that is a proper question to be put to that witness, and then, of course, we will put the witness on the stand if I determine that it is a proper question, and I will ask the question of the witness, and will receive an answer from the witness and then, of course, that little problem will be resolved for your satisfaction. So that bear in mind at all times that the question will have to be a proper question, I make that determination whether it is within or without the rules of evidence, and it must be a question that is put to a juror or put to a witness by the jury to aid and assist you in your fact-finding functions, so keep that in mind at all times whenever you are propounding a question. If there is any doubt in your mind as to whether or not it is within or without the rules of evidence, which there most likely will be, then write the question out anyway, and I will make that ruling whether it is a legitimate question or question is immaterial or otherwise incompetent.”
In Anno. Propriety of Jurors Asking Questions in Open Court During Course of Trial, 31 ALR3d 872, 875, 882, it is said:
"Whether approving the practice of juror questioning or not, those courts refusing to find prejudicial error have either expressly or by implication recognized the subject to be highly discretionary with the trial judge, who, it is usually said, always has the best opportunity to evaluate the effects of juror questioning during the course of any given trial.
"While comparatively few of the cases have explicitly formulated any general rule as to the existence of a presumption or inference that prejudice does or does not result from improper juror questioning, the cases appear to indicate that in order to justify interference by the appellate court there must be an affirmative showing that the improper questioning did actually operate to the complaining party’s detriment.”
In the present case, there has not been an affirmative showing that the questions operated to the defendant’s detriment. Defendant points out two examples as showing that he was prejudiced by the procedure of the jury asking questions. The jury asked "What does voir dire mean” We cannot see how the explanation of what voir dire means could have possibly prejudiced the defendant. The defendant also points out that the jury asked "What bearing does the angle of the entry of both bullets have on the position, prone, standing or laying, of the deceased where the bullets entered his body?” The trial court found that this question called upon it to make a factfinding and was thus within the province of the jury. The trial court ruled that it would not invade the jury’s fact-finding functión and the question would not be asked. We find this to be an entirely proper ruling on the part of the trial court and no prejudice occurred.
III
Defendant asserts the case of People v Heard, supra, should be reevaluated.
This we decline to do.
IV
Finally, the defendant asserts that the admission of people’s exhibit No. 1 (a photograph of the deceased’s body) constituted reversible error.
The picture showed the body of the deceased in close proximity to the dining room wall; it pictured a pool of blood near the deceased’s head; and, it showed the bullet holes in the deceased’s chest. It has been determined that, in passing upon assertions of prejudice resulting from admission of photographs, appellate courts must determine whether the photographs were " 'substantially necessary or instructive to show material facts or conditions’, or merely 'calculated to excite passion and prejudice’ ”. People v Falkner, 389 Mich 682, 685; 209 NW2d 193, 194 (1973), citing People v Eddington, 387 Mich 551, 562-563; 198 NW2d 297, 301 (1972), derived from 29 Am Jur 2d, Evidence, § 787, pp 860, 861.
The prosecution asserts that the photograph was important in proving separate pools of blood, as probative on the element of premeditation. We agree that. the photograph was probative. The photograph, showing the deceased without shirt and unzipped pants, also aided in giving credence to one possible theory of the time sequence, again going to the element of premeditation. Further, the picture showed the two bullet holes, with no surrounding blood external, giving credence to the evidence that the body was lying prone, on its back, when the bullets entered the body. See People v Fullwood, 51 Mich App 476, 482-483; 215 NW2d 594, 597 (1974).
The photograph is not particularly pleasant; however, it could not be described as ghastly or gruesome. We fail to see that it was calculated to excite passion or prejudice. Cf. People v Musser, 53 Mich App 683, 691; 219 NW2d 781, 785-786 (1974). Moreover, the admission of photographs is addressed to the sound discretion of the trial court. Eddington, supra; Musser, supra. We find here no abuse of discretion.
Affirmed.
All concurred. | [
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Van Valkenburg, J.
Plaintiffs’ motion to compel payment from the Motor Vehicle Accident Claims Fund was denied. The amount of the settlement reached in the present action was set off against the amount owing from plaintiff Hugh Smith to the Motor Vehicle Accident Claims Fund pursuant to a stipulated judgment in another case. Plaintiffs appeal.
The Motor Vehicle Accident Claims Fund Act does not grant the power of setoff to the Secretary of State nor can the Secretary compel judicial setoff of competing claims. Castro v Goemaere, 53 Mich App 78; 218 NW2d 395 (1974).
Reversed and remanded with instructions to enter judgment without the setoff. Costs to the plaintiffs.
Bronson, P. J., concurred. | [
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Per Curiam.
This case involves the sufficiency of certain referendum petitions submitted by plaintiffs to defendant city clerk regarding a proposed bond issue by the City of Lansing Building Authority. Plaintiffs appeal as of right from an order granting summary disposition in favor of defendants and intervening defendants and dismissing plaintiffs’ complaint for mandamus to compel Lansing city officials to hold the petitioned-for referendum election. We affirm.
The building authority act, MCL 123.951 et seq.; MSA 5.301(1) et seq., authorizes municipalities to incorporate a building authority for the purpose of acquiring building sites, buildings, and appurtenant facilities for any legitimate public purpose. See MCL 123.951; MSA 5.301(1). Methods of acquisition include purchase and construction. See MCL 123.959; MSA 5.301(9). Essentially, under the act, the authority pays for the acquisition of the site and the construction of the building and facilities and then leases the property to the municipality (referred to in the act as the "incorporating unit”). The authority finances the project by issuing bonds, and the lease proceeds are used to discharge the bonded indebtedness. When the bonds are retired, the authority conveys the property to the incorporating unit.
On September 8, 1986, the City of Lansing, the Lansing Building Authority, and private developer B & A of Michigan entered into an agreement providing for the development of a conference center, parking ramp, urban site, and hotel in downtown Lansing. Under the agreement, and pursuant to the building authority act, the building authority would construct the conference center and parking ramp, financed with bond issues, and lease both to the city. The city would develop the public site with either public sources or building authority bonds. B & A would build the hotel at its sole expense. Hotel construction would be contingent upon the construction of the conference center, parking ramp, and public site. At issue in this case is the building authority’s bond issue to finance the conference center portion of the project.
Under the building authority act, one type of bond which an authority may issue to finance the acquisition of buildings is a bond issue backed by the full faith and credit of the incorporating unit. When this type of financing is used, the authority issues bonds upon the execution of a full faith and credit general obligation contract of lease between the incorporating unit and the building authority. See generally, MCL 123.958a; MSA 5.301(8a), MCL 123.958b; MSA 5.301(8b), and MCL 123.961; MSA 5.301(11). In this case, such a contract of lease between the city and the building authority was anticipated to finance the construction of the conference center. Execution of full faith and credit general obligation contracts of lease is governed by § 8b of the building authority act, MCL 123.958b; MSA 5.301(8b). Section 8b provides in pertinent part:
The governing body of an incorporating unit or units may, by a majority vote of its elected members, authorize the execution of a full faith and credit general obligation contract of lease with an authority, and the contract so authorized may be executed and delivered without a vote of the electors thereon. The contract shall not become effective until 45 days after a notice of intention of entering into the contract has been published in a newspaper of general circulation in the incorporating unit or units and no petition for referendum requesting an election on the contract has been filed with the clerk or other recording officer thereof within the 45-day period. The referendum petition, if filed, shall be signed by not less than 10% or 15,000 of the registered electors of the incorporating unit, whichever is less. If a proper petition is ñled the contract shall not become effective unless approved by a majority of the electors of the incorporating unit or units voting thereon at a general or special election. . . . Signatures on the petition shall be verified by the circulator under oath as the actual signatures of the persons whose names are signed thereto and the clerk or other recording officer of the incorporating unit shall have the same power to reject signatures and petitions as city clerks under section 25 of Act No. 279 of the Public Acts of 1909, as amended, being section 117.25 of the Michigan Compiled Laws. [Emphasis added.]
