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Sherwood, J.
Plaintiff brought suit to recover the value of a building erected by him under the provisions of a lease made May 1,1877, with defendant, for the term of five years next ensuing, at a yearly rent of $4100. Said lease contained the following clause, viz.:
“ Said second party [meaning the plaintiff] is hereby permitted and agrees to erect a building to reasonably occupy the space between the buildings now on said property and the new Wayne County Savings Bank, to cost not to exceed five thousand dollars ($5000), and to be of equal height with the building now on said corner. Said first party agrees to take said building to be erected so as aforesaid by said second party at its value at the termination of said five years, said value to be determined by three appraisers, to be chosen in the usual way ; but the appraisal to be made by them shall be upon the basis of the cost of said building, not to exceed five thousand dollars when finished, and any deterioration by wear, breakage or faulty construction to be deducted therefrom ; but if such building shall not be worth cost, less such deterioration, then it shall be appraised at its then actual cash value. In case, however, said first party shall elect at the termination of said five years to renew this lease for a further term of five years, upon the same terms above stipulated, she shall be entitled, at the end of said second term, to said building so to be erected as aforesaid, and to receive from said second party, free of any charge or claim, a bill of sale thereof. Said second party also agrees that he will not assign or transfer this lease without the written assent of said first party ; and at the end of the said term shall and will peaceably and quietly leave, surrender, and yield up the buildings now on said premises unto the said party of the first part, her heirs or assigns, in as good condition as when possession is given, damages by the elements excepted.”
There was no provision what notice, if any, should be given at the end of the five years, or how it should be given, whether in writing or not. The plaintiff went into possession of the leased premises at the time the lease was made, and remained until May 1, 1882, and during said term erected a building thereon, under the agreement contained in the lease. During the term, Barbour & Rexford, a legal firm in Detroit, had acted for the defendant as her general agents in receiving her rent for the premises, and for taking charge of and renting same. On May 1, 1882, the plaintiff tendered the keys of the building to Barbour & Rexford, who refused to receive the same, and Mr. Barbour then and there gave the plaintiff verbal notice that the defendant elected to renew the lease for five years, as provided in the contract; and later in the day, after authority was obtained by telegram from defendant, Barbour & Rexford gave the plaintiff a written notice, signed by defendant, by them, to the same effect.
Mrs. Iioban resided in ~Washington most of her time, and was there w.hen the term expired and the notices were given.
It is admitted that Barbour & Rexford had no other authority to give these notices to the plaintiff, at. the time they were given, than the telegram and the general agency above stated, given in person and contained in letters; and the record does not show that any question was made as to their authority, by the plaintiff at the time. They showed the plaintiff the telegram they had received from Mrs. Iioban on the second day of May, 1882, and the plaintiff admits having received the written notice of defendant’s election that he should remain another five years ; that her attorneys served the notice upon him by leaving it at his house the •evening of the first day of May, and that he received it at ten o’clock in the evening. The plaintiff had never expressed any desire about remaining the second five years, until the first day of May, 1882,when he sought to surrender the premises by delivering the keys of the building to Barbour & Bexford ; and, on their refusal on that occasion to accept the surrender of the keys, plaintiff informed them he should have nothing more to do with the property, refused to renew or accept a renewal of the lease, and, after refusing* to pay the rent when demanded, abandoned the property, leaving eighteen of his sub-tenants occupying different portions of the building, and, without taking any steps to have appraisers appointed until September following, brought this suit.
It is admitted that the defendant had the right of election to renew the lease, and by so doing bind the plaintiff, if done in proper time, which was on or before the last day of the term; and this, no doubt, is the proper construction of the lease upon that subject. Renoud v. Daskam 34 Conn. 512; Thiebaud v. Vevay Bank, 12 Ind. 212.
There was some testimony given in the case tending to show that the building for which the plaintiff claimed payment was not built wholly upon the defendant’s lot, or according to the agreement relating thereto contained in the lease. It further appeared that after the plaintiff had thus left the property and refused to have anything more to do with it, or pay rent, and had given written notice to that effect to defendant, the defendant re-rented the premises to another party upon the same terms as the plaintiff had them.
Upon these facts the circuit judge charged the jury that the plaintiff was entitled to recover, and the only question for them to determine was the amount of damages he was entitled to recover; that the term under the lease ended on the last day of April, 1882, at midnight; and that defendant should have elected on or before the first day of May following. The court also charged that it was the duty of defendant in making the election to tender to the plaintiff for his signature a new lease, embodying the terms of the old one ; and further held that Barbour & Bexford had no authority to renew the lease or make the election ; and that the telegram of defendant to them was insufficient for the purpose; that no lease was tendered, and no sufficient reason given why it was not tendered.
The court further instructed the jury that they should assess the damages of the plaintiff at the cost of the building, not to exceed $5000, less any deterioration from wear and tear or improper construction.
The court also, at the request of counsel for the defendant, submitted thirteen special questions' for the jury toaos wer. The substance of these several questions and answers is as follows: (1) Barbour & Rexford were the geperal attorneys and agents for defendant in the management of her real estate in Detroit, May 1, 1882; (2) plaintiff knew this fact; (3) Barbour & Rexford served the notice to renew, on the plaintiff on May 1, 1882; (4) they also gave plaintiff verbal notice thereof on same day; (5) Barbour & Rexford sent a telegram to defendant oh the first day of May, 1882, with reference to expiration of first term, and received a reply from defendant by telegram same day to renew the lease ; (6) plaintiff saw the telegram to Barbour & Rexford, May 2, 1882; (7) plaintiff positively refused, after receiving all the above notices, to renew the lease, or have anything to do with the premises; (8) plaintiff’s tenants were not out of the premises on May 1, 1882; (9) plaintiff’s tenants were in the premises at the time of the first interview between Barbour & Rexford, on the first of May, 1882, and until the defendant leased the premises; (10) the building reasonably covers the premises where it was to be placed ; (11) a part of the building erected does not stand on the premises leased; (12) the erection of the building has added to the value of the rented premises; (13) the building adds to the value of the rented premises as it is erected.
The jury returned their general verdict for the plaintiff for $4584.80. The defendant’s counsel moved for judgment in her favor upon the findings, which was denied by the court, and thereupon a judgment was duly entered for the amount of the verdict for plaintiff.
The record contains the substance of all the testimony, and the case comes before us on error.
The defendant’s counsel asked the court, in its charge to the jury, to give ten specific requests, (which will be found in the margin, ) each of which was refused by the court; and to the rulings defendant’s counsel severally excepted. I think all these requests, except the fourth and tenth, were proper, state the law applicable to the facts and findings of the jury correctly, and should have been given.
The defendant’s second and third assignments of error were well taken. The court charged, in substance, that the only manner in which defendant could make her election was to tender, on or before May 1, 1882, a new lease, formally made out with full covenants : that there was no evidence whatever of a tender of renewal. The terms for the second live years were all agreed upon, reduced to writing, and signed by the parties, and no change was to be made not stated in the lease. No new written lease was required to avoid the Statute of Frauds. That question was not involved in the case. The writing was already made and signed, and the plaintiff was in possession thereunder, and the only question to be ascertained to bind the plaintiff was, did the defendant desire the plaintiff to remain, and make known that desire to the plaintiff ? There was no agreement contained in the lease how that fact should be ascertained, whether orally or by writing. It might therefore be shown either way, the same as any other fact not required to be in writing. There was therefore no necessity for any formal tender of either lease or any written notice. I think these views find support in the previous decisions of this Court. Delashman v. Berry 20 Mich. 292; Curran v. Rogers 35 Mich. 225; Brand v. Frumweller 32 Mich. 215; Beller v. Robinson 50 Mich. 264.
If a new lease had been required, I do not think it was necessary for defendant to make a tender of it before or at the time defendant made her election ; but it was necessary for defendant to make her election on or before the last day •of the term. This she did. The term did not end until the close of the first day of May, 1882. The defendant’s notices were both given before that time, and plaintiff had announced his intention of abandoning the property, and refused to accept of the same for the second period. It is not entirely olear that if a tender of a new lease should have ■accompanied the notice of election, the plaintiff had not waived the same by what he said and did. It would have been an idle' ceremony for the defendant to have tendered him a new lease to sign after he had said to her he would not sign it, or have anything more to do with the premises. The law never requires useless formalities under such circumstances, unless expressly required by the language of a statute or the agreement of the parties, or when the same is made the basis of some substantial proceeding in the attainment of justice.
The fourth assignment of error, is the exception taken to the court’s charging that the plaintiff was entitled to recover, and the only question for the jury to decide was the amount •of plaintiff’s damages. Under the construction of the lease herein given that charge was, of course, erroneous.
The fifth assignment of error reads as follows: “The court erred in charging the jury that if plaintiff put part of the building on the property of the Wayne County Savings Bank, that would only go to the amount of charges as for faulty construction.” It is unnecessary to consider this assignment, inasmuch as no recovery can be had in this case for the value of the building, under the provisions of the lease, upon the facts as they appear upon this record. Were such tlie case, however, 1 think the request would have been properly refused.
The judgment should be reversed and anew trial granted.
The other Justices concurred.
The notice was as follows:
Detroit, May 1st, 1882.
Theodore 8. Darling, Esq., Detroit, Mich. — Dear Sir: You will please take notice that I have elected and do hereby elect to renew, for a term of five years next ensuing this date, the lease dated January 19,1877, executed by me to Theodore S. Darling & Co., of the property situate at the northwestcornerof Griswold and Congress streets, in said Detroit. Yours, etc.,
Elise A. Hoban, (formerly Mitchell)
By Barbour & Bexford, her attorneys.
(1) The relation of landlord and tenant was created by a lease between the parties, which created certain covenants between them, one of which was that Mrs. Hoban should at her election, at the expiration of the first term, buy the buildings or renew the lease for a second term of five years. The interest of Darling as tenant and of Hoban as landlord did not cease by the mere expiration of the first term, and the contract between them for the second term rested in covenant aforesaid, and required, under the statute of frauds, no new writing or new contract for a lease for the second term. All that was required at the expiration of the first term was that Mrs. Hoban should make an election. The original lease did not provide whether such election should be in writing, and it was unnecessary so to provide to make that covenant for a new lease, upon the declaration of such election, effective. The moment the election was declared by Mrs. Hoban, the contract right, enforceable by either and valid under the statute of frauds, existed for the new term. It was unnecessary for the declaration of election to be made in writing, or that the authority to make it should be in writing. If the jury believe that Barbour & Rexford were the general agents and attorneys of Mrs. Hoban in regard to this property and in the management thereof, and that Darling knew it, their oral declaration of her election<on the first of May, 1882, was sufficient; or if the jury believe that Mrs. Hoban, on the first of May, did declare an election, intending so to do, to renew the lease, it was a sufficient declaration of election.
(2) If the declaration of election was made as above stated, then, under the covenant in the old lease, either party was entitled to demand or receive the execution of a formal lease. But it was unnecessary, on the first of May or for a reasonable time thereafter, for the lease to have been actually executed by Mrs. Hoban for the second term, as the original lease, in providing for an election for a second term, must not be con- , strued as meaning that that election must be declared by the actual execution of a formal lease at the time.
(8) If the jury believe that on May 1st, 1882, and thereafter, Darling informed defendant’s attorneys that he would have nothing to do with the premises, gave them to understand that he would not accept a lease for a second term, then it was unnecessary for them, or for her, to go through the formality of a tender of a lease, which they knew from Darling, his actions and conduct, would not be accepted if made. If the election was made as I have stated, then and forthwith the new term commenced, and the right of Darling to the value of the buildings was discharged.
(4) No subsequent surrender by Darling of the lease, even if it were accepted by Barbour & Rexford, after the new term commenced, could restore him to any right to recover the value of the building, as his surrender in such case must be considered as having been voluntary, and •subject to all the rights of Mrs. Hoban which she would have had, had the full second term 'been carried out by both parties, with the exception that she would have been entitled to recover rent from the time of the acceptance of the surrender.
(5) The abandonment of the premises by Darling and the mere entry thereon, and even the use of them by the defendant, would not operate as a valid surrender of the lease in the second term.
(6) If there was an election to renew on May 1,. 1882, and Darling refused, a renewal, and refused to have anything to do with the premises thereafter, then the fact that thereafter defendant sought and obtained a tenant cannot affect defendant’s position, as before stated, at the refusal of Darling to take or receive a renewal.
(7) That written authority was given to renew the lease with Darling when the telegram was sent.
(8) That the written notice of election by defendant, served on Darling-on the evening of May 1st, was not served until it was received by Darling at 10 p. m. of that day.
(9) The plaintiff must prove that the building erected by him complies with the agreement in the lease, — that it is a complete building, and reasonably occupies the space between the other buildings.on the lot and the Wayne County Savings Bank property, — or he cannot recover.
(10) Under the evidence in this case you must take it as established that the building erected by DarliDg occupies five inches of the Wayne County Savings Bank’s land, in addition to the wall of the bank, and the defendant has no right or title to that wall, or the occupation of said five inches of ground. | [
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Campbell, J.
Appellant, as executor of Frederick Kempf, deceased, contributed from the funds of the estate $175 towards enabling the widow to erect a monument at an expense of $300. The children by a former marriage, who are residuary legatees, opposed this allowance when the executor’s account came up for settlement, and the probate court threw out this item. The circuit court allowed $100, but no more. The executor now appeals to this Court.
We think there can be no question of the propriety of allowing the honest payment by an executor for such a monument as is suitable to the condition of the estate and desired by the widow. A large part of the community look upon such memorials as fit and proper, and they are, •within proper limits, as suitable as funeral expenses, and much more suitable than much of the funeral pomp on which money is freely expended. If a tombstone is put up, there is no reason why it should not be as neat and decent as the estate fairly warrants; and in the present case, being done by the desire of the widow, and not at all beyond the means of the estate, the whole claim should have been allowed.
It must be certified to the circuit court that the item should be allowed in full, and the executor will be allowed his costs of these proceedings.
The other Justices concurred. | [
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Campbell, J.
The bill in this case was filed to compel the establishment of the rights of Mary Warner as devisee of Asahel Warner, deceased, to the ownership of a forty acre lot in Calhoun county, described as the southeast quar ter of the northwest quarter of section 16, in town 2 south, of range 4 west, which is claimed by Beuben O. Sibley and Caroline L. Cameron, his mortgagee, under a State land-office patent issued to Sibley, in 1874, as assignee of a land-■office certificate, numbered 7611, issued to Iiall in 1862.
The ground of the claim is that this certificate was issued in lieu of an earlier one, dated in 1853, issued to William and Nathan Darling, for 120 acres. It is shown that the Darlings assigned this forty-acre tract to James D. Williams in January, 1857, but did not deliver him the certificate because it included the other lands, and in January, 1862, Williams assigned to Asahel Warner. In 1861 the certificate itself was assigned to defendant Hall, who is charged to have known of Warner’s rights. After Warner’s purchase he had the land assessed in his name, and it so continued, and Warner paid the taxes until his death, and his estate has since paid them, except that for 1878 and 1880 Sibley got receipts. In October, 1862, Hall, by using the Darling certificate, was ■enabled to get out certificate, 7611 in his own name in lieu of it. • In the beginning of 1868, Warner seems to have discovered that Hall was meditating mischief, and at once notified the land-office not to issue a patent. On the 15th of February, 1868, Warner was' notified by the Secretary of State that a patent had been applied for, and that unless legal proceedings were at once begun it would have to be. issued. 'This application was made in Hall’s name, to whom a patent was issued, but at once canceled. Warner filed his bill on February 17, 1868, and procured an injunction. A notice of lis pendens was also filed on the same day. On this bill, which was taken as confessed as against Hall, a decree was made in March, 1868, and he subsequently gave a release in due form. But in the meantime it is claimed that, very early in the morning of February 17th, Hall sold and assigned the •certificate to Isaac L. Sibley, a brother of defendant, who paid him on the spot ninety-six dollars, and became a purchaser in good faith without notice some hours before the bill was filed.
In the fall of 1868 it is claimed that Isaac L. Sibley sold this certificate to defendant Beuben Sibley, his brother, in exchange for a small tract of about 19 acres. In 1870 William H. Brown applied for information whether a patent would be issued to defendant, and was informed of a caveat from Warner. Various attempts were made to get out the patent, and finally, in October, 1874, when changes had been made in the land-office, the patent was secured.
In 1879 Mrs. Cameron advanced $250 to defendant Sibley, and took a mortgage on the faith of the patent, and the absence of any subsequent liens.
The court below granted relief against all of the defendants except Hall, as to whom there was a discontinuance as not interested.
There can be no possible doubt of Hall’s fraud in the transaction, and unless Isaac Sibley was a bona fide purchaser without notice, then there can be no difficulty as to Beuben Sibley, who bought no better title than his brother, who had no more than an equitable interest, subject to Warner’s priorities whatever they may have been.
We think it clear from the testimony that the pretended assignment of February 17 was not really made then, but was contrived subsequently to avoid the effect of the notice of lis pendens. Mr. Pray, the notary who took the acknowledgment, swears positively to that effect, and we see no reason for setting aside his deposition, which shows that the arrangement was made considerably later. Looking at the absurdly small consideration, the surroundings of the parties, and their subsequent attempts to get the advantage of Warner at the State offices, we are so strongly impressed with the actual bad faith of Hall and the Sibleys, in getting this title from the State, that we shall not stop to consider questions of constructive notice.
We find, however, no evidence of bad faith in Mrs. Cameron. There can be no doubt that, under a uniform course of decisions, any person having ho reason to question the rights of a patentee may rely upon his title as valid. We do not think that the knowledge which was previously possessed by Mr. Brown, Mrs. Cameron’s counsel, can be imputed to her, as none of it was obtained in doing business for her. Her mortgage must be protected. But complainants, on paying her mortgage, are entitled to be subrogated to her rights against Sibley.
The decree must be affirmed as to all but Mrs. Cameron, and modified so as to protect her rights.
Complainant is entitled to costs against Beuben Sibley. As Mrs. Cameron made a joint appeal, and signed a joint bond with Sibley, we think that as to her no costs should be granted her in this Court or below, but no costs are to go against her in either court.
The other Justices concurred. | [
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Champlin, J.
This is an action of assumpsit, based upon the award of the arbitrators in the matter of the submission between Dougald McArthur and the firm of Robinson & Oliver. The award and the material facts are stated in our opinion in the case of McArthur v. Oliver, ante, p. 299.
The testimony taken on the trial of the action of trover between these parties was by consent treated as the evidence in this case. In addition, the defendant offered to prove that the stipulation made by Tuttle & Holmes, in which they professed to act for both defendants, covered all damages claimed by plaintiff in both suits, and that, therefore, the damage» claimed in this case became and were merged in the judgment in trover, and were satisfied by the imprisonment on execution of defendant Robinson previously to the vacation of that judgment as to defendant Oliver.
The circuit judge held that if the damages arising upon contract were included in the judgment in trover, by stipulation, the defendants could not lawfully be imprisoned on the execution issued upon such judgment; and, further, that the vacation of that judgment upon the motion of the defendant Oliver was a vacation thereof as to both defendants, and therefore such testimony was immaterial. We think the ruling of the circuit judge was correct.
There was no error, and the judgment is affirmed.
The other Justices concurred. | [
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Cooley, C. J.
Action for an aggravated assault. The plaintiff recovered a judgment for five hundred dollars. A number of errors have been ingeniously assigned and argued, the most of them on questions of the admission of evidence, but they generally relate to matters within the discretion of the court and do not require particular notice. A few may be mentioned.
Defendant offered to prove by his neighbors that his reputation was that of a man who would not be likely to commit such an assault as was set up. The court declined to receive the evidence, but allowed him to prove that his reputation was that of a peaceable and law-abiding citizen. No reasonable complaint can be made by defendant to this ruling.
Defendant put a physician on the stand as an expert witness, and on cross-examination plaintiff was permitted to show that the witness was paid twenty-five dollars for his attendance in his character of an expert. This was excepted to but we think was admissible. Nevertheless as there was nothing in it discreditable either to the party or the witness, it would have been very proper for the court, on request, or even without request, to have said so to the jury when giving his general charge.
Complaint is also made that the court allowed the jury to give exemplary damages, though special damages are not claimed in the declaration. The declaration sets out an aggravated assault with circumstances of special injury, including a miscarriage. The estimate of damages must necessarily be very much at large in such a case. The judge told the jury exemplary damages might be given. The phrase is an unfortunate one and liable to mislead, as was pointed out in Stilson v. Gibbs [ante, p. 280], at the last term; but in this case the context shows that the judge was not leaving the jury to give damages at discretion ; but only in view of the willfulness and malice of defendant’s act, the actual damages from which could not be accurately computed. We have no reason to think the jury were misled.
The . judgment will be affirmed.
The other Justices concurred. | [
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Champlin, J.
Albert Samter was engaged in business as a cigar manufacturer and-retail dealer in tobacco, at No. 191 Woodbridge street west, in Detroit. He became indebted to different persons, and, being utterly insolvent, made a sale of his retail stock to his step-brother, who is the plaintiff in this suit. Plaintiff was Samter’s foreman, and knew his standing and circumstances, and knew that he was not on a sound footing. He claimed that Samter was owing him $150 for money which he had let him have from time to time out of his earnings, and the consideration of the purchase was this indebtedness and $100 which he paid him at the time. John Buchler was a creditor of Samter and as such attached the goods claimed to have been purchased by plaintiff as the goods of- Samter, and plaintiff replevied from defendant, who was the officer who held the goods on attachment. After the goods were replevied, and before the trial, Buchler obtained a judgment in his attachment suit. The defendant attacked the sale from Samter to plaintiff as having been made to hinder, delay and defraud the creditors of Samter.
On the trial of the cause the defendant offered in evidence the judgment obtained in the attachment suit, which was objected to as immaterial, and excluded by the court. This was error. How. Stat. §§ 8342, 8351; Frederick v. Circuit Judge 52 Mich. 529. It was material for the purpose of showing the extent of the defendant’s lien, in order that, if the verdict should be in his favor, he might have the amount of his special interest assessed and a judgment rendered therefor. The trial having resulted in a verdict against defendant, this error would not be sufficient to reverse the judgment were it not for other errors which make it necessary to send the case back for a new trial.
The plaintiff produced Albert Samter as a witness to prove the sale from him to the plaintiff, and defendant, on cross-examination, sought to inquire of him concerning his indebtedness to different persons, its kind and amount, and the amount of his stock, and he offered to prove the amount of the witness’ purchase up to and about the time of the trans action with the plaintiff, and the amount of his indebtedness, with a view to getting at the circumstances at that time. The court excluded the testimony offered, for the reason that the counsel for plaintiff had admitted the complete insolvency of the party, and that he owed a large amount which was still due. It was error for the court to cut short the cross-examination of the wdtness in this manner. The witness was the party who, defendant claimed, had committed a fraud on his creditors. He had given testimony that plaintiff urged him to sell to him, because bills were becoming due from creditors, and they might push him, and if they did it would break him up. The defendant was entitled to show by the witness fully his situation, and all the facts and circumstances attending the transaction, and the plaintiff’s connection with it; and the plaintiff could not prevent the defendant from the benefit of sifting the facts from the mouth of the witness by an admission from plaintiff of his insolvency. The manner of the witness on the stand and the circumstances, as narrated by him, might convince the jury either of the truthfulness or falsity of his testimony.
There are other errors in the record, but as they are not likely to arise on a re-trial, they are not noticed here.
The judgment is reversed and a new tidal ordered.
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Holbrook, Jr., P.J.
Following a bench trial, defendant was convicted of attempted assault with intent to commit armed robbery, MCL 750.89; MSA 28.284, MCL 750.92; MSA 28.287. He was subsequently sentenced to a term of five years’ probation. Defendant appeals as of right. We affirm.
Defendant’s conviction stems from an attempt to rob, at gunpoint, Teddy Shaw, who was using an automatic teller machine at a local bank branch. Much to defendant’s chagrin, Mr. Shaw was also armed with a handgun and thwarted the attempted robbery by shooting defendant first. Defendant fled the scene in a car driven by an accomplice and was taken to a nearby hospital. Mr. Shaw provided the police with a description of defendant, his clothing, including an unusual T-shirt he was wearing, and other items.
Detroit police officer Gary Regulski was dispatched to the hospital in response to notification by hospital personnel that they were treating an individual for a gunshot wound. When he arrived at the hospital, he found that defendant was undergoing surgery for treatment of his wound. Hospital personnel proceeded to turn over to Officer Regulski, at his request, a bag containing defendant’s clothing. Officer Regulski admitted he was told to obtain the clothing by someone in the homicide section and that he did not have a search warrant. He further admitted that he could not see the clothing until he physically opened the bag and that defendant never gave him permission to take the clothing.
Before trial, defense counsel moved to suppress evidence of the clothing, arguing that it was obtained pursuant to an unlawful search and seizure. Although defense counsel conceded that there was probable cause to seize the clothing, he argued that the seizure was nevertheless illegal because it was not done pursuant to a warrant and that, under the circumstances, there did not exist an exception to the warrant requirement. The prosecutor argued in response that the clothing could be seized under the plain-view exception. The motion to suppress was denied.
After the ruling, counsel stated that he had planned to assert a defense of misidentification, but that this was no longer viable. Counsel further stated that he would cross-examine regarding the issue to avoid a harmless-error analysis on appeal. During direct examination of Mr. Shaw, it was revealed that he had failed to pick defendant out of a photographic lineup, although he recognized defendant at the preliminary examination and identified defendant at trial. Mr. Shaw stated there was no doubt in his mind that defendant was the person who had attempted to rob him.
Defendant testified on his own behalf, stating he was waiving the right to remain silent and was testifying only because the court had precluded his misidentification defense when it denied his motion to suppress. Defendant testified that Mr. Shaw had made racial slurs against him and that he drew his gun only after seeing Mr. Shaw with a gun in his hand. Defendant claimed that it was he, and not Mr. Shaw, who was the victim of á crime.
The trial judge rejected defendant’s version of the incident and convicted defendant of attempted assault with intent to commit armed robbery, but acquitted him of assault with intent to commit armed robbery and possession of a firearm during the commission of a felony.
The issue presented by defendant in this appeal is one of first impression in Michigan: Whether the search and seizure without a warrant of defendant’s clothing, in the temporary custody of the hospital while he was undergoing surgery, was permissible under the plain-view exception.
The right against unreasonable searches and seizures is guaranteed by both the state and federal constitutions. US Const, Am IV; Const 1963, art 1, § 11. The state constitutional standard is not higher than the federal standard. People v Ragland, 149 Mich App 277, 281; 385 NW2d 772 (1986). The constitutions do not forbid all searches and seizures, only unreasonable ones. Harris v United States, 331 US 145, 150; 67 S Ct 1098; 91 L Ed 1399 (1947). Reasonableness depends upon the facts and circumstances of each case. Cady v Dombrowski, 413 US 433, 440; 93 S Ct 2523; 37 L Ed 2d 706 (1973). The applicable test in determining the reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual’s privacy. Camara v Municipal Court, 387 US 523; 87 S Ct 1727; 18 L Ed 2d 930 (1967).
Generally, a search conducted without a warrant is unreasonable unless there exists both probable cause and exigent circumstances establishing an exception to the warrant requirement. People v Malone, 180 Mich App 347, 355; 447 NW2d 157 (1989); People v Anthony, 120 Mich App 207, 210; 327 NW2d 441 (1982), lv den 417 Mich 897 (1983), cert den 462 US 1111 (1983). Probable cause to search exists when facts and circumstances war rant a reasonably prudent person to believe that a crime has been committed and that the evidence sought will be found in a stated place. Whether probable cause exists depends on the information known to the officers at the time of the search. People v Preston Williams, 160 Mich App 656, 660; 408 NW2d 415 (1987). Among the recognized exceptions to the warrant requirement are exigent circumstance, consent, and plain view. People v Castle, 126 Mich App 203, 208; 337 NW2d 48 (1983).
The exigent-circumstance exception is applicable where the police have probable cause to believe that an immediate search will produce specific evidence of a crime and that an immediate search without a warrant is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of an accused. People v United States Currency, 148 Mich App 326, 330; 383 NW2d 633 (1986).
The consent exception permits searches and seizures when consent is unequivocal and specific, and freely and intelligently given. Malone, supra. Although consent to a search must ordinarily be given by the person affected, a third party may consent to the search when the consenting person has an equal right of possession or control of the premises. People v Bunker, 22 Mich App 396, 402; 177 NW2d 644 (1970). The validity of a consent depends on the totality of the circumstances, People v Brown, 127 Mich App 436, 441; 339 NW2d 38 (1983), and the prosecutor has the burden of proving that the person consenting was authorized to do so and did so freely, People v Wagner, 104 Mich App 169, 176; 304 NW2d 517 (1981). A consent can be valid even if the person is not apprised of his right to refuse consent. Malone, supra, p 356.
The plain-view exception allows the seizure of objects within the plain view of an officer who has a right to be in the position to have that view. Harris v United States, 390 US 234, 236; 88 S Ct 992; 19 L Ed 2d 1067 (1968); People v Tisi, 384 Mich 214, 218; 180 NW2d 801 (1970). Three conditions must be satisfied. First, there must be prior justification for the officer’s intrusion into an otherwise protected area. Coolidge v New Hampshire, 403 US 443, 466; 91 S Ct 2022; 29 L Ed 2d 564 (1971), reh den 404 US 874 (1971); People v Blackburne, 150 Mich App 156, 165; 387 NW2d 850 (1986). Second, the evidence must be obviously incriminatory or contraband. Blackburne, supra. Third, the discovery must be totally inadvertent. Coolidge, supra, p 469.
Generally, if evidence is unconstitutionally seized, it must be excluded from trial. Exclusion of improperly obtained evidence serves as a deterrent to police misconduct and preserves judicial integrity. Terry v Ohio, 392 US 1, 12-13; 88 S Ct 1868; 20 L Ed 2d 889 (1968). The exclusionary rule applies not only to evidence improperly seized during a search without a warrant, but to evidence subsequently seized pursuant to a warrant obtained as a result of an initial illegal search. Evidence in the latter category is excludable only if it would not have been obtained but for illegal government activity. Segura v United States, 468 US 796, 815; 104 S Ct 3380; 82 L Ed 2d 599 (1984). Evidence is not to be excluded if the connection between the illegal police conduct and the discovery, search, and seizure of the evidence is so attenuated as to dissipate the taint, such as when the government learns of evidence from an independent source, id., p 805, or would have inevitably discovered the evidence regardless of the unconstitutional conduct. People v Kroll, 179 Mich App 423, 429; 446 NW2d 317 (1989). Similarly, the exclusionary rule applies only if the evidence was obtained by official impropriety which was directed at the person moving for suppression. People v Malone, 177 Mich App 393, 400; 442 NW2d 658 (1989).
Standing to challenge a search or seizure is not automatic. People v Smith, 420 Mich 1, 20; 360 NW2d 841 (1984). Rather, a person needs a special interest in the area searched or the article seized. The test is whether he had a reasonable expectation of privacy in the object or area of the intrusion. Id., p 21. An expectation of privacy is legitimate if the person had an actual, subjective expectation of privacy and that actual expectation is one that society recognizes as reasonable. Whether the expectation exists, both subjectively and objectively, depends on all the circumstances surrounding the intrusion. People v Perlos, 436 Mich 305, 317; 462 NW2d 310 (1990). There is no expectation of privacy with regard to what a person knowingly exposes to the public, whether or not the thing exposed is examined by artificial means. People v Hulsey, 176 Mich App 566, 569; 440 NW2d 59 (1989). Further, a person can abandon an object and thus deprive himself of standing. People v Mamon, 435 Mich 1, 4; 457 NW2d 623 (1990).
When a defendant moves to suppress evidence as having been illegally obtained, it is the prosecutor’s burden to show that the search and seizure were justified by a recognized exception to the warrant requirement. People v Wade, 157 Mich App 481, 485; 403 NW2d 578 (1987). A trial court’s decision following a suppression hearing will not be reversed unless it is clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1989). A finding is clearly erroneous when the reviewing court is firmly convinced that a mistake has been made. People v Smith, 162 Mich App 534, 539; 413 NW2d 42 (1987).
On the basis of the facts presented in the case before us, it is clear that the plain-view exception to the warrant requirement is not applicable. The clothing was neither obviously incriminating nor contraband. The clothing was not in the police officer’s plain view, and his observation of it was not inadvertent. Therefore, if the seizure is to be constitutional, it must fall within one of the other recognized exceptions to the warrant requirement. We find that it does not fall within any of the recognized exceptions.
While there is no case law in Michigan directly addressing the issue raised in this appeal, there are three cases from other jurisdictions which are particularly instructive. In each, the court concluded that the seizure without a warrant of a hospitalized accused’s clothing from hospital personnel was unconstitutional. The common thread of these decisions was the intent of the accused in relinquishing the clothing and the hospital’s control over it.
In People v Watt, 118 Misc 2d 930; 462 NYS2d 389 (1983), the New York Supreme Court concluded that the defendant had not relinquished an expectation of privacy in the clothing and that the hospital’s taking charge of the clothing while the defendant was undergoing surgery did not give rise to a situation whereby the hospital could consent to a search. "Rather, whether express or implied, the hospital became the bailee of the clothes for defendant in a bailment for mutual benefit or for hire.” Id., p 932. As bailee, the hospital was required to exercise ordinary and reasonable care of the clothing and lacked the authority to allow the clothing to be taken by the police. The court concluded that the accused "had every right to rely on these long-established bailment principles, and he cannot be deemed to have assumed the risk that hospital employees would act in dereliction of their duty and surrender this property without even making basic inquiry of the detectives.” Id.
In Commonwealth v Silo, 480 Pa 15; 389 A2d 62 (1978), cert den 439 US 1132 (1979), reh den 440 US 969 (1979), the Supreme Court of Pennsylvania said that "the narrow issue in the . . . case is whether it can be said that the nurse had mutual use and joint access or control over appellant’s clothing.” Id., p 23. The court concluded that the nurse’s access to and control of the clothing was for the limited purpose of safeguarding these effects, not for the purpose of using them, and rejected the prosecutor’s argument that a nurse had validly consented to the seizure of the clothing. Id.
The Virginia Supreme Court of Appeals, in Morris v Commonwealth, 208 Va 331; 157 SE2d 191 (1967), invalidated the seizure without a warrant of a sedated and sleeping defendant’s clothing provided by hospital personnel. In arriving at this conclusion, the court found that the defendant had not "authorized the nurse to deliver his clothes to the officer, nor is there any evidence that she had control of the defendant’s room or of his clothes and had the right to consent to the taking of these personal effects.” Id., p 334. The court analogized that case to a search without a warrant of a hotel room occupied by an accused which had previously been declared unconstitutional. See United States v Jeffers, 342 US 48; 72 S Ct 93; 96 L Ed 59 (1951).
In only one case has the contrary result been reached. The Washington Supreme Court, in State v Smith, 88 Wash 2d 127; 559 P2d 970 (1977), cert den 434 US 876 (1977), upheld the seizure without a warrant of a hospitalized defendant’s clothing. The majority concluded that hospital personnel had joint control over the defendant’s clothing, which had been removed and left in a common room, and could therefore consent to the seizure of the clothing, id., pp 137-142, and also found the seizure to have been lawful under the warrant exceptions for exigent circumstances and search and seizure incident to a lawful arrest. Id., pp 137-143.
We believe the holdings of Watt, Silo, and Morris, represent the better view of the law. From our review of the record before us, we find no evidence that defendant intended to abandon his clothing and therefore conclude that the hospital possessed the clothing as a bailee. Thus, the hospital personnel enjoyed joint access to and control over the clothing, but their duty was to safeguard the clothing, and they were required to exercise ordinary and reasonable care in performing that duty. The hospital personnel did not enjoy mutual use of the clothing; had they had mutual use, they would have been entitled to consent to the seizure without a warrant. Furthermore, the facts do not suggest that the clothing might have been lost or destroyed before a warrant could have been obtained by the police. The defendant was in surgery when the seizure occurred and remained hospitalized for several weeks thereafter.
We therefore hold that the trial court clearly erred in denying defendant’s motion to suppress evidence of the seized clothing. In so holding, we reject the prosecutor’s argument that the hospital’s statutory duty, pursuant to MCL 750.411; MSA 28.643, to report to the police patients being treated for gunshot wounds includes a duty to turn over all the patient’s possessions to the police. Such a reading of the statute would violate the basic rules of statutory construction.
Having concluded that the evidence should have been suppressed, the question becomes whether its admission was harmless error. We conclude that it was.
A two-tiered analysis is used in determining whether an error concerning the erroneous admission of evidence is harmless. First, it must be determined whether the error is so offensive to the maintenance of a sound judicial system that it can never be regarded as harmless and, second, whether the error was harmless beyond a reasonable doubt so that not even one juror, or, in the event of a bench trial, the judge, would have voted to acquit the defendant but for the error. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). The first criterion is intended to deter prosecutorial and police misconduct, while the second is intended to safeguard the decisional process. People v Furman, 158 Mich App 302, 317; 404 NW2d 246 (1987). An error may be intolerably offensive to the maintenance of a sound judicial system if it was deliberately injected into the proceedings by the prosecution, if it deprived the defendant of a fundamental element of the adversarial process, or if it is of a particularly inflammatory or persuasive kind. Id., p 318.
Upon review of the record, we believe that, even if the evidence had been excluded, it is unlikely defendant would have been acquitted in light of the victim’s positive and independent identification of defendant, which was based on his physical appearance and not on the clothing he was wearing at the time of the assault. We also believe that defendant’s misidentification defense had little chance of success when he was hospitalized for several weeks recuperating from a gunshot wound. He was positively identified by Mr. Shaw and had the bullet wound to prove it. Moreover, it cannot be said that the error was deliberately injected into the trial by the prosecutor, but rather occurred as a result of the court’s pretrial ruling that the evidence was admissible. Considering that there was no Michigan case law on point and that only four other states had addressed the issue, it can hardly be said that the error was knowing or purposeful.
In summary, we find that the seizure without a warrant of defendant’s clothing was unconstitutional because it did not fall within any recognized exception to the warrant requirement. The admission of that evidence, however, was harmless beyond a reasonable doubt. We affirm defendant’s conviction.
Affirmed.
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ON REMAND
Before: Danhof, C.J., and Cynar and Sawyer, JJ.
Per Curiam.
Following a bench trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and was sentenced to a term of ten to fifteen years’ imprisonment. On appeal, we affirmed. People v Garrison, 166 Mich App 557; 420 NW2d 851 (1988). However, by order of our Supreme Court, that judgment has been vacated, and this case has been remanded to us for reconsideration in light of People v Beckley, 434 Mich 691; 456 NW2d 391 (1990) (companion case of People v Badour) with regard to whether expert witness testimony impermissibly vouched for the credibility of the child victim. 436 Mich 865 (1990). After reconsideration, we find that we must reverse.
In Beckley, supra, a plurality decision, a majority of the Supreme Court agreed that, in a case involving sexual abuse of a child, an expert witness may testify that the behavior of the victim is consistent with that of child sexual abuse victims generally, However, the expert may not testify with regard to whether the victim’s allegations are truthful or whether sexual abuse in fact occurred.
In this case, the testimony of the prosecution’s expert, Mari Gilbert, unfortunately went beyond relating the victim’s use of anatomically correct dolls with her experience with other child victims of sexual abuse. Her testimony pointedly suggested that the victim had in fact been sexually abused. We find the following testimony to be pertinent to our holding on this issue:
Q. [Prosecutor] Is the removal of the clothing from the doll by the child consistent with something that has happened to them?
A. [Ms. Gilbert] Yes, sir.
Q. Is the action that [the child victim] made in this case where she took the male child and placed the penis against the mouth of the girl child and move the male child up and down significant to you?
A. Yes, sir, it is.
Q. Why is that significant.
A. It demonstrates what, and also, you know, it corroborates what [the child victim] was stating. It demonstrates what had occurred to her.
Q. Miss Gilbert, based upon your experience, was [the child victim’s] reaction to the dolls significant in this case?
A. Yes, sir.
Q. What was significant to you based upon your experience?
A. Based on my experience, her reaction to the dolls demonstrated that she had indeed been sexually abused. [Emphasis added.]
Consequently, pursuant to Beckley, supra, defendant’s conviction is reversed, and this case is remanded for a new trial. We do not retain jurisdiction. | [
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Per Curiam.
Defendant was charged with one count of first-degree murder, MCL 750.316; MSA 28.548, two counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was tried and convicted by a jury in Detroit Recorder’s Court of the lesser included offense of second-degree murder, MCL 750.317; MSA 28.549, one count of assault with intent to commit murder, and felony-firearm. Defendant was sentenced to life imprisonment for the second-degree murder conviction, fifty to seventy-five years for the assault conviction, and a mandatory two years for the felony-firearm conviction. Defendant’s application for a delayed appeal was granted by this Court on July 19, 1989. Defendant argues that prosecutorial misconduct and errors in the jury instructions denied him a fair trial. We disagree, and affirm defendant’s convictions. Defendant also argues that he is entitled to resentencing. We agree, and remand for articulation and resentencing.
The prosecutor charged that, shortly before 2:00 p.m. on April 25, 1988, defendant shot and killed Marcelle Hickman and shot and wounded Michael Sanders and William Price. The prosecutor’s the ory was that defendant was protecting his drug territory. Defendant’s theory was self-defense.
Complainant Sanders testified that approximately a week before the shooting, he was threatened by defendant, who displayed an automatic pistol and said, "If you come over this way, you know what I got in store for you.” On April 25, 1988, Sanders and Hickman delivered drugs to a house rented by Sanders at Lothrup and Wildemere. Both men were armed with 9-mm. rifles. After making the delivery, they walked back to Sanders’ car, which was parked at Dexter and Northwestern. As they approached Sanders’ car, a car turned the corner and came to a stop. Defendant, who was hanging out of the car window, fired an automatic rifle at Sanders and Hickman. Hickman was fatally shot. Sanders, who was shot in the leg and back, sought cover behind the steps of a house. Sanders tried to put a clip in his gun, but when he was unable to do so, he threw it into nearby bushes.
Complainant Price testified that on April 25, 1988, he was visiting his parents. He heard gunshots, looked out the door, and saw defendant in a car, firing a gun. After the car drove away, Price went outside and walked toward where the gunshots were fired. He saw Sanders and Hickman lying on the ground. He saw that Sanders was alive, grabbed Sanders’ gun, and took the clip out. At the same time, he heard a noise. When Price looked up, he saw defendant pointing a gun at him. Price asked defendant not to shoot, and put his hands up. He heard a loud bang, felt his leg burn, and started running across the street. Price was hit by another shot and fell to the ground.
Charles Gary, Jr., a defense witness, testified that on April 25, 1988, he took defendant to the store to buy oil for defendant’s car. Defendant poured the oil in his car and complained about a noise in the car. They got in to drive around the block to see if they could determine the source of the noise. Two men suddenly appeared at the side of the car. One man had an Uzi. Defendant sped off and dropped Gary off two blocks away. Gary walked home and heard shots as he arrived at his house.
The jury found defendant guilty of second-degree murder in the death of Hickman, guilty of assault with intent to murder Price, not guilty of assault with intent to murder Sanders, and guilty of felony-firearm.
On appeal, defendant argues that prosecutorial misconduct denied him a fair trial.
Questions involving prosecutorial misconduct are decided case by case, and this Court must evaluate each question within the context of the particular facts of the case. People v Burnett, 166 Mich App 741, 754; 421 NW2d 278 (1988). The propriety of a prosecutor’s remarks depends on all the facts of the case, and the remarks must be read as a whole. Also, the prosecutor’s remarks must be evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial. People v Simon, 174 Mich App 649, 655; 436 NW2d 695 (1989).
A prosecutor is free to relate the facts adduced at trial to the prosecution’s theory of the case and to argue the evidence and all reasonable inferences arising from it to the jury. People v Sharbnow, 174 Mich App 94, 100; 435 NW2d 772 (1989), quoting People v Jansson, 116 Mich App 674, 693; 323 NW2d 508 (1982). The prosecutor need not state the inferences in the blandest possible terms. People v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989).
Defendant claims that the prosecutor’s asser tions in the opening statement that defendant was a drug dealer and that defendant’s motive for the shooting was to eliminate the competition were not supported by the evidence. Defendant moved for a mistrial, objecting to the comments on the ground that defendant had not been charged with any drug crimes. Defendant’s motion was denied. A later objection by defendant was overruled. Opening argument is the appropriate time to state the facts to be proven at trial. People v Robbins, 132 Mich App 616, 620; 347 NW2d 765 (1984). When a prosecutor states that evidence will be submitted to the jury, which subsequently is not presented, reversal is not warranted if the prosecutor acted in good faith. People v Solak, 146 Mich App 659, 676; 382 NW2d 495 (1985); People v Pennington, 113 Mich App 688, 694; 318 NW2d 542 (1982).
There was no direct evidence that defendant was involved in the drug business. Nevertheless, in our review of the record, we find no evidence of bad faith on the part of the prosecutor and conclude that the prosecutor’s opening remarks did not deny defendant a fair trial.
Defendant also claims that statements by the prosecutor during closing argument concerning defense counsel’s efforts to provide the best possible defense were improper because they suggested that the defense of self-defense was disingenuous and contrived. We disagree. The remarks complained of were addressed to defendant’s claim of self-defense. The prosecutor did not state that defense counsel was trying to mislead the jury. The prosecutor’s remarks did not shift the focus from the evidence or deny defendant a fair trial.
Defendant next claims that statements by the prosecutor during rebuttal were improper because they suggested that defendant had a history of and was predisposed toward violence. The prosecutor recited an Aesop fable, then stated:
Now, like any story, this Aesop fable has a moral, and the moral of this story is that if you are wise, you will not be deceived by those who have been violent in the past.
Ladies and gentlemen, you as jurors are wise in this case. You, individually and collectively, will not be deceived by this man and this claim of self-defense.
This man, what do we know about this man? This man yesterday morning showed you his behavior, his attitude by his demonstration.
The record does not reflect the occurrence of any incident in the courtroom on the previous day and the prosecutor did not further explain the remark. Defense counsel did not object to the prosecutor’s remark. Therefore, review is precluded unless the prejudicial effect was so great that it could not have been cured by an appropriate instruction and failure to consider the issue would result in a miscarriage of justice. People v Foster, 175 Mich App 311, 317; 437 NW2d 395 (1989). We find no prejudice that could not have been cured by a cautionary instruction. Failure to review this claim of error will not result in manifest injustice.
Defendant’s next claim on appeal is that the trial court improperly instructed the jury. Defendant first contends that the trial court erred in failing to instruct the jury that "a reason for commission of a crime without more is insufficient as a matter of law to establish that a person is guilty of a crime.” Essentially, defendant is arguing that the trial court erred in failing to recite the bracketed language of CJI 4:8:01.
Defense counsel did not object to the deletion of the bracketed language or request that the lan guage be given. Failure to object to jury instructions waives appellate review absent manifest injustice. People v Curry, 175 Mich App 33, 39; 437 NW2d 310 (1989). Manifest injustice occurs where the erroneous or omitted instructions pertain to a basic and controlling issue in the case. People v Chatfield, 170 Mich App 831, 835; 428 NW2d 788 (1988). Manifest injustice will not result here. The Use Note to CJI 4:8:01 recommends that the bracketed language be given where evidence of motive has been introduced. As argued by defendant, no evidence concerning the alleged motive was introduced.
Defendant also contends that the trial court erred in charging the jury that "motive alone, without evidence of premeditation and deliberation is sufficient to establish murder in the first degree.” There was no objection to this instruction. After defendant’s brief on appeal was filed, the transcript was amended to read, "motive alone without evidence of premeditation and deliberation is insufficient to establish murder in the first degree.” Hence, defendant’s argument is without merit.
Defendant next contends that the trial court erred in giving an instruction which permitted the jury to return a less than unanimous decision on a theory of guilt. The trial court instructed the jury as follows:
Now, the law requires that each and every one of you find that each of the following elements are proven beyond a reasonable doubt before you may return a verdict of guilty of murder in the second degree. You will note, however, for the purpose of second degree murder that the law states that any one of the three states of mind held by the defendant at the time of the alleged act, that he may have acted with the intent to kill or do great bodily harm with the intent to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm will be the probable result.
As long as each of you believes that the defendant acted with one of those states of mind at the time of the alleged shooting, the killing, and as long as each of the elements of the crime of murder in the second degree are proven beyond a reasonable doubt, the People then have sustained their burden in this case. It is not necessary that all of you unanimously agree on which of these three alternative states of mind was held by the defendant. It is only necessary that all of you agree that he possessed one of those states of mind. For instance, if you believe that he acted with the intent to kill while others feel that he acted with the intent to do great bodily harm, although you may disagree which state of mind was held by the defendant, as long as you all agree beyond a reasonable doubt that he acted with one of these states of mind which I mentioned, then that element of the crime of murder in the second degree has been proven.
Defense counsel did not object to the instruction at trial. On appeal, defendant contends that the instruction allowed the jury to convict him of second-degree murder without a unanimous verdict. We disagree.
Case law provides that the mental state of malice necessary to support a conviction for second-degree murder is established by proof that the defendant acted with an intent to kill or an intent to inflict great bodily harm or wanton and wilful disregard of the likelihood that the natural tendency of his behavior would cause death or great bodily harm. People v Hopson, 178 Mich App 406, 410; 444 NW2d 167 (1989). The alternate theories of a defendant’s state of mind relate to a single element of a single offense. When a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory. State v Whitney, 108 Wash 2d 506, 510-511; 739 P2d 1150 (1987).
The trial court instructed the jury that the verdict must be unanimous. The jury returned a unanimous verdict, finding defendant guilty of second-degree murder. We reject defendant’s argument that his right to a unanimous verdict was violated.
Defendant’s next claim on appeal is that the trial court failed to articulate reasons for the sentence imposed and for departure from the sentencing guidelines recommendation and that the sentence of fifty to seventy-five years for the conviction of assault with intent to murder exceeds his life expectancy and violates the principle of proportionality.
A sentencing court must articulate on the record its reasons for the sentence imposed. People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987); People v Coles, 417 Mich 523, 549; 339 NW2d 440 (1983). Where a sentencing court departs from the guidelines range, it must articulate its reasons both on the record at sentencing and on the sentencing information report. Fleming, supra. In the instant case, the guidelines, which were prepared for conviction of second-degree murder, recommended a sentence of ten to twenty-five years. We have reviewed the sentencing transcript and agree with defendant that the trial court failed to articulate reasons for the sentence imposed or the departure from the guidelines. It is noted that defendant has not challenged the life sentence imposed for the conviction of second-degree murder on the ground that it is an abuse of discretion. We, there fore, remand for articulation of the reasons for the sentence imposed for the conviction of second-degree murder. People v Triplett, 432 Mich 568; 442 NW2d 622 (1989).
Defendant’s argument that the fifty- to seventy-five-year sentence for the conviction of assault with intent to murder exceeds his life expectancy is without merit. Defendant was thirty-one years old at the time of sentencing. We conclude that it is reasonably possible for defendant to serve his minimum sentence. People v Moore, 432 Mich 311; 439 NW2d 684 (1989); People v Rushlow, 179 Mich App 172, 179-181; 445 NW2d 222 (1989).
Defendant’s final argument is that the fifty- to seventy-five-year sentence for the conviction of assault with intent to murder is excessive because it exceeds the guidelines recommendation. We note that the guidelines were calculated for conviction of second-degree murder, not conviction of assault with intent to murder. Review of this case is controlled by the new proportionality standard announced in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). In Milbourn, the Michigan Supreme Court abandoned the shock-the-conscience test of Coles, supra, and held that a sentence must be proportionate to the seriousness of the circumstances surrounding the offense and to the offender. While not requiring adherence to the sentencing guidelines, the Court noted that the second edition of the guidelines provides "the best 'barometer’ of where on the continuum from the least to the most threatening circumstances a given case falls.” Id., p 656. The highest term of years recommended under the second edition of the guidelines for assault with intent to murder is fifteen to twenty-five years. Defendant was sentenced to a term of fifty to seventy-five years. Because defendant’s minimum sentence is twice the highest minimum term of years possible and because the trial court did not articulate reasons for the sentence imposed, we vacate defendant’s sentence for the conviction of assault with intent to murder and remand for resentencing in accordance with the principle of proportionality announced in Milbourn.
Affirmed, but remanded for articulation of reasons for the sentence imposed for the conviction of second-degree murder and for resentencing for the conviction of assault with intent to murder. We do not retain jurisdiction. | [
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Stone, J.
The plaintiffs by their bill of complaint herein seek to enjoin the erection by defendant of an apartment building on the north side of West Grand boulevard, between Lawton and Linwood avenues, in the city of Detroit. The case is here upon the appeal of plaintiffs, the court below having dismissed the bill of complaint. Counsel for plaintiffs and appellants has failed to comply with Rule No. 40 of this court, in that the, brief does not contain a concise statement of the facts of the case distinct from argument and of the errors upon which plaintiffs rely, the questions involved and the manner in which they are raised. We have felt at liberty, therefore, to look into the brief of the defendant and appellee for such statement. The plaintiffs) own property on the north side of the boulevard named, between Lawton upon the west and Linwood upon the east, length of block being about 860 feet. In the deeds of plaintiffs’ property, as well as in the deed of the defendant, are the following building restrictions:
“It is a condition and restriction of this conveyance, accepted by the parties of the .second part, and to bind all future owners, that.no building shall be erected on said premises except for residence purposes only, which shall be at least two stories in height and shall cost at least $2,500, and set at least fifty (50) feet back from the front lot line.”
Defendant’s land is 70 feet wide andv 204.75 feet in depth. In the rear of this property there is a 20-foot alley. The boulevard in front of the property is 150 feet wide. In this block, between Linwood and Law-ton avenues, the evidence shows that there is only one building that does not violate the restrictions and extend into the 50-foot restricted area. Two of them have inclosed porches. Starting at Linwood upon the east, the first house, including the steps, extends into the restricted area 12 feet 6 inches; without the steps it extends into the restricted area 8 feet. The next contemplated house is the apartment house of the defendant. According to the plans and specifications it extends into the restricted area 8 feet 6 inches. The next is the property of the plaintiffs Teagan, the porch of which extends into the restricted area 9 feet 4 inches, and the steps 4 feet 6 inches more. The next extends into the restricted area 8 feet. The next extends into the restricted area 8 feet 5 inches, and the steps 4 feet 10 inches. The next extends into the restricted area 8 feet without the steps. The next extends into the restricted area 8 feet 10 inches, according to the testimony. The next does not extend into the restricted area. The next is an 8-apartment, 3-story building extending into the restricted area 9 feet 3 inches; the basement porch is built in all around and inclosed. The next extends into the restricted area 8 or 9 feet. The next is the Alsace-Lorraine apartment, a 33-apartment building, which has four porches and extends into the 50-foot building line 9 feet; the porches are inclosed porches built around windows the same as in the defendant’s proposed building. The last-named building was built since the plaintiff moved into the locality. In fact, the building of it was started the winter before the commencement of this suit.
The defendant’s building is a 41-apartment, 4-story building, on his lot which adjoins that of the plaintiff Teagan on the east. The building covers the entire width of the lot and extends back to within two feet of the alley, and in front is set back 50 feet from the front line of the lot, with the exception of the porches, which extend 8 feet 6 inches hearer the front lot line. Defendant’s proposed building has no windows on either the east or west sides, which are the side walls of the building. It receives its light there from three courts or basins extending into the building proper. It has no windows for its legal light in the rear, receiving the light there from courts the same as on the side. The plans of defendant’s building were submitted to the board of health of Detroit and to the department of safety engineering and buildings. The plans were approved by the board of health and by the building department of the city of Detroit.
At the time the bill of complaint was filed herein the defendant had commenced the erection of the building and the excavating had been done. The front basement walls were in and also' the side walls, and nearly all the contracts for the remainder of the construction had been let. The plaintiffs filed their bill of complaint seeking to restrain the erection of the building on three grounds:
(1) That the proposed building was a violation of the restrictive covenants contained in the deed.
(2) That the building as planned did not conform •with the housing code of the State, and the building ordinances of the city of Detroit.
(3) That the inclosed porches violated the restrictive covenant of the deeds in reference to building nearer than 50 feet from the front lot line.
The case was heard below upon the pleadings, and proofs taken in open court, and, as we have said, the plaintiffs’ bill of complaint was dismissed. The learned circuit judge who heard the case below viewed the premises. The court below, after hearing the testimony in the case and the arguments of counsel, found:
(а) That the defendant was not violating the building restrictions.
(б) That the defendant was conforming to the building laws of the State of Michigan and of the city of Detroit.
(c) That all the residents of the subdivision, in- eluding the plaintiffs, had in erecting the buildings upon their lots violated the restrictions to erect the buildings at least 50 feet back from the front line of the lot; that the plaintiffs had, without protest,,permitted other owners in said, subdivision to erect on their lots buildings which were not set back at least 50 feet from the front line of the lots, and which buildings were constructed in the same manner as that pro-, posed by the defendant; and that the building of the defendant sits back 50 feet from the front lot line, and that only the porches extend beyond, and that this is in accordance with the construction placed upon the building restrictions by the residents of the subdivision.
(1) The first contention of the plaintiffs is that the restrictive covenant in the deed forbids the erection of an apartment house. Counsel has cited the following cases, all of which we have examined: Hammond v. Hibbler, 168 Mich. 66; Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Moore v. Curry, 176 Mich. 456; Misch v. Lehman, 178 Mich. 225; Stewart v. Stark, 181 Mich. 408; Casterton v. Plotkin, 188 Mich. 333; Sherrard v. Murphy, 193 Mich. 352; Davison v. Taylor, 196 Mich. 605; Andre v. Donovan, 198 Mich. 256; Hartwig v. Grace Hospital, 198 Mich. 725; Rosenzweig v. Rose, 201 Mich. 681; Baxter v. Ogooshevitz, 205 Mich. 249.
In our opinion many of these cases are not at all decisive of the questions that we are here considering. We think, however, that the case of Casterton v. Plotkin, supra, has an important bearing upon the instant case. There, as here, the restriction was that the lot should be used for “residence purposes only.” The first two head-notes of that opinion are as follows:
“A conveyance of a city lot with the restriction that it should be used for residence purposes only, * * * did not exclude the erection of an apartment house; and no further or different limitations to those expressed in the deed might be implied.
“Such restrictions are construed strictly against the grantor and those claiming to enforce them, all doubts being resolved in favor of the free use of the property.”
In'reversing the decree in that case and dismissing the bill of complaint this court said:
_ “Complainants have failed to establish a proposed violation by defendant of any of the restrictive covenants in his chain of title, or to clearly show that subsequent events'have by legal implication imposed additions to such original restrictions. Courts of equity do not aid one man to restrict another in the use to which he may put his property unless the right to such aid is clear.”
It will be noted that in Rosenzweig v. Rose, supra, the restriction was “the said party of the second part further agrees that he will not occupy said premises except for a dwelling house.” This court held that the words “dwelling house” meant a single dwelling.
In addition to Schadt v. Brill, supra, we may add the cases of Harris v. Roraback, 137 Mich. 292, and Bagnall v. Young, 151 Mich. 69. All that need be said in addition to this reference is that there is a clear distinction between a restriction, that property shall be used for “residence purposes only” and one where the restriction is confined to a “dwelling house.” We think this question is controlled by Casterton v. Plotkin, supra, and that under the restriction defendant had a right to build a 41-apartment building upon the premises in question.
It is next contended by plaintiffs that the proposed building violates the housing code of the State of Michigan and the building ordinances of the city of Detroit. We think this question is controlled by the statute. By Act No. 326, Public Acts-1919, it is provided in section 1 of article 1 that:
“This act shall be known as the housing law of Michigan and shall apply to every city and organized village in the State which, by the last regular or spe cial federal census, had a population of ten thousand or more, and to every such city or village as its population shall reach ten thousand thereafter.” * * *
The evidence shows that the lot in question is an interior lot. By section 12, article 2, title 1, of the act referred to, it is provided:
“Immediately behind every dwelling hereafter erected there shall be, except as hereinafter provided, a rear yard extending across the entire width of the lot. * * * In the case of an interior lot the rear yard space shall in no case be less than sixteen feet deep for a one-story dwelling, eighteen feet for a two-story dwelling, twenty feet for a three-story dwelling, twenty-four feet for a four-story dwelling, and shall be increased in depth by four feet for each additional story of the dwelling above four stories, except that in case there is a public alley in the rear of said lot upon which the lot abuts for its full width, the measurement for yard space may be made up to the center of such alley. * * * The above requirements for rear yards, however, may be decreased by one-half provided that there is no room of the dwelling which receives its legal light from such rear yard.”
We think it may be stated from the evidence in the case that this building receives no legal light from the rear yard, so that the requirements of said section for a rear yard of 24 feet may be reduced to 12 feet, and it seems it was so reduced when the board of health and department of buildings issued the permit, there being a 20-foot alley in the rear. Under the statute the rear yard is measured to the center of the alley. The building proper is erected 2 feet off the alley line, and measured to the center of the alley the rear yard space is 12 feet, and is in strict compliance with the requirements of the statute, which we think is controlling here.
It clearly appears that the defendant’s proposed building has no windows at all on the side lot lines, but the light is received from courts. The construe tion seems to be in compliance with, section 13 of the statute already referred to, following section 12 above quoted from. It reads as. follows:
“Dwellings hereafter erected may be built up to the side lot line, if the side wall is without windows.” * * *
It is further urged by plaintiffs that the defendant has violated the restrictive covenants in the deed by building inclosed porches closer to the front lot line than 50 feet. It is admitted that the porches do extend 8 feet 6 inches into this restricted area. In the entire block between Lawton and Linwood, according to the testimony of one of the plaintiffs, as we have already said, there is just one'house that does not extend into the 50-foot restricted area. Plaintiffs’ buildings extended within that restricted area. Two of the houses, including the large one, the Alsace-Lor-' raine, have closed porches in the same manner as the defendant. Under the evidence it seems that plaintiffs sat by and said nothing against the erection of these buildings. The Alsace-Lorraine apartment with its inclosed porches was not finished when this case was begun, yet there seems to have been no complaint made in regard to it.
The learned trial judge filed a written opinion in the case to which we refer, and from which we quote as follows:
“I am of the opinion that the erection of this apartment house with inclosed porches does not violate the restrictive covenant in the deed any more than have the plaintiffs in this case, and any more than have all the other residences of this subdivision, with the exception of one who stayed outside of the 50-foot limit. As has been heretofore pointed out, all of the residents, including the plaintiffs in this case, have gone beyond the 50-foot limit, and in my judgment are not in position to now claim, having acquiesced in the erection of other buildings in this same subdivision in the same block, and having violated that restrictive covenant themselves, to now claim that the defendant in this case has no right to do so.”
The mere glassing in of the porches of the plaintiffs and other parties would put their buildings in the same position as the defendant’s. We have examined the record with much care, as well as the briefs of counsel, and while we have not discussed all of the points urged by plaintiffs’ counsel in his brief, we have considered what we think are the important and controlling questions in the case, and are of the opinion that the case was properly disposed of by the court below.
The decree of the circuit court is affirmed, with costs to the defendant.
Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred. | [
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Moore, C. J.
This cause was commenced in justice’s court where defendant had judgment. Plaintiffs appealed. Judgment was again in favor of the defendant. The case is brought here by writ of error. The plaintiffs are retail grocers. The defendant was superintendent of a manufacturing plant employing upwards of a hundred men. The wife of the defendant bought most of the groceries used in the household from the plaintiffs. The accounts of each customer were kept in a small book. The defendant furnished his wife money with which to pay the grocery account; she did not always use it that way. September 8, 1916, she and the plaintiffs signed a note for $100 which was discounted at a local bank and the grocery account was then regarded as settled. A payment of $25 was made on this note, and it was renewed for $75 on March 8, 1917. Ten dollars was paid on this note, leaving $65 unpaid.
On April 22,1918, the grocery bill, including the $65 unpaid on the note in the bank, amounted to $165. On that date a note for $165 was made by Mrs. Pickel and the plaintiffs, payable to the order of the Citizens’ State Bank, due October 22,1918. Mr. John E. Burge testified “that note was given to satisfy the account of Mr. Pickel.” The bookkeeper, who was also a member of the firm, testified, “It was in settlement of that account that Mrs. Pickel gave that note.” On the cross-examination she said:
“At the time Burge & Burge either got credit for the $165 or the money. But of course we had to pay it afterwards. Either the bank credited Burge & Burge’s account $165, or else Mrs. Pickel paid it to Burge & Burge, one way or the other.”
The note was taken to the Citizens’ State Bank and the cashier’s testimony as to what happened is in part as follows:
“The amount of the note of April 22d, 1918, was $165. The note, dated September 21st, 1917, was signed by W. C. Burge, by Mrs. Mary Pickel and W. C. Burge. The note of April 22d, 1918, was signed by Mrs. Mary Pickel and Burge & Burge. Exhibit A is the note signed under date of April 22d, 1918, by Mrs. John Pickel and Burge & Burge, for $165. The last note was paid by Burge & Burge on December 23, 1918; $65 of the amount of Exhibit A was used to pay the preceding note; $100 was paid in currency to Mrs. Pickel. I handled the transaction myself.”
The plaintiffs were unable to remember whether Mrs. Pickel brought them the $65 note and the money or whether the note was surrendered to them by the bank, and their bank account credited with the $100.
The defendant had no knowledge of the giving of these notes until the summons in this case was served upon him. Differences arose between Mr. and Mrs. Pickel and they permanently separated from each other in July, 1918. At that time Mr. Pickel and his wife drove in an automobile to the store of the plaintiffs for the purpose of settling the grocery account up to that date. Mr. Pickel furnished his wife with, money and she entered the store and returned to him soon thereafter with a statement of account showing there was due plaintiffs $98.32, and the statement was marked paid July 15, 1918. From that time until this suit was brought no claim was made to the defendant personally that he was indebted to the plaintiffs in any sum. The note was not paid when it became due. On December 14th, thereafter, this suit was begun to recover the amount due for the groceries as though the note had not been given. At this time the note was owned by and in the possession of the bank. Plaintiffs paid the bank the amount of the note on December 23d, and it was delivered to them, and there is nothing in this record to show that they are not now in the possession of it.
At the close of all the testimony both parties asked for a directed verdict. The trial judge declined to do this and charged the jury at very considerable length reciting the facts as claimed by the parties, and mentioning that the payee named in the note was the bank and that the "note was not sued upon and that Mrs. Pickel was not before the court. He told the jury in substance that the note was not void but voidable at the option of Mrs. Pickel, and that if they found it was given and received for the purpose of paying the grocery bill they might find a verdict in favor of the defendant. This the jury did.
There are many assignments of error, but the appellants say in the concluding part of their brief:
“In closing we have little to add. The issue is disposed of by the first assignment of error and the discussion in relation thereto, together with the cases cited. We did not deem it prudent to overlook the other assignments, but after all it seems that a discussion of each assignment thereafter is but a reiteration of that which has already been said in this brief.”
The decisive question is raised by the first assignment. We again quote from the brief:
“Exhibit A is a note signed by Mrs. John Pickel, the defendant’s wife, and the plaintiffs in the action and negotiated at the Citizens’ State Bank of South Haven. This note was given to pay the defendant husband’s debt. No dispute arises of record concerning the purpose of the wife in giving the note in question. The record concedes that it was given to pay the defendant’s then existing grocery bill of $165.
“If this note was a valid and subsisting obligation against the wife and enforceable against her, it was admissible and no error was committed by admitting it. On the other hand, if it was void it was inadmissible. It was void.”
Counsel cite many Michigan cases, commencing with DeVries v. Conklin, 22 Mich. 259, and ending with Detroit Chamber of Commerce v. Goodman, 110 Mich. 503, 504 (35 L. R. A. 96). They also cite Chaffee v. Thomas, 7 Cow. (N. Y.) 358.
The trouble with this contention is that it ignores the fact that the payee in the note was not the plaintiff firm, but was the bank who discounted it soon after it was made and long before it was due, and if the testimony of the cashier of the bank is believed, and his testimony is not disputed by any witness, the bank surrendered for this note a note upon which there was unpaid the sum of $65, which was signed not only by Mrs. Pickel but by John E. Burge, and gave to Mrs. Pickel $100 in money.
Under all the authorities, in view of the testimony disclosed by this record, the note can not be said to be void, as a matter of law. See DeVries v. Conklin, supra; Emery v. Lord, 26 Mich. 431; In re De-Spelder’s Estate, 181 Mich, at p. 160, and authorities there cited.
Judgment is affirmed, with costs.
Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Steere, J.
John Smith, above named, suffered injuries in an industrial accident on February 16, 1915, while employed in defendant I. Stephenson Company’s lumber camp north of Escanaba helping to load logs. He had been working at that camp 45 days, for about 7 days on roads and the rest of the time helping at log loading. He was a native of Finland, over 30 years of age, unmarried, and had been in the United States several years. His wages were $16 per month and his board. The highest pay he testified to ever having received before his injury was $30 per month and board. His account of the accident is: “I was walking up to hand a chain and the logs were rolling from the skidway and I got caught.” Though no bones were broken he proved to be badly hurt and was taken on that day tó St. Francis Hospital at Escanaba for medical care and attention.
■ Dr. Kitchen, who was called to attend plaintiff, testified he found him seriously injured internally, his condition at first being so low as to preclude operating for a time, but he rallied from the shock about the second day and obstruction of the bowels being manifest the doctor operated, finding the intestines seriously ruptured and peritonitis. The conditions found rendered necessary that an opening in his side should be maintained for a time with a tube inserted for discharge and drainage, which was kept open until his functions became normal and he was able to be up and around. The doctor testified that plaintiff was under his care about 8 months; that about 3 months after the first major operation he performed a minor operation closing the opening in his side, and there yet remained a bulging area or flat hernia on the right side of his abdomen “known as an incisional hernia” which he advised plaintiff required an operation to cure and offered to perform it. Plaintiff would not, however, consent, stating that he did not want any moré operations. The doctor testified his operations proved successful, plaintiff made a good recovery and his physical condition bécame perfect with the exception that he yet had the incisional hernia, and in witness’ opinion he could do any kind of work except such as might require heavy lifting.
Shortly after plaintiff was injured the accident was duly reported by his employer to the industrial accident board, followed by appropriate proceedings under its jurisdiction which resulted, by agreement of parties approved by the board, in an award of compensation to plaintiff at the rate of $4 per week during disability, commencing March 25, 1915. This was paid by defendant for 237 weeks, or over 4years, and up to September 1,1919.
In February, 1918, plaintiff petitioned the accident board for an order requiring of defendants an advance payment of $250 in a lump sum, stating in his petition as reason therefor:
“That he is a single man and no one depending upon him for support; that he has had two operations, but still needs another operation for the purpose of curing the rupture, in order to become completely well; that he is advised by doctors that such operation will cure him, and that he is quite helpless in his present condition; that he has no funds for this purpose, and that an advance lump sum payment would enable him to secure the needed operation, and as he is advised, would be of great service and advantage to him.”
Defendants signified their willingness to make such payment in form and amount prayed for in the said petition, and it was so ordered by the board. Plaintiff then went to Rochester, Minnesota, to consult the Mayo Brothers. Of this he was asked and answered as follows:
“You went there for an operation?
“A. Yes.
“Q. About when did you make the trip?
“A. August, 1918. * * *
“Q. Did the Mayo Brothers tell you to have an operation ?
. “A. Yes.
“Q. You went to Rochester to have an operation, did you not?
“A. I went down to see the Brothers.
“Q. Why didn’t you have an operation at Rochester?
“A. I don’t want any more operations.”
On December 5, 1919, defendants filed a petition ' with the industrial accident board for relief from further payment, denial of which is now here for review.
On February 16, 1920, when plaintiff’s testimony was taken upon this petition for release from further payment, he testified that he had been working for the Escanaba Pulp & Paper Company since the first of the preceding April, beginning at 30 cents an hour, his wages being later increased to 45 cents an hour; that he first worked at a pulp machine taking away the pulp and putting it on the truck and had also worked at piling pulp on cars, which was the nature of his employment at the time his evidence was taken; that his duties were to pick up the slabs of pulp from where they had been piled and put them on a car, the slabs which he had to lift weighing about 40 pounds. G. F. Germanson, a foreman for the Escanaba Pulp & Paper Company, testified plaintiff had been working under him as a common laborer attending machines at the pulp mill and working on the pulp pile, that he was always able to keep up his end of the work with other men, had been working quite steadily and witness always found him a good man to work. The price per hour and amount of wages paid plaintiff by the Pulp & Paper Company were shown without dispute, and it appeared that between April 1 and December 31, 1919, he had earned a total of $926.73, receiving in the month of April $103.80, in May $127, and so on in varying amounts, his average wages being over $100 per month.
Following the hearing on said petition, on February 16, 1920, the industrial accident board found that plaintiff “was still totally disabled in his employment as a woodsman, as a result of the injuries he sustained February 16, 1915,” denied defendants’ petition and ordered weekly payments to be made from September 1, 1919, and continued thereafter “in accordance with the agreement in regard to compensation and the provisions of the workmen’s compensation act.”
The board’s conception of what constitutes a “woodsman” is not altogether clear, but inferably under the testimony it was used as meaning any one who was working in the woods or employed at a lumber camp. While it might almost be assumed as a matter of common knowledge that Most of the men employed at lumber camps are in the fullest sense common laborers, plaintiff’s own testimony makes plain his status as a common laborer. He was working in a lumber camp for $16 a month and his board, part of the time on the roads used in connection with the woods operation there and part of the time helping to load logs under a top loader whom he was assisting in putting a wrapper-chain on the load when injured. He had never so far as shown earned over $30 per month and board in any employment. When this petition for relief from further payment was filed he was and had been for several months earning more at unskilled manual labor than he had ever been able to- earn before.
This case under the undisputed facts falls within the principles of and is controlled by Miller v. Fair & Sons, 206 Mich. 360, and the recent case of Leitz v. Labadie Ice. Co., 211 Mich. 565.
The order of the industrial accident board is reversed and the case remanded for such further proceedings in harmony with this opinion as parties may apply for and the board determine within statutory limitations.
Moore, c. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Brooke, J.
By the decree of the court below in this case a receiver was appointed to take over the property of the defendant corporation, the Muskegon. Knitting Mills, and to make use of the receipts and assets thereof for the following purposes, and in the order given:
“1. To take care of the running expenses of the plant.
“2. To pay all legitimate expenses of the receivership.
“3. To pay all claims and accounts secured and unsecured which have accrued subsequently to the incorporation of the Muskegon Knitting Mills, and now held by persons or parties who are not now, nor ever have been holders of any of the capital stock of the Muskegon Knitting Mills, either common or preferred and who are strangers to this suit.
“4. To- pay the claims of the plaintiff in this case, with interest and costs of suit to be taxed.”
On appeal to this court (209 Mich. 604), that decree was set aside, but other relief was given to the plaintiff. In an opinion filed on the 10th day of April, 1920, it is stated:
“The transfer of all the common stock is set aside and the stock will be returned to Mr. Haight and will be placed in the name of Louis P. Haight upon the books of the corporation. Upon that being done an alias execution may be issued upon plaintiff’s judgment and levied upon such.stock' in accordance with, the statute.”
Shortly after the filing of said opinion a motion for rehearing was made, which was denied on or about the 18th day of June. No decree in this court was entered until August 6, 1920. Paragraph 3 of the decree is as follows:
“That a transfer of all the common stock of the defendant corporation, The Muskegon Knitting Mills, namely: $48,000 be returned to the defendant Louis P. Haight and that the same be placed on the books of the defendant corporation, The Muskegon Knitting Mills, in the name of the defendant Louis P. Haight, and that an alias execution issue in favor of the plaintiff Peter Hamau for the amount of his judgment rendered by the circuit court of the county of Muskegon on the 16th day of February, A. D. 1916, against the defendant Louis P. Haight for the sum of $3,956.47, damages and costs of $60.80, making in all, damages and costs, the sum of $4,017.27, at the date of the judgment; which sum with interest thereon from that time to this date (a period of four years, two months and twenty-four days), with interest at the rate of 5% per annum, now amounts to the sum of $4,867.47, may issue out of and under the seal of the circuit court for the county of Muskegon, on said judgment and be levied on said stock in accordance with the statute in such case, to enable the plaintiff to obtain satisfaction of his said judgment, with interest thereon, until the same shall be satisfied.”
Prior to the settlement of said decree, counsel for defendant proposed certain amendments thereto, to be considered by this court on August 2d. A part of the second amendment proposed follows:
“* * * (that said stock) be transferred to the defendant Louis P. Haight on thé books of the corporation as subject to levy in behalf of his creditors.”
This amendment was declined by the court and the decree entered as above indicated.
In the meantime, and on the 22d day of June, 1920 (four days after the denial of the motion for rehearing) , it appears that Mr. Carpenter, attorney for the defendants, caused said stock to be placed in the name of the defendant Louis P. Haight on the books of the corporation; and on that day a levy was made upon said stock under a judgment in which William VanSluyter was plaintiff and Louis P. Haight the defendant, the amount of said judgment with costs being $1,868.77. Mr. R. J. Cleland, an attorney of Grand Rapids, was acting for that judgment creditor. On July 7,1920, a sale of said stock was made under said levy in the sheriff’s office, at which sale said attorney bought in said stock for the amount of the judgment and immediately turned the sum over to defendant Grace C. Haight, accepting from her a promissory note for the.payment of the amount of the judgment and holding the stock himself as collateral to said note.
Plaintiff now moves this eourt for an order setting aside said pretended sale and for a mandate of this court, commanding said Carpenter to cause said stock to again be placed upon the books of the defendant company, the Muskegon Knitting Mills, there to be levied upon by an alias execution in favor of plaintiff, as commanded by the decree entered in this court herein. We are of the opinion that the prayer of this petition should be granted. We are advised by the answer of Mr. Cleland that he acted in the matter in good faith and without knowledge of any facts which should prevent him from endeavoring to collect the amount of his client’s judgment. We accept Mr. Cleland’s statements at their face value and acquit him of any intention of wrongdoing in the premises.
At the time (June 22, 1920) when Mr. Carpenter caused the stock to be transferred on the books of the corporation and permitted it to be levied upon to satisfy the VanSluyter judgment, no decree had been rendered in this court. The decree of the circuit court was yet in full force and effect and the entire assets of the corporation were impounded by the terms of that decree for the purposes mentioned therein. Courts speak not through their opinions, but through their judgments and decrees. 29 Cyc., p. 1499, and cases there cited. See, also, Steele v. Bliss, 170 Mich. 175; Newbould v. Stewart, 15 Mich. 155; Bancroft v. Board of Regents, 192 Mich. 168. The entire history of this litigation indicates a studied effort on the part of the defendant Haight to defeat plaintiff’s claim, and we are of the opinion that the levy of June 22, 1920, and the pretended sale of July 7, 1920, thereunder, was but a continuance of that policy. If was asserted by Mr. Carpenter in open court that he had no intention of disregarding the orders of this court; but it is difficult to understand how he could on August 2d participate in the settlement of a decree providing for the levy upon this stock in favor of this plaintiff when he himself had procured a levy on the stock in favor of another creditor on June 22d.
The sale of July 7, 1920, of said stock under the VanSluyter judgment will be set aside and held for naught, the stock will be retransferred upon the books of the defendant Muskegon Knitting Mills to the name of defendant Louis P. Haight, to be levied upon under an alias execution in favor of plaintiff in accordance with the terms of the decree. The note given by Grace C. Haight to Attorney Cleland and the stock held by him as security therefor will be returned to Mr. Carpenter. The VanSluyter judgment may be reinstated upon proper application to that end being made. Plaintiff will recover costs against defendant Louis P. Haight on this motion in the sum of $50.
Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
On January 12, 1915, the plaintiff, a corporation doing business at Grand Rapids, and defendant, a resident of Greenwood, Indiana, entered into a contract in writing whereby the defendant sold to plaintiff “Twelve thousand dozen No. 10 Tomato Pulp at the Fame Canning Company’s plant, at Tipton, Ind., at $1.75 per dozen, F. O. B. cars, Tipton, Ind.” The other provisions of the .contract material to the issue here presented are as follows:
“Shipments: To be made as ordered. All of the goods to be shipped by Dec. 1st, 1915. * * *
“Storage: Seller agrees to store pulp free of charge until ordered shipped by the buyer.
“Insurance: "Seller is to insure pulp at his expense, until May 1st, 1915, when the buyer shall insure what portion still remains unshipped.
“Guarantee: Seller guarantees pulp against leaks and swells, until the pulp is received. It is agreed that any swelled cans shall not be considered a part of this contract.
“Containers: Seller agrees to repurchase from buyer, all empty tins, at 4c each, F. O. B. Grand Rapids, to be shipped in car load lots at buyer’s option, at any time that a sufficient quantity of the tins are empty to make a car load. Tins guaranteed to be in as good condition as when received by buyer.”
At the opening of the trial a stipulation of facts was entered into between counsel for the respective parties, the material parts of which are summarized and quoted from as follows:
Immediately after the execution of the contract, the cans sold were separated from other pulp owned by defendant and placed by themselves in a comer of the Fame Canning Company’s warehouse at Tipton. The containers were at that time free from rust and suitable for re-use. The defendant thereupon issued a warehouse receipt to plaintiff, which recited that the Fame Canning Company held such stock in storage as the property of plaintiff, “insurance at buyer’s risk after May 1, 1915,” which receipt was received and accepted by plaintiff. On May 1, 1915, plaintiff took out insurance in its favor and as owner of the pulp. Plaintiff’s president had visited the Fame Canning Company’s plant and inspected the warehouse in which it was understood the pulp was to be stored, and in which it was stored, and was familiar with the conditions surrounding such storage. It was built of brick, was in a good state of repair, and “was sufficient to and did fully protect said cans from the outside elements.” The defendant “exercised ordinary and usual care in the storage and protection of said pulp and the containers thereof.” Both parties knew that such containers could be used again for canning pulp if “bright and free from rust when emptied and were properly sealed, emptied, washed and dried, and otherwise properly cared for after emptying so as to prevent rusting,” and that they were of the value of 4 cents each for such purpose, but that if not in such condition they “could not be used again for such purposes or for any purpose whatever and were of no value.” The containers were in good condition when the contract was entered into.
“During the period from May 1st to October 1st, the defendant repeatedly requested plaintiff to remove said pulp from the warehouse, but no part of it was removed until the latter part of October, and the greater part of it not until the latter part of November, 1915.
“During the months of August and September, 1915, throughout the State of Indiana there was an unusual amount of rainfall and excessive moisture in the atmosphere, which fact was known to the plaintiff at the time.
_ “It was also a fact known to the plaintiff at the time, that under such weather conditions canned goods of the kind sold by defendant to plaintiff, stored in the ordinary factory warehouses without facilities for artificial drying, as said goods were stored, and as it was contemplated by the parties at the time of the contract that they should be stored, will condense a great amount of moisture from the air upon the cans, which causes the cans to rust if such weather conditions continue for any considerable length of time.”
Early in October, 1915, the defendant caused the pulp to be inspected and discovered that the containers were rusting because of said weather conditions, and on the 13th of that month notified plaintiff of that fact by the following letter:
“October 13, 1915.
“Thomas Canning Co.,
“Grand Rapids, Mich.
“Gentlemen: The writer just returned from a visit. to the Tipton factory. It strikes me that you should arrange to move your lot of No. 10 tins of pulp at the earliest possible moment. This stock is more or less rusty and getting worse all the time, stacked as it is in the warehouse — tins close together where the rust spreads easily.
“What you should do is to take it up to your place and what you are not going to use of it, either clean up or spread it out to a greater extent on the floor where the rust will Hot continue to spread as rapidly as it is at the present time.
“Now this is for your own good and you really. ought to take some action at.a very early date or you are going to meet with considerable loss.
“Very truly yours,
“Grafton Johnson.”
To this letter the plaintiff replied as follows: ■
“October 15th, 1915.
“Grafton Johnson,
“Greenwood, Ind.
“Dear Sir: We are in receipt of your favor of the 13th and note the results of your visit to the Tipton factory, and the inspection of the number ten tins of pulp.
“We would certainly recommend that you give these the proper care so they will not rust. We should think that this would be to your own interest, in view of the fact that we undoubtedly wish to return the cans as per our contract with you. We would certainly recommend that you sort this.pile over and any cans that look to you to be rusty and would be liable not to keep long, that you ship us in the car which we have just ordered from you.
“Very truly yours,
“Thomas Canning Company, “W. S. Thomas.”
Further correspondence followed, the defendant insisting that delivery under the contract had been made and that the risk of the cans rusting was on plaintiff, while plaintiff contended that until the cans were received by it the loss on account thereof must be borne by defendant. Extracts from these letters will be hereafter referred to.
“Following the -letter of October 13th from the defendant to the plaintiff, above set out, the plaintiff did nothing in the way of cariiig for said property or to prevent further rusting of said cans except to take out one car load, but allowed all of the remainder of said pulp to remain in said warehouse as before, until the latter part of November, during which time the damage to said containers by reason of said rusting greatly increased, and affected and damaged a large number of said containers which were not damaged at the time said notice was given on October 13th.
“By- the first day of December, 1915, the plaintiff removed said entire lot of pulp from said warehouse and shipped the same to its plant at Grand Rapids. Plaintiff caused said cans to be opened, washed and sterilized as required by said contract.”
In December plaintiff shipped a car load (about 1,000 dozen) of the empty containers to defendant, who caused them to be inspected by competent persons, and all were found “rusty^and unfit for use again for any purpose, and were of no value whatever except as junk.” The defendant refused to accept them, and so notified plaintiff. No further shipment of cans was made or offered to be made.
“Plaintiff realized from the sale of the cans retained by it the sum of $282.30, and plaintiff claims that it is entitled, on the foregoing facts, to judgment against the defendant in- the sum of $5,760 less the amount thus realized, with interest at 5% from January 16, 1916.
“The plaintiff is indebted to the defendant in the sum of $710.47, with interest at six per cent, per annum from December 15,1915, being the balance due on one of. the $2,500 notes given pursuant to the contract in question.”
The case came on for trial before the circuit judge without a jury, and after the conclusion of the arguments of counsel on the facts as stated in the stipula tion’“the court suggested that possibly the stipulated statement of facts lacked certain facts essential to plaintiffs recovery,” and later such testimony .was offered. To this, defendant objected “on the ground that the stipulated facts heretofore entered into embody all the facts in the case, and make it incompetent for the plaintiff to present any further testimony.” The court permitted plaintiff to put in testimony to show that after the cans had been emptied by plaintiff and were ready for shipment back they were in the same condition as when received by plaintiff. The defendant’s attorney was given opportunity to offer any testimony he desired at the conclusion of that put in by plaintiff, but announced that he had none to offer. The plaintiff recovered a judgment for $5,651.14.
Was such testimony admissible? We agree with counsel for defendant that the stipulation is equivalent to a finding of facts by the court or the special verdict of a jury in its binding force upon the parties thereto. Goodrich v. City of Detroit, 12 Mich. 279; Gillett v. Board of Trade, 46 Mich. 309; Cofrode v. Wayne Circuit Judge, 79 Mich. 332 (7 L. R. A. 511). But when it appeared on the argument that the plaintiff had omitted to include therein a fact upon which its right of recovery depended and which in no way tended to modify or change any fact so agreed upon between the parties, we believe it was well within the discretion of the trial judge to permit proof of such fact to be received. We can see no distinction in principle between the granting of such a request in this case and in one where, after the proofs are closed, the case is reopened to permit an omitted fact to be established. That the trial court has such discretion has been many times held by this court. Thompson v. Ellsworth, 39 Mich. 719; Gray v. Willcox, 56 Mich. 58; Minkley v. Township of Springwells, 113 Mich. 347.
Construction of the contract. Exception was taken to the following finding of the trial judge:
"I find and conclude, as a matter of law, that the word 'received’ in the contract between the parties of January 12,1915, meant the time when the goods were received at the factory or the warehouse of the plaintiff in Grand Rapids, Michigan.”
Defendant’s counsel insist that the title to the pulp, including the containers, "passed to the plaintiff at the time the contract was made, or at least at the time of the issuance and acceptance of the warehouse receipt,” and cite • many authorities to support such claim. In our opinion the rights of the parties are in no way dependent upon when the title to the pulp or the containers passed to' the plaintiff. Ownership of property may be in one person and possession of it in another. In the contract the defendant agreed to repurchase the empty tins if returned to him "in as good condition as when received by buyer.” When were*these cans received by the plaintiff? While the meaning of the word “received” in such contracts is ordinarily understood to be "delivered into the possession of,” we are of the opinion that the entire contract must be scrutinized to ascertain what the parties hereto intended it to mean. The defendant agreed to store the product sold free of charge until ordered shipped by the plaintiff, subject to the limitation that it should all be shipped by December 1, 1915. This undertaking on his part must be considered as a part of the consideration moving to plaintiff in the making of the contract. The containers were thus to be left in defendant’s possession and under his care and control uhder his agreement to store them until shipment was ordered by plaintiff. It may well be inferred that no thought of damage by rust owing to weather conditions entered the mind of either at the time the contract was made. We are impressed that the duty rested on the defendant to see to it that they were so stored and cared for pending shipment as to reach the plaintiff in a condition that if cleaned, dried and sealed by it in the manner set forth in the stipulation they would be repurchased by defendant at the price agreed upon. Our attention is called by plaintiff’s attorney to the fact that the product was guaranteed “against leaks and swells, until the pulp is received.” The word “received” here clearly means delivered by the defendant to plaintiff from the storage in which he had placed the cans. This but confirms the conclusion reached that the rusting of the containers was a risk assumed by the defendant until the cans were in the actual possession of the plaintiff.
It is insisted by defendant that the failure of the plaintiff to offer to return the tins to defendant bars its right of recovery. On October 14th defendant had written plaintiff that—
“On account of the tins being in this rusty condition at this time we wish to go on record in advising you that we cannot accept the return of these tins as was contemplated when the purchase was made,”—
and on October 20th defendant again writes—
“Although we have taken the best possible care of them, they have rusted very seriously, as we have heretofore written you, and consequently are not in a merchantable condition.”
The tins were at that time in the warehouse at Tip-ton and presumably had been inspected by the defendant. Notwithstanding this positive notice that defendant would not accept a return of the containers, plaintiff shipped him a car load when emptied, all of which were rejected “for the reason that the cans returned do not comply with our contract to. repurchase same,” and the plaintiff was asked to “give the railroad company instructions regarding the disposition of same.” Under our construction of the contract, it was the duty of the defendant to have accepted the tins shipped. He did not -do so, but left the burden on plaintiff to pay the freight on them .and dispose of them as best it could. We'think such refusal, when considered in connection with the letters above quoted from, advising plaintiff that defendant would not accept a return of the tins, absolved plaintiff from making further shipments.. It was not required to incur expense and render itself liable for freight in attempting further performance, nor was it under obligation to assume that defendant might probably change his mind about it.
In Roehm v. Horst, 178 U. S. 1 (20 Sup. Ct. 780), in which the facts were somewhat similar, the English and American decisions are reviewed at length and the rule announced as above stated. The following language of Mr. Justice Brewer in Anvil Mining Co. v. Humble, 153 U. S. 540 (14 Sup. Ct. 876), is quoted with approval:
“Whenever one party thereto is guilty of such a breach as is here attributed to the defendant, the other party is at liberty to treat the contract as broken and desist from any further effort on his part to perform; in other words, he may abandon it, and recover as damages the profits which he would have received through full performance. Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrongdoing of the other party has brought about.”
In Wigent v. Marrs, 130 Mich. 609, a similar question was presented to this court. The syllabus reads:
“A party to an executory contract may always stop performance by the other party by an explicit direction, but renders himself liable for such damages as the other has sustained by reason of having the performance stopped.”
It contains the following quotation from 2 Mechem on Sales; § 1091:.
“The law is well settled that a party to an executorycontract may always stop performance on the other side by an explicit direction to that effect, though he thereby subjects himself to the payment of such damages as will compensate the other for the loss he has sustained by reason of having his performance checked at that stage in its progress.”
“The contract is not rescinded, but broken; and, while the other party has the right to deem it in force for the purpose of the recovery of his damages, he is under no obligations, for that purpose, to tender complete performance, nor has he the right to unnecessarily enhance the damages by proceeding after the countermand, to finish his undertaking.” Id. § 1092.
Was the finding that the cans when emptied and ready for shipment to defendant were in the same condition as when received by plaintiff supported by the proofs? Adrian E. Heyboer, an employee of plaintiff, testified that he saw all of the cans after they were emptied and that they were in the same condition so far as rust was concerned as when received by plaintiff.
What has been said disposes of the questions raised and discussed by defendant’s counsel in their brief. We have, however, examined the other errors assigned and find them without merit.
The judgment is affirmed.
Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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[Paper 1]
[indorsement]
The People &c vs. Peter D. Labadie Junr
On Questions Certified to Sup. Court — from Monroe Circuit.
[questions reserved]'
To the Hone the Judges of the Supreme Court of the State of Michigan.
The undersigned respectfully certifies and submits for the determination of the Supreme Court, certain questions of law which were reserved by him on the trial of Peter D. Labadie Junr on an Indictment charging the said Labadie with Perjury in the Circuit Court for the County of Monroe at the last December Term thereof — , a copy of which Indictment is hereto annexed.
On that trial two questions were raised and reserved by the undersigned.
First Whether the averment in the Indictment, that a certain issue was joined in a plea of debt, between James Ellison Plaintiff and John D. Labadie Medard Labadie and Anthony B. Beaubien, as set forth in the Indictment, was duly proved on the trial of said Peter D. Labadie Junr?
and
Second — Whether the matter testified to by the said Peter D. Labadie Junr on the trial of such issue, upon which the Perjury was assigned as set forth in said Indictment, was duly proved to have been material on the trial of said issue?
The Evidence on the trial of said Labadie Junr on said Indictment which tended to prove the averment in the Indictment that an issue was joined between the parties as set forth in the Indictment; was as follows, that is to say: that an action of debt was originally commenced before a Justice of the Peace in favor of James Ellison Plaintiff, and against John D. Labadie, Medard Labadie and Anthony B. Beaubien Defendants — that the Plaintiff filed with the Justice of the peace as his declaration in the cause, a bond for the Prison limits executed by the Defendants to the Plaintiff conditioned that one of the Defendants John L. Labadie should remain within the prison limits in the usual form— that the Defendants did not file any plea before the Justice— that the cause was tried before the Justice and that all the Defendants were present at the trial, together with Peter D. Labadie Junr as their attorney & Counsel — that the Justice gave judgment for the Plaintiffs, and thereupon the Defendants appealed to the Circuit Court aforesaid — and that such appeal was duly entered — that while the appeal was pending in the Circuit Court and before trial, the Defendants Attorney applied to the Court and obtained leave to plead in the cause and thereupon filed a plea of Nil debit — that there was no other declaration filed in the cause by the Plaintiff but the said bond which was sent up on the appeal by the Justice and examined in the Circuit Court, except the transcript of the Justice, which contained these words — “The Plaintiff declares on a limit bond on file — [”]
Upon this State of the pleadings the parties went to trial in the Circuit Court before a Jury and the cause was tried in the same manner as though a regular and formal declaration upon the bond had been filed setting forth a breach of the condition by the Departure of the said John D. Labadie from the prison limits, and as though the Defendants plea of Nil debit had been filed to such formal declaration— and an issue had in due form been joined in the cause.
This was all the Evidence to show that an issue had been joined in the cause as alleged in the Indictment.
The second question is whether there was proper and sufficient evidence given on the trial of Labadie Junr on the Indictment, that the matters testified to by him on the trial of said cause on appeal in the Circuit Court, upon which the Perjury was assigned, were material to the issue joined in the cause?
And upon this point there was no other evidence excepting that above stated, and that hereinafter stated—
The matters testified to by Labadie Junr and upon which the Perjury was assigned related to the admissions of John D. Labadie on- the trial of the origination [original] action before the Justice of the Peace as stated in the Indictment and the Evidence corresponded with the Statement.
Upon the trial of the said Peter D. Labadie Junr — on the said Indictment, the above mentioned questions were raised by his Counsel and by the counsel of the said Labadie Junr the undersigned reserved the same for the decission of the Supreme Court; and thereafter left the cause to the Jury as if the Evidence in both respects was sufficient in the law,— and the Jury returned a verdict of guilty.
All which is respectfully submitted.
Ann Arbor Jany I, 1842:
Wm A. Fletcher.
[Paper 2]
[indorsement]
People &c vs. Labady
1 Circuit—
Opinion—
[opinion]
The People vs. Peter D. Labadie Junr
This case comes before this Court on certain questions reserved and certified by the Presiding Judge of the Circuit Court for the County of Monroe.
The Deft was indicted for Perjury—
The Indictment alleged that the Deft was sworn and testified as witness on the trial of a certain issue joined in a plea of debt in a certain action wherein James Allison was Plff. and John D. Labadie, Medard Labadie and Anthony Beaubien were Defts — and assigned the perjury upon that Testimony.
