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Per Curiam.
Defendant Harold Van Blaricum was convicted, following bis plea of guilty, of breaking and entering an occupied dwelling with intent to commit larceny. MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305). This appeal is brought as of right.
At the opening of defendant’s arraignment, he was given a copy of the prosecutor’s notice of intent to use admissions made by defendant. Defendant was not asked by the court whether his admissions were voluntary, what circumstances they were given under or whether the Miranda warnings were given; nor was he told that if he went to trial his confession would be subject to a Walker hearing and might not be admissible against him. Defendant was informed of his right to counsel and trial by jury. He waived both and pleaded guilty.
The sole issue raised on appeal is whether the trial court erred in not informing defendant of his right to a Walker hearing, as an incident of the trial he was waiving. The issue is based on defendant’s allegation on appeal that he was not given his Miranda warnings by the police, and that had he known of these rights and his right to a Walker hearing, he would have “insisted on his right to a jury trial” and incidental evidentiary proceedings. Defendant’s claim that he was not warned of his constitutional rights prior to questioning is not disputed by the prosecutor.
The record on appeal, however, is insufficient to determine whether defendant’s plea was improperly induced by his admissions to the prosecuting authorities. The trial court did not ask defendant whether his plea was influenced by the existence of the admissions. As stated by this Court in People v. Garza (1968), 13 Mich App 189, 192:
“This Court has not hesitated in the past to remand a nonjury conviction for a Walker hearing when the substantial claim on appeal was that defendant’s plea of guilty was based upon an illegal and involuntary confession. See People v. Daniels (1966), 2 Mich App 395, and People v. Carlton (1966), 5 Mich App 20.”
We, therefore, remand for a Walker hearing to determine whether defendant’s plea was induced by the fact that he had previously made admissions, and if so whether the admissions were involuntary. Miranda v. Arizona (footnote 2).
On remand, if the trial court determines either that the plea did not result from the existence of the admissions or that the admissions were voluntary, we see no basis for vacating defendant’s plea. If, however, the plea was the result of an involuntary confession, the trial court is instructed to vacate the conviction and sentence and grant defendant a new trial.
Remanded for actions consistent with this opinion.
The reeord does not indicate the content of the statement made by defendant.
Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694).
People v. Walker (1965 on Rehearing), 374 Mich 331.
Cf. People v. Scruggs (1968), 14 Mich App 47, where we stated at 49:
“Defendant claims, which claim is denied by the people, that he was not advised of his constitutional rights before he was questioned a short time after he was taken into custody. It does appear the defendant was not represented by counsel when he was then questioned. The defendant does not assert that he was influenced to plead guilty by the prospect there would be used against him upon trial any statements he may have made to his interrogators without benefit of counsel.”
Judge V. J. Brennan concurs in this opinion, pointing out that this case is not similar to People v. Carlisle (1969), 19 Mich App 680, where defendant was represented by counsel who was present. In the instant case, defendant was not represented by counsel.
Judge Brennan further states that where defendant is represented by counsel at the plea, it is not incumbent upon the trial court to advise the defendant of his right to a Walker hearing. | [
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Levin, P. J.
In this action one of three persons named as parties in a written agreement signed by the other two did not sign the agreement. Nevertheless, one of the signers seeks to enforce it against the other signer.
Plaintiff, Gerald Wiegand, appeals a summary judgment dismissing his complaint. The complaint alleged that in March, 1968, Wiegand and defendants, Dominic and Joseph Tringali, entered into a pre-incorporation agreement. (Dominic and Joseph are brothers.) It was also alleged that the purpose of the corporation was to bid on a refuse disposal contract and that the contract was obtained by the defendants who refused to incorporate the corporation. Specific performance and other relief was sought by the plaintiff.
The terms of the pre-incorporation agreement were negotiated by plaintiff Wiegand and defendant Dominic without consultation with defendant Joseph. On March 29, 1968, Wiegand and Dominic met at the office of an attorney who drafted a written agreement to form a corporation. The agreement stated that the purpose of the corporation would be the performance of refuse collection services and related activities in the city of Troy and that Wiegand, Dominic, and Joseph would each subscribe to $1,000 of the corporation’s capital stock. The agreement was signed by Dominic for himself and separately “for the proposed. corporation”. Wiegand also signed. Joseph, who was not present, never signed the agreement; by stipulation of the parties this action was dismissed as to him.
Dominic’s motion for summary judgment asserts that he only agreed to form a corporation upon the condition that Joseph would agree to he one of the incorporators and that, since Joseph never agreed to become an incorporator, the agreement was legally ineffective. Dominic filed a supporting affidavit.
Wiegand did not file an answering affidavit. His failure to do so is not, however, fatal. The court rule is clear that the filing of an answering affidavit is not mandatory; while it states that a summary judgment motion asserting the absence of a genuine issue of material fact “shall be supported by affidavit,” it provides, in contrast, that “the opposing party * * * may serve opposing affidavits.” (Emphasis supplied.)
The question presented is whether there was a genuine issue of material fact as to whether Dominic would be bound by the agreement if Joseph did not sign it. We first consider the materiality of the claimed factual issue. And since we conclude that it is material, we later consider whether it appears from the affidavits of the parties and the depositions and documentary evidence of record that the factual issue is genuine. Upon such examination we decide that the factual issue is genuine. Accordingly, we reverse the summary judgment and remand for trial.
In cases where a writing which purports to evidence a contract between several named persons has been signed by less than all those named, it is often found that the signers did not intend to become con tractually bound until all the apparent parties sign and deliver the writing. This is not, however, immutable doctrine. The parties may have entered into an oral contract which is effective without regard to whether the writing is signed. And those Avho do sign the writing may have intended to be bound by its terms even though less than all the named persons sign. Their intention governs. The intention of the parties is a fact to be decided upon the evidence, not by invoking our personal, professional, or judicial experience.
• In Kaneho v. Ohuda (1961), 195 Cal App 2d 217 (15 Cal Rptr 792, 796), the writing required each of four promoters óf a corporation to sell to the plaintiff a portion of the capital stock for Avhich the promoters had subscribed. It was held that, on the facts presented, the three promoters who signed the writing intended to be bound even though the fourth promoter never signed. Similarly, see Cox v. Berry (1967), 19 Utah 2d 352 (431 P2d 575, 579).
In Palman v. Reynolds (1944), 310 Mich 35, the Michigan Supreme Court affirmed a judgment declaring valid and enforceable a real estate lease even though one of the two persons named as the lessor did not sign. The property Avas owned by Reynolds and Butler “with the right of survivorship”. Reynolds was entitled to the rents and benefits during her lifetime aud Butler’s rights would come into existence in the event that she survived Reynolds. A lease was prepared between Reynolds and Butler as lessors and another person as lessee. The lease was signed by Reynolds and the lessee. Two copies were forwarded to Butler who later returned them unsigned. The Court declared that the “pivotal question” was the intention of the parties (“what was in their minds at the time the lease was written?”). It quoted approvingly the following statement :
“The question as to whether those who have signed are bound is generally to be determined by the intention and understanding of the parties at the time of the execution of the instrument.” 17 CJS, Contracts, § 62, p 735.
The Court also referred to Dillon v. Anderson (1870), 43 NY 231, and quoted statements of the New York Court of Appeals in that case that a party denying the validity of a partially signed writing has the burden of showing that he was not to be bound until it was executed by all named parties, and that a party who does not intend to be bound until all sign should so declare when he delivers the writing.
"VVe conclude that the intention of the parties is a material issue of fact, and now address the question whether it appears from the record that there is a genuine dispute concerning the resolution of that factual issue.
In this case the parties signed two writings at the same time. At the time the agreement to form a corporation was signed by Wiegand and Dominic, a separate written agreement was signed by Wiegand, Dominic and the attorney. This agreement, in which Joseph is not shown as a party, is captioned “Contingency Fee Agreement”. By its terms the attorney is employed to represent the clients (identified in the agreement as Wiegand and Dominic) in connection with the “expediting and issuance” of the city of Troy refuse collection contract for 1968. Wieg’and and Dominic obligated themselves under this agreement to pay the attorney $6,000, $3,000 of which was payable within ten days after the “issuance” of the Troy refuse collection contract to “Dominic J. Tringali as agent for Dominic J. Tringali and Gerald Wiegand in accordance with the terms and conditions of a pre-incorporation agreement.”
Dominic testified on deposition that the refuse contract was awarded to Tringali Sanitation, Inc., on April 23, 1968, pursuant to its bid. Dominic was the sole stockholder of Tringali Sanitation, Inc. It appears from the deposition of both Dominic and Wiegand that the attorney engaged by them rendered services pursuant to the contingency fee agreement. Both Wiegand and Dominic testified that they paid the attorney money owing under that agreement after the refuse contract was awarded. Wiegand testified that fie, Dominic and the attorney were present at the city of Troy meeting when the contract was awarded. He also testified that the award was made to either Dominic or Tringali Sanitation or Dominic Tringali Incorporated. It also appears that Wiegand did not learn until some time after the award that Joseph did not sign the preincorporation agreement and that Dominic did not intend to perform that agreement.
We are satisfied that there is a genuine issue of fact. The contingency fee agreement speaks of Dominic as agent for himself and Wiegand under the terms of the pre-incorporation agreement. This is some evidence that Dominic had a responsibility to Wiegand and the proposed corporation under the pre-incorporation agreement or independently of that agreement without regard to whether Joseph ever signed the pre-incorporation agreement. The fact that the attorney rendered services and, if it be fact, that both parties made partial payment to him is some evidence that the business of the proposed corporation was not dependent upon whether Joseph ever signed.
We are not, of course, deciding that the parties did in fact intend to become contractually bound under the pre-incorporation agreement even if Joseph did not sign. Rather, we decide that there is a genuine issue of fact as to whether they intended to become contractually bound before Joseph signed.
Wiegand also argues that if Dominic’s signature did not become effective unless Joseph signed, Joseph’s nonsigning is attributable to Dominic’s failure to ask him to sign, and that Dominic breached a duty to Wiegand and the corporation when he failed in good faith to seek Joseph’s signature. The record is totally inadequate to permit any evaluation of this claim. We note it because it will, no doubt, again be asserted and we wish to suggest that, although Dominic does not complain of Wiegand’s failure to plead this claim, it would, no doubt, assist the trial court and, upon any subsequent review, the appellate courts, if Wiegand would plead this claim if he intends to rely on it.
Reversed and remanded for trial. Costs to appellant.
All concurred.
This affidavit did not comply with the requirements of GCR 1963, 117.3 and 116.4 in that it did not show affirmatively that the “affiant, if sworn as a witness could testify competently to the facts contained therein.” Wiegand, however, does not make an issue of this deficiency.
“Answering affidavits may he filed and usually will he, although they are not mandatory.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Rule 117, authors’ comments, p 363.
See GCR 1963, 117.2(3).
See 1 Williston on Contracts (3d ed), §28, p 66.
In Cox v. Berry, cited in the accompanying text, an action was commenced against live directors of a corporation alleging that they liad agreed to indemnify the plaintiff on a note and other debts assumed by-him on behalf of the corporation. Some of the directors named in each of the two written indemnification agreements did not sign and it was urged that it was not intended that the signers would be bound until all named directors had signed. The Supreme Court of Utah reversed a summary judgment'in favor of the defendants stating': “Even where it appears that it was intended that others sign an agreement, it is not necessarily invariably true that all must sign before any are bound. This depends upon the agreement and whether it appears that part of the consideration for signing was that others would also sign and be bound jointly with them. It is usually to be assumed that the parlies signing an agreement are bound thereby unless it appears that they did not so intend unless others also signed.”
The quotation from Corpus Juris Secundum, as set forth in this opinion of our Supreme Court, continues with the statement that the eases holding ineffective an agreement not signed hy all the parties between whom it purports to be made are “usually those in which the parties executing the instrument would have a remedy by way of indemnity or contribution against the other parties named, which remedy is lost by the failure of such other parties to execute the instrument.” See Palman v. Reynolds, supra, p 39; and 17 CJS, Contracts, § 62, p 735.
Dominic’s affidavit does not state whether his asserted intention not to become contractually bound until Joseph signed was communicated to Wiegand. Since the facts have not been fully developed it would be premature to say anything more on this aspect of the case.
We take it, however, from Palman v. Reynolds, that where a written agreement is silent as to whether the persons who sign it intend to become legally obligated to each other before all persons named in it as parties have signed, parol evidence is admissible to show the intention of the signers.
Dominie said Re paid $3,000 and owed $3,000. Wiegand said he paid $1,500.
See Mehling v. Evening News Association (1965), 374 Mich 349; 3 Corbin on Contracts, § 571, p 349. | [
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Per Curiam.
Defendant was charged in two counts with knowingly having in his possession obscene pictures with intent to show them and to give them away, contrary to MCLA § 750.343a (Stat Ann 1969 Cum Supp •§ 28.575 [1]). A jury convicted him on both counts and he was placed on ‘probation for two years and fined $500.
In the instant case the photographs while enclosed in a black opaque case were stolen from defendant’s car while it was parked in his own driveway. There was no testimony at the trial that defendant had ever shown or given away any of the pictures, or any similar to them. Without determining. whether or not the pictures were obscene, we. conclude that, even, if they were, mere private possession of ■ obscene -pictures in his home or curtilage would not be ■' a crime. In Stanley v. Georgia (1969), 394 US 557 (89 S Ct 1243, 22 L Ed 2d 542) the Court said:
“We hold that the First and Fourteenth Amendments prohibit making mére private possession of obscene material -‘a crime,, Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual, in the privacy of Ms own home.”