MCL 117.25; MSA 5.2104, referred to in § 8b, is part of the home rule cities act, MCL 117.1 et seq.; MSA 5.2071 et seq. It provides in relevant part:
Sec. 25. (1) An initiatory petition authorized by this act shall be addressed to and filed with the city clerk. The petition shall state what body or organization, if any, or if no body or organization, then what persons are primarily interested in and responsible for the circulation of the petition and the securing of the amendment. Each sheet of the petition shall be verified by the affidavit of the person who obtained the signatures to the petition .... Each signer of the petition shall inscribe upon it, immediately after his or her signature, the date of signing and his or her street address. Any signatures obtained more than 1 year before the filing of the petition with the city clerk shall not be counted.
(2) The veriñcation shall state that the petition was circulated at the request of and pursuant to the directions of the association, organization, or persons desiring the amendment and shall also state that the signatures were obtained by the person verifying the petition; that the signatures are the signatures of the persons purporting to sign the same and that each of them signed in his or her presence; and that the person verifying the petition has good reason to believe and verily does believe that the signers of the petition thereof are duly registered electors of the municipality and are the identical persons their signature purport them to be.
(4) Upon receipt of the petition, the city clerk shall canvass it to ascertain if it has been signed by the requisite number of registered electors. For the purpose of determining the validity of the petition, the city clerk may cause any doubtful signatures to be checked against the registration records of the city. Within 45 days from the date of the filing of the petition, the city clerk shall certify the sufficiency or insufficiency thereof. If the petition contains the requisite number of signatures of registered electors, the clerk shall cause the proposed amendment to be submitted to the electors of the city at the next regular municipal or general state election held in the city which shall occur not less than 90 days following the filing of the petition.
(8) Any person aggrieved by any action, or failure of action, of the city clerk may bring an action against the clerk in the circuit court for writ of mandamus or for other appropriate relief. [Emphasis added.]
Sometime prior to September 28, 1986, the Lansing City Council approved and executed a full faith and credit general obligation contract of lease with the Lansing Building Authority for the conference center. Pursuant to § 8b of the building authority act, the city clerk placed a notice in the Lansing State Journal on September 28, 1986. The notice informed the public that the contract of lease would become effective in forty-five days unless petitions requesting a referendum were filed within that time period.
On November 12, 1986, the Lansing Taxpayers Association filed petitions signed by 14,887 persons, including plaintiffs, requesting a referendum on the full faith and credit general obligation contract of lease for the conference center. The petitions did not disclose the organization sponsoring their circulation, a requirement under § 25 of the home rule cities act, quoted above. By letter dated December 17, 1986, the city clerk notified the association’s attorney that the petitions would not be certified because, although they contained a sufficient number of signatures, the city attorney had opined that the petitions did not meet the requirement of §25 that they state the name of the organization or persons responsible for their circulation.
On December 22, 1986, pursuant to subsection 25(8) of the home rule cities act and MCR 3.305(A)(2), plaintiffs filed a complaint for mandamus against defendants city clerk and city election commission requesting the court to compel submission of the full faith and credit general obligation contract of lease and bond issue to the voters. Defendants and intervening defendants (all of whom were joined pursuant to MCR 2.209(B) on January 5, 1987) countered that the city clerk had no duty to submit the question to the voters because the petitions were defective. Plaintiffs subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(10) and defendants and intervening defendants (defendants) filed motions for summary disposition pursuant to MCR 2.116(C)(8) and (10). Following a hearing, the trial court granted summary disposition in favor of defendants.
In granting summary disposition, the circuit court held that a §8b referendum petition must meet the petition requirements of both § 8b of the building authority act and §25 of the home rule cities act. Because plaintiffs’ petitions failed to disclose the organization or persons sponsoring the petitions (according to defendants, persons and groups with interests in two Lansing hotels), as required by §§ 25(1) and (2), the court held that defendant city clerk had no duty to certify the petitions for a referendum vote. Accordingly, the court concluded, mandamus would not lie.
Plaintiffs contend that the circuit court erred in reading the requirements of §§25(1) and (2) into § 8b of the building authority act. According to plaintiffs, § 8b contains all of the requirements for a § 8b referendum petition. Plaintiffs assert that the reference to § 25 of the home rule cities act contained in §8b was not intended to impose further petition requirements, but pertains only to the power of the clerk to reject petitions. Since the power to reject petitions is found only in § 25(4), and since that power includes only the power to reject for an insufficient number of signatures, plaintiffs maintain that the petitions could not be rejected for failure to disclose sponsorship. We disagree.
A basic rule of statutory construction is that, where the Legislature uses certain and unambiguous language, the plain meaning of the statute must be followed. Browder v International Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982). Rules of statutory construction also require that force and meaning be given to every word and clause in a statute. First Bank of Cadillac v Miller, 131 Mich App 764; 347 NW2d 715 (1984); Oxford Twp v Dep’t of Social Services, 120 Mich App 103; 327 NW2d 409 (1982). Section 8b expressly states that a full faith and credit general obligation contract of lease entered into pursuant to the building authority act shall not become effective if "a proper petition is filed.” (Emphasis added.) Section 8b then provides that "the clerk . . . shall have the same power to reject signatures and petitions as city clerks under section 25.” (Emphasis added.) Faced with this clear language, we can only conclude that § 8b authorizes the city clerk to reject petitions, as well as signatures, and that the several subsections of § 25 — not simply § 25(4)— provide the standards to be employed in rejecting petitions. To read § 8b otherwise would render the clear language of § 8b meaningless.
Plaintiffs’ position that the Legislature intended § 8b to be complete in itself in setting the criteria for a proper petition is wholly without merit. Section 8b, for example, provides that signatories must be registered electors of the incorporating unit but does not contain a requirement that the signatures be accompanied by an address. That requirement is found is § 25(1). Since a proper canvass of the petitions under § 8b to verify whether a signatory is a registered elector of the incorporating unit may be had only when the address requirement of § 25(1) is met, plaintiffs cannot persuasively argue that § 8b is a complete statement of petition requirements. By incorporating § 25 into § 8b, the Legislature must have intended that § 25’s petition requirements apply to § 8b referendum petitions.
Plaintiffs’ contention that the only reason § 8b refers to § 25 as a whole rather than § 25(4) specifically is because § 25 was not divided into subsections when § 8b was enacted is similarly unpersuasive. The Legislature could have easily amended § 8b to reflect the reorganization of § 25 into subsections if it had intended that only § 25(4) be incorporated into the building authority act. It has not seen fit to do so.
Nor does an examination of §25 itself suggest that that statute was intended to empower the clerk to certify or reject petitions solely on the basis of the adequacy of the signatures rather than the adequacy of the petitions themselves. It should not be supposed that any section of a statute has no purpose. Northville Coach Lines, Inc v Detroit, 2 Mich App 591; 141 NW2d 316 (1966), aff'd 379 Mich 317; 150 NW2d 772 (1967). If the city clerk did not have the power under subsection (4) to reject petitions that did not comply with petition requirements of subsections (1) and (2), then those requirements would be unenforceable and have little or no force or effect. In order to give full effect to § 25, it must be read as granting the city clerk the power under § 25(4) to reject petitions that do not meet the petition requirements of §§ 25(1) and (2), including the requirement that the name of the organization or persons responsible for circulation of the petition be stated on the petition.
Plaintiffs note that, in 1969, § 25 was amended to delete the phrase "and in all other respects conforms to the provisions of this section” with reference to the clerk’s duty to examine a petition and certify its sufficiency. See 1969 PA 114. Plaintiffs argue that deletion of the phrase shows legis lative intent to preclude the city clerk from checking petitions for anything other than verification of signatures. However, the 1969 amendment rewrote subsection (4) in its entirety, not so much deleting the phrase as substituting it with the current "canvass” language. The Supreme Court had long held that to "canvass” entails more than merely passing upon the sufficiency of signatures; it also includes consideration of the petition itself. See, e.g., Scott v Secretary of State, 202 Mich 629; 168 NW2d 709 (1918), and Leininger v Secretary of State, 316 Mich 644; 26 NW2d 348 (1947). We assume that the Legislature was aware of this long-standing definition and legislated in harmony with it. Consequently, we do not believe that 1969 PA 114 was intended to diminish the clerk’s authority to pass upon the sufficiency of both the petition and the signatures thereon.