On the trial of the Deft, upon this Indictment, the prosecutor proved that the cause between the above named parties, was originally commenced before a justice of the peace, in debt, and that the Plff in that cause filed, as his declaration before the Justice, a bond for the prison limits executed by the Defts to the Plff, conditioned that John D. Labadie should remain a prisoner within the limits of the County, in the usual form — And the Justice made upon his docket the following entry — “The Plff declares on a limit bond on file” — It was further proved that the Defts did not file any plea. That all the Defts were present before the Justice, and that a trial was had, and a Judg* rendered against the Defts— And that the Defts thereupon appealed to the Circuit Court for the County of Monroe — It was further proved that the appeal was duly entered in the Circuit Court, and that no other declaration was filed in the cause, except that the transcript of the justice was filed on entering the appeal, in which it was stated that the Plff declared on a limit bond on file;— and the return and filing of the said bond — That after the appeal was entered and before trial, the attorney for the Defts moved for and obtained leave from the Circuit Court to file a plea — and thereupon filed for all of the Defts a flea of Nil debit — concluding to the country — No Similiter was added — cmd there was no other or further pleadings in the cause.
Upon this state of the pleadings the parties went to trial before a jury, and the cause was in fact tried in the same manner as if a formal declaration alleging a breach of the condition of such bond, by the departure of the said John D. Labadie from the prison limits — had been filed, and a Similiter had been added to the plea nil debit This was all the evidence given on the trial upon the Indictment, tending to prove the averment in the indictment that a certain issue was joined in a plea of debt. And the question is whether the evidence supports this averment?
In support of the prosecution, it has here been urged that the evid. substantially supports the 'allegation — on the ground that formal pleadings and a formal issue are not required in a suit before a Justice’s Court, nor on the trial of such a suit on appeal to the Circuit Court. That the Stat. has declared that appealed causes shall be tried on the pleadings below, unless the Circuit Court shall otherwise direct, and that it was therefore competent and proper for the Circuit Court to try the cause in question, upon the state of the pleadings above set forth — in the same manner as if there had been regular pleadings and a formal issue joined to the country--On the part of the Deft, it is contended, that whether it was or was not competent and regular for the Circuit Court to try the cause on appeal upon the State of the pleadings set forth, yet the evid. does not support the averment that an issue had been joined in the cause — That having made this averment the prosecutor is bound to prove it strictly—
There is a well settled dis[tinc]tion between descriptive allegations, which must be strictly proved, and other averments which must be substantially proved — Averments descriptive of records, writings, and property, must be supported by proof of every fact and circumstance which is necessary to establish the identity of the matters averred — In each of these descriptive allegations, the question, as to the sufficiency of the proof to support the allegation, is one of identity, and any substantial variance is fatal. The same rule upon this subject applies both in civil and criminal cases.
2 East P. C. 3 Stark. Ev. 2 Russ on Cr. Arch. cr. PI. &c.
That the averment in question is descriptive can hardly be questioned — The subject matter of the allegation is the State of the pleadings, and when the Indictment alleges that an issue was joined in a plea of debt in a certain specified cause depending in a Court of Record of common law jurisdiction, and proceeding according to the course of the common law, we must intend, that there are sufficient pleadings and an issue joined in due form of law.
The pleadings are a part of the record, and when it is averred that an issue has been joined in a plea [of] debt, in a suit upon a bond for the prison limits, we must legally intend, that a declaration has been filed assigning a breach of the condition of the bond, and that such further pleadings have been filed as have resulted in the joining of an issue to the country in due form — of' law.
Nor is it any answer to say that the Circuit Court, on such a State of pleadings, in an appealed case had a right to proceed in the trial of the cause in the same manner as if there had been formal pleadings and a formal issue. There was no necessity to aver in the indictment that an issue had been joined in the cause—
But although not necessary to have been averred, yet, as it is averred, the proper and strict proof must be made and can in no case of descriptive averments be dispensed with— Verdict set aside — And a nolle pros, entered — and that Deft be discharged from custody, unless detained on some other cause— | [
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Hood, J.
Plaintiff appeals as of right from a circuit court opinion and order which granted defendants’ motion for summary disposition and dismissed plaintiffs cause of action on the ground that plaintiff is not the real party in interest, MCR 2.116(C)(5).
Plaintiff Rite-Way Refuse Disposal is a corporation which formerly did business under the registered assumed name of "Wolverine Vending Company.” Jerome and Lois Rogers are the principal shareholders and the officers and directors of the corporate plaintiff. On May 20, 1982, plaintiff purchased from defendants the assets, equipment and goods which were owned by defendants and used in the conduct of their business known as Wolverine Vending Company, with the purchase including the trade name. A substantial portion of the assets and equipment purchased were coin-operated commercial bulk vending machines which dispensed gum, candy and novelty items. At the time of the sale, the vending machines were located in numerous stores throughout Michigan.
The purchase price for the business was $250,000, with $100,000 paid at closing qnd the balance represented by a secured promissory note in the amount of $150,000 with interest at an annual rate of eight percent. The agreement also contained a provision that defendants would not compete with plaintiffs’ business within a radius of 250 miles and for a period of five years, and that if this provision was violated the remaining balance of the promissory note at the time of the breach would be totally and unconditionally forgiven and the defendants would be considered paid in full.
In its complaint, plaintiff alleges that defendants have placed in several stores certain commercial bulk vending machines, which vend and dispense novelty items similar to those dispensed by the bulk vending machines purchased by plaintiff. In the September 7, 1983, complaint for declaratory relief, plaintiff alleged that this placement of the machines violates the spirit and the letter of the agreement as it pertains to the covenent not to compete. Defendants maintain that the placement of the subject machines in the stores is not the type of competition prohibited by the agreement.
On August 1, 1983, plaintiff sold the vending machines and operation, including the trade name Wolverine Vending Company, to Castle Enterprises for $460,000. Plaintiff and Castle executed a promissory note and plaintiff retained a security interest in the business for payment of that note. Plaintiff’s agreement with Castle also included a covenant that plaintiff would not compete with Castle but does not include or mention defendants’ covenant not to compete with the plaintiff.
The lower court initially denied defendants’ motion to dismiss on the basis that plaintiff was not a real party in interest, but ordered that Castle Enterprises be joined as a third-party complainant. Plaintiff filed a third-party complaint, but failed to serve Castle. On June 19, 1985, the lower court granted defendants’ motion on the ground that the suit was not being pressed by a real party in interest. The court stated that since plaintiff had transferred the assets to Castle plaintiff no longer had an interest in the assets. The court concluded that it was Castle which had the cause of action and, since Castle had not been joined, dismissal was proper.
MCR 2.201(B) provides that "[a]n action must be prosecuted in the name of the real party in inter est.” 1 Martin, Dean & Webster, Michigan Court Rules Practice, p 6, explains:
The purpose of the rule is to protect the defendant by requiring that the claim be prosecuted by the party who by the substantive law in question owns the claim asserted against the defendant.
The commentators then go on to discuss the relationship of the real party in interest rule to MCR, 2.205 concerning necessary joinder of parties.
The real party in interest rule is concerned only with the power of the plaintiff before the court to bring suit upon the claim stated. Whether additional parties also have an interest, such that their joinder is required or the plaintiff is prohibited from proceeding without them, is not a question of real party in interest, but of necessary joinder of parties under MCR 2.205.
Thus, where a collision insurer has paid a part of the plaintiff’s damages and taken a partial assignment of the plaintiffs claim, the plaintiffs power to maintain the action cannot be challenged on grounds that he is not a real party in interest. The plaintiff holds a substantive claim against the defendant. The question is whether the joinder of the insurer, an additional party in interest, should be compelled in order to protect the defendant against multiple suits. MCR 2.205 provides defendant with the means to compel such joinder if jurisdiction over the absent party can be acquired. [Emphasis added.]
In the instant case, the court reasoned that, since plaintiff had sold the vending machine business, neither the corporation nor the named shareholders could be real parties in interest. We conclude that the lower court erred and that as a matter of substantive law the plaintiff corporation’s retention of a security interest in the assets of the vending machine business is sufficient to establish that it is a real party in interest. To the extent that plaintiff may be able to prove that defendants’ activities have adversely affected the business of Castle, Castle’s ability to make payments to plaintiff under the promissory note may be diminished. If the alleged breach can be shown to damage Castle’s business, then plaintiff’s security is of lesser value.
While we have found no Michigan authority that squarely addresses this situation, we analogize this case to cases involving the assignment or subrogation of a mortgage. For example, in Better Valu Homes, Inc v Preferred Mutual Ins Co, 60 Mich App 315; 230 NW2d 412 (1975), this Court set aside a grant of accelerated judgment for the fire insurer and held that, under a policy with a standard mortgage loss-payable clause, the claim of either the mortgagee or the mortgagor is legally valid and based on contractual obligations and either would be a real party in interest. Similarly, in Capital Mortgage Corp v Michigan Basic Property Ins Ass’n, 78 Mich App 570; 261 NW2d 5 (1977), this Court held that a mortgagee of real property was a real party in interest with standing to bring suit to recover under a fire insurance policy despite the fact that the mortgage had been assigned, and that it was not necessary to join the assignee.
Although the Michigan courts have not directly addressed this question in relation to a secured party of a promissory note, plaintiff points to a California appellate decision, Baldwin v Marina City Properties, Inc, 79 Cal App 3d 393; 145 Cal Rptr 406 (1978). In Baldwin, plaintiffs sold their interests in a limited partnership to defendant Benscoter taking cash and promissory notes along with security agreements in the limited partner ship interests. When plaintiffs filed suit against persons alleged to have injured the partnership, the court held:
(1) A holder of a security interest may maintain an action for the impairment of a security by a third party tort-feasor. (American Sav & Loan Ass’n v Leeds (1968) 68 Cal 2d 611, 614, fn 2, 616 [68 Cal Rptr 453, 440 P 2d 933]; US Financial v Sullivan (1974) 37 Cal App 3d 5, 12-17 [112 Cal Rptr 18]; Duarte v Lake Gregory Land and Water Co (1974) 39 Cal App 3d 101, 105 [113 Cal Rptr 893].) This general rule is not only applicable to real property and the security interest of a beneficiary of a deed of trust or of a mortgagee (US Financial v Sullivan, supra, 37 Cal App 3d at p 13, 112 Cal Rptr 18) but also includes a security interest in personal property. (Weingand v Altantic Sav & Loan Ass’n (1970) 1 Cal 3d 806, 818-819 [83 Cal Rptr 650, 464 P2d 106].) The liability of the wrongdoer for an impairment of a security interest is not limited to intentional actions and includes acts of negligence where it is reasonably foreseeable that such negligence would result in the impairment of the security interest. (U S Financial v Sullivan, supra, 37 Cal App 3d 5 at p 13.)
(2) Plaintiffs had retained a security interest in the limited partnership interest that they sold to defendant Benscoter to secure the purchase money indebtedness evidenced by the Benscoter promissory notes. It is not necessary that plaintiffs accept or force a reconveyance of the security interest or foreclose on that interest either satisfying the indebtedness to them or reducing the indebtedness to them before bringing an action against the defendants as third party tortfeasors for the impairment of their security interest and the action for the impairment of the security interest may be brought whether or not the debtor is in default. (U S Financial v Sullivan, supra, 37 Cal App 3d at pp 15-17; 145 Cal Rptr 411-412.) [79 Cal App 3d 403.]
Accordingly, we are persuaded that plaintiff may maintain an action against defendants to protect its security interest.
We note that, although it was not the stated basis for the trial court’s ruling, the court appears to have been troubled by the absence of Castle as a party. However, as stated in the previously quoted commentary from Michigan Court Rules Practice, supra, the real party in interest rule is concerned only with the power of the plaintiff who is before the court. It is the defendant’s duty to join necessary parties under MCR 2.205. Moreover, we question whether Castle would be a real party in interest to the covenant between plaintiff and defendants since by its terms it does not extend to assigns and since no reference was made to it in the purchase agreement between plaintiff and Castle. Instead, that purchase agreement contained an entirely separate noncompetition covenant.
We conclude by also noting that, since Michigan jurisprudence looks to the overall reasonableness of this type of covenant, plaintiff has many substantive and evidentiary hurdles to clear in order to prove to the trial court that it is entitled to the declaratory ruling it seeks. We state only that plaintiff’s retention of the security interest in the business is sufficient to make it a real party in interest under MCR 2.201. We therefore reverse the grant of summary disposition in favor of defendants.
Reversed.
D. F. Walsh, P.J., concurred. | [
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Per Curiam.
Defendant K mart Corporation appeals by leave granted from an order of the Kalamazoo Circuit Court denying K mart’s discovery request for two statements in the custody of plaintiffs attorney. We affirm the trial court’s order.
In the latter part of 1981, Terry Holderman consulted an attorney, Kevin Kleidon, about a divorce from his wife, Sandra Holderman (Moser). In the course of that consultation, Terry Holder-man mentioned that his daughter, Rhonda Ann Moser, had been severely injured five years previ ously when her pajamas caught on fire. After learning of the injury, Kleidon referred Terry Holderman to a Kalamazoo law firm.
Gary Parker, an attorney with the Kalamazoo law firm, took six statements based upon Kleidon’s referral. On September 9, 1981, the statements of Sandra Holderman, Rhonda Ann Moser, Ed Kelly and Barbara Holderman were taken. On November 3, 1981, the statement of Terry Holderman was taken. The statements of Terry and Sandra Holderman were recorded by a certified shorthand reporter.
Some time after the statements were taken, Debra M. Grubbs, another attorney with the Kalamazoo law firm, was appointed as Rhonda Moser’s conservator. On April 23, 1982, Grubbs filed the instant action on behalf of Rhonda Moser in the circuit court. Both K mart and Meijer Thrifty Acres were named as defendants, though Meijer was later dismissed by stipulation of the parties.
On August 25, 1982, Sandra Holderman filed her answers to Meijer’s interrogatories. |n the course of those answers, Sandra Holderman acknowledged the six statements taken by Gary Parker.
On December 12, 1983, K mart took the deposition of Charles D. Beroes, Ph.D., a professor of chemical engineering. Beroes is plaintiff’s expert. In the course of the deposition, Beroes testified that he may have based his opinion in part on the statements taken by Gary Parker.
On December 27, 1983, K mart filed a motion for production, inspection and copying of documents pursuant to MCR 2.310. K mart’s motion alleged that Beroes reviewed the transcribed statements, that K mart was not permitted by plaintiff’s attorney to examine the statements and that the statements might contain critical information relative to the location of the purchase of the pajamas. K mart further alleged that there was a contradiction between the testimony of Terry Holderman and Sandra Holderman regarding the place of purchase of the pajamas.
K mart’s motion was heard on January 9, 1984. The circuit court denied the motion, which was based upon K mart’s claim that the statements were necessary for impeachment purposes. The circuit court further held:
The second ground, however, is something that causes the Court more of a problem. The deposition of the expert was apparently taken, and it appears that he relied in his expert opinion not only on hypothetical questions but also on information furnished him through statements of PlaintiiFs witnesses. If these statements were used by the expert in arriving at his opinion, then, because of the lack of any other evidence, the garment having been totally destroyed, or at least not being available, the Court believes that those statements, to the extent that they were revealed to and relied upon by the expert, should be disclosed and furnished to the Defendant.
I recognize that this might cause some editorial work to be necessary by the Court. If there are things in some of those statements that have nothing to do with the expert that the Plaintiff feels should not be disclosed, the Court will pass upon that as to whether or not there ought to be some deletions in the information shown to defense counsel. But to the extent that the expert found material in those statements on which to base his opinions, the Court believes that those statements should be revealed to the Defendant.
If the Plaintiff feels there’s no problem with editing any parts of these statements out, he should furnish those statements within 20 days. If the Plaintiff feels that there is some editing necessary to protect Plaintiff’s interest, the Plaintiff shall file within 20 days a Motion to Delete parts of those statements.
Plaintiff did file a motion to delete and on May 7, 1984, the circuit court conducted an in camera review of the six statements, explaining:
All right. Well, the Court believes that statements taken of your own client are privileged. They are putting on paper what the client tells his lawyer and, if a court reporter is brought in instead of the lawyer’s secretary or instead of using a dictaphone, this doesn’t seem to me to change the situation; that it’s still a privileged communication. This privilege can be lost just as most privileges can be and, if those statements were then of a nature that would help an expert to form a decision, then I think plaintiff has to determine whether or not he wants to furnish those statements to the expert, so the expert can rely on them.
I don’t think that necessarily furnishing that to an expert alone would waive the privilege but, if there was something in there that the expert could rely upon and does rely upon and then that expert is offered as a witness, as I understand as [sic] is being offered in this case, sometimes if you get an adverse result, you might not want that result, but assuming that the expert is going to be helpful to the plaintiff, then I think possibly the privilege is waived, and I will look at the statements if they are available right now to see whether there’s anything in there that an expert on inflammatory [sic] clothing could possibly have used in coming to a decision as to what his opinion should be in the matter.
On May 16, the circuit court entered its opinion, ordering that one page of the transcript of Sandra Holderman’s statement be provided to K mart. The circuit court reasoned that the page contained testimony upon which Dr. Beroes could have relied in forming his expert opinion. The balance of Sandra Holderman’s statement and all of Terry Holderman’s statement were held to be protected.
On appeal, K mart argues that the statements of Terry and Sandra Holderman were neither privileged nor protected by Michigan’s work product discovery rule.
The attorney-client privilege attaches to communications made by a client to the attorney acting as a legal adviser and made for the purpose of obtaining legal advice on some right or privilege. Alderman v People, 4 Mich 414, 422 (1857). The purpose of the privilege is to allow a client to confide in his attorney, secure in the knowledge that the communication will not be disturbed. Parker v The Associates Discount Corp, 44 Mich App 302, 306; 205 NW2d 300 (1973); Kubiak v Hurr, 143 Mich App 465, 472-473; 372 NW2d 341 (1985).
K mart first argues that the privilege did not attach because Terry and Sandra Holderman were not "clients.” We disagree. Communications made through a client’s agent are privileged. People v Bland, 52 Mich App 649, 653; 218 NW2d 56 (1974), citing 58 Am Jur, Witnesses, § 498, p 279. See also 81 Am Jur 2d, Witnesses, §§ 191-192, pp 226-229. It is apparent that Rhonda, who was approximately nine years old at the time, was not able to bring suit in her own name. GCR 1963, 201.5(1) and (2). We believe that Rhonda’s parents were, of necessity, acting as her agents in seeking legal advice.
K mart also argues that, because the statements were recorded in front of a third party—the certified shorthand reporter—the privilege was waived. It is clear to us that the reporter was acting as the agent of the attorney and that the privilege was not waived by her presence. Stephenson v Golden (On Rehearing), 279 Mich 710, 734-735; 276 NW 849 (1937). Since a recorded statement was essential to provide an accurate factual base from which their attorney might provide legal advice, we believe that the privilege was not waived.
K mart next argues that the attorney-client privilege was waived by disclosure to the trial court of the statements. However, the statements were provided under court order for an in camera review necessitated by K mart’s motion. To conclude that the attorney-client privilege was thus waived is to conclude that K mart held the power to waive the privilege merely by asserting a need for the information in a motion. We cannot draw that conclusion. It is well established that the privilege is the client’s alone and may only be waived by the client. Kubiak, supra, 473.
Finally, K mart contends that the privilege was waived by disclosure of the information to plaintiff’s expert. Again we disagree. People v Hilliker, 29 Mich App 543, 547; 185 NW2d 831 (1971).
We conclude that the statements provided by Terry and Sandra Holderman were privileged communications and were therefore not discoverable beyond those portions ordered by the trial court. Our resolution of this matter makes unnecessary discussion of the other issues raised by K mart.
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Hood, P.J.
Defendants appeal as of right from the opinion and order entered February 13, 1986, by the Court of Claims in which the court granted plaintiffs’ motion for summary disposition pursuant to MCR 2.116(C)(10) and ordered defendants to pay $422,000 to plaintiffs under 1978 PA 416, specifically MCL 51.77; MSA 5.868(17).
MCL 51.77; MSA 5.868(17) provides for county sheriff departments to receive a grant from Michigan’s Office of Criminal Justice to help defray the cost of road patrol if the county meets certain qualifications. A history of the act in question will aid in understanding the issue on appeal. Neither the common law nor Michigan statutory authority impose a duty on the sheriff of a county to supply full-time road patrol on all county roads and highways. Brownstown Twp v Wayne Co, 68 Mich App 244, 251; 242 NW2d 538 (1976), lv den 399 Mich 831 (1977). In Brownstown Twp, several townships sued the Wayne County Board of Commissioners to provide the necessary funds to enable the Wayne County Sheriff to continue road patrol service in outlying county areas. This Court stated that a stricter duty to maintain law and order was imposed upon the sheriff in areas of the county not adequately policed by local authorities, but added that the sheriff was not required to regularly patrol those areas. Id. According to this Court, "[A]ll that is minimally required is that the sheriff exercise reasonable diligence to (1) keep abreast of those areas inadequately policed, which may require limited vigilance, (2) monitor criminal activity or unusual conditions in the county, and (3) respond professionally to calls for assistance from the citizenry.” Id.
Act 416 arose from the consensus that many of the roads in Michigan were inadequately patrolled and that enforcement of trafile regulations and availability of police officers to the public would be significantly enhanced by placing greater emphasis on road patrols. The Legislature established a list of services to be provided by a county sheriffs department which would receive grant monies under Act 416. These services, specified by MCL 51.76(2); MSA 5.868(16)(2), include: patrolling and monitoring traffic violations; enforcing the criminal laws of Michigan, violations of which are observed by or brought to the attention of the sheriffs department while providing the patrolling and monitoring; investigating accidents involving motor vehicles; and providing emergency assistance to persons on or near a highway patrolled and monitored. Funding for these services, and only these services, was to be provided by a grant. MCL 51.77(2); MSA 5.868(17X2). The county sheriffs department would be required to provide the expanded services only to the extent that state funds were provided. MCL 51.77(3); MSA 5.868(17)(3). Act 416 established a formula for determining the amount of grant funds to be allocated to the county sheriffs department for these purposes. MCL 51.77(4); MSA 5.868(17X4).
A less significant purpose of Act 416 was to delineate the responsibilities of the various law enforcement agencies in providing county road patrol services in order to reduce friction between the agencies.
In short, Act 416 was designed to enhance county road patrol services by providing funds to support those efforts. It was designed to supplement, and not replace, existing county road patrol efforts. Act 416 was guided by the philosophy that if the state was going to mandate greater performance by a county sheriffs department, the state, in fairness, ought to provide a supplement to local funding. It was believed that enhanced road patrol services would reduce economic loss from motor vehicle accidents as well as reduce highway deaths and personal injuries.
The controversy in this case concerns the conditions which the Legislature attached to receipt of grant funds. These conditions are contained in MCL 51.77(1); MSA 5.868(17X1) in a "maintenance of eifort” (moe) clause. The moe clause is emphasized in the following passage:
Before a county may obtain its grant from the amount ánnually appropriated for secondary road patrol and traffic accident prevention to implement section 76, the county shall enter into an agreement for the secondary road patrol and traffic accident prevention services with the office of criminal justice. A county applying for a grant for secondary road patrol and traffic accident prevention shall provide information relative to the services to be provided under section 76 by the sheriffs department of the county, which information shall be submitted on forms provided by the office of criminal justice. By April 1 of each year following a year for which the county received an allocation, a county which receives a grant for secondary road patrol and traffic accident prevention shall submit a report to the office of criminal justice on a form provided by the office of criminal justice. The report shall contain the information described in subsection (6). An agreement entered into under this section shall be void if the county reduces its expenditures or level of road patrol below that which the county was expending or providing immediately before October 1, 1978, unless the county is required to reduce general services because of economic conditions and is not merely reducing law enforcement services. [MCL 51.77(1); MSA 5.868(17)(1).]
The moe clause can be divided into separate criteria which, if violated, will render a county ineligible for grant funds. The first criterion provides that a county may be ineligible "if the county reduces its expenditures . . . below that which the county was expending . . . immediately before October 1, 1978.” The second criterion provides that a county may be ineligible "if the county reduces its . . . level of road patrol below that which the county was . . . providing immediately before October 1, 1978.” An exception to ineligibility obtains where "a county is required to reduce general services because of economic conditions and [the county] is not merely reducing law enforcement services.” MCL 51.77(1); MSA 5.868(17X1).
The purpose of the moe clause was to assure that a recipient county maintained the level of funding and the level of road patrol services that existed immediately prior to October 1, 1978, the effective date of Act 416. General guidelines issued on January 5, 1979, to the chairpersons of county boards of commissioners included the following statement:
[IJnasmuch as it is legislative intent that P.A. 416 funds not supplant county budget funding, the county budget for road patrol and the number of road-patrol officers authorized in the county budget prior to 1 October 1978 must be maintained.[ ]
From 1978 until 1983, plaintiffs successfully applied for and were awarded grant monies under Act 416. However, on April 29, 1983, plaintiffs were informed by the Office of Criminal Justice (ocj), the agency responsible for disbursing the grants, through a letter written by its director, Patrica A. Cuza, that plaintiffs no longer satisfied the eligibility criteria established by MCL 51.77(1); MSA 5.868(17)(1). After negotiations failed, plaintiffs filed the instant suit.
The dispute centers on whether "contractual” sheriffs who were funded only partially by plaintiffs’ county fund could be taken into account in determining the amount of road patrol the county was providing in 1983. The parties agree that the amount of money expended by the county increased from 1978 to 1983. The dispute centers on whether the level of road patrol provided by the county in 1983 declined below the 1978 level. A review of the data submitted by plaintiffs reveals that in 1978 the county employed eighty road officers devoted to road patrol. This number included forty-eight positions fully funded by the county’s general fund and thirty-two positions funded by.a combination of the county’s general fund and township funds. In 1983, the number of positions fully funded by the county’s general fund decreased to twenty-five, while positions funded jointly by county and township funds increased to sixty-four, making a total of eighty-nine road officers. In the April 29 letter to plaintiffs, ocj based its decision to deny the grant upon the reduction in the number of road patrol positions funded by the county’s general fund from forty-eight positions in 1978 to twenty-five positions in 1983. Ocj took the position that "contractual” officers, i.e., those supported by the receipt of noncounty general fund monies, could not be included in meeting the service level of 1978. Ocj supported that conclusion by referring to the statutory language "county was expending or providing,” and noting its focus is on a county effort, and not combined local government effort. Further, ocj asserted that its position was consistent with standard legal interpretations of similar phrases. Ocj pointed out that the forms and explanatory materials used in the administration of Act 416 had consistently been based on its interpretation from'the inception of the program. Finally, ocj pointed out that to include contractual positions would require counties which suffer a reduction in contractual positions below the 1978 level to have to replace the contractual positions at county expense in order to retain eligibility. In other words, those counties would experience direct added costs. In contrast, the exclusion of contractual positions merely results in a loss of potential savings to counties which increase the number of contractual positions. Ocj did allow a reduction of five positions due to the county’s 10.7 percent reduction in general services personnel from 1978 to 1983 due to economic conditions. Thus, ocj determined that plaintiffs would have to increase the number of road patrol officers to forty-three in order to receive the grant.
The Court of Claims, in determining whether the county provided at least as many road officers in 1983 as in 1978, included the sixty-two which were partially funded by the townships, finding the total number of officers in 1983 to be eighty-nine. The court found that the county expended more money and provided more deputy-hours of service in 1983 than in 1978 for road patrol services.
Plaintiffs argued below and argue on appeal that since the proportion of county funds used for the contract deputies could support 17.38 fully funded officers, that amount added to the twenty-five fully funded officers equals 42.38 officers, certainly within the "spirit and intent” of the act and ocj’s requirement of forty-three officers. The court’s opinion does not indicate whether the court adopted this position; rather, the opinion relied solely on the gross number of officers assigned to road patrol duty in 1983—eighty-nine, compared to the gross number of eighty in 1978.
We feel that plaintiffs and the lower court have erroneously interpreted the statute. The statute clearly states that an agreement shall be void if "the county reduces its . . . level of road patrol below that which the county was . . . providing” before October 1, 1978 (emphasis added).
In Sam v Balardo, 411 Mich 405, 417-418; 308 NW2d 142 (1981), our Supreme Court reiterated the words of Justice Cooley in People ex rel Twitchell v Blodgett, 13 Mich 127, 167-168 (1865), describing the "foremost rule of statutory construction”:
"There are certain well-settled rules for the construction of statutes, which no court can safely disregard. Where the statute is plain and unambiguous in its terms, the courts have nothing to do but to obey it. They may give a sensible and reasonable interpretation to legislative expressions which are obscure, but they have no right to distort those which are clear and intelligible. The fair and natural import of the terms employed in view of the subject matter of the law, is what should govern.”
The language used by the Legislature in the moe clause referred to "the county.” If the Legislature had intended to refer to "the county and other local units of government” it could have done so in express language. However, the Legislature did not do so. Although the Legislature did not further define the eligibility criteria, it appears from the material submitted by the parties that road patrol funded in a mixed fashion, i.e., by general fund monies and township contracts, existed at the time that Act 416 was enacted. Presumably, the Legislature was aware of the prevalence of such arrangements as well as other funding sources. The Legislature could have determined that a minimum commitment was required from each county, without outside sources, for eligibility for grant funds.
The language of the statute is clear and unambiguous. In light of the purpose of the legislation, and the language used, we believe that the position of defendants is the proper one. Although there is no case law directly on point to guide this Court, we refer to the rule of strict construction applied to statutes granting economic benefits. An excellent discussion of this proposition is contained in 3 Sutherland, Statutory Construction (4th ed), §§ 63.02, 63.03 and 64.08.
The rule of strict construction obtains with respect to monetary grants as a means of guarding against unauthorized and unwarranted dissipation of public funds by ascertaining that all expeditures out of the public treasury are clearly authorized. A grant-in-aid is a method by which one level of government, i.e., the state, which owes no duty to support a function, i.e., a county road patrol program, undertakes the contribute to it financially. The grant is made in order to encourage the recipient to pursue policies which the grantor desires to promote, but which it is either constitutionally or politically unable to carry out by direct action. Thus, the grant is usually made with conditions. The condition is that the money be used for the purpose intended by the grantor and that certain results be obtained with the money received. This is essentially the mechanism employed in Act 416. See 91 CJS, United States, § 122, Disbursement of Funds, pp 301-302. Al though the interpretation given by the Court of Claims yields results favorable to Oakland County, Oakland County is but one of many counties in Michigan. That interpretation may render the administration of the program more difficult or may yield results not intended by the Legislature.
The construction given to a statute by those charged with executing it, although not binding on the courts, is entitled to the most respectful consideration and ought not be overruled without cogent reasons. Production Credit Ass’n of Lansing v Dep’t of Treasury, 128 Mich App 196, 197-198; 339 NW2d 871 (1983). The interpretation advanced by defendants has been in existence since the inception of the program. The interpretation is entitled to deference, even if it is not controlling, especially since Act 416 involves a purely voluntary program. Plaintiffs are under no obligation to provide the enhanced road patrol service if they do not receive grant funds. Just as there is no sanction for nonparticipation in the program, there is no entitlement to the funds.
In short, we conclude that the interpretation accorded the moe clause by defendants is not erroneous as a matter of law. The language is plain and unambiguous and should be enforced as written. Defendants’ restrictive construction is supported by the rule of strict construction applied with respect to monetary grants. Finally, defendants’ interpretation is entitled to deference absent cogent reasons to the contrary.
The decision of the Court of Claims is reversed.
Legislative analysis of Senate Bill 1682, ultimately enrolled as 1978 PA 416.
Id.
January 5, 1979, letter from William M. Nugent, Acting Administrator of the Office of Criminal Justice Programs, to chairpersons of county boards of commissioners, p 2. | [
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Per Curiam.
Plaintiff appeals as of right from the August 4, 1986, circuit court order holding that the vehicle which plaintiff was working on when he was injured was not a motor vehicle for purposes of § 3101(2)(c) of the no-fault act, MCL 500.3101(2)(c); MSA 24.13101(2)(c).
The facts are undisputed. The parties submitted the case to the trial court upon a stipulated statement of facts. In September, 1983, plaintiff began working for Kling’s Automotive. In 1984, plaintiff decided to enter an area demolition derby scheduled for August 18, 1984. Kling’s Automotive gave plaintiff one of its cars, but plaintiff was to pay the entry fee. He was to have "Kling’s Automotive” painted on it and, after the derby, he was to give the car back to Kling’s. Plaintiff was to prepare the car for the derby himself, and he was to drive it himself.
The fairgrounds gave plaintiff a copy of the derby rules and regulations. The automobile, a 1971 two-door Pontiac Catalina, was given to plaintiff one week before the derby. Title to the automobile remained in Kling and Lafrinere, the owners of Kling’s Automotive. The automobile did not run when plaintiff received it from the garage at Kling’s because it needed an alternator, a fuel pump, and an adjustment to the timing. Plaintiff made the necessary repairs, and also installed brakes and a radiator. In order to get the automobile ready for the derby, plaintiff altered the auto mobile in accordance with derby regulations. He took out the windows, welded the doors shut, and replaced the automobile’s gas tank with a boat motor gas tank installed inside the trunk. Plaintiff ran a steel line from the boat motor gas tank through the interior of the automobile to the car’s engine. He removed the headlights, the grill, and "all your metal.” Plaintiff had not yet removed the bumper but was planning to do so. He removed the back seat and the padding and the taillights. Other employees were also working on cars they were going to enter in the derby.
A day before the derby, plaintiff had gotten the engine running. The fuel pump line had a break, however, so plaintiff crawled underneath the automobile to try to tighten it up and also to tighten the radiator hose. Plaintiff’s pliers hit the frame and the battery terminal, causing a spark. Some gasoline which had leaked onto plaintiff ignited, and his arm caught fire. He crawled out from underneath the automobile and dove into a nearby mud puddle.
Plaintiff had plans to either tow or drive the automobile the one mile to the fairgrounds where the derby was to be held. If he chose to drive it, he would have had to "sneak” it onto the road. At the time of the accident, the only things left to be done to ready the car for the derby were to put a different battery inside a milk crate in the car, tighten the battery and make sure the doors were properly welded shut.
Plaintiff made a claim for no-fault personal protection insurance benefits from defendant, his mother’s insurance carrier, since plaintiff was an insured under her policy. Defendant denied coverage and refused to pay benefits.
Plaintiff filed a complaint against defendant, alleging that he had filed for personal protection insurance benefits but defendant refused to pay. Defendant answered and filed three affirmative defenses. The only affirmative defense pertinent to this appeal was that the automobile upon which plaintiff had been working was modified to the extent that it was no longer a motor vehicle under the no-fault act. On June 9, 1986, a settlement conference took place, at which the parties agreed to submit the case to the court on a stipulated statement of facts and on cross motions for summary disposition. On July 10, 1986, plaintiff filed his motion for summary disposition pursuant to MCR 2.116(C)(9) and (10). On July 21, 1986, defendant filed its motion for summary disposition pursuant to MCR 2.116(C)(8) and (10).
On August 4, 1986, the trial judge issued his opinion and order, finding the modifications plaintiff performed on the automobile changed the automobile so that it was not a motor vehicle for purposes of the no-fault act. For that reason, the court granted defendant’s motion for summary disposition. Plaintiff appeals as of right.
Plaintiff argues that the trial court erred in granting defendant’s motion for summary disposition on the ground that the automobile plaintiff was working on when he was injured was not a motor vehicle for purposes of the no-fault act.
MCL 500.3105(1); MSA 24.13105(1) states:
Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.
MCL 500.3101(2)(c); MSA 24.13101(2)(c) states in pertinent part:
"Motor vehicle” means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels.
The insurance policy defined motor vehicle as follows:
Motor Vehicle means a vehicle, including a trailer, with more than two wheels required to be registered in Michigan. The motor vehicle must be operated, or designed for operation, upon a public highway by power other than muscular power. Motor vehicle does not include a motorcycle or moped.
In the instant case, the vehicle in question was designed to operate by power other than muscular power and it had more than two wheels, but it was not being operated on a’public highway. Therefore, the only question is whether it was "designed for operation upon a public highway.” We find that Apperson v Citizens Mutual Ins Co, 130 Mich App 799; 344 NW2d 812 (1983), is dispositive of the issue.
In Apperson, this Court held that a street stock car involved in a stock car race was not a motor vehicle for purposes of MCL 500.3101(2)(c); MSA 24.13101(2)(c). Apperson, supra, 801. The automobile in Apperson had had all its outside lights and glass removed, was equipped with only one seat and a full roll cage, was without lights, windshield wipers, turn signals, and exhaust pipes. The automobile in the instant case had almost identical modifications. See also Ebernickel v State Farm Mutual Automobile Ins Co, 141 Mich App 729; 367 NW2d 444, lv den 422 Mich 971 (1985), and Logan v Commercial Carriers, Inc, 152 Mich App 701; 394 NW2d 470 (1986).
Plaintiff cites language in defendant’s insurance policy which plaintiff claims warrants coverage. Plaintiff argues that the Catalina is covered pursuant to the definition of "car” given in the policy as "a vehicle of the same type as the one described on the Declaration Certificate.” However, the policy also requires that a "motor vehicle” be operated, or designed for operation, on a public highway and the provision for personal protection insurance covers injury arising out of the ownership, maintenance or use of a "motor vehicle.” Thus, the definition of car is not the crucial description for purposes of the personal protection insurance.
The trial court ruled correctly in holding that the automobile which defendant was working on when he was injured was not a motor vehicle for purposes of the no-fault insurance act.
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Beasley, J.
Defendants, J. U. Akbar, M.D., and Pigeon Clinic, P.C., appeal as of right from a jury award of $85,000 to plaintiffs, Mary Margaret Heintz and Michael Heintz. For ease of discussion, we will refer only to plaintiff Mary Margaret Heintz and to defendant Dr. Akbar.
Plaintiff alleged that Dr. Akbar, an employee of the Pigeon Clinic, committed medical malpractice in performing a midline episiotomy on her during the delivery of her first child. A midline episio-tomy is a surgical procedure in which an angular cut is made between the vaginal opening and the rectal opening to facilitate childbirth. Plaintiff claimed that defendant negligently failed to find and repair a laceration of her rectal sphincter muscle and a fistula, or opening, in the wall between her vaginal canal and rectum. Because of defendant’s negligence, plaintiff is unable, even after corrective surgery, to maintain control of her bowel movements. Defendant claimed that plaintiff was negligent in not reporting her condition to defendant sooner than she did.
After the jury rendered its verdict in favor of plaintiff, defendant filed a motion for a new trial, which was denied in a written opinion. On appeal, defendant raises two issues.
First, defendant claims that the trial court erred in allowing plaintiff’s attorney to refer in his rebuttal closing argument to a laboratory test, on which there allegedly had not been any expert testimony but which had been admitted into evidence.
In his rebuttal closing argument, plaintiff’s attorney stated:
If you’ll recall Dr. Lester’s testimony when Mr. Smith in cross-examination asked him what you would expect to find with a rectal sphincter vaginal fistula, he indicated to him you would expect to find feces in the vaginal canal, and what is called e. coli [Escherichia coli], which is a bowel substance.
Let me show you something I found in the two hours and fifteen minutes, Plaintiffs’ Exhibit 9, step right up here, because this is it.
On December 22nd while she was in the hospital, they ran a vag smear on her, and the culture yielded 2 plus e. coli, 2 plus e. coli. You take that into the jury room and look. That means when they took a vaginal culture, when she was in the hospital, she had e. coli in her vagina, which is bowel substance.
And folks, the only way she can get e. coli into her vagina—.
Defendant objected on the basis that the subject matter was not part of the evidence and had not been testified to, and also requested an opportunity to respond. The trial judge overruled the objection. At the close of plaintiff’s attorney’s argument, defendant renewed his objection and again asked to respond with additional proofs or with additional argument. In denying defendant’s objection, the judge stated:
The purpose of the rebuttal argument is to respond to those issues that are raised by the Defense during the Defense closing argument and not to move into new areas. However, this—there was some argument that was made in the Defense, not on that specific issue, obviously, but in the area of whether or not there was a discovery or exactly what the condition of the Plaintiff was after the delivery, and therefore I think that area was fairly opened up. And for that reason I’m not going to allow proofs to be reopened at this time.
I think the area is fairly opened up, and I’m going to leave it stand as it is. I’ll deny your objection, Mr. Smith.
In Reetz v Kinsman Marine Transit Co, the Supreme Court described how an appellate court should review an appeal based on an attorney’s improper argument:
[T]he appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action.
The first determination to be made is whether it was error to allow plaintiffs attorney’s remarks concerning the laboratory report. Under MCR 2.507(E), a rebuttal closing argument may not extend "beyond the issues raised in the preceding arguments.” The trial judge has broad power and discretion concerning the conduct of the arguments before the jury.
In allowing plaintiffs attorney’s argument, the trial judge noted that in his closing argument defense counsel referred to plaintiff’s condition after delivery, and that "that area was fairly opened up.” In his September 17, 1985, opinion denying defendant’s motion for a new trial, he stated that plaintiffs expert had testified that e. coli could enter the vagina through a fistula between the rectum and vagina, if a fistula were present. The physician who performed the corrective surgery on plaintiff did refer to E. coli as one type of bacterium of the rectum that could have caused an infection. Plaintiff’s medical expert testified that a fistula can allow an infection to begin by allowing fecal material into the vagina.
Defendant contends that allowing the argument involving the laboratory report was error because expert testimony was not offered to explain it, citing Lince v Monson. In Lince, the Supreme Court held that, in cases not within the common knowledge and experience of lay jurors, expert medical testimony is required in order to enable a jury to decide whether a physician’s conduct was below the applicable standard of care. In the within case, expert testimony was presented on the question of defendant’s standard of care. We do not believe that Lince means that an expert must explain every technical piece of evidence admitted at trial. In this case, some of the doctors discussed bacteria or e. coli in connection with the fistula and the breakdown of plaintiffs episiotomy, and the laboratory report that noted the presence of e. coli in plaintiffs vaginal culture had been admitted into evidence as part of plaintiffs hospi tal record. In his closing argument, defendant’s attorney also referred to the exhibit and suggested that the jury read it in its entirety. In closing arguments, reasonable inferences from the testimony may be drawn by counsel. Some leeway may be given and control of the arguments is within the discretion of the trial court.
Thus, we do not believe that it was error to allow the remarks of plaintiffs attorney. However, even if we were to assume that it was error, we believe the error was harmless because it was neither basic nor offensive to the maintenance of a sound judicial process.
We doubt that plaintiff’s attorney’s closing remarks were determinative of the outcome of this case. Both parties presented abundant expert medical testimony. Even without the remarks in question, plaintiff presented enough evidence for a jury to believe that defendant committed malpractice in treating her. Moreover, the jurors were instructed that the arguments, statements and remarks of attorneys are not evidence and that they should disregard anything said by the attorneys that was not supported by the evidence or by their own general knowledge or experience. Under these circumstances, we decline to find error requiring reversal.
Second, defendant claims that the trial court erred in refusing to grant a new trial based on a juror’s letter and affidavit alleging jury misconduct in reaching a verdict. Following the announcement of the verdict in favor of plaintiff in the amount of $85,000, the jury was polled and then discharged. Four days later, the trial judge received a letter from a juror stating that the questions on the verdict form were not answered in the correct order. Counsel for defendant obtained the juror’s affidavit to the same effect and filed it with his motion for new trial.
The general rule is that jurors may not impeach their verdict by oral testimony or by affidavit. A rule permitting unrestricted attacks on jury verdicts would undermine the finality of judgments. The rule also prevents tampering with the jury after discharge and discourages the invasion of the mental processes used to arrive at verdicts.
Defendant contends that the within case is distinguishable from Hoffman v Monroe Public Schools, Brillhart v Mullins, and Ledbetter v Brown City Savings Bank. Those cases involved jury mistakes or misunderstandings, whereas the within case involves jury misconduct. Defendant argues that the misconduct in the present case is within MCR 2.611(A)(1)(b), under which jury misconduct is grounds for a new trial, and that the Hoffman line of cases is inapplicable. We do not agree.
The trial court was correct in following Hoffman and its progeny. The Hoffman holding refers to jury misconduct as well as to jury mistakes. The policy reasons for the rule that jurors may not impeach their verdicts after polling and discharge are as compelling when misconduct is alleged as they are when mistakes are alleged. The sort of misconduct alleged in the within case, that the jury failed to follow the judge’s instructions in filling out the verdict form, relates to the mental processes of the jury and, therefore, inheres in the verdict. Moreover, the misconduct contemplated in MCE 2.611(A) (1)(b) relates to jury misconduct during or before trial that suggests a decision has been made before the close of the evidence.
Affirmed.
416 Mich 97, 103; 330 NW2d 638 (1982).
Bugar v Staiger, 66 Mich App 32, 36-37; 238 NW2d 404 (1976).
363 Mich 135; 108 NW2d 845 (1961).
Wilson v Stilwill, 92 Mich App 227, 231; 284 NW2d 773 (1979), aff'd 411 Mich 587 (1981).
Gonzalez v Hoffman, 9 Mich App 522, 526; 157 NW2d 475 (1968).
People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).
Consumers Power Co v Allegan State Bank, 388 Mich 568, 573; 202 NW2d 295 (1972); Hoffman v Monroe Public Schools, 96 Mich App 256, 257; 292 NW2d 542 (1980), lv den 409 Mich 931 (1980).
Brillhart v Mullins, 128 Mich App 140, 149; 339 NW2d 722 (1983).
Supra.
Supra.
141 Mich App 692; 368 NW2d 257 (1985).
See, e.g., Cooper v Carr, 161 Mich 405; 126 NW 468 (1910) (juror made statements outside the jury room indicating a fixed opinion as to one of the parties); Gustafson v Morrison, 57 Mich App 655; 226 NW2d 681 (1975) (juror made false statements in jury questionnaire). | [
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Per Curiam.
This is an appeal by the plaintiffs, Reurink Brothers Star Silo, Inc., and Harry A. Stark, Jr. (Reurink Brothers), from the trial court’s order of summary judgment on their claim for contribution against the Board of County Road Commissioners of the County of Clinton for failure to state a claim upon which relief may be granted.
The underlying injury occurred on August 2, 1983, at approximately 4:00 p.m. Harry A. Stark, Jr., was driving south on an unpaved section of Tallman Road at or near its intersection with Herbison Road in the County of Clinton. Stark’s vehicle was registered to Reurink Brothers. At the same time, Elizabeth Musat, was driving another vehicle on an unpaved section of Herbison Road, approaching the intersection with Tallman Road. The two vehicles collided and Mary Musat died of resulting injuries.
A wrongful death claim was brought against Reurink Brothers, on behalf of the estate of Mary Musat. Judgment was entered in favor of the estate of Mary Musat in the amount of $706,418.53 on September 11, 1984. A timely appeal was taken by Reurink Brothers. However, on March 29, 1985, that appeal was dismissed by stipulation pursuant to a settlement in the amount of $750,000.
On July 16, 1985, Reurink Brothers filed the instant claim in the Clinton Circuit Court, seeking contribution on the part of the defendant as a joint tortfeasor under Michigan’s contribution statute, MCL 600.2925a et seq.; MSA 27A.2925(1) et seq. In its responsive pleading, on August 12, 1985, the county brought a motion to dismiss, alleging that Reurink Brothers failed to plead that the county was joined in the prior action, failed to plead that the settlement extinguished the county’s liability and failed to plead that notice was provided to the county. That motion was granted, resulting in this appeal.
Reurink Brothers argues that the trial court erred by granting summary disposition. The county’s motión was brought under MCR 1985, 2.116(C)(8), failure to state a claim upon which relief may be granted. As we have held on a number of occasions, motions brought under this subrule are decided on the pleadings alone. Haddrill v Damon, 149 Mich App 702, 704-705; 386 NW2d 643 (1986).
The motion tests the legal basis of the complaint, not whether it can be factually supported. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery, the motion should be denied. McCallister v Sun Valley Pools, Inc, 100 Mich App 131, 135; 298 NW2d 687 (1980), lv den 411 Mich 905 (1981).
The right to contribution in Michigan is controlled entirely by statute, since there was no right to contribution at common law. Paisley v United Parcel Service, Inc, 38 Mich App 450, 455; 196 NW2d 813 (1972), Wilhelm v The Detroit Edison Co, 56 Mich App 116, 157; 274 NW2d 289 (1974), lv den 393 Mich 787 (1975), and Sziber v Stout, 419 Mich 514, 527; 358 NW2d 330 (1984). Michigan’s contribution statute, as amended by 1974 PA 318, provides in part:
(1) Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
(2) The right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability and his total recovery is limited to the amount paid by him in excess of his pro rata share. A tort-feasor against whom contribution is sought shall not be compelled to make contribution beyond his own pro rata share of the entire liability. [MCL 600.2925a; MSA 27A.2925(1).]
Here, paragraph 11 of the complaint alleged that the action was brought pursuant to MCL 600.2925a et seq.; MSA 27A.2925(1) et seq. Paragraphs 5 to 7 describe the fatal accident at or near the intersfection of Tallman and Herbison Roads in Clinton County. Paragraphs 3 and 13 allege that the county had jurisdiction over the crossing and therefore had responsibility for its care and control. Paragraph 8 states that a wrongful death claim was brought against Reurink Brothers on behalf of the deceased. Paragraphs 9 and 10 allege:
9.
That Judgement [sic] has been entered in the Circuit Court for the County of Clinton in favor of David L. Musat, Personal Representative of the Estate of Mary Elizabeth Musat, deceased, in the amount of Seven Hundred Six Thousand Four Hundred Eighteen and 53/100 ($706,418.53) Dollars, said Judgment having entered on the 11th day of September, 1984.
10.
That the appeal which was timely taken from said Judgment was dismissed by Stipulation on March 29, 1985, pursuant to a settlement in the amount of Seven Hundred Fifty Thousand ($750,-000).
Numerous other paragraphs of the complaint allege various contributing acts or omissions of the county.
Nowhere in the complaint does Reurink Brothers allege that it paid more than its pro rata share of the common liability. However, the county’s motion alleged only the following deficiencies in Reurink Brother’s pleadings:
(a) Plaintiffs did not join this Defendant in the suit brought against the Plaintiffs by the Estate of the Deceased nor did the Plaintiffs make timely notification to the Road Commission of its intent to file a claim.
(b) Plaintiffs have not alleged that the settlement entered into by the Plaintiffs and the Estate of the Deceased extinguished the common liability arising from the accident.
The errors alleged by the county were intended to refer to the following provision within the contribution statute:
(3) A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor if any of the following circumstances exist:
(a) The liability of the contributee for the injury or wrongful death is not extinguished by the settlement.
(b) A reasonable effort was not made to notify the contributee of the pendency of the settlement negotiations.
(c) The contributee was not given a reasonable opportunity to participate in the settlement negotiations.
(d) The settlement was not made in good faith. [MCL 600.2925a(3); MSA 27A.2925(1)(3).]
As the county asserts, Reurink Brothers failed to plead that the settlement it entered into extinguished the county’s liability. Reurink Brothers also failed to allege that it had paid its pro rata share of the common liability or that a reasonable effort was made to notify the contributee (the county) of the negotiations.
The statute implicitly sets forth the elements of a claim for contribution by a settling tortfeasor:
(1) There must be joint liability on the part of the plaintiff and defendant;
(2) The plaintiff must have paid more than its pro rata share of the common liability;
(3) The settlement entered into by the plaintiff must extinguish the liability of the defendant;
(4) A reasonable effort must have been made to notify the defendant of the pendency of the settlement negotiations;
(5) The defendant must be given a reasonable opportunity to participate in settlement negotiations; and
(6) The settlement must be made in good faith.
Since the complaint in this instance did not allege either (3) or (4), it fails to state a cause of action. We also note that the complaint fails to allege (2), (5) and (6), though that issue was not raised by the county in the trial court.
Despite its pleading that it "settled” the prior action and despite the fact that the county’s motion was filed under MCR 2.116(C)(8), Reurink Brothers argues that this Court should look outside of the pleadings to determine that it in fact "satisfied the judgment.” Thus, Reurink Brothers would have this Court conclude that its claim does not fall under paragraph (3) of the statute, MCL 600.2925a(3); MSA 27A.2925(1)(3), but under paragraph (5)
A tort-feasor who satisfies all or part of a judgment entered in an action for injury or wrongful death is not entitled to contribution if the alleged contributee was not made a party to the action and if a reasonable effort was not made to notify him of the commencement of the action. Upon timely motion, a person receiving such notice may intervene in the action and defend as if joined as a third party. [MCL 600.2925(5); MSA 27A.2925(1)(5).]
Even if Reurink Brother’s complaint is read to state a cause of action under paragraph (5), it fails to properly allege that the county was made a party to the prior action and fails to allege that a reasonable effort was made to notify the county of the commencement of the proceedings. Similarly, although Reurink Brothers has argued that actual notice should be sufficient under paragraph (5), it has also failed to allege that the county had actual notice. Thus, limiting our review to the face of the pleadings and assuming that Reurink Brothers has pled satisfaction of judgment, we would nevertheless conclude that summary judgment was properly granted under MCR 2.116(C)(8).
We further note, although it is unnecessary to our decision, that Reurink Brothers has failed to establish that the judgment was either fully or partially satisfied. In support of its assertion that its claim falls under MCL 600.2925a(5); MSA 27A.2925(1)(5), Reurink Brothers submitted a document entitled "Satisfaction of Judgment,” under which the following terms were written:
I hereby acknowledge complete and total Satisfaction of a Judgment entered on the 11th day of September, 1984, in the above entitled cause in favor of David L. Musat, as Personal Representative of the Estate of Mary Elizabeth Musat, Deceased, the above named Plaintiff against Reurink Brothers Star Silo, Inc., a Michigan corporation, and Harry A. Stark, Jr., Jointly and Severally, the above named Defendants upon the payment of Seven Hundred Fifty Thousand ($750,000.00) Dollars, receipt of which is hereby acknowledged which is to be a complete and total Satisfaction of said Judgment which is to include interest, costs and expenses; also, as part of said Satisfaction, is an Agreement entered into between the aforementioned Plaintiff and Defendants and the Aetna Casualty & Surety Company, which this Court approves.
As quoted supra, the complaint alleges that judgment in the principal case was entered in the amount of $706,418.53. The complaint further indicates that the principal complaint was filed in 1983. MCL 600.6013; MSA 27A.6013 provides for prejudgment interest at twelve percent dating from the filing of the complaint. Even assuming that the principal complaint was filed on the last day of 1983, more than nine months of prejudgment interest would have accrued by the date judgment was entered, September 11, 1984. An additional six months of interest accrued on the judgment before the date of the "satisfaction,” March 29, 1985. Therefore, by the most conservative figures, $100,000 of interest had accrued on the judgment by the time that the satisfaction was entered. Yet the satisfaction was only in the amount of $750,000. Thus, it is apparent to this Court, as it was to the trial court, that the purported satisfaction of judgment was in fact, as Reurink Brothers pled, a settlement.
The distinction between a settlement, which falls under §2925a(3) of the contribution statute, and a satisfaction of judgment, which falls under § 2925a(5) of the statute, is significant. As explained in Buckeye Union Ins Co v Lenawee Co Road Comm, 540 F Supp 634, 636 (ED Mich, 1982):
Sound policy considerations support the continued viability of [MCL 600.2925a(3)(a); MSA 27A.2925(l)(3)(a)]. When a settling co-tortfeasor negotiates a settlement, it is free to buy up all the claims, pay a higher price, obtain a full release, and thereby retain its right to contribution. Alternatively, the settling co-tortfeasor can pay a reduced price, receive only a limited release, forego its rights to contribution, and leave it to the settling plaintiff to seek further recovery from the nonsettling co-tortfeasor. This is sound policy and sound economics.
Thus, the extinguishing of the contributee’s liability, required for settlements under MCL 600.2925a(3)(a); MSA 27A.2925(l)(3)(a), provides assurance that a contributee will not be forced to pay more than its pro rata share by paying for its liability once to the settling plaintiff and once to the injured party in separate, subsequent proceedings. The joinder requirement of MCL 600.2925a(5); MSA 27A.2925(1)(5) provides the same assurance for the contributee of a tortfeasor who satisfied the judgment. If, on the other hand, a plaintiff has neither truly satisfied the judgment nor obtained a settlement and release for the contributee, the contributee would potentially be subject to payment of far more than its pro rata share. That result is clearly contrary to the intent of the contribution statute as set forth in MCL 600.2925a(2); MSA 27A.2925(1)(2) and MCL 600.2925b; 9MSA 27A.2925(2).
In short, even if we were to consider the county’s motion as one for summary judgment under MCR 2.116(0(10), if we were to include in our review the additional document filed by Reurink Brothers’ and if we were to construe Reurink Brothers’ complaint as one falling within MCL 600.2925a(5); MSA 27A.2925(1)(5), we would conclude that summary judgment was appropriate.
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Per Curiam.
Plaintiff appeals from the July 7, 1986, order of summary disposition in favor of defendant. The Ingham Circuit Court found that plaintiff’s claim of attorney malpractice was barred by the statute of limitations.
Plaintiff filed the instant complaint on April 4, 1986, against defendant, George Sullivan, an attorney she had hired to represent her in the sale of a restaurant and tavern business. Plaintiff alleged that defendant improperly drafted one or more documents of sale, failed to protect the security interest in certain personal property, and failed to draft the reassignment agreement which would reassign the liquor license if the purchasers defaulted. On April 11, 1984, the purchasers of the business filed a petition in bankruptcy. Plaintiff alleged that, as a result of defendant’s various breaches of duty, she suffered loss because she was unable to regain possession of the personal property sold with the business or the liquor license. Further, she was unable to resell the property she did recover as a business.
On May 16, 1986, defendant filed a motion for summary disposition, alleging that the period of limitations had run. Defendant attached an affidavit averring that the last date he rendered legal services to plaintiff was in July, 1981. Defendant also attached a letter to the motion which plain tiff’s present attorney, Jay Mitzner, had sent to him on July 26, 1984. In the letter, Mitzner informed defendant that he had been retained by plaintiff to review the documents defendant had prepared in the course of representing plaintiff in the sale of her business. Mitzner stated that during his review of the documents he had found "serious defects,” including specifically defendant’s alleged failure to file the financing statement necessary to perfect the security agreement. Upon these facts, defendant contended that the complaint was filed more than two years after the last date of service and more than six months after the date of plaintiff’s discovery of the claim. The circuit court agreed and ruled in defendant’s favor.
On appeal, plaintiff does not argue that the claim was filed within six months of its discovery. Rather, plaintiff argues that her claim did not accrue until April 11, 1984, the date the purchasers filed their bankruptcy petition, and that she had two years from that date to file her complaint. Plaintiff bases her argument on two related theories.
First, plaintiff argues that an attorney has a continuous obligation to serve his client that continues to exist beyond the date that the attorney closes the file and completes the work. Plaintiff contends that an attorney does not "discontinue treating or otherwise servicing” his client unless his client or the court relieves him of the obligation. Thus, plaintiff argues that, in the absence of any formal discharge, the trial court erred in concluding that defendant discontinued servicing plaintiff more than two years before the filing of the complaint. In reliance upon the premise that an attorney’s obligation to serve lasts until formal discharge, plaintiff then argues that a malpractice action only accrues when all of the necessary elements of the cause of action have occurred. One necessary element of a malpractice claim is "damage.” Plaintiff asserts no damage occurred until April 11, 1984, when the purchasers of the business filed a petition in bankruptcy. It is not until that date that defendant’s actions became irremediable. Thus, plaintiff argues that her claim accrued on April 11, 1984, at which date defendant was still under an obligation to serve her interest, and that she therefore had two years from that date to file a complaint.
The cases cited by plaintiff, Basip Food Industries, Inc v Travis, Warren, Nayer & Burgoyne, 60 Mich App 492; 231 NW2d 466 (1975), State Bar of Michigan v Daggs, 384 Mich 729; 187 NW2d 227 (1971), and Lipton v Boesky, 110 Mich App 589; 313 NW2d 163 (1981), do stand for the proposition that an attorney does not "discontinue treating or otherwise servicing his client” for purposes of the malpractice statute of limitations until his client or the court relieves him of the obligation. However, the facts in those cases are easily distinguishable from the facts of the present case. In Basic Food Industries, Lipton, and State Bar of Michigan, the attorneys were involved in ongoing litigation; thus, the only way the attorney could be relieved of his representation of his client was by a formal discharge by his client or upon the attorney’s own motion with or without his client’s consent and a subsequent order of the court relieving the attorney of his representation.
In the present case, the defendant was retained by plaintiff to perform specific legal service, i.e., to advise and represent her in the sale of her business and draft certain documents in connection with the sale. Defendant was not retained to represent plaintiff in any pending or proposed litigation, It is uncontroverted that defendant rendered no legal services to plaintiff of any kind after July, 1981. The file had been closed and to all parties the matter appeared completed. We perceive no reason why a formal discharge by a client or court order would be practical or necessary in such a situation.
Plaintiff next argues that her claim could not and did not accrue until she had incurred damages on April 11, 1984, when the purchasers of her business filed for bankruptcy and defendant’s acts of malpractice became irremediable. Plaintiff relies on the rulings stated in Biberstine v Woodworth, 406 Mich 275; 278 NW2d 41 (1979), Luick v Rademacher, 129 Mich App 803; 342 NW2d 617 (1983), and Dowker v Peacock, 152 Mich App 669; 394 NW2d 65 (1986), to support her contention.
The above cases are distinguishable in that none of the passages upon which plaintiff relies dealt with the last date of service, the only issue now before this Court. MCL 600.5805;. MSA 27A.5805 provides:
A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
(4) the period of limitations is two years for an action charging malpractice.
At the time plaintiff’s cause of action arose, MCL 600.5838; 27A.5838 provided:
(1) A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession . . . accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudopro-fessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.
(2) An action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. ... A malpractice action which is not commenced within the time prescribed by this subsection is barred.
The. statute is explicit. The action must be commenced within two years from the time the person discontinues treating or otherwise servicing the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. Thus, the issue of when plaintiff incurred damage (i.e., the date on which all the elements of a claim are established so that the plaintiff becomes aware of the existence of a claim) is not relevant to determining the last date of service.
We note that the Legislature recognized that a statute of limitations which only permitted a malpractice claim to be filed within two years of the last date of service might not always be equitable. Thus, the Legislature also provided that a malpractice action may be filed within six months after the plaintiff discovered or should have discovered the existence of the claim. The plaintiff may take advantage of whichever provision provides the longer period within which to file.
In the instant case, plaintiff had the opportunity to take advantage of the six-month discovery rule and if she had done so would have been able to bring the instant complaint despite the fact that more than two years had passed since the last date of service. However, plaintiff failed to file the complaint within six months of her discovery and no issue involving the discovery rule has been raised on appeal. There is no factual dispute that defendant’s legal services to plaintiff were discontinued in July, 1981. It is further uncontested that the claim of malpractice arose out of the legal work rendered at or prior to that time. Thus, the two-year period set forth under MCL 600.5838; MSA 27A.5838 expired in July, 1983. Consequently, plaintiff’s cause of action is barred under the statute.
The trial court is affirmed.
Plaintiffs argument would be better received if it were asserted as a basis to determine when the six-month discovery period began to run.
While plaintiff disputes that the last date of service occurred in July, 1981, her dispute involves a legal question, not a factual one. Plaintiffs position is that an attorney’s obligation to serve his client continues until formal discharge. We have addressed this issue, supra, and have found it to be without merit under the particular facts of this case. There is no dispute that defendant completed all work on plaintiffs behalf and closed the file in July, 1981. At that point, there was no ongoing litigation or relationship between the parties and both considered the matter closed. These facts are not controverted. | [
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Per Curiam.
Defendants appeal as of right the trial court’s order granting plaintiffs motion for summary disposition. MCR 2.116(0(10). We affirm.
Plaintiff filed this declaratory judgment action in order to determine whether it had a duty to provide coverage to or to defend defendants-insureds under the terms of its insurance policy. In September, 1983, Larry Donnell Harris filed a complaint in federal district court against the Village of Cassopolis and others claiming that those defendants had discriminated against him because of his race and mental handicap in terminating his employment with the village. Upon being sued by Harris, the defendants asked plain tiff in this action to defend them and to provide coverage if they were found to be liable to Harris. After reviewing Harris’ complaint, plaintiff informed the defendants that they were not covered for the allegations set forth by Harris. Thereafter, plaintiff filed this declaratory judgment action, requesting the court to find that the defendants were not covered under the terms of the policy. Later, plaintiff moved for summary disposition and the trial court granted its motion. Defendants moved for rehearing, but their motion was denied. They now appeal to this Court.
The parties do not dispute that the following policy language is dispositive:
I. COVERAGE A—BODILY INJURY LIABILITY
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage. . . .
EXCLUSIONS
This insurance does not apply:
(i) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation, unemployment compensation or disability benefits law, or under any similar law;
(j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury; but this exclusion does not apply to liability assumed by the insured under an incidental contract. . . .
VI. DEFINITIONS
When used in this endorsement . . .:
"bodily injury” means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom;
"occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
Defendants claim that Harris alleged bodily injury in his complaint. In Farm Bureau Mutual Ins Co of Michigan v Hoag, 136 Mich App 326, 332, 335; 356 NW2d 630 (1984), lv den 422 Mich 920 (1985), this Court held that the phrase "bodily injury” is unambiguous and does not include humiliation and mental anguish and mental suffering. As a minimum, this Court held, it would require physical manifestation of mental suffering to satisfy the bodily injury requirement. Id.
In this case, Harris repeatedly asserted that he suffered humiliation, mental anguish and mental and physical distress; however, he did not allege any physical manifestations of his mental injuries. Moreover, the only physical injury described by Harris was one for which he received workers’ compensation. As noted in the exclusion provision quoted above, plaintiff is not liable for such injuries. Hence, we conclude that the trial court correctly granted plaintiffs motion for summary disposition because Harris did not allege a bodily injury within the terms of the parties’ insurance policy.
Even if we were to accept defendants’ contention that Harris suffered a bodily injury, we would still conclude that defendants were not entitled to coverage because (1) the bodily injury did not arise out of an occurrence as defined by the policy and (2) the policy does not cover bodily injury to employees of the insured (defendants) arising out of and in the course of an employee’s employment.
First, an occurrence, as defined above, does not include acts intended or expected to result from the insured’s actions. Instead, it involves an accident. See also Frankenmuth Mutual Ins Co v Kompus, 135 Mich App 667, 678-680; 354 NW2d 303 (1984), lv den 421 Mich 863 (1985). Although Harris alleges injuries "arising out of . . . acts involving negligence and also acts of [a] deliberate nature on” defendants’ parts, we conclude that Harris’ claim is really one for discriminatory acts intentionally engaged in by defendants. Id., p 682. See also Hoag, supra at 333, discussing Rolette County v Western Casualty & Surety Co, 452 F Supp 125 (D ND, 1978). See and compare Linebaugh v Berdish, 144 Mich App 750, 763; 376 NW2d 400 (1985).
Second, even if we accepted defendants’ arguments that Harris suffered bodily injury as a result of an occurrence, we would have to deny his claim because paragraph (j) of the exclusion provisions quoted above clearly and unambiguously states that an insured may not recover for bodily injury to the insured’s employees when they are injured in the course of their employment. Reading the insurance policy as a whole, we reject defendants’ claim that exclusion provision (j) was intended to apply to workers’ compensation claims; instead, we find that exclusion provision (i) bars coverage for workers’ compensation claims and, therefore, provision (j) applies to bar coverage for claims such as those made by defendants. See generally Murphy v Seed-Roberts Agency, Inc, 79 Mich App 1, 8; 261 NW2d 198 (1977).
Because we have concluded that no theory of recovery falls within plaintiffs policy coverage, plaintiff had no duty to defend defendants in the suit filed by Harris. Linebaugh, supra, pp 762-763.
Affirmed. | [
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Sherwood, J.
The plaintiff in this case brings suit against the city of Grand Rapids for damages for injuries he claims to have sustained from a fall, occasioned by a defective crosswalk which it was the duty of the city to keep in repair. The case was tried in the Superior Court of that city before a jury, and under the rulings of the court the defendant obtained judgment. No question arises upon the pleadings in the case.
The plaintiff, on the'evening of the 7th of December, 1881, was passing along Third avenue, in the city, on the sidewalk. At the end of the same, and at the point where the cross-walk begins, the walk had been removed for several feet, and a depression thereby created of about eight inches. The plaintiff did not see the depression, and in stepping off the end o.f the sidewalk fell, and, as he claims, was seriously injured, entirely through the neglect of the city to keep said cross-walk in proper repair. It was not pretended by the city but that the injury, whatever it was, occurred on the ¿ cross-walk. Neither did it deny its liability in case injury was sustained without negligence on the part of plaintiff.
Seven of the eight errors assigned relate to the rulings of the court upon the trial.
A juror was called to make out the panel who had but a short time before and within a year served as a talesman in a street-opening case in said court, and was permitted to sit against the objection of the plaintiff’s counsel, under the statute of 1869. This is claimed as error, and we think correctly. ■ The statute provides that it shall be a good cause for challenge “if the person has served as a juror or as talesman in such court at any time within one year previous to such challenge.” We think the case falls within the statute.
The plaintiff’s second and eighth assignments of error were abandoned on the argument.
The following question was propounded to the plaintiff when on the stand as a witness: “ lias this breach [an injury claimed to have been occasioned by the fall] prevented you from attending to your necessary and lawful affairs and busi ness?” The answer was, “Yes, sir.” Counsel for defendant then moved to strike out the testimony on the ground that the question was leading; and this was done against the objection of plaintiff’s counsel. We think the exception to this ruling was properly taken. The testimony was relevant and material to the issue; and while the question was subject to the technical objection of being leading, such objection was not made, and it could not be used on a motion to strike out after the answer was given. Technical grounds do not furnish sufficient reasons for a motion to strike out testimony. This class of objections arise out of inability to make a general rule which is applicable to the circumstances of every case. They are seldom resorted to for the purpose of eliciting the truth, and when a party does so he will be confined to the letter of the rule which requires the objection to be made before the answer is given. We think the testimony should .have been allowed to stand, and it was error to exclude it.
Counsel for defendant was permitted by the court, against the objection of irrelevancy and immateriality, to make proof of the condition and appearance of the premises where the accident occurred, six months after the plaintiff received his injuries, upon the condition stated, that he would subsequently show that they were then the same as when the accident occurred. He failed to make the subsequent proofs and the testimony was allowed to stand, and we think properly. The objection remained good through the trial, and it was the duty of the court to see to it that the testimony was made relevant as proposed, or to strike it out, had his attention been called to the failure to make the promised proof. Plaintiff’s counsel having failed to do so, it cannot now be urged as error. The. view of the premises ordered was within the discretion of the court, and while we are unable to see what benefit could have been derived from it, under the circumstances there was no abuse of the discretion.
The testimony offered in rebuttal to show that the plaintiff, after the alleged injury, was not an able-bodied man, was competent, and not subject to the objection made. It was a part of the theory of the defendant that plaintiff was not seriously injured; and, if he was, that he did not receive his injuries from the fall, and gave testimony tending in this direction. The offered testimony was properly rebutting. I do not think the limitation placed upon this class of testimony was proper. The theory and testimony of the defendant both offered to the plaintiff a wider range in rebuttal.
For the errors here noticed the judgment must be reversed, and a new trial granted.
Cooley, C. J., and Campbell, J., concurred.
Champlin, J.
While I agree with my brothers that the judgment should be reversed, I do not .think the objection valid which was taken to the ruling of the court relative to the challenge of the juror who had served as a talesman in a street-opening ease. I do not think that the statute refers to jurors in such special proceedings, but only to jurors summoned to form the regular panel, and talesmen in the ordinary trial of causes in courts of record.
The limitation was that plaintiff must confine his testimony to showing that he had no breach before the accident. | [
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Champlin, J.
The plaintiff brought this action against defendant for the breach of an alleged verbal warranty. The warranty consisted in stating that a certain note which plaintiff was offered as part of the purchase price of a farm the plaintiff was selling to defendant’s son was as good as gold, or as good as money. The note was in fact worthless. The circuit judge instructed the jury that the statement, if anything, was a guaranty of the collection of the note, and that it became necessary for the plaintiff to pursue such remedies as the law afforded him to enforce the collection from the maker of the note before he could sue the defendant in this case; and not having done anything in that regard, he directed that a verdict be rendered for the defendant, which was done.
The plaintiff did not count upon a guaranty, nor did the evidence tend to prove that the contract was a guaranty of the collection of the note. A warranty that anote is as good as the money, or that it is as good as gold, is not in legal effect a guaranty that the note is collectible by due process of law. The parties, had a right to bind themselves by a contract to what extent they pleased, within legal and possible bounds. Koch v. Melhorn 25 Penn. St. 89.
The court erred in the instructions given, and
The judgment is reversed and a new trial is ordered.
The other Justices concurred. | [
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Cooley, C. J.
The appellant is widow of Frederick Kempf, late of the county of Washtenaw, deceased. She is also executor of his will. One clause of the will is as follows :
“ I give and bequeath to my said wife all the cattle, horses —except the span of horses or colts and harnesses otherwise disposed of — sheep, hogs, farming tools, implements and machinery, wagons, carriages, harnesses, and all other personal property belonging to or used in connection with said farm, and being thereon at the time of my death, to be used and enjoyed by said wife until my youngest son W. Bernhard Kempf, shall come of age.”
Following this were provisions for the contingency of this son dying before coming of age; and it then proceeds:
“ It being my intention to keep said farm and the personal property thereon in the hands of my said two sons, W. Bernhard Kempf and Andrew Kempf, or either of them, and their heirs and assigns, forever ; and in the hands of my said wife during life; and only when death shall have swept away all three of them, shall said farm and said personal property pass to my other heirs at law according to the laws of descent.”
The will bore date June 7, 1879. The testator died January 6, 1882. At the time of his death he had wheat in the barn on his farm which had been raised on the farm, and which the executrix afterwards sold for upwards of $400. When she rendered her accounts in the probate court she claimed the proceeds of this wheat under the clause in the will above recited ; but the judge of probate decided that it belonged to the residuary legatees. She appealed to the circuit court from this decision, and it was there affirmed. She then removed the ease to this Court.
- We are inclined to hold with the probate and circuit courts, that the widow is not entitled to this money. The wheat had been harvested and threshed before the testator’s death, and though it still remained upon the farm, it was only there awaiting a proper and convenient time for marketing. Had it been sold before he died or had it even been stored in some mill or warehouse to await sale, it would have been clear that the widow could not claim it. But the storing it off the farm rather than on it is not a circumstance on which the testator would have been likely to make his gift depend; aifd there is good reason for believing that he did not intend to give to the widow under the general language made use of by him, any marketable commodity which at the time of his death had no other connection with the farm than that of awaiting upon it a time for marketing. Still, the question of construction is not free from doubt in our minds; and in affirming the order we think it proper to allow to the appellant, as well as the appellees, her costs, to be taxed by the probate judge against the estate.
The other Justices concurred. | [
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[indorsement]
Ex parte Benj. Irish:
Filed July 12th 1841 A. Treadway Clerk
Sup Court 4th Circuit
[opinion]
Ex parte Benjamin Irish
Habeas Corpus ad Sub[m:i
The party (Irish) was brought before me by virtue of a writ of Habeas Corpus: The writ was directed to the Sheriff of Oakland County, who returned, in obedience to the writ that he held Irish in custody by virtue of a capias ad Satisfaciendum issued out of the Circuit Court of the County of Genesee.
It appears that judgment was rendered in Genesee County, in favor of Ge0 W Wisner & against Irish for $50 & costs: that the action brought by Wisner was for a libel, which I take it for granted authorized the suing out of a ca sa, on the judgment:
The only objection to the writ is, that it directs the Sheriff of Oakland County to commit Irish to the jail in Genesee, in the event that no goods & chattels &c can be found to satisfy the execution: it is contended that if imprisoned at all, he must be imprisoned in the County in which he resides, & that, therefore, the writ should have directed the Sheriff accordingly.
Upon a review of the Statutory provisions on the subject, I am clearly of opinion that the objection to that part of the writ, which commands the Sheriff to commit the defendant to the Keeper of the jail in Genesee is well taken: It is a well established principle that the Sheriff must obey the command in the writ: by it he must be guided: If that officer, contrary to the command in the writ, should undertake to incarcerate Irish in this County, he would, I think, be liable in action for false imprisonment: this would result from the disobedience of the command in the writ, not withstanding the place of confinement is the one designated by law; for the Sheriff is a mere ministerial officer, & cannot of consequence exercise a discretion which is strictly judicial: So much, then, of the ca sa as directs the Sheriff to deliver Irish to the Keeper of the jail in Genesee, is irregular, & therefore void:
It is, therefore, ordered & adjudged, & I do accordingly order & adjudge that the Sheriff of Oakland County do release & discharge from his custody the said Benjamin Irish, provided he be held by none other than the writ of capias ad satisfaciendum aforesaid:
Chas W Whipple
Pontiac 12 July 1841. Asso Jus Sup Court. | [
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[indorsement]
Sup. Court. Pontiac Jany 1841
Hill vs. Paddock et al
Mem? of opinion Same term—
[opinion]
George Hill vs. David Paddock & Gid. O. Whittemore
On a question of law reserved & certified to this Court by the Pres. Judge of the Circuit for the County of Oakland.
The action below was assumpsit on a promissory note, drawn in the following manner
“One year from date for value recd we jointly and severally [promise] to pay George Hill or bearer four hundred dollars & interest.
Pontiac Feby 11, 1837
Signed D. Paddock
G. O. Whittemore
At 12 per cent int
D.P.”
The Plff declared upon the note without noticing the mem" at the foot of the note.
On the Trial the Plff proved the execution of the note by the Defts, and offered the same in evid. in support of his said action. To this the Defts Atty objected on the ground of variance between the note offered in evid. and that described & set forth in Plffs declaration, in this, that the mem" at the bottom of the note offered in evid. formed a part of the note, and that it was therefore materially variant from that described in the declaration.
This objection was overruled by the .Circuit Court, and the note was given in evid. A verdict found thereon for the Plff.
The Defts moved the Circuit Court for a new trial, and as a reason in support of their motion insisted that the Circuit Court erred in permitting the note to go to the jury. And the question now is whether there was a material variance.
On the part of the Defts it [was] urged that there was a variance, because the mem0 formed a part of the note, and should therefore have been declared on — and that having omitted to declare on the note according to the terms of the note itself, there is a misdescription of the note in the declaration.
On the part of the Plff it is insisted that the mem0 upon ' the note is unmeaning or insensible in the absence of any evid. explanatory of its meaning, that neither the Circuit Court nor this Court can undertake to affix a meaning to the mem0 for the purpose of affecting the plain and manifest terms of the note—
1. Can the Court in the absence of all evid. intend or presume that the letters D. P. mean David Paddock one of the makers of the note? or
2. that the mem° was made at the time of the execution of the note by the Defts — ?
This Court certainly cannot, in the absence of proof, affix any meaning to the letters D. P. nor can they say that the mem0 was made at the time of making the note, or was a part of the contract. We cannot therefore regard it as a substantive part of the note.
• What affect might be given to this mem0 upon the assess* of dam®, whether the Plff producing the note with this mem0 upon it would not be bound by it — and thereby bring himself within the penal stat., giving a forfeiture where usury has been reserved it is not necessary now to determine—
We are of the opinion that the objection was properly overruled — certified accordingly— | [
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[indorsement]
Sup. Court Ist Cir. Jany ’42
Lockwood et al vs. Scudder et al
Mo. to quash Attachment—
Mem0 of opinion 29 March ’42
[opinion]
James L. Lockwood & Hiram Barrett vs. John H. Scudder & Edwin Wilcox
Motion to quash and set aside proceedings on a writ of Attachment. Certified from Wayne Circuit, Court, on a statement of Facts agreed upon by the Attys of the parties.
From the facts agreed on it appears that the Plffs on the 2 Feby ’41, obtained from the Clerk of the Cir. Court of Wayne Co. on the usual affid* — of indebtness and that Defts were non residents a writ of Attach, against the Deft, returnable the next May term — And afterwards on the same day, filed an affid* that Defts had property in the County of Hillsdale, and another affid* that Henry A. Delavan of the Co. of Hillsdale, had monies & effects in his hands belonging to the Defts — And upon these affid*5 — obtained another writ of Attach* directed to the Shff of Hillsdale County and returnable at the said May term. To the the first writ, directed to the Shff of Wayne County, the Shff returned that he could find no goods, &°&c in the County where onto levy the Attach*—
Under the 2d writ of Attach* directed to the Shff of Hills-dale, H. A. Delavan was summoned as Garnishee, and on the return of the writ appeared and admitted that he had moneys and effects of Defts in his hands—
At the May Term ’41 the Defts Atty moved the Court below to quash & set aside all the proceedings.
The grounds relied upon in support of this mo. are
1. That as the writ directed to the Shff of Wayne Co. was not levied on any property, the second writ directed to the Shff of Hillsdale Co. was issued without any authority of law—
2. That the Cir. Court for the County of Wayne could only acquire jurisdiction of the cause by return of the writ of Attach* upon property within that County, and as no property was attached on that writ, or any other proceedings had upon it, by which the Cir. Court could acquire jurisdiction, that Court cannot take jurisdiction of the cause in virtue of the issuing and service of the writ directed to Hillsdale Co.
3. That if the writ of Attach* issued to the County of Hills-dale was regularly issued, yet the Plffs could not on such writ, proceed against the rights, credits &° in the hands of the Garnishee, but could only proceed to attach the lands, tenements, goods or chattels of the Defts situate in that County—
In opposition to the motion, and in support of the proceedings it is contended
That the Stat. authorised the issuing of the second writ of Attach*, on the taking of the writ of Attach* in the proper County; and that the jurisdiction of the Court over the cause on the service of the 2d writ, was not dependent upon the taking of property on the original writ — And that inasmuch as the Statutes directs that the same proceeding shall be had upon the 2d writ as upon the original writ — The Plffs had a right to Garnishee any one having moneys, credits or effects in his hands belonging to the Defts — & that choses in action, are properly included under terms “goods & chattels” mentioned in the Stat.—
The determination of the questions raised in this case will depend upon the construction of the Stat. for—
It is not, and cannot be questioned, that the Legislature may, if it deems proper, give jurisdiction to the Circuit Court of any County in cases of Attach* by the service of a writ of Attachment in any other County in the State—
The first seventeen Sections of Chap. 1, Title 4, Part 3d of the Rev. Stat. provide for the issuing, and serving writs of Attach*8 and the manner of proceeding to judg* — •
The 18th Sect., under which the 2a writ'of Attach*, was issued in this case, provides, that “In all cases of Attachments in virtue of the provisions of this Chapter, if the Plff, or some other person in his behalf, shall make and file with the Clerk an affid*, stating therein that he believes that the Deft in Attach*, has lands, tenements, goods or chattels, situate in any other county in this state, naming therein the county, the clerk shall, on application in behalf of the Plff, make out and seal another writ of attach*, directed to the Shff, or other proper officer of the County in which such property shall be, who shall serve and return the same in the same manner, and under the same liabilities and penalties, as if such writ had issued, and been made returnable in his own County: and on such writ being executed, the same proceedings shall be had, as hereinbefore prescribed — ”
The contingency, declared by the Stat., upon which a second writ may be taken into another county, is the pendency of an attach* in'virtue of the previous provisions of that Chapter.
The words of the Statute are “ in all cases of Attach*” &c. seem to me to require that a suit in Attach* be pending — that property has been attached on the original writ, or a Garnishee summoned, so as to give the Court jurisdiction, on the original writ, before another writ may be issued into another County—
It does not appear to have been the intention of the Legislature to give jurisdiction by the issuing of the second writ, but when jurisdiction has been acquired by an attach* of property, or by summoning the Garnishee under the original writ, to give additional and further process, to perfect the remedy, and reach other property of the Defts.
Such, we should naturally suppose was the intention of the Legislature, and there is nothing in the Stat. which requires a different construction — On the contrary, the very language of the Stat. seems to require such a construction—
The very language employed seems to require, that, before the second writ shall isssue, an attachment shall be pending over which the Court has jurisdiction—
The language is “In all cases of Attachment in virtue of the frovisions of this chapter”--
This does not mean, merely the issuing of the writ — It includes also such proceedings on the writ, as to give the Court jurisdiction, and when that jurisdiction has attached, then the Plffs may proceed, under the 18 th Section, to bring within the jurisdiction of the Court any property which may be found in another County—
—And besides, if jurisdiction may be acquired in virtue only of the service of the collateral writ, a suit may be commenced in a Cir. Court in any County, when there is no property, and for the very purpose of attaching property in another County — For in order to obtain a writ of Attach* it is not necessary that an affid* should be made stating that the Deft has property in the County.—
Statutes of this description, giving a special remedy in derogation of Common law rights, are to be strictly construed
Mo. granted — &° | [
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Borrello, P.J.
This appeal involves an insurance coverage dispute between plaintiff/counterdefendant, Travelers Froperty Casualty Company of America (plaintiff), and defendant/counterplaintiff, Feaker Services, Inc. (defendant). The trial court denied plaintiffs motion for summary disposition under MCR 2.116(C)(10) and granted summary disposition in favor of defendant under MCR 2.116(1)(2). The trial court held that plaintiff had a duty to defend and indemnify defendant in a separate breach-of-contract action pursuant to the commercial general liability (CGL) insurance policy that it issued to defendant. Flaintiff appeals as of right. For the reasons set forth in this opinion, we affirm.
I. FACTS AND PROCEDURAL HISTORY
Defendant is a corporation involved in the business of servicing commercial power-generation systems. Effective June 1, 2007, plaintiff issued a CGL policy to defendant wherein plaintiff agreed to provide liability coverage for “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”
In 2006, the University of Michigan contacted defendant seeking a quote for services at its central power plant in Ann Arbor. The power plant utilizes steam turbines that generate electricity by directing steam across fan blades mounted to a generator. The university hired defendant to install an “electronic over-speed system” to replace its mechanical over-speed system. An over-speed system is used to prevent the turbines from spinning too fast and causing damage to the equipment.
On July 18, 2006, the university signed a purchase-order agreement for defendant to install a ProTech 203 Digital Fault Tolerant Over-Speed Trip System (Pro-Tech 203). The contract contained the following pertinent provisions:
4.0 Warranties and Representations of Supplier. Supplier acknowledges that the University is relying on these representations and warranties as essential elements to this Agreement, representing as they do, material inducements, without which the University would not have entered into this Agreement.
4.1 General Product Warranty. Supplier represents that all products and any support services provided under this Agreement (a) are new and unused. .. and free from defects in material and workmanship; (b) are of the quality, size, dimension and specifications ordered; (c) meets the highest performance and manufacturing specifications as described in documents or writings made available by the Supplier to the public or University ....
4.2 Qualifications. Supplier warrants that it, as well as its employees, agents and subcontractors engaged to provide the products or services under this Agreement... , has and will maintain all the skills, experience, and qualifications necessary to provide the services contemplated by this Agreement, including any required training, registration, certification or licensure.
15.18 Supplier Damage to University Property. Without regard to any other section of the Agreement, Supplier shall be responsible for the costs to return to “as was” condition from any damage caused to the building, grounds, or other equipment and furnishings caused in whole or part by Supplier Personnel while performing activities arising under this Agreement. Supplier shall immediately report in writing the occurrence of any damage to the Building/Project Manager.
Defendant commenced work on the power plant in October 2007. Shortly after defendant completed the project, however, the power plant experienced problems. According to the university, defendant improperly calibrated the ProTech 203, causing one of the university’s turbines to operate at twice the safe operational speed, resulting in significant damage to the generator equipment.
On March 17, 2011, the Regents of the University of Michigan and their captive insurer, Veritas Insurance Corporation (together referred to as “the Regents”), commenced a breach-of-contract action against defendant seeking in excess of $3 million in damages. The Regents alleged that defendant breached express warranties contained in the purchase-order agreement, breached the implied warranty of merchantability under the Uniform Commercial Code (UCC), MCL 440.1101 et seq., and breached “the prevailing industry standards and practices . . . .”
Defendant filed a claim with plaintiff under the CGL policy asking plaintiff to defend and indemnify it in the Regents’ suit. Plaintiff participated in the defense, but reserved the right to dispute coverage.
On June 14, 2012, plaintiff commenced this lawsuit seeking a declaratory judgment regarding its contractual obligations to defend and indemnify defendant under the CGL policy. Defendant filed a counterclaim, seeking a declaratory judgment that plaintiff was obligated to defend and indemnify defendant under the policy.
Plaintiff moved for summary disposition under MCR 2.116(C)(10), arguing that it did not have a duty to defend and indemnify defendant, in part, because defendant’s claim was excluded under the CGL policy’s “contractual liability” exclusion. That exclusion provided, in relevant part, that the insurance contract did not cover bodily injury or property damage for which defendant was obligated to pay damages “by reason of the assumption of liability in a contract or agreement.”
Plaintiff argued that defendant’s claim fell within the contractual-liability exclusion because defendant was liable to the university by way of an assumption of liability. Specifically, plaintiff cited § 15.18 of the purchase-order agreement, wherein defendant agreed that, in the event the power plant was damaged, it would be “responsible for the costs to return [the property] to ‘as was’ condition. . . .” Plaintiff essentially argued that in this clause, defendant “assumed” its own liability and therefore was not covered for damages arising from breach of the contract.
Defendant responded, arguing the contractual-liability exclusion applied only to agreements wherein the insured assumed liability of a third party — i.e., indemnity or hold-harmless agreements. Defendant argued that it did not assume the liability of a third party, hence, there was no “assumption of liability” and plaintiff was obligated to provide coverage.
Following oral arguments, the trial court denied plaintiffs motion and granted summary disposition in favor of defendant pursuant to MCR 2.116(I)(2). The trial court did not clearly articulate the basis for its holding; rather, the court appeared to hold that the contractual-liability exclusion did not preclude coverage because “what we have - there’s potential tort liability and the fact that it’s blocked by the statute of limitations I think is not decisive here. We look at the gravamen of the allegations, which are in fact negligence.”
To obtain a final judgment and narrow the issues for appeal, plaintiff amended its complaint to, apart from the contractual-liability exclusion, “withdraw the other grounds for asserting a lack of coverage.” The trial court entered a written order on February 14, 2013, granting judgment in favor of defendant and holding that defendant was entitled to coverage under the CGL policy. This appeal ensued.
II. STANDARD OF REVIEW
At issue in this case is the interpretation and application of an insurance contract, which presents a question of law that we review de novo. Cohen v Auto Club Ins Ass’n, 463 Mich 525, 528; 620 NW2d 840 (2001). Similarly, we review de novo a trial court’s ruling on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
III. ANALYSIS
Plaintiff argues that the trial court erred by holding that the contractual-liability exclusion did not preclude coverage. Resolution of this issue requires that we construe the relevant portions of the insurance policy.
A. PRINCIPLES OF INTERPRETATION
Similar to any other contract, “[a]n insurance policy must be enforced in accordance with its terms.” Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 111; 595 NW2d 832 (1999). “Interpretation of an insurance policy ultimately requires a two-step inquiry: first, a determination of coverage according to the general insurance agreement and, second, a decision regarding whether an exclusion applies to negate coverage.” Auto-Owners Ins Co v Harrington, 455 Mich 377, 382; 565 NW2d 839 (1997). “While [i]t is the insured’s burden to establish that his claim falls within the terms of the policy, [t]he insurer should bear the burden of proving an absence of coverage.” Hunt v Drielick, 496 Mich 366, 373; 852 NW2d 562 (2014) (quotation marks and citations omitted) (alteration in original). And, “[e]xclusionary clauses in insurance policies are strictly construed in favor of the insured.” Auto-Owners Ins Co v Churchman, 440 Mich 560, 567; 489 NW2d 431 (1992). “However, [i]t is impossible to hold an insurance company liable for a risk it did not assume, and, thus, [c]lear and specific exclusions must be enforced.” Hunt, 496 Mich at 373 (quotation marks and citations omitted) (alteration in original).
B. GENERAL INSURANCE AGREEMENT
CGL policies are generally written on standardized forms developed by the Insurance Services Office, Inc. (ISO). American Family Mut Ins Co v American Girl, Inc, 268 Wis 2d 16, 33; 2014 Wis 2; 673 NW2d 65 (2004). The CGL policy provides coverage for “sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” (Emphasis added.) The policy defines “property damage” to include “[p]hysical injury to tangible property,” or “[l]oss of use of tangible property,” arising from an “occurrence” that occurs in the “coverage territory.”
In this case, plaintiff does not argue that the university’s property damage did not arise from an occurrence within the meaning of the CGL’s general insurance agreement. Instead, plaintiff contends coverage was precluded by the policy’s contractual-liability exclusion. Therefore, we proceed by determining whether the contractual-liability exclusion applied to negate coverage.
C. CONTRACTUAL-LIABILITY EXCLUSION
The CGL policy provides a “broad statement of coverage, and insurers limit their exposure to risk through a series of specific exclusions.” American Family, 268 Wis 2d at 34. The contractual-liability exclusion provides in pertinent part:
(2) Exclusions
This insurance does not apply to:
b. Contractual Liability
“Bodily injury” or “property damage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
(1) That the insured would have in the absence of the contract or agreement; or
(2) Assumed in a contract or agreement that is an “insured contract”.. .. [Emphasis added.]
This clause contains two components: (1) a contractual-liability exclusion that excludes coverage for damages incurred “by reason of the assumption of liability in a contract or agreement,” and (2) an exception to the exclusion that brings the insured’s claim back into coverage when the insured would have incurred the liability irrespective of the contract or agreement, or the insured assumed liability in an “insured contract.” We proceed by first applying the contractual-liability exclusion before, if necessary, addressing the exceptions to the exclusion.
The critical language in the contractual-liability exclusion is the phrase, “assumption of liability,” particularly, the term “assumption.” Plaintiff argues that the term encompasses all contracts wherein the insured assumed any liability, including his or her own liability. Defendant, in contrast, argues that the term “assumption of liability” is generally understood to mean situations wherein an insured assumed the liability of a third party, such as an indemnity or hold-harmless agreement, and that assuming liability is wholly distinct from assuming a duty to perform a contract in a certain manner.
The CGL policy does not define the phrase “assumption of liability,” and there is no published caselaw in Michigan defining the phrase in this context. Therefore, we turn to the dictionary. See Pugh v Zefi, 294 Mich App 393, 396; 812 NW2d 789 (2011) (stating that when a contract fails to define a term, “it is appropriate to consult a dictionary to determine the ordinary or commonly used meaning” of the term). Black’s Law Dictionary (10th ed) defines “assumption” in relevant part as, “[t]he act of taking ([especially] someone else’s debt or other obligation) for or on oneself. ...” (Emphasis added.) “Liability,” in turn, is defined as “[t]he quality, state, or condition of being legally obligated or accountable . ...” Id.
Applying these definitions, when viewed in the context of a CGL policy as a whole — the purpose of which is to “protect [] business owners against liability to third-parties” — the plain meaning of the phrase “assumption of liability” can reasonably be construed to mean the act of taking on the legal obligations or responsibilities of another. Notably, in defining the term “assumption” to mean the act of “taking ... for or on oneself,” Black’s Law Dictionary states, “[especially] someone else’s” obligation. (Emphasis added.) “Especially” means “to an exceptional degree,” “particularly,” “preeminently,” or “specifically.” Random House Webster’s College Dictionary (1997). Thus, the meaning of the term “assumption” predominantly refers to the act of taking on “someone else’s” obligations. Indeed, a review of relevant legal treatises and caselaw from other jurisdictions supports that, in the context of a CGL policy, “assumption of liability” refers to the assumption of another’s liability. See, e.g., Klapp v United Ins Group Agency, Inc, 468 Mich 459, 472; 663 NW2d 447 (2003) (indicating that it may be appropriate to consult legal treatises when interpreting an ambiguous contract); Mettler Walloon, LLC, v Melrose Twp, 281 Mich App 184, 221 n 6; 761 NW2d 293 (2008) (stating that while not binding, caselaw from sister states and federal courts may be considered persuasive authority).
“ ‘The key to understating [the contractual-liability exclusion]... is the concept of liability assumed.’ ’’ American Family, 268 Wis 2d at 47, quoting 2 Long, The Law of Liability Insurance (2002), § 10.05[2], pp 10-56, 10-57. Assumed liability differs from liability arising from an insured’s breach of his or her own contract in that the former connotes the taking on of additional liabilities in excess of those imposed on the insured under general law. As the Wisconsin Supreme Court recently noted:
Although, arguably, a person or entity assumes liability (that is, a duty of performance, the breach of which will give rise to liability) whenever one enters into a binding contract, in the CGL policy and other liability policies an ‘assumed’ liability is generally understood and interpreted by the courts to mean the liability of a third party, which liability one ‘assumes’ in the sense that one agrees to indemnify or hold the other person harmless. [American Family, 268 Wis 2d at 47-48 (quotation marks and citation omitted).]
Thus, the contractual-liability exclusion does not “bar all contract liability,” but rather “is limited to a special type of contract — one in which the insured has assumed the liability of another, i.e., a hold harmless or indemnification agreement.” 3 Thomas & Mootz, New Appleman on Insurance Law Library Edition (September 2013 update), § 18.03[3][a], p 18-43 (emphasis added).
The rationale behind excluding the contractually assumed liability of another from CGL coverage is that “ ‘liability assumed by the insured under a contract or agreement presents an uncertain risk’ which cannot be determined in advance for the purpose of fixing premiums.” Gibbs M Smith, Inc v United States Fidelity & Guaranty Co, 949 P2d 337, 342 (Utah, 1997), quoting 1 Long, Law of Liability Insurance (1997), § 1.07[2], p 1-42.1. Therefore,
“[e]ontractual exclusion clauses which deny coverage for liability assumed by the insured under any contract or agreement not defined in the policy relieve the insurer from liability only in fact situations where the insured would not be liable to a third person except for the express assumption of such liability.” [Gibbs M Smith, 949 P2d at 342, quoting 1 Long, § 1.07[2], p 1-44 (alteration in original) (emphasis omitted).]