Because of our ruling it is unnecessary to decide the other questions raised by the defendant.
Conviction and sentence vacated and defendant released. | [
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Per Curiam.
The action on which plaintiff recovered judgment below in a non-jury trial and the action which we review is stated in count 2 of plaintiff’s amended complaint. It is an action for damages resulting from misrepresentation of authority by defendant, an agent, to plaintiff. It is an action in tort for fraud. It is not an action for a real estate commission as defendant contends.
In this posture, the relevant issues on appeal are the liability of an agent for misrepresentation to a third person, are the findings of fact clearly erroneous, and, if not, do they support the judgment?
An agent is liable for misrepresentation of authority. Restatement Agency, 2d, § 330, p 86; 3 Am Jur 2d, Agency, § 300, p 659; Charvat v. Gildemeister (1923), 222 Mich 286.
The following findings of fact by the trial judge are supported by the record and are not clearly erroneous, GCR 1963, 517.1: that defendant told plaintiff she had power of attorney to sell the house involved and that plaintiff relied on this representation. That plaintiff procured an offer to purchase at the price requested. That defendant signed the names of the sellers to the purchase agreement and claimed she had power of attorney to do so. That defendant had no power of attorney, and when the wife of the seller refused to sell, plaintiff lost the commission it would have received if defendant had had the authority she represented she possessed.
These findings support the judgment. The other issues raised by defendant are not relevant and Snider v. Dunn (1968), 11 Mich App 39, is inapposite.
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Per Curiam.
Defendant was one of over 100 persons arrested during a police raid on a stag party given in defendant’s honor. The bulk of those arrested, including defendant, were charged with knowingly loitering in or about a place where an alleged illegal occupation (gambling) was being conducted contrary to MCLA § 750.167 (Stat Ann 1969 Cum Supp § 28.364).
Those persons charged as indicated in the preceding paragraph were tried together before the judge without a jury in two separate proceedings on June 12,1968 and June 13, 1968. Defendant was included among those tried at the second proceeding, and he was the only one that was found guilty in either proceeding. Defendant was sentenced and he appeals.
Defendant contends he was denied a fair trial because the remarks of the trial judge at the conclusion of the first proceeding indicate a predisposition on the part of the trial judge to find defendant, and defendant alone, guilty. We agree. As this Court said in People v. Wilder (1968), 11 Mich App 152, 155:
“During a bench trial, the state of mind of the judge is all-important. It must he fair, impartial, and searching for the true relationships between the parties.”
The record before us fails to meet that test.
In addition, in finding defendant guilty, the trial judge referred to facts not in the record. It is reversible error to go outside the record in determining guilt. People v. Henry Green (1970), 21 Mich App 575.
Reversed and remanded for new trial. | [
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McGregor, J.
The issue on this appeal is the effect of an unauthorized visit by a juror to the scene of the alleged crime during the jury deliberations. Defendant was convicted of the crimes of attempted kidnapping, CL 1948, § 750.92 (Stat Ann 1962 Rev § 28.287); CL 1948, § 750.349 (Stat Ann 1954 Rev §28.581), and felonious assault, CL 1948 § 750.82 (Stat Ann 1962 Rev § 28.277).
The pertinent facts show that after the jury began its deliberations one of the jurors went to the scene of the alleged crime, even though he had been instructed not to visit said scene. The chronology of events in this case were: first, that the jury had deliberated approximately one and one-half hours; second, the juror went to the scene, stopped and viewed the area, although he did not leave his ear; third, on the following morning, the juror informed the other members of the jury that he had so visited the scene; fourth, after three more hours of deliberation, this fact was brought to the attention of the trial judge; fifth, the court thereupon conducted an examination of the juror as to whether he had been influenced by Ms visit to the scene; sixth, after being-satisfied that the juror had not been influenced, the court sent the jury back to continue their deliberations ; and seventh, some three hours later, the jury returned a verdict of guilty.
Defendant now appeals, claiming denial of his Sixth Amendment right to confront the witnesses against him, as made applicable to the states through the Fourteenth Amendment. Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065; 13 L Ed 2d 923).
We agree with defendant’s contention.
The New York Court of Appeals, in People v. De Lucia and Montella (1967), 20 NY2d 275 (282 NYS 2d 526, 229 NE2d 211), held, when faced with a similar proposition involving- several jurors who went to the scene of an attempted burglary and actually re-enacted the alleged crime, that such could constitute inherent prejudice to defendants, and granted a new trial, without proof as to how such visit may have influenced the individual jurors in their jury room deliberations. In Be Lucia, the court quoted a United States Supreme Court case which stated that the rights of cross-examination and confrontation were fundamental requirements of a fair trial:
“* * * ‘Sheppard v. Maxwell (1966), 384 US 333, 351 (86 S Ct 1507, 1516; 16 L Ed 2d 600, 614), that the rights of confrontation and cross-examination are among the fundamental requirements of a eonstituti onally fair trial.’ ”
and then, the court stated:
“[T]hose jurors became unsworn witnesses against the defendants in direct contravention of their right, under the Sixth Amendment, To be confronted with the witnesses’ against them.
“In this type of case, proof of the fact of the unauthorized visit is sufficient to warrant a new trial ■without proof of how such visit may have influenced individual jurors in their juryroom deliberations. Such a visit, in and of itself, constitutes inherent prejudice to the defendant.” 20 NY2d 275, 279, 280 (282 NYS2d 526, 530; 229 NE2d 211, 214).
In the case of People v. Eglar (1969), 19 Mich App 563, defendant was given a new trial when a judge, sitting without a jury, viewed the premises of the alleged scene of a crime, without having given the defendant and counsel for both parties an opportunity to be present with him. See also People v. Harvey (1968), 13 Mich App 211. Although defense counsel did not raise objection at trial level, the judge’s improper actions necessitated reversal. The Court found that reversal was necessary, first because of the importance of the defendant’s confrontation with the witnesses, and also, that a lawyer should not be put into the position of challenging the judge’s conduct and thereby possibly incurring the judge’s displeasure.
The juror who made an unauthorized visit to the scene of the crime had become an unsworn witness against the defendant, which was in contravention of defendant’s constitutional right to be confronted with the witnesses against him.
Accordingly, this case is reversed and remanded.
All concurred. | [
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Danhof, J.
Defendant was found guilty of robbery armed by a jury, CLS 1961, § 750.529 (Stat Ann 1970 Cum Supp § 28.797). On appeal he alleges that he was denied a fair trial when a witness unresponsively testified that defendant lived with him ever since “he got out of Jackson.”
Defense counsel relies on United States v. Smith (CA 6, 1968), 403 F2d 74, as being directly in point. We disagree. That case concerned a government witness’s statement concerning the defendant’s prior confinement in the penitentiary made on direct examination and which the prosecutor should have anticipated. The court stressed that it was a close case because the defendant had been acquitted on the first count of knowingly transporting a stolen automobile and was convicted on the second count of knowingly receiving and concealing a stolen automobile, and the only eyidence of the defendant’s knowledge that he had a stolen motor vehicle in his possession was circumstantial. The court did not say that it would always he necessary to find such a remark as “he just got out of the penitentiary” grounds for a mistrial.
There are at least two distinguishing aspects in the present case. First, the witness, defendant’s stepfather, was the defendant’s own witness and was being questioned by the defendant’s attorney at the time he made his unresponsive remark. This is not a case of the prosecution pressing for prejudicial statements. Second, this was not a close case based solely on circumstantial evidence. The defense was alibi, but there were two eyewitnesses who identified the defendant at trial.
In People v. Podsiad (1940), 295 Mich 541, and People v. Fleish (1948), 321 Mich 443, 463, the court held that when a state’s witness made an unresponsive answer to the prosecutor it was not reversible error if the trial court purged the record of the objectionable testimony. In the Podsiad case the unresponsive remark referred to the defendant’s prior arrest for pandering, and in the Fleish case the reference was to defendant’s experience at Alcatraz. Subsequently, the Supreme Court held in People v. Greenway (1962), 365 Mich 547, that the defendant had been deprived of a fair trial and to that extent due process when the prosecution clearly anticipated and hoped for the answer and calculated that it would prejudice the minds of the jurors against the defendant. However, those are not the facts of the present case.
In People v. Camel (1968), 11 Mich App 219, this Court held that it was grounds for a mistrial when a police officer testifying for the prosecution stated that the defendant had got out of Jackson prison. Again, it was stressed that tbe people should have anticipated the response.
Likewise, People v. Van Wie (1969), 17 Mich App 77, is distinguishable from the instant case. In Van Wie it was the prosecutor who elicited the response from the witness regarding the defendant’s prior conviction record, and he further compounded the error by requesting that the witness repeat the answer. Thus, the prejudice to the defendant was apparent.
In the instant case the trial judge at the request of the defense counsel waited until he was instructing the jury at the conclusion of the trial to purge the objectionable statement. The trial judge’s instructions on this issue were explicit and thorough. We find no error.
Defendant also asserts that the court vouched for the credibility of a prosecution witness and limited the defendant’s use of a prior sworn statement. Read in context the remarks complained of by the defendant fall short of constituting prejudicial comment by the court. Defendant’s allegation that he was not permitted to use a prior sworn statement to impeach the credibility of a witness is not sustained by the record.
Finally, defendant alleges that the jury instructions were unclear and confusing. No objection was made to them when given, and on appeal defendant has not stated with any specificity wherein the instructions were confusing, unclear or prejudicial, GrCR 1963, 516.2. Therefore, we will not review them.
Affirmed.
All concurred. | [
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Levin, J.
These cases present due process and equal protection challenges to the constitutionality of a statute which provides that actions for injuries arising out of the defective and unsafe condition of an improvement to real property may not be maintained against "any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement”.
The challenges are advanced by individual plaintiffs who seek to recover damages from state-licensed architects and engineers for bodily injuries allegedly arising out of defective and unsafe conditions of improvements to real property, by a contractor whose indemnity action against a firm of licensed engineers is likewise statutorily barred six years after occupancy, use or acceptance of the improvement, and by contractors who seek to prevent codefendant architects and engineers who might ultimately contribute a portion of any judgment rendered from being dismissed from the lawsuit.
We conclude that the statute does not violate constitutional precepts of due process and equal protection. _
I
MCL 600.5839(1); MSA 27A.5839(1), enacted by 1967 PA 203, provides:
"No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.”
In each of these cases, state-licensed architects or engineers invoked the statute as a bar against claims allegedly arising out of the defective and unsafe condition of an improvement for which they had performed or furnished the design or supervision of construction.
A
James O’Brien was injured on June 28, 1975 when the truck he was driving tipped over on an "S”-curve on US-131 in the City of Grand Rapids. On December 1, 1976, O’Brien and his wife filed suit against Hazelet & Erdal, an engineering firm which allegedly contracted with the Michigan State Highway Department in 1954 to serve as consulting engineer for construction of the road way in question. Construction of the highway was apparently completed sometime in 1961. The O’Briens alleged that Hazelet & Erdal had negligently permitted the highway to be built with a number of defects and hazards that proximately caused the accident that injured Mr. O’Brien.
Hazelet & Erdal moved for accelerated judgment, claiming that the suit was barred by the statute because it had not been commenced within six years after Hazelet & Erdal had completed its work on the highway construction project.
The trial judge denied the motion, ruling that "the statute is unconstitutional and deprives persons of their cause of action”. The Court of Appeals reversed, declaring that the statute was one of abrogation rather than of limitation and that the Legislature may abrogate a cause of action before it vests without denying due process of law.
B
In Muzar v Metro Town Houses, Inc, Metro contracted with Dembs Building Company in 1964 for the construction of a town house complex in Mount Clemens, Michigan. Dembs subcontracted for the design of the drainage system for the town house buildings with Lehner Associates, Inc., a professional engineering firm.
In 1965 plaintiffs Charlotte Muzar, Carrie Led-better and Agatha Malinowski each purchased one of several town house units which shared a common building. State Farm Fire and Casualty Company insured plaintiffs’ town houses against property damage, including collapse.
On January 3, 1973, the building which included plaintiffs’ town houses collapsed, allegedly due to defects in the construction of the drainage system. The plaintiffs sued Metro and State Farm for breach of warranty in July, 1973, and after Metro was found to be defunct, State Farm settled the plaintiffs’ suit for $40,000.
In December, 1975, State Farm brought a third-party complaint against Dembs, claiming that State Farm was subrogated to the original plaintiffs’ right to seek recovery of the $40,000 from Dembs. Subsequently, Dembs filed a third-party action for indemnity against Lehner, alleging that the collapse was caused by defective design of the drainage system.
Lehner’s motion for accelerated judgment on the basis of the statute was opposed by Dembs on the ground that the statute denied equal protection by irrationally omitting general contractors, builders, owners, and tradesmen from its protection. The trial court granted accelerated judgment. The Court of Appeals reversed, holding the classification in the statute "arbitrary and without reasonable relation to the object of the legislation”.
C
On August 26, 1976, Margaret and William Bouser filed suit alleging that, while walking in the City of Lincoln Park on April 9, 1975, Mrs. Bouser had tripped on a curb constructed higher than an adjoining sidewalk, causing her to fall and suffer injuries. The Bousers’ complaint named as defendants the city; G. A. Morrison Company, the construction firm which installed the curb and sidewalk; and Pate, Hirn and Bogue, Inc., the architectural firm which designed the curb and sidewalk. The work was apparently completed in 1965.