Plaintiffs also argue that § 25(1) pertains to initiatory petitions only and the petitions in the instant case are not initiatory. However, plaintiffs fail to note that subsection (4), which they argue does apply to § 8b, refers to "the proposed amendment,” also an initiatory measure. No one could dispute that § 25 was enacted with charter amendments in mind. However, the Legislature clearly intended to incorporate § 25 into the § 8b bond referendum provisions of the building authority act. The Legislature’s intent will not be nullified merely because some of the language of § 25 refers to charter amendments. Rather, the city clerk must be given the same power to reject signatures and petitions under § 8b that is given under § 25. We hold that, under § 25, the city clerk may reject petitions that do not contain the name of the organization or persons responsible for their circulation. We further hold that the Legislature in tended that the city clerk have the same power under § 8b.
Plaintiffs assert that, even if the circuit court was correct in "stacking” the provisions of §8b and §25, the petitions in this case still substantially comply with those requirements. We cannot agree. Plaintiffs’ petitions did not state the name of the organization or persons responsible for circulation as required by § 25 of the home rule cities act. This deficiency was not a mere technical noncompliance, but a wholesale exclusion of statutorily mandated disclosure information. The trial court did not err in ruling that the petitions were insufficient.
Mandamus is an extraordinary remedy and is discretionary with the court. Bd of County Road Comm’rs of Oakland Co v State Highway Comm, 79 Mich App 505; 261 NW2d 329 (1977), lv den 402 Mich 907 (1978). It lies only where there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of such duty. Id. The burden of establishing a clear legal duty by the defendant is placed on the person seeking mandamus. Burger King Corp v Detroit, 33 Mich App 382, 384; 189 NW2d 797 (1971). In this case, plaintiffs have not persuasively demonstrated that the city clerk had a clear legal duty to certify their petitions as sufficient under § 8b of the building authority act. The circuit court did not abuse its discretion in dismissing their complaint for mandamus.
Affirmed.__
Nor did the petitions comply with the requirements of § 544c of the Michigan Election Law, MCL 168.1 et seq.', MSA 6.1001 et seq., that "except as otherwise expressly provided ... all petitions circulated under authority of the election law” must carry a warning to signatories and a warning to circulators. MCL Í68.554c; MSA 6.1544(3). The city attorney and the circuit court opined that the instant petitions’ failure to carry such warnings rendered them invalid. We express no opinion as to whether the § 544c warnings apply to plaintiffs’ § 8b petitions. Similarly, we do not decide whether § 544c, as applied to § 8b referendum petitions, constitutes an unconstitutional limitation on the right to petition and to vote.
Moreover, as defendants point out, cities may issue full faith and credit general obligation bonds under the home rule cities act. The issuance of such bonds is subject to referendum and the referendum is subject to the provisions of § 25. See MCL 117.5(g); MSA 5.2084(7), and MCL 117.21; MSA 5.2100. If plaintiffs’ position were sustained, it would result in building authority full faith and credit general obligation bond referendum petitions being treated differently than city full faith and credit general building bond referendum petitions. Given the substantial similarity between § 5g of the home rule cities act and § 8b of the Building Authority Act, we doubt that this was the Legislature’s intent.
Plaintiffs, as a separate issue, suggest that the circuit court incorrectly applied the rule in pari materia in construing § 8b and §25. We need not address the merits of this issue since, assuming arguendo that plaintiffs are correct, under our holding the circuit court reached the right result. See, e.g., Compton v Joseph Lepak DDS, PC, 154 Mich App 360; 397 NW2d 311 (1986). | [
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Sawyer, J.
On March 12, 1985, Dana Jenkins and his codefendant, Orrin Cuthbertson, pled guilty to armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Jenkins and Cuthbertson were sentenced in a joint hearing in Detroit Recorder’s Court, Dalton A. Roberson, J., on April 4, 1985. Jenkins was sentenced to a term of four and one-half to fifteen years for the armed robbery and a consecutive two-year term for felony firearm. Cuthbertson was sentenced to a term of two to ten years for the armed robbery and, naturally, to the consecutive two-year term for felony firearm.
On July 12, 1985, Jenkins filed a motion for resentencing on the ground that he had received a greater sentence than his codefendant. On September 20, 1985, Judge Roberson granted Jenkins’ motion on the basis that the judge could not explain the differences between the sentences imposed on the two men, even after reviewing the presentence reports at the motion hearing. Both sentences had been within the sentencing guidelines, with Jenkins receiving a higher scoring on Offense Variable 7 (taking advantage of a disparity between offender and the victim). Judge Roberson then proceeded to resentence Jenkins to a term of two to ten years on the armed robbery conviction. The felony firearm sentence was unchanged.
Thereafter, the prosecutor filed a complaint for superintending control in this Court on the basis that Judge Roberson erred in vacating a lawfully imposed sentence and that he was without author ity to resentence Jenkins. In an unpublished order, we directed the parties to proceed to a full hearing on the merits.
Judge Roberson granted Jenkins’ motion for resentencing because he could not explain why he sentenced Jenkins to a harsher term than that to which he had sentenced Cuthbertson. In the instant action, it is argued that the reason Judge Roberson resentenced Jenkins was because he believed he had failed to meet the articulation requirements imposed by People v Coles, 417 Mich 523; 339 NW2d 440 (1983), at the original sentencing. Regardless of the reasoning applied by Judge Roberson, we agree with plaintiff that the trial court was without authority to resentence Jenkins.
A trial court is without authority to resentence a defendant where the sentence originally imposed is valid. To do so would infringe upon the commutation powers vested in the Governor. People v Whalen, 412 Mich 166, 169; 312 NW2d 638 (1981). Looking to Judge Roberson’s explanation of why he granted the motion for resentencing, we see that he granted the motion based upon his inability to explain the disparity in the sentences given to the two codefendants. However, mere disparity in the sentences imposed on two codefendants does not per se invalidate either sentence. People v Bisogni, 132 Mich App 244; 347 NW2d 739 (1984). See also People v Foreman, 161 Mich App 14, 27; 410 NW2d 289 (1987) (imposition of the same sentence on two codefendants is not an abuse of discretion). Thus, the fact that Jenkins received a lengthier sentence than Cuthbertson does not render Jenkins’ sentence invalid and, therefore, does not provide a basis for resentencing.
We also reject the contention that resentencing was required under the articulation requirements of Coles, supra. First, we are not convinced that the appropriate remedy for a failure to articulate under Coles is resentencing. Rather, the usual remedy for a failure to articulate is a remand to the trial court for an articulation of the reasons for imposing the sentence. See, e.g., People v Broden, 428 Mich 343; 408 NW2d 789 (1987). This is consistent with the ruling in Coles, which provides for resentencing when the trial court abuses its discretion by imposing a sentence which shocks the conscience of the appellate court, but which imposed no such remedy for the failure to articulate. Indeed, the reason for the articulation requirement is to aid the appellate court in reviewing the sentence to determine whether the sentence imposed constitutes an abuse of the trial court’s discretion. Coles, supra at 549. Thus, where a trial court fails to articulate the reasons for the sentence, it is necessary to remand the matter to the trial court for such an articulation before the appellate court can review the sentence under Coles. There is no need to order an immediate resentencing for the mere failure to articulate.
The instant case does present an interesting question as to what path an appellate court should take where the trial court failed to articulate the reasons for the sentence at sentencing and, thereafter, is unable to articulate the reason due to a failure of memory. For reasons to be discussed below, we do not believe it necessary to resolve that question in the instant case. However, we would comment that, even under such a scenario, resentencing would not necessarily be required. Rather, the appellate court would have to proceed to review the sentence without an articulation as to the reasons for the sentence and, therefore, the appellate court would presumably be more likely to find that a particularly harsh sentence shocked its conscience since the trial court had failed to provide a reason for that harsh sentence.
However, it is presumptuous for a trial court to decide that the Court of Appeals or the Supreme Court would require it to resentence a defendant because the sentence constitutes an abuse of discretion merely because the trial court is no longer able to recall the reasons for the sentence imposed. The determination of whether a sentence constitutes an abuse of discretion was vested by the Supreme Court in the appellate courts. Coles, supra at 550. There is nothing in Coles which suggests that the trial courts of this state have any authority to review their sentences absent a direction to do so by this Court or the Supreme Court in a particular case. While there are certain errors in the sentencing procedure which may, and in many cases must, be raised in the trial court, we do not believe that a Coles review should begin in the trial court. To do so would be to ignore the Supreme Court’s ruling in Whalen, supra.