In contrast, if the exclusion “excluded all liability associated with a contract made by the insured, commercial liability insurance would be severely limited in its coverage.” Gibbs M Smith, 949 P2d at 342 (emphasis added).
Consistently with how legal treatises have addressed the issue, state and federal courts have held that the contractual-liability exclusion applies to contracts involving assumption of the liability of a third party. For example, in Olympic, Inc, v Providence Washington Ins Co of Alaska, 648 P2d 1008, 1011 (Alas, 1982), in interpreting a contractual-liability exclusion similar to the one at issue in this case, the Alaska Supreme Court distinguished between “incurring liability through breach of contract and specifically contracting to assume liability for another’s negligence.” The court explained that “ ‘[liability assumed by the insured under any contract’ refers to liability incurred when one promises to indemnify or hold harmless another, and does not refer to the liability that results from breach of contract.” Id. at 1011 (emphasis added).
More recently, in American Family Mut Ins Co v American Girl, Inc, 268 Wis 2d at 48, the Wisconsin Supreme Court held that the contractual-liability exclusion in a standard CGL policy “applies where the insured has contractually assumed the liability of a third party, as in an indemnification or hold harmless agreement^]” In rejecting the contention that the exclusion precluded coverage for all incidents involving the insured’s contractual liability, the court explained that “[t]he term ‘assumption’ must be interpreted to add something to the phrase ‘assumption of liability in a contract or agreement.’ ” Id. Otherwise, “Heading the phrase to apply to all liabilities sounding in contract renders the term ‘assumption’ superfluous.” Id. (emphasis added). Furthermore, the court reasoned, limiting the exclusion to instances involving the assumed liability of another
is consistent with the general purposes of liability insurance because it enables insurers to enforce the fortuity concept by excluding from coverage any policyholder agreements to become liable after the insurance is in force and liability is a certainty. .. . [Thus] further [ing] the goal of protecting the insurer from exposure to risks whose scope and nature it cannot control or even reasonably foresee. [id.]
Consistently with Olympic and American Family, many other courts and legal authorities have concluded that the contractual-liability exclusion is limited to contracts wherein the insured assumes the liability of another. See, e.g., 46 CJS, Insurance, § 1413, pp 310-311 (“A provision in a liability insurance policy excluding coverage for liabilities assumed under any contract.. . does not apply to liabilities not within its terms. Such liability includes promises to indemnify or hold harmless another, hut not liability resulting from a breach of contract.”) (citations omitted). We find these authorities persuasive and hold that “assumption of liability” in the context of a CGL policy’s contractual-liability exclusion refers to those contracts or agreements wherein the insured assumes the liability of another. To conclude otherwise and construe “assumption” to encompass an insured’s own liability for breach of contract renders the phrase “assumption of liability” surplusage. American Family, 268 Wis 2d at 48. This is because under general law an insured is inherently liable for damages arising from breach of its own contract. See, e.g., Fultz v Union-Commerce Assoc, 470 Mich 460, 465; 683 NW2d 587 (2004), quoting Clark v Dolman, 379 Mich 251, 260-261; 150 NW2d 755 (1967) (“ ‘[A]ccompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and ... a negligent performance constitutes a tort as well as a breach of contract.’ ”). And, in the event that the insured is a seller of goods, the insured has additional inherent liabilities under the UCC. Specifically, MCL 440.2314 provides that “a warranty that. . . goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind,” and MCL 440.2315 provides an implied warranty of fitness that generally attaches to the sale of goods. Thus, in a contract, an insured need not assume liability for something that the law already imposes — i.e., liability for damages arising from breach of that contract.
Plaintiff contends that the jurisdictions holding that the contractual-liability exclusion concerns the assumption of a third-party’s liability have applied a “term of art” approach to interpreting the contractual-liability exclusion in a manner that does not comport with Michigan’s “plain meaning” approach to contract interpretation. Plaintiff contends that Gilbert Texas Constr, LP v Underwriters at Lloyd’s London, 327 SW3d 118 (Tex, 2010), should govern our analysis. According to plaintiff, in that case, the Texas Supreme Court cor rectly applied a plain-meaning approach to contract interpretation and held that the exclusion barred breach-of-contract claims arising from contracts wherein the insured assumed its own liability. Plaintiffs reading of Gilbert, however, is overly broad.
In Gilbert, Gilbert Texas Construction, LP contracted with the Dallas Area Rapid Transit Authority (DART) to construct a light-rail system. Id. at 121-122. Gilbert, as DART’s contractor, enjoyed governmental immunity, id. at 122 n 4; however, in the contract, Gilbert agreed to “pay for damage to third-party property resulting from either (1) a failure to comply with the requirements of the contract, or (2) a failure to exercise reasonable care in performing the work.” Ewing Constr Co, Inc v Amerisure Ins Co, 420 SW3d 30, 35 (Tex, 2014) (emphasis omitted), citing Gilbert, 327 SW3d at 127. During construction, heavy rains damaged an adjacent property and the property owner, RT Realty (RTR), sued Gilbert alleging breach of contract and other claims. Gilbert, 327 SW3d at 122-123. Gilbert filed a claim for defense and indemnity under its CGL policy issued by Underwriters at Lloyds London (Underwriters). Id. Meanwhile, the trial court dismissed all of the claims against Gilbert except for the breach-of-contract claim. Id. at 123. Underwriters then denied coverage on grounds that the CGL policy’s contractual-liability exclusion (identical to the one at issue in this case) precluded coverage. Id. Gilbert sued Underwriters, claiming that Underwriters had a duty to indemnify it under the CGL policy. Id.
The central issue on appeal was whether the exclusion for contractually assumed liability was limited in scope to contracts wherein the insured assumed the liability of a third party. The Texas Supreme Court held that the exclusion was not limited to contracts involving the assumption of the liability of another, explaining:
[H]ad it been intended to be so narrow as to apply only to an agreement in which the insured assumes liability of another party ... it would have been simple to have said so.. ..
. . . [T]he exclusion does not say it is limited to the narrow set of contracts by which the insured assumes the liability of another person; the exclusion’s language applies without qualification to liability assumed by contract except for two situations: (1) specified types of contracts referred to as ‘insured contracts,’ including indemnity agreements by which the insured assumes another’s tort liability, and (2) situations in which the insured’s liability for damages would exist absent the contract — in other words, situations in which the insured’s liability for damages does not depend solely on obligations assumed in the contract. [Id. at 127-128 (emphasis omitted).]
At first blush, Gilbert appears to sweep with great breadth. Indeed, the court acknowledged precedent from other jurisdictions and expressly stated that it disagreed “by and large, with courts’ and treatises’ conclusions that the language of the contractual liability exclusion before us applies only to indemnity or hold-harmless agreements . . . .” Id. at 131. However, upon closer review, Gilbert is not as sweeping as it may appear. The Gilbert Court did not hold that the exclusion barred all claims involving the insured’s contractual liability. See, e.g., id. at 128 (“We do not hold that the exclusion in Coverage A precludes liability for all breach of contract claims.”). Instead, the court held that the exclusion barred claims arising under a contract wherein the insured assumed greater liability than that which the insured would have incurred under general law. Specifically, the court explained as follows:
Independent of its contractual obligations, Gilbert owed RTR the duty to comply with law and to conduct its operations with ordinary care so as not to damage RTR’s property, and absent its immunity it could be liable for damages it caused by breaching its duty. In its contract with DART, however, Gilbert undertook a legal obligation to protect improvements and utilities on property adjacent to the construction site, and to repair or pay for damage to any such property “resulting from a failure to comply with the requirements of this contract or failure to exercise reasonable care in performing the work.” (emphasis added). The latter obligation — to exercise reasonable care in performing its work — mirrors Gilbert’s duly to RTR under general law principles. The obligation to repair or pay for damage to RTR’s property “resulting from a failure to comply with the requirements of this contract” extends beyond Gilbert’s obligations under general law and incorporates contractual standards to which Gilbert obligated itself. [Id. at 127 (emphasis altered).]
In a subsequent case, the Texas Supreme Court articulated Gilbert’s holding as follows:
Gilbert did not contractually assume liability for damages within the meaning of the policy exclusion unless the liability for damages it contractually assumed was greater than the liability it would have had under general law .... [Ewing, 420 SW3d at 36 (emphasis added).]
In short, under Gilbert when an insured would be liable at general law for damages arising from its breach of contract, the contractually assumed liability does not preclude coverage, but when an insured takes on additional legal obligations and liabilities beyond those imposed at general law, coverage is barred by the contractual-liability exclusion.
Our reading of Gilbert aligns with Ewing Constr Co, Inc v Amerisure Ins Co, 420 SW3d 30, wherein the Texas Supreme Court clarified the scope of Gilbert. In that case, Ewing Construction Company, Inc., contracted with a school district to construct tennis courts. Ewing, 420 SW3d at 31. In the contract, Ewing agreed to perform the work in “a good and workmanlike manner . ...” Id. at 36. Shortly after construction was complete, the tennis courts began flaking, crumbling, and cracking and were unusable for their intended purpose. Id. at 31. The school district sued Ewing, alleging breach of contract and negligence. Id. at 31-32. Ewing filed a claim with Amerisure Insurance Company, its CGL provider, seeking defense and indemnity. Id. at 32. Amerisure denied coverage, and Ewing filed a complaint for declaratory judgment. Id.
Citing Gilbert, Amerisure argued, in part, that coverage was precluded under the CGL policy’s contractual-liability exclusion because Ewing had assumed liability for damages by contracting with the school district to perform work in a good and workmanlike manner. Id. at 32, 36. Ewing countered, arguing that “its express agreement to perform the construction in a good and workmanlike manner did not enlarge its obligations and was not an ‘assumption of liability’ within the meaning of the policy’s contractual liability exclusion.” Id. In agreeing with Ewing, the Texas Supreme Court clarified its holding in Gilbert, explaining, “we . . . determined in Gilbert that ‘assumption of liability’ means that the insured has assumed a liability for damages that exceeds the liability it would have under general law. . . . Otherwise, the words ‘assumption of liability’ are meaningless and are surplusage.” Id. at 37, citing American Family, 268 Wis 2d at 48. The court held that Ewing did not assume liability for damages that exceeded the liability it had under general law and, therefore, its claim was not precluded by the contractual-liability exclusion. Ewing, 420 SW3d at 37. Ewing had a “common law duty to perform its contract with skill and care” as that duty “accompanies every contract. . . .” Id. (quotation marks and citation omitted). The court concluded:
[A] general contractor who agrees to perform its construction work in a good and workmanlike manner, without more, does not enlarge its duty to exercise ordinary care in fulfilling its contract, thus it does not ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion. [Id. at 38 (emphasis added).]
Contrary to plaintiffs argument, Gilbert does not support the proposition that defendant’s claim for CGL coverage was barred by the contractual-liability exclusion. Rather, under the rationale articulated in Gilbert and Ewing, the exclusion does not apply in this case. By warranting that its goods and services were “free from defects in material and workmanship,” and by agreeing to return the university’s property to “as was” condition in the event that defendant damaged property during completion of the contract, defendant did not “enlarge its duty to exercise ordinary care in fulfilling its contract. . . .” Ewing, 420 SW3d at 38. General principles of law required that defendant’s goods be fit and merchantable for their intended use so as not to cause damages to the university’s property and for defendant to perform the contract with good and ordinary care. See Fultz, 470 Mich at 465 (“[Accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done ....”) (quotation marks and citation omitted). See also MCL 440.2314 and MCL 440.2315. In this case, like the general contractor in Ewing, by agreeing to return the university’s property to “as was” condition, defendant agreed to no more than what was imposed upon it under general law. Therefore, like in Ewing, defendant did not “ ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.” Ewing, 420 SW3d at 38.
Plaintiff also contends that Envision Builders, Inc, v Citizens Ins Co of America, unpublished opinion per curiam of the Court of Appeals, issued July 24, 2012 (Docket Nos. 303652 and 303668), stands for the proposition that the contractual-liability exclusion applies to contracts wherein the insured assumes its own liability for breaching the contract.
In Envision Builders, the Macomb County Road Commission contracted with Envision Builders, Inc., to perform construction work, including the erection of roof trusses. Id. at 3. The contract provided that “ ‘[a]ny trusses that are damaged during delivery or erection shall be replaced at no extra cost to the Owner.’ ” Id. at 4 (alteration in original). Envision hired a subcontractor to install the trusses. Id. at 3. During installation, the subcontractor failed to install temporary bracing, and before the roof work was complete, a wind storm caused the trusses to collapse, causing damage at the construction site. Id. Envision filed a claim for coverage under a standard CGL policy. Id. On appeal, this Court held that Envision was not entitled to coverage under the policy because the damages did not arise from an occurrence within the meaning of the policy. Id. at 3-4.
After concluding that there was no occurrence under the policy, this Court stated, “Even if there was coverage under the contract,” the CGL policy’s contractual-liability exclusion precluded coverage. Id. at 4. This Court reasoned that under Envision’s contract with the road commission, Envision was obligated to replace any trusses that were damaged during completion of the construction project. Id. This Court concluded, “Because Envision was obligated to pay damages for property damage by reason of its assumption of liability in its contract with the [road commission], the damage to the trusses is excluded from coverage.” Id. This Court rejected the trial court’s conclusion that the contractual-liability exclusion was limited to indemnity agreements, explaining:
[U]nder [the contractual-liability exclusion,] indemnity agreements as well as the assumption of liability in a contract or agreement are excluded____[T]he trial court failed to recognize that the contractual liability exclusion also applied to the assumption of liability in a contract like the one between Envision and the [road commission,] in which Envision assumed liability for damage to the trusses. [Id.]
We decline plaintiffs invitation to adopt the analysis set forth in Envision Builders. Initially, we note that Envision Builders, is an unpublished opinion and is not binding precedent under the rule of stare decisis. MCR 7.215(C)(1); Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 522 (2004). Moreover, we do not find Envision Builders persuasive. This Court’s discussion of the contractual-liability exclusion in that case was limited and came after the Court concluded that the underlying event did not constitute an occurrence. Therefore, the analysis was not necessary to resolve the central issue in the case, and this Court did not need to engage in in-depth analysis of the contractual-liability exclusion. This Court did not provide any analysis of relevant legal authorities interpreting the exclusion and because it was not necessary to do so, this Court did not define the meaning of the words “assumption of liability” in the context of the CGL policy as a whole. Therefore, we do not find Envision Builders to be of value to our analysis in this case.
Finally, plaintiff contends that by failing to apply the contractual-liability exclusion, the trial court expanded the scope of the CGL policy to include contract claims when the policy was meant to be limited to potential tort liability. Plaintiff essentially argues that coverage under the policy turns on the form of the injured party’s underlying complaint. This argument is not persuasive.
The CGL policy does not limit coverage for property damage arising from defendant’s tort liability. Instead, in relevant part, the coverage applies to “property damage,” caused by an “occurrence.” Defective workmanship that damages a customer’s property can constitute an occurrence, within the meaning of a CGL policy. See Radenbaugh v Farm Bureau Gen Ins Co, 240 Mich App 134, 145-148; 610 NW2d 272 (2000). Moreover, “the duty to defend and the duty to indemnify are not determined solely on the basis of the terminology used in a plaintiffs pleadings.” United States Fidelity & Guaranty Co v Citizens Ins Co of America, 201 Mich App 491, 493; 506 NW2d 527 (1993). “Instead, a court must focus on the cause of the injury to ascertain whether coverage exists.” Id. at 494. “It is the substance rather than the form of the allegations in the complaint which must be scrutinized.” Id.
In this case, while the Regents brought a breach-of-contract action, the substance of the claim sounded in negligent performance of the purchase-order contract that could have given rise to either a tort or contract claim. The Regents alleged in part that defendant breached “the prevailing industry standards and practices . ...” As our Supreme Court has previously explained, “accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and ... a negligent performance constitutes a tort as well as a breach of contract.” Fultz, 470 Mich at 465 (quotation marks and citation omitted). Accordingly, merely because the Regents brought a breach-of-contract action as opposed to a tort action is not dispositive regarding whether coverage existed under the CGL policy. Rather, the policy’s initial grant of coverage turned on whether the property damage arose from an occurrence, and plaintiff abandoned any argument regarding whether an occurrence caused the university’s property damage in this case.
IV CONCLUSION
In the context of a CGL policy, “assumption of liability” means assuming the legal obligations or responsibilities of another. In this case, defendant did not assume the legal obligations or responsibilities of another when it contracted with the university to provide goods and services of a particular quality and to return the university’s property to “as was” condition in the event the university’s property was damaged during completion of the contract. Therefore, the contractual-liability exclusion in the CGL policy did not preclude coverage in this case, and the trial court reached the correct result, albeit for different reasons. See Gleason v Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A trial court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong reason.”).
Affirmed. Defendant having prevailed, may tax costs. MCR 7.219(A). We do not retain jurisdiction.
Servitto and Beckering, JJ., concurred with Borrello, P.J.
Sometime thereafter, defendant reached a settlement agreement with the Regents.
ISO is a “national insurance policy drafting organization . . . State Auto Prop & Cas Ins Co v Travelers Indemnity Co of America, 343 F3d 249, 255 n 9 (CA 4, 2003).
The policy specifically defines “insured contract.” Neither party contends that plaintiffs contract with the university was an insured contract.
3, Thomas & Mootz, New Appleman on Insurance Law Library Edition (September 2013 update), § 16.02[3][a], p 16-28.
The exclusion provided that the CGL policy did not apply to “ ‘liability assumed by the insured under any contract or agreement except an incidental contract....’” Olympic, 648 P2d at 1010.
See also Anno: Scope & Effect of Clause in Liability Policy Excluding From Coverage Liability Assumed by Insured Under Contract Not Defined in Policy, 63 ALR2d 1122, §§ 1-3; Indiana Ins Co v Kopetsky, 11 NE3d 508 (Ind Ct App, 2014) (“Today we join those jurisdictions who have held that contractual liability exclusions in CGL policies bar coverage not for liability incurred by a contract breach but, rather, for liability assumed from a third party, which seems to be the majority position by a wide margin.”) Desert Mountain Props Ltd Partnership v Liberty Mut Fire Ins Co, 225 Ariz 194, 205; 236 P3d 421 (Ariz Ct App, 2010) (holding that the exclusion “applies only to ‘the assumption of another’s liability’ ”); Federated Mut Ins Co v Grapevine Excavation Inc, 197 F3d 720, 726 (CA 5, 1999) (because the insured was not “being sued as the contractual indemnitor of a third party’s conduct, but rather for its own conduct, the exclusion [was] inapplicable”); Marlin v Wetzel Co Bd of Ed, 212 W Va 215, 222; 569 SE2d 462 (2002) (“ ‘[Liability assumed by the insured under any contract’ in an insurance policy.. . refers to liability incurred when an insured promises to indemnify or hold harmless another party . . ..”); Gibbs M Smith, 949 P2d at 340-342 (holding that “assumption of liability” refers to the assumption of a third-party’s liability).
In its brief on appeal, plaintiff states that after the trial court’s ruling, it amended its complaint to “withdraw the other grounds for asserting a lack of coverage.”
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Shepherd, P.J.
Defendant appeals the October 7, 1985, judgment awarding plaintiff $182,083.19 in no-fault benefits and interest and providing that defendant was entitled to a setoff of workers’ compensation benefits against that amount. Plaintiff cross-appeals, presenting an alternative argument. We affirm, but remand for modification of the judgment.
This is the second time this case has been before this Court. The history of this case up to September 17, 1984, may be found in Joiner v Michigan Mutual Ins Co, 137 Mich App 464; 357 NW2d 875 (1984). Briefly, plaintiff was employed by United Trucking Service, Inc. Defendant insured plaintiff’s employer for both no-fault and workers’ compensation liability. Plaintiff suffered three successive injuries during the course of his employment: (1) an injury to his right arm sustained when he fell from a truck, (2) a head injury sustained in a truck accident which occurred because of drowsiness attributable to pain medication taken for the earlier injury, and (3) a second head injury sustained when plaintiff blacked out while driving a yard switcher shortly after his release from the hospital following the earlier head injury. As a result, plaintiff suffers from disabling traumatic epilepsy. Although defendant paid initial medical expenses and workers’ compensation benefits, it terminated those after deciding that plaintiff’s disability was not employment related.
' Plaintiff began two parallel courses of litigation. On April 25, 1977, he petitioned for workers’ compensation benefits. The hearing referee awarded plaintiff medical expenses and entered a closed award of compensation benefits. In a second decision in September, 1980, the hearing referee determined that plaintiff’s health problems as of that date were not employment related. Both plaintiff and defendant appealed to the Workers’ Compensation Appeal Board. The wcab found in favor of plaintiff. This Court denied defendant leave to appeal that decision. The Supreme Court denied defendant leave to appeal on September 28, 1984. Joiner v United Trucking Service, Inc, 419 Mich 938 (1984). It appears that defendant paid workers’ compensation benefits shortly thereafter.
In the meantime, plaintiff filed the present action in circuit court on November 9, 1978, seeking no-fault benefits. Following a trial in October, 1982, at which the primary issue was medical causation, the jury returned a special verdict in the amount of $118,040, "which included proven allowable expenses, work-loss benefits for three years and 12% no-fault statutory interest calculated on the allowable expenses and work loss.” 137 Mich App at 469. Defendant was given credit for certain workers’ compensation benefits paid and for some wages plaintiff earned during his disability. The total judgment entered on November 5, 1982, including interest and costs, was $158,940.
Defendant appealed, challenging various pretrial orders. This Court held that, since sufficient notice of injury was given pursuant to MCL 500.3145(1); MSA 24.13145(1) and defendant had not formally denied plaintiff’s no-fault claim, plaintiff’s claim was not limited by the period of limitation and the one-year-back provision of the statute. This Court also held that the trial court did not err in denying defendant’s motion for summary judgment alleging an entitlement to a setoff for workers’ compensation benefits. This Court found that plaintiff had made every reasonable effort to obtain workers’ compensation benefits, but his claim was pending before the wcab at the time of trial. Therefore, no benefits were provided or required to be provided to him at the time of trial within the meaning of MCL 500.3109(1); MSA 24.13109(1), which provides for the setoff. The Court added:
We note, however, that there is nothing to prohibit the trial court from entering a judgment preventing duplicative recovery by requiring plaintiff to reimburse defendant in the event workers’ compensation benefits are ultimately provided or required to be provided to plaintiff. [137 Mich App 475.]
This Court also found several issues concerning procedural and evidentiary matters to be without merit. It also affirmed the trial court’s denial of attorney fees to plaintiff.
Defendant applied for leave to appeal this Court’s decision and plaintiff sought leave to cross-appeal the denial of attorney fees. On December 14, 1984, the Supreme Court held the application in abeyance pending the decision in Welton v Carriers Ins Co, 421 Mich 571; 365 NW2d 170 (1984). After release of Welton, the Supreme Court denied leave to appeal and cross-appeal on June 10, 1985. 422 Mich 920 (1985).
Both parties then moved in the trial court for entry of judgment consistent with this Court’s decision. Plaintiff argued that no setoff or reimbursement for workers’ compensation benefits was required by § 3109(1). Defendant argued that its no-fault obligation was to be set off pursuant to § 3109(1). Defendant also argued that it was entitled to have the one-year-back provision of § 3145(1) applied. The trial court issued an opinion and order on August 18, 1985, concluding that it was precluded from considering the application of § 3145(1) by the law of the case doctrine. The trial court also concluded that a setoff was required, based on this Court’s comments in the first opinion and other case law intended to prevent a double recovery of benefits. The trial court concluded that the workers’ compensation benefits should be subtracted from the jury award of no-fault benefits and that the no-fault statutory interest on no-fault benefits allowed by MCL 500.3142; MSA 24.13142 should then be imposed only on the "net award.” As both parties had used incorrect calculation methods, the trial court denied both motions.
The trial court entered another order on October 7, 1985, reaffirming its position as to the nonappli-cation of the one-year-back rule. As to the setoff question, however, the court reversed itself and held that defendant was entitled to a setoff of workers’ compensation benefits paid "but only against the 'gross,’ amount of the Judgment and not the 'net’ amounts awarded by the jury for allowable expenses and work loss for calculation of No-Fault statutory interest and Judgment interest.” The court adopted plaintiff’s calculation and entered a judgment in favor of plaintiff totaling $182,083.19, "which figure is inclusive of all costs and all interest and all subtractions and setoffs through October 7, 1985.”
We initially address defendant’s issue concerning the application of § 3145(1), which denies recovery of no-fault benefits for loss incurred more than one year before the action was filed. That issue was fully addressed in the prior appeal, wherein we held that this one-year back provision was tolled by defendant’s failure to deny plaintiff’s claim, and the law of the case doctrine precludes us from considering it again. See CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). Defendant argues that the case is now controlled by the Supreme Court’s decision in Welton, supra at 578-579, which held that tolling the one-year-back rule of § 3145(1) requires a spe cific claim for no-fault benefits. We find Welton distinguishable from this case, as plaintiff did in fact make a specific claim for no-fault benefits.
We next address the setoff issue, which appears to be one of first impression. Section 3109(1) of the no-fault act provides:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
In a situation where a worker is injured in a motor vehicle accident in the course of his employment, workers’ compensation benefits must be subtracted from the no-fault recovery. The purpose of § 3109(1) is to make the no-fault insurer only secondarily liable because no-faiilt insurance is compulsory. It is thus importafit that no-fault premiums be maintained as low as possible. This purpose is accomplished through the "elimination of duplicative benefits recovery.” Gregory v Transamerica Ins Co, 425 Mich 625, 631-632; 391 NW2d 312 (1986).
It is thus clear that defendant is entitled to a setoff in this case. A reading of the dicta in Joiner to conclude otherwise is incorrect. Section 3109(1) provides no guidance, however, as to whether workers’ compensation benefits are to be set off prior to the calculation of no-fault penalty interest.
Section 3142 provides:
(1) Personal protection insurance benefits are payable as loss accrues.
(2) Personal protection insurance benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Any part of the remainder of the claim that is later supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. For the purpose of calculating the extent to which benefits are overdue, payment shall be treated as made on the date a draft or other valid instrument was placed in the United States mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery.
(3) An overdue payment bears simple interest at the rate of 12% per annum.
The general rule for application of § 3142 holds that the interest provision is triggered when personal protection benefits become overdue, thirty days after the insurer receives reasonable proof of the claim. There is no qualification for the good faith with which the insurer denies liability. See Johnston v Detroit Automobile Inter-Ins Exchange, 124 Mich App 212, 216; 333 NW2d 517, lv den 417 Mich 1100.26 (1983).
In Cannell v Riverside Ins Co, 147 Mich App 699; 383 NW2d 89 (1985), the plaintiff was injured while driving her car home from a meeting. She settled her workers’ compensation claim for $22,500, apparently before any hearing. Thereafter, the defendant refused to disburse further no-fault payments, asserting that the injuries were covered by workers’ compensation and seeking setoff and reimbursement of her settlement. The plaintiff claimed that she was not entitled to workers’ compensation and that the lump sum she received was thus a bonus. This Court found that a remand was necessary to determine whether the plaintiff was entitled to workers’ compensation benefits. If so, then this Court ordered the circuit court to grant the defendant a setoff for the entire amount the plaintiff would have received from workers’ compensation. If the plaintiff’s injury was not compensable, then the defendant could only set off the amount received for the same injury. 147 Mich App 704.
The Cannell Court apparently also determined that no-fault benefits were due the plaintiff. With regard to penalty interest, the Court held:
In the instant case plaintiff clearly would have been entitled to no-fault benefits as a result of her car accident. However, an issue had arisen regarding whether workers’ compensation was liable for her injuries. Just because defendant may be entitled to reimbursement under MCL 500.3109; MSA 24.13109 is not a sufficient reason to withhold benefits. As the purpose of no-fault insurance is to pay insureds promptly for economic losses, Shavers v Attorney General, 65 Mich App 355; 237 NW2d 325 (1975), aff’d in part 402 Mich 554; 267 NW2d 72 (1978), it would defeat the purpose of no-fault insurance if we were to allow an insurance company to delay payments in its hope that it was entitled to reimbursement. Accordingly, we find defendant liable for penalty interest under MCL 500.3142; MSA 24.13142 and remand for a determination of the date when plaintiff was unreasonably denied benefits and the amount of the benefits. Interest should then run from 30 days after that date. [147 Mich App 706.]
Cannell does not expressly answer the question of when the setoff should be made and how long the no-fault penalty interest should continue to accrue. It is clear from Cannell, however, that no setoff could be made until it was finally determined to what amount of workers’ compensation and no-fault benefits the plaintiff was entitled.
Defendant’s position in the workers’ compensation case was apparently that plaintiff was not entitled to workers’ compensation benefits. Joiner, supra at 468. That question was finally resolved on September 28, 1984, when the Supreme Court denied leave to appeal. Defendant’s position with regard to no-fault benefits sought to avoid or limit any recovery by claiming untimely notice of the claim and application of the one-year-back rule. Those questions were resolved on June 10, 1985, when the Supreme Court denied leave to appeal in Joiner.
Until these parallel litigation tracks were resolved, neither party knew what amount of workers’ compensation or no-fault benefits defendant would be obligated to pay, or whether any setoff of no-fault benefits would be required or possible. Defendant presumably sought to avoid paying benefits for good faith reasons. Such was its right. We believe, however, that in doing so defendant took the risk that it would be ultimately liable for no-fault benefits plus interest. In Nash v Detroit Automobile Inter-Ins Exchange, 120 Mich App 568, 572; 327 NW2d 521 (1982), the insurer asserted that it was legally entitled to subtract Medicare benefits from its no-fault coverage, a position which proved to be unjustified, and the payments became overdue. In concluding that defendant owed plaintiff § 3142 interest, the Court held:
Interest is owing because the defendant’s defense is hot recognized by § 3142(2). The plaintiff’s right to interest is not dependent upon the pres ence or absence of the insurer’s good faith in rejecting a claim. A carrier rejects a claim at its own risk. It will owe interest if its interpretation of the statute proves to be erroneous.
See also Manley v Detroit Automobile Inter-Ins Exchange, 127 Mich App 444, 460; 339 NW2d 205 (1983), rev’d on other grounds 425 Mich 140, 148 n 4; 388 NW2d 216 (1986).
Having lost its gamble, we believe defendant must now pay § 3142 interest up to the time plaintiffs entitlement to both workers’ compensation and no-fault benefits became final. The § 3109 offset for workers’ compensation benefits is to be applied to the amount of no-fault benefits, penalty interest, and judgment interest owing at that time, which under the facts of this case was June 10, 1985.
Our disposition of this issue renders moot plaintiffs cross-appeal issue asserting no right to setoff of the workers’ compensation benefits. - Plaintiff also seeks several corrections of the October 7, 1985, judgment for typographical and mathematical errors. As our holding will necessitate a modification and recalculation of the judgment, necessary corrections can be made at that time. If necessary, the parties should also address at that time the application of the holding in Gage v Ford Motor Co, 423 Mich 250; 377 NW2d 709 (1985), concerning calculation of judgment interest. Gage was decided on November 13, 1985, after entry of the judgment in this case.
Affirmed and remanded for modification of the judgment and further proceedings consistent with this opinion.
Defendant, however, has revived the one-year-back limitation issue in this appeal. Thus, it appears that plaintiffs entitlement to at least some of his no-fault benefits has only now been finally resolved, assuming the appellate process does not continue. | [
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Per Curiam.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(l)(b); MSA 28.788(2)(l)(b). He was sentenced to a prison term of from five to twenty years, and now appeals as of right.
The charges arose out of the alleged rape of defendant’s then fifteen-year-old niece on April 14, 1979, while her family was visiting defendant’s family at defendant’s home on Crystal Lake. The complainant testified that, after family members gathered to watch home movies, she went to the refrigerator in the garage to get a soda. Defendant followed her and closed the door behind him. As the complainant tried to walk around defendant and return into the house, defendant grabbed her, pushed her to her knees, and forced her to perform oral sex on him.
The first issue is one of first impression in this state: Does the trial court err in submitting the question of whether the offense occurred within the limitation period to the jury when the facts regarding the date of the charged offense are in material dispute? We answer this question in the negative.
An indictment for first-degree criminal sexual conduct must be filed within six years after the commission of the offense. MCL 767.24; MSA 28.964. In the present case, the information was filed on November 20, 1984. However, the evidence is in dispute as to when, if at all, the offense occurred.
On April 18, 1985, a hearing was conducted to address defendant’s pretrial motion to dismiss the information based on the running of the limitation period. Whereas it was the prosecution’s theory that the offense was committed on the stated date, five years and seven months before the filing of the charges, defendant was prepared to present witnesses to testify that the physical characteristics of the home as described by complainant corresponded to the home’s condition in 1973 to 1975, a time period well outside the six-year period. Although defendant argued that the question of the running of the limitation period was one of law, the trial court ruled that the factual dispute had to be resolved by the jury. The court affirmed this ruling at trial by denying defendant’s motion for directed verdict. We agree.
Questions of law in criminal cases are, of course, for the determination of the court, whereas questions of fact are for the jury. See e.g., People v Chamblis, 395 Mich 408, 420; 236 NW2d 473 (1975). Otherwise stated, the resolution of conflicts in the evidence is a matter lying within the province of the jury. People v Blackwell, 61 Mich App 236, 242; 232 NW2d 368 (1975).
Although, as indicated, no Michigan case law directly addresses the propriety of submitting to the jury the timing question presented here, one case exists which supports the proposition that factual disputes arising under MCL 767.24; MSA 28.964 are properly preserved for the jury. In People v Price, 74 Mich 37; 41 NW 853 (1889), our Supreme Court applied the provision of the statute which allowed tolling of the limitation period for any period during which the defendant "was not usually and publicly a resident within this State . . . ” In reversing a criminal conviction on other grounds, the Court held that, on remand, the question whether there was any time during the limitation period during which defendant was not usually and publicly a resident within the state was one of fact for the jury where there was some evidence that defendant spent an amount of time out of the state. 74 Mich 44.
Defendant, however, argues that the existence of a factual dispute should not be dispositive of whether the question is one which should be addressed by the jury. In support, he suggests that motions to suppress and issues concerning the voluntariness of confessions are decided as a matter of law, notwithstanding a conflict in the underlying facts. We are not persuaded. In these latter instances, the court is concerned with the admissibility of evidence, which it is to decide as a matter of law. MRE 104. People v Vega, 413 Mich 773, 778; 321 NW2d 675 (1982). We instead liken the statute of limitations issue to the question of venue in criminal proceedings, which, although likewise bearing on the jurisdiction of the trial court, is one of fact for the jury. See e.g., People v Belanger, 120 Mich App 752, 757; 327 NW2d 554 (1982); People v Ragland, 14 Mich App 425, 427; 165 NW2d 639 (1968).
Consequently, we conclude that the trial court did not err in denying the motion to dismiss and in refusing to rule as a matter of law on the period of limitation issue. As the facts were in material dispute, the issue was properly one for the jury to decide.
Defendant next argues that the trial court abused its discretion in admitting complainant’s testimony that he had committed two prior sexual assaults against her. He urges that the evidence was inadmissible similar acts testimony under MRE 404(b) because there was no special quality or circumstance linking the charged offense with the prior offense and that the evidence concerning the prior sexual assaults was injected merely to induce prejudice against the defendant.
In admitting this evidence, the court properly weighed its probative value against the risk of unfair prejudice and concluded that, without the evidence, the complainant’s description of the charged offense appeared somewhat improbable. People v Jenness, 5 Mich 305, 323-324 (1858). Indeed, "the probative value [of similar acts evidence] outweighs the disadvantage where the crime charged is a sexual offense and the other acts tend to show a familiarity between the defendant and the person with whom he allegedly committed the charged offense.” People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97 (1973). Particularly in cases of statutory rape, limiting the victim’s testimony to a description of the charged offense, without reference to any related prior acts, presents a danger of undermining the victim’s credibility in the eyes of the jury. 390 Mich 414-415. "Common experience indicates that sexual intercourse and attempts thereat are most frequently the culmination of prior acts of sexual intimacy.” 390 Mich 415.
Under the facts of this case, even though the prior sexual misconduct occurred a number of years prior to the charged offense, the evidence was highly relevant in the jury’s weighing of the complainant’s testimony. Moreover, a limiting instruction was given to the jury to lessen the poten tial prejudice to defendant. We find no abuse of discretion in the admission of the evidence.
Nor do we find an abuse of discretion in the denial of defendant’s motion for mistrial which was based on the admission of complainant’s testimony that she finally came forward with the charges against the defendant a number of years after the sexual attack took place "when [she] found out that he had been victimizing [her] sister.” To overturn a denial of a mistrial motion based on the improper admission of evidence, an appellate court must find that the defendant was deprived of a fair trial resulting in a miscarriage of justice. People v Robertson, 87 Mich App 109, 111-112; 273 NW2d 501 (1978); People v Ritholz, 359 Mich 539, 559; 103 NW2d 481 (1960), cert den sub nom Ritholz v Michigan, 364 US 912; 81 S Ct 275; 5 L Ed 2d 226 (1960).
The statement was not admitted to prove defendant’s character or propensity to act in conformance with the misbehavior, as is generally prohibited by MRE 404(b), nor was it admitted for the jury’s consideration as part of the principal transaction. Cf., People v Jones, 417 Mich 285; 335 NW2d 465 (1983). Rather, the statement was admitted to explain the delayed manner in which complainant finally came forward against defendant. In this case, where defendant’s strategy, in part, was to generally attack the credibility of the complainant, the trial court correctly noted that the reason for the delay would inherently be questioned by the jury and, consequently, her motive in finally ending her silence "is something that begs explanation.” See e.g., People v Watts, 145 Mich App 760, 763-764; 378 NW2d 787 (1985), lv den 424 Mich 889 (1986).
Moreover, we are not persuaded that the potential for prejudice substantially outweighed this relevancy so as to deprive defendant of a fair trial. The jury had already properly received evidence of defendant’s prior sexual misconduct with the complainant and had been given a cautionary instruction prior to deliberations concerning all the evidence of prior bad acts admitted against defendant. As the nature of the evidence was thus not so inflammatory, the lower court did not abuse its discretion in denying the motion for mistrial.
Finally, defendant objects to the prosecutor’s comment in his closing argument concerning defendant’s failure to present evidence to contradict the complainant’s testimony. We find no error. People v Heath, 80 Mich App 185; 263 NW2d 58 (1977).
Affirmed.
The complainant verified the date of the offense at trial by reference to her personal calendar, on which she noted daily events. Likewise, her parents confirmed that the family had visited defendant’s household on the stated date.
How Stat § 9607.
The denial of defendant’s motion for directed verdict was likewise proper. Viewed in a light most favorable to the prosecution, a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Marks, 155 Mich App 203, 219; 399 NW2d 469 (1986).
The language of MRE 404(b) implies that evidence of other bad acts may be admitted for purposes other than to prove the character of the defendant. Additionally, the list of possible purposes for admission contained in the rule is illustrative, not exhaustive. People v Cramer, 97 Mich App 148; 293 NW2d 744 (1980), lv den 411 Mich 862 (1981). | [
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Cynar, P.J.
Plaintiff and defendant were divorced on December 21, 1979, pursuant to a judgment of divorce entered by Judge James G. Fleming. The divorce judgment awarded custody of the two minor children, ages two and five, to plaintiff. She was restricted from moving the children from this state without prior court approval. Defendant was awarded visitation on alternate weekends, alternate major holidays and three weeks during the summer.
Plaintiff subsequently petitioned to move the children to Ohio. The trial court entered an order modifying the judgment of divorce, allowing the domicile of the children to be transferred from Michigan to Ohio, but requiring that the children not be removed from their new domicile without approval of the court. Defendant’s visitation was also changed. Since the move to Ohio, the children have changed residences frequently, moving back to Michigan, then to Illinois and ultimately to Missouri, all without court permission. Plaintiff’s new husband’s employment necessitated these moves.
On June 20, 1986, while the children were with their father for visitation, he petitioned for a change of custody. The court entered an ex parte order extending visitation. In July, 1986, the court entered an order granting temporary custody of the children to defendant until further order of the court. The court’s order indicated that the parties were responsible for scheduling an eviden-tiary hearing if mediation failed.
The court-ordered mediation between the parties was unsuccessful. On August 13, 1986, the trial court issued an opinion in which it found that custody of the children should remain with plaintiff. The court’s opinion indicated that it had "incorporated” the report of the friend of the court into its opinion. The court claimed it had evaluated the factors set forth in the Child Custody Act and held that defendant was required to prove by clear and convincing evidence that such a change was in the best interests of the children. Then, based on "defendant’s pleadings and the reports submitted,” the trial court found that the defendant had not met his burden.
Plaintiff presented defendant with an order reflecting the trial court’s opinion, but defendant refused to approve it. Thereafter, a hearing for entry of the order was scheduled before Judge Alexander C. Perlos, acting in the absence of Judge Fleming. Judge Perlos heard the arguments of counsel but declined to enter the order because of objections raised by defendant.
After a subsequent hearing, Judge Fleming entered the order in accordance with his prior opinion. Defendant now appeals the order.
Defendant first complains that the trial court erred by denying defendant custody of the children without scheduling an evidentiary hearing. We find that the trial court permissibly placed the burden on the parties to schedule the evidentiary hearing, but erred in deciding the issue of custody on the pleadings and the report of the friend of the court when no evidentiary hearing was held. There was no evidence presented to the court, and, thus, the trial judge should have refused to decide the matter until the parties scheduled an eviden-tiary hearing or stipulated to use of the report of the friend of the court as evidence.
A change in custody is properly made upon a showing of a change in circumstances if it is in the best interests of the child. MCL 722.27; MSA 25.312(7). The trial court could not have considered the eleven factors set out in the definition of a child’s best interests since it had been presented with no evidence. A report by the friend of the court may not be used as evidence absent agreement of the parties, although the court may consider the report to better understand the issues involved. Nichols v Nichols, 106 Mich App 584; 308 NW2d 291 (1981), lv den 411 Mich 1045 (1981). Thus, the trial court erred by deciding custody on the basis of the report, absent agreement by the parties for the court to consider the report as evidence.
Furthermore, the Child Custody Act requires that this Court find a palpable abuse of discretion, clear legal error on a major issue, or findings of fact against the great weight of the evidence before reversing a custody order. MCL 722.28; MSA 25.312(8). Review is de novo. Bednarski v Bednarski, 141 Mich App 15; 366 NW2d 69 (1985). For us to carry out our function, however, there must be an evidentiary record. Neff v Neff, 358 Mich 134; 99 NW2d 344 (1959); Wealton v Wealton, 120 Mich App 406, 410; 327 NW2d 493 (1982). We reverse and remand for an evidentiary hearing.
We review the remainder of defendant’s objections to provide guidance to the trial court on remand. Defendant contends that he was not given a chance to make objections to the report of the friend of the court. Defendant correctly asserts that MCR 3.206(F)(2) requires that the parties be given an opportunity to review reports of the friend of the court and to make objections before a decision is entered. Defendant must be given an opportunity on remand to voice objections to the report before the trial court renders an opinion.
• Next, defendant contends that the trial court erred by not interviewing the children to ascertain their preferences. We agree. The children were nine and twelve years old at the time of defendant’s petition. One of the eleven factors a trial judge must consider in a custody dispute 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). A child of nine or twelve years of age is old enough to have his preference given some weight in a custody dispute. The trial court’s failure to interview the children was itself error requiring reversal. Lewis v Lewis, 73 Mich App 563; 252 NW2d 237 (1977).
Defendant also alleges that it was error for the trial court to render a decision regarding custody without first deciding whether a custodial environment had been established. Again, we agree. The first step in deciding any child custody dispute is to determine if there exists an established custodial environment. Curless v Curless, 137 Mich App 673; 357 NW2d 921 (1984). 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(c); MSA 25.312(7)(c), which further provides:
The custodial environment of a child is established if over an appreciable time the child natu rally 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.
If flie trial court finds that no established custodial environment exists, then it may modify a custody order if the petitioning party can produce enough proof to convince the trial court by a preponderance of the evidence that it should give custody to the petitioner. Curless, supra, p 676. Yet, in the instant case, the trial court held that the petitioner had the burden of proving the best interest of the children by clear and convincing evidence without first making findings of fact on the issue. On remand the issue of whether a custodial environment has been established must first be decided.
The last issue we need to address is defendant’s alternate request for increased visitation. Although denying a change of custody, the trial court did not address defendant’s alternate, request for increased visitation. On remand, if after an evidentiary hearing the trial court should again deny defendant’s request for custody, the court must consider defendant’s request for increased visitation.
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Cooley, C. J.
This action was brought for the conversion of certain live-stock, farming implements, and other farm property which defendant, as sheriff of the county of Washtenaw, had taken from the possession of the plaintiff by virtue of writs of execution against Harvey M. Wheeler, the father of the plaintiff, and on a claim that it was the property of said Harvey. It was conceded that the property had mostly belonged to said Harvey, but the plaintiff claimed to have purchased it from him, and the defendant contested the purchase as fraudulent. The purchase was made in September, 1878, and was accompanied by a lease for two years from said Iiarvey to the plaintiff of a farm of one hundred and twenty acres of land in the township of Pittsfield, for the rent of which the plaintiff was to board and lodge the family of said Harvey, including his wife and two daughters, and to pay the interest on a mortgage of $3000. He was also to pay all taxes, and.to keep the premises in good repair. The executions on which the property was taken were issued more than three years after the plaintiff had made his purchase. Some of the live-stock was the natural increase of that which he had bought, and some of the other property he claimed to have obtained in trades, by way of exchange, while his title was uncontested.
On the trial the defendant had judgment, and the plaintiff brings error. A large number of exceptions are taken, some of which relate to the manner in which the trial was conducted by the circuit judge, and others to his rulings on points of law raised by counsel. It is complained that the course of the circuit judge was such as to render it impossible for the plaintiff to have a fair trial, or the unbiased judgment of the jury upon the facts; and certain remarks of the judge in the cour.se of the trial, as well as the whole charge, are incorporated in the bill of exceptions, to show that such was the fact.
It is very unusual to have exception taken on writ of •error to the manner and deportment of the trial judge in the ■conduct of the trial, and under ordinary circumstances a court of review would not scrutinize very closely his methods when no error in his rulings was alleged. Still, it is possible for a judge to deprive a party of a fair trial, even without intending to do so, by the manner in which he conducts the case, and by a plain exhibition to the jury of his own opinions in respect to the parties, ; or to their case; and when it is apparent that a fair trial has not been had, a court of review should give relief as soon for that cause as for any other. The fact that the duty to do so is unusual or unpleasant, is no reason for declining it.
In this ease we are satisfied the plaintiff has not had a fair trial. In saying this it is not necessary to impute to the judge any purpose to be a partisan in the case, or otherwise unfair. It is not likely he intended to try the case with less than his customary urbanity and courtesy; and when he brings before the jury, as he does in his charge, the familiar figure of the goddess of justice, with her scales nicely weighing and scrutinizing the evidence, it is to be assumed that he meant to be as impartial himself as he directed the jury to be. It is, nevertheless, possible for a judge, however correct his motives, to be unconsciously so disturbed by circumstances that should not affect him, as to do and say, in the excitement of a trial, something, the effect of which he would not at the time realize, and thereby accomplish a mischief which was not designed. Possibly, such circumstances may have existed in this case.
The plaintiff took the stand as his own witness, and gave evidence of the lease and sale, and of what he did in respect to the property afterwards. The evidence is not given in full, and what appears does not fully explain itself. Among the questions asked was: “Did you know anything about the Doran judgment?” Ansioer. “No, sir.” Q. “You did not know anything about that?” A. “No, sir.” Q. “There was $400 or $500 levied on the property that you never heard of?” A. “I never knew anything of it.” The counsel for the plaintiff then said: “ That is not fair. He said he did not know of it in 1878, but he did in 1880.” To this the counsel for the defendant replied: “ He has sworn he did not know of it at all.” The plaintiff’s counsel responded : “ You get him to swear that by putting your question in such a way.” Here it is seen that the plaintiff’s counsel is insisting that the witness understood the question to relate to the time of the purchase, and that it was unfair for defendant’s counsel to put questions which the witness would so understand, intending thereby to obtain answers which might be understood to relate to a subsequent time. Whether this intimation of unfairness was well founded or not we cannot determine by the record ; but the judge here remarked: “ That is one of the glorious rights of cross-examination, and you cannot interfere with it. That is one-of the things you can go to the jury on.” Counsel for the Plaintiff: “We did not ask anything about that.” The Judge: “No matter. You say he makes two different statements about this transaction,” — a palpable error on the part of the judge — “ and you can follow it up; that is one of the ways of measuring a witness as to how he is testifying, and should not be interfered with so as to show to the witness that he has fallen into a trap set by the other side.” To this the response of counsel was very pertinent and very proper: “I did not suppose courts of justice were made to set traps, and I except to the remarks of the court.”
While the plaintiff was still upon the stand the defendant offered in evidence three certain chattel mortgages made by Harvey M. Wheeler. Plaintiff’s counsel objected to their reception as not proper on cross-examination of the witness, and also because they were immaterial; upon which the judge remarked: “I cannot stop to give reasons. It is plain enough to me that, while they are collateral papers, when it becomes important or necessary.in any manner to cross-examine a witness, then the party against whom a witness is called has a right to put in his hands a letter or document, or any thing on which he wishes to cross-examine, so that it shows a general bearing upon his testimony.” To this counsel for the plaintiff replied: “ The papers which he puts in the hands of the witness are not papers he is a party to at all, and are transactions between third parties.” The judge responded : “I see the object and purpo.se, and might as well disclose it here. They are now seeking to convince the jury that this witness is not fair and honest when he says he did not know- anything about his father’s debts, and they put this paper in evidence, which shows a certain state of facts on the face of it, and then are going to ask whether he ever knew anything about it. It has nothing to do with the actual transaction between the parties, but only to show whether the man had the knowledge which he swears he did not have, as a sort of an explanation to this matter. I am in danger of saying what I ought not to in the presence of this jury if I go any further in giving my reasons about this. I got up to the very line once or twice, and do not know but I stepped over it in trying to explain why I make this ruling.” We quite agree with the judge that in this matter he was up to the very line of what was proper, and we also think that he had passed it. The defendant’s counsel, who was a prominent member of the bar of the State, and quite competent to manage the defendant’s interests, had not undertaken to explain the purpose of this evidence, and could scarcely have needed the assistance of the court in doing so. Neither could the judge have known with any certainty what the purpose was, and it is quite possible that in guessing at it, he may have misjudged.
Immediately following this was the following question by defendant’s counsel: “ At the time you gave your father, or sold your father back, as you call it, a portion of this property mentioned in this bill of sale, for the purpose of enabling him to give a chattel mortgage to Louis Wheeler, how much did you say he allowed you for. that property ?” Thereupon Mr. Kinne, as counsel for the plaintiff, said : “Now, your honor, you say you do not wish us to interrupt the cross-examination : is it proper for me — and if it is not I will not do it — to object to a question when it assumes that a witness has made a statement which, according to my recollection, is not true?” To which the court replied : “Why, Mr. Kinne, your memory is good for nothing, or else yon are getting insane. Don’t you recollect that ho has sworn to it ?” Mr. Kinne responded: “ Yes; but not that he gave it for the purpose of enabling him to give a chattel mortgage to Louis. I object for the reason that it assumes he made it for .that purpose, and I say it was for nothing of that kind.” The Court. “ He has either now or on some other occasion sworn to that.”
If the only question that could arise upon this colloquy were one of the proper courtesy to be observed between court and counsel, we should be inclined to leave it to the judge’s own sense of propriety, talcing it for granted that there must have been in the case some undisclosed circumstance that disturbed the judicial calmness, and caused the utterance of unguarded expressions, for which, as the counsel in the case was a thoroughly reputable gentleman, we may well suppose the judge took early occasion to apologize. But there was something more than a want of courtesy: the judge made a statement .of fact regarding the plaintiff which was in the nature of evidence, and was very well calculated to impress the minds of the jury to the plaintiff’s prejudice. It does not appear by the record that the plaintiff had given in this case the evidence the judge imputed to him, and if he had given it on any former occasion it was not for the judge to state that faqt in the presence of the jury, any more than it was to permit any third person to put in an unsworn statement to that effect.
A little further on the following question was put to the plaintiff: “Tour father didn’t get any advantage of you in that sale, did he ? He did not get it for less than it was worth?” II3s answer was : “No ; I don’t think he wanted to take any advantage of me.” On which the judge said to the witness: “No matter what he wanted to do; just answer the question whether you think he did or not, and stop there. The question was not as to what he did want, and don’t you make your answers any more so.” This was a very sharp reprimand to the witness, and there was nothing in what he had said to call for it. He might have restricted his answer to the simple negative, but there was nothing perverse in his adding what he did, and nothing even improper.
Soon after this episode counsel for the plaintiff objected to certain evidence offered for the defense, as being irrelevant, when the judge, in overruling the objection, said that “nobody but the attorneys in the case fail to see what use may be made, and what turn some testimony may take.” This was severe upon the attorneys, but the judge should have remembered that even if their deficiencies were as great as his remark supposed, their clients had intrusted to them the management of the case, and that he himself was in no manner responsible for any want of capacity or comprehension which they might exhibit.
Complaint is made of the judge’s charge that it was an argument against the plaintiff, and the complaint is not without justice. Twice in the course of it the judge read to the jury the following passage from an opinion of this Court: “ The jury are under no obligation to believe the plaintiff’s statement, and unless it convinces their reason, they are entirely at liberty to reject it altogether. They must take the evidence with all the surroundings; and often other things which go to characterize a transaction are more convincing than the evidence of any single witness, especially if an interested witness.” It was quite proper to read this, or to give the substance of it in his instructions, but the repetition seems well calculated to impress upon the minds of the jury a caution to be observed, not as to the testimony of the witnesses in general, but only as to the testimony of this plaintiff, and to indicate an opinion on the part of the judge that the plaintiff’s evidence was particularly suspicious. An anecdote of the judge’s early life was given to illustrate how a witness may, by an inadvertent word, demonstrate his own falsehood ; and after what had taken place between the judge and the plaintiff on the stand, it would not be an unnatural inference on the part of the jury that the anecdote was intended to' intimate to them that in this case the plaintiff had in like manner disclosed his want of truth.
These things make it necessary that the case should go-back for a new trial. A few other things may be mentioned. The judge spoke of the lease as reserving a support to the plaintiff’s father; and this was commented upon as a badge of fraud. But there was no such reservation. The lease provided for the board and lodging of the father and his family as rent; and there was nothing apparently fraudulent or suspicious in this. The judge instructed the jury that, if the transaction between the plaintiff and his father was fraudulent, the officer had a right to take not only the property transferred to the plaintiff, but all the increase. The increase, it is to be understood, liad been accumulating for more than three years ; it might have been for twenty; and the increase was brought about by the labor and at the expense of the plaintiff; and if the creditors have the right which the judge conceded to them here, they might have waited until in danger of being cut off by the statute of limitations, and taken advantage of the labor and skill bestowed by the plaintiff upon the property to deprive him of whatever he might have made by means of it in the meantime. "We do not think they have any such right. If the sale had been attacked speedily, any natural increase which had taken place might have been claimed; but the time which had elapsed in this case was altogether too long for such a privilege to continue.
Before the trial of the case the officer had sold the property at public auction. On the question of damages the-defendant proved this sale to limit the plaintiff’s recovery in case he succeeded, and the plaintiff gave evidence tending to-show that the property did not bring its full value. Upon this the judge charged that, if the jury should find that through the plaintiff’s fault the property did not bring its full value, he ought not to come now and complain that the-property did not bring as much as it might — as much as it was actually worth at the time of the sale.' This was error. The plaintiff was in no manner responsible for the sale, and unless he actively interfered to prevent the property bringing a fair value, he was chargeable with no fault in respect to it.
The judgment must be reversed with costs, and a new trial ordered.
The other Justices concurred. | [
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Sherwood, J.
The plaintiffs bring trover to recover for a quantity of pine fencing lumber of the value of about $600, and under the evidence and charge of the court were permitted to recover.
It appears from the record that Joseph B. Walton, on the 28th of June, 1881, entered into a contract with defendant to construct a railroad track from East Saginaw to Sebewajng, and furnish the lumber for and fence the same for the sum of $2350 per mile. The contract contains fourteen clauses and- six paragraphs of specifications describing the work, the materials to be furnished, the manner of its construction, and terms of payment, with much minuteness and at great length. It will, however, be necessary in disposing of the case to consider but four of its provisions.
The tenth paragraph reads as follows:
“'All materials famished along the line of the road by said Walton for use in construction, when estimated by the engineer, shall at once become the property of the said first party, and may be held to secure the performance of this contract on the part of said Walton; but to insure care on the part of said Walton, it is agreed that in case of destruction of any such timber or other material by fire, prior to the final completion of this contract, the loss shall be borne by him.”
Walton commenced work under his contract in the spring of 1881. On the second day of August, 1881, he sublet to the plaintiff the furnishing of materials for and building the fences for the road. This was done by written contract, with specifications similar to those in Walton’s contract with the company. The portions of this contract most needful to be considered are contained in paragraphs first, ninth and eleventh, as follows:
“First. That said party of the second part, for the price herein contained, shall at once enter upon the line of the above-named railroad, included between the road, at station number three hundred and fifty-nine, the termination of said railroad at Sebewaing, and with suitable tools, men, teams and materials, and all other things necessary to build, construct and complete all the fencing included between said stations, and fully construct the same, and that all the said work embraced in this contract shall be fully completed to the satisfaction and acceptance of the engineer in the employ of the above-named railroad company, in charge of said woi’k, by the first day of December, A. D. 1881, agreeable and subject to all the conditions embraced in said Walton’s contract with said railroad company.
“Ninth. That when the work embraced in this contract shall be fully done and performed as aforesaid, and shall have been accepted by the engineer, the said party of the first part shall and will pay the said "party of the second part for said work as follows: For all fencing built and completed, at the rate of thirty' cents per lineal rod; for all necessary boards or fencing for said fence, at the rate of nine and one-quarter dollars per thousand feet, B. M.; and that the quantities shall be fixed and determined by said engineer.”
There was written at the bottom of the eleventh paragraph the following: “The quantity of lumber required for said fence shall be computed at the rate of twenty-six feet, B. M., per rod of fence.”
It is under these clauses that the defendant mainly claims to make defense. Neither the amount of lumber, nor the fact that the defendant had the same, are seriously contested. The plaintiffs commenced work under their contract in November, 1881, and placed along the line of the road the lumber claimed for in the plaintiff’s declaration before the 16th day of January, 1882, and on that day "Walton surrendered his contract to the company, which completed the road.
The lumber remained where it was hauled until after the ■seventh of March following, at which time the defendant knew Walton was in default, and had not paid the plaintiffs for it. The defendant further ignored the plaintiffs in the matter, who therefore forbade its disturbing or using the timber, and on plaintiff’s making demand therefor refused to surrender it, and claimed to be the owner thereof under its contract with Walton. The plaintiffs never received any pay for the timber from Walton, the company, or any one else, and never delivered it to any one. A part of it, when taken by defendant, was not on its right of way, as the plaintiffs claim.
We find no error in the rulings of the court upon the admissibility of the testimony.
The real question in the case, therefore, is: Under the contract, with the plaintiffs, did the title to the lumber placed along the line of the railroad pass to the company .as soon as it was unloaded there, without -other or further action on the part of the plaintiff? The circuit judge held it did not, and I think correctly.
The contract between Walton and the plaintiffs was partly printed and partly written, the printed portion containing ■several things not applicable to the work mentioned in the ■contract, and evidently do not refer thereto, and are not relied upon by either party. The clause providing that ■the fencing was to be done and completed to the satisfaction of the defendant’s engineer in charge of the work by the first day of December, 1881, “agreeable and subject to all the conditions embraced in said Walton’s contract with said railroad company,” applies to the manner in which the fence was to be built, and by whom to be inspected and accepted when built. It was to be constructed of certain material, using a certain kind of posts, the work to be done in a certain manner. This was necessary in order to secure its acceptance by the defendant’s engineer.
The ninth clause, above quoted, clearly shows the acceptance contemplated by the defendant’s engineer was to be given after the fence was completed. It was not until then the money for material or construction became due. Under the contract between Walton and the plaintiffs, the lumber was not delivered by plaintiffs until it was placed into the fence and accepted by defendant’s engineer. Under the contract between Walton and defendant, the lumber was delivered by Walton as soon as he placed it on the ground along the line of the company’s road, where the fence was to be built; but Walton could neither deliver the plaintiff’s lumber to the defendant, nor make a contract to deliver which would bind the plaintiffs or deprive them of the title to their lumber, without the plaintiffs’ consent or agreement for that purpose, and such consent or agreement the defendant never had.
It does not appear from the record that the plaintiffs ever saw Walton’s contract with the railroad company, or knew any of its provisions, except so far as they were referred to in their contract with Walton.
I think the circuit judge took the correct view of the case, and there is no error either in his rulings or the charge, and the judgment must be affirmed.
Cooley, C. J., concurred.
Champlin, J.
On the 28th day of June, 1881, the defendant entered into a written agreement with Joseph B. Walton for the construction of its railroad between certain points mentioned, and to fence the road according to certain specifications. Estimates were to be made monthly, of the work done and materials furnished, and Walton was to be paid eighty-five per cent, of the estimates according to the con tract price. Ey the tenth clause, all materials furnished along the line of the road by Walton, for use in construction, when estimated by the engineer, at once became the property of the company, and might be held by the company to secure Walton’s performance of the contract.
On the second day of August, 1881, Walton entered into a written agreement witli the plaintiffs, by which the plaintiffs agreed to construct and complete all fencing between certain points named in the contract, to the satisfaction of the engineer employed by the defendant, and furnish the-materials therefor, except the wire, nails and fastenings, and to have the same fully completed “ by the 'first day of December, 1881, agreeable and subject to all the. conditions embraced in the said Walton’s contract with the railroad company.” When the work was fully completed, plaintiffs were-to receive payment for it as follows: For all fencing built and completed, thirty cents per lineal rod; for all necessary boards or fencing for said fence, at the rate of nine and a quarter dollars per thousand feet, board measure ; and the quantities were to be fixed and determined by the engineer, and estimates of the labor and material furnished were to be made about the first of each month, and ninety per cent, was to be paid plaintiffs on or about the 15th of each month.
Where, as in this case, a contract is entered into referring in express terms to another contract, and subject to all the conditions embraced therein, both parties must be held to be fully cognizant of all the stipulations embraced in the contract referred to, and be controlled thereby. One of the stipulations of the contract between defendant and Walton was that all materials furnished along the line of the road, to be used in the performance of his contract, were to become the property of the defendants as soon as the same were estimated by its engineer. The record shows that the lumber in question was placed on the line of the defendant’s road, to be used in fulfilling the contract between defendant and Walton, and had been estimated by its engineer, and Walton fully paid therefor by defendant, and under the terms of both contracts the title must be held to have passed to the defendants. It appears, moreover, from the course of dealing between the parties, that the plaintiffs must have been aware that the defendants were estimating this fencing in controversy and paying Walton eighty-ñve per cent, on his monthly estimates. Indeed, it seems to be a necessary inference from the terms of the two contracts as to payments. Walton’s estimates were to be made between the 1st and 10th of each month, and payment made to him on the 12th, while the payments were to be made by Walton to plaintiffs on or about the 15th of each month. This enabled Walton to receive his pay on the estimates made by the engineer and pay to plaintiffs immediately thereafter. If, therefore, plaintiffs were aware of the fact that defendants were estimating this fencing at the points on the road where they caused it to be delivered, as lumber delivered by Walton under his contract, and upon which, by the contract, they were paying him eighty five per cent, of such estimates, as the records tend to show they did, they are estopped from saying that the title to the fencing did not pass from them to Walton or to the defendants. I think the judge erred in his construction of these contracts, and that the judgment should be reversed.
Campbell, J. I concur with my brother Champlin. | [
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Smolenski, J.
In this consolidated case, defendants appeal as of right from a circuit court order granting plaintiff’s motion for summary disposition. Under MCR 7.215(T)(1), we are bound to follow the rule
established in Oakland Co Treasurer v Title Office, Inc, 245 Mich App 196; 627 NW2d 317 (2001), and therefore must affirm the circuit court’s order. However, if not for the effect of MCR 7.215(I)(1), we would reverse the circuit court’s order and remand for entry of summary disposition in favor of defendants. Therefore, we request that the chief judge of this Court convene a special panel to address this issue, as provided in MCR 7.215(I)(3).
I. FACTUAL AND PROCEDURAL BACKGROUND
Under the Michigan Freedom of Information Act (foia), MCL 15.231 et seq., plaintiff requested that each of the defendant county treasurers provide electronic copies of certain property tax records. The county treasurers agreed to provide plaintiff with the requested electronic copies, but notified plaintiff that it would be required to pay the statutorily mandated fee of twenty-five cents a record, pursuant to the transcripts and abstracts of records act (TARA), MCL 48.101. Plaintiff refused to pay the statutorily mandated fee, arguing that the foia required the county treasurers to provide the electronic copies for the “actual incremental cost” of reproducing the records. MCL 15.234(1). The county treasurers took the position that one of the exceptions to the FOIA cost provisions applied to plaintiffs request, and that plaintiff would have to pay the fees mandated by the tara.
Plaintiff filed suit in the circuit court, seeking a mandamus order directing the county treasurers to provide plaintiff with electronic copies of the requested records. Plaintiff also sought an order prohibiting the county treasurers from charging plaintiff the statutory fee mandated by the tara, and requiring the county treasurers to charge plaintiff only the “actual incremental cost” of reproducing the electronic copies. Subsequently, defendant Livingston County Treasurer filed a complaint requesting a declaratoiy judgment that the tara governed the cost of reproducing the electronic records requested by plaintiff. Both cases were consolidated for decision in the circuit court. Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that none of the foia’s exceptions applied to its record request. The circuit court agreed, granted plaintiffs motion for summary disposition, and ordered the county treasurers to provide plaintiff with the requested records for no more than the “actual incremental cost” of reproduction. Defendants appeal as of right.
H. STANDARD OF REVIEW
A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support for a plaintiffs claim. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When deciding such a motion, courts must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. Id. We review de novo a trial court’s grant of a party’s motion for summary disposition. Id.
Furthermore, issues of statutory interpretation involve questions of law that are subject to review de novo. Oakland Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998). The primary goal of judicial interpretation of statutes is to discern and give effect to the intent of the Legislature. People v Morey, 461 Mich 325; 329-330; 603 NW2d 250 (1999); Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The rules of statutory construction merely serve as guides to assist the judiciary in determining legislative intent with a greater degree of certainty. In re Quintero Estate, 224 Mich App 682, 692-693; 569 NW2d 889 (1997).
Because our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent, and judicial construction is not permitted. We must give the words of a statute their plain and ordinary meaning. [Herald Co v Bay City, 463 Mich 111, 117-118; 614 NW2d 873 (2000) (citations omitted).]
m. FOIA COST PROVISIONS
Under the foia, all persons “are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them ... so that they may fully participate in the democratic process.” MCL 15.231(2). To that end, the FOIA contains specific guidelines regarding the fee that government officials may charge for providing copies of government records covered by the act. MCL 15.234. In the present case, the parties do not dispute that the foia governs defendants’ obligation to provide plaintiff access to the requested property tax records. Rather, the parties dispute whether the foia cost provisions govern the fee that plaintiffs must pay for the records. To resolve this question, we must examine the foia cost provisions and their exceptions. The FOIA provides, in pertinent part:
(1) A public body may charge a fee for a public record search, the necessary copying of a public record for inspection, or for providing a copy of a public record. Subject to subsections (3) and (4), the fee shall be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14____
(2) A public body may require at the time a request is made a good faith deposit from the person requesting the public record or series of public records, if the fee authorized under this section exceeds $50.00. The deposit shall not exceed l 2h of the total fee.
(3) In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion under subsection (1), a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act. Fees shall be uniform and not dependent upon the identity of the requesting person. A public body shall utilize the most economical means available for making copies of public records. A fee shall be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. A public body shall establish and publish procedures and guidelines to implement this subsection.
(4) This section does not apply to public records prepared under an act or statute specifically authorizing the sale of those public records to the public, or if the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute. [MCL 15.234 (emphasis added).]
Plaintiff argues that the county treasurers must provide the requested records for the “actual incremental cost” of reproducing those records, pursuant to subsection 1 of the above statute. However, defendants argue that one or both of the exceptions provided in subsection 4 apply to the present case because another statute, the TARA, either specifically authorizes the sale of property tax records to the public or specifically provides the amount of the fee for providing a copy of the public record to the public. We conclude that the TARA does not specifically authorize the sale of public records to the public, but does specifically provide the amount of the fee for providing a copy of the public record to the public. Accordingly, we would hold that the foia’s cost provisions do not apply to plaintiff’s request for electronic copies of property tax records.
IV. AUTHORIZED SALE OF PUBLIC RECORDS
Defendants argue that the FOIA cost provisions do not apply in the present case because the tara specifically authorizes the sale of property tax records to the public. We conclude that defendants’ argument is incorrect and that the trial court appropriately granted plaintiff’s motion with regard to this issue. The TARA, provides, in pertinent part:
(1) A county treasurer shall make upon request a transcript of any paper or record on file in the treasurer’s office for the following fees:
(a) For an abstract of taxes on any description of land, 25 cents for each year covered by the abstract.
(b) For an abstract with statement of name and residence of taxpayers, 25 cents per year for each description of land covered by the abstract.
(c) For list of state tax lands or state bids, 25 cents for each description of land on the list.
(d) For 1 copy of any paper or document at the rate of 25 cents per 100 words.
(e) For each certificate, 25 cents.
(2) For statements in respect to the payment of taxes required by section 135 of the general property tax act, Act No. 206 of the Public Acts of 1893, as amended, being section 211.135 of the Michigan Compiled Laws, the county treasurer shall receive 20 cents for each description of land contained in the certificate but the total amount paid shall not be less than $1.00.
(3) In no case shall any abstract, list, copy, or statement made as required by this act, be furnished for a sum less than 50 cents. [MCL 48.101.]
Defendants argue that the taka clearly establishes a fee for the production of property tax records to members of the public and thus falls within the exception to the foia cost provisions as “an act or statute specifically authorizing the sale of those public records to the public.” MCL 15.234(4). Defendants’ argument contains a commonsense appeal: because the Legislature determined the fee that a county treasurer must charge for a copy of a public record, the Legislature obviously approved the sale of that public record to the public. However, adherence to the rules of statutory interpretation reveals that defendants’ position is incorrect.
The first criterion in determining legislative intent is the specific language of the statute. In re MCI Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999); People v Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). The Legislature is presumed to have intended the meaning it plainly expressed, and the statute must be enforced as written. Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997). If the statutory language is unambiguous, judicial construction is neither necessary nor permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999); Toth v Auto-Alliance Int’l, Inc, 246 Mich App 732, 737; 635 NW2d 62 (2001). Furthermore, in construing a statute, this Court must presume that every word has some meaning and must avoid any construction that would render any part of a statute surplusage or nugatory. Borchard-Ruhland, supra at 285; Hoste v Shanty Creek Management, Inc, 459 Mich 561, 574; 592 NW2d 360 (1999). As far as possible, effect should be given to every phrase, clause, and word. Sun Valley Foods, supra at 237.
The Legislature clearly created two separate exceptions to the application of the foia cost provisions: (1) when a statute specifically authorizes the sale of public records, and (2) when a statute specifies the fee for providing a copy of the public record. MCL 15.234(4). If we adopted defendants’ argument, then each time the second exception is satisfied, the first exception would likewise be satisfied, for each and every statute specifying the fee for providing a copy of a public record would be deemed to specifically authorize the sale of that public record. In our view, such an inteipretation would render the first clause of MCL 15.234(4) meaningless. We must assume that the two clauses have separate and distinct meanings, because we must avoid a construction that would render any part of the statute surplusage or nugatory. Borchard-Ruhland, supra at 285. Therefore, we conclude that the TARA does not specifically authorize the sale of public records to the public, simply because the statute specifies the fee for providing a copy of those public records.
Defendants’ argument must also fail in light of this Court’s holding in Grebner v Clinton Charter Twp, 216 Mich App 736; 550 NW2d 265 (1996). In that case, the plaintiff filed an foia request for copies of the defendants’ voter registration rolls. Id. at 738. The defendants complied with the plaintiff’s request, duplicating the voter registration rolls onto magnetic tape. Id. However, the defendants charged the plaintiff a flat “per name” charge, meant to defray the defendants’ capital expenditure in computerizing their maintenance of public records. Id. The plaintiff filed suit, arguing that the foia permitted the defendants to charge only the “actual incremental charge” of duplicating the information onto magnetic tape. Id. at 739. The defendants argued that the first of the exceptions to the foia cost provisions applied on the basis of their theory that the Michigan Election Law, MCL 168.1 et seq., specifically authorized the sale of voter registration rolls. Id. at 742. The trial court granted summary disposition in favor of the plaintiff and ordered the defendants to refund the excess fee charged. Id. at 739. This Court affirmed, concluding that the Michigan Election Law did not qualify as a “statute specifically authorizing the sale” of voter registration rolls so as to fall within the exception to the FOIA cost provisions. Id. at 742.
The Grebner Court reasoned that a statute “specifically” authorizing the sale of public records does so “explicitly.” Id. at 743. The Court cited two statutes as examples of language that “specifically” authorized the sale of public records. Id. at 742-743. First, the Court referenced MCL 24.259(2), which provides that “[t]he department of management and budget shall hold [individual copies of the Michigan Register] for sale at a price not less than the publication and distribution costs.” Id. at 743. Second, the Court referenced MCL 4.1204(3), which allows for “the sale of access” to legislative databases. Id. The Grebner Court concluded that the Michigan Election Law, which simply permitted the county clerks to provide copies of voter registration lists to members of the public upon “payment” of a fee, did not “specifically” authorize the sale of those public records so as to fall within the first exception to the FOIA cost provisions. Id. at 743-744.
Applying the Grebner analysis in the present case, we conclude that the TARA does not “specifically” authorize the sale of property tax records to the public. Therefore, the trial court appropriately granted plaintiffs motion for summary disposition regarding this issue.
V. SPECIFIC FEE PROVIDED BY STATUTE
Defendants next argue that the FOIA cost provisions do not apply in the present case because the tara specifically provides “the amount of the fee for providing a copy of the public record.” We agree.
Although defendants advanced the same argument below, the trial court concluded that the TARA did not apply to plaintiffs record request. The trial court ruled:
[T]he Court finds that the Transcripts and Abstracts of Records Act does not specifically designate the amount of the fee for providing a copy of the public record. Although the Transcripts and Abstracts of Records Act designates the amount of the fee for abstracting or transcribing a portion of the record, plaintiff did not request a transcription or an abstract. Plaintiff requested a computer tape containing each county’s property tax records. Thus, the statute does not specifically designate the amount of the fee for providing a copy of the record in the computer format requested.
Thus, the trial court’s ruling hinged on its definition of the statutory term “transcript.” The TARA provides that a county treasurer shall, upon request, make “a transcript of any paper or record on file in the treasurer’s office,” in accordance with the specified fees. MCL 48.101. Plaintiff argued, and the trial court agreed, that an electronic copy of property tax records did not qualify as a “transcript” of those records. We conclude that the trial court erred as a matter of law in reaching that conclusion.
When a statute does not define a term, we will ascribe its plain and ordinary meaning. Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 539; 565 NW2d 828 (1997). In the present case, the tara does not contain a specific definition for the term “transcript.” When a statute does not expressly define a term, courts may consult dictionary definitions in order to ascertain the ordinary meaning of the term. Popma v Auto Club Ins Ass’n, 446 Mich 460, 470; 521 NW2d 831 (1994); Ryant v Cleveland Twp, 239 Mich App 430, 434; 608 NW2d 101 (2000). Therefore, we turn to the common understanding of the term “transcript” to resolve the present case. The common meaning of the term includes “something transcribed or made by transcribing,” and “an exact copy or reproduction, esp[eciaily] one having an official status.” Random House Webster’s College Dictionary (1992), p 1416. Further, the term has been defined to mean “that which has been transcribed,” or a “copy of any kind.” Black’s Law Dictionary (6th ed), p 1497.
Plaintiff argues that the TARA governs only “written documents” and “paper copies.” However, the TARA does not contain the term “written,” and it does not state that a county treasurer shall make, upon request, a “paper copy” of its records. Rather, the statute applies broadly, requiring a county treasurer to make, upon request, “a transcript of any paper or record on file in the treasurer’s office.” MCL 48.101(1). An electronic copy of property tax records qualifies as a “transcript” of that record for purposes of the TARA. The medium on which the record is copied is of no significance. A copy is a copy, whether the information is handwritten, typed, photocopied, or electronically copied; it remains a copy, whether the information is placed onto paper, magnetic tape, or a computer disk.
Plaintiff also argues that the Legislature could not have intended the tara to apply to electronic copies of county records because the Legislature enacted the statute in 1895, before the invention of computers. However, if we accepted plaintiff’s logic, then we would also be compelled to hold that the schedule of fees contained in the tara does not properly apply to photocopies of county records, because the 1895 Legislature could not have envisioned the invention of photocopy machines. The Legislature chose to frame the statute in broad terms, applying to “any paper or record” on file in the treasurer’s office. MCL 48.101. This language is certainly broad enough to include records that are not maintained on paper.
Given our conclusion that the TARA governs the fee that county treasurers must charge plaintiff for the records that plaintiff requested, we would reverse the circuit court’s ruling and remand for entry of summary disposition in defendants’ favor. However, given this Court’s decision in Oakland Co, supra, we are bound to reach a different result. MCR 7.215(I)(1).
VI. OAKLAND CO TREASURER v TITLE OFFICE, INC
In Oakland Co, supra at 198, this Court considered the application of the tara, as a potential exception to the foia cost provisions, regarding the defendant’s request for electronic copies of the plaintiff Oakland County Treasurer’s property tax records. In that case, the panel did not explore the meaning of the statutory term “transcript.” Rather, the panel considered the historical origins of the statute and opined that the Legislature could not have intended for the TARA to apply to requests for electronic copies:
The Legislature enacted MCL 48.101 in 1895. 1895 PA 161. The last pertinent amendment took place in 1974, 1974 PA 141, when the Legislature raised the cost the counties could charge for copies. Clearly, the 1895 Legislature did not contemplate a charge for electronic copies when it enacted MCL 48.101. Moreover, when the Legislature amended the statute, over twenty-seven years ago, there still was no indication that it applied to electronic copies. This statute was clearly designed to compensate the county for its cost of manipulating data into certified transcripts, or abstracts. Plaintiff, in this case, would not incur the costs of certifying or making transcripts, and, therefore, the purpose of charging the statutory fees is absent. [Oakland Co, supra at 203.]
We disagree with the Oakland Co panel’s conclusion, for the reasons set forth above. We believe that the language of the tara is broad enough to cover electronic copies of records kept on file in the offices of the county treasurers. Further, we believe that the tara clearly falls within the second exception to the FOIA cost provisions, for situations where “the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute.” MCL 15.234(4). However, despite our disagreement with the Oakland Co decision, we are bound to apply its holding here, pursuant to MCR 7.215(I)(1).
If free to do so, we would reverse the circuit court’s decision and remand for entry of summary disposition in defendants’ favor. However, under MCR 7.215(I)(1), we must affirm.
Affirmed.
O’Connell, P.J., concurred.
White, J. I concur in the result only.
Plaintiff’s requests apparently covered the entire properly tax records of each county, over the span of several years.
Given the voluminous records requested by plaintiff, the statutorily mandated fee would amount to a substantial sum. The Livingston County Treasurer stated, at the time plaintiff filed its request, that the statutory fee for reproduction of its records would amount to $63,750. Likewise, the fee would have reached $33,750 in Van Burén County, $17,332.25 in Allegan County, and $2,502.20 in Ionia County. However, the exact figures change as the counties continue to update their property tax records.
The parties do not dispute that the “actual incremental cost” of reproducing the records under MCL 15.234(1) would be far less than the fee of twenty-five cents a record set forth in MCL 48.101.
Plaintiff originally filed its complaint in the Ottawa Circuit Court. The Livingston County Treasurer filed its declaratory action in the Livingston Circuit Court. In plaintiff’s action, defendants moved for a change of venue to Livingston County. The Ottawa Circuit Court granted that motion, and the two cases were consolidated for decision in the Livingston Circuit Court.
This Court’s opinion in Oakland Co, supra, does not control our disposition of this issue. In that case, the plaintiff county treasurer admitted that the tara does not specifically authorize the sale of public records. Id. at 202. Therefore, this Court did not explicitly consider the first exception to the foia cost provisions. This Court addressed only the second exception, i.e., whether the tara specifically provides the amount of the fee for providing copies of the relevant public records.
Furthermore, defendants’ argument would fail to recognize the distinction between selling an original public record and providing a copy of a public record.
While the “actual incremental charge” of providing the requested information under the foia was only $90, the defendants charged the plaintiff approximately $640 under the “per name” method of computing the fee. Grebner, supra at 738-739.
See 1895 PA 161, effective August 30, 1895.
The defendant in the Oakland Co case is the same party that appears as plaintiff in the instant case.
Furthermore, the Oakland Co decision created an ironic dichotomy in the fee schedule that county treasurers must implement. Under that decision, a member of the public requesting a computer printout of a property tax record would be compelled to pay the mandatory fee of the tara, while the same person requesting a computer disk or tape, containing the identical information, would not. | [
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Per Curiam.
Plaintiffs Ruth Behar and David Frye, individually and as next friends of their eleven-year-old minor son, Gabriel Frye-Behar, appeal as of right from the trial court order that granted defendants summary disposition pursuant to MCR 2.116(C)(10). Plaintiffs had filed a tort action against defendants alleging that defendant James Fox, an assistant coach, was liable for using his full effort in a soccer scrimmage against their son, and further alleging that defendant Steve Rubin, the head coach, was negligent for failing to properly supervise the scrimmage and for allowing defendant Fox to play at his full potential. We affirm.
Plaintiffs brought suit after their son tore his anterior cruciate ligament when defendant Fox either collided with or kicked the boy in the knee during a soccer scrimmage. Defendants moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiffs failed, as a matter of undisputed fact and law, to establish that defendant Fox’ conduct was reckless. Plaintiffs argued that the standard to be applied was negligence rather than recklessness and further argued that they did present sufficient material facts to create an issue regarding defendant Fox’ negligent and reckless misconduct. The trial court agreed with defendants and granted summary disposition on that basis.
We review a motion for summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d 685 (1999); MCR 2.116(C)(10).
i
Plaintiffs first argue that the trial court erred in granting summary disposition because it applied the reckless misconduct standard instead of the less burdensome negligence standard. We disagree.
The trial court correctly concluded that the reckless misconduct standard adopted in Ritchie-Gamester v City of Berkley, 461 Mich 73; 597 NW2d 517 (1999), applies to this case. In Ritchie-Gamester, the adult plaintiff sued the twelve-year-old defendant for carelessly skating backward on an ice-skating rink, causing the two to collide, and further resulting in the plaintiff’s injuring her knee from her fall on the ice rink. Id., 75. Our Supreme Court reviewed the published cases in Michigan involving injuries to participants in recreational activities and concluded that “there seems to be general agreement that participants in recreational activities are not hable for every mishap that results in injury, and that certain risks inhere in all such activities.” Id., 81.
Next, our Supreme Court looked at the law in other jurisdictions and noted that the majority of other jurisdictions have adopted a “reckless or intentional conduct” standard. Id., 82. Our Supreme Court went on to note that, no matter whether the legal effect of participating in a recreational activity is classified as “consent to inherent risks,” “notice,” “an implied con tract,” or “assuming the risks,” the bottom line is that people who engage in recreational activities voluntarily “subject themselves to certain risks inherent in that activity.” Id., 86-87. Thus, our Supreme Court concluded:
With these realities in mind, we join the majority of jurisdictions and adopt reckless misconduct as the minimum standard of care for coparticipants in recreational activities. We believe that this standard most accurately reflects the actual expectations of participants in recreational activities. As will be discussed in more detail below, we believe that participants in recreational activities do not expect to sue or be sued for mere carelessness. A recklessness standard also encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Finally, this standard lends itself to common-sense application by both judges and juries. [Id., 89.]
While plaintiffs do not quarrel with the holding in Ritchie-Gamester, they contend that the standard in Ritchie-Gamester is not absolute but leaves room for other standards depending on the factual circumstances of each case. In support of this contention, plaintiffs quote footnote 9 of the Ritchie-Gamester opinion. That footnote provides as follows:
We recognize that we have stated this standard broadly as applying to all “recreational activities.” However, the precise scope of this rule is best established by allowing it to emerge on a case-by-case basis, so that we might carefully consider the application of the recklessness standard in various factual contexts. [Id., 89, n 9.]
Plaintiffs contend that we should carve out an exception to the Ritchie-Gamester standard where an adult coach uses his “full effort” to play soccer against an eleven-year-old. However, nothing in the above footnote invites exceptions for disparities in height, weight, age, or skill level. On the contrary, our Supreme Court thought about those disparities in rendering its opinion and concluded that, at least in the context of an “open skate,” the risks of skating include the reality that people “of various ages and abilities” will pile onto the ice in proximity to each other. Id., 89.
Similarly, the risk of injury from a collision or kick is present whenever an individual plays soccer. Although interaction with others varying in size, age, and ability can result in serious injuries, the risk that an individual will be knocked down or kicked in an unprotected area by someone older, stronger, or less experienced is an inherent risk of the game. Thus, the mere fact that plaintiffs’ minor son was injured in a collision with an adult coach rather than with a larger child coparticipant is of insufficient distinction to take this case out of the realm of the RitchieGamester standard.
Further, the deposition testimony indicates that defendant Fox was as much a “coparticipant” in the scrimmage as he was a coach. Rubin testified during deposition that both he and Fox were involved in the scrimmage on the team opposing that of plaintiffs’ son. Accordingly, we hold that the trial court correctly applied the recklessness standard adopted in Ritchie-Gamester.
n
Plaintiffs next argue that the trial court erred in granting defendants summary disposition because a question of material fact existed regarding whether defendant Fox’ conduct was reckless. We disagree.
Our Supreme Court has previously defined reckless misconduct as follows:
“One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the wilful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.” [Gibbard v Cursan, 225 Mich 311, 321; 196 NW 398 (1923), quoting Atchison, T & SF B Co v Baker, 79 Kan 183, 189-190, 98 P 804 (1908).]
Here, plaintiffs presented no documentary evidence in support of their contention that defendant Fox’ conduct was reckless. During his deposition, FryeBehar testified that the ball was kicked toward his goal and that he raced toward it. He further testified that as he slowed down to pick up the ball from the goal area, defendant Fox, who was just one stride behind him, hit the back of Frye-Behar’s knee, knocking him down. Frye-Behar admitted that there have probably been instances where he has tried to get the ball and missed, making contact with another player, instead of the ball. He also averred that, while he had never seen a player kick a goalie in the goalie box before his injury, it is not unusual for soccer players to get kicked during the course of the game.
In his affidavit, Frye-Behar further averred that, while he did not actually see the blow to his knee, he felt defendant Fox’ toe and cleats strike him hard, and that the bruising was deep and severe and stayed with him for a very long time. Frye-Behar further averred that, when he was kicked, defendant Fox had “no chance to make a play on the ball.”
Frye-Behar’s sworn statements reveal that, at most, defendant Fox was pursuing Frye-Behar in an effort to win the ball, but negligently kicked Frye-Behar’s knee instead. The evidence does not suggest that defendant Fox’ conduct displayed such complete indifference toward the risk of injury as to place defendant Fox in the same class as an intentional tortfeasor.
Although plaintiffs point out that, under standard soccer regulations, kicking a goalie’s knee in the goal area amounts to a “red card” violation, the trial court correctly dismissed this argument. As the trial court itself recognized, our Supreme Court in RitchieGamester expressly refused to adopt the concurrence’s position that breaches of rules regarding safety should be actionable. Ritchie-Gamester, supra, 92.
Instead, our Supreme Court concluded that such a position would result in confusion, and would lead to “more, rather than fewer, ancillary disputes.” Id. As the Court explained:
In the case of soccer, which is officially a “non-contact” sport, where would the concurrence draw the “negligence line” if a participant is injured when she is fouled? Is a minor foul actionable? Is a foul that draws a “yellow card” actionable? Or would the concurrence find the foul actionable if it results in a “red card”? . . .
Surely all who participate in recreational activities do so with the hope that they will not be injured by the clumsiness or over-exuberant play of their coparticipants. However, we suspect that reasonable participants recognize that skill levels and play styles vary, and that an occasional iryury is a foreseeable and natural part of being involved in recreational activities, however the “informal and formal rules” are structured and enforced. [Id., 93-94.]
Thus, plaintiffs’ argument that, had defendant Fox engaged in such conduct during the course of an organized game, he would have received a “red card,” does not indicate that defendant Fox’ conduct was reckless. In addition, because plaintiffs failed to establish that defendant Fox’ negligent conduct amounted to anything more than “clumsy” and “over-exuberant play,” their argument that the trial court erroneously granted defendants summary disposition lacks merit.
Affirmed.
Although originally a party to this appeal, defendant Rubin was dismissed as a party by stipulation during the pendency of this appeal. | [
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Per Curiam.
Plaintiffs appeal the trial court’s orders granting summary disposition to defendants on the plaintiffs’ legal malpractice claims. We affirm.
i
In June 1995, plaintiffs retained defendants to investigate and pursue a medical malpractice action against several medical providers. The malpractice claim arose in part out of plaintiff Cara Mitchell’s February 1995 admission to Oakwood Hospital (Oak-wood). Cara Mitchell was diagnosed with Hodgkin’s lymphoma, a treatable form of cancer, for which her doctor prescribed the chemotherapy drug vinblastine sulfate. According to plaintiffs, on February 25, 1995, during the Oakwood admission Cara was mistakenly given the drug vincristine at an excessively high dosage of nine milligrams.
At the time of plaintiffs’ first meeting with attorneys John C. Dougherty and Robin Kyle (defendant attorneys) in June 1995, Dougherty was a principal in the law firm of Dougherty, Schneider & Miller, P.C., and Kyle was associated in an “of counsel” capacity with that firm. Plaintiffs entered into a contingency fee agreement with defendant attorneys; however, the written agreement made no mention of the law firm. Defendants filed a notice of intent to file a medical malpractice claim on September 18, 1995, which stated that Cara was given an excessive amount of vinblastine, but did not indicate that the drug vincristine was given in error.
In early 1996, Dougherty left the law firm and informed plaintiffs that he would be starting his own firm in which Kyle would be a partner. Following Dougherty’s departure, the firm changed its name to Schneider, Miller & Lim, P.C. (defendant law firm). Defendant attorneys continued to represent plaintiffs after leaving the firm, and there is no indication in the record that plaintiffs objected to this arrangement. According to Kenneth M. Schneider, the law firm of Schneider, Miller & Lim, P.C., did not perform any professional services for plaintiffs following Dougherty’s departure from the firm.
Although defendant attorneys filed a medical malpractice complaint on plaintiffs’ behalf against Family First Clinic, they informed plaintiffs that they were unable to locate an expert who would support a medical malpractice action against Oakwood. Plaintiffs filed an in propria persona complaint against Oak-wood in August 1997, believing that they had until the end of that month to initiate an action against Oak-wood. However, the applicable limitation period for plaintiffs’ claim against Oakwood expired in February 1997.
On December 26, 1997, plaintiffs filed the present legal malpractice action against defendants. Plaintiffs claimed that they had a valid medical malpractice action against Oakwood based on the alleged overdose of vincristine, and defendants negligently failed to file a complaint before the expiration of the period of limitation. Plaintiffs also alleged that defendants failed to inform them of the correct date the limitation period on their medical malpractice claim against Oakwood would expire. Plaintiffs further asserted that defendants negligently induced them to settle their claim against Family First Clinic for a sum less than that to which they were entitled.
Defendant law firm filed a motion for summary disposition, arguing that they could not be held liable for the alleged malpractice of defendant attorneys. The law firm claimed that it no longer represented plaintiffs after defendant attorneys left the firm, and the malpractice alleged in this case occurred after then-representation ceased. At an October 1998 hearing, the trial court granted defendant law firm’s motion and entered an order on November 13, 1998, dismissing with prejudice plaintiffs’ case against the firm.
Defendant attorneys also filed a motion for summary disposition in November 1998. In their motion, the attorneys argued that plaintiffs could not establish a claim of legal malpractice against them because plaintiffs could not prove that they had a valid medical malpractice action against Oakwood. The attorneys claimed that there was no evidence establishing that Cara Mitchell received vincristine instead of vinblastine or that she received an overdose of vincristine. Defendant attorneys produced an affidavit of Cara’s treating physician Mark Kaminski, M.D., in which he stated that his review of the records demonstrated that she received nine milligrams of vinblastine as her doctor ordered. The attorneys also produced records from Oakwood’s pharmacy department indicating that the pharmacy dispensed vinblastine and a deposition of the director of Oakwood’s pharmacy in which he stated that a nine-milligram dose of vincristine was so inappropriately high they would have questioned the order. Further, the attorneys produced an affidavit of James W. Albers, M.D., another one of plaintiffs’ experts, stating that he could not support plaintiffs’ claim that she received vincristine at Oakwood. The attorneys acknowledged that a nursing note from Cara’s hospitalization stated that she received vincristine; however, in a deposition, the nurse who wrote that notation stated that she believed she made a charting error and she did administer the proper medication. The attorneys further argued that plaintiffs’ claim that they induced plaintiffs to accept a low settlement amount was mer itless because attorneys could not be sued for exercising their professional judgment.
Plaintiffs responded to the attorneys’ motion by filing affidavits from three doctors opining that the symptoms of neurotoxicity that Cara suffered indicated that, more likely than not, she received vincristine, not vinblastine at Oakwood. Plaintiffs referred the court to the deposition of Dr. Kaminsky in which he stated that it was possible that Cara received the wrong medication. Plaintiffs also argued that their medical malpractice claim was supported by Cara’s recollections of her treatment, the nursing note from Oakwood that stated that Cara was administered vincristine, and the fact that Cara subsequently sought treatment at the University of Michigan Medical Center, where she was diagnosed with vincristine toxicity. Plaintiffs further noted that defendant attorneys’ motion for summary disposition was premature because discovery was not complete.
The trial court took the motion under advisement and issued a written opinion in February 1999 partially denying and partially granting the motion. The court found that plaintiffs established a question of fact regarding whether Cara received vincristine or vinblastine. The court also found that there was no written evidence that defendant attorneys informed plaintiffs of the applicable limitation period. Therefore, the court concluded that summary disposition was inappropriate on plaintiff’s claim that defendant attorneys violated the standard of practice by failing to file a medical malpractice claim. However, the court granted defendant attorneys’ motion regarding the negligent inducement claim.
Defendant attorneys filed a motion for reconsideration on the ground that the court committed palpable error in its finding that the evidence supported plaintiffs’ claim that Cara received nine milligrams of vincristine. According to the attorneys, the nursing note indicated only that she received vincristine and did not specify a dosage, plaintiffs’ experts never testified that Cara received nine milligrams, and it was undisputed that if she received only a two-milligram dose of vincristine, it would have been the proper dose. The attorneys further argued that the court erred in concluding that there was no evidence that plaintiffs were informed of the statute of limitations because Cara admitted in a deposition that she was told about the applicable two-year limitation period well before the limitation period expired. The trial court granted defendant attorneys’ motion for reconsideration and entered an order on March 26, 1999, granting the motion for summary disposition and dismissing plaintiffs’ complaint with prejudice.
n
In their first assertion of error, plaintiffs argue that the trial court erred in granting defendant attorneys’ motion for summary disposition because plaintiffs established that they had a valid medical malpractice claim against Oakwood, and defendant attorneys were negligent for failing to pursue this claim before the limitation period expired.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a claim. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). The reviewing court considers affidavits, pleadings, depositions, admissions, and docu mentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The court should grant the motion only if the affidavits or other documentary evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
In order to establish a claim of legal malpractice, a plaintiff must prove (1) the existence of an attorney-client relationship, (2) negligence in the legal representation of the plaintiff, (3) that the negligence was the proximate cause of an injury, and (4) the fact and extent of the injury alleged. Charles Reinhart Co v Winiemko, 444 Mich 579, 585-586; 513 NW2d 773 (1994). Further, where the alleged malpractice results from the failure to diligently pursue or timely file a client’s claim, a plaintiff seeking to establish the third and fourth elements of the claim, i.e., proximate cause and damages, must show that but for the attorney’s alleged malpractice she would have been successful in the underlying suit. Id. at 586; Basic Food Industries v Grant, 107 Mich App 685, 691; 310 NW2d 26 (1981).
In this case, it is undisputed that an attorney-client relationship existed between plaintiffs and defendant attorneys. At issue is whether defendant attorneys were negligent in failing to file a medical malpractice action against Oakwood before the applicable limitation period expired and whether this alleged negligent conduct resulted in damages to plaintiffs. We first examine plaintiffs’ claim that defendant attorneys breached their duty to plaintiffs by failing to diligently pursue and timely file a medical malpractice action against Oakwood.