Pate, Hirn and Bogue, Inc., was granted accelerated judgment on the basis of the statute. The Court of Appeals affirmed.
D
Anne and John Oole and James Carpenter filed suit on January 31, 1975, alleging that they were injured when a wooden deck attached to the home of defendants Oosting gave way on July 10, 1973. The Oosting home, complete with deck, was occupied on or before January 1, 1967. Defendants Knapp and Terzes, registered architects; Newhof, a registered engineer; and Moss and Casemier, contractors, were added by an amended complaint filed June 26, 1975. The added defendants moved for accelerated judgment on the basis of the statute.
The trial judge denied the motions, holding that the statute only applied to persons who had dealt directly with the architects and engineers. The Court of Appeals reversed in part, ruling that the statute is one of abrogation and could validly be applied to the plaintiffs’ complaint against the architects and engineer, although its protection did not extend to the contractors.
E
We granted leave to appeal in these four cases to resolve whether MCL 600.5839(1); MSA 27A.5839(1) ”violate[s] equal protection of the law or due process guarantees (a) in denying a cause of action to persons allegedly injured from negligent design or supervision of construction by state-licensed architects or professional engineers completed more than six years before the injury; and (b) by limiting the tort responsibility of licensed architects and professional engineers but not licensed contractors.”
II
Shavers v Attorney General summarized the scope of judicial review of equal protection and due process challenges to socioeconomic legislation:
"The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. See Michigan Canners & Freezers Ass’n, Inc v Agricultural Marketing & Bargaining Board, 397 Mich 337, 343-344; 245 NW2d 1 (1976).
"The test to determine whether a statute enacted pursuant to the police power comports with equal protection is, essentially, the same. As the United States Supreme Court declared in United States Dep’t of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973):
" 'Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest.’ ”
For purposes of resolving either a due-process or an equal-protection challenge, we must first iden tify the objective the challenged statute seeks to achieve.
The instant legislation was enacted in 1967 in response to then recent developments in the law of torts. The waning of the privity doctrine as a defense against suits by injured third parties and other changes in the law increased the likelihood that persons taking part in the design and construction of improvements to real property might be forced to defend against claims arising out of alleged defects in such improvements, perhaps many years after construction of the improvement was completed. The Legislature chose to limit the liability of architects and engineers in order to relieve them of the potential burden of defending claims brought long after completion of the improvement and thereby limit the impact of recent changes in the law upon the availability or cost of the services they provided.
The power of the Legislature to determine the conditions under which a right may accrue and the period within which a right may be asserted is undoubted. Statutes enacted in the exercise of that power serve the permissible legislative objective of relieving defendants of the burden of defending claims brought after the time so established.
Ill
It is claimed that this legislation violates due process because a statute of limitations cannot constitutionally bar a cause of action before all necessary elements constituting the cause of action are present, and must afford the potential plaintiff a reasonable time within which to bring suit.
This Court has previously recognized that the Legislature’s constitutional power to change the common law authorizes it to extinguish common-law rights of action. If the Legislature can entirely abrogate a common-law right, surely it may provide that a particular cause of action can no longer arise unless it accrues within a specified period of time. As one Court of Appeals panel explained, the instant statute is both one of limitation and one of repose. For actions which accrue within six years from occupancy, use, or acceptance of the completed improvement, the statute prescribes the time within which such actions may be brought and thus acts as a statute of limitations. When more than six years from such time have elapsed before an injury is sustained, the statute prevents a cause of action from ever accruing. The plaintiff is not deprived of a right to sue a state-licensed architect or engineer because no such right can arise after the statutory period has elapsed.
By enacting a statute which grants architects and engineers complete repose after six years rather than abrogating the described causes of action in toto, the Legislature struck what it perceived to be a balance between eliminating altogether the tort liability of these professions and placing no restriction other than general statutes of limitations upon the ability of injured plaintiffs to bring tort actions against architects and engineers. The Legislature could reasonably have concluded that allowing suits against architects and engineers to be maintained within six years from the time of occupancy, use, or acceptance of an improvement would allow sufficient time for most meritorious claims to accrue and would permit suit against those guilty of the most serious lapses in their professional endeavors.
IV
The opponents of the statute argue that it violates equal protection (1) by singling out the victims of the negligence of architects and engineers for a burden not imposed upon the victims of other tortfeasors, and (2) by failing to extend the same protection to others who may be responsible for defects in improvements to real property — particularly contractors, who may be contractually obligated to follow the directives of architects and engineers, yet after six years find themselves the only available target for plaintiffs alleging injury resulting from latent defects.
Acts of the Legislature enjoy a presumption of constitutionality and the legislative judgment must be accepted if it is supported by " 'any state of facts either known or which could reasonably be assumed’ ”. In reviewing equal protection challenges to socioeconomic legislation, the United States Supreme Court has said that the Constitution "is offended only if the classification rests on grounds wholly irrelevant to the achievement of the [legislative] objective” and that a "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it”.
The Legislature could rationally determine that state-licensed architects and engineers possess characteristics which reasonably distinguish them with respect to the object of the legislation. The design of improvements to real estate is primarily the province of architects and engineers, while the construction of improvements and the realization of designs is primarily the function of contractors. Architects and engineers are required by law to be licensed, while non-residential contractors are not. The Legislature might have concluded that the different education, training, experience, licensing and professional stature of architects and engineers made it more likely that a limitation on their tort liability would not reduce the care with which they performed their tasks than would be the case with contractors.
The Legislature may also have thought it necessary to reduce the potential liability of architects and engineers in order to encourage experimentation with new designs and materials. Innovations are usually accompanied by some unavoidable risk. Design creativity might be stifled if architects and engineers labored under the fear that every untried configuration might have unsuspected flaws that could lead to liability decades later.
The statute is not invalid because contractors, as well as architects and engineers, may supervise construction. While this overlap of function may mean that a contractor’s potential liability will endure longer than an architect’s or engineer’s potential liability for a similar breach, a statutory classification is not constitutionally invalid merely because its application results in hardship or injustice in some cases. The Legislature may have believed that the supervision provided by architects and engineers and that provided by contractors is qualitatively different in a manner which would render it less appropriate to limit the duration of the contractor’s tort liability. For example, a contractor may have better access to the details of ongoing construction and thus be in a superior position to assure that the improvement is built safely.
The Legislature need not treat all phases of a problem at once, and it may proceed to address an area one step at a time. The expansion of potential tort liability in the construction industry is of recent vintage, and the consequences of placing limits on that liability could not be determined with certainty in advance. The Legislature can decide to proceed cautiously by extending qualified protection to a distinguishable professional group.
V
It is claimed that this statute not only fails to extend a benefit to contractors but also unfairly burdens them with liability that should properly be assumed, or at least shared, by architects and engineers. At this stage, however, those arguments are only prophecies; how the statute will work in operation remains to be seen.
These four cases are the first involving the statute to reach the Michigan appellate courts in the 13 years since its enactment. Only time and experience will tell whether juries tend to unfairly hold contractors liable for the defaults of others and whether contractors are left to shoulder alone the burden of judgments for which, but for the statute, they might have had a right to indemnity or contribution. There is now no reason to suppose that a properly instructed jury will hold an innocent contractor responsible for injury caused by a defect resulting from an architect’s or engineer’s breach of duty. Trial judges should carefully scrutinize claims against contractors to assure, that a case is submitted to the jury only where there is evidence that the contractor has himself acted or failed to act in such a way as to subject him to liability.
At present, the statute remains experimental social legislation and is entitled to the deference usually given enactments of that type. After it "has been enforced for a sufficiently long period of time that all the rationales likely to be advanced in its support have been developed, a court should fully examine those rationales and determine whether they are sound”.
We affirm the Court of Appeals in O’Brien, Bouser, and Oole, and reverse in Muzar. In all four cases this disposition requires remand to the trial court for further proceedings consistent with this opinion.
Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J._
MCL 600.5839(1); MSA 27A.5839(1).'
O’Brien v Hazelet & Erdal, Bouser v Lincoln Park, and the appeals of plaintiffs Oole and Carpenter in Oole v Oosting, Docket Nos. 61500 and 61501.
Muzar v Metro Town Houses, Inc.
Oole v Oosting, Docket Nos. 61498 and 61499, appeals of defendants Moss and Casemier.
US Const, Am XIV, Const 1963, art 1, § 17.
US Const, Am XIV, Const 1963, art 1, § 2.
O’Brien v Hazelet & Erdal, 84 Mich App 764; 270 NW2d 690 (1978).
Muzar v Metro Town Houses, Inc, 82 Mich App 368, 379-380; 266 NW2d 850 (1978).
Bouser v Lincoln Park, 83 Mich App 167; 268 NW2d 332 (1978).
Oole v Oosting, 82 Mich App 291; 266 NW2d 795 (1978).
403 Mich 828-829 (1978).
Shavers v Attorney General, 402 Mich 554, 612-613; 267 NW2d 72 (1978).
See Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120; 90 NW2d 873 (1958). Several modem cases have specifically-held the defense of privity of contract unavailable to an architect whose negligence in drawing plans or designs is alleged to have resulted in injury or death of third parties. See Anno: Architect’s liability for personal injury or death allegedly caused by improper or defective plans or design, 97 ALR3d 455, § 4, pp 463-465.
See Note, Architectural Malpractice: A Contract-Based Approach, 92 Harv L Rev 1075, 1081-1082 (1979).
See Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972), and Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973).
Bean v McFarland, 280 Mich 19; 273 NW 332 (1937).
Oole v Oosting, 82 Mich App 291, 298-300; 266 NW2d 795 (1978).
To a plaintiff whose injury occurred and whose right of action thus vested shortly before expiration of the six-year period, the statute arguably might deny due process by failing to "afford a reasonable time within which suit may be brought”. Price v Hopkin, 13 Mich 318, 324 (1865). However, no case presenting such facts is before us and we intimate no opinion as to the proper resolution of such a case.
In upholding a similar New Jersey statute, the New Jersey Supreme Court said:
“[The statute] does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising. Thus injury occurring more than ten years after the negligent act allegedly responsible for the harm, forms no basis for recovery. The injured party literally has no cause of action. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. The Legislature is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed.” Rosenberg v Town of North Bergen, 61 NJ 190, 199-200; 293 A2d 662, 667 (1972).
Shavers, supra, pp 613-614.
McGowan v Maryland, 366 US 420, 425-426; 81 S Ct 1101; 6 L Ed 2d 393 (1961).
Residential builders are required to be licensed by 1965 PA 383 as amended, MCL 338.1501 et seq.; MSA 18.86(101) et seq.
"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis’, it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v Natural Carbonic Gas Co, 220 US 61, 78; 31 S Ct 337; 55 L Ed 369 (1911). The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co v Chicago, 228 US 61, 69-70; 33 S Ct 441; 57 L Ed 730 (1913).” Dandridge v Williams, 397 US 471, 485; 90 S Ct 1153; 25 L Ed 2d 491 (1970).
Williamson v Lee Optical of Oklahoma, Inc, 348 US 483; 75 S Ct 461; 99 L Ed 563 (1955).
Manistee Bank & Trust Co v McGowan, 394 Mich 655, 672; 232 NW2d 636 (1975). | [
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Coleman, C.J.
The issue in these cases is the constitutionality of the dormant mineral act, MCL 554.291 et seq.; MSA 26.1163(1) et seq., as applied to these oil and gas interests created prior to the passage of the act in 1963. In Bickel v Fairchild, 83 Mich App 467; 268 NW2d 881 (1978), the Court of Appeals held that the act unconstitutionally impaired the obligation of contract. In Van Slooten v Larsen, 86 Mich App 437; 272 NW2d 675 (1978), another panel of the Court of Appeals upheld the constitutionality of the act. We hold that the act does not unconstitutionally impair the obligations of contracts as applied in these cases.
I
In Michigan, the ownership of a mineral interest can be severed from the ownership of the surface estate, see Rathbun v Michigan, 284 Mich 521, 534; 280 NW 35 (1938). At common law, these severances create fee estates, corporeal hereditaments, for the owners of the severed mineral interests, which could not be abandoned.
The dormant mineral act provides that if the owner of a severed oil and gas interest fails to take actual possession of the interest as specified in the act, transfer the interest by recorded instrument, or record a notice of claim of interest for a period of 20 years, the interest is deemed abandoned and title to it vests in the owner or owners of the surface estate. The act, passed in 1963, also provided a three-year grace period in which owners of interests created before the act was passed could record a claim of interest and preserve their interests.
Although we recognize the fact that the Legislature could have adopted other, if more tortuous, means of addressing this foreseeably increasing problem of mineral shortages, it did not. Therefore, we must commence with the concept that the statute must be presumed to be constitutional.
II
The relevant facts in these cases are very similar. In both cases, the owner of the land sold it by a deed recorded prior to 1946, excepting from the conveyance the title to the oil and mineral estates. In 1963, the dormant mineral act was passed. Because the owners of the severed oil and gas interests had not performed any of the acts specified in the act or recorded a claim of interest for a period of over 20 years by 1966, their interests, pursuant to statute, were deemed abandoned and vested in the owners of the surface estates. In Van Slooten, the defendants, claiming through the reservation of title to the mineral interests in the deed severing the interests, executed oil and gas leases covering their interests in 1970. In Bickel, the owners of the mineral interests, the owners of the surface estate in 1966 and the present owners of the surface estate, all executed separate oil and gas leases covering the land in 1973 and 1974. The owners of the surface estates then filed suit to quiet title to the oil and gas interests.