In any event, we also believe that the argument that Judge Roberson failed to properly articulate the reasons at the original sentencing hearing for the original sentence imposed as required by Coles, supra, is incorrect. At the original sentencing proceeding, Judge Roberson did sentence both Jen kins and Cuthbertson without much comment. However, when defense counsel inquired into the reasons why Jenkins received a lengthier sentence than Cuthbertson, Judge Roberson noted that he was sentencing in accordance with the sentencing guidelines which had recommended a higher minimum sentence for Jenkins than for Cuthbertson. In fact, both Jenkins and Cuthbertson received sentences within the limits set forth in the guidelines. The Supreme Court has recently ruled that the statement by a sentencing judge that he is imposing a sentence in accordance with the guidelines sufficiently satisfies the Coles articulation-of-reasons requirement. Broden, supra at 354. Accordingly, Judge Roberson’s statement at the original sentencing proceeding that he was sentencing both Jenkins and Cuthbertson in accordance with the guidelines and that that explained the reasons for the different sentences sufficiently satisfied the articulation requirement of Coles. Therefore, even if resentencing were an appropriate remedy for a failure to articulate, no such remedy is necessary here since the articulation requirement was satisfied.
Finally, there remains the argument on appeal that resentencing was required because Judge Roberson relied upon a misscored sentencing information report at the time of the original sentencing of Jenkins. First, we note that, while the issue of the misscoring of the sir was apparently raised during the motion for resentencing, it is not entirely clear to us that that was the basis for Judge Roberson’s granting of the motion for resentencing. However, even assuming that we can accept the proposition that Judge Roberson was granting the motion for resentencing because he could not recall the rationale for imposing different sentences and could not recall the reason for scoring Jenkins’ sir higher than Cuthbertson’s sir, we do not believe that it was appropriate for Judge Roberson to reconsider the scoring of the sir.
In the recent decision of People v Walker, 428 Mich 261; 407 NW2d 367 (1987), the Supreme Court established the requirements for preserving the issue of a misscoring of a sentencing information report. Specifically, the Supreme Court ruled that it is necessary for the defendant to bring the misscoring to the attention of the trial court at sentencing, by properly filing a motion within the time period for a motion for a new trial or by a timely filed motion for remand in this Court. Id. at 262. In the case at bar, Jenkins was originally sentenced on April 14, 1985, and first raised the issue of the scoring of the sir in his July 12, 1985, motion for resentencing. Thus, the sentencing guidelines issue was first raised ninety-eight days after sentence was imposed. A motion for new trial must be made within twenty-one days after the entry of judgment. MCR 2.611(B). Therefore, Jenkins did not timely raise the issue of the scoring of the sir. Accordingly, the issue of the proper scoring of the sir was not properly before the trial court for consideration at the motion for resentencing.
For the above-stated reasons, we conclude that Judge Roberson lacked any authority to resentence Jenkins. Jenkins was sentenced within the recommendation of the sentencing guidelines and Judge Roberson sufficiently articulated the reasons for the sentence by reference to the guidelines. Moreover, any error in the scoring of the sir was waived by Jenkins by his failure to timely raise that issue. Since the sentence imposed was not invalid, there was no basis for the granting of the motion for resentencing.
Since there was no basis for granting the motion for resentencing, Judge Roberson exceeded his authority in doing so. Accordingly, an order of superintending control shall issue. The order granting resentencing and the new judgment of sentence shall be vacated and the original sentence imposed upon Jenkins shall be reinstated. Judge Roberson is directed to enter the appropriate orders. No costs, a public question being involved.
M. H. Wahls, P.J., concurs in the result only.
We are not certain that Judge Roberson based his ruling at the resentencing hearing on the basis of a failure to comply with the articulation requirement. However, on appeal it is urged that that was part of the "failure to remember the rationale for the sentence” reasoning in the bench opinion. In any event, we will analyze the issue.
Indeed, where the sentence is rather harsh, which we would define as a sentence which significantly departs from the sentencing guidelines, the sentencing judge’s inability to recall the reasons for imposing such a harsh sentence would lead one to believe that the sentence was an abuse of discretion. That is, if the nature of the offense and the circumstances of the offender are so insignificant that they do not stand out later, in the sentencing judge’s mind, it would seem difficult to rationalize why such a sentence was imposed.
Jenkins does, of course, have the remaining avenue of filing a timely motion for remand in this Court. However, such a motion would have to be made in Jenkins’ own appeal, not in this action for superintending control. In any event, such an action does not grant-authority to the trial court to reexamine its sentence until and unless the trial court is directed to do so in such a remand from this Court. | [
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McGregor, J.
Plaintiffs husband, Robert J. Kin-navy, was a vice-president of Bastían — Blessing Company, headquartered in Chicago, Illinois. The employees of Bastían — Blessing Company were insured under a group accident policy, issued by defendant in the amount of $50,000.00 for accidental death.
Mr. Kinnavy lived in Benton Harbor, Michigan, and commuted to work each day in his personally-owned Piper-Cherokee airplane. Plaintiff would drive her husband to the airport in Benton Harbor and he would then fly to Sky Harbor airport, a small field on the northwest side of Chicago. Mr. Kinnavy kept a car at Sky Harbor airport, which he used to travel to and from his office.
On November 13, 1969, Roger Kinnavy took his usual flight to work, left the office around 4:30 p.m. and was never seen alive again. On December 6, 1969, the body of Mr. Kinnavy washed up on a Lake Michigan beach near New Buffalo, Michigan. The medical examiners determined that his death was caused by external-violent means, and that his injuries were of the type frequently found in aircraft fatalities.
While no one actually saw Roger Kinnavy’s plane take off or crash, the undisputed circumstantial evidence established that Mr. Kinnavy died while piloting his plane. Between 5:30 p.m. and 6:30 p.m. on the evening in question, it was noted that Kinnavy’s car was parked at the Sky Harbor airport and his plane was gone. The National Weather Service in Chicago reported taking a call that night from someone on the ground, identifying himself as the pilot of 7636J, who requested weather information on the flight route to Benton Harbor, Michigan. The South Bend airport also reported receiving a call from the pilot of 7636J that night, requesting landing clearance. The plane, however, never came in for a landing and all contact was lost with it. There was no evidence that anyone was in the plane with Mr. Kinnavy when he left Sky Harbor, or that any other body was found, or that any other person was ever reported missing.
On June 24, 1970, the plaintiff, as a named beneficiary of the accident policy, brought suit to claim the insurance proceeds. The defendant insurer, in its answer of October 7, 1970, asserted an affirmative defense that the claim was barred because the policy excluded recovery for injury or death in any type of aviation endeavor. The exclusionary clause reads as follows:
"IV. Exclusions: This contract does not cover death, injury or disablement; * * *
"(d) while engaged in or taking part in aeronautics and/or aviation of any description or resulting from being in any aircraft except while a passenger in an aircraft previously tried, tested and approved; * * * ”
On May 19, 1971, the defendant insurance company moved for summary judgment, arguing that since Roger Kinnavy was a pilot of the plane, he could not qualify as being a "passenger”. This motion was denied.
On April 6, 1973, the plaintiff moved for a partial summary judgment, asking the court to interpret the exclusionary clause to mean that a pilot could recover as long as the airplane was tested and approved. The trial court granted plaintiffs motion on April 10, 1973.
The case proceeded to trial solely on the question of whether the death was caused by accident. On April 11, 1973, the jury returned a verdict in favor of the plaintiff in the amount of $50,000, the value of the policy. Defendant insurer brings this appeal from the judgment and the trial court’s grant of partial summary judgment in favor of the plaintiff.
The defendant’s position on appeal is that the trial court erred in denying its motion for summary judgment, based on the exclusionary clause of the accident policy.
The narrow issue before this Court is whether insurance coverage under defendant’s policy, which excludes coverage for any and all aviation activity, "except while a passenger in an aircraft tried, tested and approved,” extends coverage to a pilot while flying his own aircraft. We hold that it does not.