To determine whether defendant attorneys were negligent in this case we must first examine the duty they owed plaintiffs. An attorney has an implied duty to exercise reasonable skill, care, discretion, and judgment in representing a client. Simko v Blake, 448 Mich 648, 655-656; 532 NW2d 842 (1995). Further, an attorney is obligated to act as an attorney of ordinary learning, judgment, or skill would under the same or similar circumstances. Id. at 656. However, an attorney is not a guarantor of the most favorable possible outcome, nor must an attorney exercise extraordinary diligence or act beyond the knowledge, skill, and ability ordinarily possessed by members of the legal profession. Id. Further, “where an attorney acts in good faith and in honest belief that his acts and omissions are well founded in law and are in the best interest of [the] client, [the attorney] is not answerable for mere errors in judgment.” Id. at 658.
Here, plaintiffs allege that defendant attorneys were negligent in failing to file a medical malpractice action against Oakwood. It is important to note that this alleged failure was not mere oversight or the result of poor case management, but rather was an affirmative decision on the part of defendant attorneys not to pursue the action. According to defendant attorneys, they investigated plaintiffs’ claims against Oakwood and determined, in their professional opinion, that the case was not worth pursuing.
Plaintiffs do not dispute whether defendant attorneys conducted an investigation into the merits of their case. Instead, plaintiffs argue that defendant attorneys’ determination that the case against Oak- wood was not worth pursuing is clearly negligent because plaintiffs’ counsel in this legal malpractice action was able to locate more than one expert who would testify that the treatment Cara Mitchell received at Oakwood constituted medical malpractice. Further, plaintiffs stress that there were issues of fact regarding whether Cara was given an excessive dosage of the incorrect medication. However, the critical question here is not whether plaintiffs would have ultimately prevailed on their medical malpractice claim. Rather, the issue is whether defendant attorneys exercised reasonable skill, care, discretion, and judgment when they determined that plaintiffs’ claim was not worth pursuing. Simko, supra at 655-656.
Here, the attorneys’ opinion on the merit of plaintiffs’ case was influenced in part by the attorneys’ inability to locate an expert physician who would support plaintiffs’ claim that Oakwood’s treatment of Cara Mitchell was negligent. In addition, defendant attorneys point to the inherent conflicts in the evidence regarding whether Cara received either an incorrect medication or an incorrect dosage. Plaintiffs admitted that defendant attorneys informed them of their decision to file a complaint against Family First Clinic only and their reasons for not naming Oak-wood in the suit.
Although it is true that plaintiffs’ present counsel was able to obtain the affidavits of experts supporting plaintiffs’ medical malpractice claim, this evidence does not negate the fact that defendant attorneys sought the opinion of an expert and received an opinion that was not favorable. The necessity of obtaining the testimony of an expert physician to support alie gations of medical malpractice is codified in MCL 600.2912d and MCL 600.2169, and factual disputes without an expert opinion are insufficient to initiate, let alone maintain, a medical malpractice action. Given the high standard for pursuing medical malpractice claims in this jurisdiction, we cannot fault defendant attorneys’ reluctance to bring a malpractice action where they were unable to obtain the supportive testimony of a physician.
Plaintiffs present no evidence that the measures that defendant attorneys took in investigating plaintiffs’ claims were less than an attorney of ordinary learning, judgment, or skill would have done under the same or similar circumstances. Simko, supra. In essence, plaintiffs allege that defendant attorneys erred in their judgment that plaintiffs’ medical malpractice claim against Oakwood was without merit. Although “gross” errors in judgment can be actionable, Basic Food, supra at 694, mere errors in judgment by attorneys acting in good faith are not. Simko, supra at 658. Plaintiffs presented no evidence that defendant attorneys’ determination that the case was not worth pursuing was anything other than an honest belief well founded in the law and in the best interest of their clients. Simko, supra at 694. Although there may be a question of fact regarding the merit of plaintiffs’ medical malpractice action, we decline to create precedent whereby an attorney is obligated to file suit whenever there is some scintilla of evidence supporting the client’s claim.
Plaintiffs also allege that defendant attorneys were negligent in failing to properly inform them when the limitation period on their medical malpractice action would expire. In support of this argument, plaintiffs cite Cara’s testimony in which she claimed that defendant attorneys told her that the limitation period would expire in August 1997. It is undisputed that plaintiffs’ claim expired in February 1997. However, Cara also admitted that defendants discussed with her the two-year limitation period for her claim in 1995 or 1996. Plaintiffs cannot create an issue of fact by contradicting their own testimony. Dykes v William Beaumont Hasp, 246 Mich App 471, 479-480; 633 NW2d 440 (2001). We do not agree that the trial court erred in concluding that no genuine issue of fact existed regarding whether defendant attorneys correctly informed plaintiffs of the date on which the limitation period expired.
Because we conclude that plaintiffs failed to establish that defendant attorneys’ decision not to pursue a medical malpractice action against Oakwood was a breach of their professional duty to plaintiffs, we do not reach the issue whether the alleged negligence injured plaintiffs. We find no error in the trial court’s decision to grant summary disposition of plaintiffs’ claims against defendant attorneys.
IH
In their second assertion of error, plaintiffs claim that the trial court should have denied defendant law firm’s motion for summary disposition because an attorney-client relationship existed between plaintiffs and the law firm at the time of the alleged malpractice. Specifically, plaintiffs argue that at the time they signed the contingency agreement with defendant attorneys, the attorneys were acting in a representative capacity for the firm, and the attorneys’ disassociation with the firm did not terminate the relationship between plaintiffs and the firm. Although there is case law addressing the liability of attorneys whose representation is clearly terminated by the client or the court, it appears that the particular situation in this case has not been examined by this Court.
A client’s employment of one member of a law firm is generally deemed to be employment of the firm itself. MCR 2.117(B)(3); Plunkett & Cooney, PC v Capitol Bancorp Ltd, 212 Mich App 325, 329; 536 NW2d 886 (1995). Defendant law firm does not dispute that an attorney-client relationship existed between it and plaintiffs at the time that plaintiffs entered into a contingency fee agreement with defendant attorneys. Instead the firm argues that its representation of plaintiffs ceased when defendant attorneys left the firm and assumed responsibility for plaintiffs’ case.
Defendant law firm further argues that where a firm ceases to represent a client and the client acquires new counsel before the applicable limitation period expires, the firm is not liable for the failure to file an action before the expiration of the limitation period, citing Boyle v Odette, 168 Mich App 737; 425 NW2d 472 (1988). In Boyle, the plaintiff hired the defendant to represent her regarding injuries from an accident with an underage driver who was under the influence of alcohol. The defendant negotiated a settlement with the driver’s no-fault insurer in February 1984. In July 1985, the plaintiff retained new counsel to pursue further claims arising out of the accident. The plaintiffs new attorney filed a dramshop action against the reception hall where the driver consumed the alcoholic beverages; but the case was dismissed, purportedly because the applicable limitation period had expired. The plaintiff then sued the defendant, alleging that he committed legal malpractice by failing to pursue and timely file the dramshop action. The plaintiff later sought to amend her complaint to allege that the defendant was negligent for failing to file a social host claim against another party.
The trial court denied the plaintiff’s request to amend her complaint because the applicable limitation period for the social host claim had not expired at the time the plaintiff retained new counsel and there was no merit to the claim. On appeal, this Court found that the trial court did not abuse its discretion in denying the plaintiff’s request to amend her complaint because the amendment was futile. Boyle, supra at 746. We concluded that the defendant could not be held liable for failing to file the social host claim where he had ceased to represent the plaintiff and was replaced by other counsel before the applicable limitation period expired on the claim. Id. at 745.
On the basis of our holding in Boyle, we would agree with defendant law firm that it could not be hable for the failure to pursue or timely file a claim where its representation of plaintiffs had ceased before the applicable period of limitation expired on the claim. However, there is a critical distinction between this case and the facts of Boyle, hi Boyle, it was clear that the plaintiff, by retaining alternate counsel, had terminated her attorney-client relationship with the defendant before the limitation period expired. Retention of an alternate attorney effectively terminates the attorney-client relationship. Maddox v Burlingame, 205 Mich App 446, 450; 517 NW2d 816 (1994). However, in this case, plaintiffs did not retain alternate counsel. Rather, they maintained their relationship with defendant attorneys after the attorneys’ separation from defendant law firm. At no time did plaintiffs formally terminate their representation by defendant law firm. Therefore, the question we must address here is whether the attorney-client relationship between plaintiffs and defendant law firm was terminated and, if it was, when that termination occurred.
Generally, when an attorney is retained to represent a client, that representation continues until the attorney is relieved of the obligation by the client or the court. Id. at 450; Stroud v Ward, 169 Mich App 1, 6; 425 NW2d 490 (1988). Plaintiffs argue that the authority cited by defendant law firm in support of its position that plaintiffs terminated their relationship with the firm is inapplicable to the instant case because none of the cases address the situation where an attorney leaves a firm and continues to represent someone who was a client of the firm. It appears that plaintiffs are correct that this case presents a situation not directly addressed by this Court. Plaintiffs further claim that they did not termi nate their attorney-client relationship with defendant law firm because they did not clearly indicate that they were releasing defendant law firm from its obligation to represent them.
However, contrary to plaintiffs’ assertions, no formal discharge by the client is required, and the termination of an attorney-client relationship can be implied by the actions or inactions of the client. As stated above, the retention of alternate counsel is sufficient proof of the client’s intent to terminate the attorney’s representation. Maddox, supra; Stroud, supra. This Court has also held that a client terminated his attorney’s representation by sending a letter stating that the attorney did not have authority to act on his behalf. Hooper v Hill Lewis, 191 Mich App 312, 315; 477 NW2d 114 (1991). See also Basic Food Industries, Inc v Travis, Warren, Nayer & Burgoyne, 60 Mich App 492, 497; 231 NW2d 466 (1975) (an instruction by the plaintiff’s corporate president that the attorneys were to perform no further services for the plaintiff relieved the attorneys of their obligation to represent the plaintiff). Further, where a client obtained legal advice from an attorney, then had no further contact with that attorney until filing a complaint for legal malpractice, we held that the client relieved the attorney of his obligations on the date the attorney last advised the client. Seebacher v Fitzgerald, Hodgman, Cawthorne & King, PC, 181 Mich App 642, 647; 449 NW2d 673 (1989). See also K73 Corp v Stancati, 174 Mich App 225, 229; 435 NW2d 433 (1988) (an attorney was relieved of his obligation to the client on the date of the final billing where the attorney had no further contact with the client regarding the subject matter of the representation).
In view of the precedent establishing that an attorney-client relationship can be terminated by implication, we conclude that the facts of this case show the intent of plaintiffs to terminate their relationship with defendant law firm. Defendant attorneys ceased their association with defendant law firm in January 1996, and plaintiffs were aware that defendant attorneys would be partners in a new law firm. After defendant attorneys left defendant law firm, the firm did not provide any further professional services for plaintiffs. There is no evidence that plaintiffs either objected to representation by defendant attorneys through their new law firm or sought to continue representation by defendant law firm. Although plaintiffs did not retain “new” counsel, plaintiffs’ decision to continue their representation with defendant attorneys at a new firm rather than remain with defendant law firm was the functional equivalent of retaining a new attorney. On these facts, we find that plaintiffs relieved defendant law firm of its obligation to represent them when defendant attorneys ended their association with the law firm in January 1996.
On the basis of our conclusion that plaintiffs terminated their attorney-client relationship with defendant law firm, we further conclude that the application of our holding in Boyle, supra, to the present case supports the trial court’s decision to grant defendant law firm’s motion for summary disposition. The limitation period for plaintiffs’ medical malpractice claim against Oakwood expired on February 25, 1997, more than a year after plaintiffs terminated their attorney-client relationship with defendant law firm in January 1996. Because defendant law firm cannot be liable for the failure to pursue or timely file plaintiffs’ claim, the trial court did not err in concluding that defendant law firm was entitled to judgment as a matter of law.
Affirmed.
Cara Mitchell, who was a named plaintiff in this case, died on September 15, 2000, while this appeal was pending. For the purpose of this opinion, the term “plaintiffs” will include the decedent Cara Mitchell.
The term “defendants” will be used to refer collectively to defendant attorneys John C. Dougherty and Robin Kyle and defendant law firm Schneider, Miller & Urn, P.C.
Plaintiffs also pursued a medical malpractice action against Family First Clinic for failing to diagnose Cara’s lymphoma.
Apparently, vinblastine and vincristine are both chemotherapy agents.
From a review of the lower court record, it appears that the trial court granted defendant attorneys’ motion for summary disposition because plaintiffs failed to prove that they would have prevailed on their medical malpractice claim. Regardless of the rationale for the trial court’s decision, we conclude that summary disposition was warranted, and will not reverse where the trial court reached the correct result for the wrong reason. Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 150; 624 NW2d 197 (2000).
An exception to this general rule exists where the attorney is retained to perform a specific legal service, such as the sale of a business. See Chapman v Sullivan, 161 Mch App 558, 561-562; 411 NW2d 754 (1987). In those circumstances, no formal discharge is required and the representation ceases when the specific legal service is completed. Id.; Maddox, supra at 450. It is apparent that this exception does not apply to the instant case.
We note that Hayden v Green, 166 Mich App 352; 420 NW2d 201 (1988), presented a similar situation. In Hayden, the plaintiff retained the defendant attorney while the attorney was associated with the defendant law firm. The attorney subsequently left that firm and continued to represent the plaintiff. The plaintiff later sued the defendants for malpractice. However, in Hayden, we did not address whether the law firm’s representation of the client continued after the attorney left the firm because the alleged malpractice occurred while the attorney was still associated with the firm. Further, Hayden was reversed by our Supreme Court in Hayden v Green, 431 Mich 878 (1988), for reasons stated in the dissent of Judge Hood. In his dissent, Judge Hood appears to conclude that the law firm’s representation of the client ceased when the attorney ended his association with the firm, a holding that would tend to support defendant law firm’s argument. Hayden, supra at 166 Mich App 361.
Contrary to plaintiffs’ characterization of defendant attorneys’ separation from defendant law firm as a “change of address,” there is no dispute that defendant attorneys ended their professional associations with defendant law firm.
Plaintiffs assert that no termination occurred here because they did not establish a “new, separate, and distinct attorney-client relationship,” citing Upton v Boesky, 110 Mich App 589, 599; 313 NW2d 163 (1981). In Iipton, this Court held that the appearance of alternate counsel at a hear ing was not sufficient proof of the termination of the attorney-client relationship. Id. We find that Lipton does not support plaintiffs’ claim where the issue in that case was whether the defendant sufficiently alleged the termination of the attorney-client relationship, not whether the existence of alternate counsel terminated the relationship as a matter of law. Further, even if Lipton stood for the proposition that only the retention of a new, distinct, and separate attorney is sufficient to terminate an existing attorney-client relationship, the holding of Lipton is not controlling. See MCR 7.215ffl(l).
Plaintiffs also argue that summary disposition was inappropriate where discovery had not concluded in the case, citing Hasselbach v TG Canton, Inc, 209 Mich App 475, 481-482; 531 NW2d 715 (1995). Although summary disposition normally should not be granted before discovery is complete, it may be proper if further discovery does not stand a reasonable chance of uncovering factual support for the opposing party’s claim. Id. Here, plaintiffs do not assert what facts supporting their claim might have been revealed through further discovery. Therefore, we reject this argument. | [
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Per Curiam.
Defendant Jim Pogats, deputy warden of the State Prison of Southern Michigan, appeals by leave granted from a judgment for plaintiffs Willie Thomas, Larry Reid, Edward Grant, and Emma Penymon, as personal representative of the estate of Phillip J. Miller. We reverse and remand for entry of judgment in favor of defendant.
After a statutory change in the manner in which good-time and disciplinary credits were calculated, Thomas, Reid, Grant, and Miller (hereafter the plaintiffs) were discharged from prison on the basis of the Department of Corrections (doc) interpretation of the statutes. The Court of Appeals determined that the doc interpretation of the statutes was incorrect. Lowe v Dep’t of Corrections (After Remand), unpublished decision of the Court of Appeals, issued November 15, 1993 (Docket No. 138095) (Lowe I). Thomas v McGinnis, 239 Mich App 636, 640; 609 NW2d 222 (2000). Kenneth L. McGinnis, director of the DOC, determined that he was required to enforce the Lowe I decision, although an order granting a motion for rehearing issued on February 3, 1994. The Attorney General’s office, acting on behalf of the DOC, filed ex parte motions in the sentencing courts to rescind the prison discharges and for arrest warrants for plaintiffs to show cause why they should not be returned to prison to serve the remainder of their sentences. The sentencing court for Reid and Miller authorized the arrest warrants, but declined to hold a show cause hearing. The sentencing court for Grant scheduled a hearing for February 18, 1994. Plaintiffs were taken into custody, on or about February 10, 1994, and sent to the State Prison of Southern Michigan in Jackson. Id. at 640-641.
Defendant James Pogats, deputy warden of the reception and guidance center of the prison, received word through a memorandum from the Lansing office that plaintiffs were arriving. Normal admission hours for prisoners were generally from 8:00 A.M. to 3:00 P.M. However, prisoners, such as parole violators or escapees, could arrive after normal admission hours. The housing of a prisoner was contingent on his status and other factors. Normally, a prisoner would arrive with documentation, such as a presentence investigation report or a sheriff’s report, which provided information about the prisoner’s background, convictions, and any assaultive behavior during custody. Plaintiffs arrived at approximately 7:00 P.M. without any documentation. Because defendant had no information about plaintiffs, he did not know if any of them had enemies within the general prison population. He also did not know how long plaintiffs would be in custody in light of the uncertainty surrounding the application of the Lowe I decision. Any decision regarding placement was also contingent on the space available in the prison. Defendant decided to place plaintiffs in “top lock six” and waited for further direction from the Lansing office of the DOC. In “top lock,” plaintiffs were maintained in their cells where they were served their meals.
Plaintiffs were placed in top lock six on February 10, 1994. On February 17, 1994, the Court of Appeals issued an order staying the effect of Lowe I Once the DOC was notified of the order staying the effect, it released prisoners who were arrested and taken into custody on the basis of the Lowe I decision. Plaintiffs were discharged on February 18, 1994. Plaintiffs alleged that, during their stay in the reception and guidance center, they were deprived of due process in violation of 42 USC 1983. Specifically, plaintiffs alleged that they were never told of the basis for their imprisonment despite repeated inquiries. Plaintiffs also alleged that they were deprived of access to showers, the yard, telephones, and writing materials. Plaintiffs described the conditions in top lock six as “filthy,” and no hearing was held before placement in top lock. Plaintiffs testified that top lock imprisonment was worse than segregation.
Defendant testified that the initial placement was in top lock because of the lack of information about plaintiffs. However, he also testified that, after arrival, one of three individuals would evaluate the prisoners. Defendant had no recollection of whether he reevaluated plaintiffs’ initial placement in the prison. However, he testified that access to services indicated that an evaluation occurred. At trial, plaintiffs testified that they were denied all access to services until the date of discharge. However, contradictory testimony was presented in the prior trial and in depositions. For example, plaintiff Grant testified that he was allowed access to the yard on the day of release. In deposition, he testified that he obtained access to the yard within two to three days of imprisonment. Additionally, defendant testified that a “bedroll” of basic necessities, including, but not limited to, a toothbrush, paper, stamps, and a pencil, was issued to each prisoner. However, plaintiff Grant testified that he received a bedroll that included a pillow case, a sheet, and a blanket. When asked how he was able to file multiple grievances if he was not issued paper and a pencil, plaintiff Grant testified that he received a pencil from the hall porter.
As previously noted, several actions were filed as a result of the imprisonment of plaintiffs. In Reid v Michigan, 239 Mich App 621, 626-627; 609 NW2d 215 (2000), plaintiffs alleged a due process violation, based on state law, against the DOC on the basis of plaintiffs’ imprisonment without a hearing following their arrest. This Court reversed the judgment for plaintiffs because any due process violation was not the result of doc action, but of the sentencing courts’ failure to hold a hearing. Id. at 633-635. In Thomas, supra, plaintiffs alleged denial of due process based on federal law, 42 USC 1983. This Court determined that the action was barred by qualified immunity. Thomas, supra at 644-646.
In the present action, plaintiffs’ allegations of wrongdoing were limited to defendant’s ordered placement of the plaintiffs in “top lock” without a hearing and denial of basic necessities as a violation of due process rights. Following a jury trial, each plaintiff was awarded $1,000 a day for five days in top lock and $30,000 in punitive damages. The trial court also granted plaintiffs’ motion for mediation sanctions. We granted defendant’s delayed application for leave to appeal.
Defendant first argues that plaintiffs could not claim a liberty interest protected by the Due Process Clause. US Const, Am XIV. We agree. Constitutional issues are reviewed de novo as a matter of law. Kampf v Kampf, 237 Mich App 377, 381; 603 NW2d 295 (1999). Due process enforces the rights enumerated in the Bill of Rights and includes both substantive and procedural due process. Id. at 381-382. Procedural due process serves as a limitation on government action and requires government to institute safeguards in proceedings that affect those rights protected by due process, including life, liberty, or property. Id. at 382. Due process is a flexible concept that applies to any adjudication of important rights. Dobrzenski v Dobrzenski, 208 Mich App 514, 515; 528 NW2d 827 (1995). It calls for procedural protections as the situation demands, including fundamental fairness. Id. Fundamental fairness includes (1) consideration of the private interest at stake, (2) the risk of an erroneous deprivation of such interest through the procedures used, (3) the probable value of additional or substitute procedures, and (4) the state or government interest, including the function involved and the fiscal or administrative burdens imposed by substitute procedures. Id.
Plaintiffs allege that their five-day placement in top lock without a hearing and without basic necessities was a due process violation. We disagree. In Sandin v Conner, 515 US 472; 115 S Ct 2293; 132 L Ed 2d 418 (1995), the prisoner, DeMont Conner, was subjected to a strip search. In response to the search, Conner retorted with angry and foul language. He received notice of a disciplinary infraction. Although Conner was afforded a hearing, he was not permitted to pres ent witnesses because the prison was understaffed. The disciplinary committee found Conner guilty of alleged misconduct and sentenced him to disciplinary segregation. Conner filed suit on the basis of 42 USC 1983, alleging a deprivation of procedural due process in connection with the disciplinary hearing. The United States Supreme Court granted leave to determine the circumstances under which state prison regulations afforded inmates a protected liberty interest. Sandin, supra at 474-477.
The Supreme Court rejected the proposition that the language of a prison regulation created a liberty interest. The Court noted that such a rule would provide a disincentive for states to codify prison management procedures. Additionally, such a rule would result in the squandering of judicial resources because courts would become involved in the day-today management of prisons. Rather, the appropriate inquiry examines whether the state action involved the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. Id. at 480, 482, 486. In Martin v Stine, 214 Mich App 403, 417-420; 542 NW2d 884 (1995), this Court applied Sandin to conclude that a five-day loss of privileges was not a type of atypical, significant deprivation in which this state created a liberty interest.
We conclude that plaintiffs’ five-day confinement in top lock six did not constitute a deprivation of a protected liberty interest that violated due process. While plaintiffs’ counsel was able to question defendant regarding the various types of hearings available in different circumstances, plaintiffs’ confinement involved unique circumstances. The DOC had discharged plaintiffs from imprisonment on the basis of its calculation of credits available. The Lowe I Court concluded that the doc’s calculation was incorrect. The doc, in reliance on the decision, obtained arrest warrants for plaintiffs. However, the doc, represented by the state attorney general, also acted to plaintiffs’ benefit by challenging the holding of Lowe I with the filing of a motion for rehearing that alleged that the appellate court interpretation violated the constitutional prohibition against ex post facto laws. The order granting rehearing was silent on the precedential effect of the decision pending a decision on rehearing. However, the Lowe I Court issued another order on February 17, 1994, staying the effect of the decision.
Defendant testified that he made the decision to place plaintiffs in top lock six on the basis of valid factors. Plaintiffs’ criminal histories were unavailable at the time of confinement. The duration of plaintiffs’ confinement was unknown in light of the fact that the DOC had taken measures to secure their release by challenging Lowe I. It was unknown whether plaintiffs presented a threat to prison personnel, and it was unknown whether plaintiffs were at risk in the general prison population. In any event, plaintiffs had no liberty interest in their location placement inside the prison. See Williams v Faulkner, 837 F2d 304, 309 (CA 7, 1988). While plaintiffs also alleged deprivations of basic necessities, there was conflicting evidence regarding the provisions given to plaintiffs at admission. However, these allegations were the subject of grievances, and defendant testified that he did not receive or handle those grievances. In summary, plaintiffs failed to identify atypical, significant deprivation of a state-created liberty interest. Sandin, supra. The trial court erred in denying defendant’s motion for judgment notwithstanding the verdict (JNOV).
Reversed and remanded for entry of an order granting defendant’s motion for jnov. We do not retain jurisdiction.
An in-depth discussion of the underlying procedural statutory changes can be found in Reid v Michigan, 239 Mich App 621; 609 NW2d 215 (2000), and Thomas v McGinnis, 239 Mich App 636 (2000).
Plaintiffs could not identify the exact date.
On July 5, 1994, the Court of Appeals issued its opinion on rehearing, Lowe v Dep't of Corrections (Lowe II), 206 Mich App 128; 521 NW2d 336 (1994). The Lowe II Court concluded that Lowe I was wrongly decided, and affirmed the doc’s interpretation of the calculation of credits.
Defendant alleges, and plaintiffs do not dispute, that this litigation was filed after the motion for a directed verdict was granted in Thomas. In accordance with a motion for summary disposition filed by defendant, the trial court ruled that plaintiffs’ filing of this complaint was partially outside the statute of limitations period. Accordingly, the trial court limited submission of the incarceration period to five days. The trial court also denied a motion for summary disposition based on res judicata and collateral estoppel. Those rulings have not been appealed.
Plaintiffs argue that Sandin applies only to prisoners who were serving a legitimate sentence for their crimes. Review of the record reveals that the only issue submitted to the jury was the circumstances surrounding the confinement in top lock six. The trial court expressly stated that the jury would be told only that any reimprisonment was due to an administrative order because of the prior cases that adjudicated the issue of the reimprisonment. Accordingly, plaintiffs’ attempt to distinguish Sandin on this basis in this case is without merit. In any event, the issue of the due process of the reimprisonment without a hearing was addressed and rejected in Reid, supra.
Because we have concluded that the trial court erred in denying defendant’s motion for jnov, the issue of mediation sanctions is moot. The order granting mediation sanctions is vacated. Because of our resolution of the first issue, we need not address defendant’s second issue on appeal. Furthermore, we note that the qualified immunity decision rendered in Thomas is equally applicable to our defendant. | [
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Per Curiam.
The underlying facts of this case were set forth in this Court’s prior opinion in Waatti & Sons Electric Co v Dehko, 230 Mich App 582, 584-585; 584 NW2d 372 (1998):
Plaintiff filed the underlying action against Shaya Construction Company, Inc., alleging claims of open account, breach of contract, and unjust enrichment and obtained a default judgment against Shaya Construction for $30,480.32, with costs, on February 3, 1994. Shaya Construction was unable to pay the judgment. Shaya Construction, a general contractor, had contracted with garnishee defendant to construct garnishee defendant’s home. Garnishee defendant paid Shaya Construction approximately $239,500 of the $300,000 construction contract. Therefore, plaintiff served a writ of garnishment on garnishee defendant on September 15, 1995. In response, garnishee defendant filed disclosures denying that he was indebted to Shaya Construction. On July 1, 1996, the trial court granted garnishee defendant’s motion for summary disposition, stating that on the date the writ of garnishment was served there was no fixed amount of any debt owed by garnishee defendant to Shaya Construction. On its motion for rehearing and reconsideration, plaintiff argued that the damages arising from garnishee defendant’s breach of contract need not be reduced to judgment in order to be the proper subject of garnishment, as long as they were readily ascertainable from the contract. The trial court disagreed, and thus denied the motion for rehearing and reconsideration.
Plaintiff appealed the trial court’s grant of summary disposition to Dehko and both parties asserted “arguments principally concem[ing] whether any debt was ‘owing’ by garnishee defendant to Shaya Construction at the time plaintiff served garnishee defendant with the writ of garnishment.” Waatti, supra at 586. In analyzing the issue, this Court considered the rule on which the trial court relied in granting Dehko’s motion, MCR 3.101(G)(1)(d), which provides, in pertinent part:
Subject to the provisions of the garnishment statute and any setoff permitted by law or these rules, the garnishee is liable for
* * *
(d) all debts, whether or not due, owing by the garnishee to the defendant when the writ is served on the garnishee, except for debts evidenced by negotiable instruments or representing the earnings of the defendant.
Under the rule, this Court reversed the decision of the trial court and held that “[t]he trial court erred in concluding that MCR 3.101(G)(1)(d) required that the debt garnishee defendant [Dehko] owed to Shaya Construction must be reduced to judgment before the writ of garnishment was served in order to qualify as a ‘debt owing.’ ” Id. at 587. The Court further opined:
[T]he trial court erred in granting garnishee defendant’s motion for summary disposition simply because garnishee defendant denied liability to Shaya Construction and the debt garnishee defendant owed Shaya Construction was otherwise not fixed. Where a garnishee defendant denies liability, the proper course is for the trial court to try the issue of the garnishee defendant’s liability “in the same manner as other civil actions.” MCR 3.101(M)(1); see also Rutter v King, 57 Mich App 152, 170-171; 226 NW2d 79 (1974). Here, the debt, which arose from a contract between Shaya Construction and garnishee defendant, was capable of being fixed, and its validity did not depend on any future action to be taken by the parties to the contract. [Waatti, supra at 588.]
Accordingly, this Court remanded “for a determination of the amount owed by garnishee defendant to Shaya Construction.” Id. at 589.
On remand, Waatti filed a motion for summary disposition pursuant to MCR 2.116(C)(10). The trial court took the motion under advisement and then ordered an evidentiary hearing, which it conducted on August 20, 1999. The record indicates that the trial court held the evidentiary hearing because it believed that this Court had instructed it to determine the amount owed by garnishee defendant to Shaya Construction. Specifically, the trial court remarked:
Well, let me say this, this Court is going and the [sic] in accordance with the wishes of the Court of Appeals. And they said that I should make a determination of the amount owed by garnishee defendant to Shaya Construction. That’s what I’m going to do. You have to agree with that. It’s black and white. Mr. Howard agrees, you [Dehko’s counsel] agree, let’s move on.
We hold that the trial court erred as a matter of law in conducting an evidentiary hearing to determine the amount Dehko owed to Shaya Construction. In short, the trial court misinterpreted the remand order in Waatti. Nothing in this Court’s prior decision directs the trial court to hold an evidentiary hearing to determine the amount owed by garnishee defendant Dehko to Shaya Construction. While this Court remanded “for a determination of the amount owed by garnishee defendant to Shaya Construction,” it did not instruct the trial court to hold an evidentiary hearing to determine that amount. Rather, this Court stated that “the proper course is for the trial court to try the issue of the garnishee defendant’s liability ‘in the same manner as other civil actions' ” Waatti, supra at 588 (emphasis added).
Moreover, as Dehko correctly asserts, Waatti made a demand for a jury trial, pursuant to MCE 3.101(M)(4), on October 30, 1995. According to MCE 2.508(D)(3), a demand for a jury trial may not be withdrawn without the written consent or the expression of consent on the record of the parties or their attorneys. Therefore, it was not for the trial court to sit as the trier of fact in determining the amount owed by garnishee defendant to Shaya Construction. Eather, provided there was a genuine issue of material fact in dispute, it was for a jury to decide the amount owed by Dehko to Shaya Construction.
As this Court observed in McCormick v McCormick, 221 Mich App 672, 679; 562 NW2d 504 (1997), “[t]he power of a lower court on remand is to take such action as law and justice require that is not inconsistent with the judgment of the appellate court.” Given the clear language of the remand order and because Waatti filed a jury demand, it was improper for the trial court to exceed the scope of the remand order by determining this issue following an evidentiary hearing.
The trial court also erred in granting Waatti’s motion for summary disposition under MCE 2.U6(C)(10). The parties (Jo not dispute that the issue of Pehko’s liability to Shaya Construction was submitted to binding arbitration, that the arbitrator awarded $21,340.43 to Shaya against Pehko, and that the arbitration award was not vacated, corrected, or modified by the arbitrator or the circuit court. Therefore, garnishee defendant Pehko clearly failed to present evidence establishing a genuine issue of material fact, at least regarding the amount determined by an arbitrator that Pehko owed to Shaya Construction. However, while the arbitrator determined that Pehko owed money under the contract, it did not determine that Pehko was legally obligated to pay that amount. In other words, the arbitrator did not determine whether Pehko was entitled to “any setoff permitted by law” under MCR 3.101(G)(1). Moreover, while this Court stated in its prior decision in Waatti that facts established that garnishee defendant Pehko was indebted to Shaya Construction, it did not take into account whether Pehko was entitled to “any setoff permitted by law” under MCR 3.101(G)(1).
Contrary to Waatti’s assertions on appeal, the law of the case doctrine does not preclude this Court from now determining that garnishee defendant Dehko’s liability to Shaya Construction is subject to a setoff. The law of the case doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with regard to that issue. Grievance Administrator v Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000). Because this Court did not rule that Dehko’s liability to Shaya Construction was not subject to any setoff permitted by law, the law of the case doctrine does not apply to this issue.
On September 14, 1993, Oakland Circuit Judge Deborah Tyner entered a stipulated order referring the contractual dispute between Shaya Construction and Dehko to binding arbitration and retained jurisdiction over the matter, specifically reserving the right to “determine the enforceability of the Licensing and Construction Lien Act . . . .” After the arbitrator issued the award, Shaya Construction moved to enter a judgment on the award, while Dehko moved for summary disposition on the licensing and lien issues. On February 16, 1996, the Oakland Circuit Court entered an order dismissing Shaya Construction’s motion to enter judgment on the arbitration award and discharging its construction lien against Dehko in exchange for the dismissal of Dehko’s cross-claims against Shaya. By doing so, the court, as a matter of law, set aside Dehko’s liability to Shaya Construction.
Accordingly, garnishee defendant Dehko’s debt to Shaya Construction, as determined by the arbitrator, was eliminated by the circuit court’s February 1996 order, which, in effect, set off Dehko’s liability to Shaya. Because Dehko is not legally hable to pay the arbitration award amount of $21,340.43, the trial court should have granted summary disposition to Dehko under MCR 2.116(1)(2); Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d 685 (1999).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
We note that Dehko did not object to the trial court’s decision to conduct a hearing to determine the amount owed, and he never asked that a jury, rather than the court, make that determination. Though somewhat vague, the record indicates that Dehko’s counsel acquiesced to the trial court’s decision to conduct an evidentiary hearing and that the trial court stated on the record, “you [Mr. Lucido] agree, let’s move on.” While a party ordinarily must object to preserve an issue for appeal, review may also be granted if consideration of the issue is necessary for a proper determination of the case or if the question is one of law and the necessary facts have been presented. Poch v Anderson, 229 Mich App 40, 52; 580 NW2d 456 (1998); Providence Hosp v Labor Fund, 162 Mich App 191, 194-195; 412 NW2d 690 (1987). We choose to review the issue on this basis.
The trial court also erred to the extent it relied on testimony presented at the evidentiary hearing to grant Waatti’s motion for summary disposition. Indeed, the trial court’s action conflicts with the purpose of summary disposition, which is to avoid an evidentiary hearing if there is no genuine issue of material fact and a case can be decided as a matter of law. American Community Mut Ins Co v Comm’r of Ins, 195 Mich App 351, 362; 491 NW2d 597 (1992). As this Court observed in American Community Mut, "if the nonmoving party cannot raise a material issue of fact, an evidentiary hearing is pointless.” Id. at 363.
In Waatti, supra at 585-586, this Court summarized the standard for reviewing a motion under MCR 2.U6(C)(10):
MCR 2.116(C)(10) permits summary disposition of a claim where “[ejxcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim. The court considers the affidavits, pleadings, depositions, admissions and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. A trial court’s decision regarding a motion for summary disposition is reviewed de novo. Additionally, resolution of the issue on appeal involves interpretation of the court rules. Interpretation of the court rules presents a question of law, which is reviewed de novo. [Citations omitted.] | [
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Griffin, J.
Defendant appeals by delayed leave granted an order of the circuit court denying his pretrial motion to suppress evidence, including controlled substances and weapons, seized by the police during a search of the trunk of an automobile located on defendant’s premises. We affirm.
i
Defendant is charged with possession with intent to deliver 50 grams or more but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii), possession of a firearm during the commission of a felony, MCL 750.227b, possession of less than twenty-five grams of a mixture containing cocaine and heroin, MCL 333.7403(2)(a)(v), and possession of marijuana, MCL 333.7403(2)(d).
The pertinent facts are not in dispute and are accurately set forth in the well-reasoned written opinion of the circuit court:
On March 2, 1999, officers of the Kalamazoo Valley Enforcement Team executed a search warrant at 1620 N. Rose in the City of Kalamazoo. The search warrant described the place to be searched as:
“The premises commonly referred to as 1620 N. Rose, City of Kalamazoo, County of Kalamazoo, State of Michigan. The premises is further described as being a brown single story, single family residence with white trim. The premises is also described as being the third structure north of Prouty St. on the east side of N. Rose St. The numbers ‘1620’ as affixed to the front of the structure just inside the front porch which is enclosed. Also to be searched are any grounds, rooms, closets, storage spaces and or appurtenant structures located on the premises and in the control of the resident of 1620 N. Rose St.”
The search warrant describes the property to be searched for and seized as:
“1. Any forms of marijuana, cocaine and/or controlled substances.
2. Any tools, equipment, records, notes, tabulations and U.S. currency believed to be the evidence and proceeds in trafficking of controlled substances.
3. Any papers, bills, receipts showing residency or control of the above premises.
4. Any and all firearms located in the aforementioned premises.”
An evidentiary hearing was held in connection with the defendant’s motion challenging the search and seizure pursuant to the warrant. From the testimony at the hearing the following facts are established.
The search occurred on March 2, 1999, in the evening hours commencing at approximately 8:00 or 9:00 P.M. There were between six and eight officers involved in the execution of the search warrant. During the course of the search of the premises, there were two non-police personnel located within the home at 1620 N. Rose St. One of those persons was the defendant, Eddie Jones. A substance believed to be a controlled substance was taken from the bedroom of the defendant. The officers became aware of a 1985 Cadillac parked at the rear of the home in what was described as the back yard or behind the house. The car was parked on and partially off the driveway. The officers had not seen this vehicle on previous trips to the home nor did they see it immediately upon entry of the home to begin the execution of the search warrant. The officers became aware of the fact that this particular vehicle was registered to an individual named Calvin Lee Prude.
A set of keys was located within the house on a freezer chest. These keys could start this vehicle. The vehicle was started and was operable. The officers were uncertain as to whether or not there was a license plate on the vehicle when they first observed it and if there was a plate, if it was a valid plate. If there was a plate on the vehicle, during the course of a search of that vehicle the plate was knocked off or removed from the vehicle. The key, which would start
the vehicle, would not open the trunk. There was an electronic switch within the interior of the vehicle to open the trunk, however, that did not function properly. The rear seat of the vehicle was pulled forward so that on the passenger side of the vehicle one could observe a part of the trunk of the vehicle. There was a coat hanger extending from the trunk into the passenger compartment of the car, which one officer testified could be used as a method to open the trunk.
The officers had been searching the house for approximately one-half hour when two of the officers were instructed [to] go search the vehicle. After walking around the vehicle and observing it and discovering that the vehicle would start and the tires were inflated, the officers attempted to open the trunk. When they could not open the trunk with the key to the vehicle or the electronic switch in the vehicle, they used tools including a pair of bolt cutters and what was described as a ram. The trunk was opened and controlled substances and weapons were found within the trunk of the vehicle.
* * *
The officers also testified that they believed that the automobile was within the scope of the search authorized by the warrant and that due to their training and experience, they knew that cars are often used as containers to contain and/or conceal drugs. Since the search warrant authorized a search of storage spaces, the officers thought that this vehicle was a storage space and therefore within the scope of the search warrant.
Following the denial by the circuit court of defendant’s motion to suppress the drugs and firearms seized in the trunk of the vehicle, defendant appeals by leave granted.
H
Defendant raises only one issue on appeal: “Is defendant entitled to a suppression of the evidence seized from a vehicle found at the residence searched by the police where that vehicle is not specifically listed as a place to be searched in the affidavit and warrant?” We agree with the circuit court and answer the question “no” because the automobile was located on the premises expressly authorized to be searched pursuant to the warrant. .
A
At the outset, we note that because defendant has not advanced “compelling reasons” for greater protection, we treat the guarantees of the United States (US Const Ams IV and XIV) and Michigan Constitutions (Const 1963, art 1, § 11) as coextensive. People v Levine, 461 Mich 172, 178-179; 600 NW2d 622 (1999); Sitz v Dept’ of State Police, 443 Mich 744, 758-759; 506 NW2d 209 (1993).
Our standard of review is set forth in People v Marsack, 231 Mich App 364, 372; 586 NW2d 234 (1998):
In general, a trial court’s findings at an evidentiary hearing are reviewed for clear error. However, a trial court’s ruling on a motion to suppress the evidence is reviewed under the de novo standard for all mixed questions of fact and law, and for all pure questions of law.
Because the pertinent facts are not in dispute, we review de novo the trial court’s legal ruling denying defendant’s motion to suppress. Id. See also People v Nelson, 443 Mich 626, 631, n 7; 505 NW2d 266 (1993), and People v Goforth, 222 Mich App 306, 310, n 4; 564 NW2d 526 (1997).
In support of their respective positions, the people rely on People v Hahn, 183 Mich App 465; 455 NW2d 310 (1989), while defendant argues People v Mackey, 121 Mich App 748; 329 NW2d 476 (1982). However, we conclude that neither Hahn nor Mackey is dispositive. In Hahn, the search warrant “specifically authorized the search of the defendant’s garage wherein the [searched] car was located.” Hahn, supra at 469. On the other hand, the warrant in Mackey authorized the search of “[s]ection 1 in Bear Lake Township off County Road 600 . . . said property being leased or rented by Robert Mackey,” which we held was too general to authorize the search of a shed located adjacent to, and within the curtilage of, defendant’s dwelling house. Mackey, supra at 757.
B
Although Michigan has not ruled on the precise issue raised by defendant, nearly all jurisdictions that have decided the question have held a search warrant for “premises” authorizes the search of all automobiles found on the premises. Much of the applicable authority on this issue is chronicled in 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3d ed), § 4.10(c), p 667, n 59. There, Professor LaFave concludes:
It has often been held that a search warrant authorizing the search of certain premises covers automobiles found on those premises. The assumption seems to be that a vehicle should be viewed in the same way as any other personal effects found on the described premises. [Id. at 667.]
The more recent cases cited in the above treatise begin their analysis with United States v Ross, 456 US 798; 102 S Ct 2157; 72 L Ed 2d 572 (1982). In addressing a search without a warrant of an automobile supported by probable cause, the United States Supreme Court held that every part of the vehicle and its contents that could conceal the object of the search may be searched as if a magistrate had authorized a search warrant for the vehicle. In Ross, the Supreme Court analogized the search without a warrant of a vehicle to the search of premises authorized by a search warrant:
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.... A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand. [Id. at 820-821.]
In United, States v Percival, 756 F2d 600 (CA 7, 1985), the Seventh Circuit Court of Appeals applied the rationale of Ross, supra, to the present issue and held that a search warrant for a described premises included within its scope authorization to search an automobile found on the premises. In concluding that a Fourth Amendment violation did not occur, the court concluded that a vehicle is personal property equivalent to a suitcase or handbag discovered on the premises:
Percival argues that a vehicle should not be viewed in the same way as other personal effects on the premises because a car has a lesser connection to the premises than furniture, desks, cabinets, and other personal items. See 2 W LaFave, Search, and Seizure, § 4.10, at 158-59 (1978) (hereinafter cited as “LaFave”). Although a car is less fixed than a closet or cabinet, however, it is no less fixed than a suitcase or handbag found on the premises, both of which can readily be searched under Ross if capable of containing the object of the search. Professor LaFave asserts, and we agree, that the better practice would be to include a description of the occupant’s vehicle in the warrant when the warrant is intended to extend to the car. LaFave, supra at 159. We do not believe, however, that such a practice is mandated in every instance by the Fourth Amendment. We therefore agree with other courts that have addressed this issue and hold that a search warrant authorizing a search of particularly described premises may permit the search of vehicles owned or controlled by the owner of, and found on, the premises. See United, States v Bulgatz, 693 F2d 728, 730, n 3 (8th Cir, 1982) (warrant for search of house justifies search of car parked in garage attached to house), cert denied 459 US 1210; 103 S Ct 1203; 75 L Ed 2d 444 (1983); United States v Freeman, 685 F2d 942, 955 (5th Cir, 1982) (warrant for search of premises justifies search of jeep parked on premises); United States v Napoli, 530 F2d 1198, 1200 (5th Cir, [1976]) (warrant for search of house justifies search of camper parked in driveway), cert denied 429 US 920; 97 S Ct 316; 50 L Ed 2d 287 (1976); United States v Beall, 581 F Supp 1457, 1466 (D MD, 1984) (warrant for search of auto body shop justifies search of U-Haul truck parked within shop); see also LaFave, supra at 158, n 39 (collecting cases). Cf. United States v Stanley, 597 F2d 866, 870 (4th Cir, 1979) (warrant for search of mobile home does not justify search of car parked nearby when car is in common tenant parking lot not annexed to the home or within general enclosure surrounding the home.) [Id. at 612.]
We agree with the above analysis and the overwhelming weight of authority from other jurisdictions on this issue. Accordingly, we hold that the search warrant issued in the present case for the premises commonly referred to as 1620 N. Rose, City of Kalamazoo, included within its authorization the search of the vehicle found on the premises. The lower court correctly denied defendant’s motion to suppress.
Affirmed.
E.g. United States v Singer, 970 F2d 1414 (5th Cir, 1992); United States v Griffin, 827 F2d 1108 (7th Cir, 1987); United States v Asselin, 775 F2d 445 (1st Cir, 1985); United States v Bulgatz, 693 F2d 728 (8th Cir, 1982) (even though words “motor vehicle” crossed out on warrant application); In re One 1970 Ford Van, 111 Ariz 522; 533 P2d 1157 (1975); People v Elliott, 77 Cal App 3d 673; 144 Cal Rptr 137 (1978); Joyner v State, 303 So 2d 60 (Fla App, 1974); Bellamy v State, 134 Ga App 340; 214 SE2d 383 (1975); State v Sykes, 412 NW2d 578 (Iowa, 1987); McCissell v Commonwealth, 305 SW2d 756 (Ky, 1957); Massey v Commonwealth, 305 SW2d 755 (Ky, 1957); State v Lewis, 270 NW2d 891 (Minn, 1978); State v Reid, 286 NC 323; 210 SE2d 422 (1974); State v Tewell, 9 Ohio App 3d 330; 460 NE2d 285 (1983) (warrant said “and surrounding curtilage” and car in driveway within curtilage); Leslie v State, 294 P2d 854 (Okl Crim App, 1956); Lindley v State, 294 P2d 851 (Old Crim App, 1956); Long v State, 532 SW2d 591 (Tex Crim App, 1975).
Contra: United States v Cody, 390 F Supp 616 (ED Tenn, 1974); People v Sciacca, 45 NY2d 122; 408 NYS2d 22; 379 NE2d 1153 (1978). | [
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Murphy, J.
Plaintiff Mary O’Neill appeals as of right from an order awarding her attorney fees, costs, and interest pursuant to MCL 15.364, § 4 of the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq. Plaintiff disputes the amount of the award. Plaintiff also appeals as of right from a subsequent order awarding defendants attorney fees and costs as medi ation sanctions pursuant to MCR 2.403(0). We reverse and remand for a proper determination of plaintiffs attorney fees and costs pursuant to MCL 15.364, and we vacate, without prejudice, the award of mediation sanctions to defendants.
Plaintiff was terminated from her job with defendants after she alerted the United States and Michigan Departments of Labor to defendants’ wage practices. Plaintiff filed a complaint, and subsequent amended complaints, alleging that she was terminated in violation of the wpa. Plaintiff also alleged retaliatory discharge against public policy and age discrimination in violation of the Michigan civil rights act (cra), MCL 37.2101 et seq. The lower court record indicates that both the retaliatory discharge and age discrimination claims were summarily dismissed.
The case was submitted to mediation that resulted in a mediation evaluation of $30,000 in favor of plaintiff. Defendants accepted, and plaintiff rejected, the mediation evaluation. A four-day jury trial was held on plaintiff’s wpa claim, and the jury found in her favor, awarding plaintiff $20,245 in economic damages.
Plaintiff submitted a proposed judgment under the seven-day rule, MCR 2.602(B)(3), in which plaintiff sought entry of a judgment incorporating the $20,245 jury verdict and awarding her $48,869 in attorney fees and costs pursuant to MCL 15.364, plus $2,922 in prejudgment interest. Defendants timely objected to the proposed judgment, arguing that the prejudgment interest plaintiff was entitled to amounted to only $1,484. In regards to plaintiff’s attorney fees, defendants argued that plaintiff failed to submit documentation supporting the award, that the request was not reasonable in light of the small jury verdict, and that plaintiff was not the prevailing party under MCR 2.625 because two of the causes of action had been dismissed. Further, defendants argued that plaintiff was not entitled to any fees incurred after rejection of mediation and that to award plaintiff the requested attorney fees would defeat the purpose of mediation sanctions that defendants were rightfully entitled to receive.
Subsequently, plaintiff filed a motion to settle the judgment and for an award of attorney fees and costs incurred in litigating the wpa claim. Plaintiff argued in the motion that the mediation evaluation should not be considered in determining her attorney fees and costs, and that the amounts requested were assessable costs to be added to the jury verdict under MCR 2.403(O)(3).
Although a judgment on the jury verdict had yet to be entered, defendants filed a motion for taxation of costs and attorney fees, requesting $1,097 in costs and $40,526 in attorney fees on the basis that they were entitled to mediation sanctions under MCR 2.403(0). A hearing on plaintiff’s motion to settle the judgment and for an award of attorney fees and costs was held, and the trial court decided, over plaintiff’s objection, to also address defendants’ motion for taxation of costs and attorney fees based on the media tion evaluation. The trial court rejected plaintiff’s argument that it should not consider the mediation evaluation and sanctions until a judgment was entered on plaintiff’s motion to settle the judgment, including the calculation of costs and attorney fees to be awarded pursuant to § 4 of the wpa, MCL 15.364.
The following colloquy occurred at the hearing regarding plaintiff’s attorney fees and costs:
Defense counsel. Now, if the Court is inclined to award costs and attorney fees, that [it] not award costs and attorney fees at a point—at a level where [plaintiff is] able to escape the mediation rules, which are clear. If [plaintiff is] given attorney fees, be it a maximum of one-third of whatever the verdict was or whatever number the Court determines is reasonable[,] [b]e it [$]6, $7,000, it should not be a number that permits [plaintiff] to be 10 percent better than the jury verdict in this case, which allows [plaintiff] to double dip and escape the mediation rules. Even if the verdict was a dollar, [plaintiff] can still do the same thing and I don’t think that is appropriate and defeats the entire purpose of the mediation sanction rules.
The Court. Well, I agree with Defendant. What I am going to do is this. We’re going to award to the Plaintiff[,] attorney fees in the amount of $7,000.
From this exchange, and others during the hearing, it is clear the trial court based its decision to award only $7,000 in attorney fees on its concern that too large an award would allow plaintiff to avoid mediation sanctions under MCR 2.403(0). The trial court also awarded plaintiff costs of $2,063, plus $1,499 in interest. Adding those amounts to the jury award of $20,245, the trial court calculated the adjusted verdict to be $30,807. After this adjustment, and taking into consideration the $30,000 mediation evaluation, the trial court found that the verdict was not more favorable to plaintiff because $30,807 was less than ten percent above the case evaluation. Therefore, the trial court ordered that defendants were entitled to mediation sanctions. Following a subsequent evidentiary hearing concerning the reasonable amount of attorney fees and costs incurred by defendants after the mediation rejection, the trial court awarded defendants attorney fees and costs in the amount of $48,766 pursuant to MCR 2.403(0).
On appeal, plaintiff contends that the trial court erred in determining the amount of attorney fees and costs that she was entitled to under the wpa, and that the court erred in determining the amount of attorney fees and costs defendants were entitled to under MCR 2.403(G). Specifically, plaintiff argues that the trial court abused its discretion by failing to award plaintiff all her reasonable attorney fees pursuant to MCL 15.364, erred in wrongly considering mediation sanctions as a factor in determining the reasonableness of attorney fees requested pursuant to MCL 15.364, and erred in considering defendants’ motion for mediation sanctions before entry of the final judgment. We agree with plaintiff that the trial court abused its discretion by taking into consideration the mediation evaluation and sanctions when determining plaintiff’s award of attorney fees and costs under MCL 15.364.
In Phinney v Perlmutter, 222 Mich App 513, 560; 564 NW2d 532 (1997), this Court stated that the decision to award attorney fees under the wpa is reviewed on appeal for an abuse of discretion. A trial court abuses its discretion by rendering a decision when an unbiased person would conclude that there was no justification or excuse for the decision after consideration of the facts relied on by the trial court. Miller v Hensley, 244 Mich App 528, 529; 624 NW2d 582 (2001).
MCL 15.364 provides, in relevant part, that “[a] court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.” Section 802 of the CRA, MCL 37.2802, contains language nearly identical to that found in MCL 15.364. The Legislature’s use of nearly identical language is meaningful, and we believe it appropriate to consider case law addressing MCL 37.2802 when analyzing the issues regarding MCL 15.364 because there is a lack of relevant case law concerning the wpa. See Anzaldua v Band, 457 Mich 530, 546-548; 578 NW2d 306 (1998).
In Grow v W A Thomas Co, 236 Mich App 696, 714-715; 601 NW2d 426 (1999), this Court noted the following factors for consideration when determining attorney fees and costs under the CRA;
Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to various factors, including (1) the skill, time, and labor involved, (2) the likelihood, if apparent to the client, that the acceptance of the employment will preclude other employment by the lawyer, (3) the fee customarily charged in that locality for similar services, (4) the amount in question and the results achieved, (5) the expense incurred, (6) the time limitations imposed by the client or the circumstances, (7) the nature and length of the professional relationship with the client, (8) the professional standing and experience of the attorney, and (9) whether the fee is fixed or contingent. Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982); Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 114; 593 NW2d 595 (1999).
The Grow panel noted that the existence of a contingent fee agreement did not preclude an award of attorney fees under the CRA and that such an arrangement is only one of the factors to be considered in determining a reasonable attorney fee. Grow, supra at 715.
Here, the trial court’s focus was on the mediation evaluation and sanctions and not on the relevant factors noted in Grow Moreover, we are of the opinion that the trial court’s focus on mediation in determin mg attorney fees and costs under MCL 15.364 is contrary to the purpose of the wpa as well as the principles pertaining to mediation.
Because the wpa is a remedial statute, it is to be liberally construed to favor the persons the Legislature intended to benefit. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 406; 572 NW2d 210 (1998). In Hopkins v City of Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987), this Court noted that the wpa was enacted to remove barriers to an employee who seeks to report violations of the law, thereby protecting the integrity of the law and the public at large. In Collister v Sunshine Food Stores, Inc, 166 Mich App 272, 274; 419 NW2d 781 (1988), this Court, citing Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 801; 369 NW2d 223 (1985), stated that the purpose of the attorney fee and cost provisions of MCL 37.2802 (cra) is to “encourage persons who have been deprived of their civil rights to seek legal redress, to insure victims of employment discrimination access to the courts, and to deter discrimination in the work force.” The Collister panel further ruled that a decision by a court to award or deny attorney fees under the cra must be made in light of that purpose and may not be based on considerations inconsistent with that purpose. Collister, supra at 274. We believe that the purpose of the wpa, noted above, and the concerns regarding access to the courts and prevention of wrongful conduct enunciated in Collister, must be considered in making a determination regarding the award of attorney fees and costs under MCL 15.364.
The trial court’s focus on the mediation evaluation, and the effect its ruling concerning attorney fees would have on mediation sanctions, are not proper considerations when viewed in the light of the purpose for which the wpa was enacted. We believe that the appropriate analysis in determining an award of attorney fees and costs under MCL 15.364 involves consideration of the various factors noted in Grow in conjunction with consideration of the purpose of the wpa, guided by the specific language found in MCL 15.364.
Our decision is further supported by the rules concerning mediation. Although no court rule or statute specifically prohibits a judge from considering a mediation evaluation, after a jury trial, in determining whether to assess costs and award attorney fees, and in determining the amounts to be awarded, we believe that such a prohibition is implicit from various provisions found in MCE 2.403.
MCE 2.403(N)(4) provides that “[i]n a nonjury action, the envelope [containing the mediation evaluation] may not be opened and the parties may not reveal the amount of the evaluation until the judge has rendered judgment.” MCE 2.403(D)(3) provides that “[a] judge may be selected as a member of a case evaluation panel, but may not preside at the trial of any action in which he or she served as a case evaluator.” MCE 2.403(N)(2)(d) precludes a judge from presiding at a nonjury trial if the judge hears a motion challenging a mediation panel’s determination that an action or defense is frivolous. These provisions clearly exist to preclude a judge from considering mediation sanctions before rendering judgment in a bench trial. Similarly, we see no reason why a judge should be allowed to consider mediation sanctions where a jury has rendered a verdict, but where the court has input in determining the amount of the final judgment through an award of attorney fees and costs as specifically provided by the Legislature. The danger is the same: the mediation evaluation and potential sanctions could influence a judge’s decision and result in a judgment based not on the facts of the case, but on the amount of the evaluation.
The importance of secrecy concerning mediation evaluations is clearly reflected in Bennett v Medical Evaluation Specialists, 244 Mich App 227, 228; 624 NW2d 492 (2000), wherein this Court, addressing a situation where counsel improperly revealed a mediation evaluation, held that “when a party intentionally reveals the amount of a mediation evaluation to the trial court during a nonjury trial, the trial court must declare a mistrial and reassign the case to another judge.” The Bennett panel stated that “[o]ne of the main concerns of the mediation rule, as evidenced by certain subsections of MCR 2.403, is judicial impartiality where a mediated case proceeds to trial.” Bennett, supra at 231. We are of the opinion that judicial impartiality dictates that a judge not consider a mediation evaluation, and the potential sanctions, when determining an award of attorney fees and costs, as was done in the present case.
Moreover, our review and interpretation of MCR 2.403(O)(8) leads us to conclude that from a procedural standpoint, consideration of a mediation evaluation before entry of judgment is not permissible. MCR 2.403(O)(8) provides that “[a] request for costs under this subrule must be filed and served within 28 days after the entry of the judgment or entry of an order denying a timely motion for a new trial or to set aside the judgment.” The basic principles regarding statu tory interpretation also govern when interpreting court rules. Bennett, supra at 230. “ ‘A court rule should be construed in accordance with the ordinary and approved usage of its language in light of the purpose the rule seeks to accomplish.’ ” Id., quoting Bush v Mobil Oil Corp, 223 Mich App 222, 226; 565 NW2d 921 (1997).
We believe that the language of MCL 2.403(O)(8) envisions that a judgment must first be entered before a party even makes a request for mediation sanctions, let alone before a judge entertains consideration of the mediation evaluation. Here, defendants improperly invoked the issue of mediation sanctions before the entry of the judgment, and the trial court improperly considered the mediation evaluation and sanctions before the final judgment was entered.
We urge our Supreme Court to consider adoption of specific rules to address the problem that arose in the case before us today. Perhaps, mediation evaluations should remain sealed in all cases until a final judgment is entered, and not just in cases where a bench trial is involved, in order to avoid consideration, or the appearance of consideration, of improper factors. Minimally, we believe that it would be prudent to establish a rule that specifically prohibits a judge from considering a mediation evaluation before a final judgment is entered after a jury trial.
In light of our decision, we vacate the award of mediation sanctions to defendants, without prejudice, to allow for a proper determination of attorney fees and court costs under MCL 15.364. On remand, we order that proceedings consistent with this opinion be held before another judge, not because we believe that the trial judge could not fairly apply the guidelines set forth in this opinion, but in order to protect against any claim of an appearance of impropriety and to protect the integrity of the proceedings. Bennett, supra at 233. Should defendants be entitled to mediation sanctions after a new determination of attorney fees and costs, defendants can proceed accordingly pursuant to MCR 2.403(O)(8).
Reversed in part, vacated in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
In 2000, the name of the process described in MCR 2.403 was changed from “mediation” to “case evaluation.” Because the parties and the trial court refer to “mediation,” we shall use that term for purposes of this opinion.
Plaintiff modified the terms noted in her proposed judgment, requesting $1,574 in prejudgment interest and $49,644 in attorney fees and costs.
The trial court also stated that “if I gave you [plaintiff] $40,000 [in] attorney fees, then you avoid the mediation sanctions, so you’re double dipping in that regard.”
Adjustments to the verdict include the addition of assessable costs and interest, including any attorney fees that a plaintiff may be entitled to under law. MCR 2.403(O)(3); Grow v W A Thomas Co, 236 Mich App 696, 718; 601 NW2d 426 (1999); Dresselhouse v Chrysler Cory, 177 Mich App 470, 480-481; 442 NW2d 705 (1989).
MCR 2.403(O)(l) provides, in part, that “[i]f a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation.” MCR 2.403(O)(3) provides, in relevant part, that a verdict “is considered more favorable to the plaintiff if it is more than 10 percent above the evaluation.”
Plaintiff’s appellate arguments concern only matters regarding attorney fees and costs under MCL 15.364, and there is no claim of error regarding the calculation of prejudgment interest.
MCL 37.2802 provides that “[a] court, in rendering a judgment in an action brought pursuant to this article, may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate.”
To the extent, which we believe to be minimal at best, that the trial court also considered the size of the verdict and the contingency fee agreement, the court’s overwhelming focus on mediation sanctions in rendering its decision irreconcilably tainted any discussion of other factors.
We note that the trial court’s concern with plaintiff “double dipping” was improper because the discussion related to mediation sanctions, and because no double recovery would be involved had plaintiff been awarded attorney fees and costs pursuant to MCL 15.364, yet avoided mediation sanctions. See McAuley v General Motors Corp, 457 Mich 513, 522-523; 578 NW2d 282 (1998). | [
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Cooper, P.J.
Plaintiff appeals as of right the trial court’s order granting defendant’s motion for summary disposition and dismissing this medical malpractice action. We reverse and remand.
I. background facts and procedural history
Robert Hall was admitted to defendant hospital after suffering a stroke. During Hall’s hospitalization a urinary catheter was inserted. Shortly thereafter, defendant’s employees made a notation on Hall’s charts regarding a possible urinary tract infection. However, Hall was transferred from defendant hospital without any treatment for this possible infection. On the day of transfer Hall suffered a seizure and went into a coma. Thereafter, Hall’s condition slowly deteriorated and he died approximately a month after his stay at defendant hospital.
Plaintiff filed a complaint against defendant hospital, raising general allegations against defendant’s employees and agents. Dr. David Lavine, who supervised certain medical students and residents, treated Hall. A third-year medical student noted the presence of bacteria in Hall’s urine and indicated a concern about urosepsis. When Hall was transferred from defendant hospital, an obstetrics/gynecology resident noted Hall’s temperature of 99.2 degrees. Plaintiff argues that these findings indicate that Hall suffered a urinary tract infection that needed medical attention. She asserts that Hall’s seizure and ultimate death were the result of this untreated infection.
In August 1997, plaintiff filed a complaint and an affidavit of merit signed by Dr. Jack Kaufman. The affidavit stated that Dr. Kaufman was board certified and a specialist in internal medicine. In February 1999, defendant moved to disqualify Dr. Kaufman from providing opinion testimony or to limit the scope of his opinion testimony. Defendant argued that Dr. Kaufman was not qualified to render testimony against Dr. Lavine under both MRE 702 and MCL 600.2169. Dr. Lavine was board certified in internal medicine, critical care medicine, and nephrology. The trial court ultimately granted defendant’s motion, concluding that Dr. Kaufman was not board certified in the same specialties as Dr. Lavine and was therefore unqualified to testify.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(7) and (C)(10). The trial court granted defendant’s motion for summary disposition and dismissed plaintiff’s complaint.
H. STANDARDS OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo. Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). In reviewing motions for summary disposition under MCR 2.116(C)(7) and (C)(10), we consider the pleadings, affidavits, depositions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion. See Horace v City of Pontiac, 456 Mich 744, 749; 575 NW2d 762 (1998); Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). Furthermore, statutory construction involves questions of law that are reviewed de novo. Corley v Detroit Bd of Ed, 246 Mich App 15, 18; 632 NW2d 147 (2001). Whether a witness is qualified to render an expert opinion and the actual admissibility of the expert’s testimony are within the trial court’s discretion. Franzel v Kerr Mfg Co, 234 Mich App 600, 620; 600 NW2d 66 (1999). Such decisions are reviewed on appeal for an abuse of discretion. Id.
in. ANALYSIS
Plaintiff essentially argues that when a health professional is board certified in several specialties, § 2169 should be read so as to allow an expert to testify if that expert is board certified in the same specialty being practiced by the health professional at the time of the alleged malpractice. We agree.
Generally, a trial court determines the need for expert witness testimony pursuant to MRE 702, which provides:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In malpractice actions, each party is obligated to provide an expert witness to articulate the applicable standard of care involved. MCL 600.2912d(l). Moreover, each party’s expert witness must file an affidavit of merit as provided in § 2912d. MCR 2.112(L). Section 2912d describes the contents of an affidavit of merit and states that an attorney must reasonably believe that the expert witness meets the requirements of MCL 600.2169. Section 2169 provides in pertinent part:
(1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited resi dency or clinical research program in the same specialty. [Emphasis supplied.]
Furthermore, to determine the qualifications of an expert witness in a medical malpractice case, subsection 2169(2) requires the court to evaluate (a) the witness’ educational and professional training, (b) the witness’ area of specialization, (c) the length of time the witness has been engaged in the active clinical practice or instruction of the specialty, and (d) the relevancy of the witness’ testimony.
According to our Supreme Court in McDougall v Schanz, 461 Mich 15, 24-25; 597 NW2d 148 (1999), an expert witness must fulfill the requirements of both § 2169 and MRE 702. Because the statute is more demanding than the evidentiary rule, there may be situations where an expert witness would qualify to testify under MRE 702 but be disqualified under § 2169. McDougall, supra at 24-25. In the instant case the trial court based its ruling solely on the fact that Dr. Kaufman was only board certified in internal medicine. The trial court did not address Dr. Kaufman’s qualifications under MRE 702. Therefore, our review is limited to the trial court’s conclusions concerning Dr. Kaufman’s qualifications under § 2169.
The primary goal in statutory interpretation is to determine and give effect to the intent of the Legislature. Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 159; 615 NW2d 702 (2000). Courts must look to the plain and unambiguous language of a statute and can only go beyond the statutory language if it is ambiguous. Id. In such cases, this Court must seek to give effect to the Legislature’s intent through a reasonable construction, considering the puipose of the statute and the object sought to be accomplished. Macomb Co Prosecutor v Murphy, 464 Mich 149, 158; 627 NW2d 247 (2001).
Subsection 2169(l)(a) specifically states that an expert witness must “specialize^ at the time of the occurrence that is the basis for the action” in the same specialty as the defendant physician. The statute further discusses board-certified specialists and requires that experts testifying against or on behalf of such specialists also be “board certified in that specialty.” The use of the phrase “at the time of the occurrence that is the basis for the action” clearly indicates that an expert’s specialty is limited to the actual malpractice. Moreover, the statute expressly uses the word “specialty,” as opposed to “specialties,” thereby implying that the specialty requirement is tied to the occurrence of the alleged malpractice and not unrelated specialties that a defendant physician may hold. Indeed, McDougall, supra at 24-25, states that “the statute operates to preclude certain witnesses from testifying solely on the basis of the witness’ lack of practice or teaching experience in the relevant specialty.” (Emphasis added.)
The trial court in this case failed to correctly interpret and apply the provisions of § 2169. In fact, we find that the trial court’s strained reading of the statute actually defeats its true purpose. The Legislature’s intent behind the enactment of § 2169 is clear. As pointed out by our Supreme Court in McDougall, supra at 25, n 9, quoting McDougall v Eliuk, 218 Mich App 501, 509, n 1; 554 NW2d 56 (1996) (Taylor, P.J., dissenting), the Legislature enacted § 2169 to
make sure that expert witnesses actually practice or teach medicine. In other words, to make sure that experts will have firsthand practical expertise in the subject matter about which they are testifying. In particular, with the malpractice crisis facing high-risk specialists, such as neurosurgeons, orthopedic surgeons and ob/gyns, this reform is necessary to insure that in malpractice suits against specialists the expert witnesses actually practice in the same specialty. This will protect the integrity of our judicial system by requiring real experts instead of “hired guns.”
McDougall v Schanz further suggests that § 2169 exists to ensure that “proof of malpractice ‘emanate from sources of reliable character as defined by the Legislature.’ ” McDougall v Schanz, supra at 36, quoting McDougall v Eliuk, supra at 518 (Taylor, P.J., dissenting).
Certainly § 2169 cannot be read or interpreted to require an exact match of every board certification held by a defendant physician. Such a “perfect match” requirement would be an onerous task and in many cases make it virtually impossible to bring a medical malpractice case. Surely the Legislature did not intend to eradicate a plaintiff’s ability to bring a meritorious malpractice action against a defendant physician who happens to have board certifications in several different fields. However, this eventuality is exactly what the trial court and defense counsel suggest is permissible under § 2169. Indeed, the trial court stated, and defense counsel agreed at trial, that McDougall v Schanz requires “a simple analysis in the sense that you draw the line down the middle of the page and put the qualifications on one side and the qualifications of the other side, and match them up and if they’re not matched up, they’re not qualified.” However, we do not believe that McDougall v Schanz stands for such a proposition. Rather, McDougall v Schanz simply declared the constitutionality of § 2169 as substantive law. To further restrict the statute on the basis of the trial court’s logic would render an absurd result. Thus, where a defendant physician has several board certifications and the alleged malpractice involves only one of these specialties, § 2169 requires an expert witness to possess the same specialty as that engaged in by the defendant physician during the course of the alleged malpractice.
We are also mindful of the fact that it is plaintiff’s theory in this case that the malpractice occurred during the practice of internal medicine and not during the practice of nephrology or critical care. Allowing the defense to assert that either critical care or nephrology were involved in the alleged malpractice would effectively negate plaintiff’s theory of the malpractice and thereby render plaintiff’s expert unqualified under § 2169. We do not find that § 2169 exists to allow defendants in malpractice cases the opportunity to dictate a plaintiff’s theory of the alleged malpractice.
Nonetheless, the facts of this case are clearly distinguishable from other cases that have applied § 2169 and determined that an expert witness was unqualified to testify. For example, McDougall v Schanz, supra, consolidated two cases that addressed § 2169. In the first case, the Court declared that the expert witness was disqualified because he had not recently practiced in the field. McDougall v Schanz, supra at 19. In the second case, the McDougaU v Schanz Court found that the expert did not match the defendant physician’s qualifications. Id. at 23. However, unlike the case at bar, the expert disqualified in the second case did not have any of the same board certifications as the defendant physician. Id.
In this case plaintiff theorizes that the injuries sustained by Hall occurred after defendant hospital’s employees failed to treat a urinary tract infection. At the time of this alleged malpractice, plaintiff proposes that Hall was receiving general care and not critical care or the care of a nephrologist. Therefore, only Lavine’s specialty in internal medicine was involved. Both Dr. Kaufman and Dr. Lavine are board certified in internal medicine. The fact that Dr. Kaufman lacks board certification in nephrology and critical care is irrelevant because those specialties had nothing to do with the malpractice alleged by plaintiff. Therefore, Dr. Kaufman’s and Dr. Lavine’s qualifications were matched for purposes of the statute. As such, we find that plaintiff reasonably concluded that Dr. Kaufman’s affidavit complied with § 2912d.
Because our findings with regard to this issue are dispositive, we need not address the remainder of plaintiff’s issues on appeal.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
For example, if a physician who is board certified in both gynecology and emergency medicine incorrectly sets a broken leg in the emergency room, the case would clearly be within the purview of emergency medicine. Thus, any malpractice in that case would concern the physician’s specialty in emergency medicine and have nothing to do with gynecology.
Plaintiff proposes that the malpractice occurred when defendant hospital’s employees faded to treat a urinary infection that developed from the placement of a Foley catheter. Plaintiff contends that Hall was not in a critical care unit at the time. Further, plaintiff opines that the malpractice had nothing to do with structural defects in Hall’s kidney that would implicate the specialty of nephrology | [
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Per Curiam.
Plaintiff appeals as of right the order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(4) for lack of subject-matter jurisdiction. We affirm.
According to plaintiff’s first amended complaint, she visited defendant Ingham Regional Medical Center (the hospital) on August 7, 1997, to bring home her adopted newborn son. Before visiting the baby, she removed her jewelry while scrubbing her hands and arms. Plaintiff left the jewelry at the washbasin and forgot to retrieve it before returning home. The jewelry consisted of an 1897 diamond ring and a 1980 Seiko watch. Plaintiff alleged that the jewelry was of great sentimental value because (1) the ring was her grandmother’s wedding ring that plaintiff also used as her own wedding ring and was therefore an heirloom and (2) the watch was purchased around the time of her brother’s murder.
Plaintiff alleged that she contacted the hospital after realizing that she had left the jewelry. The hospi tal indicated that the jewelry was in its possession. Plaintiff attached as an appendix to her complaint a copy of a September 7, 1997, letter she received from the hospital indicating that the ring and watch were forwarded to the hospital’s security department and that she should contact that department to claim the items. According to plaintiff, when she tried to make arrangements for return of the jewelry she was advised that the jewelry could not be located.
On August 6, 1999, plaintiff filed a complaint against the hospital and Guardsmark Security, Inc., alleging counts of conversion, breach of bailment, and intentional infliction of emotional distress. In the alternative, plaintiff also alleged counts of negligence and replevin. Plaintiff alleged that her damages exceeded $25,000 exclusive of interest and costs.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(4), arguing that the proper measure of damages for the lost property is fair market value. Defendants argued that the law does not provide compensation for the sentimental value of property and, therefore, because plaintiff’s counsel acknowledged that the appraised value of each item did not exceed $300, plaintiff failed to allege sufficient facts or to present documentary evidence to establish that her claim exceeded the $25,000 statutory jurisdictional minimum of the circuit court. Plaintiff disagreed, arguing that the two items of jewelry have great sentimental value beyond the normal market value of the items.
Following a hearing on defendants’ motion, the trial court concluded that plaintiff’s damages were insufficient to invoke the jurisdiction of the circuit court.
I. EMOTIONAL DISTRESS
Plaintiff first argues that her claim of intentional infliction of emotional distress, standing alone, brought the instant case within the jurisdictional scope of the circuit court and raised a question of fact to be decided by the jury. To establish a claim of intentional infliction of emotional distress, the plaintiff must show (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999). In Roberts v Auto-Owners Ins Co, 422 Mich 594, 602-603; 374 NW2d 905 (1985), the Court quoted with approval “an oft-quoted Restatement comment,” 1 Restatement Torts, 2d, § 46, comment d, pp 72-73, that summarizes the prevailing view of what constitutes “extreme and outrageous” conduct:
“The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.’ ”
Here, the hospital’s conduct can not be characterized by any reasonable person as extreme and outra geous. The hospital found and retrieved plaintiff’s jewelry. Upon being informed that the jewelry belonged to plaintiff, the hospital declined plaintiff’s invitation to place the items in the mail and instead scheduled an appointment for plaintiff to pick up the jewelry. When plaintiff failed to show up for the appointment, the hospital turned the jewelry over to the security department and advised plaintiff that she could contact the security department to retrieve her items. The inability of the security department to locate the items does not demonstrate that defendants acted in an “extreme and outrageous” manner. Because plaintiff failed to present sufficient facts to support this claim, no damages can be attributed to this claim.
Plaintiff claims, however, that her claims of emotional distress in connection with her tort claims of conversion and negligence are sufficient to bring this case within the jurisdiction of the circuit court. We disagree. There is no Michigan precedent that permits the recovery of damages for emotional injuries allegedly suffered as a consequence of property damage. Koester v VCA Animal Hosp, 244 Mich App 173, 176; 624 NW2d 209 (2000).
H. SENTIMENTAL VALUE
With regard to the conversion claim, plaintiff argues that the body of law regarding an action for conversion recognizes the “peculiar” or “special” valué of converted property as the proper measure of assessing damages where the greater value of the property is in sentiment and not market value. In support of this argument, plaintiff cites Willis v Ed Hudson Towing, Inc, 109 Mich App 344, 349; 311 NW2d 776 (1981), in which this Court stated:
The measure of damages for the conversion of personal property is the value of the property at the time of the conversion, in the absence of any testimony establishing a peculiar value in the goods to the owner.
In making this statement, the Court cited Hudson v Enichen, 308 Mich 79, 85; 13 NW2d 215 (1944). In neither case did the Court address the issue of “peculiar value.” Plaintiff suggests that the term “peculiar value” encompasses the sentimental value of an heirloom. In Rose v Lewis, 10 Mich 483 (1862), the Court stated:
It is undoubtedly true that damages for the conversion of articles having a regular market value are measured generally by that value. But that is only because such a measure furnishes the precise redress which the law always aims at giving, by making good as near as may be the injury which the aggrieved party has sustained. Where articles have not a standard or market value, then their value to the owner, so far as they are susceptible of pecuniary measurement which is not fancifiil or merely speculative, furnishes the true test.
See also Larson v Van Horn, 110 Mich App 369, 385; 313 NW2d 288 (1981) (the proper measure of dam ages in an action for conversion is the fair market value of the item converted at the time of the conversion). However, in the case of family pictures or heirlooms of special value to the plaintiff that cannot be replaced and do not have a market value, the measure of damages may include the value to the owner. See, e.g., Iler v Baker, 82 Mich 226, 233; 46 NW 377 (1890). 4 Restatement Torts, 2d, § 911, comment e, pp 474-475, provides:
If the subject matter cannot be replaced, however, as in the case of a destroyed or lost family portrait, the owner will be compensated for its special value to him, as evidenced by the original cost, and the quality and condition at the time of the loss. ... In these cases, however, damages cannot be based on sentimental value. Compensatory damages are not given for emotional distress caused merely by the loss of the things, except that in unusual circumstances damages may be awarded for humiliation caused by deprivation, as when one is deprived of essential elements of clothing.
In the present case, the two items of jeweliy have a market value that can easily be ascertained. Hence, fair market value is the measure of damages. Because the items have a fair market value, there is no need to resort to an alternative measure of damages to compensate plaintiff for her loss.
Affirmed.
Gage, J. I concur in the result only.
Additionally, plaintiff did not allege emotional distress damages in connection with her claim for conversion or negligence.
Damages for emotional distress in tort actions are available only when a definite and objective physical injury is produced as a result of emotional distress proximately caused by a defendant’s negligent conduct. Daley v LaCroix, 384 Mich 4, 12-13; 179 NW2d 390 (1970). Here, plaintiff did not allege any definite or objective physical injuries as a result of the loss of her jewelry. | [
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Neff, J.
Plaintiff, Tamara Stoddard, appeals as of right the trial court’s order granting summary disposition in favor of defendant, Citizens Insurance Company of America, in this breach of contract action following defendant’s denial of plaintiff’s claim for uninsured motorist coverage. We reverse.
i
This appeal stems from plaintiff’s claim for uninsured motorist coverage under plaintiff’s husband’s commercial automobile insurance policy. On October 11, 1996, while driving a vehicle owned by her employer, Ciba Vision, plaintiff was involved in an automobile accident with an uninsured motorist. Ciba Vision, did not carry uninsured motorist coverage on the automobile plaintiff was driving. Plaintiff filed a claim under Citizens’ insurance policy covering her husband’s landscaping business, Stoddard’s Lawn Shapers, a sole proprietorship, on the basis that she was an insured under the policy’s uninsured motorist endorsement. When defendant denied her claim, plaintiff filed a breach of contract action against defendant. The trial court granted summary disposition for defendant, concluding that plaintiff was not entitled to uninsured motorist coverage because the accident did not involve the vehicle covered under defendant’s policy:
' The policy states in the schedule of coverages that the uninsured coverage applies only for covered autos as described in item three of the declaration. The only vehicle listed there is a 1995 Ford pick up. Thus, the vehicle which Plaintiff was driving is not a vehicle for which the uninsured coverage applies.
We disagree.
n
This case presents an issue of first impression concerning uninsured motorist coverage under Michigan’s no-fault insurance system. Stated simply, the issue is whether the automobile policy’s uninsured motorist protection follows the person (the insured) or the vehicle (the covered auto). Defendant argues that under the policy at issue, the only vehicle covered for uninsured motorist protection is a 1995 Ford pick-up, which was not involved in the accident; thus, there is no coverage. Plaintiff argues that under the terms of the policy, uninsured motorist protection is provided to an “insured,” she is an “insured” under the policy, none of the exclusions to the uninsured motorist coverage apply, and, thus, she is entitled to coverage.
m
This Court reviews de novo as a question of law a trial court’s grant of a motion for summary disposi tion. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). Because uninsured motorist coverage is not required by statute, the language of the insurance policy determines the conditions of coverage. Auto-Owners Ins Co v Harvey, 219 Mich App 466, 470; 566 NW2d 517 (1996). An insurance policy that is clear and unambiguous must be enforced in accordance with its terms. Id. at 469. Where the terms of an insurance policy are ambiguous, the ambiguity must be construed against the insurer and in favor of the insured. Id. If a fair reading of the entire contract of insurance leads to a conclusion that there is coverage under particular circumstances, and another fair reading results in a conclusion that there is not coverage under the same circumstances, the contract is ambiguous. Auto Club Ins Ass’n v DeLa-Garza, 433 Mich 208, 213; 444 NW2d 803 (1989).
A
Historically, in Michigan, uninsured motorist protection was considered “portable,” that is, it followed the person. Consequently, uninsured motorist protection covered bodily injury of the insured whenever the claim involved an uninsured motorist, whether the claimant was in the covered auto, in another vehicle, or injured as a pedestrian: “The insured and family members are covered not only when occupying the covered vehicle, but also when in another automobile, and when on foot, on a bicycle or even sitting on a porch.” Bradley v Mid-Century Ins Co, 409 Mich 1, 24; 294 NW2d 141 (1980). However, this law evolved before no-fault insurance and was based on a Michigan statute that mandated uninsured motorist coverage unless rejected in writing, which was repealed in 1973 after Michigan adopted no-fault insurance. Id. at 23, 50-52.
Because uninsured motorist protection was statutorily required in policies for all persons “insured thereunder,” the courts’ view was that the statute and underlying public policy dictated that all persons insured for public liability under a policy have fully portable uninsured motorist protection. Id. at 34, 36. Now that the statutory mandate no longer exists, this rationale no longer applies, and uninsured motorist protection is generally a matter of the parties’ contract, i.e., the insurance policy terms. Rohlman v Hawkeye-Security Ins Co, 442 Mich 520, 522, 525; 502 NW2d 310 (1993). We therefore must look to the provisions of the policy at issue to determine the extent of uninsured motorist coverage.
B
The uninsured motorist endorsement in the policy at issue provides:
a. coverage
1. We will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle.” The damages must result from “bodily injury” sustained by the “insured” caused by an “accident”. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the “uninsured motor vehicle.”
b. who is an insured
1. You.
2. If you are an individual, any “family member.”
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto.” The covered “auto” must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured.”
C. EXCLUSIONS
This insurance does not apply to any of the following:
1. Any claim settled without our consent.
2. The direct or indirect benefit of any insurer or self-insurer under any workers’ compensation, disability benefits or similar law.
“Bodily injury” sustained by:
a. You while “occupying” or when struck by any vehicle owned by you that is not a covered “auto” for Uninsured Motorists coverage under this Coverage Form;
b. Any “family member” while “occupying” or when struck by any vehicle owned by that “family member” that is not a covered “auto” for Uninsured Motorists Coverage under this Coverage Form; or
c. Any “family member” while “occupying” or when struck by any vehicle owned by you that is insured for Uninsured Motorists Coverage on a primary basis under any other Coverage Form or policy.
The policy’s Schedule of Coverages and Covered Autos lists “Uninsured/Underinsured Bodily Injury” adjacent to a covered auto code of “07,” referring to the Business Auto Coverage Form codes, on which “7” equals “Specifically Described ‘Autos,’ ” identified as “[o]nly those ‘autos’ described in item three of the Declarations for which a premium charge is shown . . . The Business Auto Coverage Declaration reflects an uninsured/underinsured premium of $24 for only one vehicle, the 1995 Ford pick-up. Thus, defendant contends that the uninsured motorist endorsement does not provide coverage in this case because the endorsement covers only the 1995 Ford pick-up, which was not involved in plaintiffs accident.
Defendant’s contention is not supported by the terms of its policy. In fact, the policy appears to be typical of the standard policy developed by the insurance industry when uninsured motorist coverage was statutorily mandated, and portable, as described in Bradley, supra at 23-24:
The uninsured motorist endorsement was developed and the policy language defining its scope was drafted in the 1950’s by the insurance industry and have become fairly standard. By 1968, legislation in 46 states required that uninsured motorist coverage be offered with all automobile liability insurance policies issued within the state. Most of the statutes, including Michigan’s, contain similar or identical language, requiring that the coverage be provided unless expressly rejected in writing, without defining the scope of the coverage or permissible exclusions and limitations.
Subject to a variety of exclusions and limitations, the standard endorsement provides “family protection” for the insured and family members against loss caused by an uninsured motorist without regard to whether the covered vehicle is involved in the accident. The coverage is portable: The insured and family members are covered not only when occupying the covered vehicle, but also when in another automobile, and when on foot, on a bicycle or even sitting on a porch.
The exclusions and limitations of the standard endorsement have been the subject of much litigation and comment. The two most often encountered, the “owned vehicle” exclusion and “other insurance” clause, have been dealt with by courts across the country and held invalid by a clear majority as contrary to the public policy of the uninsured motorist statutes. [Footnotes omitted.]
See also DeLaGarza, supra at 223, dissenting opinion of Riley, C.J., (citing 12A Couch, Insurance [2d ed], § 45:634, p 127, with respect to a 1984 insurance policy, for the proposition that an accident must involve an insured person or an insured vehicle to collect under uninsured motorist coverage).
c
Reading the definitions and exclusions to the uninsured motorist coverage of the policy, we find that it unambiguously provides coverage in circumstances beyond those involving the covered auto, including the accident at issue. Under the definition of an “insured,” the policy specifically limits liability for persons other than the named insured and family members to anyone “ ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto.’ ” If the policy contemplated uninsured motorist liability only when the claim involved the covered auto, as defendant contends, it would be unnecessary to otherwise limit liability for guests to those occupying the covered auto. Defendant’s reading of the policy renders part B, ¶ 3 redundant. There would be no reason to distinguish between situations involving the named insured and family members as opposed to other persons. Clearly, the policy was intended to follow the named insured and family members when they were not occupying the covered auto and sustained injury from an uninsured motorist.
likewise, if the uninsured motorist coverage applied only when the covered auto was involved there would be no need for the “owned vehicle exclusion” in part c, limiting liability in circumstances where the named insured or a family member was not occupying the covered automobile, but was in another owned vehicle that was not a covered auto under the policy.
Directly supporting our conclusion is a recent Maryland Court of Appeals case, Bushey v Northern Assurance Co of America, 362 Md 626; 766 A2d 598 (2001), analyzing an almost identical policy and the exact issues presented in this case and concluding that the policy provided uninsured motorist coverage to the daughters of a sole proprietor under a commercial automobile policy issued to his business, when the daughters were killed while using their grandfather’s vehicle, which was not a covered auto under the policy. As the Bushey court concluded, id. at 636, if defendant’s reading of the policy were correct, it would be unnecessary to exclude from “[b]odily injury,” an injury sustained by the named insured or a family member in any vehicle owned by them that is not a covered auto, and there would be no need to distinguish situations involving nonfamily members, as in part B, ¶ 3. See also Michigan Twp Participating Plan v Pavolich, 232 Mich App 378, 383; 591 NW2d 325 (1998) (noting in dicta that if the defendant qualified as the named insured, he could collect underinsured benefits even if he was not occupying the covered auto at the time of injury).
The provisions of defendant’s policy, particularly the uninsured motorist exclusions, belie any intent that the uninsured motorist protection applies only when the 1995 Ford pick-up is involved in the accident. Further, if defendant had intended to limit uninsured motorist liability to circumstances involving the covered auto, it could have used limiting language similar to that used in part A, ¶ 1, with regard to the uninsured motor vehicle: “liability . . . must result from the ownership, maintenance or use of the ‘uninsured motor vehicle’ ” (emphasis added). DeLaGarza, supra at 215.
Even if the terms of the policy were considered ambiguous with regard to the covered auto limitation, the result is the same. The policy must be interpreted in plaintiff’s favor; thus, coverage would not be limited to accidents involving the covered auto. Harvey, supra at 469.
The trial court erred in granting summary disposition on the ground that plaintiff was not driving the “covered auto.”
D
Finally, defendant apparently does not dispute that plaintiff is an “insured” under the policy, although we found no Michigan case law addressing this point. The policy lists the named insured as “Stoddard’s Lawn Shapers, Tim Stoddard, DBA.” It is undisputed that the business is a sole proprietorship, owned by Tim Stoddard. The policy classifies the insured as an “individual” on the Common Policy Declaration as well as the Schedule of Coverages and Covered Autos. Even though the policy is a commercial automobile policy issued to a sole proprietorship, we conclude that the policy language defining an insured as a “family member” is applicable and operates to provide coverage to plaintiff. “Under Michigan law, the term ‘individual’ is recognized as designating a natural person and not including business entities such as corporations.” Harvey, supra at 470-471 (individual partner was not a first named insured on an insurance policy issued to his partner, “d/b/a Eastern Equipment Company”).
Our conclusion coincides with the decision reached by the Bushey court after an extensive analysis of case law from other jurisdictions. See Bushey, supra at 636-643. The Bushey court concluded that the “you” of the policy was not a business entity separate from Bushey, where the policy identified the insured as “William Bushey t/a Bushey’s Automotive Repair.” Id. at 636. As with the issue of coverage above, even if defendant’s policy language were viewed as ambiguous, the provisions must be read in favor of the insured. The policy thus must be interpreted to include plaintiff, a family member, in the definition of an insured.
Reversed.
Bradley, supra at 21. | [
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ON REMAND
Before: Whitbeck, P.J., and Hoekstra and Owens, JJ.
Per Curiam.
A jury found defendant Steven Dwain Smith guilty of first-degree criminal sexual conduct, armed robbery, possession of a firearm by a felon, and possession of a firearm during the commission of a felony for sexually assaulting a student at the University of Michigan at gunpoint and stealing money from her wallet. Smith appealed his convictions as of right, and this Court affirmed in People v Smith
Smith then appealed to the Supreme Court. The Supreme Court, while retaining jurisdiction, has remanded to this Court so that it may clarify its previ ous decision. Of concern to the Supreme Court is the possibility that this Court articulated the correct legal standard for determining whether a preserved constitutional error is harmless, but applied the lesser standard that is relevant to preserved nonconstitutional error in order to find the error at issue harmless.
People v Anderson (After Remand) established that the party that benefits from an error, constitutional in nature and preserved for appeal, must demonstrate on appeal that “there is no “ ‘reasonable possibility that the evidence complained of might have contributed to the conviction.” ’ ” In contrast, People v Lukity holds that an error, nonconstitutional in nature and preserved for appeal, is subject to reversal only when “ ‘after an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome determinative.” Substantively, these two standards differ concerning which party bears the burden of persuading the appellate court that the error was harmless and regarding the degree to which the appellate court must be convinced that the error is harmless before it may affirm. Without a doubt, Anderson articulates the more difficult standard to surpass, which is more favorable to an appellant such as Smith. Thus, the Supreme Court is justifiably concerned any time it suspects that a criminal defendant whose constitutional rights were impinged on at trial is forced to satisfy the incorrect standard for reversal on appeal.
In this case, the published opinion demonstrates that this Court was aware of which standard to apply to Smith’s claim that admitting his wife’s untrustworthy statements under MRE 804(b)(6) was error. In articulating the correct standard, this Court cited People v Carines, which draws directly from Anderson in announcing the harmless error standard for preserved constitutional issues. The unintended confusion stems, we believe, from this Court’s statement in the Smith opinion that
[w]e would repeat ourselves unnecessarily to outline all the evidence the prosecutor introduced that supported the convictions in this case that had absolutely nothing to do with Wendy Smith’s statements to the police or Crystal Smith. For the reasons we found the trial court’s decision to admit the evidence concerning the Clarion Hotel robbery harmless, we also find this error harmless[ ]
This Court did not intend to imply that it was applying the lower harmless error standard to preserved nonconstitutional issues. Rather, it was referring to the fact that the harmless error standards each set the minimum evidentiary threshold for determining that an error is harmless. In other words, each standard determines the least amount of evidence necessary to convince an appellate court that an error does not require reversal. Logically, every error deemed harmless beyond a reasonable doubt will also satisfy the lower “more probable than not” standard. Of course, this rule does not work in reverse; not every error that is deemed unlikely to be outcome determinative will be harmless beyond a reasonable doubt. However, critically, neither harmless error standard establishes an evidentiary ceiling; that is, the maximum evidence necessary to convince the reviewing court that the error was harmless. Thus, in some cases, the evidence necessary to surpass the “more probable than not” standard for preserved nonconstitutional issues articulated in Lukity may be so very clear and so very convincing that it goes far beyond the relevant minimum evidentiary threshold and also satisfies the “beyond a reasonable” doubt standard for preserved constitutional issues defined in Anderson.
This case provides an apt example of the evidence surpassing the Lukity harmless error standard for preserved nonconstitutional issues to such an extent that it also satisfied the harmless error standard for preserved constitutional issues in Anderson. As the prosecutor points out, not only did the complainant, whom we called Jane Doe, provide compelling testimony regarding the circumstances of the crime, she also described the unique weapon her perpetrator used. One police officer confirmed that the pistol was unlike any other he had seen in the twenty-four years he had spent in law enforcement. The police found ammunition for this type of pistol on Smith’s dresser. Three Bursley Hall employees also saw a man skulking in the vicinity of the crime immediately before the crime occurred in or near a battered white car. This matched the properly admitted modus operandi evidence from the Slauson Middle School robbery. One of these employees also identified Smith as that man. Each of these factors supported our decision in this case that the error in admitting the evidence concerning the Clarion Hotel robbery, which was nonconstitutional in nature, was not outcome determinative under Lukity’s “more probable than not” standard.
hi many ways, these factors outlined in the evidence are each more convincing than any identification Doe could have given of her attacker. Much of this testimony related to relatively objective and verifiable factors made without the stress, and therefore without the prospect for misperception, inherent in a traumatic assault. Consequently, in our estimation, these pieces of evidence, which were properly admitted at trial, were also so convincing that Smith’s wife’s statements played such a minor role in the trial that they were harmless beyond a reasonable doubt. This Court’s reference to the analysis used for preserved nonconstitutional error when discussing the preserved constitutional issue was not, we freely admit, the best choice of words. The fact that this Court made that reference, however, does not reflect on the proper analysis this Court selected and actu-
ally applied to the constitutional issue.
MCL 750.520b(l)(e).
MCL 750.529.
MCL 750.224f.
MCL 750.227b.
People v Smith, 243 Mich App 657; 625 NW2d 46 (2000).
People v Anderson (After Remand), 446 Mich 392; 521 NW2d 538 (1994).
Id. at 406, quoting Chapman v California, 386 US 18, 23; 87 S Ct 824; 17 L Ed 2d 705 (1967), in turn quoting Fahy v Connecticut, 375 US 85, 86-87; 84 S Ct 229; 11 L Ed 2d 171 (1963).
People v Lukity, 460 Mich 484; 596 NW2d 607 (1999).
Id. at 495-496, quoting MCL 769.26.
Smith, supra at 690.
People v Carines, 460 Mich 750; 597 NW2d 130 (1999).
Id. at 774.
Smith, supra at 690.
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On this day Wednesday the 30th day of July A.D. 1806 at the House of Samuel Abbott at 11 O’Clock in the forenoon personally appeared before me the Subscriber a Justice of the Peace in and for the said District of Michili-mackinac Ambrose Davenport proposed to be examined as a Witness. At the same time appeared George Hoffman on the part of the United States of America in this behalf & Toussaint Pothier the General Agent of the said Company in this part of the Country and the Special Agent of the said North West Company on this behalf. The said Ambrose Davenport being duly Sworn deposes and says that he does not know any thing about the Seizure of the Boats, but that he saw them land; and at that time the sun was about an hour & a half high to the best of his knowledge.
Question by Mr Hoffman. What kind of weather was it at that time and how did the wind blow?
Answer. It was a fine day, and the weather Calm at that time but still a Small Sea running, but not sufficient to prevent the Boats from making the Traverse.
Question by Mr Pothier, do you conceive that loaded Boats had time to make the Traverse before night.
Answer. I cannot say but suppose not.
Question by Mr Pothier. Is not the Traverse from Michilimackinac to Goose Island considered as dangerous for loaded boitures
Answer. It is dangerous when the wind blows & not in a Calm
Question by Mr Pothier, Do you not know that it is a Custom established by the Merchants at this place who get Goods, to order their Men to Make the Traverse from Goose Island to Mackinac with half Loads.