Ill
Defendants contend that the act unconstitutionally impairs the obligation of contracts, US Const, art I, § 10, Const 1963, art 1, § 10. They argue that the act severely impairs and destroys reliance interests, favors narrow private groups, was not prompted by any emergency or tailored to meet one and was not temporary or experimental, and thus that the statute unconstitutionally impairs the obligation of contracts. Compare Home Building & Loan Ass’n v Blaisdell, 290 US 398; 54 S Ct 231; 78 L Ed 413 (1934).
When adjudicating impairment claims, the first inquiry should be whether the act has, in fact, operated as a substantial impairment of the contract relationship. The severity of the impairment determines the height of the hurdle the act must clear, Allied Structural Steel Co v Spannaus, 438 US 234, 244-245; 98 S Ct 2716; 57 L Ed 2d 727 (1978).
El Paso v Simmons, 379 US 497; 85 S Ct 577; 13 L Ed 2d 446 (1965), is instructive in reaching the conclusion that, although the consequences of failing to undertake one of the specified acts or to record a claim of interest every 20 years may be severe, the obligation to record is so minimal that the presumption of constitutionality is not overcome.
El Paso involved a Texas statute that cut off a purchaser’s right to re-claim land forfeited to the state for non-payment of the purchase price after five years from the original default. Prior to the enactment of the statute, a purchaser’s right to have claims reinstated by paying the full amount due up to the date of reinstatement was unlimited. The Court upheld the statute although failure to meet the additional requirement (payment within five years) resulted in a complete forfeiture of any remaining rights in the property.
In the instant cases, the impairment or additional obligation imposed by the act cannot seriously be contended to have comprised a "high” hurdle. Neither can it be seriously contended that the defendants were substantially induced to enter the initial contractual relationships in reliance on the fact that their interests need not be recorded, or recorded more than once, or that such a requirement significantly changed their bargaining position.
In Short v Texaco, Inc, — Ind —; 406 NE2d 625 (1980), the Court upheld Indiana’s mineral lapse act, Ind Code §§ 32-5-11-1 et seq., a statute similar to Michigan’s dormant mineral act, holding that it did not violate the constitutional prohibition against impairment of obligations of contract. The Court found the act, for the purpose of constitutional analysis, analogous to acts of limitation. The Court concluded that the Legislature adopted means which were rationally related to its valid objectives and held that the act did not unconstitutionally impair the obligation of contract.
Recording statutes long have been upheld in the face of constitutional challenges on impairment grounds, see Jackson v Lamphire, 28 US 280; 7 L Ed 679 (1830). The requirement of periodic recording furthers valid state interests. "The measure taken * * * was a mild one indeed, hardly burdensome to the purchaser * * * but nonetheless an important one to the State’s interest”, El Paso, supra, 516-517.
We hold that MCL 554.291 et seq.; MSA 26.1163(1) et seq. does not unconstitutionally impair the obligation of contract.
IV
Defendants claim the act violates the constitutional protection against deprivation of property without due process of law, US Const, Am XIV, Const 1963, art 1, § 17. Defendants argue that by making a corporeal hereditament subject to abandonment the act has unconstitutionally changed the nature of defendants’ interests and by requiring a record owner in constructive possession to take specific actions to preserve the interest, the act has unconstitutionally changed a property right into a mere cause of action, see Groesbeck v Seeley, 13 Mich 329 (1865). Statutes which require property owners in possession to institute a proceeding within a specified time or lose their property have been held unconstitutional because a state cannot require one in possession of all that he demands to prosecute a suit to preserve his interest when no adverse interest is asserted by suit or possession, see Groesbeck, supra, 343.
Significant differences exist, however, between the dormant mineral act and the statutes which have been held unconstitutional for converting a property right into a mere cause of action. This act specifically exempts from its abandonment provisions those interests which have been occupied as specified in the act at any time within the last 20 years. More importantly, the act does not require the owner to institute a suit (at a time when conceivably there is no one to sue) to preserve title to the interest. The act only requires the owner to record a notice of his claim every 20 years. Although the validity of such recording requirements will be discussed more thoroughly infra, it is sufficient to recognize at this point that statutes imposing recording requirements have been upheld when a reasonable time is provided for recording existing interests, see Wichelman v Messner, 250 Minn 88; 83 NW2d 800 (1957). We therefore hold that the act does not unconstitutionally change defendants’ property rights into mere causes of action.
However, the act does convert a corporeal hereditament which at common law could not be abandoned into an interest which is subject to abandonment. Whether this change constitutes a deprivation of property without due process depends upon whether it was a proper exercise of the state’s police powers, see Wyant v Director of Agriculture, 340 Mich 602, 608; 66 NW2d 240 (1954).
Defendants claim that the act is unreasonable, arbitrary and capricious, and not a proper exercise of the police power. Accordingly, they carry the burden of overcoming the presumption of constitutionality and must prove either that no public purpose is served by the act or that no reasonable relationship exists between the remedy adopted and the public purpose sought to be achieved. The presumption of constitutionality favors validity and if the relationship between the statute and public welfare is debatable, the legislative judgment must be accepted, see Grocers Dairy Co v Dep’t of Agriculture Director, 377 Mich 71, 76; 138 NW2d 767 (1966), Carolene Products Co v Thomson, 276 Mich 172, 178; 267 NW 608 (1936).
A
Defendants claim that no valid public purpose is furthered by the act because at the time of its enactment the fuel crisis and need for developing oil and gas resources were not critical. However, the clear purpose of the act is to facilitate the development of oil and gas resources, see Van Slooten, supra, 446, Street, Need for Legislation to Eliminate Dormant Royalty Interests, 42 Mich State Bar J 49 (March, 1963). The importance of facilitating the development of oil and gas resources was recognized long before the current "energy crisis”. Defendants’ argument that encouraging the development of oil and gas resources is not a valid public purpose is not persuasive.
Although the most apparent benefactor of the act is the owner of the surface estate who may receive title to the interest upon the owner’s failure to record, others will also benefit from the act. The primary purpose of the act is not to vest title to the severed interests in the surface owner but rather is to facilitate development of those subsurface properties by reducing the problems presented by fragmented and unknown ownership. The act as a whole works to the benefit of the public by improving the marketability of severed mineral interests and thereby increasing the development of fossil fuels, the revenues from property taxes, and employment with its related benefits. Defendants have not demonstrated that the act is unconstitutional because of the absence of a valid public purpose.
B
Defendants also argue that no reasonable relationship exists between the remedy adopted and the public purpose to be achieved because the act does not facilitate the development of mineral estates. Further, they contend that in purporting to transfer title to the owner of the surface estate, the act does not facilitate negotiations and development but actually hinders them by removing the developer’s security in dealing with an owner of record. In any event, defendants argue, it would be more logical to vest title to the abandoned estate in the owner of the nearest active mineral estate rather than the owner of the surface estate.
Contrary to defendants’ contentions, we conclude that a reasonable relationship exists between the remedy adopted and the public purpose sought to be achieved. The commercial nature of, and common-law rules relating to, severed mineral interests have created significant problems for one attempting to secure title to, or permission to develop, a severed mineral interest.
Upon severance of the surface and mineral estates, the ownership of the mineral estate often becomes fractionalized with the passage of time. The commercial nature of these interests makes it likely that they may be owned by a number of people who are not familiar with the property, the owner of the surface estate or even each other. Moreover, in the absence of a recording statute, there are no countervailing influences in the law to reduce or limit the tendency of these fractional interests to be owned by unknown or unbeatable owners. Unlike incorporeal interests, corporeal interests cannot be abandoned under the common law. Furthermore, absent actual possession of the severed mineral estate, possession of the surface estate pursuant to a deed reserving a severed mineral interest cannot ripen into adverse possession of the mineral estate. Also, in the absence of actual development of the severed mineral estates (the act would then be inapplicable), it is unlikely that property tax assessment rolls will contain the names of their owners. Accordingly, the title to the severed mineral estate tends to become fractionalized over time and increases the likelihood that a potential developer will not be able to locate the owners of the interest to make the conveyance necessary to begin the development process. Without a recording requirement, the task of locating the necessary owners may be impossible or prohibitively expensive. Moreover, the alternative of attempting to develop the mineral interest without the owner’s consent is not attractive.
Therefore, the dormant mineral act was passed to reduce the likelihood that the presence of unknown or unlocatable owners or fractionalized ownership of severed interests would unnecessarily hinder or prevent the development of these resources by requiring an owner to do certain specified acts indicating ownership or record a claim of interest every 20 years. It places no undue burden upon owners. Without such a requirement, knowledge of the ownership could be lost in time. Potential resources go undeveloped in the absence of viable ownership.
The recording provision of the act provides a simple method by which owners of undeveloped severed mineral interests can preserve them. Statutes imposing recording requirements have been upheld when a reasonable time is provided for the recording of existing interests, see Wichelman, supra. Even before the adoption of US Const, Am XIV, the United States Supreme Court upheld the constitutionality of a recording statute, stating:
"It is within the undoubted power of state legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time; and the power is the same whether the deed is dated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligation of contracts; such too is the power to pass acts of limitations, and their effect. Reasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned.
"As this court is confined to the consideration of only one question growing out of this law, we do not think it necessary to examine its provisions in detail: it is sufficient to say, that we can see nothing in them inconsistent with the constitution of the United States, or the principles of sound legislation. Whether it is considered as an act of limitations, or one in the nature of a recording act, or as a law sui generis,' called for by the peculiar situation of that part of the state on which it operates; we are unanimously of opinion, that it is not a law which impairs the obligation of a contract”. Jackson v Lamphire, supra, 290-291. (Emphasis added.)
Given that a state has the power to require the recording of an interest as a condition to preserving title to the interest when no recording was required at the time the interest was created, the defendants have not demonstrated that due process prohibits a state from requiring further periodic rerecording to achieve similar objectives, see Evans v Finley, 166 Or 227; 111 P2d 833 (1941), Opinion of the Justices, 101 NH 515; 131 A2d 49 (1957), Wichelman, supra, Simes & Taylor, Improvement of Conveyancing by Legislation (Ann Arbor: University of Michigan Law School, 1960), p 268. There is nothing inherent in a recording act which mandates that a recording be eternally effective, see American Land Co v Zeiss, 219 US 47; 31 S Ct 200; 55 L Ed 82 (1911). The utility and benefits of requiring periodic recording of interests in land are well-recognized. For these reasons we conclude that a reasonable relationship exists between the act’s requirement that an owner take possession of the interest in a manner specified or record a claim of interest every 20 years and the public purpose sought be achieved.
A reasonable relationship also exists between the purpose of the statute and the provisions vesting title of the severed interest in the owner of the surface estate upon the failure to do any of the statutorily required acts. It places the title to the interest in one more likely to be located than the owners of the mineral interest. Potential developers, owners of other severed interests, and the owners of the surface estate are then in a position to begin the preparatory steps necessary for development. Similar results follow upon abandonment of other incorporeal mineral interests in other states, and under common-law concepts of adverse possession. Although vesting title in the owner of the surface estate does not guarantee that the interest’s potential for development will be realized, the act was not designed to remove all possible impediments to development. Its purpose is to limit the difficulties presented by unknown or unlocatable owners.
While recognizing that it may be just as logical to vest title in the owner of the nearest active mineral estate or in the state, or to provide that the state hold and sell the interest for the benefit of the owners, we also must recognize that possi ble alternatives do not render the act unconstitutional. "[I]f the relation between the statute and the public welfare is debatable, the legislative judgment must be accepted,” Carolene Products Co v Thomson, supra, 178.
V
Defendants argue that the act violates due process by creating an arbitrary and unreasonable conclusive presumption of abandonment, see Heiner v Donnan, 285 US 312; 52 S Ct 358; 76 L Ed 772 (1932), Detroit v Bowden, 6 Mich App 514; 149 NW2d 771 (1967), lv den 379 Mich 772 (1967).
The essential elements of abandonment are an intention to relinquish the property and acts putting that intention into effect, see Log-Owners’ Booming Co v Hubbell, 135 Mich 65, 69; 97 NW 157 (1903), Emmons v Easter, 62 Mich App 226; 233 NW2d 239 (1975). Defendants claim that the actions listed in the act are not the only means by which one can possess or indicate ownership of a severed mineral estate and that the failure to do any of the acts specified in the statute is not necessarily determinative of an owner’s intent to abandon. Because abandonment is concerned with the owner’s intent to abandon, due process forbids the taking of property on the basis of a permanent and irrebuttable presumption of abandonment which is "not necessarily or universally true in fact”, they argue. See Vlandis v Kline, 412 US 441, 452; 93 S Ct 2230; 37 L Ed 2d 63 (1973).
Contrary to defendants’ arguments, the act does not create any evidentiary presumption. None of the provisions of the act purport to be concerned with the owner’s intent to abandon, compare Vlandis, supra, 452; Weinberger v Salfi, 422 US 749, 770-772; 95 S Ct 2457; 45 L Ed 2d 522 (1975). Rather, the act is designed to increase the marketability and development of severed mineral interests by creating a rule of substantive law which requires owners to undertake minimal acts indicative of ownership at least every 20 years. The statutory approach to these issues has the added advantage of eliminating uncertainty and minimizing litigation, see In re Mercure Estate, 391 Mich 443, 448; 216 NW2d 914 (1974).