The trial court, in granting partial summary judgment, adopted plaintiffs theory that the exclusionary clause was ambiguous and must, therefore, be strictly construed against the defendant insurance company. The court held the exclusionary clause would not bar recovery because it could reasonably be construed to mean that any "occupant” could recover, if killed in a private plane crash, so long as the plane was previously tried, tested and approved by the FAA. Since there is no dispute that the aircraft carried a Certificate of Airworthiness, trial proceeded on the remaining issues in the case. The focus of the plaintiff and the court is on the condition of the aircraft, whereas, under the defendant’s construction, the focus is on the status of the occupant.
The trial court, in finding an ambiguity in the exclusionary clause in the case at bar, relied heavily on Continental Casualty Co v Warren, 152 Tex 164; 254 SW2d 762 (1953). In Warren, an aviation policy expressly covered all of the employees of a certain company. Then, in describing the type of injury that was covered, the following clause was inserted:
" * * * provided such injury is sustained by the insured person in consequence of riding as a passenger in, boarding, alighting from, making a parachute jump from (for the purpose of saving his life) or being struck by the twin engine 6 passenger-place Beechcraft Aircraft * * * ”
In Warren, the court was required to determine whether the phrase "in consequence of riding as a passenger in” covered the decedent who perished while piloting an aircraft. The court initially recognized the broad inclusion of all employees as injured persons, regardless of whether or not one acted as a pilot. The court decided that an employee-pilot would be covered if he was injured while "boarding, alighting from, making a parachute jump from” or being struck by an aircraft. The court concluded that the language of the clause was ambiguous, since an employee-pilot was covered, for example, while making a parachute jump, but not while continuing as pilot.
However, for a doubt or ambiguity to exist, there must be some language in the policy to create the doubt. Lincoln Mutual Casualty Company v American Arbitration Association, 49 Mich App 676; 212 NW2d 765 (1973). In Paul Revere Life Insurance Co v First National Bank in Dallas, 359 F2d 641 (CA 5, 1966), the Court relied on the above principle to distinguish Warren, supra.
In Paul Revere an exception to a life insurance policy stated that the policy did not cover death or disability resulting from a. flight in an aircraft except as a "passenger on a civilian plane.” It was stipulated that the insured was killed while piloting a private plane which crashed. The court, in Paul Revere, distinguished Warren, supra, as follows:
"The Paul Revere policy language is clear, and it is not disputed that decedent was the pilot of a civilian plane. The coverage excepted death resulting from ' * * * flight in aircraft except as a passenger on a civilian plane.’ The question is whether the pilot was also a passenger. There is no additional language in the contract, as was the case in Continental Casualty, which has logical bearing on the intended coverage. And we cannot say that the word 'passenger’ on its face includes the pilot or operator of a plane. The term is not inherently ambiguous when used in its common or popular meaning. * * * We hold that common or popular meaning of 'passenger’ does not include the pilot.”
As in Paul Revere, this Court has repeatedly held that the terms of an insurance policy must be construed in accordance with the ordinary and popular sense of the language used, so as to avoid strained interpretations. Cora v Patterson, 55 Mich App 298; 222 NW2d 221 (1974).
The clause under examination in this case excludes coverage for any and all aviation activity, with one exception: "a passenger in an aircraft * * * tried, tested and approved”. There is no ambiguity in this clause. The interpretation which an ordinary man would give to the phrase is that the policy differentiates between those involved in the flying of airplanes and those not so involved. In other words, one who is exercising actual physical control of an aircraft, a pilot, is not a "passenger” in an aircraft. The requirement that the aircraft in which the insured is a "passenger” must be tried, tested and approved does not alter the requirement that the insured be a "passenger” in the plane. Rather, it limits the risk of the insurance company to aircraft which are mechanically sound and FAA approved. The words "tried, tested and approved” do not expand the meaning of "passenger” but, rather, limit the meaning of "aircraft.”
While not controlling, it should be noted that the Uniform Aeronautics Law defines "passenger” as follows:
" 'Passenger.’ Includes any person riding in an aircraft but having no part in its operation.”
American Mercury Insurance Co v Bifulco, 74 NJ Super 191; 181 Atl 2d 20 (1962); Spiess v United Services Life Insurance Co, 348 F2d 275 (CA 10, 1965).
It should also be noted that a Michigan statute dealing with penal code violations for aircraft, defines the word "passenger” to exclude "pilot.” MCLA 750.43; MSA 28.232. Likewise, the Uniform Aircraft Financial Responsibility Act also distinguishes between a "passenger” and the "operator” of an aircraft. MCLA 259.671; MSA 10.551.
We therefore hold that the trial court erred in denying defendant’s motion for summary judgment, since the insurance policy, which provided insurance coverage only while the insured was a "passenger” in an aircraft "tried, tested and approved” did not extend coverage to the situation where the insured met his accidental death as a "pilot” while flying his aircraft.
Reversed and remanded to the trial court for the entry of an order consistent with this opinion.
All concurred. | [
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Holbrook, P. J.
This appeal is taken from a jury verdict which found the defendant guilty of subsequent negligence and which awarded plaintiff damages of $30,000.
Lee Drive, the scene of the accident here in question, is a major thoroughfare crossing the campus of Northern Michigan University in Marquette and is subject to heavy vehicular traffic. It is a blacktop road, some 43 feet in width, which has two-way traffic. There are parking stalls, measuring 8 by 20 feet, along the curb on both sides of the street. On the southern side of the street is found the University Health Center. Some distance to the west of the Health Center is parking lot X, which abuts Seventh Street. Traffic from the northwest feeds into Lee Drive. In March of 1969 there was a sidewalk available to pedestrians on the north side of Lee Drive. However, there was on the south side only a path which had been worn down by pedestrian traffic. The following is a representation of the scene.
At around 8 a.m. on March 7,1969, the temperature was 110 above zero, the wind was out of the west (averaging 7 miles an hour), and the sky was clear— there were no clouds in the sky and the visibility was over 15 miles. The average snow depth was 22 inches. Some minutes before 8 o’clock, plaintiff, Mrs. Zeni, a 56-year-old registered nurse employed at the University Health Center, parked her car in parking lot X. Thereafter, she walked along Seventh Street and then over to the south side of Lee Drive. At about that time, Karen Anderson, a 20-year-old single student at Northern Michigan University, accompanied by a passenger, was coming from the northwest and heading southeast on University Drive. Defendant, Karen Anderson, was driving a yellow Ford Mustang automobile, owned by her father, Donald, codefendant in this action.
Some moments thereafter, plaintiff was struck by defendant’s automobile. As a result of this impact, plaintiff suffered serious injuries, including development of an intracerebral hematoma in the right temporal area. In order to remove the hematoma, neurosurgery was performed on plaintiff. After an extended period of convalescence, plaintiff returned to work on a part-time basis with continuing restrictions on her duties. She manifested some permanent disability.
Mrs. Zeni has retrograde amnesia and retains no memory from the time she left parking lot X that morning until sometime after the impact. Thus, there is no means of determining whether she discovered the defendant behind her.
There was testimony that the use of the roadway was common. Another nurse testified that she normally used the roadway of Lee Drive to get to the Health Center, as did other nurses. There was testimony that others were using the roadway that morning. Moreover, the snow on the path was not heavily packed. A security officer testified that in the winter time it was safer to walk in the roadway than on the path. Further, there was testimony that in days precedent to the accident Mrs. Zeni had fallen on the path, as had the director of University Security. The security director was hospitalized.
At trial defendant Karen Anderson testified that it was normal procedure for her, when she had a passenger, to get inside her car and turn on the defroster, while the passenger scraped the windshield. Defendant was unable to remember whether she had turned her windshield wipers on. The passenger testified that she scraped the windshield. Karen estimated that her speed on that morning was from 10 to 15 miles an hour. No other testimony presented showed that her speed was any greater. The posted speed limit on Lee Drive was 15 miles an hour.
It appears that on that morning there was a steady stream of traffic. Karen testified that there was a car in front of her and one behind her. She said that she first saw the plaintiff when Mrs. Zeni was "right along side” one of the parked cars, i.e., between a car parked on the righthand side of the road and defendant’s car. She testified that she did not hear nor feel the car strike Mrs. Zeni.