Answer. I have heard that it is the Case & understood so
Question by Mr Hoffman, Have you not also understood that the Custom of making the Traverse with half loads relates to Cannoes only?
Answer, Yes.
Question by Mr Hoffman. Have you not known Cannoes with loading to arrive at Michilimackinac after night, from Goose Island?
Answer. I have Seen them arrive from Goose Island with loading but I cannot say if the Cannoes were full loaded or not.
Question by Mr Pothier Is it not Seldom that Boats pass from Goose Island to Mackinac with Goods ?
Answer. I believe it is I do not recollect of any;
Question by Mr Hoffman, Did you ever make the Traverse from Goose Island to Mackinac
Answer, Yes, twice Once in a Cannoe & once in a Boat.
Question by Mr Hoffman; Is it not Customary for Cannoes to make the Traverse from Mackinac to Goose Island fully loaded with Packs
Answer, Yes it is. Ambrose Davenport
Sworn and Subscribed before me at my Chambers in Michilimackinac the thirtieth day of July in the Year of our Lord One thousand Eight hundred & Six. Saml Abbott
J.P.D.M
[In the handwriting of Samuel Abbott] | [
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In May Term 1806
Territory of Michigan DISTRICT OF ERIE TO WIT
Personally came before me the undersigned a Justice of the peace for said Territory, Alexe Ewing Junior, who made Oath on the holy Evangalist of almighty God deposeth and saith, that on the 27 h Ins4 Doctor E. Baldwin did go into the said A. Ewing’s House and did Rob and take away several property out of the said house whereof he Demands a warrant against the said E. Baldwin.
Signed
Alexe Ewing Junr
Taken and sworn to before
me at my Chambers, on the
29th November 1805
Signed
John Anderson
J-P.
Territory of Michigan DISTRICT OF ERIE TO WIT
Be it remembered that on the seventeenth of February, in the year of our Lord one thousand Eight hundred and Six, Personally came before me the undersigned one of the Justices of the peace for said Territory, viz Ethen Baldwin, Wm C. Robb, Scott Robb, Israel Ruland and Lewis Bond all of the District of Erie, and have acknowledged that they are endebted to the United States viz. the said Ethen Baldwin in the sum of three hundred Dollars, and the said Wm C. Robb, Scott Robb, Israel Ruland & Lewis Bond in one Hundred Dollars each, good & lawful money of said United States, on their goods & chattels, lands & tenements, severally to be levied for the use of said United States if default be made in the conditions under written.
The condition of this Recognizance is such that if the above boundd Ethen Baldwin shall personally be and appear in Court at the next general session of the peace to be held at River Raisin in said District of Erie to answer unto all such matter as shall be then & there objected against him by Alexander Ewing Junr for threats against his life & property, also for his having Robed & carried away several articles out of the house of the said Alexe Ewing & other misdemeanors tending’ to breach of the peace, and also for his keeping the peace & being of good behaviour, untill the setting of the said general sessions, towards all the good people of said United States, and particularly towards the said Alexe Ewing; then this Recognizance to be void & of no effect, otherwise to be & remain in full force & virtue.
Signed
Taken & acknowledged at my chambers the day and year before mentioned Signed John Anderson J. P. D. E.
Ethen Baldwin
Wm C. Robb
Scott Robb
Israel Ruland
Lewis Bond
Michigan Territory DISTRICT OF ERIE TO WIT
The Jurors of the United States of America, in and for the Territory of Michigan, upon their oath present, that Ethen Baldwin late of the said District of Erie in the Territory of Michigan aforesaid Physician, on the twenty seventh day of November in the year of our Lord one thousand Eight hundred and five, With force & Arms, in the District of Erie aforesaid, One Black glass Bottle, of the value of Twenty five cents, of the goods and chattels of one Alexe Ewing Junior, then & there being found, feloniously did steal, take and carry away, against the peace & dignity of the said United States and this Territory Witnesses Signed
Sally Innis So1 Sibley Attorney
William Moor for the United States
The Indorsment of the above Indictm
The United States vs Ethen Baldwin
Indictment for Larceny
A true Bill
signed
John Anderson
foreman
Territory of Michigan to wit:
The United States of America, to the Marshal of the territory of Michigan., You are hereby commanded to take Ethen Baldwin, if he may be found, and him forthwith bring before the court of the District of Erie, to answer to the United States of America, on a Bill of Indictment for Larceny. Hereof you are not to fail at your peril. Witness Frederick Bates Esqr senior associate Judge of the said Territory of Michigan, the twentieth day of May one thousand Eight hundred six.
Signed
(L S) Geo. McDougall elk
The endorsment on the above warrant
20th May 1806
Returnable instanter
The United States vs Ethen Baldwin
On Bill of Indictment for Larceny
I have taken the body of the within named Ethen Baldwin and have him now present before the Court—
Signed
Giles Barnes
Deputy Marshal
In May Term 1,806
The United States vs Ethen Baldwin
On a Bill of Indictment for Larceny
The Court are of opinion after conferring with the foreman of the Grand Jury, that this complaint and information of Alexander Ewing Junior, have given origin to a Bill of Indictment for Larceny against Ethen Baldwin Physician, and the court are further of opinion that the prosecutors name, in actions of this nature, should be endorsed on the Bill.
The Defendant was brought into Court this day by the Marshal, and being brought to the Bar here in his proper person &c and forthwith of-the premises in the Indictment aforesaid, above specified, being asked in what manner he would be tried thereon, He the said Ethen Baldwin says he is not guilty of the premises in the said Indictment alledged against him, and thereof for good or ill he puts himself upon the Country; therefore let a Jury thereupon immediately come before the said court, by whom the truth of the matter will be better known, and who have no affinity to the said Ethen Baldwin, to recognize upon their Oath whether the said Ethen Baldwin be guilty of the premises in the Indictment aforesaid, above specified or not; and the Jurors of the said Jury by the said Marshal for this purpose impanneled and returned to wit; Alexis Laranger, Joseph Huntington, Joseph Barie, Jean Bat Dubreuille, Stewart Rhodes, Alexis Dubois, Moses Morse, Martin Nado, Joseph Gales, Israel Ruland, Joseph Paugette & Joseph Gates being called came, being chosen tried and sworn to speak the truth of and upon the premises aforesaid, in the Indictment aforesaid above mentioned; do say upon their oath that the said Ethen Baldwin is not guilty of the premises aforesaid, in the Indictment aforesaid, above mentioned in manner and form as the said Ethen Baldwin for himself above by his plea hath alledged; upon which it is considered by the court here that the said Ethen Baldwin of the premises aforesaid, in the Indictment aforesaid, be Discharged & go without day.
I hereby certify the above to be an exact Copy from the Records and pleadings Recorded and on file in my office.
In testimony whereof I have hereunto subscribed my name and affixed my seal of Office at the River Raisin in the District of Erie and Territory of Michigan this fifteenth day of September A. D. 1,807
Christ0 Tuttle
elk
Territory of Michigan DISTRICT OF ERIE TO WIT
I John Anderson Chief Justice of the District Court for the District of Erie aforesaid, Do hereby certify that Christopher Tuttle is clerk of the said District Court and that due faith and credence is & ought to be paid to his attestations as such
In testimony whereof I have hereunto set my hand and affixed my seal at Detroit in the said Territory this 2.5th day of September 1,807.—
John Anderson
[In the handwriting of Christopher Tuttle] | [
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Territory of Michigan DISTRICT OF DETROIT SS
Be it remembered, that on the sixth day of May in the year of our Lord one thousand eight hundred and eight David Robinson of Detroit in District aforesaid and Hugh R. Martin of the same place and District aforesaid, came before the undersigned one of the Justices assigned to keep the peace, in the said District, and have acknowledged that they are indebted to the United States, that is to say the said David Robinson, in the sum of Five hundred dollars, of good and lawful money of said United States, and the said Hugh R. Martin in Two hundred &? fifty dollars, of like lawful money on their goods and Chattels, lands, and tenements severally to be levied, for the use of said United States, if default shall be made in the condition underwritten.
The condition of this recognisance is such, that if the above bounden David Robinson shall personally be and appear, in Court, at the next Supreme Court, to be held for the Territory aforesaid to answer unto all such matters, as shall be then and there objected against him by George Mc-Dougall, and James May Esquires Justices of the peace in the District aforesaid concerning an assault lately made on said George McDougall Esqr while in the lawfull execution of his duty, and other misdemeanors tending to the breach of the peace in the meantime to keep the peace towards all the good citizens of the United States—Then this recognisance to be void or otherwise, to be and remain in full force and virtue—
Taken and acknowledged the day] and year aforesaid, before me J David Robison Hugh R Martin
James May
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Territory of Michigan to wit. in the supreme court of the territory OF THE TERM OF SEPTEMBER IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND SIX-
United States vs Henry B. Brevort
sur Indictment—
And the said United States, by Wm Mc Scott their attorney P. T, comes &c and in answer to the plea, by him the said Henry B. Brevort so pleaded in Bar to the Indictment..— The United States, do say, that it is for a separate assault and battery, committed on the body of John Harvey, that he now stands indicted. That he was convicted for another assault and Battery, committed on the body of David Morison as will more fully appear by the records of this present term. And the United States do further, say, (notwithstanding any thing alledged or averr’d to the contrary,) That the said Henry is guilty in manner and form as the United States have charged in said Indictment, and this they pray may be enquired of by the Country.
WM Mc Scott
atty for U. S. P. T.
[In the handwriting of William McDowell Scott] | [
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Territory of Michigan, to wit—
The United States of America to the Marshall of the territory of Michigan: You are hereby commanded that you Summon Solomon Sibley and Christian Hoffman William C. Creighton & Jono .... executors of the last will & testament of George Hoffman, Esqr deceased, to appear before our judges of our Supreme Court to be holden at Detroit, on the third monday in the present month of September; then & there to answer Peter Audrain in a plea of trespass on the case, to the damage of the Said Peter, as is Said, three thousand dollars, which Shall then & there be made to appear, with other damages, and of this Summons make due return. Witness Augustus B. Woodward, one of the judges of our Said Supreme Court, the thirteenth day of September one thousand eight hundred eleven.
Peter Audrain, elk. S. C. T. M. | [
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Territory of Michigan towit
To the honourable Augustus B. Woodward Esquire chief Justice of the Territory of Michigan, the representation of Peter Chatron humbly complaining showeth unto your honour that your complainant being an unfortunate person and heretofore some what indebted unto Charles Curry and David Vanderhyder late of Detroit as likewise to certain other citizens of the Territory of whom George Meldrum (against whom your Petitioner asks relief) was and still is one, that on the debts due to the said Charles Curry and David Vanderhyder your petitioner suffered a lengthy imprisionment at Detroit in the year of our Lord 1803 untill at the court of Quarter Sessions of September in the year aforesaid your petitioner was by the sd court liberated and discharged from his said imprisionment at the suit of the said Charles Curry and David Vanderhyder by virtue of an existing law of the then Territory entitled “An act for the relief of poor persons imprisioned for debt” by the 5th Sec1 of which said Law it is expressly provided “that no person who hath been liberated from prisión by virtue of the provisions of this act” (meaning the act last aforesaid) “shall be subject to imprisonment on final process for any debt contracted or for any damages accrued for the breach of any contract entered into prior to such liberation &c” your petitioner now states that is at this time confined in Jail on final by George Mel-drum for a debt that was due and owing prior to his liberation aforesaid he therefore prays relief and that your honour will please to grant unto him a writ of Habeas Corpus that he may be thereon liberated and discharged from his imprisionment and as in duty &c Detroit 17th Jany 1810—
Peter Chartron
Indiana territory j of the term of September one thousand eight hun-Wayne County f dred three.
At a court of the General quarter Sessions of the peace held at Detroit on the Sixth day of September one thousand eight hundred three; were present James May, Jean Marie Beaubien, William Mc Scott, Antoine Dequindre, and John Dodemead, Esquires, Justices &c.—
[D]avid Vanderheiden vs Peter Chartron
Charles Curry...............vs. Same
The defendant, prisoner under execution, having given due notice to the plaintiffs in the above two actions, applies to the court for the benefit of the act for insolvent debtors; and the Copy of Said notice being produced was filed in court; and Thomas Jorden, being Sworn, saith that he has Served the Said notice to the plaintiffs at least thirty days before; the court [orde]red the Sheriff to bring the prisoner into court; [an]d the Said Peter Chartron being brought into court was admitted to his oath, and he took it in open court. Whereupon the Said Chartron was discharged by the Court.
And the Court ordered their clerk to notify the Same in writing to the jailor, and ordered that the prisoner be liberated, if not confined upon any other Suit.
I certify the foregoing to be a true copy from the record of the late county of Wayne in the Indiana territory.
Peter Audrain elk
[March 8, 1810]
The Supreme Court of the Territory of Michigan, having decided on the fifth day of October, one thousand eight hundred nine, that a bill signed by the Governor of the Territory alone under a power to sign in cases when less than a majority of the Governor and Judges under the Congressional Ordinance of the thirteenth day of July, one thousand seven hundred eighty-seven either vote for or are willing to sign such bill, is not a law adopted by the Governor and Judges or a majority of them pursuant to the Ordinance; and the said Supreme Court having also decided in the cases of Isaac Burnet and Jacob Smith upon writ of Habeas Corpus that the bill extending the jurisdiction of magistrates being signed by the Governor alone under the power aforesaid is not a law obligatory upon the inhabitants of their Territory. I consider the Principle in the case of Andre Colhoun as already decided and settled as far as the Supreme Court of this Territory have authority to decide and settle it, and that he is therefore illegally confined and must be discharged.
To the Hon1 Augustus B Woodward one of the fudges in and over the Territory of Michigan—
Sir
Your Petitioner, is now illegally and unlawfully imprisoned and confined against his will within the common Prison at Detroit—Wherefore your petitioner prays relief against such unlawful restraint and imprisonment, and that a writ of Habeas Corpus may be granted by your honor and that your Petitioner may thence be brought before you at your chambers and discharged from further detention and imprisonment under which he is now illegally held and detained—and as in duty bound will ever pray &c. Detroit Prison March 16, 1810 Wm H Bigolow
Witness Sol Sibley
William H. Biggelow
1810
Bigelow
[Case B-6, Paper 2]
Michigan, to wit—
To the Marshall of the district of Huron & Detroit:
You are hereby Commanded to bring before me, the undersigned, one of the Judges in and over the territory of Michigan, at my Chambers, at the house of James May, in the City of Detroit, at Seven of the clock this afternoon, the body of William H. Biggelow detained by you, as is Said, in the Jail of the district of Huron & Detroit, by whatsoever name, he may be Called therein, together with the Cause of his detention, to do, Submit to, and receive whatever Shall be considered in this behalf, and have there this writ.
Witness the undersigned, one of the judges in and over the territory of Michigan, this Sixteenth day of March one thousand eight hundred ten.
Augustus B. Woodward, [seal]
[In the handwriting of Peter Audrain]
In obedience to the above writ, I have here present the body of William H. Biggeleo, who was and still is a prisoner by virtue of an execution from the office of Geo. McDougall Esq. a copy of which is annexed Detroit 16th March A. D. 1810 WM Scott Marshal
Territory of Michigan \ To the Marshal of the District of Huron & district of Detroit ss J Detroit, Greeting
Whereas Joseph & Thomas Emerson and Stephen Mack, trading under the firm of Thos Emerson & C° have obtained Judgement against Wm H. Biggeloe, for Twenty nine Dollars 89J/2 cents, damages, and 83 cents costs. Therefore, In the name of the Territory of Michigan, You are hereby commanded to levy the said debt & Costs, of the goods and chattels of the said Wm H. Biggeloe and for want of such goods & chattels, to take the body of the said Wm H. Biggeloe and him to detain untill the said debt & costs & subsequent costs are paid, and he otherwise discharged, and hereon make due return within sixty days.
Given under my hand the 15th day of March A. D. 1810.
Signed Geo. McDougall
Justice of the peace D. D.
A Copy.
WM Scott. Marshal.
Endorsed,
March 15. 1810.
RETBle in 60 days.
Thos Emmerson & Co vs Wm H Biggeloe
Execution.
A Copy
WM Scott Marshal-
[In the handwriting of Elijah Brush]
[In the handwriting of Peter Audrain]
[Reprinted from Michigan Law Review, XVIII, No. I (November, 1919), 21.]
[In the handwriting of Solomon Sibley]
[In the handwriting of William McDowell Scott] | [
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Territory of Michigan in the supreme court
Joseph Wilkinson Junr was attached to answer unto the said United States of America in a plea that he render to the said United States the sum of two thousand dollars money of the said United States which to them he doth owe and from them doth unjustly detain &c and whereupon the said United States by E Brush their Atty complain for that Whereas the said Joseph on the fourth day of June in the year of our Lord one thousand eight hundred five by his Certain writing obligatory sealed with his seal and now here shown to the Court the date whereof is the same day and year aforesaid became held and firmly bound unto the said United States in the aforesaid sum of two thousand dollars to be paid unto the said United States upon the condition thereunder written which said condition was that the said Joseph who antecedently to the date of the said writing obligatory had been by the president of the said United States appointed to the office of collector of the customs for the District of Detroit in the Territory aforesaid should truly and faithfully Execute and discharge and continue thus truly and faithfully to Execute and discharge all the duties of the said office according to Law then and in that case the said writeing obligatory was to be void and of no effect otherwise it was to remain in full force and virtue and the said United States aver that the said Joseph afterwards towit on the same day and year aforesaid and often afterwards towit at Detroit aforesaid did not continue to Execute and discharge faithfully all the duties of the said Office of Collector of the Customs at Detroit aforesaid but therein did make default and fail of so doing in this that the said Joseph did not pay over unto the said United States the duties accruing on the importation of certain goods wares and Merchandize imported into the United States from diverse places beyond the seas which he the said Joseph as such collector had recd but thereon did likewise make default afterwards towit on the eleventh day of June in the year of our Lord one thousand eight hundred six towit at Detroit aforesaid By reason whereof he became liable to pay to the said United States the said sum of two thousand dollars above demanded Yet the said Joseph altho often times thereunto requested the said sum of two thousand dollars or any part thereof hath not yet paid to the said United States but he to pay the same hath hitherto entirely refused and still refuses to the said United States their damage of one thousand dollars and therefore they bring suit &c By E Brush their Atty
Territory of Michigan towit— the United States put in their place E Brush their Atty agc Joseph Wilkinson Junr in the plea aforesaid
[In the handwriting of Elijah Brush] | [
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Territory of Michigan towit—
The Jurors of the United States within and for the Territory of Michigan on their oaths present that William Watson Abraham Gill David Robison Thomas McClure Hugh R Martin Austin Longon and Charles Curry all of Detroit in the said Territory of Michigan on the nineteenth day of October in the year of our Lord one thousand eight hundred seven with force and armes towit at Detroit aforesaid did unlawfully riotously and routously assemble and meet together to disturbe the peace of the United States and of this Territory and also to commit an assault and battery upon one James Heward a subject of his Britanic Majesty of the United Kingdoms of Great Britain and Ireland and while the said James Heward was attending on the Supreme Court of this Territory as a witness in a cause wherein one Mathew Elliott Esquire (who being likewise a subject of his sd Britanic Majesty) was complainant against Certain of his male and female slaves being people of colour that had escaped from the service of the said Mathew Elliott in his Britanic Majesties province of Upper Canada and had taken refuge in Detroit in the Territory aforesaid on the part of the said Mathew Elliott, and being so then and there assembled and met together as aforesaid in and upon the said James Heward in the peace of God and of the United States then and there being unlawfully riotously and Routously did make an assault and him the said James Heward then and there did unlawfully Riotously and Routously beat wound and ill treat so that his life was greatly despaired of and other wrongs to the said James Heward then and there unlawfully Riotously and Routously did to the great subversion of all order in society, to the evil and pernicious example of all others in like cases offending and against the peace and dignity of the United States and of this Territory—
And the Jurors aforesaid on their oaths aforesaid do further present that William Watson Abraham Gill David Robison Thomas McClure Hugh R Martin Austin Longon and Charles Curry all of Detroit in the said Territory of Michigan on the nineteenth day of October in the year of our Lord one thousand eight hundred and seven with force and armes towit at Detroit aforesaid did unlawfully Riotously and Routously assemble and meet together to disturbe the peace of the United States and of this Territory and an assault and battery to commit on the body of one James Heward and being so then and there assembled and gathered together in and upon the said James Heward in the peace of God of the United States and this Territory then and there being unlawfully Riotously and Routously did make an assault and him the said James Heward then and there unlawfully Riotously and Routously did beat wound and ill treat so that his life was greatly dis-paired of and other wrongs to the said James Heward then and there unlawfully Riotously & Routously did to the great damage of the said James Heward, in subversion of all order in society to the evil and pernicious example of all others in like cases offending against the peace and dignity of the United States and of this Territory— E Brush Atty Geni
[In the handwriting of Elijah Brush] | [
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Territory of Michigan—in the supreme court of the territory of THE TERM OF SEPTEMBER IN THE YEAR OF OUR LORD 1808
Samuel Grymes was attached to answer unto James Anderson in a plea of trespass why with force and arms an assault he did make on the body of the said James in the peace of God and of the United States then and there being and him the said James then did beat wound and ill treat &c and other outrages to him did then and there commit &c and against the peace &c And whereupon the said James by E Brush his Atty complains for that whereas the said Samuel on the thirtieth day of October in the year of our Lord one thousand eight hundred and seven towit at Detroit in the Territory aforesaid with force and arms an assault did make on the body of him the said James in the peace of God of the United States and of this Territory then and there being and him the said James did then and there beat wound and ill treat so that his life was thereof greatly despaired of and other outrages to him did then and there commit to the great damage of the said James and against the peace of the United States and of this Territory whereby the said James saith he is injured and hath sustained damage to the value of five hundred dollars and thereof he brings suit &c E Brush Atty
Pledges Jn° Doe & Richd Roe
Territory of Michigan to wit James Anderson puts in his place E Brush his Attorney against Samuel Grymes in the plea aforesaid—
Anderson, James, affidavit of, relative to a suit against Samuel Grimes.
Nov. 3. 1807.
recd and filed in my office 31. may 1808
Peter Audrain
clerk of the Sup. court
[Case 96, Paper 2]
Territory of Michigan ss—
Personally came and appeared before me George McDougall Esquire one of the Justices of the peace for the District of Huron & Detroit and Territory aforesaid James Anderson Sadler who being duly Sworn on the holy evangalist of Almighty God deposeth and Saith that he hath reason to believe and doth believe that Samuel Grimes of Detroit in Said Territory hath at Several times had a Criminal Conversation and Cohabitation with the wife of this deponant all which this deponant expects he will be abundantly able to prove— and further that he hath reason to believe and doth believe that the Said Samuel Grimes is about to depart out of this Territory and will not return to the Same to abide the eventual determination of a Suit this deponant is now about to institute against the Said Samuel Grimes for the Cause aforesaid unless he is held to Bail thereon—
James Anderson
The Within affidavit sworn and subscribed before me at my Chambers, Detroit 2d Nov 1807 Geo. McDougall
JP.DD
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Territory of Michigan—in the supreme court of the territory of THE TERM OF SEPTEMBER IN THE YEAR OF OUR LORD l8o8
The United States of America by E Brush their Atty complain of Joseph Wilkinson Junr late the collector of the customs of the said United States at the port of Detroit in the District of Detroit and Territory aforesaid being in Custody of &c In a plea of trespass on the Case for that Whereas the said Joseph on the twenty ninth day of September in the year of our Lord one thousand eight hundred and seven towit at Detroit aforesaid and within the jurisdiction of this Court was indebted unto the said United States in the sum of six thousand dollars currency of the said United States for money by the said Joseph before that time as such collector had and received to and for the use of the said United States and at his special instance and request and being so indebted he the said Joseph in consideration thereof, afterwards towit on the same day and year aforesaid towit at Detroit aforesaid undertook and faithfully promised the said United States to pay them the said last mentioned sum of money when he the said Joseph should be thereto afterwards requested and whereas afterwards towit on the Eleventh day of June in the year of our Lord one thousand eight hundred & Six the said Joseph at the City of Washington towit at Detroit aforesaid and within the Jurisdiction aforesaid accounted together with the said United States of and concerning diverse other large sums of money by the said Joseph as such Collector as aforesaid before that time due and owing to the said United States and then being in arrear and unpaid and upon that account the said Joseph was then and there found in arrear to the said United States in other large sum of money towit other sum of four thousand and eighty five dollars and eighty two cents of like lawful money as aforesaid and being so thereof found in arrear he the said Joseph in consideration thereof after-wards towit on the same day and year last aforesaid at the City of Washington towit at Detroit aforesaid undertook and faithfully promised the said United States to pay them the said last mention sum of money when he the said Joseph should be thereto afterwards requested—Yet the said Joseph not regarding his aforesaid several promises and undertakings so by him made in his behalf as aforesaid but contriving and fraudulently intending craftily and subtally to deceive and defraud the said United States in this behalf hath not as yet paid the said United States the said several sums of money or any part thereof altho so to do he the said Joseph was requested by the said United States afterwards towit on the same day and year aforesaid and often afterwards towit on the 29th day of Septr in the year of our Lord 1807 but he to pay the same hath hitherto entirely refused and still doth refuse to pay the same to the damage of the said United States as they say six Thousand dollars and thereof to recover the same with costs &c they bring suit &c By E Brush their Atty
Territory of Michigan towit—The United States of America put in their place E Brush their Atty ag* Joseph Wilkinson Jur in the plea aforesaid—
[In the handwriting of Elijah Brush] | [
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Territory of Michigan to wit
In the matter of Bridget Sheridan, Complainant vs Daniel Sheridan—
IN THE SUPREME COURT OF THE TERRITORY
To Peter Audrain Esqr Clerk of said Court—
Please issue a summons in the foregoing case Returnable on Monday the twenty fourth Instant at twelve of the Clock noon—at the new Michigan Court House next the Jail— Detroit Feby 18— 1812
Bridget Sheridan
by her Attorney
Geo. McDougall
You’ll also issue a subpoena for Cap1 John Whistler and Captain Samuel T Dyson — Serg1 Patrick Cassety & John Widle of Fort Detroit, also for Samuel Pogue to testify in the foregoing matter Rtble as aforesaid
Geo McDougall
atty for Bridget Sheridan
filed 18 feby 1812.
[Case 391, Paper 5]
To the Honorable
Augustus B Woodward & James Witherell Judges of the Supreme Court of the Territory of Michigan
Petition of Bridget Sheridan for a Special Session of said Court
To the Honorable Augustus B Woodward and James Witherell, Judges of the Supreme Court of the Territory of Michigan—
The petition of Bridget Sheridan—Humbly Sheweth,
That her Husband Daniel Sheridan, is now a soldier in the United States first Regiment, in Fort Detroit, and the causes detailed in the accompanying complaint to your Honors, being of an Urgent Nature, will not admit of her awaiting the regular Term of the Supreme Court—
She therefore humbly prays that a Special Court may be ordered, to be held at the Clerks office for the hearing & determining of the said Complaint forthwith— And your Petitioner as in duty bound, will ever pray—Bridget Sheridan by her Attorney— Geo. McDougall
Detroit Feby 17“ 1812
[Indorsement]
A Special Session of the Supreme Court will be held on Monday the 24, Inst, at the building next North east of the Jail at 11 °Clock AM. for the purpose of hearing the within petition.
J. Witherell
18. Feb. 1812—
Woodward judge.
Answer
filed 4 march 1812
[Case 391, Paper 6]
Territory of Michigan— in the supreme court of the territory of THE TERM OF SEPTR IN THE YEAR OF OUR LORD l8ll-
The Answer of Daniel Sheridan the respondant to the Bill of complaint of Bridget Sheridan his wife above exhibited—This respondant saving and reserving to himselfe now and at all times hereafter the right of making further answer to the many incertainties and untruths in the complainants bill of complaint above exhibited and set forth, for answer nevertheless at this time to such parts thereof as he is advised is necessary and material for him to answer, he answereth and saith that true it is that on the fifth day of April in the year of our Lord 1811 towit at Detroit in the territory aforesaid he was lawfully joined in the bons of matrimony to the complainant Bridget Sheridan at that time calling herselfe Bridget Belcher by Richard Smyth Esquire one of the Justices of the peace for the District of Detroit in said Territory, that with the said Bridget Sheridan the complainant this re-spondant continued to live and to exercise do and perform all and severally the functions and offices of a good, indulgent and tender husband as much as in him lay (he being at the time of his marriage and still a soaldier in the service of the United States as is set for in the complainants bill of complaint and that well known to the complainant at the time of her marriage) untill by the devises and procurement of the complainant and by her false and malicious representations (she being a person of an evil disposition, and of wicked and abandoned habits) he was driven from his comfortable home and finally from all enjoyment and connection with the complainant and imprisioned in the guard house in fort Detroit and subsequently and at the present time suffering a grevious and wanton imprisonment in the common jail at Detroit aforesaid by reason of the false and malicious representations of the complainant set forth in her bill of complaint representing this respondant as a person of a vicious and debauched temper and inclination, and likewise that she the complainant was in constant bodily fear that this respondant would kill wound or do her the complainant some bodily hurt whereas this respondant charges expressly the contrary and that whatever was amiss between the complainant and this respondant on the aforesaid ninth day of September as in the bill charged and tended to a breach of the peace is justly and truly chargeable on the complainant she having been the assailant from whom this respondant received much ill treatment and abuse accompanied with actual violance at the time and that so far from this respondants offering to the complainant any violence at the time he only touched her with a gentle hand to save his person from the impending danger of an uplifted weapon, and to restrain her in the exercise of a cruel and barbarous disposition—this respondant likewise charges that since the consummation of his marriage with his present dearly beloved wife he has advanced her and otherwise expended large sums of money towards her support suitable to their condition in life, and that the charge of his remitting her debts due antecedent to their marriage with a view to defraud her of her property is wholly and entirely without foundation he therefore prays that the bons of matrimony as pray’d for in the complainants bill of complaint may not be dissolved neither that they be decree’d seperated from bed and board but that the complainants bill of complaint may be dismiss’d by this honourable court and this respondant released from his imprisionment and as in duty bound he will ever pray Daniel Sheridan
Complaint on Oath Bridget Sheriden against her Husband Daniel Sheriden for assault and Battery &c &c
Septr 9th 1811
filed Septr 9th 1811 by me
James May J P D D
[Case 391, Paper 7]
Territory of Michigan DISTRICT OF DETROIT TO WIT-
Be it remembered that personally came before me the undersigned one of the Justices assigned to keep the peace in the District aforesaid—viz— Bridget Sheriden who made oath on the Holy Evangelist of Almighty God, deposeth and saith, That between the Hours of seven and Eight this Evening—a stranger living with Richard Smyth: was sitting in her House— when her Husband Daniel Sheriden—soldier in the first United States Reg1 and Captain Whistlers company—came into the House and demanded of the stranger aforesaid—what he wanted there, and then proceeded without any provocation to kick, beat, and abuse the said stranger—and turned him out of the House, a short time after he proceeded to kick beat and 111 treat this deponant in such a manner that the Blows and Kicks are plainly to be seen on the Body of this deponent, and while the said Daniel was hunting for a Club to do her further Injury—and perceiving her life in emminent danger— she had to run from the House—when the said Daniel Sherriden, lock’d the Door, and refused to let any person in—This depon1 further deposeth— That she is in Bodyly fear that he the said Daniel Sherriden—will, kill, wound or do her some bodyly hurt, and therefore prays that the said Daniel —may be arrested, and give security for his keeping the peace &c &c and further this deponant sayeth not.—
Sworn before me this ninth day of Septr 1811 between the Hours of Eight & nine in the Evening James May
JPDD
Accounts of the Auditors for the District of Erie
filed in the Supreme Court the 4th may 1812.
[Case 392, Paper 1]
Be it remembered that We the Undersigned Auditors of Public Accounts for the District of Erie after examining all accounts & testimony relative to the same between the District of Erie and the following persons in conformity to a law relative to the same adopted by the Governor and judges of the Territory of Michigan on the thirteenth of December AD 1811 (eleven)
Given under our hands at the River Raisin this in the District aforesaid this first day of May in the year of our Lord One thousand eight hundred and twelve
[In the handwriting of George McDougall]
[In the handwriting of George McDougall]
[In the handwriting of James Witherell]
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Inquisition indented taken in the Supreme Court of the Territory of Michigan, in open court, on Thursday the thirteenth day of October, one thousand eight hundred eight, in the matter of Francis Des Forges.
We of the jury upon our oaths do say that Francis Des Forges is at this time restored to his senses, and is a person of sound mind.
In witness whereof we have hereunto set our hands and seals the day and year first above mentioned.
Attest,
WM Scott (L. S.)
Marshall
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K. F. Kelly, J.
On June 19, 2000, the Michigan Public Service Commission (mpsc) issued two orders, on its own motion and without notice or a hearing, dismissing with prejudice the Detroit Edison Company’s application for a power supply cost reconciliation for 1999 (MPSC Case No. U-11800-R) and its application to implement a power supply cost recovery (PSCR) plan for 2000 (MPSC Case No. U-12121). The dismissals were ordered pursuant to subsection 10d(l) of the Customer Choice and Electricity Reliability Act, 2000 PA 141, MCL 460.10 et seq. (Act 141), which froze residential and nonresidential electric rates authorized or in effect on May 1, 2000, until December 31, 2003. Separate appeals as of right were filed from the two orders by the Attorney General (Docket Nos. 228484 and 228485), the Association of Businesses Advocating Tariff Equity (abate) (Docket Nos. 228522 and 228523), and the Residential Ratepayer Consortium (rrc) (Docket Nos. 228622 and 228623). This Court ordered the appeals consolidated. We now affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
As part of the Legislature’s decision to deregulate the electric utility industry, it enacted Act 141, which provides in subsection 10d(l):
Unless otherwise reduced by the commission under subsection (4) [involving securitization financing], the commission shall establish the residential rates for each electric utility with 1,000,000 or more retail customers in this state as of May 1, 2000 that will result in a 5% rate reduction from the rates that were authorized or in effect on May 1, 2000. Notwithstanding any other provision of law or commission order, rates for each electric utility with 1,000,000 or more retail customers established under this subsection become effective on the effective date of the amendatory act that added this section and remain in effect until December 31, 2003 and all other electric retail rates of an electric utility with 1,000,000 or more retail customers authorized or in effect as of May 1, 2000 shall remain in effect until December 31, 2003, unless otherwise reduced by the commission under subsection (4). [MCL 460.10d(l).]
Thus, Act 141 mandated that residential electric rates authorized or in effect on May 1, 2000, be reduced by five percent and remain frozen until December 31, 2003, and that nonresidential rates authorized or in effect on May 1, 2000, also be frozen until December 31, 2003.
At the time Act 141 became effective, June 5, 2000, Edison’s 1999 pscr reconciliation application was pending in the MPSC pursuant to MCL 460.6j(12)-(16) [MPSC Case No. U-11800-R]. In its application, Edison attached an exhibit asserting that the utility had an overrecovery for the year of more than $13 million, requiring a refund to customers. Edison’s exhibit further indicated a refundable $18.9 million in Fermi 2 capacity performance standard amounts, which were based on a 1988 MPSC-approved stipulation and settlement agreement entered into between Edison and certain customers, including abate, in MPSC Case No. U-8789. In the settlement agreement, Edison had agreed as follows:
For rates in effect from January 1, 1993 through December 31, 2003, a disallowance will be imposed upon the Company for the amount by which the three-year rolling average capacity factor for Fermi 2 is less than the greater of either the simple average capacity factor of the top 50% of U.S. boiling water reactors or 50%.
The annual performance standard disallowance shall be the net incremental cost of replacement power (including capacity and associated energy).
Also pending at the time Act 141 became effective was Edison’s application to implement a PSCR plan for 2000 pursuant to MCL 460.6j(3)-(7) [MPSC Case No. U-12121].
On June 19, 2000, acting on its own motion and without notice or a hearing, the mpsc ordered Edison’s reconciliation application in MPSC Case No. U-11800R “dismissed with prejudice”:
On June 5, 2000, the Commission issued an order in Case No. U-12464 implementing the rate reduction for residential customers and requiring Detroit Edison to file tariff sheets. With that reduction, all of the retail rates now in effect may not be changed until at least December 31, 2003 except to reflect the effects of securitization. A PSCR reconciliation, which is designed to adjust rates for an over- or under-recovery of the costs of fuel and purchased power, is inconsistent with subsection 10d(l). Therefore, Detroit Edison’s application must be dismissed.
On that same date, the mpsc issued another order dismissing with prejudice Edison’s 2000 PSCR plan application in MPSC Case No. U-12121, citing the same rationale as above.
n
On appeal, appellants contend that the MPSC’s interpretation of subsection 10d(l) of Act 141 is unlawful. We disagree.
A STANDARD OF REVIEW
Pursuant to MCL 462.25, all rates, fares, practices, and services prescribed by the MPSC are presumed, prima facie, to be lawful and reasonable. Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973); Attorney General v Public Service Comm, 206 Mich App 290, 294; 520 NW2d 636 (1994). An appellant must show by “clear and satisfactory evidence” that a challenged order of the MPSC is “unlawful or unreasonable.” MCL 462.26(8); Michigan Consolidated Gas Co, supra at 639; CMS Energy Corp v Attorney General, 190 Mich App 220, 228; 475 NW2d 451 (1991); Attorney General, supra, 206 Mich App 294. An mpsc 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); Attorney General v Public Service Comm, 231 Mich App 76, 77-78; 585 NW2d 310 (1998). While a reviewing court must give due deference to the administrative expertise of the mpsc and may not substitute its judgment for that of the agency, the judiciary may not abandon or delegate its duty to interpret statutory language and legislative intent. Attorney General v Public Service Comm, 244 Mich App 401, 406; 625 NW2d 786 (2001).
Questions of statutory interpretation are questions of law, which are reviewed de novo. In re MCI Telecommunications Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999); Attorney General v Public Service Comm, 247 Mich App 35, 39; 634 NW2d 710 (2001).
B
In dismissing with prejudice Edison’s pending 1999 PSCR reconciliation application and 2000 PSCR plan application cases, the mpsc construed the rate freeze provision of subsection 10d(l) as temporarily supplanting MCL 460.6j pursuant to which PSCR reconciliation and plan proceedings are conducted. Affirmance is warranted on various grounds.
1. THE PLAIN LANGUAGE OF THE STATUTE
Appellees mpsc and Edison persuasively assert that the rate freeze under subsection 10d(l) precludes any adjustment of rates beyond the terms of Act 141 in light of the plain statutory language, i.e., “[notwithstanding any other provision of law or commission order, rates . . . established under this subsection become effective on the effective date of the amendatory act that added this section and remain in effect until December 31, 2003 . . . “[A]ny other provision of law” plainly includes the pscr reconciliation and plan provisions of MCL 460.6j, and “any other . . . commission order” plainly includes orders issued pursuant to MCL 460.6j or prior MPSC-approved agreements whereby a utility has agreed to make future rate adjustments. Thus, the MPSC’s interpretation of the statute is entitled to deference because it is consistent with the plain language of the statute. Attorney General, swpra, 247 Mich App 41. Moreover, because the dismissal orders are not clearly based on an erroneous interpretation or application of the law, appellants have failed to overcome the presumption of lawfulness. MCL 462.25; Associated Truck Lines, Inc, supra; Attorney General, supra, 231 Mich App 77-78.
2. THE MPSC HAS AUTHORITY TO SUSPEND A K CLAUSE
A pscr clause is “a clause in the electric rates or rate schedule of a utility which permits the monthly adjustment of rates,” and a pscr factor is an “element” of electric rates. MCL 460.6j(l)(a), (b). “Pursuant to its authority under this act, the public service commission may incorporate a power supply cost recov eiy clause in the electric rates or rate schedule of a utility, but is not required to do so.” MCL 460.6j(2). As a corollary to this discretionary authority, this Court has held that the MPSC has the authority to suspend an electric utility’s PSCR clause for a specified period as long as the suspension will not result in an increase in rates. Attorney General, supra, 231 Mich App 79-80; Attorney General, supra, 244 Mich App 406. See also Residential Ratepayer Consortium v Public Service Comm, 239 Mich App 1, 4-5; 607 NW2d 391 (1999) (suspension authority applies also to gas cost recovery clauses).
Here, viewing, as this Court must, the mpsc’s orders as prima facie lawful and reasonable, the MPSC had discretion whether to impose a 1999 PSCR clause in the first place or to suspend operation of a clause that had already been imposed. Thus, in fight of the rate freeze mandated under subsection 10d(l), the MPSC properly exercised its discretion to suspend implementation of a pscr clause that would have had the effect of adjusting electric rates, in direct contravention of the freeze.
Appellants contend that the mpsc’s interpretation of subsection 10d(l) operates to retroactively change or modify rates in effect before the effective date of Act 141, June 5, 2000. Appellants note that statutes are generally viewed as having only prospective application, unless the Legislature has clearly indicated an intent for retroactive application, and no such intent is indicated in Act 141. The flaw in this argument, as pointed out by appellees, is that rate-making orders are prospective in effect. Michigan Bell Telephone Co v Public Service Comm, 315 Mich 533, 547; 24 NW2d 200 (1946); Detroit Edison Co v Public Service Comm, 221 Mich App 370, 376; 562 NW2d 224 (1997). Therefore, by suspending implementation of pending pscr proceedings, the mpsc was merely complying with the dictates of subsection 10d(l) that precluded adjustment of the frozen rates for the specified period.
Appellants further paint the mpsc’s action as a repeal of MCL 460.6j by implication and contend that such a construction should be disfavored by the courts. “ ‘Repeals by implication are not favored and will not be indulged in if there is any other reasonable construction. The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold the contrary.’ ” House Speaker v State Administrative Bd, 441 Mich 547, 562; 495 NW2d 539 (1993), quoting Attorney General ex rel Owen v Joyce, 233 Mich 619, 621; 207 NW 863 (1926). The question whether a statute is repealed by a subsequent statute relating to the same subject matter involves a determination of legislative intent, and where possible the former and subsequent statutes must be construed together and reconciled so as to give each force and effect. Attorney General v Public Service Comm, 161 Mich App 506, 513; 411 NW2d 469 (1987).
Here, Act 141 does not incorporate any express provision for repeal of MCL 460.6j. However, reading the statutes together as a whole, we agree with appellees that the clear intent of the Legislature was to temporarily supplant the usual PSCR process so as to implement the rate freeze provision of Act 141. Prop erly construed, then, Act 141 does not repeal MCL 460.6j, but rather suspends its operation for a specified period. We adopt this construction because it resolves any ostensible conflict between the two statutes and gives force and effect to each. Attorney General, supra, 161 Mich App 513. See also Knauff v Oscoda Co Drain Comm’r, 240 Mich App 485, 492; 618 NW2d 1 (2000) (reading two statutes, claimed to be in conflict, together as providing alternative methods, independent of one another). Accordingly, we reject appellants’ contention that Act 141 impliedly repeals the PSCR process provisions of MCL 460.6j.
3. DEFERENTIAL STANDARD OF REVIEW OF MPSC ORDERS
Lastly, given our historically deferential treatment of mpsc rulings, appellants have failed to overcome the heavy burden of demonstrating by clear and satisfactory evidence that the challenged dismissal orders were unlawful or unreasonable. MCL 462.26(8); Michigan Consolidated Gas Co, supra at 639. The mpsc reasonably construed the PSCR clause adjustments during the rate freeze period to be “inconsistent” with subsection 10d(l).
in
Appellants next argue that the mpsc’s dismissal of the pending PSCR proceedings illegally cut off Edison’s customers’ rights to millions of dollars in refunds related to PSCR over-recoveries for 1999 and the first half of 2000 as well as Fermi 2 cost disallowances established in MPSC Case No. U-8789. We hold that appellants have failed to demonstrate that subsection 10d(l) is an unconstitutional violation of their vested property or contract rights to refunds or credits.
A. STANDARD OF REVIEW
Matters of constitutional and statutory interpretation are reviewed de novo by this Court. Oakland Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998); Reynolds v Bureau of State Lottery, 240 Mich App 84, 86; 610 NW2d 597 (2000).
B. IMPAIRMENT OF CONTRACT RIGHTS
This state’s constitution, Const 1963, art 1, § 10, provides that “[n]o bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted,” which is substantially identical to the federal constitution, US Const, art I, § 10, which provides that “[n]o state shall. . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . .” Our state constitutional provision is not interpreted more expansively than its federal counteipart. In re Certified Question (Fun ‘N Sun RV, Inc v Michigan), 447 Mich 765, 776, n 13; 527 NW2d 468 (1994); Taylor v Secretary of State, 216 Mich App 333, 339-340; 548 NW2d 710 (1996).
We agree with appellees that no contract rights are implicated in this case. Although Edison and certain customers, including abate, had entered into a 1988 stipulation and settlement agreement in MPSC Case No. U-8789 that provided for a 1999 refund of $18.9 million in Fermi 2 capacity performance standard amounts, the settlement agreement did not establish traditional contract rights in the refund. Because the MPSC has primary jurisdiction to regulate all public utilities and their rates and conditions of service, see MCL 460.6, the settlement agreement was without effect unless approved by the MPSC, which it did in an “Order Approving Settlement Agreement,” entered on December 27, 1988. However, the final paragraph of that order provided as follows:
The Commission specifically reserves jurisdiction of the matters herein contained and the authority to issue such further order or orders as the facts and circumstances may require.
Thus, to the extent that any “rights” to refundable amounts were created in MPSC Case No. U-8789, such rights are dependent, not on vested contract rights, but on the provisions of the mpsc’s approval order. However, given that the MPSC reserved jurisdiction to issue further orders in the case as necessary, any claim to a vested interest in the refund amounts was vitiated. Accordingly, appellants’ argument regarding impairment of contract rights must fail.
C. VIOLATION of due process—impairment of vested rights TO REFUNDS OR CREDITS
Both the state and federal constitutions provide that private property shall not be taken without due process of law or just compensation. US Const, Am V; Const 1963, art 1, § 17 and art 10, § 2. Due process is violated only when legislation impairs vested rights. Taxpayers United for Michigan Constitution, Inc v Detroit, 196 Mich App 463, 467-468; 493 NW2d 463 (1992).
One who asserts an uncompensated taking claim must first establish that a vested property right is affected. Minty v Bd of State Auditors, 336 Mich 370, 390; 58 NW2d 106 (1953). To constitute a vested right, the interest must be “ ‘something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of property ....’” Id., quoting 2 Cooley, Constitutional Limitations (8th ed), p 749. Without a property right, a plaintiff has no basis for challenging a statute on the ground that it constitutes a confiscatory taking without due process of law. [Fun ‘N Sun RV, supra at 787-788.]
In Fun ‘N Sun RV, supra, policyholders in the state Accident Fund filed suit against the state and the Accident Fund, among others, seeking a determination that the policyholders were the owners of and entitled to any accumulated reserves in the fund in excess of those needed to cover liabilities. While the lawsuit was pending, the Legislature enacted a statute, MCL 418.701a, which authorized the state to sell the fund to a private party and to retain the proceeds. Fun ‘N Sun RV, supra at 770. The Court of Claims granted summary disposition to the policyholders, finding that they had a vested right to the fund’s assets. Upon certification of a question by request of the Governor, the Michigan Supreme Court held that the statute authorizing the state to sell and retain the proceeds of the sale of the Accident Fund did not impair the obligation of contracts or take property rights without due process of law because the policyholders had failed to demonstrate any ownership of specific property rights or contract rights. Id. at 775-776. The Court noted that the parties’ separate theories of due process and obligation of contract each required the policyholders to demonstrate an owner ship interest in specific property rights or contract rights. Id. at 775.
Similarly, appellants here cannot make a persuasive claim to a vested right in any potential refunds. The statutory scheme gives the mpsc discretion whether to incorporate a pscr clause in electric rates, MCL 460.6j(2), and this Court has held that the MPSC has the authority to suspend an electric utility’s pscr clause for a specified period as long as the suspension will not result in an increase in rates, Attorney General, supra, 231 Mich App 79-80; Attorney General, supra, 244 Mich App 406. Under such circumstances, any refund under MCL 460.6j is purely speculative, at least until the mpsc issues a final order mandating a refund of specific amounts. Fun ‘N Sun RV, supra at 788-789; Taxpayers United for Michigan Constitution, Inc, supra at 468. Thus, appellants have failed to establish any vested right to a refund or credit in this case.
Affirmed.
Indeed, such a construction is suggested by subsection 10a(12), which provides for an eventual return to the previous rate-setting method:
After the time period described in section 10d(2), the rates for retail customers that remain with or leave and later return to the incumbent electric utility shall be determined in the same manner as the rates were determined before the effective date of this section. [MCL 460.10a(12).] | [
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Griffin, P.J.
Defendant appeals by leave granted from the circuit court order affirming the decision of the district court denying defendant’s motion to suppress and finding defendant guilty of operating a vehicle while under the influence of intoxicating liquor (om), MCL 257.625(l)(a). This appeal from an ouil conviction raises the novel issue whether the sheriff’s appointment of employees of a religiously affiliated college as deputy sheriffs with full arrest powers extending to violations of state law on public streets is impermissible under state law or is a violation of the Establishment of Religion Clauses of the United States or Michigan Constitutions, US Const, Am I; Const 1963, art 1, § 4. We, like the circuit court, answer “no” and therefore affirm.
i
statement of facts
A stipulation of facts, entered by the parties in the district court, sets forth the events underlying this appeal. Kevin Cisler and Chad Wolters, employees of the Hope College Public Safety Department, arrested defendant on July 15, 1997, on a public street in the city of Holland after observing his erratic driving. The officers were en route from one Hope College site to another college-owned site at the time of defendant’s arrest, and none of the driving observed by the officers that led to the stop took place on or adjacent to Hope College property. Defendant concedes that the officers’ observations about defendant’s driving and actions on the day in question would have allowed a legal traffic stop by lawful police officers.
Cisler and Wolters were deputized by the Ottawa County Sheriff and certified as police officers after completing a training course required of all state police officers offered by the Michigan Law Enforcement and Training Council. The officers’ status as deputy sheriffs was in effect at the time of the arrest. Hope College hired, paid, and supervised Cisler, Wolters, and other officers of the college’s public safety department. The Ottawa County Sheriff exercised no supervision over the department or the officers in question.
The parties further stipulated that Hope College is a private institution affiliated with the Reformed Church of America, that the Board of Directors of Hope College must include a certain number of ordained ministers, that a certain number of the directors are elected by the Synod of the Reformed Church, and that Hope College holds itself out as a Christian college in printed material and public information.
In the district court, defendant filed a motion to suppress the evidence arising from the arrest and to dismiss the OUIL case against him, arguing that the Hope College Public Safety Department and its officers were not authorized to make traffic stops and arrest individuals off Hope College property and that to do so violated the Establishment Clauses of the Michigan and United States Constitutions. The district court denied defendant’s motion and, following a bench trial, found defendant guilty of the OUIL offense and suspended his driver’s license for six months.
On appeal, the Ottawa Circuit Court, Edward R. Post, J., in a ten-page written opinion affirmed the district court’s decision denying defendant’s motion to suppress and the court’s subsequent conviction of defendant. We granted defendant’s application for leave to appeal.
n
STANDARD OF REVIEW AND STANDING
Interestingly, defendant admits that he “was a drunk driver, an admitted nemesis on the road, to the public, and to himself,” and he “does not claim that an injustice was done in this case . . . .” However, defendant contests the legal authority of the Hope College officers to make the arrest. Defendant argues that the stop and the resulting arrest were unlawful because the stop was not made on college property and was therefore outside the scope of the Hope College officers’ jurisdiction. Defendant further contends that the Ottawa County Sheriff did not have the requisite statutory authority to appoint the Hope College public safety officers as general interest deputies, because they were neither compensated by a governmental unit nor directly under the government’s control or supervision. We disagree.
Our standard of review of a lower court’s ruling with respect to a motion to suppress is set forth in People v Marsack, 231 Mich App 364, 372; 586 NW2d 234 (1998):
In general, a trial court’s [factual] findings at an evidentiary hearing are reviewed for clear error. However, a trial court’s ruling on a motion to suppress the evidence is reviewed under the de novo standard for all mixed questions of fact and law, and for all pure questions of law.
See also People v Nelson, 443 Mich 626, 631, n 7; 505 NW2d 266 (1993), and People v Goforth, 222 Mich App 306, 310, n 4; 564 NW2d 526 (1997).
Questions of law are reviewed de novo. City of Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 487; 608 NW2d 531 (2000). Statutory interpretation is a question of law that is subject to review de novo by this Court. Rose Hill Center, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997). In Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d 70 (2000), our Supreme Court discussed the principles of statutory construction, stating:
In examining a statute, it is our obligation to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). One fundamental principle of statutory construction is that “a clear and unambiguous statute leaves no room for judicial construction or interpretation.” Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993). Thus, when the Legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need for judicial construction; the proper role of a court is to apply the terms of the statute to the circumstances in a particular case. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). Concomitantly, it is our task to give the words used by the Legislature their common, ordinary meaning. MCL 8.3a; MSA 2.212(1).
As a preliminary matter, we reject the prosecution’s argument that defendant lacked standing to object to the appointment of the deputies or the remuneration, if any, that the sheriff and the comity board of commissioners provided the deputies. Defendant chai lenged his arrest as being an arrest without legal authority and in violation of the United States and Michigan Constitutions, which challenge necessarily entailed a review of the process concerning the appointment of deputy sheriffs. Defendant had a sufficient interest at stake, i.e., not having a criminal conviction with accompanying license suspension and fines, to provide defendant with standing to challenge the appointment process. See Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001). See also Lujan v Defenders of Wildlife, 504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992).
m
MICHIGAN STATUTES
The office of county sheriff is constitutionally created, Const 1963, art 7, § 4, and the duties and authority of the sheriff are established by statute, MCL 51.68 et seq. Capitol City Lodge 141, FOP v Meridian Twp, 90 Mich App 533, 539; 282 NW2d 383 (1979). One of the powers provided to each sheriff by the Legislature is the power to appoint deputies to assist the sheriff in enforcing state law. MCL 51.70 provides in pertinent part:
Each sheriff may appoint 1 or more deputy sheriffs at the sheriff’s pleasure, and may revoke those appointments at any time. Persons may also be deputed by a sheriff, by an instrument in writing, to do particular acts, who shall be known as special deputies and each sheriff may revoke those appointments at any time.
Defendant acknowledges the broad authority of a sheriff to appoint deputies pursuant to MCL 51.70 and he “do[es] not question that the Hope officers have the power to protect the special interests of Hope College.” The stipulation of fact signed by the parties indicates that the officers were “appointed special deputies by the Ottawa County Sheriff.”
The crux of defendant’s argument is that Officers Cisler and Wolters were acting as general interest deputies and the Ottawa County Sheriff had no authority to appoint employees of a private college as deputy sheriffs with full arrest powers extending beyond campus property to violations of state law on public streets. Defendant maintains that “[t]he entire legislative scheme shows that law enforcement officers are to be paid for and supervised by public bodies if they are not protecting the property and special private interests of their employer.” According to defendant, to hold otherwise would permit a sheriff to “create a private police force without any public restraint or control.”
We initially note that MCL 51.70 does not expressly limit a sheriff's authority to deputize individuals to only county employees or persons employed by a particular agency. In support of his argument, defendant nonetheless cites two statutes that purportedly place limitations on the sheriffs power to appoint deputies under the present circumstances. Defendant first relies on MCL 45.401, which provides in pertinent part:
The county board of commissioners of each county in this state may direct the payment to the sheriff, under-sheriff, and deputy sheriffs and to the county clerk, county treasurer, register of deeds, and their deputies out of the general fund in the treasury of the county, salaries as the board considers proper .... The salaries shall be compensation in full for all services performed by the sheriff, under-sheriff, and deputy sheriffs ....
Defendant also maintains that the Ottawa County Sheriffs ability to appoint Cisler and Wolters as deputies is limited by MCL 45.405, which states in relevant part:
The sheriff shall appoint an under-sheriff and may, in his discretion, appoint such deputy sheriffs as may be provided for by the board of supervisors. The board of supervisors ... is hereby empowered to hear, determine and allow the claims of the sheriff and his deputies .. . who receive a salary by virtue of this act, for any money actually expended by them in pursuance of their official duties, the same as other claims against the county.
Defendant argues that the above statutes require that the sheriff and deputies be paid either by fees or by a salary from a county’s general fund in lieu of fees and allow the appointment of deputies only as provided for by the county board of supervisors. Defendant contends that Officers Cisler and Wolters could not be authorized as deputies because Hope College paid their salaries and no compensation was provided by Ottawa County. This was, according to defendant, an improper delegation of the sheriff’s powers to a private nongovernmental agency.
However, we hold that defendant misconstrues the plain language and underlying purpose of these statutes, both of which are directed to matters of compensation of sheriffs and their deputies. MCL 45.401 merely addresses a possible source, the general fund, from which a county board of commissioners may pay sheriffs and their deputies, and it establishes the authority of the board to set appropriate salaries for these positions. The statute does not state, either expressly or implicitly, that only those paid out of the general fund are authorized deputies. Further, the language of MCL 45.401 is not mandatory, in that it states that salaries may be paid from the general fund. The county board of commissioners can, and does, exercise budgetary control over the sheriff. However, while MCL 45.401 may, in practical terms, impose budgetary constraints on the number of deputies that can be appointed and their compensation, it does not otherwise limit the Ottawa County Sheriff’s authority pursuant to MCL 51.70 to appoint the Hope College officers as deputies and does not require that such deputies be paid employees of the county. Defendant’s argument in this regard is therefore without merit.
Defendant has not sufficiently elaborated his argument concerning how MCL 45.405 precludes the appointment of the Hope College officers as deputies. Issues insufficiently briefed are deemed abandoned on appeal. Palo Group Foster Care, Inc v Dep’t of Social Services, 228 Mich App 140, 152; 577 NW2d 200 (1998); Dresden v Detroit Macomb Hosp Corp, 218 Mich App 292, 300; 553 NW2d 387 (1996). In any event, MCL 45.405, like MCL 45.401, addresses the element of financial control that the county board of supervisors may exercise over the sheriff and his office and the practical budgetary limitations that may limit the number of deputies who are employed and paid by the county. MCL 45.405 does not expressly or implicitly prohibit the sheriff from appointing deputies such as Cisler and Wolters, who are not compensated by the county, as deputy sheriffs with full, albeit supervised, arrest powers. Moreover, this statute complements MCL 51.70 to the extent that it allows the sheriff to make appointments “in his discretion.”
In a related argument, defendant maintains that the law enforcement powers of the Hope deputies are limited to the private interests of their employer, Hope College, pursuant to MCL 45.406, which con fers on the sheriff the authority to appoint deputies to protect private interests and states that deputies so appointed shall receive no fees from the county for those services. Defendant contends that the officers in question, neither authorized nor paid for by the county, exceeded the scope of their authority in enforcing the general law on property not controlled by their employer. Defendant contends that
if the sheriff can appoint limitless deputies who are not controlled by the public, there would be no need for MCL 45.406... or the statute authorizing four-year public colleges to form police departments, MCL 390.1511... or authorizing railroad police to enforce general law while on duty, MCL 462.377 ... or giv[ing] police powers to private security guards while on their employer’s premises, MCL 338.1080____
However, there is no evidence in this matter that the Hope officers were deputized pursuant to MCL 45.406 or for the limited puipose of protecting the private interests of Hope College. In any event, contrary to defendant’s contention, we conclude that this statute expands, rather than constricts, a sheriff’s overall authority to appoint deputies. It grants to a sheriff the discretionary authority to appoint deputies to protect private as well as public interests, with the specification that deputies appointed for this purpose are not to be paid by the county. We do not construe MCL 45.406 as a limitation on the sheriff’s ability to ap point deputies who, as we have already concluded, need not necessarily be paid by the county.
We find unpersuasive defendant’s argument that police officers employed by four-year public colleges and universities are specifically authorized to act as general police officers under MCL 390.1511 and “if the Legislature wanted private schools to have the same authority, it would have said so.” “The purpose of statutory interpretation is to give effect to the intent of the Legislature.” People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). In the case at hand, the plain language of MCL 51.70 allows the sheriff complete discretion in appointing who will be a deputy. There is no requirement that a county sheriff appoint campus police, railroad officers, or security guards as deputies. In fact, very few security officers are deputized. The Legislature presumably recognized this and allowed such entities, through the above statutes, to form their own police or security departments with police powers independent of the sheriff. However, this in no way implicitly limits the ability of the sheriff to deputize these officers if he so desires.
From a public policy standpoint, as noted by amicus curiae Michigan Sheriff’s Association, “[i]n almost all Michigan counties, resources for law enforcement are stretched to the limit. Few, if any, Michigan counties have the luxury to add more law enforcement officers to their budgets without seeking additional revenue from the public they serve.” Deputizing law enforcement officers who are not county employees extends law enforcement without increasing a county’s costs in so doing. While it is true that a county board of commissioners may restrict, for financial reasons, the number of county-employed deputies hired by the sheriff, it also is true that the county cannot dictate whom the sheriff may choose to deputize.
We therefore hold that the above statutes relied on by defendant do not preclude the Ottawa County Sheriff from appointing employees of a religiously affiliated college as deputy sheriffs with full arrest powers extending to violations of state law on public streets. Defendant’s fear that our statutes, if so construed, in effect permit the sheriff in this case to create a “private” police force under no public control, is baseless. Those individuals who are deputized by a sheriff are first and foremost bound by the confines of the law and serve at the sheriff’s pleasure. The sheriff, in turn, stands publicly accountable for any abuse of his authority. Defendant’s argument is therefore without merit.
IV
THE NATL UNION DECISION
Defendant’s additional reliance on Nat’l Union of Police Officers Local 502-M, AFL-CIO v Wayne Co Bd of Comm’rs, 93 Mich App 76; 286 NW2d 242 (1979), as support for the proposition that a sheriff may delegate his law enforcement powers only to subordinate governmental agencies, and not to private agencies, is misplaced. In Nat’l Union, id. at 84, this Court addressed “the question whether the collective bargaining requirements of pera [the public employment relations act, MCL 423.201 et seq.] impliedly authorize a sheriff to enter into a collective bargaining agreement empowering the arbitrator of employee grievances to modify the sheriff’s order reassigning a deputy to duties not involving law enforcement powers upon finding the deputy guilty of misconduct.” The Nat’l Union Court held that although the sheriff’s power to hire, fire, and discipline “is not absolute” and may be limited by the pera,
the matter of which of his deputies shall be delegated the powers of law enforcement entrusted to him by the constitution is a matter exclusively within his discretion and inherent in the nature of his office, and may neither be infringed upon by the Legislature nor delegated to a third party....
We therefore conclude that the legislative delegation of the executive police power to the sheriff may not be limited by a collective bargaining agreement as authorized by pera, but remains vested exclusively in the sheriff. This being so, the arbitrator exceeded his authority under the contract in ordering the sheriff to restore plaintiff McKeon’s law enforcement powers before the sheriff, in the exercise of his discretion, was prepared to do so. . . .
... We limit our holding to this: that the power to delegate the law enforcement powers entrusted to him [the sheriff] by our constitution is vested exclusively in the sheriff, and may not be bargained away or interfered with by any agency or individual. [Id. at 89-90 (citations omitted).]
Contrary to defendant’s contention, the above holding does not suggest that a sheriff may delegate his powers only to governmental agencies. Moreover, we note that the Nat’l Union Court did not expressly address the distinction between delegating to private versus public agencies.
Defendant nonetheless points to the following language from Nat’l Union in support of his argument:
[I]t may be said that the sheriff’s powers and duties comprise a part of the police power of the state, which may be delegated to subordinate governmental agencies or divisions, but may not be otherwise delegated or bargained away, being an inherent attribute of sovereignty. [Id. at 82.]
However, addressing defendant’s citation of what it correctly deemed to be dicta, the circuit court herein answered:
In so stating, the National Union Court cited Justice Smith’s dissenting opinion in [People v] Robinson, [344 Mich 353, 357; 74 NW2d 41 (1955)] supra. In Robinson, Justice Smith addressed the issue whether the sheriffs department can bargain away to a private profit corporation its police powers. However, there is an important distinction between the facts raised by Justice Smith in his dissent in Robinson and the facts presented in this case. Here, the sheriff is not appointing Hope College itself to perform police functions. Instead, the sheriff has appointed individuals to assist him in enforcing the laws of the state. In this case, power flows directly from the sheriff to his individuals’ [sic] appointments [sic], not to a corporation. The sheriff does not relinquish any of his statutory authority in the process. Most important, the sheriff does not delegate his right to appoint and remove deputies.
Justice Smith stated that “[w]e know nothing of the qualifications imposed by the directors of the private corporation in their selection of ‘officers.’ ” Robinson, supra at 358. He asked the question, “how do its bylaws square with our great constitutional principles?” Justice Smith’s concerns are not applicable in the instant case. First, the Hope officers were trained and certified by the State, not some private commercial corporation. Second, although they may be paid by Hope College, the source of the officers’ authority to enforce state law derives directly from the sheriff who retains the ultimate power and authority to dismiss the deputy sheriffs at will. Although the deputy sheriffs in this case do not answer directly to the Sheriff on a daily basis, the Sheriff’s ability to unilaterally and without cause revoke the officers’ status as deputy sheriffs is sufficient control over the deputies to ensure that they follow state and constitutional law. The deputy sheriffs do not have super pow ers, nor have they infringed on personal liberties in this case. Furthermore, Hope College is not the exclusive enforcer of the laws of the state; the sheriff’s department in this case retains its law enforcement power and authority. Unlike this case involving the Hope officers, whether the sheriff had ultimate control over the employees of the contracting corporation in the Robinson case is not at all clear, which further distinguishes the two from the instant case. [Emphasis in original.]
We agree with the sound reasoning of Ottawa Circuit Judge Post and conclude that this Court’s decision in Nat’l Union in no manner detracts from the authority of the Ottawa County Sheriff to appoint the Hope College public safety officers as deputies. As the trial court noted, although Cisler and Wolters are paid employees of Hope College, the sheriff retains the power to dismiss the Hope College officers from their position as deputy sheriffs. Moreover, pursuant to the deputy sheriff affidavit signed by Cisler and Wolters, any time the officers acted to enforce the general law outside the confines of campus property, the action was required to be authorized by the sheriff’s department unless an emergency was involved and, in that instance, the officer was required to forward a report to the sheriff within seventy-two hours. There is no supporting documentation suggesting that the Hope College officers may enforce any college directive, dictated by school personnel, against members of the public off campus, and in fact the evidence indicates that the officers acted within the confines of their authority in arresting defendant. The stop and arrest of an obviously intoxicated driver reasonably could be considered, under the circumstances, to be an emergency situation.
In sum, we conclude that it is permissible under state law for the Ottawa County Sheriff to appoint Hope College public safety officers as deputy sheriffs with the power and authority to enforce the laws of the state on public property.
v
THE ESTABLISHMENT OF RELIGION CLAUSES
Next, we decide whether these appointments are unconstitutional. In yet another issue of first impression, defendant argues that the use of employees of a religiously affiliated college as deputies violates the Establishment of Religion Clause of the First Amendment of the United States Constitution and art 1, § 4 of the Michigan Constitution. According to defendant, using the employees of a religiously affiliated college as deputies has the primary effect of improperly advancing religion because “knowing their paycheck comes from a Christian college could greatly affect the [officers’] actions,” and “[a]llowing a Christian college to become a public police force is an excessive entanglement.”
Issues of constitutional law are reviewed de novo. People v Stevens, 460 Mich 626, 631; 597 NW2d 53 (1999); People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998); In re Carey, 241 Mich App 222, 226; 615 NW2d 742 (2000).
In Porth v Roman Catholic Diocese of Kalamazoo, 209 Mich App 630, 634; 532 NW2d 195 (1995), this Court noted the constitutional basis of the First Amendment’s Establishment Clause:
The First Amendment of the United States Constitution, which is applicable to the states pursuant to the Fourteenth Amendment, US Const, Am XIV, Cantwell v Connecticut, 310 US 296; 60 S Ct 900; 84 L Ed 1213 (1940), provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Our Michigan Constitution also contains a Free Exercise Clause, Const 1963, art 1, § 4. See, generally, Alexander v Bartlett, 14 Mich App 177, 181; 165 NW2d 445 (1968).
The Michigan Constitution specifically provides:
Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief. [Const 1963, art 1, § 4.]
When scrutinizing challenged legislation or official conduct to determine whether it violates the First Amendment, the United States Supreme Court has “repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area.” Lynch v Donnelly, 465 US 668, 679; 104 S Ct 1355; 79 L Ed 2d 604 (1984), citing Tilton v Richardson, 403 US 672, 677-678; 91 S Ct 2091; 29 L Ed 2d 790 (1971). Nevertheless, the United States Supreme Court has most often utilized the three-pronged test set forth in Lemon v Kurtzman, 403 US 602, 612-613; 91 S Ct 2105; 29 L Ed 2d 745 (1971), in discerning unconstitutional government action. According to the so-called “Lemon test,” “[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” Id. (citations omitted). See also McLeod v Providence Christian School, 160 Mich App 333, 345-346; 408 NW2d 146 (1987). If the government action, as applied, violates any one prong of the Lemon test, it is unconstitutional. Edwards v Aguillard, 482 US 578, 583; 107 S Ct 2573; 96 L Ed 2d 510 (1987).
Despite continuing debate regarding whether the Lemon test is the appropriate yardstick by which to measure Establishment Clause jurisprudence, and although this Court has noted that Michigan’s Establishment Clause differs from its federal counterpart and may afford additional protection to the free exercise of religion, given its apparent viability we choose to apply the Lemon test here in evaluating defendant’s constitutional challenges.
It is first necessary to clarify the governmental action at issue in the present case. We conclude that the governmental action is not the statute, MCL 51.70, itself, but the application of that statute whereby public safety officers, employed, paid, and supervised by a private religious institution, are deputized by the sheriff.
Defendant herein concedes that the underlying purpose of deputization of the officers in question is law enforcement, which is secular in nature. Indeed, our own review of the deputization at issue indicates no intent on the part of the government to either aid, promote, restrict, hinder, or otherwise affect religion or any religious organization. As the circuit court correctly noted,
The governmental action at issue here does [have a secular purpose], i.e., law enforcement. The police function is clearly an attribute inherent in sovereignty. The sheriff appoints deputies under MCL 51.70; MSA 5.863 to assist him or her in enforcing the laws of the state. The statute is neutral on its face, making no reference to religious affiliation or nonaffiliation. The statute itself is nonideological and there is no contention that it is applied in any biased fashion with regard to religious affiliation. The only requirement to become a deputy sheriff, according to the stipulated facts, is to receive training and certification by the state.
Thus, resolution of the Establishment Clause issue focuses on the second and third prongs of the Lemon test, i.e., whether the principal or primary effect of the challenged state action either advances or inhibits religion and whether there is excessive entanglement between church and state.
In its well-reasoned opinion, the circuit court ruled as follows regarding application of the second and third prongs of Lemon to the present circumstances:
[U]nder the effect prong of the Lemon test, this Court must determine whether the principal or primary effect of the challenged state action either advances or inhibits religion. This Court finds that it does neither. There is no contention in this case that the officers are using their positions as deputy sheriffs to proselytize for the Church. Further, there is no claim that the Hope officers are using their positions as deputy sheriffs to enforce private or religious laws. Likewise, there is no contention that the officers are using their police powers to infringe on religious liberties. No assertion had been set forth that appointments of the individual deputies have been made with regard to the sectarian or non-sectarian disposition of the officer. Accordingly, this Court finds that any contention by defendant that appointing Hope officers as deputy sheriffs has the primary effect of aiding the religious purposes of the church-related college is without merit. Accordingly, this Court finds that the second prong of the Lemon test has not been violated.
Finally, this Court addresses the third prong of the Lemon test: whether the state action has fostered excessive entanglement between church and state. The Court in Lemon points out that there is no requirement of total separation between church and state. Lemon, supra, 403 US at 614. Some relationship between government and religious organizations is inevitable. Id. . . .
With respect to the character and purpose of Hope College, the parties agree that it is a college affiliated with the Christian Reformed Church in America. Hope College submits in its brief that its puipose is to educate students in a variety of secular disciplines and although Hope College has a religious affiliation, religious indoctrination is not a substantial purpose or activity of the college.
. . . [T]his Court finds that the character and purpose of Hope College, although it is affiliated with the Reformed Church in America, weighs against a finding of excessive entanglement between church and state. There are no facts before this Court which would cause it to find otherwise.
Next, the nature of the “aid” provided Hope College is sectarian. The “aid” consists of allowing Hope College to hire its own security officers for the main purpose of patrolling its private property to promote the safety of its students and employees. Because the officers are deputized, they are able to enforce not only the school’s private rules, but may also enforce the laws of the state on Hope’s campus, as well as on public property. However, patrolling public streets is merely incidental to their primary purpose of law enforcement on Hope’s campus. Regardless, the nature of the “aid” in this case is provided on a nonideological basis. Defendant does not contend that deputies are chosen based on religious or nonreligious affiliations. The only conditions required of the deputies include training and certification by the state. . . . The nature of state aid in this case weighs against a finding of excessive entanglement of church and state.
Finally, an analysis of the resulting relationship between the religious authority and the government establishes that there is no excessive entanglement. In fact, there is surprisingly little contact or coordination between Hope College and the sheriff’s department. Notably, defendant has not presented any facts establishing any contact at all, aside from the initial training and certification. Hope College hires, fires, supervises and directs its officers. Although the sheriff retains the statutory authority to unilaterally fire the Hope officers at will, there does not appear to be any active involvement between Hope College and the sheriffs department. Accordingly, this Court concludes, after its analysis of the three factors that constitute the entanglement prong of the Lemon test, that there is no excessive entanglement between church and state in this case.
We agree with the circuit court’s analysis and adopt it as our own. The principal or primary effect of the governmental action in the present case does not advance or inhibit religion. The potential constitutional danger is that the Hope College officers would impose, either intentionally or inadvertently, their personal religious beliefs (or those of the college) on the general public—the danger being the effect of the religious beliefs on the officers’ actions when the officers act outside the jurisdiction of Hope College. We conclude that danger is minimal. Although a Hope College officer may be affected to a degree by relig ious considerations in making discretionary decisions, ultimately the officer, acting in public under appointment as a deputy sheriff, can only enforce the laws of Michigan, is bound by the laws of Michigan, and, off campus, cannot enforce any other laws or rules such as those promulgated by Hope College. Any attempt by a Hope College officer to step outside those legal limits would result in disciplinary action, legal action, or the dismissal of any improper arrest. In fact, no evidence was presented in this case indicating that Cisler and Wolters were significantly influenced in the performance of their duties by doctrine of the Reformed Church.
Further, the primary benefits that flow from appointing the Hope College officers as deputies are strictly secular in nature. Private institutions, the general public, and the state are all benefited by having increased law enforcement capabilities and the consequent protection of persons and property. Thus, we agree with the circuit court that the second prong of the Lemon test has not been violated.
As the circuit court noted, the third prong of the Lemon test concerns whether the governmental action fosters excessive governmental entanglement with religion, requiring an examination of the character and purpose of institutions that are benefited, the nature of the aid that the state provides, and the resulting relationship between the government and the religious authority. Lemon, supra at 615.
As stipulated by the parties, Hope College is a private college that, although affiliated with the Reformed Church in America, has as its purpose the education of students in a variety of secular disciplines. It is well established that in order to be deemed a religious institution for First Amendment purposes, the religious character of the institution must be “so pervasive that a substantial portion of its functions are subsumed in the religious mission.” Hunt v McNair, 413 US 734, 743; 93 S Ct 2868; 37 L Ed 2d 923 (1973). Even “formal denominational control over a libera! arts college does not render all aid to the institution a violation of the Establishment Clause.” Id. at 746, n 8.
In Tilton v Richardson, supra at 685, the United States Supreme Court addressed an Establishment Clause challenge and noted that in contrast to students in elementary and secondary church-related schools, college students are less impressionable and less susceptible to religious indoctrination, and that “by their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influences by virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic freedom and seek to evoke free and critical responses from their students.” In Tilton, the Court concluded that all four universities involved therein receiving government aid, although governed by Catholic organizations and populated by predominantly Catholic faculties and student bodies, were “institutions with admittedly religious functions but whose predominant higher education mission is to provide their students with a secular education.” Id. at 687.
In the case at hand, although Hope College is closely affiliated with a religious denomination, the record indicates it neither functions as a religious governing body nor as a church and does not subordinate secular education to religious doctrine. It is therefore not a religious institution within the meaning of the First Amendment. Consequently, the mandate of the United States Supreme Court prohibiting a state from delegating an important discretionary governmental power to a religious institution or sharing such power with a religious institution is not applicable here. Compare Larkin v Grendel’s Den, Inc, 459 US 116, 127; 103 S Ct 505; 74 L Ed 2d 297 (1982).
Although the remaining entanglement factors are rendered inconsequential in light of the preceding conclusion, we nonetheless note that the only discernible “aid” to Hope College would be the authority granted to the officers to enforce state laws on campus, and in Tilton, supra at 687, the Court stated:
The entanglement between church and state is also lessened here by the nonideological character of the aid that the Government provides. Our cases . . . have permitted church-related schools to receive government aid in the form of secular, neutral, or nonideological services, facilities, or materials that are supplied to all students regardless of the affiliation of the school that they attend.
In the present case, the “aid”—authority to enforce state laws—is secular and nonideological in nature and serves not as a means of protecting or advancing a religious interest, but rather as a neutral vehicle for the protection of the safety of all citizens.
Finally, the resulting relationship between the government and Hope College because of the deputization of the officers does not support a finding that there is excessive government entanglement with religion. As the circuit court noted, Hope College hires, fires, supervises, and pays the officers, and for all practical purposes, “has surprisingly little contact” with the sheriff. The officers could exercise their powers as deputy sheriffs off campus only if authorized by the sheriffs department or in an emergency.
Having evaluated defendant’s constitutional claims pursuant to the three-pronged Lemon test, we find no constitutional violation. Under the present circumstances, we hold that the sheriff’s appointment of employees of a religiously affiliated college as deputy sheriffs with full arrest powers extending to violations of state law on public streets does not offend the Establishment Clauses of the United States or Michigan Constitutions.
VI
CONCLUSION
For the above reasons, the circuit court correctly affirmed the decisions of the district court denying defendant’s motion to suppress and finding defendant guilty of operating a vehicle while under the influence of intoxicating liquor.
Affirmed.
The deputy sheriff affidavit signed by the officers in question does limit their authority off campus, providing in pertinent part:
That I shall execute the powers of Deputy Sheriff to enforce the general laws only when specifically authorized to do so by a representative of the Ottawa County Sheriffs Department and/or Ottawa County Central Dispatch. I understand, however, that when acting outside my jurisdiction, I may execute law enforcement authority as a Deputy Sheriff without prior authorization, if emergency circumstances preclude obtaining authorization to execute the powers of Deputy Sheriff. In every such circumstance which results in a physical arrest, I will reduce the facts and circumstances surrounding my actions to writing and forward the writing to the Sheriff within 72 hours of the circumstance.
At trial, defense counsel stated:
Your Honor, they’re—they’re trying to act as general interest deputies, and that would be what they were doing here. I think the only authority would be to be special interest deputies to protect the private interest. I think they can be appointed as special interest deputy, but not a general interest deputy. In this instance, they were acting as a general interest deputy.
Cf. Capitol City Lodge 141, FOP, supra at 541-542, cited by defendant, which confirms that while budget concerns rest with the commissioners or contracting municipality, the statutory authority of the sheriff to appoint deputies is not otherwise affected or restricted (“When a township calls upon the county sheriff to provide special police protection pursuant to MCL 41.181; MSA 5.45(1) its right of control over the sheriff is limited to the financial aspects of this relationship. The deputies utilized to provide police protection are solely responsible to the sheriff, thus prohibiting the sheriff from becoming an agent of the township since the township has no right to control the sheriffs direction of these deputies.”).
See n 1, supra at 362.
MCL 45.406 provides:
In times of emergency the sheriff, upon order of the circuit court for the county, made upon the petition of the sheriff or prosecuting attomey of the county, showing the necessity therefore, may appoint for such day or days as may be required, 1 or more additional deputies, who, for services actually rendered, shall receive an amount as determined by the board of supervisors. . . . The sheriff may also appoint deputy sheriffs to protect private interests, who shall receive no compensation from the county for services on account of such appointment.
See also Fraternal Order of Police, Ionia Co Lodge No 157 v Ben-singer, 122 Mich App 437, 441-446; 333 NW2d 73 (1983).
See, e.g., Wallace v Jaffree, 472 US 38, 68; 105 S Ct 2479; 86 L Ed 2d 29 (1985) (O’Connor, X, concurring); Lee v Weisman, 505 US 577, 644; 112 S Ct 2649; 120 L Ed 2d 467 (1992) (Scalia, J., dissenting); American Civil Liberties Union of Ohio v Capital Square Review & Advisory Bd, 243 F3d 289, 305-306 (CA 6, 2001).
See Forth, supra at 637-638.
See Lamb’s Chapel v Center Moriches Union Free School Dist, 508 US 384, 395; 113 S Ct 2141; 124 L Ed 2d 352 (1993).
Defendant assumes that the Lemon test applies to both his federal and state constitutional claims and has cited no authority to the effect that an alternative test should be applied to his state constitutional claims.
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Per Curiam.
Alice Horton, personal representative of the estate of Marvin Flury (respondent), appeals as of right from the jury’s verdict finding that Marvin Flury assigned all of his rights in Gloria Flury’s estate to petitioner Gerald Flury. Gerald and Elizabeth Flury (petitioners) cross appeal. We affirm.
This case is before this Court for a second time. The facts that preceded the first appeal are set forth in In re Flury Estate, 218 Mich App 211; 554 NW2d 39 (1996). A pertinent portion of those facts is reproduced below:
Respondent [Marvin] is the father of petitioner Gerald Flury and the decedent, Gloria Flury, who died June 13, 1991, leaving a sizeable estate. Petitioners contend that Gloria had written a holographic will leaving everything to Gerald. When the will turned up missing, Gerald, an attorney, visited his elderly estranged father and obtained, among other documents, an executed assignment of his father’s interest in Gloria’s estate. Admission of the lost will was sought by petitioners and contested by respondent. A trial by jury was conducted . . . [and] Gerald, the proponent of the lost will, prevailed. The jury found that a holographic will existed, that it was validly written, and that Gerald was the sole heir. The jury also found that the assignment from respondent to Gerald was without consideration, but was not the result of undue influence and was not executed as a result of actual or constructive fraud. [Id. at 213.]
In the previous case, this Court reversed the decision of the probate court and remanded for a new trial. Id. at 220. In reaching this conclusion, this Court stated that the probate court had improperly admitted evidence concerning Marvin’s poor relationship with his family and that this “likely tainted the jury’s consideration of the assignment issue to [Marvin’s] detriment.” Id. The probate court was instructed to limit this evidence on remand. Id.
During the retrial, the probate court, following this Court’s prior opinion, allowed very few details of the parties’ familial relationships into evidence. The probate court also directed a verdict in favor of respondent with regard to the issue of the holographic will because petitioners failed to produce two witnesses to testify that a holographic will was executed by Gloria. Thereafter, the jury determined that Marvin’s assignment of his estate interest to petitioner Gerald was valid.
Respondent first argues on appeal that the trial court erred in failing to instruct the jury that consideration is a necessary element for a valid assignment. We disagree. Claims of instructional error are reviewed de novo on appeal. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
[W]e examine the jury instructions as a whole to determine whether there is error requiring reversal. . . . 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. We will only reverse for instructional error where failure to do so would be inconsistent with substantial justice. [Id. (citations omitted).]
Respondent relies on Goodrich v Waller, 314 Mich 456; 22 NW2d 862 (1946), for the proposition that consideration is required for an assignment to be valid. In Goodrich the Supreme Court declared that assignments of an inheritable interest in an estate require valid consideration. Id. at 470. In this regard, the Supreme Court stated:
Furthermore, there was no valid consideration for the assignments. No money was paid to plaintiffs, and the record is convincing that they executed the assignments as an accommodation to defendant in the belief that their interests in the Halstead estate were of little, if any, value. . . . While the settlement of family disputes should be encouraged, nevertheless, a valid consideration must be shown for an assignment of an inheritable interest in an estate. There was no consideration for the assignments in question from plaintiffs to defendant. [Id. at 469-470.]
While Goodrich appears to support respondent’s argument in this case, respondent fails to note that the Legislature has since enacted MCL 700.216(7). “[WJhere comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter.” Millross v Plum Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987). MCL 700.216 was part of the Revised Probate Code and it prescribed in detail the course of conduct to pursue when successors wished to alter the wishes of the deceased. Thus, we conclude that at the time this case was decided, MCL 700.216(7) was the controlling law.
MCL 700.216(7) provided:
Subject to the rights of creditors and taxing authorities, competent successors and fiduciaries of minors or incapacitated persons may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent or under the laws of intestacy, in any way that they provide in a written agreement executed by aU who are affected by its provisions. The fiduciary shall abide by the terms of the agreement subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. [Emphasis added.]
“Statutes should be interpreted consistently with their plain and unambiguous meanings.” Stozicki v Allied Paper Co, Inc, 464 Mich 257, 263; 627 NW2d 293 (2001). The plain language of MCL 700.216(7) does not require that consideration be given when an agreement is made regarding the interests, shares, or amounts of an estate. It simply requires a signed writing. For example, in In re Jobe Estate, 165 Mich App 774, 775; 419 NW2d 65 (1988), a brother and sister entered into a written agreement concerning their shares of their mother’s estate. Thereafter, one of the parties claimed that the agreement was procured through undue influence. Id. at 776. However, this Court explained that MCL 700.216(7) allowed for agreements to change the distribution of an estate between heirs. In re Jobe Estate, supra at 776-777. We note that there was no consideration paid in that case and that the validity of the assignment was upheld.
In the instant case, it is uncontested that a writing exists wherein Marvin gave his interests in the estate to petitioner Gerald. There is also evidence of Marvin’s awareness of the approximate worth of Gloria’s estate. Indeed, before being told the actual value of Gloria’s estate, Marvin told his nephew that the estate must be worth around $250,000 because Gloria had Kmart stock and was “tight-fisted.” Moreover, in concluding that the assignment was valid, the jury determined credibility issues in favor of petitioner Gerald and rejected arguments that the agreement was involuntary or that Marvin did not have necessary information disclosed to him. See Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d 733 (1996). We find no error in the probate court’s denial of respondent’s request for an instruction on the issue of consideration and conclude that the assignment was valid.
Respondent further claims that the probate court abused its discretion by allowing petitioners to admit evidence that the Court of Appeals had previously prohibited and classified as prejudicial. As a result of this error, respondent opines that the probate court should have granted her motion for a mistrial. We disagree. “Whether to grant or deny a mistrial is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion resulting in a miscarriage of justice.” Persichini v William Beaumont Hosp, 238 Mich App 626, 635; 607 NW2d 100 (1999). A mistrial should be granted only when the error prejudices one of the parties to the extent that the fundamental goals of accuracy and fairness are threatened. Id. at 635-636; Wischmeyer v Schanz, 449 Mich 469, 481; 536 NW2d 760 (1995).
Respondent argues that the following exchanges during the direct examination of petitioner Gerald require a mistrial:
Q. Let me ask you something. On the date of Gloria’s death, what was her relationship with Marvin Flury?
A. 1 don’t believe—
Mr. Wilson: Your Honor—
The Witness:— spoken in 25 years.
* * *
Q. And what, if anything, did you discuss with [Marvin Flury] at that point?
A. I think I mentioned to him that he and Gloria had never gotten along.
However, respondent fails to explain or rationalize in her appellate brief how these questions and answers rise to the level of requiring a mistrial. Instead, respondent simply concludes that she was entitled to a mistrial. An appellant is not permitted to announce his position and leave it to this Court to rationalize the basis for his claims. Caldwell v Chapman, 240 Mich App 124, 132-133; 610 NW2d 264 (2000).
Nonetheless, we do not find that the questions and answers were unduly prejudicial. It was obvious from the testimony legitimately presented at trial that Marvin had no relationship with Gloria. In fact, Marvin testified that he had only read about Gloria’s death in the paper, failed to attend her funeral, and stated that he never received anything from her and did not want anything. More importantly, in In re Flury Estate, supra at 217, this Court specifically expressed concern over the evidence “scrutinizing” Marvin’s relationship with his ex-wives and other failed relationships with women. The questions and answers at issue in this case did not relate to the highly prejudicial evidence that was expressly condemned by this Court. However, even if the challenged questions and answers were improper, the errors were harmless. The jury heard information that was already apparent from the legitimate record. We further note that after respondent’s motion for a mistrial, there were no more “impermissible” questions or answers.
In light of our disposition of this case, we decline to address the issues raised in petitioners’ cross appeal.
Affirmed.
We note that respondent Marvin Flury is deceased. By order of the trial court on November 18, 1998, Marvin’s estate was substituted in his place with Alice Horton, also known as Irene Horton, his friend, acting as the personal representative.
Respondent also raises the argument in her appellate brief that the trial court improperly refused to instruct the jury that there is a presumption of undue influence where there is a fiduciary relationship. However, this issue is waived on appeal because it was not raised in the statement of questions presented. Wallad v Access BIDCO, Inc, 236 Mich App 303, 309; 600 NW2d 664 (1999); MCR 7.212(C)(5). Similarly, respondent’s claim that the evidence supported a finding of fraud or undue influence is not properly before this Court. Id.
MCL 700.216(7) was in effect at the time of trial in this case. It was subsequently repealed, effective April 1, 2000. MCL 700.3914 now addresses the issue of agreements between heirs and is similar in substance. | [
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Per Curiam.
Defendant appeals by leave granted from an order denying defendant summary disposition in this case alleging breach of an insurance contract. We reverse and remand for entry of an order granting summary disposition for defendant.
I. FACTS
This case concerns a fire insurance policy. The policy insured against loss and damage to plaintiff’s residence located at 14567 Mettetal, Detroit. The policy term was from July 31, 1992, to July 31, 1993.
In late May 1993, a fire occurred at plaintiff’s residence. Thereafter, plaintiff filed a claim for benefits under the policy. Defendant began its investigation of the claim. As part of that investigation, defendant notified plaintiff that she was to submit to an examination under oath and was required to provide defendant with several documents related to her ownership of the residence. It is undisputed that plaintiff did not attend any of the examinations defendant scheduled for August 11, 1993, August 26, 1993, and October 20, 1993. Plaintiff also acknowledges that she did not provide any of the documents requested by defendant. Plaintiff claims that her counsel advised her not to answer questions from defendant until after any criminal investigation into her involvement in the fire was completed.
Defendant claims that on November 5, 1993, it sent a letter to plaintiffs counsel specifically denying plaintiff’s claim for benefits. In May 1994, defendant closed its file in regard to plaintiff’s claim and, there after, pursuant to standard company policy, destroyed the contents of the file.
Plaintiff was eventually charged with arson in connection with the fire at her residence, but was found not guilty. Thereafter, in March 1996, plaintiff telephoned defendant’s claim examiner, informed the examiner that she had been absolved of criminal liability, and inquired regarding when her claim for benefits would be paid. Defendant’s agent informed plaintiff during the telephone conversation that defendant would not be paying the claim. According to defendant, plaintiff did not take any further action in regard to her claim until April 1999, when she wrote a letter again demanding payment.
Plaintiff filed the present suit alleging breach of the insurance contract on May 24, 1999. Defendant brought a motion for summary disposition under MCR 2.116(C)(7) and (10), which was denied by the trial court. This Court granted defendant leave to appeal that decision.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Beaty v Hertzberg & Golden, PC, 456 Mich 247, 253; 571 NW2d 716 (1997). When reviewing a grant of summary disposition pursuant to MCR 2.116(C)(7), this Court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties. MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The contents of the complaint are accepted as true unless contradicted by documentation submitted by the moving party. Id. A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden, supra at 120. The trial court must consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the nonmoving party. Maiden, supra. The moving party is entitled to a judgment as a matter of law when the proffered evidence fails to establish a genuine issue regarding any material fact. Id.
m. ANALYSIS
A. STATUTE OF LIMITATIONS
On appeal, defendant first argues that the trial court erred in denying summary disposition under MCR 2.116(C)(7) because plaintiffs suit is barred by the applicable one-year period of limitation. MCL 500.2833 provides, in pertinent part:
(1) Each fire insurance policy issued or delivered in this state shall contain the following provisions:
* * *
(q) That an action under the policy may be commenced only after compliance with the policy requirements. An action must be commenced within 1 year after the loss or within the time period specified in the policy, whichever is longer. The time for commencing an action is tolled from the time the insured notifies the insurer of the loss until the insurer formally denies liability.[ ]
Defendant asserts that because this suit was filed far beyond one year after the November 5, 1993, denial letter, the suit is barred as a matter of law. The relevant date for determining when the limitation period commences following a tolling period after notification of loss is the date the insurer formally denies liability. Saad v Citizens Ins Co of America, 227 Mich App 649, 652; 576 NW2d 438 (1998). Notwithstanding defendant’s assertion that plaintiff’s claim was denied on November 5, 1993, there is no evidence from which we can establish the actual date of denial as a matter of law. According to defendant, the November 5, 1993, letter was sent to plaintiff’s counsel, Paige, by regular mail and certified mail, return receipt requested. Paige has submitted an affidavit in this case denying receipt of the letter and specifying that in November 1993, his office was not located at the address to which defendant sent the letter. Moreover, plaintiff and Paige have claimed that Paige’s representation was limited to criminal matters and did not involve plaintiffs claim for benefits. Plaintiff claims that she never received the November 5, 1993, letter.
Significantly, defendant does not possess the certified mail receipt it claims to have received as the result of mailing the denial letter. Defendant claims that the receipt did exist, but was destroyed along with the rest of plaintiff’s file after the expiration of the one-year period of limitation. Regardless of defen dant’s reason for no longer possessing the receipt, without such a record and in light of plaintiffs and her counsel’s denial of receipt of the letter, we cannot determine, as a matter of law, the date of the defendant’s denial. Therefore, the trial court properly denied defendant’s motion under MCR 2.116(C)(7).
B. WILFUL FAILURE OR REFUSAL TO COMPLY WITH POLICY CONDITIONS
Notwithstanding the failure of defendant’s motion under MCR 2.116(C)(7), we conclude that defendant is entitled to summary disposition under MCR 2.116(C)(10). Defendant argues that the trial court erred in denying summary disposition under MCR 2.116(C)(10) because plaintiff wilfully failed or refused to comply with policy conditions before commencing the present action. We agree.
The “Conditions” section of the policy includes:
4. Your Duties After Loss. In case of a loss to covered property, you must see that the following are done:
* * *
d. as often as we reasonably require:
(1) show the damaged property;
(2) provide us with records and documents we request and permit us to make copies; and
(3) submit to examination under oath, while not in the presence of any other named insured, and sign the same.
It is undisputed that plaintiff did not submit to any of defendant’s requests for an examination under oath and did not provide the documents requested during defendant’s investigation of plaintiff’s claim. Plaintiff asserts that she was exercising her Fifth Amendment rights when she refused to comply with defendant’s requests.
In Thomson v State Farm Ins Co, 232 Mich App 38; 592 NW2d 82 (1998), the defendant insurer argued for dismissal on the basis that the plaintiff did not comply with a policy provision that required him to submit to an examination under oath as a duty after loss. This Court defined the consequence of an insured’s wilful noncompliance with an insurer’s request for an examination under oath. Id. at 45-52. This Court stated that
“wilful noncompliance” in the context at hand refers to a failure or refusal to submit to an [examination under oath] or otherwise cooperate with an insurer in regard to contractual provisions allowing an insurer to investigate a claim that is part of a deliberate effort to withhold material information or a pattern of noncooperation with the insurer.
. . . [T]he burden henceforth is on the insured to demonstrate that the insured has not deliberately withheld material information. This burden will be an extraordinarily difficult one to meet.
... [I]f the noncompliance is wilful, the dismissal must be with prejudice .... [Id. at 50-51, 52, 56 (emphasis in original).]
In the present case, we conclude that despite plaintiff’s claim that her refusal to cooperate with defen dant’s investigation was based on her Fifth Amendment rights, plaintiffs conduct constituted “wilful noncompliance” with the policy provisions, as that phrase was defined in Thomson. As stated by this Court in Phillips v Deihm, 213 Mich App 389, 399-400; 541 NW2d 566 (1995):
The privilege against self-incrimination not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also permits him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. Allen v Illinois, 478 US 364, 368; 106 S Ct 2988; 92 L Ed 2d 296 (1986); In re Stricklin, 148 Mich App 659, 663; 384 NW2d 833 (1986).
However, a party to a civil action who invokes his Fifth Amendment privilege does so to the peril of his claim. See Phillips, supra at 400-401 (holding that the trial court did not violate the defendant’s Fifth Amendment privilege against self-incrimination when it granted summary disposition for the plaintiff on the basis that the defendant did not respond to the plaintiff’s evidence).