Even arguendo accepting defendants’ characterization of the abandonment provisions as a presumption, the act does not create an unconstitutional presumption. A statutory presumption violates due process if there is no rational connection between the facts established and the facts to be presumed. Although the failure to occupy or develop a mineral interest for an extended length of time would not, in itself, be sufficient to support a finding of abandonment at common law, see Doty v Gillett, 43 Mich 203; 5 NW 89 (1880), it is within the Legislature’s power and experience to conclude that the owners who have not developed, transferred or recorded their severed mineral interests for over 20 years have abandoned them. Although some owners who have not completed any of the requirements specified in the act may have never intended to abandon their interests, defendants have not demonstrated that the presumed fact is not "more likely than not to flow from the proved fact”. Considering the nature of the interests affected by the act and the rational connection existing between the proven facts and the determination of abandonment, defendants have not demonstrated that the act denies them due process of law by creating an unconstitutional presumption.
VI
Defendants also claim that the act violates due process because it contains no provisions for notice or a hearing to determine the validity of the "abandonment” before the title vests in the owner of the surface estate, see Contos v Herbst, 278 NW2d 732, 743 (Minn, 1979); Wheelock v Heath, 201 Neb 835, 844; 272 NW2d 768 (1978).
It has been repeatedly observed that due process requires that one deprived of liberty or property be afforded notice and an opportunity for a hearing held "at a meaningful time and in a meaningful manner” and that "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation”. As the scope and extent of the due process protections have been drawn into sharper focus in recent cases concerning the requirement of a pre-deprivation hearing, it has been recognized that the constitutional necessity for such a hearing is determined by balancing the competing interests at stake, see Arnett v Kennedy, 416 US 134, 212; 94 S Ct 1633; 40 L Ed 2d 15 (1974) (Marshall, J., dissenting with Brennan and Douglas, JJ.), Rockwell v Crestwood School Dist Board of Education, 393 Mich 616, 634; 227 NW2d 736 (1975). The predominant interests secured by a pre-deprivation hearing are protection against wrongful deprivation and, assuming ultimate vindication of the owner, protection against unnecessary interim damages, see Rockwell, supra, 635. When the risks from wrongful deprivation are significant, a pre-deprivation hearing is required in the absence of any countervailing considerations, see Contos, supra, 744, Fuentes v Shevin, 407 US 67, 82; 92 S Ct 1983; 32 L Ed 2d 556 (1972), Boddie v Connecticut, 401 US 371, 378-379; 91 S Ct 780; 28 L Ed 2d 113 (1971).
However, considering the interests encompassed by this act, the risks of wrongful deprivation are minimal. The act does not deprive owners of productive interests of their property without a hearing but only applies to severed interests which have not been worked, as defined in the act, or recorded for over 20 years. Therefore, since the owner has not been in actual possession of the interest for over 20 years, the risks of financial or other harm from the interim deprivation are minimal. Moreover, a pre-deprivation due process hearing would not necessarily give the owner an opportunity to claim the interest, record it and preserve it but would only address the issue of whether the elements of abandonment had been proven. Balancing the minimal protection afforded by requiring a pre-deprivation hearing against countervailing considerations, the legislative de termination not to require a pre-deprivation hearing did not deprive defendants of property without due process of law.
Furthermore, the act does not limit the owner’s opportunity for a hearing to determine whether the statutory requirements have been met and to ascertain the ownership of the property. Although a pre-deprivation hearing is not required, there exists an opportunity for a hearing to be held at a meaningful time. For these reasons, we hold that due process does not require a hearing prior to vesting title in the owner of the surface estate, see Short, supra, contra, Wilson v Bishop, 82 Ill 2d 364; 412 NE2d 522 (1980).
Because the due process guarantees do not require a hearing prior to vesting title in the owner of the surface estate, we do not accept defendant’s claim that the absence of any provision in the statute for notice of such a hearing renders it constitutionally infirm. The constitutional right to notice of a hearing is implicit in and dependent upon a right to an opportunity for a hearing. No such hearing is provided for or required by the statute; therefore it is not unconstitutional on the basis that it does not have adequate provisions for notice of such a hearing.
VII
We summarily reject defendants’ equal protection claims, US Const, Am XIV, Const 1963, art 1, § 2. The Equal Protection Clause does not require the Legislature to address every aspect of a problem at once or do nothing at all, O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 543; 273 NW2d 829 (1979). Defendants have failed to show that treating oil and gas interests differently from "hard” minerals is arbitrary or lacks a reasonable relation to the object of the legislation, see Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978), McAvoy v H B Sherman Co, 401 Mich 419, 453-454; 258 NW2d 414 (1977).
We hold that the act is not unconstitutional as applied in these cases. The Court of Appeals decision in Bickel is reversed, and in Van Slooten is affirmed. Remanded for further proceedings consistent with this opinion.
No costs, this being a public question.
Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, C.J.
Levin, J.
(to reverse Van Slooten and affirm Bickel). Our state Constitution provides that "[n]o * * * law impairing the obligation of contract shall be enacted”. The United States Constitution provides that "[n]o State shall * * * pass any * * * Law impairing the Obligation of Contracts”. While deciding these cases under our state Contract Clause, we are counseled by decisions of the United States Supreme Court interpreting the federal clause.
I
Modern construction of the Contract Clause was forged under the pressure of legislative efforts to deal with the Depression. A balancing approach was used, preserving the power of the states to act for the public good while limiting that power in order to implement the purposes of the clause. Thus, in the leading case of Home Building & Loan Ass’n v Blaisdell, the Court upheld a Minnesota mortgage moratorium law although the law impaired the contractual foreclosure rights of lenders. The Court found five factors critical. First, the legislature had declared, with adequate basis, an emergency need for the moratorium legislation. Second, the law was addressed to the protection of a basic interest of society rather than to the advantage of particular individuals. Third, the relief afforded was tailored to the emergency. Fourth, the legislation was reasonable. In particular, it preserved the integrity of the mortgage indebtedness, provided rental compensation to the mortgagee during the moratorium, and preserved the primary concern of mortgagees — reasonable protection of their investment security. Finally, the legislation was limited in time to the duration of the emergency.
In a trio of subsequent cases, the failure to closely confine the contractual impairments to what was necessary to implement the state’s purpose caused legislation to be found invalid under the Contract Clause. In W B Worthen Co v Thomas, an Arkansas law exempted life insurance proceeds from collection by the beneficiary’s judgment creditors. The Court noted that the exercise of a state’s reserved powers "must be limited by reasonable conditions appropriate to the emergency”, and found the Contract Clause violated because the law had no limits as to "time, amount, circumstances, or need”.
In W B Worthen Co v Kavanaugh, an Arkansas law impairing the remedies of mortgage bond holders was found to have destroyed "nearly all the incidents that give attractiveness and value to collateral security”. The failure to tailor the amount, necessity and duration of relief to the emergency resulted in a finding of invalidity under the Contract Clause.
Finally, in Treigle v Acme Homestead Ass’n, the Court emphasized the need for a public purpose behind legislation impairing contracts. There, a Louisiana law altered the withdrawal rights of members of a building and loan association. The Court found that the law merely altered the rights of members vis-á-vis each other, without promoting any public purpose. It was thus invalid under the Contract Clause.
This standard for legislation impairing contracts —that the impairment be on reasonable conditions appropriately tailored to the public purpose giving rise to the legislation — has been further clarified in later decisions. Thus, the existence of an emergency and the temporary nature of the legislation, key elements in Blaisdell, are not essential preconditions but are, rather, factors to be used in assessing the reasonableness of the legislative impair ment of contracts. United. States Trust Co of New York v New Jersey; Veix v Sixth Ward Building & Loan Ass’n. Other factors include the substantiality of the affected contractual term as an inducement to enter the contract, El Paso v Simmons; the degree to which the legislation is in response to circumstances unforeseen at the time of contracting and limits a party to his reasonable expectations, El Paso, supra; and whether the altered contractual term was originally based on a statute when the contract was entered. Veix, supra.
II
Turning to the present cases, we recognize that courts normally accord considerable deference to legislative assessments of the reasonableness and necessity of economic and social legislation. However, where such legislation impairs contractual obligations, this deference must be harmonized with the court’s duty to apply the constitutional prohibition. In considering the factors outlined above, this Court will follow the lead of the United States Supreme Court in Allied Structural Steel Co v Spannaus, in keying the degree of deference to the severity of the contractual impairment:
"The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation.”
Our first task, therefore, is to assess the severity of the impairment. The Chief Justice limits the impairment to the new obligation to do one of the specified acts or to record a claim of interest every 20 years to preserve the interest. In so doing, she separates the obligation from the consequences of the failure to meet the new obligation, i.e., forfeiture of the interest. This separation we cannot accept. Had the obligation to re-record already been law, and the Legislature acted to change the consequences from a small fine to total forfeiture, could we disregard that alteration when challenged under the Contract Clause? We suggest that we could not. Further, the approach of the Chief Justice is inconsistent with that of the United States Supreme Court. For example, in Home Building & Loan Ass’n v Blaisdell, 290 US 398; 54 S Ct 231; 78 L Ed 413 (1934), the mortgage moratorium legislation did not alter the mortgage obligation — the principal was still due and interest thereon continued to accumulate. What was altered was the consequences of the failure to meet the mortgage obligation, namely the foreclosure procedure.
When the impairment in the present case is seen as both the obligation and its consequences, the extreme severity of the impairment is clear. The act does not merely modify the owner’s interest, it adds a term providing for its extinguish ment. It is difficult, if not impossible, to imagine a greater impairment than one which can operate to void the contract entirely.
While it may be true, as the Chief Justice maintains, that the defendants were not substantially induced to obtain their interests in reliance on the fact that their interests need not be re-recorded, other reliance interests are at stake. Defendants identify three such interests. First is "that title to property will not be disturbed in the absence of a competing claim of title or possession”, citing Groesbeck v Seeley. Second is thé expectation that if one’s title is challenged or threatened, one will have notice of that challenge. Third is the basic reliance interest embodied in the Clause itself— that the state will not act to impair, and certainly not to void, lawful contracts.
It is useful to compare the impairment of these reliance interests with the impairment found to be severe in Spannaus. There the Minnesota Private Pension Benefits Protection Act retroactively imposed vesting and funding requirements on certain employers’ pension plans. The Court found the impairment severe because the additional, sudden contribution obligation "impose[d] a completely unexpected liability in potentially disabling amounts”.
Here, as in Spannaus, the impairment was unexpected, given the reliance interests noted above. Further, the contract here is threatened not merely by potential destruction, as was the pension plan in Spannaus, but with the certainty of extinction. The severity of this impairment clearly pushes our inquiry "to a careful examination of the nature and purpose of the state legislation”.
The act has the purpose of encouraging development of oil and gas resources by terminating the ownership interests of inaccessible owners — ones who cannot be found — and vesting ownership in the surface owner. The presence of unknown or unbeatable owners precludes contracts for exploration or development of the oil and gas resources.
We recognize the public purpose behind the legislation, and the fact that encouraging energy development promotes a basic interest of society, rather than of a narrow group. However, we are convinced that, given the severity of the impairment and the lack of reasonable conditions appropriately tailoring the impairment to the public purpose, the balance in these cases must be struck on the side of the Constitution.
First, the act needlessly fails to limit its impact to contracts within its rationale. Termination of the interests of inaccessible owners is reasonable and appropriate to its purposes, but terminating those of owners who can be located by reasonable diligence is not. The act, however, makes no effort to distinguish the two groups. This overinclusiveness is analogous to the failure to condition mort gage relief upon a showing of necessity in WB Worthen Co v Kavanaugh, supra, one factor found to distinguish Kavanaugh from Blaisdell.
Second, the act’s purpose can be achieved by measures short of total forfeiture. A statutory royalty rate might be established, and the owner who fails to make the requisite filings may have a mineral lease at that rate imposed upon him with proceeds to be paid into a custodial trust account. As stated in United States Trust Co v New Jersey, supra, in the context of weighing the presence of less drastic impairments, "a State is not free to impose a drastic impairment when an evident and more moderate course would serve its purposes equally well”.
We wish to emphasize that we are not attempting to confine the Legislature to these alternatives, nor are we expressing any opinion on the constitutionality of these lesser impairments. We simply cannot ignore the striking absence of any effort to protect the owner’s interests under the present scheme. No effort to locate the present owner is called for. No process to notify the owner of the threat to his title is provided. No effort is made to preserve the owner’s interest in at least the proceeds of the development. It is this failure to condition the impairment to what is reasonable and necessary to achieve the admittedly valid public purpose of the act that renders it an unconstitutional impairment of contract.
Ill
While, as a general rule, an unconstitutional statute is void ab initio and thus contracts based thereon create no rights or obligations, we agree with the statement in Chicot County Drainage Dist v Baxter State Bank that "an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified”.
"The actual existence of a statute, prior to * * * a determination [of unconstitutionality], is an operative fact and may have consequences which cannot be ignored.”