The deposition of an eyewitness was read at trial. The witness, Daniel McMahon, testified that on that morning he had been on his way to a class, a few minutes before 8 o’clock. He remembered two cars as standing out in his memory. The first was a small black foreign car which had "a small peep hole in it for the driver to see out of’. The second was a yellow Mustang, which was defendant’s car. He testified that he saw the yellow Mustang hit Mrs. Zeni "from what would be the driver’s right side” and saw Mrs. Zeni flip "over the fender, hood and fender situation”. He went over to Mrs. Zeni, who was lying on her right side facing the curb. She was bleeding from the nose. He testified that the defendant’s windshield was clouded and he doubted that the occupants could see out. He also testified that he "saw the yellow car traveling too close to the curb” and that he could tell that plaintiff was going to be hit. When he went to Mrs. Zeni, he said that his knees were on or inside the white line which delineated the perimeter of a parking space.
After plaintiff was removed for emergency care, defendant Karen Anderson and her passenger spoke to a security officer of the University. The security officer, in his report, observed that blood stains were on the pavement some 13 feet from the curb. Further, in his comments he observed that defendant’s car windshield was "wet”. No citations were issued.
In her complaint, plaintiff alleged that defendant was negligent in that she failed to drive "at a careful and prudent speed”, based upon the fact that vehicles and pedestrians were using Lee Drive and that students were proceeding to 8 o’clock classes; that she failed to keep a good lookout ahead for the safety of plaintiff and others; that she failed to exercise due care; that she failed to operate her vehicle so that it could be stopped within the assured cleared distance; and, that she failed to remove and clear accumulated ice or excessive moisture or fog on the windshield of her vehicle. Defendants denied all allegations of negligence and pled the affirmative defense of contributory negligence, based upon a violation of MCLA 257.655; MSA 9.2355, which provides:
"Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest.”
Plaintiff replied to this defense that the provisions asserted by defendants did not apply to Lee Drive. By amended complaint, plaintiff further alleged:
"That, as the defendant Karen Anderson in the operation of her vehicle was driving easterly on Lee Drive, the defendant Karen Anderson discovered, or by the exercise of ordinary care, should have discovered that the plaintiff was walking upon the roadway with her back to said defendant; that said plaintiff was helpless to avoid any impending harm from automobiles approaching her from the west; that plaintiff’s situation was discovered or should have been discovered in time to avoid running into her by defendant Karen Anderson in the operation of her vehicle; that there was sufficient time and sufficient distance wherein the defendant, by the exercise of ordinary care should have discovered and used the means at hand to avoid propelling her vehicle into the plaintiff.
"That defendant Karen Anderson’s conduct therein was the proximate cause of the injuries to the plaintiff.”
The plaintiff prayed for $75,000 in damages and attached as an exhibit special damages of $8,494.
Before trial, defendants’ counsel prepared a trial brief which indicated that defendants would object to the use of Michigan Standard Jury Instruction 14.01, the use of which was anticipated to be requested. The objection was based on the note on use in the instruction pointing out that it is inapplicable when the negligence of plaintiff is concurrent with the negligence of defendant. The brief further asserted that no proof could be offered showing that the negligence of plaintiff ever came to rest.
At the close of plaintiff’s proofs, defendants moved for directed verdict on the grounds that there had been clear and positive proof of contributory negligence and no proof which would allow the jury to consider subsequent negligence. The trial court denied this motion and said that there was enough testimony to go to the jury on the question of negligence of Karen Anderson and to allow the jury to ignore the allegation of contributory negligence on the basis of the doctrine of last clear chance.
SJI 14.01 was given by the trial court. Counsel objected to the use of this instruction. The trial court overruled the objection and said:
"In the first place, no request for instruction was made as to the four elements set forth in the cases that are cited in the notes on use and comments in SJI 14.01. Although, counsel did argue it to the jury, I feel that is a jury question as to whether or not it come [sic] to rest.”
Defense counsel had moved again for directed verdict and the motion was again denied. After the jury verdict was returned, the defendants moved for a new trial or for judgment notwithstanding the verdict. These motions were denied by the trial court in a written opinion. As to the applicability of SJI 14.01, the trial court felt that the instruction on proximate cause left to the jury the question of whether plaintiffs negligence had come to rest prior to the accident or was a concurring cause.
Defendants here appeal on the basis of the use of SJI 14.01 and assert that they are entitled to a judgment notwithstanding the verdict as a matter of law or in the alternative, at the very least, a new trial.
I
Preliminarily, a procedural problem must be dealt with. Plaintiif asserts that as the defendants’ counsel never made a request to charge specifically on the elements of subsequent negligence, the assertion of error may not now be appropriately reviewed, as it was not properly preserved. In the context of this case, this assertion is untenable. GCR 1963, 516.2 provides:
"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”
Clearly, objections were made by defendants so as to preserve the question. Moreover, the court has the duty of charging on all essential elements, even though no request has been made. Pierson v Smith, 211 Mich 292, 301; 178 NW 659, 662 (1920), and Hansel v Hawkins, 326 Mich 177, 179; 40 NW2d 109, 110 (1949). See also People v Sherman, 14 Mich App 720, 723; 166 NW2d 22, 24 (1968). The court was fully informed via defendants’ trial brief of the elements of subsequent negligence and should sua sponte have instructed accordingly if the elements in question were necessary. We do note that the trial court is not to be faulted for relying on the Standard Jury Instructions, in that courts should be secure with them. However, if an instruction is deficient as printed, it is the court’s responsibility to rectify and clarify the instruction.
II
The trial court told the jury at the outset that they were to consider the instructions as a whole and not pick one or some of the instructions and disregard others. The jury was instructed in other pertinent parts:
"Now, we have another state statute which provides that:
" 'Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest.’ [MCLA 257.655; MSA 9.2355]
"Now, it is for you to decide whether on the evidence presented in this case, sidewalks were provided for the plaintiff, Mrs. Zeni, to go from parking lot 'X’ to her place of work. Then, as to this statute, you shall then decide whether or not it was practicable for her to walk on the left side of the highway facing traffic which passes nearest. If you find that the plaintiff, Mrs. Zeni, violated this statute before or at the time of the occurrence, then Mrs. Zeni was negligent as a matter of law, which, of course, would bar her claim under Count I, providing that her negligence was a proximate contributing cause of the occurrence.
"Now, even though you find that Mrs. Zeni by her own negligence placed herself in a position of danger, that will not defeat her claim for damages if defendant Karen failed to use ordinary care with the means at hand after defendant knew or should have known of Mrs. Zeni’s danger.
"When I use the words 'proximate cause’ I mean first, that there must have been a connection between that conduct of the defendant Karen which Mrs. Zeni claims was negligent and the injury complained of by Mrs. Zeni, and second, that the occurrence which is claimed to have produced that injury was a natural and probable result of such conduct of the defendant Karen.
"When I use the words 'proximately contributed’ I mean first, that there must have been a connection between that conduct of the plaintiff, Mrs. Zeni, which defendant Karen claims was negligent and the injury of which the plaintiff complains, and second, that the occurrence which is claimed to have produced that injury was a natural and probable result of such conduct of the plaintiff, Mrs. Zeni.
"There may be more than one proximate cause. To be a proximate cause, the claimed negligence of the defendant need not be the only cause nor the last cause. A cause may be proximate although it and another cause act at the same time or in combination to produce the occurrence.
"Now, I shall explain to you the burden of proof which the law places on the parties to establish their respective claims. When I say that a party has the burden of proof, or, in this connection, use the expression 'if you find’ or 'if you decide’, I mean the evidence must satisfy you that the proposition on which that party has the burden of proof has been established by evidence which outweighs the evidence against it. You must consider all the evidence regardless of which party produced it.
"Now, the plaintiff, Mrs. Zeni, has the burden of proof on each of the following propositions:
"1. That she was injured and sustained damage, and there appears to be no doubt about that, she has sustained injuries;
"2. That the defendant Karen was negligent in one or more of the ways claimed by the plaintiff as stated to you in these instructions;
"3. That the negligence of the defendant Karen was a proximate cause of the injuries to the plaintiff.
"Now, the defendants have the burden of proof on their claim that the plaintiff, Mrs. Zeni, was negligent in one or more of the ways claimed by the defendants as stated to you in these instructions; and that such negligence was a proximate contributing cause of the injuries and damages to the plaintiff.
"If you find that the plaintiff, Mrs. Zeni, was contributorily negligent, as just stated in this instructions [sic], the plaintiff has the burden of proof on her claim that the defendant Karen was subsequently negligent * * * that is, that the defendant Karen failed to use ordinary care with the means at hand after she knew or should have known of the danger in which the plaintiff, Mrs. Zeni, was placed by her own contributory negligence.