Here, plaintiff chose to file her claim for benefits under the policy. Her claim was based on the contract to which she and defendant agreed. The policy contained specific requirements with respect to plaintiffs duties after loss, including that plaintiff provide defendant with documents related to her claim and that plaintiff submit to an examination under oath. Plaintiff cannot avoid the policy requirements that she agreed to with defendant, which she herself triggered by filing her claim, by asserting her right not to be compelled to be a witness against herself. While plaintiff had the right to assert her Fifth Amendment privilege in response to defendant’s requests, she did so to the peril of her claim under the policy. Phillips, supra. We further note that although plaintiff claimed not to have submitted to an examination under oath because of her concern over future criminal charges, she also failed to provide defendant the requested documents despite the fact that the documents concerned plaintiff’s ownership interests in the property and did not tend to incriminate plaintiff. Under these circumstances, we conclude that plaintiff wilfully refused to comply with the policy conditions that she agreed were conditions precedent to any payment of benefits on a claim. Moreover, plaintiffs refusals to submit to an examination under oath and to provide documents requested by defendant were part of a deliberate effort to withhold material information or a pattern of noncooperation with defendant. Thomson, supra at 50-51. Plaintiff’s willful noncompliance with the policy demands dismissal with prejudice. Id. at 56.
Given that conclusion, we need not analyze the merit of defendant’s argument concerning laches. However, we note that we cannot consider defendant’s decision to destroy plaintiff’s claim file pursu ant to its own company policy as a change in condition sufficient to support a claim of laches.
Reversed and remanded for entry of an order granting defendant summary disposition. We do not retain jurisdiction.
It is not clear from the record whether plaintiff or her counsel informed defendant of her reason for not complying with defendant’s requests before filing this suit. Affidavits introduced by defendant suggest that plaintiff did not appear at the scheduled meetings and made no effort to reschedule. Plaintiff’s response to defendant’s motion for summary disposition suggests that defendant was informed that plaintiff did not appear for the scheduled examinations because criminal charges were pending.
According to plaintiff’s deposition testimony, she retained several attorneys at various stages of the proceedings. However, it appears that plaintiff’s former counsel Ray A. Paige was the only attorney retained by plaintiff at the time of defendant’s investigation of the policy claim. Defendant claims to have sent the November 5, 1993, letter to plaintiff, in care of Paige. While plaintiff asserts on appeal that Paige was not her agent with respect to her policy claim, but, instead, represented her only in connection with criminal matters, plaintiff testified during her deposition that she consulted Paige after she received defendant’s first notice of an examination under oath and acknowledged that Paige was authorized to respond to the letters defendant sent in connection with its investigation.
A copy of the letter contained in the lower court file states the following reasons for defendant’s denial of plaintiff’s claim:
1. Contrary to proper demand made, you have failed to render to Michigan Basic Property Insurance Association a properly executed sworn statement in proof of loss setting forth to the best of your knowledge and belief that information required to be so set forth;
2. Contrary to proper demand made, you have failed to submit to an Examination Under Oath;
3. Contrary to proper demand made, you have failed to provide Michigan Basic Property Insurance Association with records and documents requested and permit copying of such documents.
According to defendant, its common practice is to destroy the contents of claim files after the expiration of the applicable one-year period of limitation. See MCL 500.2833(lXq).
The policy at issue in this case contains a provision that is consistent with MCL 500.2833(l)(q3, stating: “No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.”
Defendant does not claim that its examiner’s alleged oral denial of plaintiff’s request for payment during plaintiff’s March 1996 telephone call constituted a “denial” for purposes of the statute of limitations. MCL 500.2833(l)(q).
We note that the criminal charge against plaintiff was not brought until June 1994, approximately eight months after defendant’s final request for an examination under oath.
Our conclusion is not altered by the fact that plaintiff eventually submitted to a court-ordered deposition in this case. Plaintiff’s deposition was not the equivalent of the examination under oath initially sought by defendant given that plaintiff’s questioning was not completed at a time that defendant could make a decision regarding the merit of plaintiff’s claim as the policy required. Also, there is no evidence that the documents defendant requested from plaintiff were ever provided. In fact, plaintiff’s deposition testimony suggests that several of the requested documents disappeared from plaintiff’s possession in March 1996 and cannot be made available to defendant. | [
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Territory of Michigan, to wit—The United States of America to the Marshall of the territory of Michigan: You are hereby commanded that you take Joel Thomas, if to be found within this territory, and him Safely Keep, So that you have his body before our judges at Detroit, on the third monday in September next, to Satisfy Andrew Macison one hundred eighty Six dollars & forty one cents, which were adjudged to the Said Andrew in our Said court before our judges, at Detroit for his damages; and also Sixteen dollars ninety three cents and three fourths of a cent for his costs & charges which in our Said court were adjudged to the Said Andrew; and have there this Writ. Witness Augustus B. Woodward, one of the judges of our Said court, at Detroit, the twentieth day of april, one thousand eight hundred twelve.
Peter Audrain Clk. S.C.T.M. | [
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Territory of Michigan—in the supreme court of the territory of THE TERM OF SEPTEMR IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED SIX-
Territory of Michigan ss—Hugh Pattinson & Richard Pattinson Merchants in Compy at St. Josephs in said Territory towit at Detroit and within the Jurisdiction of this Court by E Brush their Atty complain of Charles Chandonet in Custody of &c In a Plea of trespass on the case for that whereas the said Hugh Pattinson & C° on the twenty six day of October in the year of our Lord one thousand eight hundred four at St. Josephs towit at Detroit aforesaid was possessed of the following goods and chattels towit twelve Barrels of whiskey containing four hundred and twenty Gallons of the value of Eight hundred dollars and one Barrel of Medearl Wine containing thirty seven Gallons of the value of two hundred dollars as of their own proper goods and chattels and being so thereof possessed they the said Hugh Pattinson & C° afterwards towit on the same day and year aforesaid at St Joseph towit at Detroit aforesaid casually lost said goods and chattels out of his hands and possession which said goods and chattels afterwards towit on the same day and year aforesaid at St Josephs towit at Detroit aforesaid came to the hands and possession of the said Charles Chandonet who found the same yet the said Charles knowing the said goods and chattels to be the goods and Chattels of the said Hugh Pattinson & C° and of right to belong and appurtain to the said Hugh Pattinson & C° but contriving and fraudulently intending craftely and subtally to deceive and defraud the said Hugh Pattinson & C° in this respect hath not as yet delivered the said goods and chattels or any part thereof to the said Hugh Pattinson & C° (altho often requested so to do) but he the said Charles Chandonet afterwards towit on the tenth day of November in the year aforesaid at St Josephs towit at Detroit aforesaid converted and disposed of the said Goods and Chattels to his own use to the said Hugh Pattinson & C° their damage of one thousand dollars and therefore they bring suit &c and have Pledges towit Jn° Doe & Richd Roe E Brush Atty
Territory aforesaid ss— Hugh Pattinson & C° put in their place E Brush their Atty ag4 Charles Chadonet in the plea aforesaid.
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IN THE SUPREME COURT FOR THE TERRITORY OF MICHIGAN OF THE TERM OF SEPT AD. I807-
Robert Abbot vs Thomas Jones
in case — Trial & verdict for Pltff—
Reasons in support of motion to arrest verdict—
i1 Because the jury impannelled & sworn to try the issue between the parties, after they retired from the Bar of this Court, to consider upon their verdict, and prior to agreeing upon their said verdict, did without the permission, leave or assent of this Court, did eat victuals and drink spiritous liquors, towit Brandy, whiskey &c
2d Because the jury so impanneled & sworn to try the said issue, after retiring & previous to agreeing upon the same, did converse and hold conversations, with diverse persons, other than the jurors sworn to try sd issue, and without the leave & permission of this Hon1 Court
3d Because the said Jury, so sworn to try sd issue after they retired to their room and in the Charge of the Marshal, to consider upon their verdict, & prior to their agreeing thereon, without the leave and permission of the Court, did leave their said room and separate from each other—
For the causes aforesd and others appearing the deP prays this hon1 Court that the verdict given in by the jury in this cause may be set aside & held for naught and that a new trial may be granted—
Sol Sibley Atty for the DeP
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Territory of Michigan, to wit.
The United States of America to James Abbott, one of the justices assigned to Keep the peace within the district of Detroit— because in the record, and proceedings, as also in the rendition of the judgment of a plaint which was before you, by Summons issued out of your office, on the Sixth day of November one thousand eight hundred Eleven, and made returnable on the twelfth day of the Same month, betwen Thomas Emerson, Joseph Emerson, Stephen Mack, merchants trading at Detroit under the firm of Thomas Emerson and Company, and Joseph Campeau, of Said Detroit, merchant, of a certain action of trespass on the Case, to the damage of the Said Thomas Emerson & Company, as is Said, fifty dollars, which the Said Thomas Emerson & Company demand of Said Joseph Campeau, manifest error has intervened to the great damage of him the Said Joseph Campeau, as we from his Complaint are informed; we being willing that the error, if any there be, Should be corrected in due manner, and that full & Speedy justice Should be done to the parties aforesaid, in this behalf do Command you that if judgment thereof be given, then, under your Seal you openly & distinctly Send the record & process aforesaid, with all things Concerning them, and this writ; So that we may have them before our Supreme Court of the Said territory on the third monday of September next; that the record & process aforesaid, being inspected, we may cause to be done there upon for correcting that error what of right and according to law, and Custom, ought to be done. Witness Augustus B. Woodward, one of the judges of our Said Supreme Court, the thirty first day of January one thousand eight hundred twelve. Peter Audrain elk. S.C.T.M.
filed 8 feby 1812.
[Indorsement]
Territory Michigan, feb. 8th 1812.
Let a writ of error be sealed as within on security being given for 125 dollars & a writ of supersedeas issued on this being signed by two judges.
Woodward judge.
Witherell Judge
Detroit
April 9, 1808
The Honb. A B Woodward
[Case B-i, Paper 1]
Detroit
April 9. 1808.
Sir,
I have been applied to by a gentleman now confined in jail in this place, for my services to obtain his discharge, which can be legally effected, only by a proceeding of Habeas Corpus. I therefore request, that you will make it convenient, to have the case brought before you, at this place, in some short time.
Respectfully
Sir
Your obdt Serv1
Harris H. Hickman
The Honb1 A. B. Woodward
Chief Judge of Michigan
The United States of America to the Marshall of Michigan.
Whereas David Robison has complained to the undersigned, one of the Judges in and over the Territory of Michigan, that he is now unlawfully confined by you;
You are therefore hereby commanded that you have the body of the said David Robison before the undersigned, one of the judges aforesaid, at his chambers, at the house of Jean Batiste Gérome, in the District of Erie, in the Territory of Michigan, on Monday the second day of May, one thousand eight hundred eight, at eleven of the clock in the forenoon, with the day and cause of his caption and detention, and this writ, to do, submit to, and receive, what shall then and there be considered in this behalf.
Witness the undersigned, one of the Judges in and over the Territory of Michigan, this twenty ninth day of April, one thousand eight hundred eight.
Augustus B. Woodward, [seal]
Territory of Michigan ss.
I have the body of David Robison here present, in obedience to the Command of the above Writ, who was committed to prison on the Seventh day of April, in the year of our Lord one thousand eight-hundred eight, on the annexed Warrant of committment. District of Erie second of May, eighteen hundred eight— WM Scott Marshal
Territory of Michigan DISTRICT OF DETROIT To the Marshal of said Territory-
Whereas David Robinson of the City of Detroit was brought before us Two Justices of the peace, this day, by virtue of Warrant Issued to the Marshal to that Effect, for having committed an Affray on Tuesday the 5th Instant, And Whereas the aforesaid David Robinson, when questioned by us concerning the aforesaid Affray, refused to answer, and proceeded to abuse one of the said Justices, by calling him a Liar—Knave, & a Fool and other improper and abusive language, and would not be examined by him, to the evil example of the Spectators then present, and to the subversion of all Law and good Order.—
These are therefore to command you that you take into your custody the Body of the said David Robinson and him safely keep untill he finds security himself in the sum of Five hundred Dollars and his Bondsman in two hundred & fifty—to appear at the next Supreme Court to be holden for said Territory of Michigan, to answer the said Court—touching the abuse aforesaid, and in the meantime to keep the peace towards all the good Citizens of said United States.—
Given under our hands this Seventh day
April at Detroit A. D. 1808
James May J. P. D. D.
Geo. M°Dougall J.P.D.D.
[In the handwriting of Peter Audrain]
[In the handwriting of Augustus B. Woodward]
[In the handwriting of William McDowell Scott]
[In the handwriting of James May] | [
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Territory of Michigan in the supreme court—
to wit
Francis Denoyers alias Fifi complains of Gabriel Godfroy, senior, in Custody of the Marshal &c of a plea of covenant broken For this that whereas, the said Gabriel Godfroy on the thirteenth day of August One thousand Eight hundred and Ten in the District of Detroit and Territory of Michigan, alledging and pretending to be the legal owner and proprietor, in his own right in fee simple of a certain tract of land of three arpents or french acres in front by fifty arpents or french acres in depth, situated and lying upon what is called stoney creek in the District of Erie and Territory aforesd upon the right hand side of said River or Creek going up stream and bounded on the upper side by a lot of land belonging to the said Gabriel and others owners and proprietors of Stony Creek Mills so called, and upon the lower side by land belonging to the heirs or children of the said Gabriel, in front by said stonny creek and in the rear at the end of said fifty acres by the land belonging to the Heirs or children of said Gabriel—The said Gabriel so alledging and pretending to be the legal owner and proprietor of said tract of land above mentioned, and to have full power and authority to sell and convey the same by deed of conveyance thereby to vest in the purchaser thereof an estate in fee simple to hold to such purchaser his heirs and assigns—Whereupon the said Francis believing the representations so made to him by said Gabriel as above stated to be true afterwards, to wit on the same day and year aforesd in the district aforesd for and in consideration of four hundred and fifty, by him paid and stipulated to be paid the said Gabriel as hereinafter mentioned, became the purchaser of said tract of land of and from the said Gabriel Godfroy who then and there did make sale thereof to him the said Francis—and afterwards Towit on the said thirteenth day of August one thousand eight hundred and ten in the District of Detroit aforesd did make sign seal execute and deliver him the said Francis, his certain deed, seald with his seal dated the said thirteenth day of August one thousand Eight hundred and ten, and which said Deed so sealed by sd Gabriel the said Francis brings here into Court, dated the Day and year aforesd. By which sd Deed so made and executed by the said Gabriel as above mentioned, and delivered the said Francis as aforesd. The said Gabriel, did and does Bargain, sell, convey and confirm, unto the said Francis, the above mentioned tract of land of three Arpents or french acres in front by fifty arpents or french acres in depth, situated lying and being bounded in and by sd Deed as is above mentioned, to have & hold said Tract of land to the said Francis, his heirs and assigns forever, by an absolute estate and inheritance thereto and therein the said Gabriel therein and thereby covenant and agreeing to and with said Francis, that he sd Gabriel was legal owner and proprietor of said tract of land so discribed and bounded as above mentioned, and that he the sd Gabriel had right and authority to sell and convey the same to said Francis to hold to him & his heirs as aforesd and further that he the said Gabriel would at all times guarantee the said Francis his heirs and assigns in and to the estate & possession of sd property, in conformity to his the said Gabriels covenants contained in such his said Deed—And the said Francis on his part did engage & promise to pay, in consideration of such sale and conveyance for said tract of land to sd Gabriel the sum of four hundred and fifty dollars lawful money of the United States of America Towit, Two hundred dollars in hand upon the executing of said deed of Conveyance by sd Gabriel the residue, Towit, Two hundred and fifty dollars, during the term of three years—and the sd Francis avers that he did pay the said Gabriel on the day of sealing deed as above, Two hundred dollars, so mentioned in sd deed to be paid down or in hand, To wit in District of Detroit aforesd and in all things complyed with the covenants in sd Deed contained on his part to be performed and the said Francis Denoyers in fact saith that the said Gabriel Godfroy at the time of making the Deed aforesd and the covenants therein contained, was not the legal owner and proprietor, of in and to said tract of land discribed in said Deed so sealed and conveyed by him sd Gabriel to him the said Francis as in and by said Deed the said Gabriel hath covenanted with the sd Francis—nor had the said Gabriel at the time of Executing said Deed any lawful power or authority whatever to sell and convey said tract of land to the said Francis as by his covenant, in sd Deed he hath alledged, nor had the said Gabriel at the time of making said deed, nor at any time thereafter prior to commencing the above action, any power right or authority to insure or secure the said Francis his heirs and assigns in the quiet and peaceable possession of said tract of land, discribed in said Deed according to the covenants of sd Gabriel But the sd Francis saith that at the time the said Gabriel sold said tract of Land to him the said Francis, and on the day and at the time the sd Gabriel executed and delivered the aforesd deed, the said tract of land therein mentioned and discribed, was and still is the property and estate of another person, Towit the children of the said Gabriel, and not the property and estate of the sd Gabriel as in and by said Deed he hath covenanted with sd Francis—Wherefore the sd Francis saith that the said Gabriel altho’ often requested, hath not kept and performed his said covenants, so made and entered into with the said Francis, but hath broken the same and has hitherto refused and still doth refuse to keep the same with sd Francis—Whereby the said Francis by reason thereof saith that he is damaged One thousand dollars, and thereupon brings suit &c Sol Sibley At7
Pledges Jn° Doe 1
Richd Roe J
Michigan Territory towit—Francis Desnoyers alias Fify puts in his place Sol Sibley his att7 to prosecute Gabriel Godfroy senior in an action of Cov Broken—
Territory of Michigan, to wit
The United States of America to the Marshal of the Territory of Michigan:
You are hereby commanded that you take Whittemore Knaggs, one of the interpreters for the United States, for one of the tribes of savages commonly called Chebois, or Chippewas, to be found within the said Territory of Michigan, and him safely keep, so that you may have his body before our judges of our Supreme court of the said Territory of Michigan, to be held at Detroit, on the 3d Monday in September next, then and there in our said court, before our said judges, to answer Augustus B. Woodward, one of the judges in and over the Territory of Michigan, in a plea of trespass for an assault upon a judge to the damage of the said Augustus B. Woodward, as is said, twenty thousand dollars, and of this will [writ] make due return. Witness, John Griffin, one of the judges in and over the Territory of Michigan, the nth day of June, one thousand eight hundred and eleven.
Peter Audrain, [Clk.]
M. S. C. T. M.
United States of America,!
Territory of Michigan, to •wit:/
Augustus B. Woodward, one of the judges in and over the Territory of Michigan, complains of Whittemore Knaggs, one of the interpreters for the United States for one of the tribes of savages commonly called Cheboys or Chippeways, in custody of a plea of trespass, for that the said defendant on the 10th day of June, one thousand eight hundred and eleven, at Detroit, in the district of Detroit, in the Territory of Michigan, with force and arms, to-wit: with clubs, etc., assaulted the said plaintiff, and him did then and there strike and wound and other enormities committed against the peace and dignity of the United States of America, and to the damage of the said plaintiff, twenty thousand dollars, wherefore he brings suit.
Michigan, Oct. 9, 1811. Woodward
[In the handwriting of Solomon Sibley]
[Reprinted from Michigan Pioneer Collections3 XII, 642, with the permission of the Michigan Historical Commission.]
[Reprinted from Michigan Pioneer Collections, XII, 64a. with the permission of the Michigan Historical Commission. | [
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Territory of Michigan ss
To the Horíble the Judges of the Supreme Court, sitting as a Court of Chancery in said Territory of Michigan—
The Petition of Dame Veronique Widow of Simon Campau, her late Husband, late of Detroit in said Territory deceased: Humbly Complaining sheweth unto your Honors, that your Oratrix heretofore to wit on the fifth day of July in the year of our Lord One thousand Seven hundred and Sixty One, to wit, at Montreal in the Province of Lower Canada being at that time a single and an Unmarried Woman, for the purpose of her ease and convenience in Life did enter into a Contract of Marriage (in conformity with the Laws and Customs of that Country and the Coutume of Paris, with the said Simon Campau, he being also at that time a single and unmarried Man, in and by which said Contract of Marriage amongst other things in conformity to the said Custom of Paris, it was had and agreed that the said Simon by the Name of Simon Campau, and the said Veronique by the Name of Veronique Bourdault should take each other “by Name and Law of “Marriage, and to cause the same to be Celebrated & Solemnised in the holy “Church, our Mother, as soon as may be, and when one of the parties shall “require the other thereto—-The intended Spouses shall be one and common “in all property, purchases real and personal, agreeable to the Custom of “Paris, under which their future Community (Communanté) shall be governed; Nevertheless the intended Spouses shall not be liable for the debts “of one another contracted before their Marriage, and if any exist, they shall “be paid & acquitted by the Property of the other party who had contracted them— The said future Spouses take one another with such property as each of them has now,- and in whatever it may Consist, without a “more ample explanation— The intended Husband has settled on his intended Wife one thousand Livres as a jointure, once paid, of which Jointure “she shall have delivery as soon as it shall take place, without being obliged “to demand it in a course of Justice— The preciput (a mutual donation by “the parties to be enjoyed by the Survivor) shall be equal and reciprocal in “favor of the Survivor of the Sum of five hundred Livres, which the said “Survivor shall take in Cash or articles of Furniture at the price fixed in the “Inventory, besides his share and without addition—The Survivor shall “take, besides, & above, his clothes, & linen for his use, a bed furnished; “the intended Husband his arms, and the intended Wife her rings & jewells; “— at the time of the dissolution of the said Community, either by Death “or otherwise, it shall be lawful for the intended wife to accept or renounce “it, and in the latter Case, shall take back freely & clearly all which she can “justify to have brought into the said Community before marriage, and “what during the said Marriage may have come or been bequeathed to her, “either by inheritance, donations, legacies or otherwise, together with her “Dower, jointure, and other advantages here above stipulated, without be“ing liable for the Debt of the said Community, even if she had imparled, “and been obliged to it, and had been condemned thereto; and in that case “she shall be warranted & indemnified by all the Estate of the said intended “Husband, which from that day shall be mortgaged to her— And in consideration of the sincere friendship which the said intended Spouses bear to “one another, they under the authorization of their relations & friends, do “by these presents make to one another, an even, mutual & reciprocal donation of all the property, purchases, real & personal which will be found “appertaining to the one dying first, on the day of his decease, to whatever “Sum & quantity the same may amount to & consist in, and in whatever “place they may be situated to and for the use of the survivor during his “Natural Life only, in making a good and true inventory; this present donation thus made provided that there are no children by the intended mar“riage; if however there were any, and should happen to die, when Minors, “and without Children born in lawful Wedlock, in such case this present “donation shall have again its same force”— And your Oratrix avers that after the making & entering into the Contract as aforesaid to & with the said Simon Campau, to wit on the aforesaid fifth of July in the year of our Lord one thousand Seven hundred and Sixty One, as aforesaid, she did afterwards to wit, on the same day & year aforesaid at Montreal as aforesaid, enter into and was joined in the Holy Banns of Matrimony with the said Simon, with whom she continued to live, as Husband and Wife, to wit at Detroit in the Territory aforesaid until the twenty-seventh day of March in the year of our Lord One thousand Eight hundred and three and had by him the issue hereafter named that is to say Henry1 Campau, Charles2 Campau, Claude3 Campau, Archange4 Campau the Wife of Robert McDougall, Genevieve6 Campau the Wife of Lambert Beaubien, Phelisse6 Campau the Wife of the said Charles Poupard, Angelique7 Campau, Simon Campau junior deceased represented by his Widow, in behalf of their issue Thérése8 Campau a minor, Madelaine9 Campau the Wife of Hypolite S£ Bernard, and Antoine10 Campau also a Minor;—when the said Marriage Contract and the Banns of Matrimony were dissolved & extinguished, by the natural death of the said Simon Campau, leaving your Oratrix seized and possessed as of fee of and unto a certain Messuage and Tenement or Farm and Farming Houses consisting of three Arpents or French Acres in front by forty in depth, and with the same right to the forty Arpents in rear of the first forty Arpents, situate lying and being in the North East settlement of Detroit and bounded in front by the River Detroit in rear by unlocated Lands on the South West by Jean Baptiste Campau, brother of the said Simon and on the North East by John Robert McDougall, together with all and singular the appurtenances and privileges to the same belonging or in any wise appertaining, and also seized and possessed of a variety of articles of personal property which are particularly set down and enumerated in a certain inventory hereunto annexed dated at Detroit aforesaid the ninth day of May in the year of our Lord One thousand Eight hundred and three, leaving also to be paid by your Oratrix (as she had accepted of the Community) certain Debts to the amount of Two hundred and eleven pounds Twelve Shillings and four pence New York Currency which are also exhibited by the said Inventory, independant and distinct of the Sum of one hundred pounds therein mentioned, left by the said Simon Campau to your Oratrix by the said Marriage Contract as her Dower and preciput, to all which the aforesaid Heirs of the said Simon Cam-pau have consented and subscribed their names.—And your Oratrix further states that being so seized and possessed of all and singular the premises aforesaid, and being thus chargeable with the debts of the said Simon Campau as aforesaid, by virtue of the aforesaid Contract of Marriage made of mentioned to be made between your Oratrix of the one part and the said Simon Campau her late Husband now deceased of the other part, and by reason of her having thus accepted of the Community as aforesaid, she became liable to pay and satisfy to the Creditors, to the said Estate the aforesaid Sum of Two hundred & Eleven pounds twelve Shillings and four pence New York Currency
and also the further Sum of Fourteen pounds thirteen Shillings New Yk Currency to each and every of the before mentioned Heirs of the said Simon Campau her f-late Husband deceased being in all ten in Number making the Sum of One hundred & forty Six pounds Ten Shillings . and being so liable your Oratrix states that in consideration of the natural Love and affection which your Oratrix had and bore for Charles Poupard her Son in Law and Phelisse his Wife, and the Daughter of the said Simon Cam-pau and your Oratrix, but who is likewise since deceased, as also in further consideration of the maintenance and support of your Oratrix during her 146.10- natural Life suitable to her Rank and Age with good and sufficient food, Cloathing lodging, firewood, Candles &c to be furnished and provided for your Oratrix by the said Charles Poupard, as also in consideration that the said Charles Poupard should treat your Oratrix with respect, when in health or in sickness, and also in further Consideration that the said Charles Pou-pard should well and truly pay and satisfy all the Debts due by the said Simon Campau at his Death and which are particularly set forth and enumerated in the Inventory aforesaid, And also in further Consideration that the said Charles Poupard should pay and satisfy to each & every of the Heirs of the said Simon Campau deceased their heritage or respective proportions of the said Estate, and also in further Consideration that the said Charles Poupard should pay and satisfy to your Oratrix the amount of her Dowery & precuput aforesaid being One hundred pounds New York Currency, to get prayers said for her late Husband and Herself, as your Oratrix avers, Your Oratrix did on the Sixteenth day of May in the year of our Lord One thousand Eight hundred three enter into a certain Indenture to and with the said Charles Poupard & Phelisse his Wife in the words and form following to wit:—“Detroit, Wayne County ss—Before the Notary Public for the “County of Wayne, in the Indiana Territory, residing at Detroit, was pres“ent Dame Widow Simon Campau, living on her Farm, on the North-East “Coast, in the parish of S1 Anne of said County, who by these presents acknowledges to have ceded, quitted, transferr’d & demised from this day “for ever, with a guarantee of all troubles, gifts, doweries, debts, Mortgages, “evictions, alienations, and of any other hindrance generally whatsoever, “to Sr Charles Poupard, her Son in Law, and Phelisse his Wife, whom he “doth authorize in this behalf, now present and accepting, for themselves, “their Heirs & assigns, the one half or moiety of the said Farm, whereon she “now lives as aforesaid; the said moiety of one Arpent & one half in front by “forty in depth, with all the appurtenances, circumstances & dependancies, “without reserving or retaining any part thereof, and with the same right “to forty Arpents back of the first forty— The said Widow doth moreover “cede to the said Poupard and his Wife, all the houshold furniture men“tioned in the Inventory which has been made of the property which was in “common between her and the late Simon Campau, her husband deceased; “that is to say, all the houshold furniture in general mentioned in the said “Inventory, without reserving or retaining any part thereof, Consisting in “houshold furniture, animals, utencils of husbandry &c, and besides the said “Widow gives to the said Poupard, the enjoyment of the other Arpent & half “of said Farm, during her life, that is to say as long as she’ll live, to the profit “of the said Poupard; and she also abandons, & doth give over to him her “Dower & preciput (jointure) such as she is intitled to by her Contract of “Marriage with the said late Simon Campau, deceased such as is mentioned
“hundred three, and the said dame Widow Campau & Charles Poupard have “signed & sealed these presents, and we the said Notary who have signed “after them and affixed our Seal of Office
“In presence of “Veuve Smon Campau” (ls)
“Chs Moran “Ch. Poupard” (ls)
“a renvoy or marginal
“let-in in the third
(ls.) “page is approved &
“good, F. Dx Bellecour:
N P.
But which said Indenture so entered into by and between your oratrix on the one part and the said Charles Poupard and Phillis his Wife of the other part, your oratrix is advised and believes is absolutely void in Law for as much as the same was never acknowledged by your Oratrix, before any one of the Judges of the General Court of the said Territory or any Judge of the Court of Common Pleas in the former County of Wayne, where the said Lands do lye, or before any other Magistrate whatever to be her voluntary act & deed for the purposes therein contained, neither was the said Indenture or deed aforesaid between your Oratrix and the said Charles Poupard and Philis his Wife as aforesaid ever Recorded in the Recorders Office of the aforesaid County of Wayne where the said Lands did lye within twelve Months next after the signing of the said Deed or indenture as aforesaid, or at any other time whatever agreeable to the Ordinance and the Laws of this Territory—And hereupon your Oratrix further sheweth and declareth that altho’ in and by the Indentures aforesaid it appeareth that your Oratrix had released to the said Charles Poupard her Dowery and Preciput, yet your Oratrix expressly chargeth the contrary, and that no such thing was ever done, or intended to be done by Your Oratrix, neither was she ever asked by the said Charles Poupard to abandon and give over the same to him at any time prior to executing of the said before recited Indentures, nor was there ever any mention made thereof, between the said Charles Poupard and Your Oratrix, until a few days after the said Indenture was executed, when she was informed that thereby she had abandoned her Dowery & preciput, whereupon she immediately went to the House of Charles Moran where Francois Desx Bellecour resided & she there and then asked the said Belle-cour why he had given her Dowery & Preciput to said Poupard, thereupon the said Bellecour shewed her the said original Indenture and desired her to look at the marginal part of said Indenture, whereby the same was returned to her—And your Oratrix further avers that that part of the said Agreement regarding the abandoning of her Dowery was never read or explained to your Oratrix before the execution of it,—and that she never would believe it until she returned to said Bellecours as aforesaid, Your Oratrix then became sensible that a Fraude had been committed on her in this behalf, & on returning home Your Oratrix upbraided the said Charles Poupard therewith in presence of her late Daughter Phelisse, who sent the said Charles Poupard with your Oratrix to Peter Audrain Esquire, and they both requested the said Peter Audrain to expunge that part of the said Agreement regarding the abandonment of your Oratrix’s Dowry and preciput, that Mr. Audrain informed them that it would be necessary for him to make out a new Agreement, to that effect, and that he had not then time to draft the same—that your Oratrix and the said Charles Poupard then left the before recited Indenture with the said Peter Audrain for that purpose and that she went at sundry times to Mr. Audrain’s on the subject of said Agreement, but your Oratrix was informed by him that it was mislaid—as your Oratrix avers and will be able to prove—But now so it is may it please your Honors, that the said Charles Poupard combining and confederating himself to and with diverse other persons at present unknown to your Oratrix, whose names, when discovered your Oratrix humbly prays may be inserted in this her Bill of Complaint with apt and proper words to charge them, he the said Charles Poupard in order to defraud your Oratrix of her maintenance and support and of the Comforts of her Life, both in sickness and in health in her declining Age, and also to defraud her of the Dowery and preciput does pretend and give out in speeches that your Oratrix has no legal claim upon the said Charles Poupard for her maintenance & support and also for the comforts of her Life while in sickness and in health, nor has she any legal claim on the said Charles Poupard for her Dower and preciput, but does pretend that the said Articles of Indenture were unconditional on the part of the said Charles Poupard, and at other times he does admit the Covenants & agreements on his part in the above recited Indenture, made by the same parties, but that your Oratrix did absolutely dispose of the aforesaid Estate of the said Simon Campau deceased and your Oratrix as aforesaid, without such Conditions & provisions as is above mentioned in the above recited Instrument—Whereas your Oratrix Charges and so the said Charles Poupard well knows, as the truth really is, that the said Charles Poupard was to maintain and provide your Oratrix with good and sufficient Food, Cloathing, Lodging, firewood Candles &c. both in Sickness and in health, and also to pay her, her Dowery and preciput to get prayers said, for her late husband and herself and the said Charles Poupard in Order further to defraud & Injure, your Oratrix, and to defraud & injure, the Creditors to & the Heirs of the said Estate, of their Just and equitable demands, and fraudulently to compel and oblige your Oratrix to pay the same, doth further pretend and give out in speeches, that he the said Charles Poupard is not liable for the payment of those debts and the heritage of the said Heirs, and that he hath never undertaken to pay them by the above recited indenture or instrument of writing & that the said Premises are not Mortgaged for the payment of those Debts and your Oratrix’s Claim, and at other times the said Charles Poupard pretends that he has paid those debts and the Heritage of the Heirs and that he hath at all times furnished and provided your Oratrix with good & sufficient maintenance, food, Cloathing, lodging, firewood, Candles &c both in sickness and in health, and that he hath paid her, her Dowery & preciput, Whereas your Oratrix chargeth & the said Charles Poupard well knoweth to the contrary, and that your Oratrix hath not been furnished with good and sufficient food, Cloathing, lodging, firewood, Candles &c both in sickness and in health, neither hath she ever received her Dowery and preciput—- Neither hath the said Charles Poupard ever paid and satisfied the debts due by the said Estate nor the Heritages, of the Heirs, but the same for the most part, still remain due and unpaid & chargeable upon your Oratrix, and your Oratrix hath been called on for the payment thereof, and has but little hopes from the needy and insolvent circumstances of the said Charles Poupard who as your Oratrix, further charges has but a small support and is now utterly incapable of giving any relief to your Oratrix, being confined in prison on his own Debts & owing large Sums of money beyond his ability to pay, as your Oratrix avers and is advised—And your Oratrix doth further charge, that since the said Charles Poupard, hath had the occupency and possession of the aforesaid premises, he hath done, and suffered and permitted to be done, and suffered much waste and destruction in and about the said premises, by throwing down and destroying the fences, and in selling and disposing of the buildings and removing them from off the said premises, and in suffering & permitting the Orchards (and Timber) to be wasted and destroyed, and for the want of proper and sufficient Fences, to the great damage and injury of the said Estate, and with a design to lessen the value thereof; and also in selling & diposing of all the personal property, belonging to the said Estate, as mentioned in the said Inventory, and the same converting to the payment and discharge of his own private debts, thereby rendering the Estate less liable to pay and satisfy its debts, and accumulating an unsupportable burthen of Interest &c upon your Oratrix— And your Oratrix is further advised and humbly insists that the said premises so conveyed or intended to be conveyed as aforesaid remained Mortgaged by the said Charles Poupard unto your Oratrix for the fulfillment of all the Covenants & agreements on the part of the said Charles Poupard in and about the maintenance and support of your Oratrix as aforesaid, and also for the punctual discharge of all the Debts due by the said Simon Campau deceased at the time of his decease, as well to the Creditors as to the Legitamate Heirs of the said Estate, and that your Oratrix ought therefore to be let in to a redemption of all the said Mortgaged premises without any regard to the aforesaid Covenants and Agreements entered into as aforesaid by and between your Oratrix and the said Charles Poupard and Phelisse his Wife, and the said Charles Poupard doth also refuse to discover unto your Oratrix what Sums of Money have been received by him, or by any other person, or persons by his Order or for his use, or which without his Wilful default might have been received by & out of the Rents and profits of the said Premises.
All which actings, doings and pretences of the said Charles Poupard and his Confederates are contrary to Equity Justice and good Conscience, and tend not only to your Oratrix’s apparent wrong and injury, but to the wrong and injury of the Creditors and Heirs of the said Estate. In tender consideration whereof, and for that your Oratrix is utterly remediless by the strict rules of the Common Law, and cannot have a discovery of the several matters aforesaid but by the Corporal oath of the said Charles Poupard, nor can your Oratrix be let in to vacate the aforesaid Indenture, or deed of Conveyance between your said Oratrix and the said Charles Poupard and Phillis his Wife, who is since deceased, and to a redemption of the said Premises or have an account of the Rents and profits of the said Mortgaged Premises, nor compelí the said Charles Poupard to maintain and support your Oratrix in Sickness and in health in a manner suited to her age and Condition, nor oblige him to account for the property that he hath Sold, wasted and destroyed, belonging to the said Estate, nor Compel him to the payment of her Dowery and preciput, and the Debts due by the said Estate to the several Creditors and Heirs, without the aid and assistance of a Court of Equity before your Honors, where matters of this Nature are properly Cognizable and relievable—to the end therefore that the said Charles Poupard may upon his Corporeal Oath, true distinct and perfect answer make to all and singular the matters and things herein before set forth as fully and particularly as if the same were here again repeated, and interrogated; and more especially that he may set forth and discover if the said Indenture or agreement aforesaid so made & entered into by and between your Oratrix and the said Charles Poupard has been acknowledged by your Oratrix as her voluntary act & deed for the purposes therein contained, and if so how and in what manner the same has been acknowledged and at what time, and before what Magistrate and for what purpose, & whether the same hath ever been recorded, and if so by whom and in what Office and at what time, and for what purposes the same was recorded, and whether the same was not meant and intended to operate as a Mortgage from him the said Charles Poupard to your Oratrix, to secure the punctual fulfillment of all and singular the Covenants and agreements on the part of the said Charles Poupard therein contained, redeemable on the non performance of the whole or any part of them by the said Charles Poupard, and that he may set forth and discover if he hath maintained and supported your Oratrix since the entering into the said Indenture or agreement aforesaid in a manner suitable to her rank and age, with good and sufficient Cloathing, washing, lodging, meat, drink, firewood and candles &c, both in her sickness and in health, and if so, how and in what manner the same hath been done and provided for your Oratrix, and to what expence the said Charles hath been put to in doing the same, and if not for what reasons and why & wherefore the same hath been neglected and omitted to be done by the said Charles Poupard, and also that he may set forth & discover if he hath ever paid and satisfied the debts due & owing by the said Simon Campau deceased, at the time of his decease, as are set forth and exhibited in the said Inventory and whether or not the same are not all or the major part of them still due and owing and unpaid, and if paid, how and in what manner the same hath been paid and satisfied, and to whom these payments have been made, and if not paid for what reason the same has been omitted and neglected to be paid and Satisfied, and if to his knowledge your Oratrix hath not been called on since entering into the Indenture or agreement aforesaid to and with the said Charles Poupard by the Creditors to said Estate to pay & satisfy those Debts, and if so for what purpose he still delays the payment and that he may set forth and discover if he hath ever paid and satisfied to the Legitimate Heirs of the said Simon Campau deceased their Heritages, or any part thereof, and if so how much, and how & in what manner and at what time the same hath been paid & satisfied, if not for what reasons the same hath been neglected to be done, and under what pretences the same are still delayed, and that he may set forth and discover whether or not the aforesaid premises or any part of them have not since entering into the Indenture or Agreement aforesaid gone greatly to destruction & waste by the Culpable negligence, and voluntary permission of the said Charles Poupard, and if so for what reason and on what account the same hath been done and suffered and why the same hath not been kept up in good and sufficient repair, as they were accustomed to be before the entering into the Indenture or agreement aforesaid and still would have been, had it not have been for the said Indenture or agreement, and if not how and in what manner & by whom the same or any part thereof, had been maintained and kept in Repair, and that he may set forth & discover whether he hath not sold and disposed of certain parts of the outer buildings belonging to the said premises, and at what time, and what parts or buildings, and to whom & for what price or Sum of Money and whether the same have been actually taken and carried off the said premises, and if so why he has done so, and whether the said Money, has not been actually received by him the said Charles Poupard and at what time & to What use and for what purposes the same hath been by him applied and that he may set forth and discover if he has not also sold and disposed of all or some part of the personal property belonging to the said Estate, and if so at what time and why he hath done so, and what part and to whom the same hath been sold or disposed of, and for what price or Sum of Money, and whether the same hath been received, and if so where and to what use it hath been applied, if not, that he may set forth & discover what has become of all or any part of the said Personal property that came to his hands on entering into the Indenture or Agreement aforesaid, and that he may particularly set forth & discover what other consideration was ever really paid or intended to be paid by the said Charles Poupard to your Oratrix, for the said premises than those by your Oratrix above mentioned and recited, and by whom and to whom and when and where the same if any was paid, and when the said Charles Poupard and Phillis his Wife (since deceased) or his or their Agents first of all had possession of the said Mortgaged premises, and from what time he or they have received the Rents and profits thereof, and that he may set forth a full true and just account of the rents and profits of all & singular the said Mortgaged premises received by him, or any other person or persons for his use, or which without his wilful default might have been received, & when and of whom, and for what the same were severally received—-and when and at what time in particular Phillis the Wife of the said Charles Poupard died, and whether your Oratrix hath not in herself, the Equity of Redemption of all the said Mortgaged premises, and whether the said Chas Poupard hath not refused to vacate and surrender up to your Oratrix the aforesaid Indenture or agreement, and to admit her into the Equitable Redemption & possession of the sd premises, and why and for what reason he refused to comply with such her requests, and if it was not with a design to increase the debts on the said premises by accumulating Interest so that the same may not be worth redemption, and that the said Charles Poupard may set forth, if any thing is now justly due him from your Oratrix, and if so how much, and for what the same became due, and how he computes and makes out the same, and that the said Chs Poupard may answer all and singular the premises, not only as to what he hath heard, been informed & believes concerning the same respectively, and when and by whom he had such information, and that the said Charles Poupard may come to a fair and just account with your Oratrix for the rents and profits of all the said Mortgaged premises, and also for every other matter and thing whatever between your Ora-trix and the said Charles Poupard, which have been received by him, or by any other person or persons for his uses, or which without his wilful default might have been received-— And more especially that he may set forth and discover whether he doth not know and believe, that in and by the Indenture, or agreement aforesaid the Dowery & preciput of your Oratrix was to be secured and paid unto her by the said Chs Poupard and how and for what reason it was not thus written in the said Indenture or agreement, and under what circumstances and considerations, if any there were, the same were to be secured and paid to your Oratrix, & for what purpose, and if the omission of the same in the indenture or agreement aforesaid was not a fraud & imposition upon your Oratrix and her Heirs—and, who, were confederated with the said Charles Poupard in the fraud & imposture aforesaid, and whether your Oratrix was made acquainted with the fraud & circumvention, before the signing of the said Indenture or Agreement, and if so, for what length of time, and if the said Charles Poupard did not after the signing of the said Agreement promise your Oratrix that the same should be redrafted, and that her Dowery and preciput should be secured to your Oratrix, and if so why the same hath not been done—and that therefore the said Charles Poupard may be decreed either to surrender up to your Oratrix the aforesaid Indenture or agreement made and entered into, on the ’foresaid Sixteenth day of May in the aforesaid year of our Lord One thousd Eight hundred Three— that the same may be cancelled, or that he may reconvey and reassign to your Oratrix the premises aforesaid, free & clear of all incumbrances done by him, or any claiming by from or under him or, in default thereof, that your Oratrix (after paying the said Charles Poupard whatever may appear to be due him for advances made for your Oratrix, for and on account of the said Estate, and for and on account of your Oratrix’s maintenance and support if any thing there doth appear to be due him, after making all fair and equitable deductions arising from the rents and profits and also from the Sale & disposal of the personal and other kinds of property belonging to the said Estate, made by the said Charles Poupard, and converted to his own use, of all which your Oratrix prays as she before hath prayed) may be let into a redemption of all the said Mortgaged premises and that the said Charles Poupard, and all persons claiming under him, may Convey and Surrender all the said premises to your Oratrix, or as she shall direct and appoint, free from all incumbrances done by him the said Charles Poupard, or any person or persons claiming under him, and that your Oratrix may have and receive such further, and other relief, in the said Premises, as the nature of this Your Oratrix’s Case, doth or may require, and as to your Honors shall seem Meet: May it please your honors (the premises considered) to grant unto your Oratrix, the United States of America, their Writ or Writs of Subpoena to be directed to the said Charles Poupard and his Confederates when discovered, thereby Commanding them & every of them at a day certain, and under a certain pain, the sum to be limited, personally to be and appear before your Honors in the Honorable Court, then and there upon their several and respective Corporal Oaths, true and perfect answer to make to all and singular the premises, and further to stand to and abide such Order and decree thereon, as to your Honors shall seem meet, agreeable to Equity and good Conscience, and your Oratrix, as in Duty bound shall ever pray. May it please your Honors.
Veronique Veu Simon Campau
Territory of Michigan, to wit:
Personally came and appeared before me George McDougall One of the Justices of the peace in said Territory of Michigan, Dame Veronique Cam-pau, Widow of Simon Campau, deceased, who being duly sworn on the Holy Evangelists of Almighty God deposeth and Saith, that the within Bill of Complaint against the within Named Charles Poupard, Respondant, contains the truth, the whole truth and nothing but the Truth, to be best of her knowledge and belief
Sworn and Subscribed before me at my Chambers in Detroit the nineteenth day of October in the year of our Lord One thousand Eight hundred Seven. Veronique Veu Simon Campau
Geo. McDougall
J.P.D.D.
By the Court, to answer at the suit of Dame Veronique Campeau Widow of Simon Campeau decd
RTBLe on the 3d monday in Septber 1808
In the Supreme Court of the territory of Michigan.
I have served this subpoena by leaving a true copy at the dwelling house of the said Charles Lefleur
Serv:
Mil.
WM Scott
Marshal
E. Brush atty
[Case 88, Paper 2]
Territory of Michigan, to wit—
The United States of America to Charles Poupard, dit Lafleur, Greeting: For certain causes offered before us in Chancery, We command you and Strictly enjoin you that laying all other Matters aside, and notwithstanding any other excuse, you personally appear before us in our Said Chancery on the third monday in September next, wheresoever it Shall then be, to answer concerning those things which Shall be then & there objected to you, and to do farther, and receive what our Said Court Shall have considered in this behalf; and this you may in no wise omit under the penalty of five hundred dollars and have there this writ. Witness Augustus B. Woodward, chief judge of the Supreme Court of the territory of Michigan, at Detroit, the fifteenth day of august, one thousand eight hundred eight
Peter Audrain elk.
[The entire paper is in the handwriting of George McDougall.] | [
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Precipie— In the Gen1 Court—
Michigan Territory-—ss—
The United States of America vs Henry Fitch of the District of Detroit, Trader— In debt for 400 dollars penalty for breach of the revenue law— Damage 1,00 dol. Bail required—
Mr Audrain Clerk
Sir.
Please to issue the above writ retle to the next Superior Court—
Sol. Sibley Atty for U. States by
special appointed of the
August 9. 1805— Colr of Detroit Distr
[In the handwriting of Solomon Sibley] | [
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Territory of Michigan, to wit
The United States to the Marshall of the territory of Michigan, Greeting: You are hereby commanded to take Joseph Campeau if he may be found within the territory of Michigan, and him Safely Keep, So that you may have his body before our Judges of our Supreme Court, at Detroit, on the third monday in September instant then & there in our Said Court, before our Judges, to answer Barnabé Campeau in a plea of Covenant broken to the damage of the Said Barnabé Campeau, as is Said two thousand dollars which Shall then & there be made to appear with other damages; and of this writ make due return. Witness Augustus B. Woodward Chief Judge of our Said Court, at Detroit, the eigth day of September one thousand eight hundred Seven Peter Audrain, Clerk
[In the handwriting of William McDowell Scott]
[In the handwriting of Peter Audrain] | [
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Territory of Michigan—in the supreme court of the term of September 1806—
Louis St Bernard was attached to answer unto Hugh Robison Martin in a plea of Trespass on the Case For that whereas the said Louis on the thirtieth day of Septr in the year of our Lord 1805 towit at Detroit in said Territory made his Certain Note in writing Commonly called a promisory Note his own proper hand writing or accustomary mark being thereunto affixed having date the same day and year aforesaid—and then and there delivered the said note to one Charles Curry and thereby promised on demand to pay the said Charles Curry or order the sum of six hundred sixty five pounds ten shillings and two pence three farthings New York Currency equal to sixteen hundred sixty three dollars twenty eight cents money of the United States for value Recd by him the said Louis—and the said Charles Curry to whom or to whose order the payment of the said sum of money contained in said note was to be made afterwards and before the payment of the said sum of money contained in said note or any part thereof to wit on the aforesaid thirtieth day of Septemr in the year aforesaid at Detroit aforesaid indorsed the said Note his own proper hand writing being thereunto subscribed and by that indorsment appointed the Contents of the said Note to be paid to the said Hugh Robison Martin by the Name of Hugh R Martin and then and there delivered the said Note so indorsed to the said Hugh R Martin whereof the said Louis St Bernard afterwards towit on the day and year aforesaid at Detroit aforesaid then had notice by reason of which premises and by force of the statute in such cases made and provided the said Louis became liable to pay to the said Hugh R Martin the said sum of money contained in the said Note according to the Tenor and effect of said Note and being so liable he the said Louis in consideration thereof after-wards towit on the same day and year last aforesaid at Detroit aforesaid undertook and faithfully promised the said Hugh Robison Martin to pay him the said sum of money contained in said Note according to the Tenor and effect of said Note Yet the said Louis not regarding his aforesaid several promises and undertakings so by him made in his behalf as aforesaid but contriving and fraudulently intending craftily and subtally to deceive and defraud the said Hugh R Martin in this behalf hath not as yet paid him the said sum of money contained in said note or any part thereof altho so to do he the said Louis was requested by the said Hugh R Martin afterwards towit on the same day & year aforesaid and often afterwards towit at Detroit aforesaid but he to pay the same hath hitherto entirely refused and still doth refuse to the damage of the said Hugh R Martin as he says two thousand five hundred dollars and thereof to recover the same with costs he Brings suit and hath pledges towit Jn° Doe and Richd Roe— E Brush atty
Territory of Michigan ss Hugh R Martin puts in his place E Brush his Atty agt Louis St Bernard in this plea aforesaid
[In the handwriting of Elijah Brush] | [
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In the matter of John Whiffle, on the thirtieth day of june one thousand eight hundred eight.
A recent case has rendered the notice of the present more indispensible. It is that of David Robison. This Gentleman was bound by two justices to appear at the Supreme Court for abusive language to one of them, relating to the execution of his office, calling him a fool, a liar, and a knave. Impartiality would require that the Same rule which applies to one Should be extended to others in Similar Cases. The protection expected by the justices of the peace in the execution of their office from the judges of Superior grade, would be inadequate, if a State of Society is admitted in which they cannot even protect themselves.
However a readiness to revenge a Supposed injury or offence by the immediate application of personal force may at Sometimes be considered as tending to preserve in their Vigor that Spirit and intrepidity which form natural & valuable parts of the human character; and therefore to be regarded in a more venial light than the abstract principles of public justice might appear to warrant; yet it is Still not to be doubted that in civilized Society, there are, and there ought to be, limits within which the passions Should not be permitted to intrude. The departments of justice present that Sanctuary; and necessary indeed is it that they Should do So, Since all must be in danger when that asylum is attacked to which all must in the last resort flee for Safety and for peace. Hence the principles of the english law, adopted in the United States, exhibit Some rules important to the Magistrate and important to the Citizen.
Sir William Blackstone in the fourth volume of his Commentaries on the laws of England lays down the following position, that those who are by their offices conservators of the public peace may bind to the preservation of it, and to good behavior, according to their discretion, and that Security for the latter may be demanded for words in abuse of the officers of justice especially in the execution of their office.
The treatise of Richard Burn on the office of a justice of the peace presents also in the third volume a collection of Some principles on the Same Subject.
If a justice of the peace certify to the King’s bench that any person hath broken the peace in his presence, upon Such certificate Such person Shall be there fined without allowing him any traverse thereto.
If a justice Shall be assaulted or, in the doing his office especially, Shall be abused to his face, he may Commit the offender until he find Surety for the peace, or good behavior.
A justice is not to be slandered or abused
For the words you are a rogue and a liar the justice may make himself judge and punish him immediately, but if he thinks proper to proceed less Summarily, by way of indictment, he may.
If those positions are correct with respect to the Subordinate functionaries of the judicial department with how much stronger reason do they apply to those who are the administrators of justice in the last resort.
The Military, like perhaps every other profession, has a tendency to mould into a peculiar form the plastic variety of the human character, and in this, as in other professions, the effect is sometimes usefull, and ornamental to the fabric of Society, while it Sometimes presents, on the other hand, an injury and a deformity. Politeness adorned even with a romantic excess, a courage Mild but firm, a Skill in the protection of Society united with a Sense of the duties due to it, exhibit the outlines of the former character; while rudeness of demeanor, a courage more ferocious than Solid, and a for-getfullness of the Superior duties which man owes to his character of Citizen in preference to that of Soldier, Sometimes unfortunately pourtray the features of its opposite.
In no part of the United States is it, perhaps, more necessary to enforce a practical Conviction that the military is at all times to be Subordinate to the Civil power.
On the present occasion I am of opinion that John Whipple be bound to his good behaviour untill the ensuing term of the Supreme Court of the territory of Michigan, and to appear at the Said term of the Said Court, and not depart therefrom without the leave of the Said Court; and for that purpose to recognize himself in the Sum of twenty four dollars with two Securities in the Sum of twelve dollars each. A. B. Woodward.
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Territory of Michigan, to wit
The United States to John Anderson & George McDougall
We command you and firmly enjoin you and each of you that laying all other matters a Side and notwithstanding any excuse you be in your proper persons before the Judges of our Supreme Court now sitting to testify all & Singular what you know in a certain cause now depending and undetermined in our Said Court before our Judges at Detroit between Ethan Baldwin plaintiff and Alexr Ewings Junr defendant in a plea of tresps on the Case on the part of the plaintiff and this you are not to Omit upon the penalty upon each of you of five hundred dollars.
Witness August B. Woodward—Chief Judge of our Said Court at Detroit the twenty fourth day of September one thousand eight hundred and Seven Peter Audrain elk | [
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Territory of Michigan to wit
And now at this present Term of September in the Supreme Court of the Territory and in the year of our Lord one thousand eight hundred and eight comes the aforesaid Richard Pattinson by E Brush his Atty and says that in the record and proceedings as also in the rendering the judgment aforesaid there is manifest Error in this to wit—• that in giving of the Judgment aforesaid the court have rejected the demurrer of the said Richard Pattinson to the declaration of the said United States and have given judgment for the said United States Plaintiffs against the said Richard Pattinson Defendant whereas by the Law of the Land the Court ought to have recd the demurrer of the said Richard Pattinson at the suit of the said United States and to have given judgment for the said Richard Pattinson against the said United States in this therefore there is manifest Error, the said Richard therefore prays that for the Error aforesaid and others in the Record and proceedings appearing, the judgment aforesaid thereof against him in favour of the said United States may be reversed E Brush Atty for the sd
Richard Pattinson
[In the handwriting of Elijah Brush] | [
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Territory of Michigan, to wit—to the Honorable the Judges of the Supreme Court of said Territory of Michigan
The Complaint of Bridget Sheridan
Humbly Sheweth,
That Daniel Sheridan, a soldier in the army of the United States of America, belonging to the Garrison of Fort Detroit, made his addresses, in the way of Marriage, to your Complainant Bridget Sheridan (then Bridget Belcher) and on or about the fifth day of April in the year of our Lord One thousand Eight hundred & Eleven the said Daniel and Bridget were lawfully joined together in holy matrimony, by Richard Smyth Esqr one of the justices assigned to keep the peace for the District of Detroit in the said Territory of Michigan according to the Statute in such case made and provided: that such Marriage was consummated and they the said Daniel & Bridget cohabited together as Husband and Wife: that your Complainant is a person of a modest, industrious and virtuous life and conversation; and hath at all times, since her marriage, behaved herself towards her Husband as a dutiful and indulgent Wife: that notwithstanding the premises the said Daniel Sheridan being unmindful of his Conjugal vow and being of a vicious and debauched temper and inclination, and of a cruel disposition, hath frequently ill treated and abused your Complainant, and particularly on the ninth day of September last past, when without any provocation he the said Daniel, being still a Soldier in the first United States Regiment, belonging to Cap1 Whistlers Company came from the Garrison to your Complainants House, who was licensed as a Tavern Keeper at that time & finding a stranger sitting in her House demanded what he wanted there & then proceeded without any cause whatever, to kick beat and abuse said stranger and turned him out of Doors and a short time after proceeded to kick beat & ill treat your Complainant in a most cruel & wanton manner, following her up with a huge Cudgel & therewith making a blow at her, which if she had not retreated into the Bar Room & fell thereon, would certainly have put an end to her existance, which occassioned her (wounded & bruised in a dreadful manner) to go the same evening before Justice Js May as she had to retreat from her said House, conceiving her life to be in eminent danger.
That your Complainant is in continual Bodily fear, from the reiterated threats of the said Daniel, that he the said Daniel will kill wound or do her some further bodily hurt, He being almost continually confined to the black Hole, in Fort Detroit for mutiny to his officers that your Complainant dreads his breaking loose some day from the Garrison, where he is generally intoxicated with Spirituous Liquor, whenever it can be had by Stealth & while in that state, your Complainant is ready to prove to your Honors satisfaction, that he the said Daniel is raving Mad & distracted, and a proper subject for Bedlam— that notwithstanding his most solemn promises & vows to God never to drink any more Spirituous Liquors & Cider as contained in his Letter to your Complainant hereunto attached, she avers that he hath been repeatedly punished since, for intoxication—
But what more particularly harrows the feelings of your Complainant, is the cruel and unjustifiable conduct of the said Daniel, who gives the soldiers and others to whom she hath trusted her property a discharge in full, on their paying him one half or a fourth of the Debt, leaving your complainant helpless and destitute, & without the means of supporting herself and two helpless Orphans, her own Children, and of Cloathing and educating her only son, for whom she hath laboured so many days & sleepless nights—
Your Complainant therefore prays right and justice to be effectually done & administered, to her and that the said Daniel may be summoned to appear before your Honors to answer to the premises, & that by the Order and decree of this Court the Marriage Contract aforesaid made & entered into between your Complainant and the said Daniel for the causes aforesaid may be set aside and held for nought, and that your Complainant may be relieved therefrom, and that such other and further relief may be extended and given your Complainant in the premises as to your Honors may or shall seem meet and proper and as the nature and circumstances of your complainants case shall require— May it please your Honors—
Bridget Sheridan
by her Attorney
Geo. McDougall
Detroit Feby 15th 181a—
My Dear Wife
As pay day will be very shortly, I wd wish to be on a canded understanding with you, if we run counter of one another respecting the collecting or obtain^ of our debt in the Garrisson, we surely shall be both disappointed at payment, I am certain the soldiers dont desire better sport than see us at varience, this I am certain you are well convenced of, therefore would wish you would lay aside passion, and be studies of your own interest as well as mine. If you are so kind as to do so, you will please to either send me pr Bearer, or be the kind messinger yourself, the papers in your possision against those people; I hope you are well assured that I never defrauded you of one Shilling before or after our marriage, nor do I ever entend to defraud or deceive you or your little familly in any respect to the amount of sixpence, It is certain my rash conduct lately to you has been very odious and scarcely excusible, but still from a hope of your tender goodness, induces me to request forgiveness, be assured, my Dear Wife, nothing ever effected my feelings more than my late treatment to you; I have done that to you what I never was guilty of before to any womankind. I have been married to two women and kept House twelve years during which time had servant maids and women of different ages under me, and I can solemnly declare I never struck any woman since I was born in anger before you, nor never shall again, My Dear Wife I do not know what could induce me to treat you ill as I always held you in the highest esteem and affection before and after marriage and ever since our marriage the more hav® experienced your conduct and sence, the more it met my approbation of you, therefore you will please to assure yourself, my dear, that unfortunate accident was not produced thro any contemplated design or Mallicious forethought but the un-guar dd effects of momentarry passion.—
The frequent abuses and bad treatment I experience from the officers, together with the wrongs and impossitions of the Men, encouraged and countenanced by their officers, sours my temper in the highest degree the reffiction of which renders me sometimes distracted, Especially if I happen to drink liqr all these circumstances my dear I hope you will tenderly consider which I expect will mitigate your passion and censure in some measure in favr of me. This day I have got the fumes of that banefull pernicious Stuff (whisky) out of my head, and have made vow against all kinds of Spiritious Liqrs & Cyder during my existance, this I have done in presence of God and the world havS called on him seriously and emplored his kind assistance to enable me to support my engagement
My dear this is the smallest compensation or satisfaction I should make you for the evil treatment given you by me under the influence of that de-testible stuff, which is the forerunner of every evil. I once more request your tender forgiveness and be assured I shall render myself kind, Industrous, and agreeable to you in every line in my power, especially when I get shut of the service I will I hope convence you and every other person that I am and will be a different kind of Man to what I appear to be at present,
I hope you will rest satisfyed of the facts of these assurances as I am steadilly fixed and determined never to recede any part of them-—
And am in the highest Esteem & affection your truely devoted Husband ontill death
Danl Sheridan
n b I would wish to speak with you some this day I shall meet you at the back gate if convenient to you
[Indorsement]
Mrs
Sheridan
Detroit
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Young, J.
We granted leave in this case to consider whether defendant is entitled to the reversal of his convictions of second-degree murder and possession of a firearm during the commission of a felony (felony-firearm) on the ground that the trial court denied his request for a jury instruction that he was not required to retreat before exercising deadly force in self-defense while in his yard. We affirm.
I. INTRODUCTION
The prosecution contends that Michigan law generally imposes a “duty to retreat” upon a person who would exercise deadly force in self-defense, and that the so-called “castle doctrine” — providing an exception to this duty to retreat when a person is attacked within his dwelling — does not extend to the area outside the dwelling. Defendant, on the other hand, contends that the castle doctrine should be extended to the curtilage and that he was not required to retreat when he was assaulted in his backyard.
Because Michigan’s case law has become somewhat confused with respect to the concepts of retreat and the castle doctrine, we take this opportunity to clarify these principles as they apply to a claim of self-defense. We reaffirm today the following, according to the common-law principles that existed in Michigan when our murder statute was codified.
As a general rule, the killing of another person in self-defense by one who is free from fault is justifiable homicide if, under all the circumstances, he honestly and reasonably believes that he is in imminent danger of death or great bodily harm and that it is necessary for him to exercise deadly force. The necessity element of self-defense normally requires that the actor try to avoid the use of deadly force if he can safely and reasonably do so, for example by applying nondeadly force or by utilizing an obvious and safe avenue of retreat.
There are, however, three intertwined concepts that provide further guidance in applying this general rule in certain fact-specific situations. First, a person is never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat from an attacker who he reasonably believes is about to use a deadly weapon. In these circumstances, as long as he honestly and reasonably believes that it is necessary to exercise deadly force in self-defense, the actor’s failure to retreat is never a consideration when determining if the necessity element of self-defense is satisfied; instead, he may stand his ground and meet force with force. That is, where it is uncontested that the defendant was the victim of a sudden and violent attack, the Court should not instruct the jury to con sider whether retreat was safe, reasonable, or even possible, because, in such circumstances, the law does not require that the defendant engage in such considerations.
Second, Michigan law imposes an affirmative obligation to retreat upon a nonaggressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible. One who is involved in a physical altercation in which he is a willing participant— referred to at common law as a “sudden affray” or a “chance medley” — is required to take advantage of any reasonable and safe avenue of retreat before using deadly force against his adversary, should the altercation escalate into a deadly encounter.
Third, regardless of the circumstances, one who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense. When a person is in his “castle,” there is no safer place to retreat; the obligation to retreat that would otherwise exist in such circumstances is no longer present, and the homicide will be deemed justifiable. This is true even where one is a voluntary participant in mutual combat. Because there is no indication that this “castle doctrine” extended to outlying areas within the curtilage of the home at the time of the codification of our murder statute, however, we decline defendant’s invitation to extend the doctrine in this manner; we hold instead that the doctrine is limited in application to the home and its attached appurtenances.
n. factual and procedural background
On the evening of August 15, 1997, defendant and two friends, Robin Carter and James Billingsley, convened at defendant’s home. The three men were in the backyard just outside defendant’s house, in the driveway near a detached garage, when defendant shot Carter in the legs eleven times with an automatic carbine rifle. After shooting Carter, defendant immediately drove to the Detroit River, where he disposed of the rifle. Carter, who did not have a weapon in his possession, was resuscitated at the scene but died as a result of the gunshot wounds three days later.
Although the facts in the preceding recitation are undisputed, at defendant’s trial on charges of first- degree murder and felony-firearm the prosecution and the defense presented different versions of the events leading to the shooting. Billingsley testified for the prosecution that after Carter made a disparaging comment about defendant’s fiancée, defendant went into the house, came back outside armed with a rifle, and began firing at Carter. Billingsley stated that Carter was not armed and did not approach defendant when he came out of the house with the weapon. Defendant, on the other hand, testified that he intervened in an argument between Carter and Billingsley and that he told Carter, whom he considered to be “the more aggressive one,” to leave. Seeing a “dark object” in Carter’s hand and believing it to be a gun, defendant immediately reached for his rifle, which he testified was in his detached garage. Defendant stated that he aimed the rifle at Carter’s legs and pulled the trigger, intending only to scare him.
Defendant requested that the jury be instructed, pursuant to CJI2d 7.17, that there is no duty to retreat in one’s own home before exercising self-defense. The prosecution objected, contending that the instruction was not appropriate because the shooting took place outside the home, in the curtilage. Although defendant attempted to withdraw his request for CJI2d 7.17, the trial court proceeded to rule that the instruction was not appropriate under the circumstances of the case. The trial court instead instructed the jury, in accordance with CJI2d 7.16, as follows:
By law, a person must avoid using deadly force if he can safely do so. If the defendant could have safely retreated but did not do so, you can consider that fact along with all the other circumstances when you decide whether he went farther in protecting himself than he should have.
However, if the defendant honestly and reasonably believed that it was immediately necessary to use deadly force to protect himself from an [imminent] threat of death or serious injury, the law does not require him to retreat. He may stand his ground and use the amount of force he believes necessary to protect himself.
The jury returned a verdict of guilty of the lesser offense of second-degree murder and guilty as charged of felony-firearm.
In his appeal before the Court of Appeals, defendant argued that the trial court improperly denied his request for a “no duty to retreat” instruction. The Court of Appeals panel examined this Court’s decisions in Pond v People, 8 Mich 150 (1860), and People v Lilly, 38 Mich 270 (1878), and held that defendant had a duty to retreat if safely possible before exercising deadly force to repel an attack unless he was inside his dwelling or an inhabited outbuilding within the curtilage. Because the shooting occurred within the curtilage but not in an inhabited outbuilding, the panel opined, the trial court properly refused to instruct the jury that defendant had no duty to retreat. Unpublished opinion per curiam, issued October 13, 2000 (Docket No. 212111).
We granted leave to appeal, limited to the issue whether the trial court committed error requiring reversal in denying defendant’s request to instruct the jury concerning the lack of a duty to retreat. 465 Mich 885 (2001). Because we conclude that the trial court did not err, we affirm defendant’s convictions.
HI. STANDARD OF REVIEW
We are required in this case to determine under what circumstances a defendant must retreat before exercising deadly force in self-defense. This presents a question of law, which we review de novo. People v Hamilton, 465 Mich 526, 529; 638 NW2d 92 (2002); People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001).
A criminal defendant is entitled to have a properly instructed jury consider the evidence against him. People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000); People v Mills, 450 Mich 61, 80-81; 537 NW2d 909 (1995). When a defendant requests a jury instruction on a theory or defense that is supported by the evidence, the trial court must give the instruction. Rodriguez, supra at 472-473; Mills, supra at 81. However, if an applicable instruction was not given, the defendant bears the burden of establishing that the trial court’s failure to give the requested instruction resulted in a miscarriage of justice. MCL 769.26; Rodriguez, supra at 473-474; People v Lukity, 460 Mich 484, 493-494; 596 NW2d 607 (1999). The defendant’s conviction will not be reversed unless, after examining the nature of the error in light of the weight and strength of the untainted evidence, it affirmatively appears that it is more probable than not that the error was outcome determinative. MCL 769.26; Rodriguez, supra at 474; Lukity, supra at 495-496.
IV. ANALYSIS
A. PRINCIPLES OF CONSTRUCTION
Because Michigan’s homicide statutes proscribe “murder” without providing a particularized definition of the elements of that offense or its recognized defenses, , we are required to look to the common law at the time of codification for guidance. See Const 1963, art 3, § 7; People v Couch, 436 Mich 414, 418-421; 461 NW2d 683 (1990). Where a statute employs the general terms of the common law to describe an offense, courts will construe the statutory crime by looking to common-law definitions. See Couch, supra at 419, quoting Morissette v United States, 342 US 246, 263; 72 S Ct 240; 96 L Ed 288 (1952):
“[W]here [a legislature] borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.”
The criminal law, as defined at common law and codified by legislation, “should not be tampered with except by legislation,” and this rule applies with equal force to common-law terms encompassed in the defenses to common-law crimes. In re Lamphere, 61 Mich 105, 109; 27 NW 882 (1886). Therefore, because our Legislature has not acted to change the law of self-defense since it enacted the first Penal Code in 1846, we are proscribed from expanding or contracting the defense as it existed at common law. We therefore apply the common law as it was understood when the crime of murder was codified to clarify the concepts of retreat and the castle doctrine.
B. SELF-DEFENSE AND RETREAT
1. GENERALLY APPLICABLE RULES
At common law, a claim of self-defense, which “is founded upon necessity, real or apparent,” may be raised by a nonaggressor as a legal justification for an otherwise intentional homicide. 40 Am Jur 2d, Homicide, § 138, p 609. When a defendant accused of homicide claims self-defense,
[t]he question to be determined is, did the accused, under all the circumstances of the assault, as it appeared to him, honestly believe that he was in danger of [losing] his life, or great bodily harm, and that it was necessary to do what he did in order to save himself from such apparent threatened danger? [People v Lennon, 71 Mich 298, 300-301; 38 NW 871 (1888).]
Thus, the killing of another person in self-defense is justifiable homicide only if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself. See People v Daniels, 192 Mich App 658, 672; 482 NW2d 176 (1991).
We reaffirm today that the touchstone of any claim of self-defense, as a justification for homicide, is necessity. An accused’s conduct in failing to retreat, or to otherwise avoid the intended harm, may in some circumstances — other than those in which the accused is the victim of a sudden, violent attack —indicate a lack of reasonableness or necessity in resorting to deadly force in self-defense. For example, where a defendant “invites trouble” or meets non-imminent force with deadly force, his failure to pursue an available, safe avenue of escape might properly be brought to the attention of the factfinder as a factor in determining whether the defendant acted in reasonable self-defense.
However, as Judge Cardozo cautioned in People v Tomlins, 213 NY 240, 245; 107 NE 496 (1914), “[g]eneral statements to the effect that one who is attacked should withdraw, must be read in the light of the facts that led up to them.” Thus, the generally applicable element of necessity contemplates three reticulate rules that are applicable in certain specific factual scenarios.
2. THREE DEPARTURES FROM THE GENERAL RULE OF NECESSITY
a. NO DUTY TO RETREAT FROM SUDDEN, VIOLENT ATTACK
Although Michigan’s common law that was codified imposes a duty to avoid using deadly force, it is clear that retreat is never required in circumstances similar to those delineated in Beard v United States, 158 US 550; 15 S Ct 962; 39 L Ed 1086 (1895), the classic American “no duty to retreat” case: when a person is violently attacked and it does not reasonably appear that it would be safe to retreat.
The statement of the governing principles of self-defense as set forth in People v Doe, 1 Mich 451, 456-457 (1850), is indicative of the common-law rules that were in place when the Legislature enacted Michigan’s murder statutes just four years earlier. These principles remain apropos today and have not been modified since their implicit codification more than 150 years ago:
First. That a man who, in the lawful pursuit of his business, is attacked by another under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, may lawfully kill the assailant, provided he use all the means in his power, otherwise, to save his own life or prevent the intended harm; such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power.
Secondly. When the attack upon him is so sudden, fierce and violent, that a retreat would not diminish, but increase his danger, he may instantly kill his adversary without retreating at all.
Thirdly. When from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended. [Emphasis supplied.]
The rules of self-defense as provided in Doe state the obvious: If it is possible to safely avoid an attack then it is not necessary, and therefore not permissible, to exercise deadly force against the attacker. However, one is never obliged to retreat from a sudden, fierce, and violent attack, because under such circumstances a reasonable person would, as a rule, find it necessary to use force against force without retreating. The violent and sudden attack removes the ability to retreat. Where immediate danger to life or great bodily harm is threatened upon the innocent victim, he “cannot be required when hard pressed, to draw very fine distinctions concerning the extent of the injury that an infuriated and reckless assailant may probably inflict.” Brownell v People, 38 Mich 732, 738 (1878). As Justice Holmes reasoned in Brown v United States, 256 US 335, 343; 41 S Ct 501; 65 L Ed 961 (1921), “detached reflection cannot be demanded in the face of an uplifted knife.” There, Justice Holmes concluded that “it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety . . . ."Id., citing Rowe v United States, 164 US 546, 558; 17 Sup Ct 172; 41 L Ed 547 (1896).
In People v Macard, 73 Mich 15; 40 NW 784 (1888), this Court reaffirmed that Michigan never recognized at common law an obligation to retreat from a sudden and violent attack before codification. In Macard, the defendant and his neighbor had a history of mutual animosity. The defendant was standing in or near a public road in front of his home when his neighbor began advancing toward him from across the street, carrying a gun and making threats. When the neighbor continued to advance despite the defendant’s warning that he stop, the defendant shot him. At his trial for murder, the defendant asserted self-defense and argued that retreating would have exposed him to greater danger. This Court reversed the defendant’s conviction of manslaughter and granted him a new trial on the basis that the trial court erred in instructing the jury that the defendant was justified in shooting “ ‘[i]f there was no reasonable opportunity or means of avoiding what the [defendant] anticipated as an assault with this deadly weapon’
Go which way [the defendant] would, he would only the more surely expose himself to the deadly aim of his antagonist. In such case, about the only question for the jury to determine was, did the [defendant] in good faith believe this to be his true situation? If he did, the jury should have been told [he] was fully justified. ... To hold otherwise would be to destroy the right of self-defense. It was not necessary for the [defendant], if without fault, on being suddenly assaulted by the use of a deadly weapon upon the public highway or upon his own premises, to retreat before losing his weapon. An instant of delay might have been at the expense of his life, and the law requires no man to run such risks. [Id. at 21-22 (emphasis supplied).]
b. THE DUTY TO RETREAT: SUDDEN AFFRAY OR CHANCE MEDLEY
Michigan law imposes an affirmative obligation to retreat, where safely possible, in one narrow set of circumstances: where a defendant — who is not in his “castle” — is voluntarily engaged in mutual, nondeadly combat that escalates into sudden deadly violence. This represents the only type of situation in which the English common law imposed upon a defender an affirmative duty to “retreat to the wall,” Pond, supra at 174-175; Erwin, supra at 195; Perkins & Boyce, Criminal Law (3d ed), pp 1121-1123, 1126, and it is apparent from our case law that Michigan adhered to this rule at the time of the codification of our murder statute.
As explained by Professors Perkins and Boyce, by reference to Foster, Crown Law (1762), the use of deadly force in self-defense at English common law was considered in light of the different positions of the parties involved. The first scenario involved a defendant who was without fault:
One, entirely free from fault, is the victim of an assault which was murderous from the beginning. He is under no obligation to retreat. . . but may stand his ground, and if he reasonably believes it necessary to use deadly force to save himself from death or great bodily harm, he is privileged to do so. [Perkins & Boyce, supra at 1121 (emphasis supplied).]
Thus, at common law the innocent victim of a murderous assault had no affirmative duty to retreat; instead, if he reasonably believed that it was necessary under the circumstances to exercise deadly force, he could kill his assailant in self-defense. This rule is consistent with the generally applicable rules of self-defense as codified in Michigan’s murder statutes, as discussed above. See Macard, supra at 21-22; Lennon, supra at 300-301; Brownell, supra at 738; Pond, supra at 177-178.
However, an affirmative obligation to retreat applied to a voluntary participant in mutual combat:
One who was the aggressor in a chance-medley (an ordinary fist fight, or other nondeadly encounter), or who culpably entered into such an engagement, finds that his adversary has suddenly and unexpectedly changed the nature of the contest and is resorting to deadly force. This ... is the only type of situation which requires “retreat to the wall.” Such a defender, not being entirely free from fault, must not resort to deadly force if there is any other reasonable method of saving himself. Hence if a reasonable avenue of escape is available to him he must take it unless he is in his “castle" at the time. [Perkins & Boyce, supra at 1121 (emphasis supplied).]
Thus, the original concept of a “ ‘duty to retreat to the wall’ applied not to the innocent victim of a murderous assault, but only to the culpable participant of a chance-medley.” Perkins & Boyce, supra at 1225. This principle was recognized by this Court in Pond, supra at 175-176:
In [cases in which a defensive homicide occurred in a sudden affray], the original assault not being with a felonious intent, and the danger arising in the heat of blood on one or both sides, the homicide is not excused unless the slayer does all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe, or by any other expedient which is attainable. He is bound, if possible, to get out of his adversary’s way, and has no right to stand up and resist if he can safely retreat or escape.
Accordingly, we conclude that at the time of the codification of our first murder statute in 1846, the common-law rule in Michigan recognized only one instance in which an affirmative, specific duty to retreat applied, namely, when the defendant was the voluntary participant in mutual combat.
c. THE “CASTLE” DOCTRINE
i. RETREAT IS NOT A FACTOR IN ONE’S DWELLING
It is universally accepted that retreat is not a factor in determining whether a defensive killing was necessary when it occurred in the accused’s dwelling:
Regardless of any general theory to retreat as far as practicable before one can justify turning upon his assailant and taking life in self-defense, the law imposes no duty to retreat upon one who, free from fault in bringing on a difficulty, is attacked at or in his or her own dwelling or home. Upon the theory that a man’s house is his castle, and that he has a right to protect it and those within it from intrusion or attack, the rule is practically universal that when a person is attacked in his own dwelling he may stand at bay and turn on and kill his assailant if this is apparently necessary to save his own life or to protect himself from great bodily harm. [40 Am Jur 2d, § 167, p 636.]
The rule has been defended as arising from “ ‘an instinctive feeling that a home is sacred, and that it is improper to require a man to submit to pursuit from room to room in his own house.’ ” People v Godsey, 54 Mich App 316, 319; 220 NW2d 801 (1974) (citations omitted). Moreover, in a very real sense a person’s dwelling is his primary place of refuge. Where a person is in his “castle,” there is simply no safer place to retreat.
ii. THE REACH OF THE CASTLE DOCTRINE
Defendant, who was outside his home in the driveway or yard between the home and a detached garage at the time of the homicide, contends that he was wholly excused from any obligation to retreat because he was in his “castle.” We disagree and hold that the castle doctrine, as it applied in this state and as was codified in our murder statute in 1846, applies solely to the dwelling and its attached appurtenances. Although many courts have extended the castle exception to other areas, we conclude that there is simply no basis in the case law of this state, contemporaneous with the enactment of our initial murder statute, to justify extending the rule in this manner.
It is unknown whether the English common law applied the castle doctrine — which, as we have noted, was relevant only to the voluntary participant in a nondeadly encounter — to areas beyond the dwelling. As noted by Professors Perkins and Boyce, “the scope of [the] special privilege granted to one so far at fault might have been limited to the actual building [but this] is mere speculation.” Id. at 1134-1135. Because the only indication we have of the castle doctrine as it applied in Michigan at the time of the codification of our murder statute is that it applied “in the dwelling,” Pond, supra at 176 (emphasis supplied), we lack the authority to now extend this rule to areas beyond “the dwelling” itself.
Defendant contends that this Court’s statements in Pond indicate that Michigan’s common law extended the castle doctrine to the curtilage surrounding the home. However, we agree with the prosecution’s contention that Pond did not in any way purport to extend the self-defense castle exception to the curtilage area surrounding the dwelling. With respect to self-defense, this Court explained in Pond that
[t]he danger resisted must be to life, or of serious bodily harm of a permanent character; and it must be unavoidable by other means. Of course, we refer to means within the power of the slayer, so far as he is able to judge from the circumstances as they appear to him at the time.
A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life. But here, as in the other cases, he must not take life if he can otherwise arrest or repel the assailant. [Emphasis supplied.]
This statement of the castle rule, taken from a case issued quite contemporaneously with the enactment of our murder statute, provides no basis from which to conclude that the rule applied anywhere but “in [the] dwelling,” that is, an inhabited building and its attached appurtenances.
Pond, therefore, does not allow us to conclude that the castle doctrine, as far as it was a part of the common law of this state when our murder statute was enacted, extended to the curtilage surrounding the dwelling. Instead, by providing essentially the sole indication, contemporaneous with the enactment of the murder statute, concerning whether and to what extent any duty to retreat existed in our common law, Pond establishes that the castle doctrine applies in this state only to a residence. Thus, for example, while the castle doctrine applies to all areas of a dwelling — be it a room within the building, á basement or attic, or an attached appurtenance such as a garage, porch, or deck — it does not apply to open areas in the curtilage that are not a part of a dwelling.
Defendant additionally argues that Lilly provides a basis for extending the castle exception to the curtilage. In Lilly, the defendant was attacked at night on his property in a passageway between his house and a new house that he was constructing. The defendant stabbed and killed the attacker, a farmhand whom he had recently discharged and who had earlier that day threatened the defendant with extreme personal violence. At the defendant’s trial for murder, the trial court instructed the jury as follows:
“If you find that . . . [the defendant] could have saved himself from all serious harm by retreating or calling for assistance, and the defendant so knew or believed, but that he did not do so; but stood his ground and resisted [the farmhand], and in such resistance killed [him], such killing would not be justifiable or excusable.
“If [the defendant] believed that [the farmhand] came to his premises on the evening of the homicide with the intention of seeking a combat with him, and that he sought him for that purpose and the defendant so knew, then it was [the defendant’s] duty to have avoided [him], and to have avoided such combat by all reasonable means 'within his power, and if he chose to stand up and resist the assault when he might have avoided it, . . . such killing would not be justifiable.” [Id. at 275.]
This Court set aside the defendant’s conviction for manslaughter and ordered a new trial, holding that the jury instructions improperly suggested to the jury that the facts would warrant findings that were not supported by the evidence, “especially that defendant did not make reasonable efforts to avoid deceased and avert his attack.” Id. Furthermore, this Court held, the instructions were improper because they
indicated to the jury . . . [that] it was incumbent upon [the defendant] to fly from his habitation where his wife and children were, in order to escape danger instead of resisting the aggressor. Such is not the law. The jury should have been instructed in effect that if they were satisfied that [the defendant] being at his own house had reason to believe and did believe from [the farmhand’s] previous and present language, manner and actions, and what had already taken place, that it was necessary to inflict the wounds he did inflict ... to save his own life or to protect'himself from danger of great bodily harm, he was excused.
. . . The charge was inconsistent with the view here explained, and it conveyed the idea that if help was within call and that defendant so believed, then his act was not lawful self-defense. [Id. at 275-276.]
We do not agree with defendant’s assertion that Lilly abrogates the necessity element of self-defense where the accused kills an assailant within the curtilage of his dwelling. Instead, Lilly reaffirms that the fundamental inquiry with respect to a claim of self-defense is whether the defendant reasonably believed that it was necessary to utilize deadly force against his aggressor. Lilly further establishes that the defendant was not required to leave his premises — thereby subjecting his wife and children to danger in his absence — or to seek aid from third parties. Lilly simply did not involve the castle exception.
In short, there is no basis in our case law for supposing that Michigan ever recognized an extension of the doctrine beyond the inhabited “dwelling” itself at the time the common-law rules were codified. Instead, we adhere to this Court’s formulation of the doctrine in Pond, supra at 176, that “[a] man is not . . . obliged to retreat if assaulted in his dwelling” (emphasis supplied). Thus, the castle doctrine is relevant only to acts of self-defense that take place in the dwelling; the doctrine has no application to “a conflict outside the home.” People v Stallworth, 364 Mich 528, 535; 111 NW2d 742 (1961).
C. APPLICATION
In this case, defendant requested that the jury be instructed in accordance with CJI2d 7.17, which is titled “No Duty to Retreat While in Own Dwelling” and which provides that a person assaulted in his own home does “not have to try to retreat or get away,” but may “stand his ground and resist the attack.” The trial court denied defendant’s request and instead instructed the jury in accordance with CJI2d 7.16, which is titled “Duty to Retreat to Avoid Using Deadly Force.” We hold that defendant was not entitled to the requested instruction. Defendant was not in his dwelling or an attached appurtenance when he killed Carter. He was outside his home in the yard.
Nevertheless, as we have explained, defendant was entitled to an instruction that adequately conveyed to the jury that he was not required to retreat if it was necessary for him to exercise deadly force under the circumstances as they reasonably appeared to him. While we suggest that CJI2d 7.16 be revised to further comport with the principles expressed in this opinion, the language of the instruction accurately conveyed to defendant’s jury that the baseline inquiry is necessity.
By law, a person must avoid using deadly force if he can safely do so. If the defendant could have safely retreated but did not do so, you can consider that fact along with all the other circumstances when you decide whether he went farther in protecting himself than he should have.
However, if the defendant honestly and reasonably believed that it was immediately necessary to use deadly force to protect himself from an [imminent] threat of death or serious injury, the law does not require him to retreat. He may stand his ground and use the amount of force he believes necessary to protect himself.
This instruction was properly given under the circumstances of this case. Pursuant to this instruction, the jury was permitted only to consider whether defendant could have safely retreated under the circumstances as they reasonably appeared to him. The second portion of this instruction further emphasized that there is never a duty to retreat if the accused reasonably and honestly believes that he is in imminent harm and that it is necessary to exercise deadly force. Moreover, the jury was given a comprehen sive general self-defense instruction (CJI2d 7.15) that further explained the relevant principles and additionally permitted the jury to “consider how the excitement of the moment affected the choice the defendant made” in exercising deadly force.
V. CONCLUSION
We hold that the cardinal rule, applicable to all claims of self-defense, is that the killing of another person is justifiable homicide if, under all the circumstances, the defendant honestly and reasonably believes that he is in imminent danger of death or great bodily harm and that it is necessary for him to exercise deadly force. As part and parcel of the “necessity” requirement that inheres in every claim of lawful self-defense, evidence that a defendant could have safely avoided using deadly force is normally relevant in determining whether it was reasonably necessary for him to kill his assailant. However, (1) one who is without fault is never obligated to retreat from a sudden, violent attack or to retreat when to do so would be unsafe, and in such circumstances, the presence of an avenue of retreat cannot be a factor in determining necessity; (2) our law imposes an affirmative “duty to retreat” only upon one who is at fault in voluntarily participating in mutual nondeadly combat; and (3) the “castle doctrine” permits one who is within his dwelling to exercise deadly force even if an avenue of safe retreat is available, as long as it is otherwise reasonably necessary to exercise deadly force.
Defendant was not entitled to a “castle exception” instruction in this case because he was in his yard and not in his dwelling when he used deadly force. However, defendant was entitled to an instruction that adequately conveyed to the jury that, although he was required to avoid using deadly force if possible, he had no obligation to retreat if he honestly and reasonably believed that he was in imminent danger of great bodily harm or death and that it was necessary to use deadly force in self-defense. The standard jury instruction that was given adequately imparted these principles. Accordingly, we vacate the decision of the Court of Appeals in part and affirm defendant’s convictions for the reasons expressed in this opinion.
Corrigan, C.J., and Weaver, Taylor, and Markman, JJ., concurred with Young, J.
Cavanagh and Kelly, JJ., concurred in the result only.
MCL 750.317.
MCL 750.227b.
See People v Heflin, 434 Mich 482, 502-503; 456 NW2d 10 (1990) (opinion by Riley, C.J.); People v Lennon, 71 Mich 298, 300-301; 38 NW 871 (1888).
Pond v People, 8 Mich 150, 176 (1860); People v Doe, 1 Mich 451, 455-456 (1850).
Doe, supra at 455-456; People v Macard, 73 Mich 15, 21-22; 40 NW 784 (1888).
People v Keuhn, 93 Mich 619, 621-622; 53 NW 721 (1892); Macard, supra at 21-22; Brownell v People, 38 Mich 732, 738 (1878); People v Lilly, 38 Mich 270, 276 (1878); Patten v People, 18 Mich 314, 330-331 (1869).
See Beard v United States, 158 US 550, 564; 15 S Ct 962; 39 L Ed 1086 (1895), stating that the victim of a sudden and violent attack is “not obliged to retreat, nor to consider whether he could safely retreat. . . .”
Where, on the other hand, a factual issue has been presented for the jury’s resolution concerning the circumstances under which the defendant used deadly force — as is true in the case at bar — the jury should be instructed concerning all relevant principles for which evidentiary support exists.
We are not concerned in this case with the use of deadly force by one who is an initial aggressor (i.e., one who is the first to use deadly force against the other), as such a person is generally not entitled to use deadly force in self-defense. See Heflin, supra at 502-503; People v Townes, 391 Mich 578; 218 NW2d 136 (1974); Perkins & Boyce, Criminal Law (3d ed), pp 1121, 1129-1133. The principles articulated in this opinion apply solely to those who are otherwise privileged to exercise deadly force in self-defense.
See People v Lenkevich, 394 Mich 117, 120-121; 229 NW2d 298 (1975); Pond, supra at 174-175.
See Pond, supra at 176.
We specifically do not address whether a person may exercise deadly force in defense of his habitation, and our holding should not be misconstrued to sanction such use of force as it pertains to the defense of one’s habitation. Rather, we hold only that a person is not obligated to retreat in his dwelling or its attached appurtenances before exercising deadly force in self-defense if he honestly and reasonably believes that he is in imminent danger of death or serious bodily harm. See n 3.
MCL 750.316.
CJI2d 7.17 provides:
If a person [assaulted the defendant in the defendant’s own home/forcibly entered the defendant’s home], the defendant did not have to try to retreat or get away. Under those circumstances, the defendant could stand [his] ground and resist the [attack/intrusion] with as much force as [he] honestly and reasonably believed necessary at the time to protect [himself].
We assume, therefore, for purposes of this opinion that defendant’s claim of error was properly preserved, despite counsel’s offer to withdraw the request for CJBd 7.17.
15 The jury was also given the general self-defense standard jury instruction, CJI2d 7.15.
The Legislature has bifurcated all murder offenses into first-degree murder, MCL 750.316, and second-degree murder, MCL 750.317. The statutory description of these offenses has changed little since the first Penal Code was enacted in 1846. See People v Couch, 436 Mich 414, 418-421; 461 NW2d 683 (1990) (opinion by Boyle, J.).
“The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.”
Thus, although we are certainly not oblivious to various policy concerns that might otherwise affect our analysis were we not constrained to apply MCL 750.317 to the facts of the case before us, we leave the task of rendering such policy judgments to the Legislature.
See People v Walters, 223 Mich 676, 682-683; 194 NW 538 (1923) (jury was properly instructed that killing was not justifiable if the defendant “renewed the affray” after the deceased abandoned it); People v Meert, 157 Mich 93, 95, 100-101; 121 NW 318 (1909) (opining that the defendant, who carried a revolver to a saloon because he “was expecting” that he would encounter his victim there, did not act reasonably when he walked up to the victim and shot him because “[r]eady means of escape were at hand ... and no danger was to be apprehended”); People v Robinson, 152 Mich 41, 47; 115 NW 997 (1908) (instruction that the defendant, who assaulted a man in a barroom, had a duty to “retire” if he could safely do so unless he was attacked with a deadly weapon or was in the defense of property or others did not constitute error requiring reversal because the defendant was in a place of perfect safety when he assaulted the victim).
[If a] defendant... had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury. [Beard, supra at 564 (emphasis supplied).]
21 Thus, where a threatened attack is not imminent, the person being threatened may not lawfully exercise deadly force in self-defense.
To hold that an innocent person has a duty to retreat in the face of a violent assault would be tantamount to holding such a person “responsible for having brought... necessity upon himself, on the sole ground that he failed to fly from his assailant when he might have safely done so[.]” Erwin v State, 29 Ohio St 186, 199 (1876). Indeed, the possibility of safe retreat cannot serve as a factor in determining the gravity or mortality of the peril. To so hold would be to require that the assailed “avoid the necessity by retreating before his assailant.” Palmer v State, 9 Wy 40; 59 P 793, 795 (1900).
Similarly, Wharton stated: “A man can only kill in self-defense from necessity, whether he has a right to stand his ground, or it is his duty to retreat; but in the one case he can have that necessity determined in view of the fact that he has a right to stand his ground, and on the other hand [where he is involved in the sudden affray] he must show, as one feature of the necessity, that he has retreated to the wall.” Wharton, Homicide (3d ed), § 298, p 478.
It appears clear enough to us that “[c]ourts which adopted [a] ‘no-retreat rule’ [were] frequently under the false impression that this required departure from the English common law.” Perkins & Boyce, supra at 1137.
Perkins refers to a third situation that is not relevant to the matter at hand: “One who starts an encounter with a murderous assault upon another, or who willingly engages in mutual combat with malice aforethought ... has forfeited all right of self-defense during that contest.” Perkins & Boyce, supra at 1121. That is consistent with the Michigan rule that one who is an aggressor may not avail himself of the defense. See Heflin, supra at 509. See also n 8.
The majority of jurisdictions employing the castle doctrine have extended the doctrine to the curtilage surrounding the home. See Dressier, Understanding Criminal Law (3d ed), § 18.02[C][3], p 228. The doctrine has also been extended in several jurisdictions to numerous areas away from the dwelling: cars, businesses, and homes owned by third parties, to name a few. Because the Legislature codified the common-law rules as they existed in 1846, this Court has no authority to act on different policy determinations concerning the expansion of the castle doctrine. Thus, we leave it to the Legislature to decide whether there are other places in which a defendant’s failure to retreat cannot be considered as a factor in determining whether it was necessary for him to exercise deadly force in self-defense. We note that many states have legislatively addressed the self-defense and retreat issues that are presented in this case. See, e.g., Model Penal Code, § 3.04; Ala Code 13A-3-23 (1982); Conn Gen Stat 53a-19.
The Pond Court held that, for the purpose of the defendant’s claim that he killed the victim in resisting a violent and forcible felony upon a dwelling, an outlying net-house was “a dwelling or part of the dwelling” of the defendant because it was near the dwelling house and was used as a permanent dormitory for his servants. Id. at 181-182; see also id. at 164-167. Because this Court considered the net-house to be a dwelling not for the purpose of the self-defense castle doctrine but instead for the purpose of a completely different defense, this holding is not relevant to our inquiry. Moreover, whether this outlying building would have been considered a “dwelling” for the purpose of self-defense is not an inquiry that aids us in determining whether the castle doctrine applies to open areas within the curtilage. Because the Court of Appeals cited Pond for the proposition that the self-defense castle exception-providing that no person is required to retreat within his dwelling before exercising self-defense-extends to “inhabited outbuildings,” we wish simply to point out that (1) Pond does not stand for this proposition and (2) as the case at bar does not involve an inhabited outbuilding, we need express no opinion concerning whether the castle doctrine would apply to such a building.
Contemporaneous dictionary definitions wholly support our conclusion. See, e.g., Worcester, Dictionary of the English Language (Brewer & Tileston, 1864), defining “dwelling” as “[h]abitat,ion; place of residence; residence; abode; dwelling-place”; Webster’s American Dictionary of the English Language (1828) (accord); The Oxford English Dictionary (1989), providing examples of the usage of the word “dwelling” from the years 1340 through 1863 as meaning “[a] place of residence; a dwelling-place, habitation, house.”
Accordingly, in Stallworth, this Court held that the jury’s rejection of the defendant’s claim of self-defense, resulting in a verdict of guilty of manslaughter, was not against the great weight of the evidence where there was testimony that the lolling took place on the sidewalk outside the defendant’s dwelling: This testimony portrayed “a conflict outside the home where it would have been possible for the jury to conclude that defendant might have retreated to avoid further trouble.” Id. at 535 (emphasis supplied).
There might be circumstances in which an instruction permitting the jury to consider a defendant’s failure to retreat would be improper; for instance, if the defendant was inside his dwelling when he was attacked or if the undisputed evidence established that he was suddenly and violently attacked. See, e.g., Macard, supra. In such a case there would be no basis for an instruction allowing the defendant’s failure to retreat to be considered in determining whether he acted in lawful self-defense. In the instant case, the parties disputed whether defendant had any reason whatsoever to believe that he was in danger. Thus, it was properly within the province of the jury to determine whether defendant honestly and reasonably believed that it was necessary to exercise deadly force. | [
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Per Curiam.
This case presents the question whether the trial court properly denied the prosecutor’s request for a continuance where a subpoenaed witness failed to appear on the date set for trial. We hold that the trial court abused its discretion in denying a continuance in the circumstances presented in this case. We thus reverse the judgments of the Court of Appeals and the trial court and remand the case to the trial court for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
Defendant was charged with two counts of armed robbery, MCL 750.529, and one count of possession of a firearm during the commission of a felony, MCL 750.227b. A key prosecution witness, Myron Dawson, failed to appear on the date set for trial. When the police telephoned Dawson’s home, his mother stated that Dawson had gone to Ohio two weeks earlier and that she had not heard from him since then. The prosecution thereafter moved to admit Dawson’s preliminary examination testimony under MRE 804(a)(5), (b)(1). Defendant opposed the motion.