Here we deal with a statute enacted 17 years ago. Leases may have been entered and costly exploration and development may have been made in reliance on statutory forfeitures dating back 14 years. Such reliance would have been in direct furtherance of the basic legislative goal — development of energy resources. We feel that such good-faith reliance on a presumptively valid statute, in furtherance of the legislative goal, should not be upset by rigid application of retrospective invalidity.
Therefore, where a development concern has entered a lease with a surface owner in reliance on a forfeiture under the act, the lessee’s rights under the lease should not be voided unless action in reliance on the lease has been minimal. However, future payments under the lease to the surface owner, rather than to the rightful owner of the sub-surface interest, cannot be justified. The rights to past payments will depend upon a balancing of the equities involved. Thus it follows that in Van Slooten, where the leases have been executed by the sub-surface owners, the leases should not be upset by the surface owner claiming under the unconstitutional statute.
Where different development concerns have entered competing leases, as in Bickel — one with the surface owners and the other with the sub-surface owners — the situation is more difficult. The trial court should assess the equities in light of the differing degrees of action in reliance on the leases and, where the equities are close, give effect to the normal rule of retroactive invalidity.
I would reverse the judgment of the Court of Appeals in Van Slooten and affirm in Bickel.
Kavanagh and Williams, JJ., concurred with Levin, J.
MCL 554.291; MSA 26.1163(1) provides:
"Sec. 1. Any interest in oil or gas in any land owned by any person other than the owner of the surface, which has not been sold, leased, mortgaged or transferred by instrument recorded in the register of deeds office for the county where such interest is located for a period of 20 years shall, in the absence of the issuance of a drilling permit as to such interest or the actual production or withdrawal of oil or gas from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized or included in unit operations therewith, or the use of such interest in underground gas storage operations, during such period of 20 years, be deemed abandoned, unless the owner thereof shall, within 3 years after the effective date of this act or within 20 years after the last sale, lease, mortgage or transfer of record of such interest or within 20 years after the last issuance of a drilling permit as to such interest or actual production or withdrawal of oil or gas, from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized, or included in unit operations therewith, or the use of such interest in underground gas storage operations, whichever is later, record a claim of interest as hereinafter provided. Any interest in oil or gas deemed abandoned as herein provided shall vest as of the date of such abandonment in the owner or owners of the surface in keeping with the character of the surface ownership.”
Statutes relating to severed mineral interests have been enacted in other jurisdictions. Although they are all designed to improve the marketability of severed mineral interests, they employ different approaches to their objective. Therefore it is necessary to analyze each statute’s provisions in detail when comparing and contrasting it with Michigan’s act. See Ill Ann Stat, ch 30, § 197 (Smith-Hurd), held unconstitutional in Wilson v Bishop, 82 Ill 2d 364; 412 NE2d 522 (1980), Ind Code Ann §§ 32-5-11-1 et seq. (Burns), held constitutional in Short v Texaco Inc, — Ind —; 406 NE2d 625 (1980), Minn Stat Ann § 93.52 et seq., Neb Rev Stat §§ 57-228 — 57-231, held unconstitutional in Wheelock v Heath, 201 Neb 835; 272 NW2d 768 (1978), SD Compiled Laws Ann § 43-30-8.1, NC Gen Stat §§ 1-42.1 — 1-42.3. See, also Minn Stat Ann § 93.55; Wis Stat Ann § 700.30, held unconstitutional in Chicago & North Western Transportation Co v Pedersen, 80 Wis 2d 566; 259 NW2d 316 (1977). See, also, Fla Stat Ann § 704.05, Ga Code Ann § 85-407.1, La Civ Code Ann art 753, Tenn Code Ann § 64-704, Va Code §§ 55-154, 55-155. See, also, fns 14, 15, 26 and 28, infra.
See 54 Am Jur 2d, Mines and Minerals, § 116, p 299, 1A Thompson, Real Property, § 160, p 30.
See 1 Williams & Meyers, Oil and Gas Law, § 210.1, p 110, Roberton, Abandonment of Mineral Bights, 21 Stanford L Rev 1227 (1969), Simonton, Abandonment of Interests in Land, 25 Ill L Rev 261 (1930). The rationale underlying the common-law prohibition against abandoning corporeal hereditaments concerns problems peculiar to feudal tenure and society, see 4 Kent, Commentaries (14th ed), p 259, Roberton, supra, 1228, but the prohibition still remains part of the common law, see In re Estate of Matt Miller, 274 Mich 190, 193; 264 NW 338 (1936). Interests in land can be abandoned in civil-law jurisdictions, see Sena v United States, 189 US 233, 239-240; 23 S Ct 596; 47 L Ed 787 (1903), La Civ Code Ann art 753. Incorporeal interests, such as easements and profits a prendre, are subject to abandonment at common law, see Gerhard v Stephens, 68 Cal 2d 864; 442 P2d 692; 69 Cal Rptr 612 (1968). It is the corporeal nature of these interests which necessitates the analysis of the state’s police power in Part IV, infra.
See fn 1, supra.
The relevant facts are stated in more detail in Bickel v Fairchild, 83 Mich App 467; 268 NW2d 881 (1978), and Van Slooten v Larsen, 86 Mich App 437; 272 NW2d 675 (1978).
See, also, Biltmore Village v Royal, 71 So 2d 727 (Fla, 1954), Murrison v Fenstermacher, 166 Kan 568; 203 P2d 160 (1949), Girard Trust Co v Pennsylvania R Co, 364 Pa 576; 73 A2d 371 (1950), Anno: Constitutionality of a statute which reduces title to real estate to a mere cause of action, 7 ALR2d 1366.
See Part IV B, infra.
See Shavers v Attorney General, 402 Mich 554, 613; 267 NW2d 72 (1978), Michigan Canners & Freezers Ass’n, Inc v Agricultural Marketing & Bargaining Board, 397 Mich 337, 343-344; 245 NW2d 1 (1976), Thayer v Dep’t of Agriculture, 323 Mich 403, 411; 35 NW2d 360 (1949).
See Shavers, supra, 612, Michigan Canners, supra, Grocers Dairy Co v Dep’t of Agriculture Director, 377 Mich 71, 76; 138 NW2d 767 (1966).
See Minn Stat Ann § 272.039 which declares that one of its purposes is to cure problems in "identification of separately owned mineral interests by taxing authorities requir[ing] title searches which are extremely burdensome and, where no public tract index is available, prohibitively expensive.” See, also, Minn Stat Ann § 93.52, NC Gen Stat §§ 1-42.1 — 1-42.3.
See Veasey, Law of Oil and Gas, 18 Mich L Rev 445 (1920).
Frequently, portions or fractional interests in these severed oil interests are divided among several persons in attempts to spread the cost of their acquisition or to limit the risks assumed by each individual. Interests may also become fractionalized as their owners sell portions of them for profit as opposed to profiting from the development and sale of the oil. Distributions following the death of an interest holder also tend to create fractional interests owned by a number of persons, see Kuntz, Old and New Solutions to the Problem of the Outstanding Undeveloped Mineral Interest, 22 Institute on Oil & Gas Law & Taxation 81 (1971).
See fn 3, supra.
1 Williams & Meyers, supra, § 224.1, p 339, Kuntz, Adverse Possession of Severed Mineral Interests, 5 Rocky Mountain Mineral Law Institute 409 (1959), Case Note, Mines and Minerals — Oil and Gas — What Constitutes Adverse Possession of Severed Mineral Interest by Surface Possessor, 17 Ala L Rev 126 (1964). Anno: Acquisition of title to mines or minerals by adverse possession, 67 ALR 1440, supplemented in 35 ALR2d 124. See Ga Code Ann § 85-407.1 which changes these common-law rules in an attempt to cure problems caused by dormant mineral interests.
See Minn Stat Ann § 272.039, Roberton, supra, 1231, Street, Need for Legislation to Eliminate Dormant Royalty Interests, 42 Mich State Bar J 49 (March, 1963). See, also, Minn Stat Ann §§ 272.04, subd 1; 273.13, subd 2a, Wis Stat Ann § 700.30, which attempt to cure problems caused by dormant mineral interest by taxing them.
See 1 Williams & Meyers, supra, § 224.1, p 345. Given the risks involved in the exploration for oil resources and the uncertainty of whether any recovery will be realized, any significant increase in preparatory costs may become prohibitive.
In proceeding without the owner’s consent, all risks and expenses are assumed by the developer. If oil is discovered and the operation is successful, the owner can sue in trespass and recover either the value of the resources or their value minus the expenses of recovery depending on whether the trespasser acted in good or bad faith, see 1 Williams & Meyers, supra, § 226, p 372. In any event, the developer assumes all the risks in attempting to recover the oil. Furthermore, if the attempt at recovery is unsuccessful, the developer not only bears all the expenses but may be sued for damages caused by impairing the land’s speculative value as a potential oil source, see Humble Oil & Refining Co v Kishi, 276 SW 190, 191 (Tex Comm App, 1925), Kuntz, Old and New Solutions, supra, 86-88, Roberton, supra, 1232-1233, 1 Williams & Meyers, supra, § 229, p 401.
In analogizing the dormant mineral act to a recording statute, one must recognize that differences exist between them. Although both may operate to divest an owner of his title, the recording act was designed to protect bona fide purchasers while the dormant mineral act may favor one who has never claimed an interest in the mineral estate.
It is sufficient to note at this time that the acts further different objectives. The dormant mineral act was designed to remedy problems that were not addressed by the recording act. The recording act eliminated many of the problems relating to bona fide purchasers. Any purchaser of these lands will have record notice of the severed mineral interests.
The dormant mineral act was designed to increase the marketability of these mineral interests by requiring periodic recording to reduce the problems caused by owners whose identity and location are unknown. Recognizing that increasing marketability or removal of fetters to marketability are valid public purposes, we are persuaded that the requirement of periodic recording is as reasonably related to this objective as the original recording requirement is related to the objective or protecting bona fide purchasers.
In civil-law jurisdictions the title to abandoned severed mineral interests vest in the owner of the estate from which they were carved, see La Civ Code Ann arts 753, 3546. The same result occurs upon the abandonment of incorporeal interests in land at common law, see Gerhard, supra.
See Anno, 35 ALR2d, supra, 124, 129, 173.
The act is merely one portion of the Legislature’s efforts to remove and regulate unwarranted impediments to the development of oil resources, see MCL 319.1 et seq.; MSA 13.139(1) et seq., MCL 319.101 et seq.; MSA 13.140(1) et seq.
See Derry v Ross, 5 Colo 295 (1880), Minn Stat Ann § 93.55, 1 Am Jur 2d, Abandoned Property, § 6, pp 8-9. At common law, abandoned property was not the subject of escheat, but was subject to appropriation by the sovereign as bona vacantia, see Anderson National Bank v Luckett, 321 US 233, 240; 64 S Ct 599; 88 L Ed 692 (1944).
See MCL 319.108; MSA 13.140(8).
The same result could have been achieved without any reference to the concept of abandonment by "deeming the owner of the surface estate to have marketable record title to the severed interest” at the expiration of the statutory period, see MCL 565.101 et seq.; MSA 26.1271 et seq., see, also, NC Gen Stat §§ 1-42.1 — 1-42.3, SD Compiled Laws Ann § 43-30-8.1. Marketable title acts have been upheld in the face of constitutional challenges, see Miami v St Joe Paper Co, 364 So 2d 439 (Fla, 1978), Tesdell v Hanes, 248 Iowa 742; 82 NW2d 119 (1957), Wichelman v Messner, 250 Minn 88; 83 NW2d 800 (1957), Aigler, Constitutionality of Marketable Title Acts, 50 Mich L Rev 185 (1951), supplemented in 56 Mich L Rev 225 (1957), Note, Constitutionality of Marketable Title Legislation, 47 Iowa L Rev 413 (1962). Although the dormant mineral act does not attempt to cure problems caused by conflicting claims in the same chain of title, its purpose is similar to the purpose of the marketable title acts in that it is designed to remove impediments to a severed mineral interest title’s marketability caused primarily by the presence of unknown or unlocatable owners of undeveloped interests. Although the sources of the claims affected by the acts are different, the two acts have similar objectives and requirements and both lead to substantially the same result.
See Cleveland Board of Education v La Fleur, 414 US 632; 94 S Ct 791; 39 L Ed 2d 52 (1974), United States Dep’t of Agriculture v Murry, 413 US 508; 93 S Ct 2832; 37 L Ed 2d 767 (1973), Vlandis v Kline, 412 US 441; 93 S Ct 2230; 37 L Ed 2d 63 (1973), Bell v Burson, 402 US 535; 91 S Ct 1586; 29 L Ed 2d 90 (1971), Heiner v Donnan, 285 US 312; 52 S Ct 358; 76 L Ed 772 (1932), see, also, Leary v United States, 395 US 6, 36; 89 S Ct 1532; 23 L Ed 2d 57 (1969), People v Gallagher, 404 Mich 429, 438; 273 NW2d 440 (1979).
Although not controlling, the relevancy of such failures is demonstrated by other states’ statutes which deem the interest abandoned after non-use over an extended period of time, see Ill Ann Stat, ch 30, § 197 (Smith-Hurd) (25 years), Ind Code Ann § 32-5-11-1 (Burns) (20 years), Neb Rev Stat § 57-229 (23 years).
Leary, supra, 36.