"Your verdict will be for the plaintiff, Mrs. Zeni, if she was injured or damaged and the defendant Karen was negligent, and such negligence was a proximate cause of the plaintiff’s injuries, unless the plaintiff, Mrs. Zeni, herself was negligent and such negligence proximately contributed to her injuries. If the plaintiff herself was negligent and such negligence proximately contributed to her injuries, your verdict will be for the plaintiff only if the defendant was subsequently negligent as previously explained in these instructions and such subsequent negligence proximately caused the plaintiff’s injuries.
"Your verdict will be for the defendants if the plaintiff, Mrs. Zeni, was not injured; or if the defendant Karen was not negligent; or if negligent, such negligence was not a proximate cause of the injuries; or if the plaintiff herself was negligent and such negligence was a proximate contributing cause of her injuries, and the defendant Karen was not subsequently negligent as previously explained in these instructions.”
Whether MCLA 257.655; MSA 9.2355, applies to a given situation is a question of fact. See Martin v Leslie, 345 Mich 305, 309-310; 76 NW2d 71, 73 (1956), and Bird v Gabris, 53 Mich App 164, 167; 218 NW2d 871, 872-873 (1974), wherein the Court said:
"If we were to read the above statute to mean that every person afoot on a public highway must be on the left side of the highway facing traffic which passes nearest, this rigid interpretation would apply to a traffic control officer, emergency personnel, persons alighting from their vehicles for the purpose of walking to a sidewalk, persons crossing the highway, and a myriad of other situations where the pedestrian statute obviously does not apply.”
When the statute is found applicable then the issue of proximate causality may be one of fact or law. In Holmes v Merson, 285 Mich 136, 139-140; 280 NW 139 (1938), the Court wrote:
"The generally accepted view is that violation of a statutory duty constitutes negligence per se. 45 CJ, p 720. As said in Westover v Railway Co, 180 Mich 373; 147 NW 630 (1914):
" 'In some jurisdictions it has been held that a violation of an ordinance or a statute is negligence per se; but this Court has not followed that rule with reference to violations of ordinances. Cook v Johnston, 58 Mich 437; 25 NW 388; 55 Am Rep 703 (1885); Flater v Fey, 70 Mich 644; 38 NW 656 (1888); Sterling v City of Detroit, 134 Mich 22; 95 NW 986 (1903); Blickley v Luce’s Estate, 148 Mich 233; 111 NW 752 (1907). It has, however, followed the rule with reference to violations of statutes, and it has been many times held that a violation of a statute was negligence per se. Billings v Breinig, 45 Mich 65; 7 NW 722 (1881); Syneszewski v Schmidt, 153 Mich 438; 116 NW 1107 (1908); Little v Bousfield & Co, 154 Mich 369; 117 NW 903 (1908); Van Doorn v Heap, 160 Mich 199; 125 NW 11 (1910); Tabinski v A Harvey’s Sons Mfg Co, 168 Mich 392; 134 NW 653 (1912).
" 'While in some cases involving the statute the violation has been spoken of as "evidence of negligence”, we think there has been no intention to depart from the rule that a violation of a statute imposed under the police power of the state is negligence per se.’
"See, also, Bade v Nies, 239 Mich 37; 214 NW 170 (1927), and Hinchey v JP Burroughs & Son, 240 Mich 273; 215 NW 346 (1927).
"Such violation of the statute alone is not sufficient to establish liability. It must have been the proximate cause of the injury. Warwick v Blackney, 272 Mich 231; 261 NW 310 (1927).”
See also Shepherd v Short, 53 Mich App 9; 218 NW2d 416 (1974).
In the context of this case, the issue of whether plaintiffs negligence was a proximate cause of her injuries is one of fact; therefore, we may not say that defendants are entitled to a judgment non obstante veredicto as a matter of law.
The question, then, with which we are faced is whether the jury was instructed as to all essential elements on the doctrine of subsequent negligence. See generally Prosser, Torts (3d ed), § 65, p 437 et seq.; 2 Harper & James, Torts, §§ 22.12-22.14, pp 1241-1263; and also Annot., 32 ALR2d 543 (1953), Availability of last clear chance doctrine to defendant.
It is the general rule that the burden is on the plaintiff to show that he is entitled to the benefit of the doctrine of last clear chance. In 32 ALR2d 543, 549, it is said that the four elements of the last clear chance doctrine are: 1) plaintiffs inability to escape from, or obliviousness to, danger which results from his own negligence; 2) defendant’s awareness of the danger; 3) defendant’s opportunity to avert the injury; and, 4) defendant’s failure to avert it. Cf. 2 Restatement Torts, 2d, §§ 479, 480, pp 530, 535. In Michigan, the doctrine of last clear chance (here called subsequent negligence) early became intertwined with the concept of gross negligence. In Gibbard v Cursan, 225 Mich 311, 319; 196 NW 398, 401 (1923), Justice Clark wrote:
"When will gross negligence of a defendant excuse contributory negligence of a plaintiff? In a case where the defendant, who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff by his subsequent negligence does plaintiff an injury. Strictly, this is the basis of recovery in all cases of gross negligence. 20 RCL, p 145. Such gross negligence is also sometimes called discovered negligence, subsequent negligence, wanton or wilful or reckless negligence, discovered peril, last clear chance doc trine, and the humanitarian rule. Other misconduct, different in kind, is also generally and incorrectly known as gross negligence, as we shall see later. Richter v Harper, 95 Mich 221; 54 NW 768 (1893); Kelley v Keller, 211 Mich 404; 179 NW 237 (1920); Fike v Railroad Co, 174 Mich 167; 140 NW 592 (1913); Knickerbocker v Railway Co, 167 Mich 596; 133 NW 504 (1911); Buxton v Ainsworth, 138 Mich 532; 101 NW 817; 5 Ann Cas 146 (1904).
"The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. Cooley on Torts (2d ed), p 674; Labarge v Railroad Co, 134 Mich 139; 95 NW 1073 (1903).” (Emphasis in original.)
Cf. Papajesk v Chesapeake & Ohio R Co, 14 Mich App 550; 166 NW2d 46 (1968). Gibbard is cited in the leading case of Davidson v Detroit, 307 Mich 420, 430-431; 12 NW2d 413, 416-417 (1943). The Court there wrote:
"In order to apply the doctrine of subsequent negligence (also called discovered negligence, gross negligence, wilful, wanton or reckless misconduct, discovered peril, last clear chance — see Gibbard v Cursan, 225 Mich 311; 196 NW 398 [1923]), plaintiff’s negligence must have put her in a position of danger, must have ceased to operate as the proximate cause of the accident, the defendant must have discovered plaintiffs peril or should by the exercise of ordinary care and diligence have discovered plaintiffs peril, the defendant must have had sufficient time and ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand, and failed or omitted to use such care and diligence to avert the threatened injury. The proof should be clear and convincing that the defendant had discovered the plaintiffs peril, or should have done so by the exercise of ordinary care and diligence, and by the use of the means at hand have had time to avert the threatened injury. Under the above circumstances, the subsequent negligence of the defendant has been held to be the proximate cause of the injury, that the antecedent (although continuing) negligence of the plaintiff is no longer the proximate cause, and that therefore the contributory negligence of the plaintiff would not bar recovery. This rule has been announced in substance, and at various times in part, in numerous decisions of this court, with occasional variations in language as applied to particular facts and circumstances. Griewski v Ironwood & Bessemer Railway & Light Co, 209 Mich 10, 176 NW 439 (1920); Gibbard v Cursan, supra; Howell v Hakes, 251 Mich 372; 232 NW 216 (1930); Willett v Smith, 260 Mich 101; 244 NW 246 (1932); Goss v Overton, 266 Mich 62; 253 NW 217 (1934); Sherman v Yarger, 272 Mich 644; 262 NW 318 (1935); Wells v Oliver, 283 Mich 168; 277 NW 872 (1938); Wilson v Michigan Interstate Motor Freight, Inc, 286 Mich 99; 281 NW 552 (1938); Beaulieu v City of Detroit, 293 Mich 364; 292 NW 332 (1940); Routt v Berridge, 294 Mich 666; 293 NW 900 (1940); Agranowitz v Levine, 298 Mich 18; 298 NW 388 (1941); Sloan v Ambrose, 300 Mich 188; 1 NW2d 505 (1942); Mallory v Pitcairn, 307 Mich 40; 11 NW2d 318 (1943).” (Emphasis supplied.)