In connection with this motion, the court conducted a hearing on whether the prosecution had exercised “due diligence” in attempting to produce Dawson for trial. Undisputed testimony reflected that Dawson had previously cooperated with the prosecution by voluntarily furnishing a statement to the police and testifying at defendant’s preliminary examination. The police had served a subpoena on Dawson one month before trial, and Dawson had given no indication that he would not appear. The officer who served the subpoena testified that Dawson was “somewhat scared,” but that he accepted and signed for the subpoena and understood his duty to appear.
The trial court found that Dawson’s failure to appear on the date set for trial had caught the prosecution by surprise and that, although Dawson had been somewhat scared when the subpoena was served, he was no more nervous than other witnesses. Despite these findings, the court found that the prosecution had not exercised due diligence because it had made no efforts to produce Dawson apart from serving the subpoena. The court stated that in lieu of admitting the preliminary examination testimony, it would give the prosecution an opportu nity to search for Dawson and would issue a bench warrant for Dawson’s arrest.
In response to this prompting, the prosecution moved for a continuance. Defendant opposed a continuance and moved to dismiss. The court then asked the prosecution to state the length of the continuance requested. An exchange followed:
Mr. McCreedy [Assistant Prosecutor]: I would request a continuance of two weeks.
Of course, if the case is dismissed without prejudice then that introduces an even longer delays [sic] than would be to continued [sic], because then we would have to start out, go back and re-arrest him and have a new opportunity for preliminary exam and bind over, arraignment, pre-trail [sic] etcetera so.
The Court: But presumably, if you find a new witness, and you schedule a preliminary exam, then to [sic] afford the defense attorney the opportunity to question him. Now, that issue should be dissolved [sic] should it have to come up again. So then if you lose the witness the second time around, you would have an opportunity to develop more fully a record; am I correct?
Mr. McCreedy: Well, your Honor, I mean our position would be that once this witness is located, I mean, we are going to be asking for a bench warrant today, we ask that he be held on that warrant. I don’t think that losing him would be an issue after he has been served and failed to appear knowing that the trial would absolutely be held.
Following a side-bar discussion with the attorneys, the court stated:
Even if the court were to afford a continuance, we don’t know exactly how long we would need in order to bring this matter back before the Court. I don’t know of any reason based in law or in fact, why this matter should be continued when the witness has failed to appear. I am going to dismiss the matter without prejudice as to [defendant].
The prosecution filed a claim of appeal. The Court of Appeals affirmed, opining that the prosecutor had not made a diligent effort to produce Dawson. The Court of Appeals further stated that the trial “court apparently did not envision [the search for Dawson] taking two weeks and the prosecutor did not request a shorter adjournment in the alternative. Therefore, under the facts of this case, we cannot find that the court abused its discretion.”
The prosecution has filed an application for leave to appeal to this Court.
H. STANDARD OF REVIEW
A trial court’s decision whether to grant a continuance is reviewed for an abuse of discretion. MCR 2.503(D)(1) (“In its discretion the court may grant an adjournment to promote the cause of justice”) (emphasis supplied); People v Williams, 386 Mich 565; 194 NW2d 337 (1972); People v Hoaglin, 262 Mich 162; 247 NW 141 (1933).
ffl. ANALYSIS
A motion or stipulation for a continuance must be based on good cause. MCR 2.503(B)(1). MCR 2.503(C) governs the granting of adjournments on the basis of the unavailability of a witness or evidence:
(C) Absence of Witness or Evidence.
(1) A motion to adjourn a proceeding because of the unavailability of a witness or evidence must be made as soon as possible after ascertaining the facts.
(2) An adjournment may be granted on the ground of unavailability of a witness or evidence only if the court finds that the evidence is material and that diligent efforts have been made to produce the witness or evidence.
(3) If the testimony or the evidence would be admissible in the proceeding, and the adverse party stipulates in writing or on the record that it is to be considered as actually given in the proceeding, there may be no adjournment unless the court deems an adjournment necessary. [Emphasis supplied.]
The trial court did not articulate clearly the basis for its decision to deny a continuance. It did not discuss the requirements of the court rule or explain precisely how the prosecution had failed to satisfy those requirements. Despite these failings, the court did make statements during the proceedings that we presume formed the basis for its decision. The court’s apparent reasoning, however, was “so palpably and grossly violative of fact and logic,” Spalding v Spalding, 355 Mich 382, 384; 94 NW2d 810 (1959), that we conclude it abused its discretion.
The court suggested that a dismissal without prejudice would allow another preliminary examination to be held and thus permit the defense to cross-examine Dawson in the event that he failed again to appear for trial. This reasoning is illogical. A preliminary examination had already been held, and the defense had already cross-examined Dawson at that proceeding. Under the prosecution’s approach, once Dawson was apprehended, his testimony could have been obtained at trial without a need to ensure his presence at further proceedings. Under the trial court’s approach, however, two additional proceedings requiring Dawson’s testimony would be needed, i.e., another preliminary examination and then a trial.
The Court of Appeals articulated another possible basis for the trial court’s decision. It stated that the trial court “did not envision [the effort to produce Dawson] taking two weeks and the prosecutor did not request a shorter adjournment in the alternative.” The prosecution’s failure to request a shorter adjournment, however, was not a valid reason to deny a continuance altogether in this case. The trial court denied the motion for a continuance without explaining how or why the prosecution’s estimate of the time needed was unacceptable. The prosecution had no opportunity to suggest a different length of time.
The trial court also suggested that the prosecution failed to make “diligent efforts” to produce Dawson, as required by MCR 2.503(C)(2). Denial of a continuance is appropriate where a party fails to demonstrate diligent efforts to serve a subpoena. See McMillan v Larned, 41 Mich 521, 522; 2 NW 662 (1879) (“There must also be search or an effort made to find the witness and serve the subpoena”); People v Burby, 218 Mich 46; 187 NW 359 (1922); Hoaglin, supra at 168 (“The affidavit annexed to the motion [for a continuance] did not show what efforts had been made to locate the witness . . . .”).
The police here successfully served the subpoena. Dawson had previously cooperated with the police and prosecution, and they had no reason to expect that his cooperation would not continue. We do not know what further efforts the court could have expected of the prosecution or police in these circumstances. We do not require the prosecutor to assume that every witness is a flight risk who must be monitored to ensure his attendance at trial.
Accordingly, we hold that the trial court abused its discretion in denying the request for a continuance. We reverse the judgments of the trial court and the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.
Corrigan, C.J., and Weaver, Taylor, Young, and Markman, JJ., concurred.
Cavanagh and Kelly, JJ., would not dispose of this case by an opinion per curiam, but would deny leave to appeal.
The prosecution also notified defendant that he was subject to an enhanced sentence as an habitual offender. MCL 769.11.
At the preliminary examination, Dawson testified that he was present when the robbery occurred and had clearly seen the defendant.
MRE 804(a) provides in relevant part:
“Unavailability as a witness” includes situations in which the declarant—
* * *
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance ... by pro cess or other reasonable means, and in a criminal case, due diligence is shown.
MRE 804(b) provides in relevant part:
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Unpublished memorandum opinion, issued October 9, 2001 (Docket No. 230421).
Although our court rule uses the term “adjournment,” the case law on this subject generally uses the word “continuance.” We use the terms interchangeably in this opinion.
The court discussed “due diligence” primarily in the context of the prosecution’s request to introduce Dawson’s preliminary examination testimony. The court suggested at one point, however, that the request for a continuance would reopen the due diligence inquiry. Given the muddled state of the record and the court’s failure to clearly articulate its reasoning in ruling on the various motions, we conclude that the court impliedly found a lack of “diligent efforts” when it denied the request for a continuance.
The prosecutor represents that certain judges of the Wayne Circuit Court Criminal Division regularly dismiss cases on the date of trial because of the failure of subpoenaed witnesses to appear, rather than granting a continuance and issuing a bench warrant or permitting introduction of the witness’ preliminary examination testimony. We do not know whether docket-management considerations motivated the denial of a continuance in this case. We take this opportunity to remind the bench, however, that MCR 2.503 governs the decision whether to grant a continuance, and that “the desire of the trial courts to expedite court dockets is not a sufficient reason to deny an otherwise proper request for a continuance.” Williams, supra at 577.
The trial court did not expressly rule on the prosecutor’s motion to admit Dawson’s preliminary examination testimony. The prosecution is free, if necessary, to renew that motion on remand. The record does not reflect whether Dawson has been located. | [
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Murphy, J.
The trial court granted summary disposition, pursuant to MCR 2.116(C)(10), in favor of plaintiff Lakeside Oakland Development, L.C., (seller) against defendants James W. Crawford and Harry Eiferle, Jr., and defendant/third-party plaintiff H & J Beef Company (buyers) in this real property action. The trial court also granted a motion for summary disposition by third-party defendants Thomas A. Duke Company and Mark W. Szerlag (realtors), pursuant to MCR 2.116(C)(8) and (10), with regard to H & J’s third-party complaint. The trial court further ordered H & J to pay $7,273 in costs and attorney fees to the realtors for filing a frivolous third-party complaint. The buyers appeal as of right in Docket No. 226903, and H & J appeals by leave granted in Docket No. 228797. The appeals were consolidated. We reverse the judgment granting the seller’s motion for summary disposition in Docket No. 226903 and remand the matter to the trial court. We affirm the judgment granting the realtors’ motion for summary disposition in Docket No. 228797; however, we reverse the order awarding costs and attorney fees to the realtors.
I. UNDERLYING FACTS
The buyers operate various Arby’s Restaurants, and in 1995, they negotiated for the purchase of land from the seller on which the buyers wished to construct an Arby’s. The seller owned several parcels, and the buyers agreed to the purchase of a one-acre parcel for $275,000. An important aspect of the purchase, according to the buyers, was an easement from the parcel they were purchasing to a side street. This easement would allow customers alternate ingress or egress to and from the restaurant, as opposed to the busy thoroughfare on which the restaurant fronted.
A purchase agreement, executed in July 1995, provided that the seller would grant the buyers a permanent easement to the side street in a location on which the seller and the buyers mutually agreed. The buyers negotiated directly with the realtors, who were acting on behalf of the seller. The buyers claim that the easement was agreed on and that the location was identified in a survey map that was prepared by a surveyor hired by the realtors. A closing was scheduled for May 10, 1996. Before the closing, the realtors sent the buyers a packet of closing documents, including the survey map highlighting the easement. The seller had executed both a warranty deed with an attached legal description of the property on which the Arby’s was to be built and a closing statement. However, there was no reference to an easement, or legal description of an easement, contained in the warranty deed or on the attached legal description of the parcel being sold. The warranty deed indicated that the property to be conveyed was as described in the attached rider. The attached legal description of the parcel being sold referred to the warranty deed. There was no document providing that the seller was granting the buyers an easement over any specific area, and the survey map contained neither language to that effect nor the seller’s signature.
The seller was not present at the scheduled closing, which was handled by the realtors, a title company, the buyers, and the buyers’ realtor. The buyers inquired about the easement, and the title company insisted on a legal description of the easement before closing the sale. The realtors promised the buyers that there would be no problem, and that they would take care of the matter by obtaining the legal description of the easement. The warranty deed, other closing documents, and the buyers’ payment were placed in escrow with the title company pending the realtors’ submission of the easement description. On May 24, 1996, the parties closed in escrow when the realtors provided the title company with a legal description of the easement. The easement description, prepared for the realtors by their surveyor on the surveyor’s letterhead, did not refer to the warranty deed or have the signature of the seller. The easement description contained no language indicating that the sellers were granting the described easement to the buyers. The buyers’ payment was released from escrow to the seller. The title company recorded the warranty deed with the two attached legal descriptions (three pages consecutively recorded).
The buyers, believing that the sale of the land with the easement was now complete, started construction of the Arby’s. Well over a year after the legal documents were recorded, and after construction was under way, the seller advised the buyers that they were trespassing because the buyers had no easement rights. The seller claimed that the buyers surreptitiously attached the easement description to the warranty deed and that it never agreed to such an easement. The conflict allegedly arose when the seller was attempting to sell the remaining parcels, over which the purported easement existed, to another party. The realtors maintained that the seller did in fact approve the easement description and the conveyance of the easement. The seller denied the realtors’ claim, and there is apparently no written authorization from the seller to the realtors to grant the easement.
H. COMPLAINT AND THIRD-PARTY COMPLAINT
The seller filed suit to quiet title, also alleging slander of title, breach of contract, and trespass. The seller sought to have voided any recorded easement in order to clear the cloud on the title, and it sought money damages. The seller alleged that there was no writing to satisfy the statute of frauds for pmposes of conveying an easement. H & J then filed a third-party complaint against the realtors. H & J sought indemnification if the seller became entitled to any damages, and it sought damages for loss of the easement if the seller succeeded in its action to have the easement voided. H & J maintained that it had done nothing wrong, and that the realtors should be held fully responsible. The realtors claimed that H & J had no cause of action because no duty was owed to H & J, only to the seller.
IE. TRIAL COURT’S RULINGS ON MOTIONS FOR SUMMARY DISPOSITION
The trial court agreed with the realtors concerning the lack of a duty, and it granted their motion for summaiy disposition and awarded them $7,273 in costs and attorney fees on the basis of the filing of a frivolous third-party complaint by H & J. The trial court subsequently granted the seller’s motion for summary disposition on the basis of the statute of frauds, and the court entered an order extinguishing the recorded easement and declaring it void ab initio. The trial court, citing MCL 566.106, found that the buyers failed to produce either a sufficient written agreement establishing conveyance of an easement or a written agreement between the seller and the realtor showing that the realtors had authority to grant the purported easement. The seller’s claim for damages was subsequently dismissed by the trial court in light of the fact that the easement was extinguished.
IV. DOCKET NO. 226903—REVIEW OF JUDGMENT GRANTING THE SELLER’S MOTION FOR SUMMARY DISPOSITION
We first address the buyers’ claim that the trial court erred in granting summary disposition pursuant to MCR 2.116(C)(10) in favor of the seller. This Court reviews de novo rulings on motions for summary disposition. Van v Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999). The buyers filed an affirmative defense based on estoppel, and they argue on appeal that the seller should be precluded from asserting the statute of frauds on the basis of the seller’s conduct and representations. We hold that there are genuine issues of material fact regarding whether the seller is estopped from relying on the statute of frauds.
In Michigan, the sale of land is controlled by the statute of frauds. Zurcher v Herveat, 238 Mich App 267, 276; 605 NW2d 329 (1999). The statute of frauds, in regards to the sale of land, is comprised of MCL 566.106 and MCL 566.108. Zurcher, supra at 276-277. MCL 566.106 provides:
No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing.
MCL 566.108 provides, in part:
Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing ....
In Forge v Smith, 458 Mich 198, 205; 580 NW2d 876 (1998), our Supreme Court, addressing issues regarding an alleged easement and the statute of frauds, stated:
An easement is an interest in land that is subject to the statute of frauds. In order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. Any ambiguities are resolved in favor of use of the land free of easements.
We believe, as a matter of law, that the documents that exist in the present case do not manifest a clear intent of the seller to create the easement claimed by the buyers. The warranty deed does not mention the transfer of an easement. The warranty deed does refer to an attached rider as constituting the description of the property being transferred, and the legal description of the fee simple being transferred refers to the deed; however, the fee description does not mention an easement. The document containing the legal description of the easement does not refer to the warranty deed or the fee simple description, nor does it contain the seller’s signature or any language indicating that the seller was transferring an easement to the buyers. The survey map contained no language granting an easement or a signature of the seller. Standing alone, the easement description is just that, an easement description. Moreover, even if the documents manifested an intent to transfer an easement, the seller claims, and it appears to be undisputed, that it never provided realtors with written authority to grant the easement as required by MCL 566.106. Therefore, if the statute of frauds were applied in the present case, the seller would be entitled to judgment as a matter of law as determined by the trial court.
In Opdyke Investment Co v Norris Grain Co, 413 Mich 354, 365; 320 NW2d 836 (1982), our Supreme Court recognized that legal doctrines, including estoppel and promissory estoppel, “have developed to avoid the arbitrary and unjust results required by an overly mechanistic application of the [statute of frauds].” The statute of frauds exists for the purpose of preventing fraud or the opportunity for fraud, and not as an instrumentahty to be used in the aid of fraud or prevention of justice. Farah v Nickola, 352 Mich 513, 519; 90 NW2d 464 (1958). The doctrine of equitable estoppel has been applied to defeat the defense of the statute of frauds where a party has acted to his detriment in reliance on oral agreements or where application of the doctrine of equitable estoppel is necessitated by the facts. Nygard v Nygard, 156 Mich App 94, 100; 401 NW2d 323 (1986). Estoppel questions should be presented to the jury where factual issues exist regarding whether a party is estopped from raising the statute of frauds defense against a party who reasonably and justifiably relied on an oral agreement. Jim-Bob, Inc v Mehling, 178 Mich App 71, 88-89; 443 NW2d 451 (1989). Although the cited cases concern situations where a plaintiff has raised estoppel or fraud to counter a defense based on the statute of frauds, we see no reason not to apply the doctrine here, where plaintiff wielded the statute of frauds as a sword and not as a shield.
We next turn to a discussion of equitable estoppel and the doctrine’s requirements in order to make a determination regarding whether the buyers presented sufficient evidence to create an issue of fact regarding whether the statute of frauds defense should be precluded. In Conagra, Inc v Farmers State Bank, 237 Mich App 109, 140-141; 602 NW2d 390 (1999), this Court, noting the general principles regarding the doctrine of equitable estoppel, stated:
Equitable estoppel is not an independent cause of action, but instead a doctrine that may assist a party by precluding the opposing party from asserting or denying the existence of a particular fact. Equitable estoppel may arise where (1) a party, by representations, admissions, or silence intentionally or negligently induces another party to believe facts, (2) the other party justifiably relies and acts on that belief, and (3) the other party is prejudiced if the first party is allowed to deny the existence of those facts. [Citations omitted.]
In the context of the present case, considering the case law cited above regarding estoppel and the statute of frauds, we believe that the relevant inquiry is whether the seller is precluded from arguing the lack of a sufficient writing (statute of frauds), and that determination must be made by the trier of fact, taking into consideration whether (1) the seller’s actions, representations, admissions, or silence intentionally or negligently induced the buyers to believe that an easement was being transferred and (2) whether the buyers justifiably relied and acted on that belief. With regard to whether the buyers would be prejudiced if the seller were allowed to invoke the statute of frauds, we have already determined that the statute of frauds would require a judgment in the seller’s favor; therefore, prejudice is established as a matter of law. We conclude that the trier of fact must determine whether equitable estoppel bars the seller’s reliance on the statute of frauds because sufficient evidence creating an issue of fact was submitted to the trial court.
The evidence presented to the court included a purchase agreement showing a sale price of $275,000 with a provision indicating that the parties intended to include as part of the transaction an easement over the seller’s remaining property to the side street. The evidence also indicated that the realtors insisted that the seller, through its representations, fully agreed to the easement as described in the attachment to the warranty deed, and that the realtors carried out the seller’s wishes through the realtors’ communications with the buyers. Further, the evidence indicated that the seller took no steps on its claims until it appeared that the existence of an easement would negatively affect the transfer of the property over which the easement was located. Finally, there was the easement description and the survey map highlighting an easement. Taking into consideration the totality of the factual circumstances, including the parties’ representations, Nygard, supra, we believe an issue of fact exists regarding whether estoppel bars the seller’s statute of frauds argument.
For purposes of direction to the trial court on remand, should this case go to trial, if the trier of fact determines that equitable estoppel is not applicable, thereby allowing the seller to assert the statute of frauds, a verdict must be entered in favor of the seller on the basis of our ruling above that the documents, as a matter of law, do not show a clear intent to create an easement in favor of the buyers and because there was no writing authorizing the realtors to transfer an easement. Forge, supra at 205, 208. However, if the trier of fact determines that equitable estoppel is applicable, thereby precluding the seller from asserting the statute of frauds, the trier of fact shall determine, considering all the admissible evidence, oral and written, whether the parties’ agreement included transfer of the easement in question.
V. DOCKET NO. 228797—REVIEW OF JUDGMENT GRANTING THE REALTORS’ MOTION FOR SUMMARY DISPOSITION AND AWARDING SANCTIONS TO THE REALTORS
We next address H & J’s claims that the trial court erred in granting summary disposition in favor of the realtors pursuant to MCR 2.116(C)(8) and (10) and in awarding costs and attorney fees to the realtors as a sanction against H & J for filing a frivolous third-party complaint. Considering the argument of the realtors below and the trial court’s ruling, we believe it appropriate to review the court’s decision as one based on MCR 2.116(C)(8). As noted above, this Court reviews de novo rulings on motions for summary disposition. Van, supra at 326.
A review of the third-party complaint indicates that H & J made two separate claims. First, H & J asserted that if it lost the easement, the realtors should be liable for the value of the easement, which H & J valued at $50,000 a year. In essence, H & J was claiming that the realtors breached a duty to correctly handle the real estate transaction. In Andrie v Chrystal-Anderson & Associates Realtors, Inc, 187 Mich App 333, 337; 466 NW2d 393 (1991), this Court stated:
In negotiating a real estate sale, any relationship between the seller’s agent and the potential buyer is a commercially antagonistic one, with each side working for his best advantage and not for the benefit of the other. We therefore conclude that a seller’s real estate broker or agent owes no duty to a potential buyer to properly convey a purchase offer to the seller.
We agree with the trial court that because the realtors were agents of the seller, the realtors had no duty to H & J based on the allegations in the third-party complaint; therefore, no liability could arise.
The second claim made by H & J in the third-party complaint, one requesting indemnification for any damages recovered by the seller against H & J, was premised on the realtors being completely at fault for any cloud on the title. H & J does not specify the legal basis for seeking indemnification. However, with regard to this particular claim, it appears that H & J is arguing a right to common-law indemnification without any reliance on a particular duty owed by the realtors to H & J. This Court has noted that the right to common-law indemnification is based on the equitable theory that where the wrongful act of one party results in another party’s being held liable, the latter party is entitled to restitution for any losses. North Community Healthcare, Inc v Telford, 219 Mich App 225, 227; 556 NW2d 180 (1996). However, a party may not seek common-law indemnity where the primary complaint alleges active, rather than passive, liability. Williams v Litton Systems, Inc, 164 Mich App 195, 198-199; 416 NW2d 704 (1987), aff’d 433 Mich 755; 449 NW2d 669 (1989). Here, the seller’s complaint against H & J is premised on active liability. Accordingly, albeit for different reasons, the trial court did not err in granting the realtors’ motion for summary disposition of H & J’s indemnification claim, because H & J’s third-party complaint failed to state a cause of action for damages or indemnification. MCR 2.116(C)(8).
The buyers also challenge the trial court’s award of costs and attorney fees to the realtors as sanctions under MCR 2.625(A)(2), which incorporates by refer ence MCL 600.2591, allowing the award of sanctions “if the court finds on motion of a party that an action or defense was frivolous . . . .” MCL 600.2591(3)(a)(iii) provides that an action is frivolous where “[t]he party’s legal position was devoid of arguable legal merit.” We review this award of sanctions based on a frivolous complaint under a clearly erroneous standard. Phinisee v Rogers, 229 Mich App 547, 561; 582 NW2d 852 (1998). We reverse the trial court’s award of costs and attorney fees because the court’s award was clearly erroneous. Considering H & J’s reliance on the realtors’ statements and actions that indicated that an easement was being transferred, and the fact that H & J dealt almost exclusively with the realtors during the entirety of the transaction, we cannot deem H & J’s attempt to hold the realtors liable for their actions as being devoid of arguable legal merit, and even the trial court incorrectly applied the “duty” analysis to H & J’s indemnification claim. Moreover, the law does provide, in certain circumstances, that a realtor may be liable to a party it does not represent in a real estate transaction. M&D, Inc v McConkey, 231 Mich App 22, 35; 585 NW2d 33 (1998) (special conflict resolution panel incorporating language from the Court’s prior vacated opinion, M&D, Inc v McConkey, 226 Mich App 801, 813; 573 NW2d 281 [1997]). For the same reasons, we decline the realtors’ request to sanction H & J for filing this appeal.
VI. CONCLUSION
We hold that the trial court erred in granting the seller’s motion for summary disposition in Docket No. 226903, and we reverse and remand for proceedings consistent with this opinion. Additionally, we hold that the trial court did not err in granting the realtors’ motion for summary disposition in Docket No. 228797; however, the court did err in awarding costs and attorney fees to the realtors as a sanction against H & J for the filing of a frivolous third-party complaint. Finally, we decline to sanction H & J for filing this appeal.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
When discussing the general facts and the action brought by the seller, we shall refer to all the defendants as the buyers; however, when discussing the third-party complaint, we shall refer to only defendant H & J because defendants Crawford and Eiferle are not named as third-party plaintiffs in that complaint.
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue regarding any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. Our Supreme Court has ruled that a trial court may grant a motion for summaiy disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). In addition, all affidavits, pleadings, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties is viewed “ ‘in the light most favorable to the party opposing the motion.’ ” Id., quoting Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
The buyers argue that pursuant to Chapdelaine v Sochocki, 247 Mich App 167; 635 NW2d 339 (2001), the seller was required to honor the purchase agreement provisions regarding an easement despite the fact that the closing documents, including the warranty deed, did not specify the granting of an easement. However, Chapdelaine is distinguishable because there this Court found that the language in the counteroffer and purchase agreement was sufficiently clear to manifest the parties’ intent with regard to the specifics regarding the easement, and that the language was not too indefinite to enforce. Id. at 172, n 2. Here, the purchase agreement, in and of itself, is too indefinite to enforce because it does not provide for the specific location, dimensions, or any other feature of the easement, other than that it would run from the Arby’s parcel to the side street. The purchase agreement left it to the parties to agree at a later date on the location of the easement. Only the easement description and the survey map contain sufficient information regarding the dimensions and placement of the easement, and, as noted above, those documents do not contain language of a grant or the seller’s signature, nor is there any document that authorized the realtors to provide the buyers with the easement description and survey map as part of the sale. Moreover, the buyers executed a document at closing that acknowledged that all the contingencies in the purchase agreement had been satisfied. For purposes of clarity on remand, we are not ruling that the purchase agreement cannot be considered by the trier of fact when evaluating the totality of the circumstances in determining if the seller is equitably estopped from arguing the statute of frauds defense.
MCR 2.116(C)(8) provides for summary disposition of a claim on the ground that the opposing party has failed to state a claim on which relief can be granted. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). All factual allegations in support of the claim, and any reasonable inferences or conclusions that can be drawn from the facts, are accepted as true. Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998).
We note, with some significance, that H & J did not allege fraud or misrepresentation against the realtors.
This Court will not reverse a trial court’s order if it reached the right result for the wrong reason. Etefia v Credit Technologies, Inc, 245 Mich App 466, 470; 628 NW2d 577 (2001). | [
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Fitzgerald, P.J.
Defendant Thomas K. Abbott is a General Motors Corporation retiree and receives a monthly pension benefit. He is currently a prisoner at a Michigan correctional facility. Plaintiff, the treasurer of the state of Michigan, filed an action pursuant to the State Correctional Facility Reimbursement Act (scfra), MCL 800.401 et seq., seeking partial distribution of defendant’s pension benefits to the state of Michigan for reimbursement of the cost of caring for defendant. On remand from the Supreme to this Court for consideration as on leave granted, defendant appeals from a final circuit court order directing defendant to change his pension address to his prison address, appointing the warden receiver of defendant’s pension checks, and directing partial distribution of the funds to the state of Michigan as reimbursement for expenses incurred for defendant’s incarceration. Defendant contends that the order violates the Employee Retirement Income Security Act (erisa), 29 USC 1001 et seq., which prohibits assignment or alienation of a participant’s pension benefits. We reverse.
I. the scfra
Under Michigan law, plaintiff may seek reimbursement for incarceration costs where the prisoner is able to pay for the prisoner’s maintenance. The purpose of the scfra is
to provide procedures for securing reimbursement to the state of the expenses incurred by the state for the cost of care of certain prisoners in state correctional facilities; to provide procedures for securing the reimbursement of expenses to be incurred by the state in regard to the future cost of care of such prisoners; and to prescribe certain powers and duties of certain state and local public officers and officials. [1984 PA 282.]
The scfra specifically includes “pension benefits” within the definition of “assets” that may be sought as reimbursement under the act. MCL 800.401a(a), 800.404.
n. the erisa
a. antialienation provision
It is undisputed that the pension plan at issue is governed by the erisa. Under the erisa, benefits pro vided under the plan may not be assigned or alienated. “Each plan shall provide that benefits provided under the plan may not be assigned or alienated.” 29 USC 1056(d)(1). The purpose of the ERISA’s proscription on alienation and assignment is to protect an employee from his own financial improvidence in dealing with third parties. The provision is not intended to alter traditional support obligations, but rather to assure that the employee and his beneficiaries reap the ultimate benefits due upon retirement. See Stinner v Stinner, 520 Pa 374; 554 A2d 45 (1989). The antialienation rule extends to voluntary and involuntary assignments such as garnishments. Commercial Mortgage Ins, Inc v Citizens Nat’l Bank of Dallas, 526 F Supp 510 (ND Tex, 1981). Similarly, courts have also held that restitution orders violate the erisa’s antialienation clause. Guidry v Sheet Metal Workers Nat’l Pension Fund, 493 US 365; 110 S Ct 680; 107 L Ed 2d 782 (1990); United States v Smith, 47 F3d 681 (CA 4, 1995).
B. PREEMPTION PROVISION
The ERISA subjects all employee benefit plans to federal regulation. It is “a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v Delta Air Lines, Inc, 463 US 85, 90; 103 S Ct 2890; 77 L Ed 2d 490 (1983); Nachman Corp v Pension Benefit Guaranty Corp, 446 US 359, 361-362; 100 S Ct 1723; 64 L Ed 2d 354 (1980). The ERISA is designed to protect “the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information” and by establishing “standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans.” 29 USC 1001(b).
The erisa includes a preemption provision that provides that the erisa will “supersede any and all state laws” to the extent that those laws “relate to” any employee benefit plan that is subject to the erisa, thereby eliminating the confusion of conflicting state regulations. 29 USC 1144(a). The preemption provision was enacted to “establish pension plan regulations as exclusively a federal concern.” Alessi v Raybestos-Manhattan, Inc, 451 US 504, 523; 101 S Ct 1895; 68 L Ed 2d 402 (1981).
c
Defendant argues that reimbursement under the scfra violates the erisa because such reimbursement amounts to an assignment of defendant’s pension benefits to plaintiff that is specifically prohibited by the erisa. 29 USC 1056(d)(1). Plaintiff contends that the order directing defendant to change his pension address to the prison and deposit of the funds into defendant’s prison account does not operate as an assignment. Rather, plaintiff contends that the erisa does not apply to funds once they are deposited into the prison account.
In State Treasurer v Baugh, 986 F Supp 1074 (ED Mich, 1997), the state treasurer brought an action against a prisoner and the prisoner’s former employer under the scfra seeking an order directing the former employer’s pension plan to deposit the prisoner’s pension benefits into his personal prison account that could be used to partially reimburse costs of the pris oner’s incarceration. The court held that the treasurer’s request violated the antialienation provisions of the ERISA and was preempted by the ERISA:
The Court agrees that once pension benefits are placed in a personal account, erisa no longer operates to protect those funds. However, in the instant case, defendant Chrysler Corp. would not be voluntarily depositing the pension funds into [the defendant’s] personal prisoner account but would be doing so only by court order. Such an involuntary transfer clearly constitutes an assignment. [Id. at 1077 (citations omitted).]
Although Baugh is not binding precedent in this Court, Yellow Freight System, Inc v Michigan, 464 Mich 21, 29, n 10; 627 NW2d 236 (2001), Baugh is entitled to respectful consideration by this Court. Id. Additionally, the holding in Baugh is consistent with analogous federal decisions in which a state was seeking to use a miscreant’s pension for restitution. See, e.g., Guidry, supra at 367-369; United Metal Products Corp v Nat’l Bank of Detroit, 811 F2d 297 (CA 6, 1987). In those cases, the courts refused to create a judicial exception to the ERISA antialienation provision for employee misfeasance or criminal misconduct:
A court attempting to carve out an exception that would not swallow the rule would be forced to determine whether application of the rule in particular circumstances would be “especially” inequitable. The impracticality of defining such a standard reinforces our conclusion that the identification of any exception should be left to Congress. [Guidry, supra at 377.]
There is no dispute that directly garnishing defendant’s pension benefits to reimburse the state would violate the erisa’s antialienation provision. Baugh, supra. Plaintiff attempts to distinguish Baugh by asserting that plaintiff did not make a claim against the pension plan in this case and did not seek an order compelling the plan to do anything. Plaintiff argues that ordering defendant to direct his pension to be sent to his prison address is consistent with Baugh and does not violate the ERISA. This argument fails for two reasons. First, defendant did not voluntarily change his pension address to his prison address and did not voluntarily have the pension funds deposited into his personal prisoner account, but rather was ordered by the court to do so. The court’s order effectively required the pension fund to make the pension payment to defendant’s prison account against defendant’s will. Such an involuntary transfer clearly constitutes an assignment and conflicts with the erisa’s antialienation provision. Second, if defendant refuses to direct the pension fund to pay the benefits to his prison account, the only method of ensuring that the benefits reach the prison account is by reliance on the order directing the fund to send the money to the prison, just as in Baugh.
Accordingly, we conclude that the order requiring General Motors to make defendant’s pension payment to defendant’s prison account against defendant’s will conflicts with, and is therefore preempted by, the erisa’s antialienation provision. Baugh, supra at 1077; Guidry, supra at 376-377.
Reversed.
JoAnn Abbott, defendant’s wife, is currently receiving approximately sixty-seven percent of Thomas’ pension at issue in this case.
State Treasurer v Abbott, 461 Mich 911 (1999).
The court noted that application of the antialienation rule in Baugh begat “an unsettling result,” but found that to hold otherwise would constitute an exception to the erisa contrary to congressional direction. Id. at 1077, citing Guidry, supra at 376.
An order forcing defendant to take his pension benefits at the prison has the same practical effect as the orders deemed prohibited in Baugh, supra, and Guidry, supra.
Black’s Law Dictionary (5th ed), p 109, defines an assignment as “[a] transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein. It includes transfers of all kinds of property including negotiable instruments.” (Citations omitted.) | [
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Gage, P.J.
Defendant appeals by leave granted the trial court’s order denying his motion for earlier parole consideration. We reverse and remand for further proceedings.
i
Following an October 1987 jury trial, defendant was convicted of possession with intent to deliver 650 or more grams of a mixture containing cocaine, MCL 333.7401(2)(a)(i), and possession of a firearm during the commission of a felony, MCL 750.227b. On November 3, 1987, the trial court sentenced defendant to a mandatory term of life imprisonment for the possession with intent to deliver conviction and a consecutive two-year term for the felony-firearm conviction. This Court later affirmed defendant’s convictions, People v Matelic, unpublished opinion per curiam of the Court of Appeals, issued September 8, 1989 (Docket No. 105679), and the Supreme Court denied defendant’s application for leave to appeal, People v Matelic, 440 Mich 910; 491 NW2d 814 (1992), and motion for rehearing, People v Matelic, 441 Mich 894; 495 NW2d 386 (1992).
In 1987 when defendant committed the crime and was convicted, MCL 333.7401(2)(a)(i) provided that an individual found guilty of possessing with the intent to deliver any mixture containing cocaine that weighed 650 grams or greater would receive a mandatory sentence of life imprisonment. Furthermore, at the time of defendant’s conviction and sentence the parole eligibility statute precluded any possibility of parole for the individual sentenced to a mandatory life term “for a major controlled substance offense.” Formerly MCL 791.234(4), currently MCL 791.234(6). These unyielding sentences reflected the Legislature’s attempt to stem Michigan-related trafficking in controlled substances and to diminish the prevalent and deleterious consequences that such trafficking in, abuse of, and addiction to controlled substances imposed on society. People v Bullock, 440 Mich 15, 55, 66 (Riley, J., concurring in part and dissenting in part), 73 (Boyle, J., concurring in part and dissenting in part); 485 NW2d 866 (1992); People v Gorgon, 121 Mich App 203, 206-207; 328 NW2d 619 (1982).
In 1998, the Legislature revisited the question of mandatory life imprisonment for traffickers in mixtures of controlled substances in amounts weighing 650 grams or more. The Legislature passed two bills that mitigated somewhat the “drug lifer” law. 1998 PA 319 amended MCL 333.7401(2)(a)(i) .to remove this subsection’s mandatory life imprisonment language, instead authorizing punishment “for life or any term of years but not less than 20 years.” 1998 PA 314 amended MCL 791.234(6) by deleting the subsection’s explicit exclusion of violators of MCL 333.7401(2) (a) (i) from parole consideration and by specifically providing for parole eligibility for such an offender after twenty years’ imprisonment if the offender “has another conviction for a serious crime,” or after 17V2 years’ imprisonment if the offender “does not have another conviction for a serious crime.” 1998 PA 314 also created MCL 791.234(10), which permits an offender convicted under MCL 333.7401(2)(a)(i) who was sentenced to life imprisonment earlier parole eligibility, 2 ¥2 years earlier than the periods set forth in MCL 791.234(6), when the sentencing court or its successor finds that the offender “has cooperated with law enforcement.” Seeking to avail himself of the Legislature’s newly fashioned parole eligibility provisions, defendant through his counsel sent the Wayne County Pros ecuting Attorney a January 19, 1999, letter expressing defendant’s “willingness to ‘cooperate with law enforcement’ ” by meeting “with any designated representative of [the prosecutor’s] office for the purpose of providing . . . such assistance as you may request.” No representative of the prosecutor’s office ever arranged to interview defendant, because it was believed that after twelve years’ imprisonment it was unlikely that defendant possessed any useful information regarding the 1987 events surrounding defendant’s conviction.
In February 1999, defendant filed a motion seeking to have the trial judge that sentenced him make a determination regarding defendant’s willingness to cooperate with the authorities. Defendant reasoned that according to the clear language of MCL 791.234(10), the determining factor with respect to cooperation constituted the willingness of a prisoner serving a life sentence for selling a controlled substance to speak with law enforcement personnel, “not whether that openness and willingness to talk to law enforcement leads to any results.” Defendant further clarified that he remained willing to cooperate with the police, the prosecutor’s office, or the trial court.
The prosecutor replied that defendant should have offered some information at the time of his 1987 conviction and that defendant’s 1999 letter represented a disingenuous attempt to qualify for earlier parole eligibility. The prosecutor suggested that the Legislature contemplated that a defendant’s cooperation would involve the defendant’s disclosure of other drug contacts “who, presumably, have not yet been charged or who are unknown to law enforcement.” The prosecutor also asserted that the retroactive parole eligi bility provisions within MCL 791.234(6) and (10) mitigated defendant’s sentence and therefore unconstitutionally infringed the Governor’s commutation power.
Defendant responded that no language within MCL 791.234(10) supported the prosecutor’s proffered interpretation that any offer of cooperation must occur temporally near a defendant’s arrest. Defendant proposed to the contrary that in light of the explicit retroactive application of the statute and the expressed lack of concern regarding the relevance of the information offered by the cooperating defendant, the statute clearly applied to any defendant who expresses a willingness to advise law enforcement personnel of “whatever he or she knows” “regardless of the age, relevance or usefulness of the information offered.” With respect to the prosecutor’s constitutional challenge to the early parole scheme, defendant argued that the prosecutor lacked standing to set forth an alleged violation of the Governor’s commutation power. Defendant urged that the Legislature’s enactment of parole eligibility provisions did not constitute a modification of the underlying life sentences. Defendant lastly argued that even if the parole eligibility provisions infringed somewhat the Governor’s commutation power, this minor interference remained constitutional because the Legislature acted pursuant to its own constitutional police power to alleviate the unduly harsh penalty imposed on an entire class of prisoners.
The trial court denied defendant’s motion for earner parole consideration because it did not agree that he had cooperated as the statute intended. The court reasoned as follows:
This present offer is distinguishable from the statutory requirement which states . . that the prisoner . . . has cooperated with law enforcement.” MCL 7[9] 1.234(9) . . . Emphasis added. Prior to the amendment of the law, there was no record to support any cooperation by the defendant in this matter. The court is not convinced that an offer to cooperate twelve years subsequent to a conviction satisfies the statutory requirement.
The court did not address in its ruling the constitutionality of the parole eligibility provisions.
H
Defendant first contends that the trial court erred in finding his January 1999 offer to meet with a representative of the prosecutor’s office insufficient cooperation to qualify him for earlier parole under MCL 791.234(10). We review de novo legal questions involving statutory interpretation. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998).
A
Well-established principles guide our statutory construction.
In determining the plain meaning of statutory language, “ ‘[t]he fair and natural import of the terms employed, in view of the subject matter of the law, is what should govern,’. . . and as far as possible, effect must be given to every word, phrase, and clause in the statute.” Id. at 330, quoting People ex rel Twitchell v Blodgett, 13 Mich 127, 168 (1865) (Cooley, J.).
In [construing statutes], our purpose is to discern and give effect to the Legislature’s intent. We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed—no further judicial construction is required or permitted, and the statute must be enforced as written. We must give the words of a statute their plain and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature’s intent. [People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999) (citations omitted).]
The disputed statutory subsection that creates the possibility of earlier parole in the event that the life-sentenced defendant cooperates provides as follows:
If the sentencing judge, or his or her successor in office, determines on the record that a prisoner described in subsection (6) sentenced to imprisonment for life for violating or conspiring to violate section 7401(2)(a)(i) of the public health code, 1978 PA 368, MCL 333.7401, has cooperated with law enforcement, the prisoner is subject to the jurisdiction of the parole board and may be released on parole as provided in subsection (6), 2‘A years earlier than the time otherwise indicated in subsection (6). The prisoner is considered to have cooperated with law enforcement if the court determines on the record that the prisoner had no relevant or useful information to provide. The court shall not make a determination that the prisoner failed or refused to cooperate with law enforcement on grounds that the defendant exercised his or her constitutional right to trial by jury. If the court determines at sentencing that the defendant cooperated with law enforcement, the court shall include its determination in the judgment of sentence. [MCL 791.234(10) (emphasis added).]
Our application of the statute under the circumstances of this case requires that we confront several questions regarding the meaning of the statute.
B
We first address the issue when the cooperation noted by the statute must occur to qualify a defendant for parole years earlier. The trial court concluded that defendant’s offer to speak with the prosecutor did not constitute sufficiently timely cooperation because it occurred only after the Legislature’s 1998 amendments of MCL 791.234. We find within the statute no support for the trial court’s interpretation that a defendant’s cooperation must have occurred before the Legislature’s enactment of 1998 PA 314. The statute clearly contemplates that the trial court must determine that a defendant “has cooperated with law enforcement” at some point in the past, but lacks any language whatsoever prescribing an appropriate window of opportunity during which the cooperation must have occurred. Our engrafting onto the statute a temporal limitation with respect to a defendant’s opportunity to cooperate, where one otherwise plainly cannot be ascertained within the statutory language, would infringe improperly the Legislative authority to promulgate laws. See In re Juvenile Commitment Costs, 240 Mich App 420, 427; 613 NW2d 348 (2000) (“Nothing may be read into the statute that is not within the manifest intent of the Legislature as gathered from the act itself.”).
The prosecutor, in a contention that we find somewhat appealing to our sense of logic, argues in support of the trial court’s temporally restrictive interpretation of MCL 791.234(10) as follows:
Any offers of cooperation would necessarily refer to naming individuals with whom the defendant conspired in the illicit drug trade. This would, of course, relate to his first hand knowledge of those with whom he had contact and who, presumably, have not yet been charged or who are unknown to law enforcement. Thus, any offer of “cooperation” must necessarily relate to people and events close in time to the defendant’s arrest—not twelve years later. At this point, any “information” which [defendant] may offer would be hopelessly stale or perhaps even contrived.
If the Legislature in enacting 1998 PA 314 shared any of these thoughts of the prosecutor, however, the Legislature for one reason or another ultimately failed to draft 1998 PA 314 to achieve the result imagined by the prosecutor. As we observed above, the Legislature incoiporated no temporal limitation of a defendant’s opportunity to cooperate with law enforcement.
Furthermore, the plain and unambiguous language of the statute defeats the prosecutor’s suggestion that cooperation cannot exist when a defendant offers stale advice or information otherwise unhelpful to law enforcement. MCL 791.234(10) plainly provides that a “prisoner is considered to have cooperated with law enforcement if the court determines on the record that the prisoner had no relevant or useful information to provide.” (Emphasis added.) Consequently, we must interpret the statute to achieve the plain legislative intent that a law enforcement or judicial characterization or perception of a defendant’s information as insignificant or unworthy cannot weigh against a finding that the defendant nonetheless cooperated. Morey, supra. We conclude that the trial court improperly interpreted MCL 791.234(10) to preclude the possibility of defendant’s cooperation on the basis of its staleness or tardiness. The trial court’s interpretation read too much into the otherwise plain language of the statute.
c
Despite our many references to cooperation, we have to this point not considered the meaning of “cooperation” or “cooperate” as used in MCL 791.234(10), the question to which we now turn. Because the statute nowhere defines “cooperate,” other than indicating that cooperation is deemed to occur when “the prisoner had no relevant or useful information to provide,” and because the scope of appropriate cooperation appears reasonably disputed and therefore ambiguous, In re Juvenile Commitment Costs, supra, we consulted dictionary definitions to aid our goal of construing the terms of the statute in accordance with their ordinary and generally accepted meanings. Morey, supra. To “cooperate” means “to work or act together or jointly for a common purpose or benefit” or “to work or act with another or other persons willingly and agreeably,” and “cooperation” similarly means “more or less active assistance from a person.” The Random House Dictionary of the English Language: Unabridged Edition (1971), p 321.
The statute appears not to limit the subject or topic of a defendant’s cooperation. Por instance, the statute does not expressly anticipate cooperation involving only information regarding trafficking in controlled substances. Because the statute refers to cooperation with law enforcement, however, we find that we reasonably may infer from this language that a defendant’s proffered information must somehow poten tially relate to the duties of law enforcement, i.e., to prevent crime and to protect public safety. Given the lack of direction and specificity of the statute, however, we cannot conclude that cooperation would not likewise encompass a defendant’s willingness to act as an undercover agent or informant, to provide advice to law enforcement regarding some general knowledge of criminal enterprises irrelevant to any one particular crime or investigation, or to offer to answer telephones at a jail or police precinct, to name just a few possibilities.
Although we searched the available legislative history for guidance in interpreting the intended meaning of “cooperate,” as used in MCL 791.234(10) we located only echoes of our own confusion regarding the Legislature’s intent in drafting this subsection. We empathize with the expression of the difficulties and the uncertainties with the cooperation provision that is reflected in the following passage from a second legislative analysis:
The provisions of Senate Bill 281 that allow for the early release of a prisoner who has “cooperated with law enforcement” are extremely vague . . . and will likely result in a flood of appeals. In essence, a prisoner who was determined to have “cooperated” with law enforcement would be eligible for parole 2Va years earlier than the 20- or 17y2-year minimum. Unfortunately, the bill contains no specific information regarding what sort of cooperation would be eocpected and when it would be expected. In fact, the bill contains only two limitations—that a defendant’s exercise of his or her constitutional right to a trial by jury could not be treated as a failure or refusal to cooperate, and that a prisoner could be considered to have cooperated if a court determined that the prisoner had no relevant or useful information to provide. The lack of further information, definitions, or guidelines raises many questions. What is “relevant or useful information?” Relevant and useful to whom and for what? Relevant and useful to the crime being prosecuted? Relevant and useful to the prosecution of drug crimes in general? To crime in general? Presumably, the intent is to help prosecutors obtain information on others involved in the illegal drug trade, but this is not specified in the bill. Without clarification, it could be reasonably argued that a prisoner should only be deemed to have failed to cooperate when he or she refused to provide information that was “relevant and useful” to the specific crime for which he or she was accused. Equally supportable arguments could be made for interpretation of “relevant and useful” as covering information of other drug-related crimes or even non-drug related crimes. Less effective arguments could be made for stretching the definition even further— what about information on illegal aliens? Information that might help the local sheriff or judge in his or her campaign for re-election? Obviously a line should be drawn—at some point such information would no longer be appropriate— but without language in the bill to define “relevant and useful information,” that line will have to be set through the appellate process in the courts of this state and possibly the United States.
. . . Relevance and usefulness depend upon context . . . and the bill leaves provision of a context to the inference of the reader. . . . [House Legislative Analysis, HB 4065 & SB 281, (Second Analysis), January 26, 1999, pp 9, 10 (emphasis added).]
Fortunately, our decision in this case does not demand that we undertake the enormous task of enumerating every conceivable example of law enforcement assistance that could constitute cooperation under MCL 791.234(10).
This defendant apparently intended to assist law enforcement by providing them some information. We merely conclude that despite the uncertain legislative intent regarding the type of cooperation anticipated from defendants with life sentences for controlled substances convictions, where a defendant provides some information potentially pertinent to law enforcement duties, cooperation has occurred for purposes of MCL 791.234(10). We recognize that a defendant’s provision of sports scores, stock market information, or entertainment gossip clearly would fall beyond the scope of MCL 791.234(10) because such information would possess no conceivable potential to aid any law enforcement activity. To deem “cooperate [] with law enforcement” to include a defendant’s offer of information regarding any subject however far removed from applicability to law enforcement would create the absurd result that a defendant with no intent to assist law enforcement could provide the police with information totally unrelated to law enforcement and yet earn entitlement to parole eligibility 2V2 years earlier. People v Stephan, 241 Mich App 482, 497; 616 NW2d 188 (2000) (noting that statutes should be construed to prevent absurd results). We urge the Legislature to review our interpretation of MCL 791.234(10) and to clarify to what extent it expected a defendant to cooperate.
D
In this case defendant proposed “to meet with any designated representative of [the prosecutor’s] office for the purpose of providing you with such assistance as you may request,” and the defense counsel at the trial court hearing regarding cooperation advised the court that defendant’s offer remained open. The trial court did not consider, however, to what extent defendant might be able to assist law enforcement.
We agree with the trial court’s suggestion that an offer to cooperate is not the equivalent to actual cooperation. We wish to emphasize the distinction between a defendant’s mere general expression of intent to offer law enforcement some unspecified assistance, as defendant made in this case, and a defendant’s demonstration of some specific information or assistance that he extended to some law enforcement employee. We find an unsubstantiated general expression of intent to cooperate, without more, insufficient to satisfy the statutory definition of cooperation with law enforcement.
Because we cannot determine from the instant record exactly what information or assistance defendant intended to lend the prosecutor, we must remand to the trial court for the purpose of conducting a hearing to determine whether defendant could provide law enforcement any specific information potentially germane to the execution of law enforcement duties. According to the plain statutory language, which we are bound to enforce, the trial court shall deem defendant to have cooperated if he provides law enforcement any specific information pertaining to the execution of law enforcement duties, even if law enforcement ultimately deems the information irrelevant to its current duties or investigations or otherwise has no use for the information.
m
Defendant next argues that the 1998 legislative enactments providing parole eligibility for prisoners previously sentenced to mandatory terms of life imprisonment without parole do not unconstitutionally burden the gubernatorial clemency powers. We review constitutional questions de novo. People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999). Although the trial court’s failure to consider this issue renders it unpreserved, we nonetheless consider this claim of constitutional error because it involves a dis-positive legal question and the record is factually sufficient. People v Grant, 445 Mich 535, 546-547; 520 NW2d 123 (1994); People v Brown, 220 Mich App 680, 681; 560 NW2d 80 (1996).
The prosecutor argued before the trial court and maintains on appeal that the Legislature’s extension of parole eligibility to all defendants sentenced to life sentences for controlled substances convictions before the enactment of 1998 PA 314 qualified as a sentence modification that violated the Governor’s exclusive constitutional commutation power, Const 1963, art 5, § 14. Defendant responds that the parole eligibility provisions of 1998 PA 314 do not constitute modifications of the existing life sentences. Defendant further replies that even viewing the act’s authorization of parole as a sentence modification for one class of prisoners, the act nonetheless qualifies as constitutional because it falls within the Legislature’s constitutional police power authority and did not otherwise restrict the Governor’s clemency powers.
A
In two cases that we find instructive, the Supreme Court considered whether legislative acts affecting the terms of prisoners’ and jail inmates’ confinements unconstitutionally assumed the Governor’s commutation power. In Oakland Co Prosecuting Attorney v Dep’t of Corrections, 411 Mich 183, 186; 305 NW2d 515 (1981), the Court addressed the Prison Overcrowding Emergency Powers Act. The act permitted “the Governor to declare a state of emergency whenever prison population exceeds available bed space for 30 consecutive days,” and “on this declaration, for the Director of the Department of Corrections to reduce the minimum terms of those prisoners who have established minimum terms by 90 days.” Id. at 188-189. The Supreme Court held, id. at 195, that irrespective of whether it characterized the release of prisoners under the act a commutation, the act qualified as constitutional because it fell within the Legislature’s authority under Const 1963, art 4, § 45 “to provide for the ‘release of persons imprisoned or detained on [indeterminate] sentences.’ ” The Court explained that legislative sharing of the commutation power was authorized by Const 1963, art 4, § 45, and concluded as follows:
The legislative history available to us demonstrates that a commutation in derogation of the Governor’s power was not intended; instead this legislation was part of a broad-based effort at correctional reform. The purpose of the instant legislation is to reduce the intolerable level of overcrowding which characterizes Michigan’s prison system. As part of a broad-based effort at correctional reform, it was intended to deal with a systemwide problem. Although the retroactive reduction of minimum sentences because of prison overcrowding has consequences similar to commutation, it derives from a wholly separate constitutional grant of power. The legislation was within the constitutional grant of authority to the Legislature in art 4, § 45 .... Further, the Legislature has done nothing to directly interfere with the Governor’s function; he remains free to pardon or commute the sentences of individual prisoners as he, in his discretion, feels the circumstances warrant. [Oakland Co Prosecuting Attorney, supra at 196-197 (emphasis added).]
Six years later, the Supreme Court addressed whether the county jail overcrowding act infringed the Governor’s power of executive clemency. Kent Co Prosecutor v Kent Co Sheriff (On Rehearing), 428 Mich 314, 317; 409 NW2d 202 (1987). The county jail act permitted reduction of “low-risk” inmates’ terms of incarceration when certain emergency conditions arose. Id. at 317-318. The Court initially considered whether the act served a proper legislative purpose, finding that the purpose of the act, “to reduce or eliminate the evils fostered by overcrowded jails,” fell within the Legislature’s plenary power over matters affecting public health and welfare, specifically Const 1963, art 4, § 51. Kent Co Prosecutor, supra at 319-321.
The Supreme Court next ascertained whether the act nonetheless had the effect of unduly interfering with the Governor’s commutation power. Id. at 321-324. The Court preliminarily noted that “it is not necessarily fatal to this legislation that, when considered in a vacuum, it appears to interfere with the Governor’s executive powers.” Id. at 321. According to constitutional separation of powers principles,
“the proper inquiry focuses on the extent to which [the act] prevents the Executive Branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.” [Id. at 322 (emphasis omitted), quoting Nixon v Administrator of General Services, 433 US 425, 443; 97 S Ct 2777; 53 L Ed 2d 867 (1977).]
The Court concluded that the jail overcrowding act did not authorize commutations violative of the Governor’s constitutional powers because commutations are acts of individualized clemency reflecting a specific prisoner’s personal characteristics and behavior, distinguishable from the sentence reductions under the act that are prompted by generalized jail conditions. Id. at 323-324. The Court explained that the extent of a jail overcrowding emergency, not the inmates’ individual characteristics, governed the number of inmates benefiting from sentence reductions and observed the different goals served by commutation, which benefits one prisoner exclusively, and the jail overcrowding act, which by reducing overcrowded jails would benefit the earlier-released inmates and those inmates remaining incarcerated. Id. at 324.
B
We first consider whether in this case a proper legislative purpose supported 1998 PA 314. The legislative history reflects several arguments in favor of the Legislature’s passage of 1998 PA 314. The second analysis regarding 1998 PA 314 observed that abolition of the mandatory life sentence and creation of parole eligibility for prisoners already serving fife sentences for controlled substances convictions would remedy the injustice occasioned by the indiscriminate application of the then existing, unduly harsh mandatory life sentence. House Legislative Analysis, HB 4065 & SB 281 (Second Analysis), January 26, 1999, p 7. By amending MCL 791.234(6) to provide for parole eligibility for the class of over two hundred prisoners previously sentenced to mandatory life terms for controlled substances convictions while amending MCL 333.7401(2)(a)(i) to remove the mandatoiy life term, the Legislature apparently sought to maintain the integrity of its sentencing scheme to ensure that prisoners convicted of the same crime did not have to serve disparate sentences solely on the basis of the dates they were convicted and sentenced. No indication exists that the Legislature desired to effect the commutation of the sentence of any individual prisoner on the basis of the personal characteristics of the prisoner.
The available legislative history also expressed that, “despite a huge prison expansion program over the past decade, prisons are still overcrowded,” and the mandatory life terms of imprisonment
threaten^] the state’s limited prison capacity and already overburdened taxpayers. The policy not only doesn’t make sense financially, it also can result in the early release—due to lack of space—of such violent offenders as rapists and armed robbers, who probably pose a greater danger to more of the state’s citizens than those involved in illegal drugs. [Second House Legislative Analysis, supra at 8.]
See also House Legislative Analysis, SB 280 & 281, December 4, 1997, pp 6-7, containing similar arguments supporting parole eligibility for prisoners serving life sentences for controlled substances convictions. The December 1997 House Legislative Analysis, id. at 1, also noted that “many convicted drug offenders are nonviolent but expensive to keep incarcerated.” The legislative aims to lessen prison overcrowding, save taxpayer dollars, and avoid to some extent the premature return to society of certain violent offenders represent proper purposes within the Legislature’s plenary authority over public health and welfare matters, Const 1963, art 4, § 51. Kent Co Prosecutor, supra at 320-321.
We further find that 1998 PA 314 does not effectively interfere with the Governor’s commutation power. The eligibility for parole created by the amendment of MCL 791.234(6) and MCL 791.234(10) by the act does not qualify as a commutation. The Supreme Court repeatedly has explained that a legislative authorization of parole for a prisoner does not constitute a commutation.
“We . . . held [in People v Cook, 147 Mich 127; 110 NW 514 (1907) and In re Casella, 313 Mich 393; 21 NW2d 175 (1946)] that such release by parole was not a commutation of the sentence as such parolees remained under the surveillance of the prison authorities and upon violation of the parole would be returned to the prison to serve the balance of the sentences without any deduction of the time during which they had been released on parole. [Oakland Co Prosecuting Attorney, supra at 192 (emphasis added), quoting People v Freleigh, 334 Mich 306, 309; 54 NW2d 599 (1952).]
This Court also has recognized that a paroled prisoner remains under his original sentence:
Parole is a conditional release; a paroled prisoner is technically still in the custody of the Department of Corrections, which is executing the sentence imposed by the court. ... If parole is successfully completed, the remaining portion of the sentence is discharged as a “gift” from the executive branch. . . . However, unless and until parole is successfully completed, “the prisoner is deemed to be still serving out the sentence imposed upon him by the court.” [People v Raihala, 199 Mich App 577, 579-580; 502 NW2d 755 (1993), quoting In re Dawsett, 311 Mich 588, 595; 19 NW2d 110 (1945).]
Consistent with the foregoing authorities, we conclude that the Legislature’s authorization of parole eligibility for prisoners serving life sentences for controlled substances convictions, who if released on parole would remain under the surveillance of prison authorities, does not encroach on the Governor’s commutation power. The Governor remains free to exercise his constitutional powers of clemency with respect to individual prisoners serving life sentences for controlled substances convictions “as he, in his discretion, feels the circumstances warrant.” Oakland Co Prosecuting Attorney, supra at 197.
The prosecutor suggests that the Legislature’s conditioning of earlier parole on a prisoner’s cooperation with law enforcement constitutes an unlawful commutation because “the statute has clearly created a condition which is highly individualized and is intended solely for the benefit of that prisoner only.” We observe, however, that the Legislature, motivated by general concerns for the public welfare including an unfairly disparate sentencing scheme and prison overcrowding, provided within MCL 791.234(6) and 791.234(10) for the earlier parole of the entire sub class of drug lifers that have cooperated with law enforcement. The intent of the Legislature in enacting MCL 791.234(10) was to authorize earlier parole eligibility for this entire subclass of prisoners, irrespective of any individual prisoner’s unique personal characteristics or circumstances, and that provision does not contemplate any specific prisoner’s exclusive release on parole. Kent Co Prosecutor, supra at 323-324.
The prosecutor further contends that Oakland Co Prosecuting Attorney, which involved the Legislature’s passage of a law providing for release of prisoners imprisoned under indeterminate sentences, id. at 194, offers no guidance in the instant case involving the Legislature’s authorization of parole that alters a previously mandatory term of life imprisonment. In Kent Co Prosecutor, supra at 325, however, the Supreme Court rejected the prosecutor’s similar argument “that Oakland Co can be distinguished from the present case because the jail overcrowding act affects determinate, rather than indeterminate, sentences, and the Legislature does not have a constitutional grant of authority over the former as it does over the latter.” The Supreme Court concluded that “the Legislature, in confronting the present situation affecting the common good, can incidentally reduce jail sentences whether indeterminate or not” Id. at 326 (emphasis added).
As previously discussed, in this case the Legislature apparently enacted 1998 PA 314 (1) to create uniformity with respect to the penalties imposed for violations of MCL 333.7401(2)(a)(i) by bringing preamendment sentences into line with the terms of punishment to be imposed under the amended version of MCL 333.7401(2)(a)(i), (2) to alleviate to some degree the persistent problem of prison overcrowding, (3) to save taxpayers the cost of lifetime incarcerations of violators of MCL 333.7401(2)(a)(i), and (4) to reduce the likelihood that other felons who were violent might obtain early release on parole because of prison overcrowding resulting from nonviolent drug offenders not being eligible for parole. Because the primary purposes of 1998 PA 314 all serve the public good, we conclude that the Legislature acted properly to the extent that it incidentally reduced the prison terms of prisoners previously convicted of drug offenses that carried life sentences without the possibility of parole. Kent Co Prosecutor, supra at 326.
We reverse the trial court’s order denying defendant’s motion for earlier parole consideration and remand for a hearing to determine to what extent, if any, defendant can provide law enforcement cooperation as contemplated by MCL 791.234(10). We do not retain jurisdiction.
Cavanagh, J., concurred.
MCL 791.234(6) currently provides in relevant part as follows:
A prisoner under sentence for life,... except as provided in subsection (10), who has served 20 calendar years of the sentence in the case of a prisoner sentenced to imprisonment for life for violating or conspiring to violate section 7401(2)(a)(i) of the public health code . . . who has another conviction for a serious crime, or, except as provided in subsection (10), who has served 17V2 calendar years of the sentence in the case of a prisoner sentenced to imprisonment for life for violating or conspiring to violate section 7401(2)(a)(i) of the public health code . . . who does not have another conviction for a serious crime ... is subject to the jurisdiction of the parole board and may be released on parole by the parole board ....
The definition of a “serous crime” appears within MCL 791.234(ll)(a).
Current subsection 10 was designated subsection 10 in 1998 PA 314, but became subsection 9 following the amendments of 1998 PA 512, only to again become subsection 10 following the amendments of 1999 PA 191.
The prosecutor posits that “[o]ffers to cooperate with law enforcement must necessarily have some value no matter how insignificant in the investigation of crime.”
We note that two recent cases criticize the “absurd result” rule of statutory interpretation when applied by courts that did not first detect any statutory ambiguity that the absurd result rule would help resolve. People v McIntire, 461 Mich 147, 155-157, nn 2 & 3; 599 NW2d 102 (1999); Gilbert v Second Injury Fund (On Remand), 244 Mich App 326, 331-333; 625 NW2d 116 (2001). We further note that in this case we have found ambiguous the term “cooperate.”
We note that in the January 14, 2000, order granting defendant’s application for leave to appeal, this Court directed that defendant “brief the issue of the constitutionality of MCL 791.234([10]) in light of the governor’s power of commutation.”
The Supreme Court summarized the workings of the county jail overcrowding act as follows:
The jail overcrowding act directs a county sheriff to declare a jail overcrowding state of emergency when the general prisoner population of a county jail exceeds one hundred percent of the rated design capacity of the jail. Upon a declaration of emergency, the sheriff is directed to notify designated county executive and judicial officers of the emergency and is exhorted to reduce the prison population by existing legal means such as pretrial diversion, reduction in the bonds of prisoners, and use of day parole. If these steps do not reduce the jail population sufficiently to eliminate jail overcrowding, the sheriff is directed to supply the chief circuit judge of the county with the name of each prisoner, along with the details of the prisoner’s sentence and the offense for which he was convicted. The chief judge is directed to classify the prisoners into two categories, those whose release would present a high risk to the public safety, and those whose release would not present such a risk. The sheriff is then directed to reduce the sentences of the low-risk prisoners by an equal percentage, set by the chief circuit judge, until the overcrowding is alleviated. [Id. at 317-318.]
The second legislative analysis regarding SB 281 noted that during “fiscal year 1996-97, the cost of incarceration was about $24,350 per prisoner.” Second House Legislative Analysis, supra at 5.
We note that the Supreme Court in Oakland Co Prosecuting Attorney, supra, declined to hold that a distinction existed between “release on parole, when the parolee remains subject to the supervision of and possible recall by the parole board, from release on unconditional pardon or commutation of sentence” because such a finding became unnecessary in light of the Court’s conclusion that the prison overcrowding act came within the Legislature’s constitutional power over indeterminate sentences. Id. at 194.
Because we have determined that 1998 PA 314 does not infringe the gubernatorial commutation power, we need not find “a constitutional grant of authority to alter determinate sentences.” Kent Co Prosecutor, supra at 325.
We also note our rejection of the prosecutor’s reliance on Freleigh, supra, for the proposition that in this case the Legislature may not enact a law infringing the Governor’s commutation power. The act at issue in Freleigh, 1951 PA 159, authorized a judge to revisit, vacate, and modify a sentence previously imposed, which sentence amendment the Supreme Court deemed violative of the Governor’s commutation power. Freleigh, supra at 307, 309-310. Unlike Freleigh, this case involves the Legislature’s action to authorize a prisoner’s release on parole, which does not represent a sentence amendment. Oakland Co Prosecuting Attorney, supra at 192; Raihaln, supra. | [
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Per Curiam.
Defendant Michael’s Food Center appeals by leave granted from an order of the circuit court denying its interlocutory application for leave to appeal and stay of proceedings. This Court has stayed any further proceedings below pending the outcome of this appeal. We reverse and remand to the circuit court.
This case has a long history that began when plaintiffs Vincent Hurt and Darrell Hicks were detained by a security guard at defendant’s store in February 1983 for allegedly shoplifting a jar of peanut butter. No charges were brought against Hurt, and a misdemeanor charge of larceny under $100 brought against Hicks was later dismissed. Eventually, Hurt brought suit in the circuit court against defendant for false imprisonment and assault and battery. Hicks was later added as a party, alleging false imprisonment and malicious prosecution. Pursuant to § 641 of the Revised Judicature Act (RJA), MCL 600.641, the case was removed to the district court, and trial was held in December 1989. Following a verdict in plaintiffs’ favor, the district court entered judgments of $115,000 in favor of Hurt and $175,000 in favor of Hicks. On appeal, the circuit court affirmed Hurt’s judgment but reversed Hicks’ judgment. This Court affirmed the reversal of Hicks’ judgment, reversed the affirmance of Hurt’s judgment, and remanded the case for further proceedings in the district court. Hurt v Michael’s Food Ctr, Inc, 220 Mich App 169; 559 NW2d 660 (1996) (hereinafter Hurt I).
After our decision in Hurt I, § 641 of the RJA was repealed by the Legislature effective January 1, 1997. 1996 PA 374, § 5. Under § 641, a circuit court could remove an action to the appropriate district court without the consent of the parties if the circuit court concluded that the damages sustained were less than the statutorily established jurisdictional limitation of the district court. MCL 600.641(1). Further, a judgment to the extent demanded could lawfully be entered by the district court, even though the amount exceeded the court’s jurisdictional limitation. MCL 600.641(5). MCR 4.003, the court rule implementing the statute, was repealed on May 8, 1997.
In January 2000, defendant filed a motion in the district court to cap plaintiffs’ damages at the jurisdictional limit of $25,000. Defendant argued in its brief in support of the motion that the repeal of § 641 meant that the district court no longer had the authority to enter a judgment in excess of its jurisdictional limitation. In the alternative, defendant requested that the case be transferred to the circuit court in which it was originally filed. Plaintiffs opposed the motion, arguing that no vehicle to send the case to the circuit court existed, and in any event, the repeal of § 641 should be given only prospective application because retrospective application would violate due process in that it would deprive them of a vested right to litigate for the total damages done. At a June 2000 hearing on the motion, the district court concluded that “after having the remand, one jury trial with a verdict in excess of twenty-five thousand dollars, legally and equitably speaking I don’t think it would be appropriate” to cap the damages at $25,000. The issue of transfer was not raised by the parties or addressed by the court at the hearing, nor was it mentioned in the district court’s order denying the motion.
The issue before us is whether the repeal of § 641 of the RJA should apply retroactively to cases pending but not finalized at the time of its repeal. Resolving this question requires application of the rules of statutory construction.
In general, when the Legislature repeals a statute, the right to proceed under the repealed statute is ter minated for all future cases. See Minty v Bd of State Auditors, 336 Mich 370; 58 NW2d 106 (1953); Cusick v Feldpausch, 259 Mich 349; 243 NW 226 (1932). However, the repeal of a statute does not take away a vested right, which remains enforceable despite the repealer. Cusick, supra at 351-352. Plaintiffs argue that they have a vested right to have a trial in the 36th District Court. We disagree.
Courts have often struggled with the task of determining whether a right is vested or inchoate. As our Supreme Court has observed, “A few courts have frankly recognized that policy considerations, rather than definitions, are controlling, and have defined a vested right as a right of which the individual could not be deprived without injustice.” Wylie v Grand Rapids City Comm, 293 Mich 571, 587; 292 NW 668 (1940).
“In its application, as a shield of protection, the term ‘vested rights’ is not used in any narrow or technical sense, or as importing a power of legal control merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect, and of which the individual could not be deprived arbitrarily without injustice.” [Id., quoting 2 Cooley, Constitutional Limitations (8th ed), p 745.]
Pending causes of action that accrued while a statute was in force are also considered vested rights and thus are not divested by a repeal of the statute. MCL 8.4a; Minty, supra at 389-391; Cusick, supra at 351- 353.
Accordingly, plaintiffs do have a vested right to have their case heard. However, they do not have a vested right to the forum in which this will occur. “No vested right can exist to keep statutory procedural law unchanged and free from amendment,” Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 485; 124 NW2d 286 (1963); “[s]o long as a substantial and efficient remedy remains or is provided [,] due process of law is not denied by a legislative change,” Crane v Hahlo, 258 US 142, 147; 42 S Ct 214; 66 L Ed 514 (1922). Absent a saving clause stating otherwise, a repealer that changes a mode of procedure by altering or terminating a court’s jurisdiction applies to all accrued, pending, and future actions as long as it does not affect vested rights. Baltimore & P R Co v Grant, 98 US 398, 401; 25 L Ed 231 (1878) (observing “that if a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law”); Etefia v Credit Technologies, Inc, 245 Mich App 466, 482; 628 NW2d 577 (2001) (stating that an amendment of a jurisdictional statute is excepted from the rule that statutory amendments apply prospectively because a jurisdictional statute is procedural in nature). 1996 PA 374 does not contain a saving clause for those cases removed to the district court under § 641 and MCR 4.003. Plaintiffs’ opportunity to have their case heard in the circuit court remains, thus their vested right to the cause of action is unaffected and due process is satisfied.
The repeal of § 641 means that the district court does not have jurisdiction over this case. Because the case was originally filed in the circuit court, we remand to the circuit court for further proceedings. We do not retain jurisdiction.
MCL 600.641 read in pertinent part:
(1) If it appears at the conclusion of a pretrial hearing on an action commenced in the circuit court that the amount of damages sustained may be less than the jurisdiction limitation as to the amount in controversy applicable to the district court, the circuit judge may remove, without the consent of the parties, the action to a district court within the county which would have had jurisdiction but for the amount of damages demanded and in which venue would have been proper. . . .
(5) If the action is removed, then the verdict or judgment shall be lawful to the extent of the amount demanded, notwithstanding the jurisdiction limitation as to the amount in controversy otherwise applicable to cases commenced in the district court.
MCR 4.003 read in pertinent part:
(A) Removal to District Court.
(1) The circuit court may order an action removed to the district court pursuant to MCL 600.641; MSA 27A.641 on its own initiative or on motion of a party only if
(a) it appears that the damages sustained, without regard to questions of liability, may be less than the jurisdictional limitation as to the amount in controversy applicable to the district court, and
(b) removal will expedite the trial and disposition of the action. The court’s findings under this subrule must be stated on the record or included in the order removing the action.
(2) An action may be removed only to a district in which venue would have been proper. If venue would have been proper in more than one district within the circuit, the removal order shall designate the district to which the action is removed.
* * *
(E) ... An action removed to the district court under this rule may not be transferred to the circuit court on the ground that the damages may exceed the jurisdictional limitation of the district court.
MCL 600.8301(1).
The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. [MCL 8.4a.]
In Bejger v Zawadski, 252 Mich 14, 18-20; 232 NW 746 (1930), our Supreme Court quoted Sutherland Statutory Construction (2d ed), §§ 282 and 283 for the following propositions:
“The general rule is that when an act of the legislature is repealed without a saving clause, it is considered, except as to transactions past and closed, as though it never existed.” [quoting Lewis’ Sutherland Statutory Construction (2d ed), § 282.]
* * *
“Rights dependent on a statute and still inchoate, not perfected by final judgment or reduced to possession, are lost by repeal or expiration of the statute.” [quoting statutory Construction, supra, § 283.3.]
Bejger was decided before the enactment of MCL 8.4a 1931 PA 25. Further, to the extent that Bejger conflicts with Minty and Cusick, we conclude that these later cases overruled by implication the Bejger Court’s analysis.
However, when a case has been prosecuted to its conclusion, rights in the final judgment are vested, and a subsequent repeal of the statute conferring jurisdiction on the court in which the case was heard does not undermine the legitimacy of the judgment. | [
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Saad, P.J.
Plaintiff appeals as of right from the trial court’s orders granting summary disposition to defendants, Barry Rubin, Bare Snow and Landscaping (Bare Snow), and Larry Garlinghouse. We affirm.
i. facts and procedural history
Barry Rubin and his wife Debra hired Valary Joyce about July 12, 1997, as a live-in caregiver for their mentally impaired daughter. Joyce lived and worked at the Rubins’ home in West Bloomfield until March 1998, when she left to work as a mortgage banker. On March 10, 1998, as Joyce was removing her personal belongings from the Rubins’ home, she fell on the sidewalk leading to the Rubins’ front door.
On October 29, 1998, Joyce filed a complaint against Barry Rubin, alleging that he insisted she move on March 10, despite her reluctance because of snowy weather, and that he breached his duty to maintain safe premises and did nothing to alleviate the dangerous, snowy conditions that caused her fall. On February 1, 1999, Joyce amended her complaint to add a claim against Bare Snow and Garlinghouse, who contracted with Barry Rubin to remove snow from his driveway. Joyce claimed that her injury occurred because Bare Snow and Garlinghouse negligently failed to perform under their contract with Barry Rubin to shovel snow and salt the sidewalk on March 10.
Barry Rubin, Bare Snow, and Garlinghouse filed motions for summary disposition under MCR 2.116(C)(10). Following oral argument, the trial court granted the motions. The trial court ruled that (1) there was no genuine issue of material fact regarding Joyce’s knowledge of the condition of the walkway, (2) the condition was open and obvious, and (3) the risk of harm was not unreasonably dangerous. The court further ruled that, though Bare Snow and Garlinghouse owed Joyce a common-law duty of ordinary care in performing their contract with Barry Rubin, there was no genuine issue of material fact regarding a breach of a duty owed under the contract that would give rise to a breach of a duty of due care.
H. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews de novo decisions on motions for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). As our Supreme Court said in Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999):
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(0)(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996).
B. APPLICATION OF THE OPEN AND OBVIOUS DANGER DOCTRINE
Joyce contends that the trial court erred in applying the open and obvious danger doctrine to this case because she claims that Barry Rubin failed to make the unreasonably dangerous condition safe and because she does not claim that Bany Rubin failed to warn of a dangerous condition.
Joyce cites Walker v Flint, 213 Mich App 18; 539 NW2d 535 (1995), to support her argument that “[t]he defense of open and obvious danger relates to a claim of a duty to warn, but will not exonerate a defendant from liability where the claim is one of a duty to maintain and repair the premises.” Id. at 22. In Walker, our Court concluded that, because the plaintiffs theory of liability was based on the highway exception to governmental immunity, a statutory duty, rather than on a duty to warn, the open and obvious danger doctrine did not apply. Id. at 21.
This Court later addressed a similar issue in Haas v Ionia, 214 Mich App 361, 364, n 3; 543 NW2d 21 (1995). In Haas, the plaintiff admitted that she knew about the condition of a grossly defective sidewalk in the city of Ionia before she tripped and fell on it. Id. at 362. On appeal, this Court criticized the Walker Court’s assertion that the open and obvious danger doctrine applies only to duty to warn cases and, citing Riddle v McLouth Steel Products Corp, 440 Mich 85; 485 NW2d 676 (1992), suggested that the statement is inconsistent with prior case law. Haas, supra at 364, n 3. However, the Haas Court declined to revisit the analysis, concluding instead, consistent with Walker, that because the city’s duty to maintain sidewalks is imposed by statute, the city may not rely on the open and obvious danger rule as a defense. Id. at 362-363, 364, n 3.
Since Walker and Haas, this Court has specifically rejected the argument made here by Joyce that the open and obvious danger doctrine applies only to claims of failure to warn and not to claims of failure to maintain premises. Millikin v Walton Manor Mobile Home Park, Inc, 234 Mich App 490, 491, 495; 595 NW2d 152 (1999). Joyce contends, however, that Millikin was wrongly decided, that it is contrary to Bertrand v Alan Ford, Inc, 449 Mich 606; 537 NW2d 185 (1995), and that it ignores other, well-established case law, including Walker.
Joyce is wrong for several reasons. Joyce’s argument is undermined by the fact that the Millikin Court actually relied on Bertrand and asserted that its conclusion is consistent with Bertrand. First, as Haas made clear, there are reasons specific to the sidewalk statute that make the open and obvious danger doctrine inapplicable in that type of case. Haas, supra at 363-364. Because this is not such a case, Walker and Haas are not applicable here. Further, like Walker, the Millikin Court observed that our Supreme Court held in Riddle that an invitor does not owe a duty to warn or to protect an invitee from “ ‘dangers that are so obvious and apparent that an invitee may be expected to discover them himself.’ ” Millikin, supra at 494, quoting Riddle, supra at 94. See also the Millikin Court’s reliance on Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), and 2 Restatement Torts, 2d, § 343A(1). Millikin, supra at 494-495. The Millikin Court further observed that the Bertrand Court “did nothing to suggest that the doctrine was limited to harms caused by a failure to warn but, instead, noted its application to harms ‘caused by a dangerous condition of the land’ or ‘any activity or condition on the land.’ ” Millikin, supra at 496, quoting Bertrand, supra at 609-610.
We find that Millikin is consistent with Riddle and Bertrand, particularly in light of the specific language in those decisions that the open and obvious danger doctrine applies to claims relating to a duty to warn or duty to protect from a condition on the land. Moreover, in Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), our Supreme Court recently used language reflecting the general understanding that the duty to protect from dangers “does not generally encompass removal of open and obvious dangers.”
For these reasons, we reject Joyce’s argument and instead hold that the open and obvious danger doctrine clearly applies to this case involving a common-law duty to maintain premises and, therefore, the trial court correctly concluded that the doctrine applies here.
C. GRANT OF SUMMARY DISPOSITION TO BARRY RUBIN
1. OPEN AND OBVIOUS DANGER
Joyce contends that the trial court erred in granting summary disposition to Barry Rubin because genuine issues of material fact exist regarding the condition of the sidewalk and whether the condition was open and obvious. Though this is a much closer question, we again reject Joyce’s argument.
Joyce alleges in her complaint that Barry Rubin’s negligent failure to remove ice and snow from his sidewalk caused her slip and fall accident. “In general, a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Lugo, supra at 516, citing Bertrand, supra at 609. However, “this duly does not generally encompass removal of open and obvious dangers.” Lugo, supra at 516. Open and obvious dangers exist “where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them . . . .” Riddle, supra at 96. Regarding open and obvious dangers, “an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee.” Id. As our Supreme Court clarified in Lugo, “the open and obvious doctrine should not be viewed as some type of ‘exception’ to the duty generally owed invitees, but rather as an integral part of the definition of that duty.” Lugo, supra at 516.
The test to determine if a danger is open and obvious is whether “an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.” Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993). Because the test is objective, this Court “look[s] not to whether plaintiff should have known that the [condition] was hazardous, but to whether a reasonable person in his position would foresee the danger.” Hughes v PMG Bldg, Inc, 227 Mich App 1, 11; 574 NW2d 691 (1997).
Here, viewing the evidence in a light most favorable to Joyce, she admittedly knew and, under the circumstances, “an average user with ordinary intelligence [would] have been able to discover” the condition of the sidewalk and the risk it presented. Novotney, supra at 475. Joyce testified during her deposition that it snowed lightly the morning of March 10 and that, when she arrived at Barry Rubin’s house, she saw snow on the driveway and snow on the sidewalk. Further, Joyce stated that she watched where she walked on the sidewalk and walked very carefully because she knew the sidewalk was “not veiy safe.” Joyce also acknowledged that she slipped on snow that had fallen but had not yet melted, that she knew the sidewalk was slippery, that she repeatedly told Debra Rubin it was slippery, and that she slipped twice while walking on the sidewalk before she finally fell.
Contrary to Joyce’s arguments on appeal, her testimony establishes beyond peradventure that she saw the snow and recognized that the snow posed a safety hazard to her. Further, Joyce’s testimony establishes that she felt the slippery texture of the snow (or ice underneath the snow) when she slipped twice before falling. Because Joyce lost her footing twice on the sidewalk, she was undoubtedly aware of the condition and the specific, potential danger of slipping before she fell. Under similar circumstances, an average person with ordinary intelligence would not only have seen the snowy condition of the sidewalk, but would have discovered the risk of slipping on it. Thus, subjectively and objectively, no reasonable juror could have concluded that the condition of the sidewalk and the danger it presented was not open and obvious. Bertrand, supra at 617. Accordingly, the trial court properly concluded that the condition was open and obvious. Id.
2. UNREASONABLY DANGEROUS
Joyce further contends that, if the trial court correctly determined that the danger was open and obvious, the slippery sidewalk nonetheless presented an unreasonably dangerous risk to such an extent that Barry Rubin had a duty to undertake reasonable precautions to protect her.
As our Supreme Court ruled in Bertrand and confirmed in Lugo, “if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.” Lugo, supra at 517; see Bertrand, supra at 611. In Lugo, the Supreme Court quoted the following language from Bertrand to explain the “unreasonably dangerous” risk theory:
“With the axiom being that the duty is to protect invitees from unreasonable risks of harm, the underlying principle is that even though invitors have a duty to exercise reasonable care in protecting their invitees, they are not absolute insurers of the safety of their invitees. Quinlivan [v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 (1975).] Consequently, because the danger of tripping and falling on a step is generally open and obvious, the failure to warn theory cannot establish liability. However, there may be special aspects of these particular steps that make the risk of harm unreasonable, and, accordingly, a failure to remedy the dangerous condition may be found to have breached the duty to keep the premises reasonably safe.” [Lugo, supra at 517, quoting Bertrand, supra at 614]
Thus, if a danger is deemed open and obvious,
the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability. [Lugo, supra at 517-518.]
The crux of Joyce’s argument is that the open and obvious condition of the snowy sidewalk was “effectively unavoidable.” Joyce testified that she told Debra Rubin about the snowy weather conditions and asked if she could enter through the garage or use a rug for traction, but that Debra refused to provide safety measures or an alternative route. Other witness’ testimony regarding weather conditions and the condition of the sidewalk differed from Joyce’s recollection; however, viewing the evidence in a light most favorable to Joyce, we hold that Joyce failed to raise a genuine issue of material fact that the condition of the sidewalk rose to the level of an unreasonably dangerous condition contemplated in Lugo or prior cases.
In summarizing its ruling in Lugo, our Supreme Court specifically held that “only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.” Id. at 519 (emphasis added). As an example, the Supreme Court stated that, if an open and obvious hazard exists at the only exit of a commercial building, leaving the building would require an invitee to encounter the risk of harm without any alternative. Id. at 518. Though the condition is open and obvious, the “special aspects” of the condition would render the condition “effectively unavoidable” and therefore could constitute an unreasonably dangerous risk. Id. at 517-518. The Lugo Court also observed that even an avoidable open and obvious condition may be unreasonably dangerous if “special aspects” create a risk of death or severe injury, such as a thirty-foot-deep pit in a parking lot. Id. at 518.
Though Joyce says that she had no choice but to traverse the slippery walkway to the front door, she presents no evidence that the condition and surround-, ing circumstances would “give rise to a uniquely high likelihood of harm” or that it was an unavoidable risk. First, Joyce could have simply removed her personal items another day or advised Debra Rubin that, if Rubin did not allow her to use the garage door, she would have to move another day. Further, unlike the example in Lugo, Joyce was not effectively trapped inside a building so that she must encounter the open and obvious condition in order to get out. Joyce specifically testified that, after she slipped twice on the sidewalk, she walked around the regular pathway to avoid the slippery condition. Therefore, though this is a close case, Joyce’s own testimony established that she could have used an available, alternative route to avoid the snowy sidewalk. While Debra Rubin’s alleged refusal to place a rug on the sidewalk or allow access through the garage, if true, may have been inhospitable, no reasonable juror could con- elude that the aspects of the condition were so unavoidable that Joyce was effectively forced to encounter the condition.
Further, no evidence suggests that the condition was so unreasonably dangerous that it would create a risk of death or severe injury. Unrebutted evidence shows that there was no significant buildup of ice or snow. Indeed, Joyce testified that there was simply a “light” layer on the sidewalk. In other words, the common condition in this case was neither remarkable nor unavoidable and clearly does not represent the kind of “uniquely dangerous” condition that would warrant removing this case from the open and obvious danger doctrine, particularly because Joyce clearly appreciated the risk of harm and, nevertheless, chose to encounter the condition. Accordingly, the trial court correctly ruled that Joyce failed to raise a genuine issue of material fact, and no reasonable juror could conclude that the open and obvious condition in this case constituted an unreasonable risk of harm.
D. GRANT OF SUMMARY DISPOSITION TO BARE SNOW AND GARLINGHOUSE
Joyce contends that the trial court erred in granting summary disposition to Bare Snow and Garlinghouse because genuine issues of material fact exist regarding whether they breached their duty to perform the snow removal contract with ordinary care.
Generally, “ ‘those foreseeably injured by the negligent performance of a contractual undertaking are owed a duty of care.’ ” Auto-Owners Ins Co v Michigan Mut Ins Co, 223 Mich App 205, 212; 565 NW2d 907 (1997), quoting Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 708; 532 NW2d 186 (1995), overruled in part on other grounds in Smith v Globe Life Ins Co, 460 Mich 446, 455, n 2; 597 NW2d 28 (1999). “Duty of care not only arises out of a contractual relationship, but it also arises by operation of law, a general duty owed by defendant to the public of which plaintiff is a part.” Osman, supra at 710. Under this theory, a “[b]reach of a contractual duty causes injury to a third party, who is then allowed to bring a tort action.” Commercial Union Ins Co v Medical Protective Co, 426 Mich 109, 124, n 5; 393 NW2d 479 (1986).
Here, Joyce claims that Bare Snow and Garlinghouse, by negligently failing to shovel and salt the Rubins’ walkway, breached their common-law duty to her because she was one foreseeably injured by their negligent performance. Joyce correctly states that Bare Snow and Garlinghouse owed a duty to her as one who could be foreseeably injured by their failure to properly perform. However, Joyce failed to establish a genuine issue of material fact regarding whether Bare Snow and Garlinghouse performed negligently under the contract or whether she was injured as a result of their negligent performance. The snow removal agreement between Bare Snow and Barry Rubin provides:
We will furnish labor and equipment to push snow from the described surface to the sides of the serviced areas during the contract period. Work will be done when there is a snowfall of at least 2 inches. [Emphasis in original.]
The agreement further provides that, in addition, Bare Snow and Garlinghouse will “shovel & salt walk to porch, shovel by garage door & salt drive.” The con tract also contains a condition that Bare Snow and Garlinghouse does not assume liability for damages resulting from interruption of business operations and that it cannot guarantee removal of snow to the pavement surface.
Joyce relies on Osman, supra, to support her argument that Bare Snow and Garlinghouse owed a duty to maintain Barry Rubin’s property in a reasonably safe manner, above and beyond the terms of the snow removal agreement. However, in Osman, the contract itself unambiguously “require [d] defendant to provide snow removal services in a reasonable manner” and stated that the defendant would be held “liable for its negligent conduct in the snow removal process.” Osman, supra at 707. The Osman Court emphasized that the agreement “state [ed] that nothing in the agreement shall relieve defendant of liability for damages caused to persons as a result of defendant’s negligence.” Id. Here, the snow removal agreement does not provide any such general duty or a statement of assumed liability. Thus, Bare Snow and Garlinghouse’s duty was a “ ‘common-law duty to perform with ordinary care the thing agreed to be done ....’” Id. at 708, quoting Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967).
Plaintiff failed to present any evidence to establish that Bare Snow and Garlinghouse failed to perform, with ordinary care, the services unambiguously outlined in the contract. Ample testimony established that there was not “a snowfall of at least 2 inches” or even an accumulation of two inches. Barry and Debra Rubin testified that they did not observe two inches of snow accumulation and that they did not expect Bare Snow and Garlinghouse to shovel or salt. Fur ther, Joyce described the snow as “light” and testified that she did not know how much it snowed. Garlinghouse also testified that it did not snow two inches and climatological records show only a trace of snowfall and a trace of accumulation on the date of Joyce’s fall.
Plaintiff did not present any evidence to establish that Bare Snow or Garlinghouse should have plowed or negligently failed to plow around the date of this incident. Therefore, the trial court correctly ruled that no issue of material fact exists regarding any breach of duty to plaintiff through a failure to exercise ordinary care in performing under the snow removal contract.
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White, P.J.
The prosecution appeals as of right the circuit court’s order granting defendant’s motion to quash informations charging her with five counts of practicing a health profession without a license, MCL 333.16294. The circuit court concluded that the statutory definition of “practice of medicine,” MCL 333.17001(l)(d), was facially overbroad and reached a substantial amount of constitutionally protected speech. We reverse and remand.
i
Testimony at the preliminary examination included that of Sue Wrubel, who took her then eighteen- month-old son, Shane, to see defendant on November 3, 1999, on a friend’s recommendation. A medical doctor had recommended to Wrubel that Shane get tubes in his ears and Wrubel was interested in a nonsurgical solution to Shane’s ear problems. Wrubel understood defendant was an alternative practitioner.
Defendant’s office was located in the basement of her home in Berkley. Defendant came in and hooked Shane to a machine. Wrubel could not recall if defendant told her the name of the machine because Shane was upset and crying. Shane remained in Wrubel’s lap after he was connected to the machine and, after Shane had calmed down, Wrubel and defendant talked about Shane’s ear problems and defendant’s qualifications.
Wrubel testified that defendant told her that she was a medical doctor and had obtained the highest degree of natural doctoring. Wrubel did not examine the many certificates lining defendant’s walls, but was impressed by them and interpreted them to mean that defendant was demonstrating how qualified she was. Wrubel did not recall defendant explaining that she was a naturopathic medical doctor, but admitted defendant may have told her this. Wrubel admitted that she assumed that defendant was a natural doctor as opposed to a medical doctor. Wrubel did not recall defendant explaining about the different meridians of the body, about biofeedback, or about electromagnetics. Defendant tried to answer Wrubel’s questions and to be helpful.
Once the machine finished, defendant told Wrubel that Shane had a tapeworm, a bacteria that was probably causing his earaches, and a brain aneurysm. Wrubel was surprised by this news because she believed Shane was just experiencing earaches and thought that the machine was reading her because Shane was sitting on her lap. At Wrubel’s request, defendant hooked her up to the machine. Wrubel looked at the computer screen and observed a column of diseases or conditions next to a column of numbers, but the screen did not indicate if the condition or disease was present. When the machine finished, defendant informed Wrubel that she had breast cancer, ovarian cancer, and a brain aneurysm, which was not unusual because aneurysms are generally hereditary. Wrubel was shocked to learn that she had cancer. Although Wrubel agreed that defendant told her that her and Shane’s problems existed on a molecular level, Wrubel did not know what this meant. Wrubel looked up the definition of molecular when she went home, and she determined it meant “minuscule.”
Wrubel purchased remedies from defendant, because defendant told her the remedies would cure her cancer and Shane’s ailments. Wrubel paid over $500 for the visit and for the remedies, did not recall signing a consent form at defendant’s office, and did not ask if defendant accepted insurance or otherwise inquire about payment at the time she made the appointment. Wrubel admitted that defendant did not force her to purchase the remedies and that she wanted to follow the program suggested by defendant. Although Wrubel did not take any of the remedies, she did give them to Shane.
After Wrubel told her husband about the visit to defendant, he called defendant and asked for a refund. Defendant agreed to refund the purchase price for any unopened remedies. After unsuccessfully attempting to get a full refund, Wrubel’s husband contacted the state for assistance in getting a refund and to determine if defendant was a doctor.
Kimberley Wiegand also testified during the preliminary examination. She stated that she went to her first appointment with defendant on December 20, 1999. Wiegand had been diagnosed as having symptoms of multiple sclerosis (MS) for nine years. Wiegand’s symptoms first became evident when she began tripping, and ultimately, the entire right side of her body became numb and she required a leg brace. Since she had been diagnosed, Wiegand had seen a number of neurologists and received no treatment because she was told there was no cure for ms.
A friend recommended that Wiegand see defendant and made it clear that defendant was an alternative practitioner. Wiegand was interested in seeing defendant because defendant was not another neurologist, and Wiegand hoped that defendant could offer her something different than what had been offered by traditional medicine. When Wiegand called to make the first appointment, she believed that the receptionist told her the visit would not be covered by insurance, and Wiegand did not expect insurance to cover her visit to defendant because she knew the treatment focused on vitamins and different remedies. Wiegand’s husband accompanied her on her visits to defendant’s office because she required assistance walking.
In Wiegand’s opinion, visiting defendant’s office was unlike a visit to a typical doctor’s office because there were comfortable chairs, no medical instruments or equipment, she was not required to remove her clothes, and her medical history was not taken. Defendant’s assistant hooked Wiegand up to a ma chine by attachments secured with Velcro to her ankles, middle fingers, wrists, and head. Wiegand was hooked up to the machine for approximately forty minutes, during which time defendant came downstairs and talked with her. Defendant told Wiegand that she had been a nurse at a hospital cancer ward and was an M.D., which Wiegand interpreted to mean medical doctor. Defendant also gave Wiegand a business card and pointed out the M.D. on the card. Wiegand was shown defendant’s business card at the preliminary examination, and she admitted the card stated that defendant was an “N.M.D.” Wiegand did not know what the N represented, but she recalled defendant telling her she was a naturopathic practitioner. Wiegand also specifically recalled that defendant told her that she was an M.D. and not an N.M.D. Wiegand believed that defendant was a doctor on the basis of defendant’s representations that she had been a nurse and was an M.D. Although Wiegand was looking for something different than traditional medicine and the naturopathic or homeopathic aspect of defendant’s treatment interested her, she was also impressed that defendant had been a nurse and was an M.D. According to Wiegand, defendant talked a lot, responded helpfully to her questions, and appeared to be trying to educate her.
Defendant informed Wiegand that she did not have MS, but had a bacteria in her body. Defendant told Wiegand that her numbers were high and she needed to bring the numbers down. Wiegand was excited to leam that she did not have MS and to find someone who could help her. Defendant informed Wiegand that if she took all the remedies suggested by defendant, it would take one month for every year that Wiegand had been diagnosed as having ms to clear up the bacteria causing Wiegand’s problems. Wiegand could not recall the specific terms defendant used in explaining how the remedies would affect her body and just recalled that she was supposed to be “one hundred percent” in nine months, meaning that she would no longer have to wear a leg brace and the bacteria would be gone. Defendant also told Wiegand to jump on a trampoline and to lymphasize with a massager in order to unblock her lymph nodes. Wiegand jumped on a trampoline by holding onto her husband and lymphasized faithfully every day with a massager. Wiegand purchased the remedies from defendant, which defendant had in her office, and paid approximately $550 for this first visit and the remedies.
On January 18, 2000, Wiegand had a second appointment with defendant. Wiegand was again hooked up to the machine and defendant examined Wiegand’s numbers and told Wiegand that five of her ailments, including a gall stone, inflamed appendix, inflamed small intestine, and inflamed large intestine, had been cured and that she was doing better in a number of areas. After examining the numbers on the machine, defendant prescribed a few different things, took a couple of things away, and ultimately added four more remedies.