The act, itself, provides sufficient notice of its recording requirements, see Anderson National Bank v Luckett, supra, 243, North Laramie Land Co v Hoffman, 268 US 276, 283; 45 S Ct 491; 69 L Ed 953 (1925), Grand Rapids Independent Publishing Co v Grand Rapids, 335 Mich 620, 630; 56 NW2d 403 (1953), Wichelman, supra, 110, Presbytery of Southeast Iowa v Harris, 226 NW2d 232 (Iowa, 1975), 58 Am Jur 2d, Notice, § 21, p 503, 66 CJS, Notice, § 13, p 650, but see Contos v Herbst, 278 NW2d 732 (Minn, 1979). The discussion of notice in this section concerns notice as it relates to an opportunity for a hearing, see Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950).
Armstrong v Manzo, 380 US 545, 552; 85 S Ct 1187; 14 L Ed 2d 62 (1965), see, also, Rockwell v Crestwood School Dist Board of Education, 393 Mich 616, 634; 227 NW2d 736 (1975).
Cafeteria & Restaurant Workers Union v McElroy, 367 US 886, 895; 81 S Ct 1743; 6 L Ed 2d 1230 (1961), see, also, Rockwell, supra.
Compare Minn Stat Ann §§ 93.55, 272.039 which apply to productive as well as nonproductive interests and were held unconstitutional in Contos v Herbst, supra. See, also, Wis Stat Ann § 700.30.
Although the Supreme Court in Fuentes v Shevin, 407 US 67, 88-90; 92 S Ct 1983; 32 L Ed 2d 556 (1972), rejected the argument that a prior hearing was required only when "necessities” were involved and quoted from Justice Harlan’s concurring opinion in Sniadach v Family Finance Corp of Bay View, 395 US 337, 342; 89 S Ct 1820; 23 L Ed 2d 349 (1969), that some form of notice and a hearing is required before deprivation of a property interest that “cannot be characterized as de minimis”, this act applies only to dormant interests which have not been used or recorded for a period of over 20 years and are deemed abandoned. Since the owner has abandoned the property under the statute, those provisions of the act which vest title to the severed interest in the surface owner deprive him of nothing, see Mullane, supra. For these reasons we hold that the statute does not deny defendants of their property without due process of law, see Wichelman, supra, 110, Presbytery of Southeast Iowa v Harris, supra, 242, contra: Wheelock, supra, 845.
But see Wheelock, supra.
See Bubalo, Constitutionality of Retroactive Land Statutes — Indiana’s Model Dormant Mineral Act, 12 Ind L Rev 454, 472-473 (1979).
Compare, Minn Stat Ann § 93.55, Contos, supra, 742.
Const 1963, art 1, § 10.
US Const, art I, § 10.
Home Building & Loan Ass’n v Blaisdell, 290 US 398; 54 S Ct 231; 78 L Ed 413; 88 ALR 1481 (1934).
Id., pp 444-445.
Id., p 445.
Id.
Id., pp 445-447.
Id., p 447.
W B Worthen Co v Thomas, 292 US 426; 54 S Ct 816; 78 L Ed 1344 (1934).
Id., p 433.
Id., p 434.
W B Worthen Co v Kavanaugh, 295 US 56; 55 S Ct 555; 79 L Ed 1298 (1935).
Id., p 62.
Treigle v Acme Homestead Ass’n, 297 US 189; 56 S Ct 408; 80 L Ed 575 (1936).
Cf., Veix v Sixth Ward Building & Loan Ass’n of Newark, 310 US 32; 60 S Ct 792; 84 L Ed 1061 (1940), holding a similar law valid under the Contract Clause and distinguishing Treigle by finding a public purpose in controlling withdrawals that threatened the state’s credit system.
United States Trust Co of New York v New Jersey, 431 US 1, 22-23, fn 19; 97 S Ct 1505; 52 L Ed 2d 92 (1977).
Veix v Sixth Ward Building & Loan Ass’n of Newark, 310 US 32; 60 S Ct 792; 84 L Ed 1061 (1940).
El Paso v Simmons, 379 US 497, 514; 85 S Ct 577; 13 L Ed 2d 446 (1965).
Id., p 515.
Veix, supra, p 38.
Allied Structural Steel Co v Spannaus, 438 US 234; 98 S Ct 2716; 57 L Ed 2d 727 (1978), reh den 439 US 886 (1978).
Id., p 245.
Blaisdell, supra, p 445.
Groesbeck v Seeley, 13 Mich 329, 343 (1865).
Minn Stat Ann §§ 181B.01-181B.17.
Spannaus, supra, p 247.
Id., p 245.
Cf., Spannaus, supra, pp 247-249; Blaisdell, supra, p 445.
Nor can the permanent, irrebuttable presumption of abandonment called for in the act be justified. It is the nature of sub-surface interests to lie quiet, without apparent activity or assertions of ownership, until cause for exploration arises. Further, the initiative for action normally lies with the development concern, not the owner. The equating of lack of activity on the part of the owner with abandonment is simply not in accordance with common experience, much less "necessarily or universally true”. Vlandis v Kline, 412 US 441, 452; 93 S Ct 2230; 37 L Ed 2d 63 (1973). Since the act purports to deal exclusively in terms of abandonment, this case is "squarely within Vlandis [supra] as limited by [Weinberger v] Salfi [422 US 749; 95 S Ct 2457; 45 L Ed 522 (1975)]”. Elkins v Moreno, 435 US 647, 660; 98 S Ct 1338; 55 L Ed 2d 614 (1978).
W B Worthen Co v Kavanaugh, supra, p 63. See also W B Worthen Co v Thomas, supra, p 434.
United States Trust Co of New York v New Jersey, 431 US 1, 31; 97 S Ct 1505; 52 L Ed 2d 92 (1977).
Stanton v Lloyd Hammond Produce Farms, 400 Mich 135; 253 NW2d 114 (1977).
Chicot County Drainage Dist v Baxter State Bank, 308 US 371, 374; 60 S Ct 317; 84 L Ed 329 (1940).
Id. | [
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Clark, J.
Defendant made sworn application to the county clerk of Oceana for a license to marry. 3 Comp. Laws 1915, § 11377 et seq. He gave the bride’s age as 16. She accompanied him to the county clerk’s office as did also her mother, who consented in writing to the marriage. Act No. 195, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 11378). The parties were married. The bride was younger than 16 years. Defendant was prosecuted for perjury under section 11383, 3 Comp. Laws 1915. His exceptions before sentence relate chiefly to claimed errors in admitting and rejecting testimony.
Defendant testified in substance that the girl' told him she was 16, and that he believed' her, and, accordingly and innocently, gave that as her age in his application. His wife’s testimony is fully corroborative. The mother testified that she did not reveal the true age.
To show that defendant made the application wil-fully and with knowledge of its falsity, the county clerk of Muskegon was permitted to testify over objection that shortly before the making of the application in question, he, in the city of Muskegon, received a telephone call, and, quoting:
“I had a telephone call from a man who purported to be Thompson asking me to go back to the office and issue him a marriage license. It was Saturday afternoon. Our office is closed Saturdays at noon, so to save trouble, I asked him the preliminary questions that would be necessary to obtain- such a license. Among them was his place of residence, and that was answered by stating that he was at the coast guard station at Muskegon, and where the girl lived and their names, their age. * * *
“He gave the girl’s age as either fourteen or fifteen. I am not certain about that. I told him then that the girl could not obtain — or that he could not obtain a license to marry a girl of that age, and he answered that he had her mother’s consent. * * * This man said his name was Thompson, and that he was located at the coast guard station at Muskegon.”
The county clerk did not know defendant’s voice. Defendant testified: “There was no one working at the station by the name of Thompson,” perhaps he means no one else there of that name, for he also said that he was employed there.
A conversation over the telephone is admissible, unless otherwise objectionable, provided the identity of the person with whom the witness was speaking is satisfactorily established. 22 C. J. p. 193. It is generally held that the person may be recognized and identified by his voice if the witness is acquainted with it. There is a class of cases where an inference of identity is raised making a prima facie showing where a person is called from the telephone directory by number corresponding to his name and address and the party responds, informing the witness that he is the party called. See Theisen v. Detroit Taxicab & Transfer Co., 200 Mich. 136 (L. R. A. 1918D, 715). In other cases “particular additional circumstances may suffice to complete the gap.” 3 Wigmore on Evidence, § 2155.
The circumstances of the case at bar are not sufficient to establish identity. Defendant denied having called. There is no evidence by the utility or by others that such a call was made by defendant from the coast guard station or elsewhere. The fact of his association with the girl was known by others. It is not shown that the matter communicated could have been known only by the defendant. There is no corroboration by prior or subsequent conversation or communication between the person and the witness. The evidence of the clerk was hearsay. In principle the case is like Miller v. Kelly, 215 Mich. 254. See, also, Maukes v. Fishman, 163 App. Div. 789 (149 N. Y. Supp. 228); 6 L. R. A. (N. S.) 1180, note; and L. R. A. 1918D, 720, note; 22 C. J. p. 193.
The testimony should have been excluded. It was prejudicial. It served to characterize, in the main, defendant’s statement as being wilfully false.
The clerk of Oceana who issued the license was asked by defendant’s counsel, “There wasn’t anything in her appearance that would indicate to you that she was under sixteen?” to which objection was made and sustained. If we merely assume that because defendant claimed to have been innocently mistaken as to the age of the bride, he was entitled to an answer to the question (3 Chamberlayne on Modern Law of Evidence, § 2045), still the incident is not reversible error, for the person in question was at the trial and on the witness stand. State v. Robinson, 32 Or. 43 (48 Pac. 357); 16 C. J. p. 750.
Other questions are not likely to arise again.
The conviction is set aside and the cause remanded.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
September 5, 1916, Jerry and Agnes Kastle, owners, gave Frank J. and Martha Selewski a land contract for a 40-acre farm in Huron township, Wayne county. The Selewskis paid down $2,500, and agreed to pay $2,500 more within five years with six per cent, interest. At the end of five years there was $2,250 due on the contract. November 28, 1916, the Selewskis assigned the contract to Teofil and Eva Gutmanski. April 5, 1917, the Gutmanskis assigned to John and Teresa Phillips. October 15, 1918, with only their contract interest in the premises, John and Teresa Phillips gave John and Sophia Kulesa a land contract, agreeing to sell them the farm at the price of $7,000, with $3,500 paid down and payments of $50 or more semi-annually with six per cent, interest until remaining $3,500 paid. May 9,1919, the Kulesas assigned to Jacob and Mary Liss. May 19, 1919, the Lisses assigned to Joseph and Mary Puziol, plaintiffs herein. In September, 1921, Jerry and Agnes Kastle gave notice of forfeiture of the Selewski contract to plaintiffs and John and Teresa Phillips, and September 26, 1921, commenced a summary proceeding against them, before a circuit court commissioner, to obtain possession of the farm. The commissioner’s summons was served on plaintiffs herein and the Phillipses and judgment of restitution rendered October 13,1921; $2,264.25 was found due on the Selewski contract and writ of restitution was issued November 14, 1921. November 19, 1921, the bill herein was filed and at the hearing was amended to conform to the proofs. Defendant Travis is the officer having the commissioner’s writ of restitution. The bill was taken as confessed by the Phillipses and dismissed by plaintiffs as to the Selewskis.
Plaintiffs claim that Jerry Kastle received payments they made upon the Phillips contract and at the time of serving notice of forfeiture informed them it was merely designed to eliminate the Phillipses. The circuit judge found the Kastles estopped from denying rights in plaintiffs, and entered a decree permitting plaintiffs to pay the Kastles the sum due on the Selewski contract within 60 days, dismissing the bill if not so done. The Kastles appealed. We think the decree ought to stand.
Plaintiffs attack the validity of the proceeding before the commissioner; while the Kastles claim such proceeding is res adjudicaba upon the question of plaintiffs’ rights. The commissioner has no equitable jurisdiction and could not adjudicate the question here presented. The equities of plaintiffs could not be worked out or considered in the summary proceeding, and we need not pass upon the record there made. The issue here, not being one within the jurisdiction of a circuit court commissioner, is not foreclosed by any determination in the summary proceeding.
The land contract from John Phillips and wife could not, until declared an equitable assignment of the Kastle contract, and thus subrogate plaintiffs to the rights of the Phillipses, bring plaintiffs the right to pay the Kastles and demand performance by deed. The Kastles claimed at the hearing that plaintiffs held no rights under the Phillips contract they were bound to recognize. This is probably so on the law side of the court, but not so in equity. The Kastles did recognize rights existing in plaintiffs. Plaintiffs were in possession, claiming under the Phillips contract, paying $50 and interest semi-annually in the presence of Mr. Kastle, out of which Mr. Kastle received the semi-annual payment of $25 and interest due on the contract held by Phillips.
The Kastles claim they were not required to recognize the Phillips contract under which payments could extend over a period of 35 years, while their contract called for full payment in September, 1921. Of course, they were not bound at all by the Phillips contract with plaintiffs, except as it operated as an equitable assignment of the Phillips interests undei the outstanding contract executed by the Kastles, and this they did recognize by participation in payments made and in conversations with plaintiffs. After this suit was commenced payments were also made at a bank by plaintiffs and credited to the Kastle account, and Mr. Kastle was so notified and has made no return thereof, but stands ready to abide the order of the court with reference thereto. Plaintiffs, by reason of recognition by the Kastles, were entitled to their day in court upon the question of their right to be subrogated to the rights of the Phillipses. The plaintiffs did not and could not have their day in court on such question before the commissioner. We are satisfied by the evidence that equity will be well served by an affirmance of the decree.