See also Conant v Bosworth, 332 Mich 51; 50 NW2d 842 (1952), and LaCroix v Grand T W R Co, 379 Mich 417; 152 NW2d 656 (1967). The inquiry, thus, is whether the negligence of the plaintiff had ceased to operate as a proximate cause of her injury. See Morrison v Hall, 314 Mich 522; 22 NW2d 838 (1946), and 17 Michigan Law & Practice, Subsequent Negligence; Last Clear Chance, § 83, p 460. In re DeBour Estate, 158 NW2d 837, 839 (Iowa, 1968). If plaintiff’s negligence is shown to be a remote cause of her injury, the doctrine of subsequent negligence is applicable. Cf. Szost v Dykman, 252 Mich 151; 233 NW 203 (1930). The proof should be clear and convincing that defendant discovered or should have discovered the plaintiffs peril by exercising ordinary care and diligence, and by use of the means at hand had time and ability to avert the threatened injury. Davidson, supra; Brinks v Chesapeake & Ohio R Co, 398 F2d 889, 891 (CA 6, 1968). Cf. Barron v Detroit, 348 Mich 213; 82 NW2d 463 (1957).
The doctrine does not apply where the negligence of both parties is concurrent and proximately causes plaintiffs injury. See Smith v Falls, 41 Mich App 739, 743; 201 NW2d 101, 103 (1972). Ramirez v Chenier, 16 Mich App 721, 722; 168 NW2d 640, 641 (1969); and, generally, 65A CJS, Negligence, § 139, p 166. Cf. Churukian v LaGest, 357 Mich 173; 97 NW2d 832 (1959); Frye v Gilomen, 360 Mich 682; 104 NW2d 813 (1960); Kolcon v Smewing, 28 Mich App 237; 184 NW2d 244 (1970).
The note on use following SJI 14.01 says:
"This instruction should be used only when there is evidence of plaintiffs precedent negligence, placing him in a position of danger. If the negligence of a plaintiff is concurrent with the negligence of a defendant, the instruction is not applicable. Also if plaintiff is in peril without negligence on his part, this instruction is not applicable because there is no precedent negligence to excuse. This instruction should not be given unless there is evidence that defendant could have avoided the accident after he knew or should have known of plaintiffs danger.
"See Instruction 21.02(A), adapting the burden of proof instruction to accommodate this issue.” (Emphasis supplied.)
In order for the triers of fact to properly consider this problem, they should be instructed on the question of whether plaintiff's negligence had ceased to be a proximate cause of her injury. A proper instruction is demonstrated by that given in LaCroix, supra, 379 Mich 437; 152 NW2d 665:
" 'Whether Mr. LaCroix’s injuries were due solely to the negligence of defendant’s engine crew without contributory negligence on his part, or, on the other hand, were due to the subsequent negligence of the engine crew after Mr. LaCroix’s negligence had placed him in a position of peril and then ceased to operate as a proximate cause of the ensuing injuries, in either event Mr. LaCroix would be entitled to recovery. If defendant’s engine crew discovered, or in the exercise of due care should have discovered, Mr. LaCroix in a position of peril in sufficient time to be able by the exercise of due care and diligence in the use of the means at hand to avoid injury to him but failed to exercise such care and use such means with the result that he was injured by reason of such neglect of the engine crew, then the railroad is liable to him for damages regardless of whether he came into such position of peril without fault or negligence on his part or through his own negligence [in violating a statute or otherwise] which had ceased to operate as a proximate cause of the ensuing injury. ’ ’’(Emphasis supplied.)
We find that SJI 14.01 is in its wording deficient without further explanation. Moreover, we are mindful that the purpose of instructions is to enlighten the jury as to the relevant factors to be considered. Instructions should be as clear as possible. The instruction on proximate cause, correlated with the instruction on burden of proof which was given, was insufficient as the elements of subsequent negligence were not fully explained.
Reversed and remanded for a new trial. Costs to appellants.
T. M. Burns, J., concurred.
Corresponds to SJI 12.03.
Corresponds to SJI 14.01.
Corresponds to SJI 15.01.
Corresponds to SJI 15.02.
Corresponds to SJI 15.03.
Corresponds to SJI 21.01.
Corresponds to SJI 21.02A.
This may be seen as the crux of the present case. There is the assertion by defendants that plaintiffs contributory negligence continued until injury, and bars recovery; however, the point is that although plaintiffs antecedent negligence may continue up and until injury, the question remains whether plaintiffs negligence has ceased to operate as a proximate cause of the injury — and that is a question of fact for the trier of facts. | [
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Quinn, P. J.
On leave granted, defendant appeals from an order denying his motion for accelerated judgment, GCR 1963, 116.1(5). The basis for the motion was that plaintiffs claim was barred by the statute of limitations.
The appeal presents the question of when the statute of limitations begins to run on the claim of an infant who was over 18 years of age when the Age of Majority Act became effective.
Plaintiffs cause of action arose July 1, 1964, when he was 11 years of age. His complaint was filed March 19, 1973. The Age of Majority Act, 1971 PA 79; MCLA 722.51 et seq.; MSA 25.244(51) et seq., became effective January 1, 1972.
Prior to 1971 PA 79, the disability of infancy was removed at age 21, after which a claimant had one year within which to bring an action on a claim accruing during infancy, MCLA 600.5851; MSA 27A.5851. (The amendment to the latter statute will be discussed later in the opinion.)
The pertinent portions of 1971 PA 79 provide:
"Sec. 2. Notwithstanding any other provision of law to the contrary, a person who is 18 years of age but less than 21 years of age when this act takes effect, and a person who attains 18 years of age thereafter, is deemed to be an adult of legal age for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age.
Sec. 3. This act supersedes all provisions of law prescribing duties, liabilities, responsibilities, rights and legal capacity of persons 18 years of age through 20 years of age different from persons 21 years of age, including but not limited to the following enumerated public acts: [included in the enumerated acts is 1961 PA 236, the entire Judicature Act],
Sec. 4. This act does not impair or affect any act done, offense committed or right accruing, accrued or acquired, or a liability, penalty, forfeiture or punishment incurred before this act takes effect, but the same may be enjoyed, asserted and enforced, as fully, and to the same extent as if this act had not been passed. Such proceedings may be consummated under and in accordance with the law in force at the time the proceedings are or were commenced. Proceedings pending at the effective date of this act and proceedings instituted thereafter for any act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred before the effective date of this act may be continued or instituted under and in accordance with the law in force at the time of the commission of the act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred.”
When the provisions of MCLA 600.5851; MSA 27A.5851 are read in conjunction with 1971 PA 79, it is apparent that those infants 18 years of age through 20 years of age on January 1, 1972 will be treated differently than infants under 18 on the same date. For example, an infant 18-1/2 years old on January 1, 1972 would have 3-1/2 years to bring an action on a claim accruing during infancy but an infant 17-1/2 years old would have only 1-1/2 years.
To correct this inequality, 1972 PA 87 was passed to amend MCLA 600.5851 effective March 20, 1972. MCLA 600.5851(1) was amended by substituting "an” for "any” preceding "action” on line 1 and "18” for "21” on line 2. A new subsection (6) was added:
"With respect to a claim accruing before the effective date of Act No. 79 of the Public Acts of 1971, being sections 722.51 to 722.55 of the Compiled Laws of 1948, disability of infancy shall be considered removed as of the effective date of Act No. 79 as to persons who were at least 18 years of age but less than 21 years of age on January 1, 1972 and shall be considered removed as of the eighteenth birthday of a person who was under 18 years of age on January 1, 1972.”
As the result of this amendment, all infants had one year from the removal of disability within which to bring an action on a claim accruing during infancy. This was the law prior to 1971 PA 79. The period of limitation was not affected by reducing the age of majority. We conclude that the time within which plaintiff could bring his action expired January 1,1973.
Reversed and remanded for entry of an order granting defendant’s motion for accelerated judgment with costs to defendant.
All concurred. | [
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