Wiegand explained that defendant had told her that she should start noticing some small improvements or progress within a week, and Wiegand was concerned because a month had passed since her first appointment and she had noticed no improvement. Defendant reiterated that it would take one month for each of the nine years that Wiegand had been diagnosed with MS for her to heal. Again, defendant thoroughly answered Wiegand’s questions, did not appear to be withholding information, and appeared willing to spend a lot of time with Wiegand.
Wiegand paid approximately $1,265 for the two appointments and treatment and went to defendant’s house in between the two appointments to procure additional remedies. Wiegand canceled her third appointment with defendant, scheduled for the middle of March 2000, after she learned of the charges against defendant.
Michigan State Police Detective Trooper Brian Davis of the Diversion Investigation Unit was referred to the Wrubels in January 2000 by the State Bureau of Health Services. Davis testified during the preliminary examination that, after contacting the Wrubels regarding their experience with defendant, he posed as a patient with lower back trouble and made an undercover visit to defendant’s office with Detective Trooper Kelly Feever on February 7, 2000.
Davis described the machine he was connected to as computer-driven with electronic leads connected to another electronic device. Defendant’s assistant told Davis that the machine was a Phazx biofeedback machine, registered with the Food and Drug Administration (fda) as a class two, noninvasive device. Davis subsequently confirmed that that information was correct.
Defendant introduced herself as “Dr. Rogers” and was wearing what appeared to be medical scrubs embroidered with “Dr. Rebecca Rogers, N.M.D.” Davis’ visit lasted over two hours, and he was told not to speak while he was hooked to the machine. Defendant voluntarily told Davis that she had been in the medical field in the past, was disappointed with the level she had been in, and wanted to increase her level. Defendant told Davis that she had applied to be a doctor at a holistic hospital, but was denied employment. Defendant made reference to seeing a judge, who advised her that she had to be an M.D. Defendant explained that because it would be easier to obtain her M.D. than to change the law, she went back to school and procured an M.D. At one point, defendant said she was a naturopathic M.D. Defendant also initiated a conversation about the problems with the practice of medicine today. According to defendant, the practice of medicine relied on excessive prescription drug use that caused cancer, and defendant stated that the real cause of cancer had been discovered by a man who was arrested by the fda because it did not want the cure released.
After approximately twenty minutes, defendant removed the Velcro straps from Davis and asked Feever to slide around the desk so she could see what the screen indicated about Davis’ condition. Defendant’s primary conclusion was that Davis’ stomach, liver, and pancreas were in precancerous states. The computer screen listed the diseases or ailments in one column, next to another numeric column that indicated the particular organ’s condition. Defendant explained that a number above ten thousand indicated an active cancerous state while a number below ten thousand indicated a cancerous state in its infancy. After explaining that as an N.M.D. she could not tell Davis that she could cure him, defendant told Davis that she could tell him that she builds immune systems and rids the body of toxins.
Defendant recommended a four-step treatment plan and told Davis that the remedies would eliminate the toxins in his body that were causing his problems and would cure Davis’ problems. This treatment plan consisted of (1) consuming a proper diet, (2) drinking plenty of water, (3) taking the remedies purchased from defendant on that day, and (4) lymphasizing. Defendant explained that lymphasizing involved unclogging clogged lymph nodes in order to allow the body to rid itself naturally of toxins, and that lymphasizing could be done by massage with an electronic massager or by jumping on a trampoline for ten minutes three times a day. Davis claimed that defendant told him that he would be cured in four months provided he followed this treatment plan and he purchased the remedies from defendant.
Defendant had Davis sign a consent form, which was used to refresh his recollection at the preliminary examination and read into the record. It stated as follows:
It is not her capacity nor her intent to diagnose or treat specific diseases. It is her intention to assist the body to rid itself of toxins and correct chemical imbalances in order to activate the immune system.
Davis requested a search by the Bureau of Health Services to determine whether defendant was licensed in a medical field in Michigan and received a certificate of nonlicensure under seal from the bureau indicating that defendant was not licensed to practice in any medical field in Michigan. Davis testified that Michigan does not license the practices of naturopathy and homeopathy.
On March 2, 2000, defendant was arrested on two complaints alleging three counts of unauthorized practice of medicine for her treatment of Davis, Sue Wrubel, and Shane Wrubel. On the same day, Davis obtained a warrant to search and seize defendant’s property, including all certificates, diplomas, degrees, awards, or other documentation indicating correspondence training or education received by defendant in any care field or any health care related practices. Davis testified that he did not seize any of defendant’s certificates or diplomas because none of them indicated that defendant was a medical doctor or had attended a medical school. Davis testified that he had no notes or records of what defendant’s formal education was. Defendant’s entire house was searched, the Phazx machine was seized, and one computer was seized from defendant’s bedroom. Davis testified that he did not determine whether defendant was trained in the operation of the Phazx machine. Davis testified that he checked into the nature of the remedies defendant administered and that the FDA opined that defendant was legally selling dietary supplements.
Regarding defendant’s education, Davis testified that he did not talk to defendant after her arraignment, but that a Detective Sergeant Larson did and defendant told Larson that she had a federal license issued from the Department of Health in the District of Columbia. Neither Davis nor Larson checked whether defendant in fact had been issued a federal license because they felt it was irrelevant.
On March 14, 2000, two complaints and two warrants were issued charging two additional counts of unauthorized practice of medicine against defendant arising out of her treatment of Wiegand on two occasions.
n
The examining magistrate found that there was probable cause to believe that defendant engaged in the unauthorized practice of medicine and bound defendant over for trial on all five counts without addressing defendant’s constitutional challenges.
The parties stipulated to consolidate the cases for trial. Defendant moved to quash the informations, alleging that the definition of “practice of medicine” in MCL 333.17001(l)(d) is void for vagueness and overbroad because it encompasses conduct and speech protected under the First and Fourteenth Amendments of the United States Constitution and because it is so broad that it provides no guidelines to law enforcement personnel. Defendant’s motion included the following argument regarding over-breadth:
More importantly, the statute directly impinges on the exercise of free speech. MCL § 33317001 [sic] dictates, under threat of criminal prosecution, a complete ban on speech that relates to health issues in any degree. Under this statute individuals must remain silent regarding physical or mental complaints voiced by other human beings.
The statute not only precludes the unlicenced [sic] diagnosis and treatment of disease, acts which would be commonly associated with the practice of medicine in everyday usage, but even the unlicenced [sic] offer of advice to someone as to the means for preventing or relieving any physical or mental complaint. Thus, the athletic team trainer who proposes a series of stretches to be performed prior to an athletic event is effectively offering advice to prevent injury or “defect” (i.e., a pulled muscle). Similarly, the motivational speaker who offers suggestions for overcoming apathy is offering advice to prevent or relieve a mental condition and, unless licensed by the state, is unlawfully engaged in the “practice of medicine” as defined in MCL § 3317001 [sic].
The First Amendment implications of the statute are real and substantial. The statute’s proscription clearly reaches, in addition to the examples already cited, the elementary school teacher instructing students on health and hygiene, as well as any publication that addresses any manner of physical health or emotional well being. The statute totally criminalizes and thus discourages the speaking about health issues. It discourages completely the sharing of knowledge about such issues.
As such, the criminal statute at issue is unconstitutional on its face, being both void for vagueness and overbroad.
In response to defendant’s motion to quash, the prosecution argued that defendant had not satisfied her burden of overcoming the presumption that the statute is constitutional; that defendant’s vagueness challenge “must focus on the facts of the case at hand to determine whether the statute, as applied to her facts, is unconstitutionally vague”; and that defendant’s conduct clearly falls within the ambit of the statute. Regarding defendant’s overbreadth challenge, the prosecution argued that the doctrine should be applied sparingly and only as a last resort; that the statute is not substantially overbroad because it seeks “to regulate conduct, rather than pure speech”; and that defendant lacked standing to challenge the statute on overbreadth grounds because her own conduct clearly fell within the conduct sought to be prohibited by the statute:
[T]he Defendant’s conduct is exactly the type of conduct the statute sought to prohibit. She held herself out as a licensed medical doctor, used a machine to render a diagnosis of various diseases, and advised her patients of a plan of treatment which would cure them of those diseases. The statute is clearly not overbroad when applied to the facts of this case.[ ]
The prosecution attached to its response a copy of the Bureau of Health Services “Certification of NonLicensure,” which stated that the licensure records of all health profession boards in Michigan had been searched and no record of a professional license being issued in the name of Rebecca Yevette Rogers was found to practice in the professions of “Chiropractic, Dentistry, Marriage & Family Therapy, Medicine, Nursing, Optometry, Osteopathic Medicine, Occupational Therapy, Physician’s Assistant, Pharmacy, Physical Therapy, Podiatric Medicine, Psychol ogy, Counseling, Sanitarian, or Veterinary Medicine” pursuant to 1978 PA 368, as amended.
At the conclusion of the hearing, the circuit court stated:
The Defendant was bound over on a finding that she used a machine to diagnosis [sic] particular problems and sold various tablets designed to alleviate or cure the problems.
The Court noted that whether you call it cleansing the system, whether you call it clearing the problem, it all amounts to a diagnosis and treatment and a prescribed remedy for that treatment: page 117, 118, of the preliminary exam transcript.
The Defendant was bound over for her conduct, not speech. However, when making overbreadth challenge [sic], defendant may rely on the rights of hypothetical third persons and may obtain a declaration that the statute is unconstitutional without showing that the conduct in which she is engaged is constitutionally protected. Woll versus Kelly (phonetic), 409 Mich 500 at 534.
There must be a realistic danger that the statute itself was significantly compromised, recognized First Amendment protections of parties not before the Court, for it to be facially challenged on overbreadth grounds. Township of Plymouth versus Paul Hancock, 236 MichApp [sic] 197, at 202.
In this case, MCL 333.17001(1)(D) [sic] includes in its definition of “practice of medicine,” the quote, diagnosis, treatment, prevention, care or relieving of a human disease, ailment, defect, complaint, other physical or mental condition by advice, device, diagnostic test or other means or offering, or holding oneself out as able to do any of these acts, end quote.
This statute’s broad definition of practice of medicine, including the giving of advice, would have a significant chilling effect on the free dissemination of ideas of social and political significance, namely discussions relative to alternatives to traditional medical care or nutrition or health matters in general.
Applying the real and substantial test, this Court finds this statute is overbroad on its face and that it contains within in its sweep, constitutionally protected speech.
This appeal ensued.
IH
A
The statute under which defendant was charged, MCL 333.16294, proscribes the unauthorized practice of a health profession:
Except as provided in section 16215,[ ] an individual who practices or holds himself or herself out as practicing a health profession[ ] regulated by this article without a license or registration or under a suspended, revoked, lapsed, void, or fraudulently obtained license or registration, or outside the provisions of a limited license or registration, or who uses as his or her own the license or registration of another person, is guilty of a felony.
The “practice of medicine” is defined in MCL 333.17001(l)(d): MCL 333.16171 provides exceptions to the requirement of a license to practice a health profession.
“Practice of medicine” means the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts.
B
This Court reviews de novo a trial court’s determination regarding the constitutionality of a statute. People v Jensen (On Remand), 231 Mich App 439, 444; 586 NW2d 748 (1998). This Court ordinarily reviews for an abuse of discretion a trial court’s resolution of a motion to quash; however, because here the trial court’s resolution involved a constitutional question, our review is de novo.
It is well established that a state can legitimately impose broad regulations on the practice of medicine through its police powers to protect the health, safety, and welfare of its citizens. Goldfarb v Virginia State Bar, 421 US 773, 792; 95 S Ct 2004; 44 L Ed 2d 572 (1975).
Statutes are presumed to be constitutional and must be so construed unless their unconstitutionality is readily apparent. People v Hayes, 421 Mich 271, 284; 364 NW2d 635 (1984). In determining whether a statute is unconstitutionally vague or overbroad, a reviewing court should consider the entire text of the statute and any judicial constructions of the statute. Kolender v Lawson, 461 US 352, 355; 103 S Ct 1855; 75 L Ed 2d 903 (1983). There are three grounds for challenging a statute for vagueness: (1) the statute is overbroad and impinges on First Amendment freedoms, (2) the statute fails to provide fair notice of the proscribed conduct, and (3) the statute is so indefinite that it confers unfettered discretion on the trier of fact to determine whether the law has been violated. Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980); Plymouth Charter Twp v Hancock, 236 Mich App 197, 200-201; 600 NW2d 380 (1999). The circuit court quashed the information on the ground of overbreadth.
Generally, a criminal defendant may not defend on the basis that the charging statute is unconstitutionally vague or overbroad where the defendant’s conduct is fairly within the constitutional scope of the statute. People v Higuera, 244 Mich App 429, 441-442; 625 NW2d 444 (2001). This rule of standing is relaxed when First Amendment rights are involved. Recognizing that the “First Amendment needs breathing space,” the overbreadth doctrine permits litigants “to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v Oklahoma, 413 US 601, 611-612; 93 S Ct 2908; 37 L Ed 2d 830 (1973); In re Chmura, 461 Mich 517, 530; 608 NW2d 31 (2000). As such, the overbreadth doctrine is an exception to the general rules of standing that permits a defendant to challenge the constitutionality of a statute on the basis of the hypothetical application of the statute to third parties not before the court. Broadrick, supra at 612. Facial overbreadth challenges to statutes have been entertained where a statute (1) attempts to regu late by its terms only spoken words, (2) attempts to regulate the time, place, and manner of expressive conduct, or (3) requires official approval by local functionaries with standardless, discretionary power. Id. at 612-613.
When a statute purporting to regulate both speech and conduct is challenged, the “overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 615; Woll, supra at 536. In Los Angeles City Council v Taxpayers for Vincent, 466 US 789, 800; 104 S Ct 2118; 80 L Ed 2d 772 (1984), the United States Supreme Court explained that the “mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Rather, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Id. at 801.
A statute may be saved from being found to be facially invalid on overbreadth grounds where it has been or could be afforded a narrow and limiting construction by state courts or if the unconstitutionally overbroad part of the statute can be severed. Broadrick, supra at 613; Woll, supra at 539.
c
Defendant correctly observes that the statutory definition of “practice of medicine” is broadly worded. The scope of the definition’s reach has, however, been limited by the Supreme Court in cases interpret-
ing predecessor statutes of MCL 333.17001(1) and 333.16294. In a number of cases, the Supreme Court, citing Locke v Ionia Circuit Judge, 184 Mich 535, 539; 151 NW 623 (1915), has noted that exceptions to the definition of “practice of medicine” for “gratuitous and humane acts of relief and kindness,” have been judicially engrafted. See People v Banks, 236 Mich 8, 14-15; 209 NW 935 (1926), People v Sekelyn, 217 Mich 341, 343; 186 NW 479 (1922), and People v Watson, 196 Mich 36, 39; 162 NW 943 (1917).
The statute at issue in Locke, supra at 539, defined the “practice of medicine” nearly identically to the current definition in MCL 333.17001(l)(d) (quoted above):
In this act, unless otherwise provided, the term ‘practice of medicine’ shall mean the actual diagnosing, curing or relieving in any degree, or professing or attempting to diagnose, treat, cure or relieve any human disease, ailment, defect or complaint, whether of physical or mental origin, by attendance or by advice, or by prescribing or furnishing any drug, medicine, appliance, manipulation or method, or by any therapeutic agent whatsoever. [1899 PA 237, as amended by 1913 PA 368 (emphasis added).]
In Locke, supra at 539, the Supreme Court noted that the statutory definition of “practice of medicine” would reach “numerous gratuitous and humane acts of relief and kindness to the suffering common amongst mankind in all ages and places,” but, nevertheless, set aside the trial court’s order quashing an information charging a man with holding himself out as a chiropractor and illegally practicing medicine:
The substance of the attack upon this information is that it rests upon amendments to the act of 1899, passed without changing the original title, which provide for licensing persons desiring to practice a system of treatment of human ailments without resort to drugs, medicine, or surgery, subjecting them to the punishment provided in said act for practicing medicine without a license, and in the concluding paragraph essays to stamp them beyond question as medical practitioners by coining the following definition:
“In this act, unless otherwise provided, the term ‘practice of medicine’ shall mean the actual diagnosing, curing or relieving in any degree, or professing or attempting to diagnose, treat, cine or relieve any human disease, ailment, defect or complaint, whether of physical or mental origin, by attendance or by advice, or by prescribing or furnishing any drug, medicine, appliance, manipulation or method, or by any therapeutic agent whatsoever.”
This sweeping effort at definition, with all provisions “otherwise” taken into account, would render criminal numerous gratuitous and humane acts of relief and kindness to the suffering common amongst mankind in all ages and places. The police power of the State, though comprehensive, is scarce adequate to compass the possibilities of such a definition .... [Id. at 538-539 (emphasis added).]
In Watson, supra, the defendant challenged the sufficiency of the information charging a violation of the statute as amended in 1913. The information, in effect, simply charged that the defendant practiced medicine without a license. The Supreme Court reversed the holding of the trial court and concluded that the information was insufficient because (1) it did not set forth all the accusations necessary to constitute the offense, (2) it did not set forth any of the descriptive words used by the amended statute to define the offense, and (3) “a person may innocently do things embraced within the definition given in the statute.” Watson, supra at 37. The Court explained that the prior statute left it to the courts to define piecemeal what was the practice of medicine, and that the 1913 amendment provided a legislative definition. The Court quoted the new statutory definition of “practice of medicine” and stated:
Here are the elements of the statute offense, a catalogue of the acts constituing [sic] “practice of medicine,” the doing of which makes the actor liable to the statute penalty. Under such an act, to charge one generally with “practicing medicine” is not to sufficiently charge him with a wrongful act. Moreover, as will be pointed out, the foregoing statute definition is itself limited by the title of the act and the measure of the police power of the State. Some things within this statute category may be innocently done. [Id. at 38-39 (emphasis added).]
The Court then quoted from Locke, supra, as quoted above, and concluded:
It will be at once perceived that the information before us may or may not charge respondent with committing an offense, in view of the definition of “practice of medicine” found in the act and the proper scope of the act, as evidenced and limited by its title; because, since the act has been sustained as valid upon certain limitations of the definition, it is no longer sufficient to charge one with engaging in the business of practicing and with practicing medicine, contrary to the provision of the statute—the law having been held valid only when applied to such acts enumerated therein as “in common acceptation and as gener ally construed by the courts” are regarded as engaging in the “practice of medicine.” [Id. at 40 (emphasis added).]
In Sekelyn, supra, the Court reviewed a challenge to the jury instructions. The trial court had instructed the jury using the statutory definition of the “practice of medicine.” The Sekelyn, Court, supra at 343, quoted Locke, supra, and noted that “it has been said that some things within this statute category may be innocently done,” citing Watson, supra. The Sekelyn Court concluded that the jury instruction on the practice of medicine should have included “the exceptions made in the cases cited,” but concluded that the error was harmless.
Banks, supra, cited Locke, supra, without discussion. However, the concurring opinion in Banks, signed by four justices, noted:
I concur, understanding that we adhere to what was said in Locke [supra], relative to gratuitous and humane acts of relief and kindness to the suffering. All persons may still, through humanitarian, as distinguished from professional impulse, in back-stoop talkativeness, front-porch conversation and elsewhere, tell of cures and remedies and think and speak of a specific for an ailment without becoming criminals by virtue of this law. This statute does not interdict the spirit of the “Good Samaritan;” neither does it outlaw “Mothers in Israel” or others, whose unselfish ministrations in a humanitarian sense, and not as professionals serving for a fee, alleviate pain and help hurts. [Banks, supra at 14-15 (Wiest, J., concurring, with whom Justices Snow, Clark, and McDonald concurred).]
As noted above, a statute may be saved from being found to be facially invalid on overbreadth grounds where it has been or could be afforded a narrow and limiting construction by state courts. Broadrick, supra at 613; Woll, supra at 539. While none of these cases involved a direct constitutional challenge, it is clear that the Court considered the problem of the overbreadth of the statute and responded by affording it a narrow and limiting construction.
The exceptions judicially engrafted in Locke, supra, and its progeny limit the sweep of the statute. So construed, the statute does not apply to the speech identified by defendant as wrongfully abridged. To the extent the statute, so limited, might reach constitutionally protected speech or conduct, the overbreadth is not substantial judged in relation to the plainly legitimate sweep of the statute, Broadrick, supra at 615-616, and there is no realistic danger that the statute, so limited, will itself significantly compromise recognized First Amendment protections of parties not before the Court, Taxpayers for Vincent, supra at 800-801.
We conclude that defendant’s facial challenge to the statutory definition of “practice of medicine” fails.
IV
Defendant also asserts that the statute is overbroad because it “infringes on the rights of citizens to make their own medical choices by eliminating all citizen health care options not sanctioned by licensed physicians” and because it impinges on defendant’s right to pursue a lawful profession. Defendant, however, presents no authority in support of the proposition that the state may not regulate or prohibit the conduct alleged here.
v
Lastly, we address defendant’s vagueness challenge. A statute may be challenged for vagueness when it fails to provide notice of the proscribed conduct or when it confers unfettered discretion to those charged with its enforcement to determine if the statute has been violated. Hancock, supra at 200. Defendant challenges the statute on the second basis.
The statutory scheme defining the practice of medicine and proscribing the unauthorized practice of medicine does not confer unfettered discretion on law enforcement officials to determine when it has been violated. As construed, the statute does not, as defendant asserts, make “every day [sic] speech by persons and conduct in all sorts of occupations and callings subject to criminal prosecution.” The statute itself defines the offending conduct in clear and understandable terms.
Reversed and remanded.
Feever recorded the visit except for the last few minutes, because the tape ran out.
The magistrate noted:
[T]he Court finds that there is probable cause to believe that the defendant did practice medicine and did so without a license from the state of Michigan. It’s clear to the Court that the actions of the defendant constituted the practice of medicine in as much as she used a machine to quote “to diagnose particular problems,” that she—that she sold various tablets, what they contained the Court has not been presented with any evidence, what those tablets were designed to do was to alleviate the problem which is the same thing as cure the problem whether you call it cleansing the system, whether you call it clearing the problem, it all amounts to a treatment, a diagnosis and treatment, and a prescribed remedy for that treatment, all of which the defendant had no license in the state of Michigan as based upon the evidence presented today ....
Citatíons to the preliminary examination transcript are omitted.
Section 16215, MCL 333.16215, addresses the subject of licensees delegating the performance of certain acts to others and is not relevant here.
“Health profession” is defined in MCL 333.16105(2) as “a vocation, calling, occupation, or employment performed by individuals acting pursuant to a license or registration issued under this article.” “Health occupation,” on the other hand, is defined as “a health related vocation, calling, occupation, or employment performed by individuals whether or not licensed or registered under this article.” MCL 333.16105(1).
MCL 333.16171 provides:
Under the circumstances and subject to the limitations stated in each case, the following individuals are not required to have a license issued under this article for practice of a health profession in this state:
(a) A student in a health profession training program, which has been approved by the appropriate board, while performing the duties assigned in the course of training.
(b) An individual practicing a health profession in the discharge of official duties while in the military service of the United States, the United States public health service, the United States department of agriculture, or the United States veterans administration
(c) An individual who by education, training, or experience substantially meets the requirements of this article for licensure while rendering medical care in a time of disaster or to an ill or injured individual at the scene of an emergency.
(d) An individual who provides nonmedical nursing or similar services in the care of the iU or suffering or an individual who in good faith ministers to the ill or suffering by spiritual means alone, through prayer, in the exercise of a religious freedom, and who does not hold himself or herself out to be a health professional.
(e) An individual residing in another state or country and authorized to practice a health profession in that state or country who, in an exceptional circumstance, is called in for consultation or treatment by a health professional in this state.
(f) An individual residing in another state or country and authorized to practice a health profession in that state or country, when attending meetings or conducting lectures, seminars, or demonstrations under the auspices of professional associations or training institutions in this state, if the individual does not maintain an office or designate a place to meet patients or receive calls in this state.
(g) An individual authorized in another country to practice a health profession and who is employed by the United States public health service or the government of another country for the exclusive use of members of its merchant marine and members of its consular and diplomatic corps, while caring for those members in the performance of his or her official duties.
(h) An individual residing adjacent to the land border between this state and an adjoining state who is authorized under the laws of that state to practice a health profession and whose practice may extend into this state, but who does not maintain an office or designate a place to meet patients or receive calls in this state.
(i) An individual authorized to practice a health profession in another state or territory of the United States who has been appointed by the United States Olympic committee to provide health services exclusively to team personnel and athletes registered to train and compete at a training site in this state approved by the United States Olympic committee or at an event conducted under the sanction of the United States Olympic committee. [Emphasis added.]
Our search yielded only one case involving prosecution for the unauthorized practice of medicine under the present form of MCL 333.16294, and it did not involve constitutional challenges. In People v Stiller, 242 Mich App 38; 617 NW2d 697 (2000), this Court affirmed the defendant’s convictions of second-degree murder and unauthorized practice of medicine where the defendant, who was licensed to practice medicine in Indiana but did not hold a valid medical license in Michigan, prescribed three drugs to a thirty-five-year-old patient who had a history of arrhythmia and whom the defendant had treated for years, and there was expert testimony that the patient died of mixed-drug intoxication.
The lead opinion in Banks, signed by all eight justices, concluded that there was sufficient evidence to support Banks’ conviction of practicing medicine without a license.
We recognize that the prosecution did not rely on this argument below or direct the circuit court’s attention to the cases discussed here. Nor are the cases cited on appeal. However, this Court is obliged to construe the statute in a constitutional manner, if possible. See Gara v Fern-dale, 456 Mich 704, 719-723; 576 NW2d 141 (1998).
Our conclusion is supported by decisions from other jurisdictions that, although not binding, may be considered. Adams Outdoor Advertising v East Lansing, 439 Mich 209, 234, n 43; 483 NW2d 38 (1992). While the statutes the constitutionality of which were upheld in the following cases are arguably less broad than the statute involved here, the narrowing construction placed on the Michigan statute by the Supreme Court renders the other statutes comparable.
In People v Ray, 119 Ill App 3d 180; 456 NE2d 179 (1983), the defendant was convicted of the unauthorized practice of medicine, following an undercover reporter’s investigation of the defendant’s business. Id. at 180-181. At the first visit to the defendant, the reporter was required to fill out two forms, one of which stated that the defendant did not diagnose or prescribe. In response to the reporter’s complaint about headaches, the defendant felt her head and told her that the bones of her skull did not fit together properly and she required cranial manipulation that could not be accomplished until her body was cleansed. Id. at 181. The defendant also told her that the roof of her mouth was too low, which is a common cause of headaches, that she had poor circulation, and suggested an herb for each of the glands and organs of the body. Id. at 181-182. The defendant gave the reporter a list of herbs and the reporter paid the defendant’s assistant $20. Id. On the reporter’s next visit to the defendant, she brought a state investigator and, posing as husband and wife, they observed the defendant examining and treating a number of individuals. Id. at 182.
The statute defining the practice of medicine and proscribing the unauthorized practice of medicine stated, in pertinent part:
“If any person holds himself out to the public as being engaged in the diagnosis or treatment of ailments of human beings; or suggests, recommends or prescribes any form of treatment for the palliation, relief or cure of any physical or mental ailment of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; or diagnosticates or attempts to diagnosticate, operate upon, profess to heal, prescribe for, or otherwise treat any ailment, or supposed ailment, of another; or maintains an office for examination or treatment of persons afflicted, or alleged or supposed to be afflicted, by any ailment; or attaches the title Doctor, Physician, Surgeon, M.D., or any other word or abbreviation to his name, indicating that he is engaged in the treatment of human ailments as a business; and does not possess a valid license issued by the authority of this State to practice the treatment of human ailments in any manner, he shall be sentenced as provided in Section 35.1.” [Id. at 182, quoting 111 Eev Stat 1979, ch 111, par 4459.]
In rejecting the defendant’s overbreadth challenge, the Illinois Court of Appeals noted that the Illinois Supreme Court had previously construed this statute as being constitutional and emphasized that the elements of the statute required
“a holding out to the public as being engaged in the diagnosis or treatment of ailments of human beings, the suggesting, recommending or prescribing treatment for relief of ailments, all with the intention of receiving either directly or indirectly a fee or reward therefor.” [Id. at 184, quoting People v Zimmerman, 391 Ill 621, 623; 63 NE2d 850 (1945).]
The court concluded that the statute, by its terms and as previously interpreted, applied to the practice of medicine in the treatment of ailments and, when read in its entirety, did not regulate protected speech. Id. at 185. Moreover, the court noted that even if the statute marginally “infiinge[d] on” protected expression or speech, it was narrowly tailored to effectuate the state’s compelling interest in regulating the practice of medicine. Id. at 185.
In People v Jeffers, 690 P2d 194, 195 (Colo, 1984), the defendant was convicted of the unauthorized practice of medicine and challenged the statutory scheme defining the practice of medicine as unconstitutionally overbroad. The defendant operated a clinic called the General Orthotherapy Clinic. An undercover detective posing as a patient visited the defendant’s clinic complaining of groin problems and general malaise. Id. After asking the detective about his medical history, the defendant examined the detective, diagnosed him with diverticulitis, recommended he undergo a series of colonic irrigation treatments, and charged him $35 for the visit. Id. at 196. Colo Rev Stat 12-36-106(1)(b) (1978) defines the practice of medicine as
[s]uggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition, or defect of any person with the intention of receiving therefore, either directly or indirectly, any fee, gift, or compensation whatsoever . . . [Jeffers, supra at 197, n 5.]
The statute has a number of exceptions, including for gratuitous rendering of services in emergencies, the practice of religious worship, and the rendering of services by an athletic trainer, subject to certain conditions. The court concluded that the defendant did not have standing to challenge the statute as overbroad:
In the past, both this court and the United States Supreme Court have permitted challenges to the facial overbreadth of laws that may have a chilling effect upon freedom of expression, even though such laws could be constitutionally applied to the parties asserting the challenge. [Citing Broadrick, supra, and other cases.] The rules of standing, however, are expanded only cautiously and in exceptional cases:
“[F]acial overbreadth adjudication is an exception to our traditional rules of practice and ... its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct—even if expressive—falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. ... To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” [Quoting Broadrick, supra at 615.]
Here, the statute under attack is a criminal statute that deals exclusively with harmful, constitutionally unprotected conduct, and has no discernible effect on speech or expression. Pursuant to its police power, Colorado may define and regulate the practice of medicine and may prohibit unlicensed individuals from providing medical treatment. The practice of medicine itself is not protected by the first amendment. Therefore, reasonable regulation of medical practice does not conflict with first amendment protections. The unlawful practice of medicine statute thus has a broad, legitimate scope. In contrast, we have not been able to discern any specific overbroad applications, substantial or otherwise, that this statute may have. Under these circumstances, we refuse to consider the hypothetical chilling effect this statute may have in unknown future cases. [Jeffers, supra at 197-198 (citations omitted).]
In State v Hoffman, 733 P2d 502, 503 (Utah, 1987), the defendant appealed his conviction of the unauthorized practice of medicine, a third-degree felony, arguing that the act was unconstitutionally broad and void for vagueness, among other things. At issue was Utah’s statute Utah Code Ann 58-12-28(4) (1953, 1986 repl), which defined the “practice of medicine” as encompassing:
“(a) to diagnose, treat, correct, advise, or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, or to attempt to do so by any means or instrumentality;
“(b) to maintain an office or place of business for the purpose of doing any of the acts described in Subsection (a) whether or not for compensation;
“(c) to use, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions in any printed material, stationery, letterhead, envelopes, signs, advertisements, the designation ‘doctor,’. .. unless the designation additionally contains the description of the branch of the healing arts for which the person has a license.” [Hoffman, supra at 504, n 3.]
The Utah statute contains various exceptions, including: permitting “an individual to administer or advise ‘a domestic or family remedy’ except for prescription drugs,” id. at 505, n 5; individuals rendering aid in an emergency when no fee is involved; persons engaged in the sale of vitamins, health foods, dietary supplements, and herbs not otherwise prohibited; and persons acting in good faith for religious reasons, as a matter of conscience, or based on a personal belief, when obtaining or providing any information regarding health care. The defendant contended that the definition of “practice of medicine” was unconstitutionally overbroad because it outlawed “home remedies, private inquiries, and advice about one’s general health and condition.” Id. at 505. The court, after noting that the defendant’s brief did not distinguish between vagueness and over-breadth and argued only the latter, rejected that challenge as well:
Legislative enactments are accorded a presumption of validity. In considering a challenge to the overbreadth of a law, the law must be shown to reach a substantial amount of constitutionally protected conduct. If it does not, the challenge will fail. State v Murphy, 674 P2d 1220, 1222 (Utah 1983). The right to practice medicine, to diagnose maladies, and to prescribe for their treatment is not constitutionally superior to the state’s power to impose comprehensive and rigid regulations on the practice. Defendant has not shown and cannot show that a criminal violation of the Act by the unlicensed prescription of treatments and cures to the gullible and unwary public for compensation rises to the level of a constitutionally protected activity. State v Hoffman [558 P2d 602 (Utah, 1976)] [Bd of Medical Examiners v Blair, 57 Utah 516; 196 P 221 (1921)]; People v Jeffers, 690 P2d 194 (Colo 1984).
The State claims that defendant lacks standing to raise this issue because his conduct proven at trial is clearly within a narrow, constitutional construction of the statute. State v Jordan, 665 P2d 1280, 1284 (Utah 1983). Essentially, defendant purports to assert the rights of unknown third persons who might prescribe such domestic or home remedies, generally offering advice as to another’s health.
The constitutionality of a statute is considered in light of the standing of the plaintiff who raises the question and of its particular application in his case. The plaintiff may challenge its validity only to the extent the alleged basis of its infirmity is, or will be, applied to his detriment. Defendant did not render gratuitous advice regarding a “domestic” or “over-the-counter” remedy and may not avail himself of the argument that the statute improperly might prohibit others from such conduct. His opinion and advice to the complainant, for which he was paid, could not be construed as the equivalent of an innocuous suggestion that she “go home and rest” or “take an aspirin.”
Therefore, because defendant’s conduct is clearly within a narrow constitutional construction of the statute’s prohibition intended by our legislature, he may not be heard to complain that the statute is overbroad so as to prohibit conduct that is not applicable to the facts of his case. Having engaged in conduct not constitutionally protected, defendant is not entitled to assert a constitutional claim that might be argued by someone else who prescribes domestic or family remedies, [id at 505-506 (some citations omitted).]
Defendant seems to concede, and we conclude, that the statute provided sufficient notice to her that the conduct charged is criminal. | [
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Territory of Michigan, to wit—:
The United States to the Marshall of the territory of Michigan Greeting: You are hereby Commanded to take Charles Chandonet, trader, if he may be found within the territory of Michigan, and him Safely Keep So that you may have his body before the Judges of our Supreme Court at Detroit, on the third monday in September next, then & there in our Said Court to answer Hugh Pattinson & Richard Pattinson Merchants in Company, under the firm of Hugh Pattinson & Company, in a plea of trespass on the case, to the damage of the Said Hugh Pattinson & Company One thousand dollars, which Shall then & there be made to appear with other damages, and of this writ make due return. Witness Augustus B. Woodward Chief Judge of the territory of Michigan, at Detroit, on the Sixteenth day of October one thousand eight hundred five—
Peter Audrain clerk
[In the handwriting of James May except the name “Lamoth”]
[In the handwriting of Peter Audrain] | [
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IN THE SUPREME COURT OF MICHIGAN—
Michigan Territory—Toussaint & Germain Pothier ads
The United States—in Debt-—
And the said Toussaint & Germain Pothier by S Sibley their Atty come & defend when &c and pray oyer of the obligation above mentioned, and it is read in the words aforesd and they also pray oyer of the condition thereof which is read as follows Towit—
Whereas the following described packages of goods, wares & merchandizes, Viz. Three Boxes, One Keg, Six Kegs Seven bales, Seven bars of Iron, Two Bundles of Steel, One Cassette, Ten Bales One Trunk, five Boxes, four Baskets, Eight Kegs, One Trunk Eight Bales, One Bale, Two Barrels of Salt and Twelve Kegs (marked and numbered) Imported into the District of Michili-mackinac in three Boats whereof the said Toussaint Pothier is owner, from Montreal in lower Canada, on this day as per report and Manifest, just delivered by the said owner, are now about to be exported & conveyed in the said Boats, to the Port of S1 Joseph in upper Canada, and whereas that the duties that would have become due on the sd goods, wares and merchandizes, had the same been landed here and not so exported would have amounted to the aforesaid sum of seven hundred & sixty five dollars & four cents. Now therefore the condition of this obligation is such, that if the above bounden Toussaint Pothier or Germain Pothier shall and do within Twelve months from the date hereof, produce to the collector of this district the certificates required by law, that the said enumerated packages of Merchandizes &c have been exported to and landed at the aforesd Fort of S1 Joseph, or at any port or place without the limits of the United States, or if neither the whole nor any part of the said goods, wares and merchandizes shall be landed within the limits of the United States until due entry thereof shall have been first made and the duties thereon paid or secured to be paid according to Law, then the above obligation to be void, otherwise to be and remain in full force & virtue—which being read & heard the said Toussaint & Germain Pothier for Plea say that the said United States their action aforesaid for the recovery of the sum of seven hundred & sixty five dollars & four cents aforesaid against them the said Toussaint & Germain ought not to have or maintain Because the said Toussaint & Germain say that after making the above obligation to said United States, the said Tous-saint Pothier did, on the same day & year in said Bond mentioned leave the said Port of Michilimackinac, with said Three Boats, with all and singular the said goods wares & merchandizes aforesaid for the said Port of S4 Joseph, in the said Province of Upper Canada and afterwards, towit on the same day and year aforesaid, did enter the port of sd S4 Joseph with sd three Boats and all and singular the goods wares & merchandizes, aforesd and at sd Port of sd S4 Joseph in said Province of Upper Canada, did unload and discharge all and singular sd goods wares & merchandizes in persuance of the condition of said obligation, all of which said goods wares and merchandizes, so shipped on board of said Boats and landed at S4 Joseph in the province of Upper Canada as aforesd The said Toussaint and Germain do aver were, sold, vended & disposed of in said Province of Upper Canada and wholly without the limits of the said United States. And the said Toussaint & Germain do further aver that after executing the above obligation, and in conformity with the condition thereof, To wit on the first day of June in the year of our Lord one thousand Eight hundred and seven, the term of Twelve Months in said condition mentioned not having expired, the said Toussaint Pothier did procure and deliver to the collector of the customs of Michilimackinac, at the port of Michilimackinac regular certificates and vouchers, according to the provisions of the laws of the United States in such case required, of such entry and landing of said Boats with all and singular the goods wares & merchandizes aforesaid in said condition mentioned and in full compliance with the conditions of said Bond or obligation above set forth and declared all which the said Toussaint & Germain are ready to verify.
Wherefore the said Toussaint & Germain pray Judgment if the said United States their action aforesd thereof against them the said Toussaint and Germain ought to have & maintain &c
by Sol Sibley their Atty
Michigan Territory to wit— Toussaint Pothier & Germain Pothier put in their place Sol Sibley their Atty ag4 the United States in the plea by them above pleaded—
[In the handwriting of Solomon Sibley] | [
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And the said James and Francois Laselle by Harris H. Hickman their attorney, come and defend the force and injury when &c and for plea say that the plaintiff his action aforesaid against them ought not to have or maintain, because they say that true it is a Judgment was rendered against them in the court of common pleas of Wayne county, for the sum of four hundred and eighty Dollars and sixty three cents, in favour of the said Plaintiff as he in his declaration hath alledged—but the said James and Frangois further say that at the time the said Judgment was rendered, to wit at December term 1803 of the Court of Common Pleas of Wayne county, they the said James and Frangois by Solomon Sibley their attorney, did enter an appeal according to Law, (having executed bond &c) from the judgment aforesaid of the court aforesaid, to the General Court of the Indiana Territory, and the record of the said Judgment was thereupon removed into the said General Court, and this they are ready to verify, and the said James & Frangois, further say, that the said cause, on which the judgment aforesaid was rendered, was heard in the said General Court of the Indiana Territory, and a Judgment thereupon rendered in the said General Court, from which court an Execution did issue upon said Judgment against the said James & Frangois, in favour of the plaintiff—and this they are ready to verify— Wherefore the said James & Frangois pray Judgment of the court, whether the plaintiff his action aforesaid on the judgment of the court of common pleas of Wayne county ought to have or maintain against them—
James & Frangois Laselle put in their place Solomon Sibley and Harris H. Hickman, their attornies to defend their plea above
And the said James Pelletier in Replication to the Plea in Bar by the said James & Francis above pleaded saith that by any thing in the same contained he ought Not to be barred of having and maintaining his action aforesaid thereof against them the said James & Francis Because by protesting and denying that an Execution did issue from the said General Court of the said Indiana Territory in favor of him the said James Pelletier against them the said James & Francis Lasselle in form aforesaid pleaded, For plea Nevertheless in this behalf as to the plea of the said James & Francis above pleaded the said James Pelletier saith that the plea aforesaid in manner and form as the same is above pleaded and the matters therein contained are not sufficient in Law for the said James and Francis to Bar the said James Pelletier from having and maintaining his aforesaid action thereof against them the said James & Francis and that the said James Pelletier is not under any necessity nor is he bound by the Law of the Land in any manner to make answer thereto and this he is ready to verify wherefore for want of a sufficient plea in this behalf the said James Pelletier prays Judgment and his damages by reason of the premises to be adjudged unto him together with his costs By E Brush his atty
[In the handwriting of Harris H. Hickman]
[In the handwriting of Elijah Brush] | [
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Richard Pattinson agst The United States of America
In Error.
And the said United States of America by Harris H. Hickman their attorney, and say, that in the record aforesaid, or in rendering the judgment aforesd there is no error, and prays that this court may proceed to the examination of the record and proceedings, of the matter aforesd above assigned by the said Richard for Error. Harris H. Hickman
atty for Dfts.
E Brush Atty ptff
[In the handwriting of Harris H. Hickman] | [
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Territory of Michigan DISTRICT OF HURON & DETROIT
Pleas at Detroit before James Abbott & Jacob Visger associate judges of the court of the district of Huron & Detroit, of the term of august one thousand eight hundred eight
John Watson vs William B. Torrence
Sur appeal from the judgrn1 of Justice McDougall
On the Second day of may one thousand eight hundred eight the record of the Justice of peace, George McDougall, were filed, and are in the following words—to wit—
John Watson vs William B. Torrence
In case damages twenty dollars.
This action is brought against the defendant for failing to perform his undertaking, or assumpsit, to pay the plaintiff twenty dollars for furnishing a Substitute for defendant who was regularly drafted into the Service of the United States.
1808 - Jany 20 issued Summons for defendant to answer on Saturday next.
26 Subpoena on the part of the defendant for Samuel Graham & David Cooper.
feby 4 Subpoena on the part of the plaintiff for Robert Smart and Major John Whipple
The parties appeared on this day—Defendant pleads that he did not promise and undertake in manner & form as the Said John hath above complained against him.
Rob1 Smartt—William Watson—David Cooper and Major John Whipple were Sworn—Samuel Graham affirmed.
In this case the parties having been heard by their evidence, and all & Singular the premisses being Seen, and by the court fully understood, it is considered by the court that the plaintiff recover against the defendant the Sum of twenty dollars damages, and also two dollars & fifty cents for his costs and charges by him laid out & expended in this behalf; whereupon the defendant prays an appeal to the district court, which is granted to him on his complying with the requisite of the law.
1808 - feby 5. James Henry filed his and the defendant’s bond to prosecute the appeal agreable to law.
I certify the above and foregoing to be a true transcript from my docket. Geo: McDougall J.P.D.D.
To Peter Audrain Esqr Clerk of the Court of the district of Huron & Detroit
In the district court of Huron & Detroit continued & held at Detroit, the plaintiff was ruled to declare; and on the eighteenth day of july the plaintiff filed his declaration in the following words—to wit—
Territory of Michigan in the district court of the territory of THE TERM OF MAY IN THE YEAR OF OUR LORD 1808-
District of Huron & Detroit ss—
William B. Torrence was attached to answer unto Captain John Watson in a plea of the case for this, towit, that whereas the Said William B. Torrence heretofore towit, on the eighteenth day of January in the year of our Lord 1808, towit, at Detroit in the District and Territory aforesaid was drafted from the Militia of this Territory in obedience to an order from the President of the United States to Serve a tour of three months duty in the Service of the United States in the Said Captain John Watson’s Company of infantry, and having been therein duly and regularly inrolled and mustered, and being desirous of being freed and exonerated from the Said Service before the expiration of the Said term of three months, did on the eighteenth day of January in the year of our Lord 1808, towit, at Detroit aforesaid, propose & declare to the Said John that in consideration he the Said John would furnish and procure another Suitable person to take the place and stead of him the Said William B. in the Said detachment of Militia So in Service, as aforesaid, and that Should well & truly Serve out the term, and perform all the duties of a Soldier, that he the Said William B. was then held and bound to do, and in consideration that he the Said John would then & there exonerate and acquit him the Said William, and procure him tobe exonerated & acquitted from any further service as a Soldier in the aforesaid detachment of Militia as aforesaid, the Said William B. did then & there undertake and faithfully promise the Said John that he would wéll & truly pay and Satisfy the Said John the Sum of twenty dollars, money of the United States, when the Said William B. Should be thereto afterwards requested. And the Said John avers that trusting to the promises and undertakings So made by the Said William B. in his behalf, and in form aforesaid, he did afterwards towit on the Same day & year aforesaid, at Detroit aforesaid, at great expence & trouble procure and hire a certain other person by the name of William Primrose to enroll & muster himself in his Said Company of Militia in the place & Stead of the Said William B. Torrence, and therein to do duty as a Soldier, untill the thirty first day of March then next ensuing and in the year last aforesaid, when the Said detachment of militia (the Said John Watson’s Company being part thereof) was disbanded and released from further duties in the Service of the Said United States, as aforesaid, during all which time the Said John avers that the Said William-B. Torrence was exonerated, freed & discharged from all manner of Service in the Said detachment by reason of the Said John So having caused & procured the Said William Primrose to take the place and stead of him the Said William B. as aforesaid, by reason whereof the Said William B. became liable to pay & Satisfy the Said John the aforesaid Sum of twenty dollars, when he the Said William Should be thereto afterwards requested; and being So liable, he the Said William, in consideration thereof afterwards, towit, on the Same day & year aforesaid, at Detroit, undertook & faithfully promised the Said John to pay him the Said last mentioned Sum of money, when he the Said William Should be thereto afterwards requested. Yet the Said William not regarding his aforesaid Several promises & undertakings So by him made in his behalf, as aforesaid, but contriving & fraudulently intending craftly and subtilly to deceive and defraud the Said John in this behalf, hath not yet paid the Said John the aforesaid Sum of money, or any part thereof, altho So to do he the Said William was requested by the Said John afterwards towit on the Same day & year aforesaid, and often afterwards, towit, at Detroit aforesaid; but he to do this has hitherto entirely refused, and Still doth refuse to the Said John his damage thirty dollars, and therefore he brings Suit; &c and hath pledges fn° Doe & Richd Roe
E Brush AtN
John Watson puts in his place E Brush his atty against William Torrence in the plea aforesaid—
To the above declaration the defendant by Sol. Sibley pleads the general issue non assumpsit. And thereupon issue is joined betwen the parties. Therefore let a jury come who to the Said William and the Said John, are in no wise related, because as well the Said William as the Said John put themselves upon that Jury.
And on the Nineteenth day of august one thousand eight hundred eight the parties come into court by their attornies, and thereupon come a jury for that purpose empannelled and returned by the Marshall, who were elected, tried, and Sworn the truth to Speak upon the issue joined, to wit, James Mitchell, Senior,—Conrad Seek—Robert Kaine—Jacob Smith— Louis Bouree—John Burnett—Abraham Cook—Louis Peltier—Jacob Tuckar—Maurice Moran—Elijah Harrington— and Christopher Hart-sough; who after having heard the evidence & arguments retired from the bar to consult of their verdict, afterwards returned into Court, and upon their oath do Say that they find for the plaintiff to recover of the defendant twenty dollars in damages. Signed John Burnet—foreman.
Whereupon the defendant’s attorney gave notice that he will find his reasons in arrest of verdict and the Court granted Judgment Nisi.
On the twenty Second day of august one thousand eight hundred eight, Solomon Sibley, attorney for the defendant, comes into court and filed the following reasons in arrest of verdict, to wit—
HURON & DETROIT DISTRICT COURT FOR AUGUST TERM 1808.
John Watson vs William B. Torrence
In case on appeal
Be it Known that the Said William Comes into Court on this aad day of august 1808, and files these his reasons for and in arrest of Verdict given in the above case, towit—
Ist Because the plaintiff hath alledged & averred in his declaration that the said William B. Torrence was on the 18th day of January 1808 at Detroit in the territory of Michigan drafted from the militia of the Said territory in obedience to an order from the President of the United States to Serve a tour of duty for three months in the Service of the United States in the infantry Company of Capt John Watson, and that the Said William was duly & regularly inrolled, and mustered in Said Company; all which facts & averments So Set forth by the Said John are material facts and Substance, and ought to have been proved before the court and jury in Support of Said action and issue, which was not done, nor any evidence introduced by Said John upon Said trial in Support of Said facts & averments, therefore for as much as Said facts & averments were not proven by the Said John the verdict of the Jury ought to be Set aside and arrested.
2dly—Because the Said John Sets forth in his declaration the consideration upon which the promise of the Said William was made, which consideration So Set forth by the Said John is wholly insuficient in law for the Said John to have and Support his action of assumpsit thereon against the Said William the Same by the Shewing of the Said John being illegal and contrary to the Sound policy of the laws in Such case made & provided, the Said William prays that the verdict given may be Set aside & arrested &c
3d—Because it was not proven before the Jury that the Said John did procure & furnish a legal Substitute to Serve in the place & stead of the Said William in the detachment of Said militia, as alledged by Said John, but Said fact was negatived by the evidence.
4thly Because it was proven that the Said John, after making the promise, as Set forth did revoke & rescind Such promise So made on his part, and thereof did notify the Said William
5thly Because it was not proved that the Said William was ever regularly in-rolled, or mustered in the company of Cap1 John Watson, or that there was at that time or at any other time any Such company in the Service of the Said United States in the territory of Michigan all which ought to have been proven before the court & jury to enable Said John to recover of the Said William.
And lastly—Because Said verdict is against law, and the Sound policy of the law.
Wherefore the Said William for the reasons & causes aforesaid and others appearing prays that the Said verdict by the Jury given in this cause may be arrested, Set aside, and held for nought &c— Sol° Sibley atty August n 1808 for William B Torrence
On the twenty fourth day of august one thousand eight hundred eight— The reasons filed in arrest of Verdict were examined by the court, and considered insufficient; to which opinion of the court the defendant by his attorney excepted, and prayed Such exceptions be recorded; which exceptions were Signed by the Court, and were in the following words, to wit—
Watson v Torrence— The evidence and facts of the case as appeared before the court of the District on trial of this action—
That the Said Torrence was drafted out of the Militia to Serve a tour of duty in the detachment of Militia the last winter, called into actual service Said-to be under the order of the President of the United States. The Said Torrence upon being So drafted applied to Major John Whipple commandant of Said Corps, and offered a young man by the name of Hugh McMahan, as a Substitute to Serve for him Said Torrence the Said tour of duty for which he was drafted; Major Whipple refused to accept the Said McMahan as a Substitute for sd Torrence alledging that he was too Small. The Said Torrence then by advice of Robert Smart applied to Lieu1 John Watson, when it was agreed that the Said John Should furnish his apprentice boy William Primrose as a Substitute of Said Torrence to Serve his tour of duty, and that Said Torrence Should give Watson 20 dollars. The sd Torrence upon Such agreement being made went home. Two or three days after Said Watson Sent information to Said Torrence that Major Whipple had refused his boy as a Substitute for Said Torrence, and required Said Torrence to come up join the detachment and draw his rations. The Said Torrence Sent word in reply that he had made a Contract, and that they might Setle amongst themselves, and did not go up in pursuance of Such notification. The Said Watson Sent word a Second time to Said Torrence that the Major would not accept his boy as a Substitute for Said Torrence, and requested him to come to town observing that probably he could arrange with Said Torrence Some other way. The next morning after the agreement was made, Watson Sent his boy to Torrence for the 20 dollars; Torrence observed that he had not then the money, but would Shortly pay it; he Sent again to Tor-rence on the evening of the 18th of January Six days after for the Said twenty dollars; Torrence then told the boy to call on the Morning. No evidence was given that Said Torrence ever was inrolled, or mustered in Said detachment after Watson notified Said Torrence of the Major’s refusal to accept Said Boy as Substitute for Torrence, the Major agreed to the boy being received as a Substitute, upon Watson agreeing to take the boy, as a waiter, and the boy was accordingly mustered and drew the pay which he laid out in purchasing clothing; Watson drew his rations. It was further Sworn that the boy continued to work for Said John Watson at the trade of Taylor as usual during the whole time to the exception of the time his being mustered, which was once in each month, and which was done to enable the boy to draw his pay & rations. It was proved that the boy was raising of 18 years old at this time. The agreement was entered into but was Small . No evidence was introduced before the jury of the existence of the alledged order of the President of the United States ordering the Militia into Service, nor was there any evidence offered to Shew that there was any Company of infantry under the command of Cap£ John Watson in the Said detatchment, but this fact was disproved by the evidence introduced by the plaintiff. The sd Hugh McMahan being questioned Said he believed he was not 18 years old on the 18 of January 1808. Signed in open court (Signed) James Abbott
26th august 1808— Jacob Visger
Peter Audrain elk
John Watson vs William B. Torrence
Judgment
It is considered by the Court that the Said John recover of the Said William twenty dollars for his damages, with Costs of Suit. From which Said judgment the defendant, by Solomon Sibley, his attorney, prays appeal to the Supreme Court, and to him it is allowed on his complying with the law.
I Peter Audrain, clerk of the court of the district of Huron & Detroit, do hereby certify the foregoing to be a true copy from the files in my office. In testimony whereof I have hereunto Set my hand and affixed the Seal of the Said district court, at Detroit the 6th day of September 1808. Peter Audrain clerk.
I certify that a bond is filed with Security for the prosecution of this appeal.
Peter Audrain Clk
\?Note: The original statement of evidence from which this transcript was made reads: “It was proved that the boy was rising of 18 years old at the time the agreement was entered into, but was small.”]
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Territory of Michigan, to wit—
The United States to the Marshall of the territory of Michigan Greeting: You are hereby Commanded that you caused to be levied of the goods & chattels, lands & tenements, with this territory, of Charles Curry, late of Detroit, Merchant, as well a certain debt of two thousand dollars and one cent which the United States of [Amer]ica in our Supreme Court, before our judges, at Detroit, recovered against him, and also seventeen dollars thirty seven & half cents which were awarded to the Said United States in our Said court for their costs and charges, which they had by occasion of detaining of the Said debt; and have you that money before our judges at Detroit on the third monday in of September next, to render to the Said United States for their debt, costs & charges aforesaid, Whereof the Said Charles is convicted; and have there this Writ. Witness Augustus B. Woodward, chief Judge of our Said Court the Second day of november one thousand eight hundred Seven. Peter Audrain clerk
In Obedience to the annexed Writ, I have seized and taken, One Two Story house and Lot, the place of residence of Charles Curry. One other Lot, on which is the Store on the corner of the main street and the street leading to the river. Also one house and Lot, formerly owned by Dr Joseph Wilkinson, as the property of Charles Curry and James Abbott. Also I have seized One Mare, one Cart, Three Beds, one Doz: chairs, a looking glasses, a bedstead.—Which remain on hand, as the sale has been delayed, by order of the Collector of the customs of the City of Detroit. WM Scott Marshal.
Detroit 3 June
AD 1809
Reuben Attwater recp* to James Abbott and Charles Curry, for $688. to wit.
378 of James Abbott and 310 of Charles Curry
1809
[Case 53, Paper 2]
Detroit 24th July 1809
Received of James Abbott and Charles Curry by the hands of Peter Au-drain Esqr the sum of Six hundred and Eighty eight dollars, towit, Three hundred and seventy eight dollars of James Abbott and three hundred and ten dollars of Charles Curry, in part payment of a Judgment the United States obtained against them, in the Supreme Court of the Territory of Michigan, on the first day of October 1807, as sureties for Doctor Joseph Wilkinson late collector.
$688.00 Signed duplicate receipts
Reuben Attwater
Collector Port
of Detroit
[In the handwriting of William McDowell Scott]
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Territory of Michigan in the supreme court of the territory of THE TERM OF SEPTEMBER IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED & EIGHT.
The Jurors of the United States within and for the Territory aforesaid on their oaths present that David Robison of Detroit in said Territory Merchant on the twenty eighth day of April in the year of our Lord one thousand eight hundred eight with force and armes at Detroit aforesaid two window Blinds commonly called Venetian blinds of the value of twenty dollars being the goods and chattels of George McDougall Esquire of Detroit aforesaid then and there being found feloniously did steal take and carry away to the evil example of all others in like cases offending against the peace and dignity of the United States and of this Territory and against the form of the statute in such cases made and provided— E Brush Atty Geni
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Territory of Michigan, to wit
The United States of America to Jacob Visger & Robert Abbott, judges. of the Court of the district of Huron & Detroit. You are hereby required to cause to be produced before the judges of the Supreme Court of the territory of Michigan, to be holden for the Said territory, at Detroit, on the third monday in September next the body of John Williams, detained in our prison, under your custody, at the Suit of Joseph Campeau, as it is Said, by whatsoever name he may be called therein, together with the cause of his detention, to do and receive whatsoever our Said Supreme Court Shall then & there consider of him in this behalf; and have you then there this writ. Witness Augustus B. Woodward, chief judge of our Said Supreme Court, at Detroit the first day of may one thousand eight hundred nine.
Peter Audrain
Clk S. C.
Territory of Michigan DISTRICT OF HURON & DETROIT
In obedience to the annexed writ we do Send before the Supreme Court of the territory of Michigan the body of John Williams at the Suit of Joseph Campeau, together with the cause of his detention, by virtue of a certain writ, of which the following is a copy, to wit,
Territory of Michigan DISTRICT OF HURON & DETROIT/
The United States of America to the Marshall of the district of Huron & Detroit Greeting: You are hereby commanded to take John Williams, if he may be found within the district of Huron & Detroit, and him Safely Keep, So that you may have his body before the judges of our district court, at Detroit, on the first monday in august instant then & there, in our Said Court to answer Joseph Campeau in a plea that he render to the Said Joseph Campeau the Sum of two hundred & fifteen pounds, two Shillings, and one penny, new york currency, equal in value to $537.76, lawfull money of the United States, which to him he doth owe, and from him doth unjustly detain, to his damage eight hundred dollars, and of this writ make due return. Witness Frederick Bates, one of the judges of our Said court, at Detroit the Sixteenth day of august one thousand eight hundred Six.
(Signed) Peter Audrain, clerk
The following words are endorsed on the writ—to wit—-
This action is brought to recover the Sum of two hundred & fifteen pounds two Shillings, and one peny new yk currency awarded by Peter Audrain Charles Moran, and Thomas McCrae junr arbitrators indifferently named and chosen by & betwen the Said Joseph, and the Said John to arbitrate of & concerning all matters in dispute betwen the Said Joseph and the Said John, antecedent to the 25tk of november 1803. bail is dispensed with
E. Brush atty for plaintiff.
And the Marshall by his Deputy, James McCloskey, has made the following return, to wit— served—James McCloskey
Depy Marshall
Jacob Yisger
Robert Abbott
[In the handwriting of Peter Audrain]
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Territory of Michigan to wit.
To the Honorable the Supreme Court of said Territory, in Chancery sitting,
The Answer of Charles Poupard (Dit Lafleur) Respondent, to a Bill of Complaint of Dame Veronique Campau, Complainant.
This Respondent, now, and at all times hereafter, saving and reserving to himself, all manner of benefit, and [advantage of exception, to the Manifold Errors, and insufficiencies, in the Complts said Bill contained; for Answer thereto, or to so much thereof, as this Respondent is advised, is material for him to make answer unto, he answereth, and Saith; that true it is that on the sixteenth day of May in the year of our Lord 1803. a certain Indenture was entered into and executed by the said Dame Veronique Campau complain1 and this Respondent whereby the said Complainant, “Ceded quitted, transferred & demised from that day forever, with a guarrantee against all troubles, gifts, Dowers, Debts, Mortgages, evictions, alienations, and of all hindrance whatsoever,!”] on[e hal]f or mfoiety] of the farm, whereon the said Complainant then resided, [th]e said moiety being One and a half Ar-pents in front, and forty arpents in rear, beside, the continuation of forty acres more in depth, as is more particularly expressed in the Bill of Complaint, and the said Complainant did further by the said indenture, give unto this Respondent, the other moiety of said farm, during her fife, to the profit of this Respondent and the said Complainant did, in and by the said Indenture further grant, and convey unto this Respondent, all the household property mentioned in an inventory which had been made, of the property which was in common between the said Complainant, and her late husband Simon Campau decd consisting of household furniture, animals, utensils of husbandry &c.— And this Respondent further admits, that in consideration of all and singular the Gifts, grants, conveyances, and aliena-tions to him, so as aforesaid made by the said Complainant; he undertook, and was bounden, in and by the said Indenture, to feed, & furnish cloathing, lodging, firewood, candles &c. for the said Complainant, during her life, and to treat her with respect when in health and in sickness, and in the latter case to have her attended conveniently, and this Respondent further obliged himself to board Angelique Campau, his sister-in law, until she should be married, and to treat her with mildness; and also to board the widow of Simon Campau, as long as she should choose to remain with this Respondent, and also to board a little girl which the said widow had with her; and this Respondent further agreed, if it should be in his power, to advance one hundred pounds to the said Complainant, to have prayers said, for which after the death of the Complainant this Respondent, was to be reimbursed, from the moiety of the aforesaid farm, which he was to enjoy during the Complainants life. And this Respondent further admits that he was also bounden in and by the said Indenture to pay the Debts due the creditors and heirs of the said Simon Campau decd amounting to three hundred fifty eight pounds, two shillings and four pence as will appear by the Bill of Complaint. And this Respondent possitively states that the said Indenture between the Complainant and himself was read to, and fully understood by the said Complainant and entirely agreed to by her previous to, and at the time of its execution, without that, that there was any fraud or circumvention, practised toward the Complainant [by t]his Respondent, or any person or persons confederated with him, as the said complainant hath charged, and which this Respondent, absolutely and unequivocally denies. And this Respondent further saith that he did from the time of the execution of the said Indenture until some time in the year of our Lord one thousand eight hundred seven, when he was arrested on a capias ad satisfaciendum, and dragged to prison, and there confined for a considerable time, at all times furnish the said Complainant, with sufficient, and comfortable Di[e]t, cloathing, lodging, fire, candle, and that he did always treat her, with proper and due respect, and did fully perform towards her all that he is bound to do, in and by the said indenture: and this Respondent further saith that while he was lying in jail as aforesd he had left a certain Henry Campau in charge of his affairs, with directions to treat the said complainant in the same manner as heretofore; but so it was, may it please this honorable court, as this respondent was informed, and verily believes, that during the time this Respondent was in jail, a certain Robert McDougall, who is a son-in law of the complainant contriving and wickedly intending to injure this Respondent and entirely to deprive him of the property which he had acquired by virtue of the Indenture aforesd did use every art and persuasion to render the complainant dissatisfied with this Respondent, and to induce her to leave the house of this Respondent and to take up her residence with him the said Robert, which the said Complainant finally did, and afterwards, as this Respondent is informed and verily believes, the said Robert McDougall did cause the aforesaid Bill of Complaint to be exhibited, for the cruel and unjust purpose, of evicting this Respondent from the possession and enjoyment of the aforesaid property and to bring the same into the possession and enjoyment of him the said Robert. Without that, that, the said Complainant was forced to leave the house of this Respondent, on account of bad usage, or for want of any of the comforts and necessaries of life, which this Respondent expressly denies. And this Respondent further saith that he hath paid on account of the Debts mentioned in t[he Comjplainants bill [of complaint,] the heirs and other creditors, and other debts [n]ot therein included, about Three hundred and sixty pounds, currency of New York, for all, or the greater part of which this Respondent can produce Receipts; altho’ by the said Indenture, this Respondent is only bound to pay the sum of three hundred forty three pounds, nine shillings and four pence, exclusive of the share of the wife of this Respondent, who was one of the heirs of the said Simon Campau decd without that, that this Respondent hath not paid the Debts &c. as charged in said Bill and which this Respondent expressly denies. And this Respondent for further answer absolutely denies the commission of Damage and waste, on the premises aforesd as charged in the said Bill of complaint. And this Defendant denies all unlawful combination or confederacy, in the said Bill charged—without that, that, there is any other matter or thing, material, or necessary for this Defendant, to make answer unto, and not herein, or hereby well and sufficiently, answered unto, confessed or avoided, traversed or denied, is true; all which &c.
Harris H. Hickman
Counsel for Respond4
Territory of Michigan DISTRICT OF HURON- & DETROIT SS
Personally appeared before me the subscriber, a Justice of Peace, in and for the Said District, Charles Poupard, (Dit Lafleur) the Respondent above named, who after being duly sworn, saith that the facts stated in the above answer, so far as stated of his own knowledge are true, and so far as stated to be from the knowledge, or information of others he believes to be true. Sworn & Subscribed before me, Ch. Poupard
this 6th October 1808.
Peter Audrain J.P.D.D.
Replication Verniqu Campau
filed 10. octber 1808
Peter Audrain elk
[Case 88, Paper 5]
The Replication of Dame Vereniqu Campau Widow of the late Simon Campau her late husband deceased Complainant, to the answer of Charles Poupard defendant—this repliant Saving and reserving to her Selfe all and all manner of Advantage of Exception to the manifold insufficiencies of the said Answer for Replication thereto saith that she will aver and prove her said Bill to be true certain and sufficient in law to be answered unto and that the said answer of the defendant is uncertain untrue and insufficient to be replied unto by this repliant without that that any other matter or Thing whatsoever in the Said answer contained material or effectual in the law to be replied unto confessed and avoided traversed or denied is true all which matters and things this repliant is and will be ready to aver and prove as this honorable court shall direct and humbly prays as in and by her said Bill She hath already prayed. E Brush Council for
Complainant—
[In the handwriting of Elijah Brush]
Veronique Campau— Petition
[Case 88, Paper 6]
The Honble Judges of the Supreme Court of the Territory of Michigan—
The humble petition of Veronique Campau the Widow of Simon Campau deceased
Sheweth unto your Honors,
That your petitioner hath been all this day very much alarmed at the Circulating Reports of Joseph Campaus malicious & Jealous attempts to draw your petitioner out of the peaceful retirement she hath elected (with the Consent and approbation of all her Children) by offering Lambert Bobien and others One hundred pounds out of his own pocket, to induce him to undertake the shamful Task—
Your petitioner solemnly avers, that nothing but the unsupportable hardships, which she hath suffered and undergone with Charles Poupard for upwards of four years past, could ever have induced her to abandon her Family Domicile, so much endeared to her from the remembrance of the many happy Years she formerly passed therein, while rearing her numerous progeny—
To end her days with her Eldest Daughter who has generously supported her for upwards of fourteen Months past with the utmost tenderness and filial Duty, and who is to dwell with your petitioner in her former habitation would be to your petitioner, the only remaining consolation on this side of the Grave—
It is in this fond hope that She looks up to the protection and philanthropy of this Hon’ble Court, and that your Honors will not compel her to live with Strangers against her Will at her advanced period of life—
And your petitioner as in Duty bound will ever pray—
Detroit 11th Oct 1808— Veronique Campau Veue
Etat exacte des Conventions et du Contrat entre Charles Poupard et Madame Campau, avec les remarques de la dite Veuve a cet égard, pour la Considération des Honorables Juges, faite au Detroit le 21 Nov 1808. Le dit Marché ou Contrat est datté le 16 May 1803 et spécifie que la di te Veuve cede, quitte, transporte et délaisse au dit Charles Poupard LA MOITLÉ (seulement) de la Terre ou elle demeurait alors— “la dite moitié étant d’une Arpent et demie de front sur qua-rente de profondeur &c avec le meme droit sur les quarente Arpents au bout des dits premiers, lequel moitié a été estimé dans lTnventaire a deux Cent Cinquante Pounds York— Laquelle Terre étoit alors entierement ensememje dans l’au-tomne 1802 de vingt Minots trois quarts de Froment, neuf minots de Segle &c (selon qu’ils sont mentionné dans la dite Inventaire faite le 9 May 1803 exactement huit jours devant le dit Contrat)—produisant quinse Minots chaqué aumoin, done cinq pour les fraix de la Récolte et Battage sont a rabat-tre, reste dix Minots claire profit du produit par chaqué Minot font 297^2 piastre 8/ £119.0.0
“Cede en outre la dite veuve au dit Poupard tous les meubles mentionné dans l’inventaire susdite du 9 May 1803 (estimé a moitié prix) et montant a la Somme de £136.0.0
Le Verger a produit Quarente Quarts de Cidre un an avec l’autre depuis que Poupard en a eu la possession, estimé a 30/ par chaqué Quart £60.0.0
outre Vingt Quarts de pommes Choisie au moin, estimé á moitié prix £8.0.0
“En outre la diteVeuvedonne au dit Poupard la Jouissance de l’autre Arpent et demie de la dite Terre (qui veut dire l’autre moitié de la dite Terre) sa vie durante c’est a dire tant qu’elle vivrat au profit du dit Poupard, qui a la préférence de l’achat de celle apres le déces de la dite Dame au prix et prorata de ce que “toute la Terre de Trois Arpents a été estimé a l’inventaire du dit 9 May 1803 laquel moitié sera disposé suivant qu’il plaira a la dite Veuve d’ordonner dans la suite”—La veuve pour lors avoit prevenu Poupard avant que de Signer le dit Contrat, que cet moitié de la Terre appartenait de droit a ses propres Enfants pour l’heritageprovenantd’elle a eux apres sa Mort— “L’abandon, cession, transport et délaissement susmen-tionné a été faite AUX CONDITIONS SUIVANT “que “le dit Poupard s’oblige de nourir, entretenir de hardes, “loger Chauffer, eclairer la dite Veuve sa vie durante et la “traiter avec Respect £323.0.0
“tant en Senté qu’en Maladie, auquel cas de la faire soigner comme II conviendrat” &c — tous ce que le dit Poupard a manqué de faire, car II a été prové que la dite Veuve a tou-jours travailliez a la Couture de Taillieur, a faire la Cuisine et laver les Hardes des Engagées du d£ Poupard, comme Mons. Brush la vraiment dite en pleine Cour, qu’il ny avoit pas UNE NEGRESSE dans le Detroit, qui a travailliez si forte et a été si mal nourie et habillié comme Madame Campau pendant qu’elle étoit chez Poupard, nonobstant quelle avoit mise un si b[e]au Bien entre ses mains pour la maintenir selon son état. Le dit Poupard a done en Vususfruit de la dite Terre sans avoir donn'e aucune valeur quelconque pour icelle, pour Fespace de Cinq Ann'e et demie, durant lequel terns II a retiré Six recoltes entieres de la dite Terre lequel a $120 seulement % par Anne pour Cinque Anne et demie font $660 egal a la Somme de £264.0.0
font £587.0.0
que le dit Poupard a eu en valeur et profité par son marché avec Madame Campau— # Monsieur Dodemead ayant offert avec instance en 1805 au dit Poupard Cent pounds par Anné de loyer pour la dite Terre, que la dite Veuve est préte á prouver.
A légard d’Angelique Campau et la Veuve Simon Campau le Jeune et sa filie, lis étoit obligé de travaillier et ayant gagné leur entretiens a la Couture de Taillier le métié alors du dit Poupard le peu de terns qu’ils y ont resté chez Poupard, cela a été plustot une Avantage pour lui, aussi bien qu’Antoine qui étoit alors Homme faite, et II a fait le devoir d’un bonne Engagé tant qu’il a resté au logis du df Poupard.
Le dit poupard.avoit entrepris aussi de payer de plus Cent pounds a Madame Campau, montant de son Doire et préci-put, pour lui donner les moyen de faire des aumones et faire dire des priéres pour son deffunt Mari et elle, et dans le ren-voye Bellecour et lui, ont par ce moyen faite a croire a la dite Veuve par cela, que le dit Poupard s’y étoit obligé, mais Ils l’ont trompé comme il a été bien prové. Le dit Poupard s’est obligé de plus sous la meme Hypothéque de payer toutes les dettes mentionné dans l’Inventaire du dit 9 May 1803 mon-tant a la Somme de £211.12.4
et 5.16.0
Et aussi l’héritage des dix héritiers a £14.13.0 chaqué font 146.10—
YK £363.18.4
de sorte que si le dit Poupard avoit payé les dites Dettes et Héritiers dans le Cours de l’anne 1803 comme II s’y étoit obligé et aussi le Doire et préciput de Made Campau 100—
£463.18.4
Le dit Poupard auroit nonobstant profité aujourdui la Somme de £123.1.8 Yk restant des £587.0.0 comme dit est—s’il étoit obligé par le décret de la Cour de rendre présentement la Terre a la dite Veuve—Qui seroit en ce cas encore obligé de payer les Héritages de Henry Campau, Antoine Campau, L’orpeline de feu Simon Campau fils agé de neuf annés, et L’orphelin de Polite Sl Bernard un Enfant de la méme age, qui n’ont pas encore recu un Sol du dit Poupard savoir 4 héri-tiers 14.13.0 chaqué font £58.12.0
La Compte du Doc* Wm Brown n’est pas encore payé 11.19.0
£70.11.0
Ces heritages et Dette porte Intéret depuis le 16 May 1803 font Cinque Annés et demie a 6pC 23. 5.6^
Le Compte de Joseph Campau en September 1807 montait a £157—déduise £40 ou £50 payé a lui par Poupard depuis cet an la selon le Serment du dit Jos. Campau II lui est con-séquament du a present a peu pres ioo-
Ajouté une Anné d’Intéret a lui du sur cet balance 6-
Du encore a Madame Campau son Doire et sa preciput selon ses Conventions (sans compter l’intéret qu’il devroit payer depuis le 16 May 1803 a la dite Veuve Sur le dit Doire et preciput 100-
Total £299.16.6^
En conséquence le dit Poupard doit encore la dite Somme de £299.16.6 et s’il garde la d£ Terre—Cet somme ou aumoin £199.16.6 seront présentenV a étre deboursé par la dite Veuve, Si les Juges l’obligoit de lui rendre sa dite Terre au-jourdui pendant que les Dettes en premiere lieu le 16 May 1803 n’étoit que £363.18.4. Comme dit est.
C’est poupard lui meme qui’est 1’auteur s’il y a encore tant de Dettes du par sa negligence en ne les ayant pas payé ainsi que les Heritiers de la succession de feu Simon Campau mon mari a meme le bien de la dite Succession que le dit Poupard a tous gaspiez et employé a payer ses propres dettes, pendant que les inteRets ont mangé le bien.
C’est bien aisé aux Avocats et personnes Intéressé a qui le dit Poupard doit des Sommes immence de tacher d’engager la Sympathie de mes Honorables Juges—Mais la dite Veuve ce fie que ces Messieurs sont audessus de tel Artifices et que la vérité seule emportera, qu’une Justice juste quoique severe se fera voire dans leur decision et que la Veuve et l’or-phelin trouveront toujours une réfuge assuiré dans nos Cours de Justice, par la protection qu’Ils ont le droit d’y esperer.
Veronique Campau, Veuve
Memoire
£363.18.4 Montant des Dettes le 16 May 1803
199.16.6 due aujourdui, autre le Doire de Made Campau, reste.
£164.1. io=seulementque le dit Poupard a donné au profit de la dite Suc-
cession pour l’ususfruit d’icelle pour Cinq Anné et demie 136 outre £136 de meubles et Animau re?u par lui de la dite Suc-
£28.1.10 cesión a déduire
Witnesses on the part of Mrs Campau
Jacques Campau
Louis Campau
Angelique Petit the Wife of Anselm Petit
Lambert Bobien and Genevieve his Wife—
William Jones for the proposals to Jos. Campau
Francois Gobeille Junior
Jean Marie Bobien
Antoine Campau
Catherine Widow of Simon Campau Junr
—Peter Audrain—
We dont call upon Chs Moran for he participated in the fraud Must not those persons he owes be summoned—
Detroit 3d. April 1809
Widow Veronique Campau to George Mc. Dougall
Letter
appointing him her Trustee, in conformity to a decree of the Supreme Court Sitting as a Court of Chancery.
filed in the Supreme Court 5. april 1809.
Peter Audrain elk. S.
C.
[Case 88, Paper io]
Territory of Michigan, to wit.
To all to whom these presents shall come, or may concern—Greeting:—
Whereas in and by a certain decree of the Supreme Court of said Territory of Michigan, on sitting as a Court of Chancery, in a certain Suit or complaint, wherein I dame Veronique Campau, Widow of Simon Campau late of Detroit in said Territory deceased, was Plaintiff or Complainant against Charles Poupard dit Lafleur, defendant, it was amongst other things ordered and Decreed, that I the said dame Veronique Campau, should appoint under my hand a Trustee, to whom the said Charles Pou-pard was likewise ordered and decreed to execute certain Instruments of Writing for my use and benefit as in and by said Decree will very fully and at large appear by a reference thereto—now know ye, that reposing special Trust and confidence in George M°Dougall of Detroit, Esquire, in the Territory aforesaid, I have made Constituted, and appointed, and by these presents do make Constitute and appoint him to the Trust aforesaid, giving and by these presents granting unto him full power and authority to execute the same in every and all respects conformable to the said Decree—In testimony whereof I have hereunto set my hand at Detroit aforesaid this third day of April in the year of our Lord one thousand Eight hundred and Nine— Subscribed and delivered Veronique Veu Simo Campau
in the presence of
E Brush
[In the handwriting of Harris H. Hickman]
[In the handwriting of George McDougali]
[In the handwriting of George McDougall]
[In the handwriting of George McDougall]
[In the handwriting of George McDougall] | [
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Territory of Michigan to wit—
And now at this present Term of September in the year of our Lord 1807 comes the aforesaid Joseph Campau by E Brush his Attorney and says that in the record and proceedings as also in the rendering the Judgment aforesaid there is manifest Error in this towit—
that by the record aforesaid as also in rendering the Judgment aforesaid it appears that the District Court have decided that no arbitrament or award made subsequent to the 15th day of Novemr 1799 can be binding and obligatory upon the parties unless made in strict conformity to a Statute of this Territory passed on that day, whereas it manifestly appears that there is nothing in the said Statute that requires the parties to notice the same or make their submission in conformity thereto in this therefore there is manifest Error—
there is also Error in this, that by the Record aforesaid it appears that the Judgment aforesaid was that the award aforesaid was uncertain and not final and conclusive between the parties and embraced matter not included in the submission, and so the judgment aforesaid in form aforesaid rendered and all the proceedings thereon are wholly void and erroneous in Law—
there is also manifest Error in this that in giving the Judgment aforesaid the court have decided that the said award wants the form and substantial requisite of an award which (they say) is uncertain from the face of it and not conclusive and final between the parties up to the date of the said award, which the Plaintiff avers is sufficiently certain, final and conclusive between the parties in this therefore there is manifest Error
there is also manifest Error in this that in giving the Judgment aforesaid the court have decided that the action or Declaration of the Plaintiff was not supported and did further decide that the said award should not go down to the Jury as proper evidence whereas the said award not being under the seal of the Arbitrators its construction and import was matter of fact and ought to have been left to the consideration of the Jury in this therefore there is manifest error—
there is also manifest error in this that in giving the Judgment aforesaid the court have given Judgment for the defendant whereas by the Law of the Land Judgment ought to have been given for the Plaintiff therefore in that there is manifest error, the said Joseph prays that the Judgment aforesaid for the Errors aforesaid, and other the Errors in the record and proceedings aforesaid appearing may be reversed. By E Brush their Atty
and the said John Williams comes here into Court, and says that in the record aforesaid or in rendering judgment aforesaid there is not any error, and prays that this Hon1 Court may proceed to the examination of the record and proceedings & the matter aforesaid, above assigned by the said Joseph for Error John Williams by
Sol Sibley his Aty
[In the handwriting of Elijah Brush] | [
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Territory of Michigan
The United States of America to Wm Morris,.... Tremble—Augustin Fran-coeur— We command you and firmly enjoin you that laying all other matters aside, you personally be and appear before the Judges of our Supreme Court, at Detroit, at the clerk’s office forthwith to testify all and Singular you Know in a certain action now depending and then and there to be tried between the United States against a quantity of wheat &c hereof fail on the penalty of five hundred dollars—Witness Augustus B. Woodward Chief Judge of our Said Court the Seventeenth day of Decber 1810 Peter Audrain elk. S. C. [seal] | [
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] |
Territory of Michigan in the district court of the territory of the term of august in the year of our lord 1807—
District of Huron & Detroit ss— Moses Egleston by E Brush his atty complains of William McCartney in custody of &c in a plea of trespass on the case For that whereas the said Moses on the first day of December in the year of our Lord one thousand eight hundred six at Oxford in the province of Upper Canada in his Britanic Majesties Dominion towit at Detroit in the District and Territory aforesaid and within the jurisdiction of this court was possessed of a certain note of hand commonly called a promisory note given unto him by one Joseph House of Oxford aforesaid for the sum of sixty pounds twelve shillings New York Currency equal in value to one hundred fifty one dollars fifty cents currency of the United States as of his own proper goods and chattels and being so thereof possessed he the said Moses Egleston afterwards towit on the same day and year aforesaid at Oxford towit at Detroit aforesaid casually lost the said Note out of his hands and possession which said Note afterwards towit on the same day and year aforesaid at Oxford towit at Detroit aforesaid came to the hands and possession of the the said William McCartney by finding yet the said William knowing the said Note to be the proper goods and chattels of the said Moses and of right to belong and appertain to him but contriving and fraudulently intending craftily and [sub]tally to deceive and defraude the said Moses in this respect hath not as yet delivered the sa[id] Note to the said Moses, (altho often requested so to do) but he the said William afterwards towit on the sixteenth day of July in the year of our Lord one thousand eight hundred seven at Oxford towit at Detroit aforesaid converted and disposed of the said Note to his own use to the said Moses his damage of two hundred dollars and therefore he brings suit &c
E Brush Atty
Detroit aforesaid ss— Moses Egleston puts in his place E Brush his atty ag4 Wm McCartney in the plea aforesaid—
[Indorsement]
Defts Plea, not guilty—
Huron & Detroit District ■towit
And the sd William McCartney by Sol. Sibley his Atty comes & defends &° when &c and for plea saith that he is not guilty of the trover and conversion, in the Pltff declaration above charged ag[ainst] him in manner and form as therein set forth and of this he puts himself on his country &c
Sol Sibley At[y]
Huron & Detroit William McCartney puts in his place S Sibley [his] atty in the plea above pleaded &c
Peter Audrain Esq Detroit
[Case 113, Paper 1]
Detroit 14 Septr 1808
I have always given you to understand Mr Audrain that when I send a precipie for a writ for any person living out of the Territory and for whom I am in the habit of doing business you will enter me security for the costs of prosecution
You will of course therefore enter me as security for the cost of prosecution in the case of Lilly & Boston against the Lassells—and Forsyth Richardson &c against the Mrs Abbotts altho in this latter case security could not be required because they Forsyth &c are freeholders in the Territory—
I am &c Yours truly
Mr Audrain Esqr E Brush
[In the handwriting of Elijah Brush]
[In the handwriting of Solomon Sibley]
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] |
John Anderson vs Claudius Barthelot
In an Action of Covenant removed from the District Court of Erie
The Defendant plead that the obligation on which this action is brought was given for a illegal consideration and of this he puts himself on the Country And the Plaintiff likewise
The Court was adjourned to the 24th Ins1 at 1 of the clock P M
November 24th the Parties appeared and a jury was called Viz. John Reddall, Stephen Downing Levi Sherman Samuel Young John Eleson Simeon Blackman Hubart Lacroix Caleb Plumb Reuben Lewis Emery Thayer Joseph Ruland & John Ruland who after being empanneled and sworn on the Holy Evangelist of Almighty God well and truely to try the Issue joined between the Parties, heared the evidence produced by the Parties and their respective altrecation retired from the bar & after consulting together returned the following Verdict Viz
We the Jurors find for the Defendant his Costs
Caleb Plumb Foreman
The Costs being taxed at Nineteen Dollars & Sixty three & one fourth cents the Court gave judgment that the Defendant have and recover of the Plaintiff said sum of Nineteen Dollars and Sixty three and one fourth cents—
The Plaintiff prayed an appeal to the Supreme Court which was granted & Security given Isaac Lee J.P.D.E
Att
A True Copy
Isaac Lee J.P.D.E
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Be it remembered that at La Riviere aux Raisins, in the district of Erie, in the Territory of Michigan, on Monday the sixth day of June one thousand eight hundred eight, personally appeared before me the undersigned, one of the judges in and over the Territory of Michigan, Francois Navarre, Jean Batiste Lasselle, and Jean Batiste Couteur, of the district of Erie, and Territory of Michigan, gentlemen, who severally undertook that whereas James Pelletier has instituted an action against James and Francis Lasselle in the Supreme Court of the Territory of Michigan, in debt, for four hundred eighty dollars sixty three cents, that they the said James and Francis Lasselle shall satisfy and pay the condemnation of the court in the action aforesaid, or render their bodies in execution for the same, or that they, the said Francois Navarre, Jean Batiste Lasselle, and Jean Batiste Couteur, each of them, will do it for them the said James and Francis Lasselle. In witness whereof I have hereto subscribed my name this sixth day of June one thousand eight hundred eight; and the said Francois Navarre, Jean Batiste Lasselle, and Jean Batiste Couteur, have severally countersigned the same Frs Navarre Augustus B. Woodward.
JN Bapt Lasselle one of the Judges in and
Jean Bt Couteu over the territory of Michigan.
[In the handwriting of Augustus B. Woodward] | [
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Territory of Michigan IN THE SUPREME COURT 1 OF THE SAID TERRITORYJ
Septemr term 1807
The United States of America complain of Toussaint Pothier and Germain Pothier in custody &c of a plea that they render unto the said United States the sum of seven hundred sixty five Dollars, & four cents, which to the said, United States, they do owe and from the said United States do unjustly detain, for this, that the said Defendts on the 5th day of July 1806, to wit at Michilimackinac, in the said territory, by their certain writing obligatory, (called a bond) sealed with the seals of the said Dfts, and bearing date the same day & year last above mentioned, which said Bond, is to the Court, now here shewn, acknowledged themselves to be held & firmly bound to the said United States in the said sum of seven hundred sixty five Dollars & four cents and for the payment of the same, the said Dfts, bound themselves, their heirs, executors & administrators, jointly & severally, firmly by the said Obligation, whenever they should be thereunto afterwards required.
Nevertheless the Dfts altho’ often required the said sum of seven hundred & sixty five Dollars & four cents, to the said United States to pay; have not paid; but the same to pay, have hitherto wholly refused and still do refuse, to the Damage of the said United States .... Dollars and thereof they produce the suit &c
And there are pledges to prosecute to wit
John Doe & Richd Roe.
The United States put in their place Harris H. Hickman, their attorney to prosecute in their behalf their plea above.
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Territory of Michigan, to wit—
The United States of America to the judges of the district court of our district of Huron & Detroit in Said territory: Whereas, by our writ, we being willing for certain errors appearing in the record & process, and also in the giving of judgment of the plaint, which was in our district court, at Detroit, before you, betwen Joseph Campeau, and John Williams, both of Detroit aforesaid, merchants, of a certain debt of two hundred fifteen pounds, two Shillings, and one penny, new york Currency equal in value to five hundred, thirty Seven dollars, Seventy Six Cents, money of the Said United States, which the Said Joseph demanded of the Said John, manifest error therein has intervened, to the great damage of the Said Joseph, as we, by his complaint, were informed; and we being willing that the errors, if any, should be corrected in due Manner, and that full & Speedy justice Should be done to the parties aforesaid, in this behalf, did command you, that if judgment thereof be given, then under your Seal you distinctly and openly Send the record & process of the plaint aforesaid, with all things concerning them, and our Said writ in that behalf directed, So that we might have then before our Supreme Court, that the record & process aforesaid being inspected, we might cause to be done thereupon, for correcting the errors therein, that which of right, and according to law, ought to be done; yet we being now moved with certain causes in our court before us, command you, and every of you, that in the plaint aforesaid against the Said John Williams, at the Suit of the Said Joseph Campeau, in our court before you, or any of you, you cause & permit the evidence of the Said Joseph Cam-peau’s demand thereof against the Said John Williams (heretofore rejected by you) to go to the Jury with Such a direction as to its legal import, effects and consequences, as you, or any of you may think proper to give, and that you proceed with what Speed you can in Such manner, according to the law, and custom of the United States, and this territory, as you Shall See proper, our first writ first to you directed to the contrary in anywise notwithstanding. Witness Augustus B. Woodward, chief judge of our Said Supreme Court, at Detroit the twelfth day of October one thousand eight hundred eight.
Peter Audrain Clerk
[In the handwriting of Peter Audrain] | [
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Joseph Campeau vs Pierre Chovin
Pleas held at Detroit before Frederick Bates Sen associate judge of the territory of Michigan, of august term in the year of our Lord one thousand eight hundred Six, in the district Court for the district of Huron & Detroit.
Territory of Michigan—to wit-—-in the district court of the territory FOR THE DISTRICT OF DETROIT & HURON, OF THE TERM OF MAY IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED SIX.
District of Detroit ss—Joseph Campeau by Elijah Brush his attorney, complains of Pierre Chovin in Custody of &c in a plea of trespass on the case; for that whereas the Said Pierre on the nineteenth day of august in the year of our Lord one thousand eight hundred and three, to wit, at Detroit aforesaid made his certain note in writing commonly called a promissory note, his own proper hand writing, or accustomary mark being there unto Subscribed, bearing date the Same day & year aforesaid, and then & there delivered Said note to the Said Joseph, and thereby promised to pay the Said Joseph by the name of Mr Joseph Campeau, or order, the Sum of one hundred & twenty five pounds new york Currency, equal in Value to three hundred & twelve dollars & fifty cents lawfull money of the United States as follows, to wit, Sixty pounds, equal to one hundred and fifty dollars in October eighteen hundred and four, and Sixty five pounds equal also to one hundred Sixty two dollars, fifty cents in the year of our Lord one thousand eight hundred five upon which last payment the Said Pierre was to pay twenty pounds, equal to fifty dollars, in flour, or wheat, or Indian corn for value received by him the Said Pierre. By reason whereof the Said Pierre became liable to pay the Said Joseph the Said Sum of money contained in Said note according to the tenor & effect of Said note, and being So liable, he the Said Pierre, in consideration there of afterwards, to wit, on the Same day & year aforesaid, to wit, at Detroit aforesaid, undertook & faithfully promise the Said Joseph to pay him the Said Sum of money contained in Said note, according to the tenor and effect of Said note. Yet the Said Pierre not regarding his aforesaid Several promises and undertakings So by him made in his behalf, as aforesaid, but contriving & fraudulently intending craftly & Subtilly to deceive & defraud the Said Joseph in this particular, hath not as yet paid the Said Joseph the Said Sum of money contained in Said note, or any part thereof, neither hath he paid him the aforesaid twenty pounds, equal as aforesaid, in flour, or wheat, or indian corn, as aforesaid, but he to pay the Same hath hitherto intirely refused, and Still doth refuse, to the Said Joseph his damage of five hundred dollars, and thereof to recover the Same, with costs, he brings Suit. &c and hath pledges, to wit, John Doe and Richard Roe. E. Brush atty
District of Detroit ss—Joseph Campeau puts in his place E. Brush his attorney against Pierre Chovin in the plea aforesaid.
Plea And the Said Pierre by Solomon Sibley, his attorney, comes & defends &c, when &c, and Saith that he never promised and assumed upon himself in manner & form as the Said Joseph in his declaration above hath thereof against him the Said Pierre Chovin declared, and of this he puts himself on his country &c. Sol0 Sibley—atty for defend1
And the plaintiff likewise By E. Brush.
Huron & Detroit—to wit— Pierre Chovin puts in his place against Joseph Campeau, Solomon Sibley his attorney in the plea above &c.
Therefore the Marshall of the territory of Michigan is commanded to cause to come before us twelve good & lawfull men of the district of Huron & Detroit, who are neither of Kin to the plaintiff or Defendant, by whom the matter in dispute may be better ascertained, on the third monday of august next.
And now at this present term of august one thousand eight hundred Six comes as well the Said Joseph Campeau by Elijah Brush, his atty as the Said Pierre Chovin by Solomon Sibley, his attorney, and the Jurors of the Jury, within mentioned, being called, likewise come to wit—John Gentle—Antoine Peltier—James Conner—William Watson—Thomas Murphy—Archibald Horner—Jeanbatiste Durette—Samuel Hungerford—Isaac Jones—Elisha Harrington—John Harvey, and Henry McVey—who, to Say the truth of the within premises, being elected, tried & Sworn & having heard the evidence & argument, withdrew from the bar to consult of their Verdict, afterwards returned into court, and upon their oath Say that they do find for the defendant
Therefore it is considered by the Court that the Said Pierre go without day and recover his costs & charges by him about his Suit laid out & expended.
And Elijah Brush, attorney for the Defendant, presented to the Court a bill of exceptions in the following words to wit.
Campeau versus Chovin
Be it remembered that on the .... day of august one thousand eight hundred and Six came on for trial in the Court of the district of Huron & Detroit the cause of Joseph Campeau versus Pierre Chovin for the recovery of Damages on a certain promissory note of hand for the Sum of hundred and twenty five pounds new york Currency which Said note is of record in Said court by reference to which the contents thereof will more fully appear; that it appeared in evidence that the plaintiff had voluntarily given a writing in explanation of Said note, which Said writing is also of record and may be referred to: that the evidence generally of the defendant and particularly with parts thereof, as were introduced for the purpose of Shewing that there was no consideration, were thought by the Court to be conclusive and ought in connection with the Said explanatory writing to defeat the note—all of which Said evidence was reduced to writing by the clerk, by reference to which its import will more fully appear:
And be it besides remembered that on full consideration of the premises the court instructed the Jury to find for the defendant; to which opinion & charge of the Court the plaintiff by E. Brush Esquire, his attorney excepts as illegal, and prays that his exceptions may be Sealed &c &c.
Fk Bates (L S)
£125. C.N.YK—
Je promets payer á Mr Jos, Campeau ou ordre la Somme des Cent Vingt Cinq pounds Cours de la nouvelle York, Savoir Soixante pounds dans le Cours d’octobre prochain de l’an 1804 et Soixante Cinq pounds en Fan 1805. Sur le dernier payement Je payeray Vingt Cinq pounds en farine ou froment, ou bled daind etant pour valeur recu, done je promets d’en payer interet du Cours d’octobre 1804 Sur la Somme qui restera á ce terns
sa Pierre X Chovin marque
Temoin Pierre Meloche
Denis Campeau
The foregoing note in the french language was translated into the english language by Peter Audrain by consent of parties in open Court; as follows to wit.
£125 Newyk Cury
I promise to pay Mr Jos, Campeau, or order, the Sum of one hundred and twenty five pounds Newyork Currency, that is to Say, Sixty pounds in the course of October next of the year 1804, and Sixty five pounds in the year 1805. On the last payment I will pay twenty five pounds in flour, or wheat, or indian corn, being for value received; And I promise to pay interest from the course of October 1804 on the Sum which Shall remain due at that time
his
Pierre X Chovin mark
Witness Pierre Meloche
Denis Campeau
I Peter Audrain, clerk of the district court for the district of Huron & Detroit, do certify the foregoing to be a true copy from the record of the Said district for Huron & Detroit district In testimony whereof I have hereunto Set my hand and affixed the Seal of the Said district court at Detroit the twenty third of September one thousand eight hundred Six.
Peter Audrain clerk
Power of Atty
filed in court 18th Septber 1806
Peter Audrain elk
[Case 25, Paper 1]
Michigan Territory—
To Elijah Brush Esquire, Abraham F Hull Esqr Attornies of the Su-preme Court in andfor the said Territory of Michigan, or to any other Attorney of said Court—
These are to Authorize you, Either or any of you to appear for me John Bap1 Jerome, in said Supreme Court, to be holden at Detroit in said Territory, on the third monday of September, Eighteen hundred and six, or at any subsequent term of said Court at the suit of Angus Mackintosh, Administrator &c of Richard Donovan late of Detroit deceased, to be entered in said Court without writ, against me, and by non sum informatus, cognovit actionem, nil dicit, or otherwise, confess a judgment against me unto the said Angus, in an action of debt on a Bond of even date with these presents, for One Thousand and one dollars and fifty cents lawful money of the United States, besides costs of suit, with a release of all errors, the execution thereon to be stayed until the thirteenth day of September Eighteen hundred and seven—And for your or any of your so doing, this shall be your warrant.
In witness whereof I have hereunto set my hand and seal at Detroit this thirteenth day of September Eighteen hundred and six (1806)
Jean Bapt + Jerome [seal]
Witness"
Henry J Hunt
[In the handwriting of Peter Audrain]
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