The decree is affirmed, plaintiffs will have 40 days in which to comply with its terms, and in default thereof their bill will be dismissed. Plaintiffs will recover costs against defendants Kastle.
Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. McDonald, C. J., did not sit. | [
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Bird, J.
{dissenting). Plaintiff’s bill was filed to obtain a decree of divorce from the defendant on the ground of extreme cruelty, particularly of desertion. The proofs show that the parties were married in the year 1899 in St. Louis, Missouri. They appear to have lived peaceably* until 1904. In 1905 they separated. Two boys were born to them and they have since resided with their mother in St. Louis. In 1916, plaintiff talked over matters with defendant and requested her to live with him again. For a time she thought she would do so, but later notified him she would not renew the marital relation. In May, 1924, plaintiff began this action. Defendant appeared, answered and made a defense. The chancellor refused to grant plaintiff any relief.
Defendant justifies her refusal in 1916 to resume the marital relation on the ground that in 1904 he communicated the venereal disease of gonorrhoea to her; that this infection caused her serious injury; that as a result of it she was ill for a long time and was obliged to submit to one or more operations on account of it. There is much conflict in the testimony as to' who was responsible for her condition. She testified plaintiff confessed that he was responsible for it, and that he contracted the disease on the Midway at the World’s Fair in St. Louis in 1904. He denies this and charges defendant contracted the disease by consorting with other men. We will not attempt to determine which was at fault for her condition. Assuming that all defendant charges was true, the real question is, what was his and her physical condition in 1916 when he requested her to live with him again? If both had recovered from their maladies I am of the opinion that her refusal to again resume the marital relation was not justified, and that her refusal continuing since 1916 would amount to desertion in the law. In this opinion I am influenced by an agreement of separation which they executed in 1910. The agreement provided for the payment to her of $150 a month. The boys were to remain with her. It further provided that defendant should
“during the lifetime of this agreement, refrain from bringing any suit for divorce against said party of the first part, upon any alleged wrong or injury which may have been done to her by said party of the first part, or for any cause existing prior to the date of this agreement, and this agreement during the time in which it is effective may be used as and shall be a complete defense to any such action.”
Plaintiff also agreed to commence no divorce proceedings against her, based upon anything which may have taken place prior to 1910.
The agreement was not to be binding for any stated time. A fair inference from this agreement is that both were at least in some fault for the separation. It is also fair to infer that each thereby condoned the faults of the other which had occurred up to that date, and the obligation was binding on defendant as long as she was receiving the income the agreement provided for, or was receiving an income from the estate of the father of the plaintiff. By this agreement it is fair to say that they both voluntarily shut the door on what had happened prior to 1910. Ihere is no complaint by either of the conduct of the other since that time, except defendant’s refusal to live with him again.
Defendant undertakes to avoid the conclusion of desertion by what happened prior to 1910. In view of her own agreement we do not think she should be permitted to do this. Evidently both were willing to bury their past follies, and this found expression in a solemn written agreement in which she agreed it would be binding on her while she was receiving the monthly compensation. There is no dispute but that she has received the compensation ever since the agreement was made. If the parties themselves were willing to forget what had occurred prior to 1910, I am of the opinion that the courts should do likewise.
In order to justify her refusal to live with plaintiff again she should have shown that she was physically unable to resume the marriage relation without injury to her health,' or that his physical condition was such as to endanger her health, or that his conduct since 1910 had been such that it would afford no reasonable guaranty that her past trouble would not be again repeated. We are unable to find anything in the record bearing on these questions. Neither party makes complaint of the conduct of the other since 1910. The defendant’s failure to make any showing along this line is rather persuasive that none of those things exist. The burden being upon her to justify her refusal, and she having failed in this respect, we think it is equitable to say that the ground of desertion is established.
The great difficulty with this union is that the “divine fire” has ceased to glow. This condition of things is hard to remedy. Such fire, when extinguished, rarely ever is rekindled, and in the exceptional cases where it is it lasts only a brief time. The interest which defendant manifests in the proceeding has the appearance of a fear that something will happen to her monthly income of from $100 to $350 she is receiving from a trust created by plaintiff’s father. One provision of the trust is that if she seeks and obtains a divorce her beneficial interest in the trust shall cease. There is, however, no provision of forfeiture if plaintiff shall obtain a divorce. She appears, therefore, to be in no danger of losing her compensation if a decree should be granted in this case.
While the statute does not make public policy a ground for divorce, if, in any given case, a legal cause exists and is shown, we may consider the question of public policy in granting or withholding a decree. These people are in middle life, and if, as we think, a legal cause exists, there is no sound reason for keeping them unwillingly tied to each other. To do so does not tend to make better citizens of them. We think under the proofs as they stand plaintiff is entitled to a decree of divorce on the ground of desertion. There is nothing in the record showing plaintiff’s financial condition. In view, however, of the fact that plaintiff’s father provided an income for her and the boys, nothing by way of alimony should be allowed except the nominal sum of one dollar. No costs should be allowed either party.
The decree dismissing plaintiff’s bill should be reversed and a decree of divorce on the ground of extreme cruelty should be granted to the plaintiff, without costs to either party.
Sharpe, J.
In my opinion, the trial court was clearly right in dismissing plaintiff’s bill. He was the only witness who testified in his behalf. Every statement made by him tending to support the charges in his bill was specifically denied by defendant when sworn as a witness. This of itself would justify the action taken, as it cannot be said that the proof preponderates in his favor. Her testimony is, however, corroborated in many essential particulars. It is significant that plaintiffs father was made a party to the separation agreement entered into in 1910. Defendant testified, without objection, that she consulted him and also plaintiff’s sister, Mrs. Sheldon, about the advisability of her resuming marital relations with plaintiff in 1916, and “they told me he was not changed in any way, and I would make a mistake that would mean a legal separation again; that I had given him too many chances.” Mrs. Sheldon, called as a witness by the defendant, testified: “As far as I know Mrs. Rice treated her husband perfectly all right,” and that, “Since the separation in June, 1905, I have been in touch with Mrs. Rice. To my knowledge her conduct as a woman and a mother has been exemplary in every way so far as I know.” On cross-examination she testified:
“Q. Mrs. Sheldon, you understand that these parties can not live together, don’t you?
“A. Yes, I know of a reason why they shouldn’t be divorced.
“Q. You think that they should be tied up together even though they can’t live together, do you?
“A. We have always felt it would be wiser for Raymond not to have a divorce.
“Q. That is, you have thought so?
“A. I mean the family. * * *
“Q. And that is the only reason why you think that Mr. Rice should not be divorced, is it?
“A. Well, my father felt so very strongly on the subject that it is natural in the years I heard him discuss Ms troubles with my brother that I should be— should have imbibed some of his feeling about the matter, that it would be very much better for him not to be.”
The plaintiff, while denying that he had become afflicted with a venereal disease while at the World’s Fair at St. Louis, admitted that he had contracted such a disease while serving in the Spanish-American War. He testified that he told defendant he “was cured of it,” but that he “had a recurrence of that later on to a very little extent and that was cured up.” It clearly appears that the operation performed on her in 1904 was due to his condition prior to that time. The only proof of misconduct on her part testified to by him is that, when taking the train for Hot Springs, where She was going for treatment, he saw her kiss a man named Walsh. This she denied, as did also Mr. Walsh as a witness. I find nothing in the record on which to base the statement that plaintiff “charges defendant contracted the disease by consorting with other men.” The suggestion that “neither party makes complaint of the conduct of the other since 1910” is met by the fact that plaintiff left Mecosta county soon after the agreement wás entered into and was gone six years, and if does not appear that thereafter he has lived in the vicinity of her home. Defendant’s separation from plaintiff in 1905 was clearly justified. In' my opinion, she was under no legal obligation to resume marital relations with him thereafter. Desertion cannot be predicated on her refusal to do so.
The decree is affirmed, with costs to defendant.
McDonald, C. J., and Clark, Moore, Steere, Fellows, and Wiest, JJ., concurred with Sharpe, J. | [
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Bird, J.
The purpose of this application for a writ of mandamus is to compel defendant to vacate an order made by him setting aside a judgment rendered in behalf of plaintiff against Barnard Toy Company. Upon the same proofs, by agreement, judgment was rendered in behalf of Harold W. McConnell against the Barnard Toy Company. A similar application for a writ of mandamus was made in that case and a decision therein granting the writ was filed by this court (McConnell v. Wayne Circuit Judge, ante, 184). The decision on that application makes it unnecessary to consider the merits of this application.
In addition to the reasons assigned by Mr. Justice Sharpe, in McConnell v. Wayne Circuit Judge, it may be said that defendant was in error in setting aside the judgment without notice to the interested parties. In Whitwell & Hoover v. Emory, 3 Mich. 84, the ques tion was before the court whether a judgment could be amended after the term had expired at which it was rendered. The conclusion of the court was that it could not be so amended. Then upon the question of notice it was said:
“Before the error in this cause could have been corrected, were it susceptible of correction by amendment, we apprehend that it was necessary that the parties to be affected by it should have been cited before the court. Especially should this be done where the matter had slept ten years. To permit any other course might work irreparable mischief' to parties wholly unconscious of their situation, and jeopard rights fairly and honestly acquired. Such practice is in accordance with all the analogies of the law, and we can see no good reason why it should not be pursued. Before a judgment could be perfected in the cause it was certainly necessary that such course should be pursued, and the parties had afforded to them an opportunity to be heard.”
Recently this court has affirmed this holding in a case where the question of amendment of a judgment was involved, and it was said in part:
“We are not aware that the case of Whitwell & Hoover v. Emory, supra, has ever been overruled. It appears to be in force now. A like rule prevails in other States, and in some of them a more restricted one. The rule is a salutary one, and without it litigants would never know when their matters had reached a final stage. We are also impressed that where judgments are amended at the same term the parties who will be affected should have notice. The defeated party might acquiesce in the judgment rendered. After amendment he might desire to appeal, and if he were not entitled to notice the time in which an appeal could be taken might expire before he was advised of the amendment.” Partch v. Baird, 227 Mich. 660.
Under this holding defendant was clearly in error in vacating the judgment without notice to plaintiff.
A writ will issue in this case, if necessary. Plaintiff will recover costs against the Barnard Toy Company.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
In this suit the attorney general, on his own motion, in behalf of the people of the State, seeks an injunction to stop the city of Howell from emptying raw sewage in a small branch of the Shia-wassee river, claiming it is a public nuisance, a menace to the public health, destructive of fish, and in violation of an order of the State department of health directing the city to establish a sewage treatment system. Upon hearing, the bill was dismissed. The case is here by appeal. The proofs fail to show a public nuisance. This being so the attorney general has no standing in court. The attorney general relies on the holding in Attorney General v. City of Grand Rapids, 175 Mich. 503 (50 L. R. A. [N. S.] 473, Ann. Cas. 1915A, 968). But in that case the bill was filed in the name of the attorney general, upon the relation of the township of Wyoming, through its township board, its board of health, and its supervisor, and upon the relation of the village of Grandville and certain riparian owners. Here the record does not disclose any public request for, or need of, intervention by the attorney general. The pollution of the water, rendering it unfit for stock to drink, and the odor emanating from such pollution may constitute a private grievance; but, if so, the persons annoyed should press for remedy and, the public not being concerned, the attorney general may not make the, subject one for him, in behalf of the State, to bring before the court. The claim that the sewage has driven fish from the stream for some distance from the mouth of the sewer is, under the evidence, too small a peg to hold the suit of the attorney general. In times of high water suckers and pike may run up the stream, for pike will at such times run up small ditches, but they will not stay in such shallow and narrow water, as in this stream at all other times. Chubs and shiners quite likely would remain but they are fish bait at the most.
Act No. 398, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 5034), empowers the State department of health to inspect sewage systems and, if found to be dangerous to individuals or to the public health generally, alterations may be required, but provides there shall be no power to prevent a city, disposing of its sewage into any river at the time of the passage of the act, from continuing to do so after all deleterious matter has been eliminated by filtration. If, under the authority of this act, the State department of health has exercised right of direction in the premises, and such order has not been obeyed, the same act provides that the attorney general may institute mandamus proceedings in the circuit court of Ingham county to compel the city to comply therewith. The sewer was established before the passage of the act above mentioned.
The riparian owners along this branch of the river had a right to enjoy the advantages of the water for their stock, unpolluted by sewage, and not be driven to fence the stream to keep their stock away from its waters. But such rights are private and give the attorney general no cause to complain thereof in the name of his office. At times there is a stench from the river annoying to three or four families and perceptible to travelers over a highway crossing the stream, but no sickness traceable to the fouling of the stream was shown.
The decree in the circuit is affirmed, without costs.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, and Fellows, JJ., concurred. Bird, J., did not sit. | [
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Steere, J.
On April 12, 1920, defendant wrote plaintiff a so-called one-year liability insurance policy on his Cadillac Victoria automobile. The premium was $46.34, which he paid defendant. In May, 1920, while the auto was being driven by plaintiff’s minor son, Philip Griffin, with his father’s consent, it collided with a taxicab carrying a passenger named Charles Smith, who was injured. Criminal proceedings were first instituted against Philip in the recorder’s court for reckless driving. Though not required by the terms of its policy to do so, defendant’s counsel represented Philip at the trial of .that proceeding at the request of his father, “as a matter of courtesy” to a policy holder. Subsequently the taxicab passenger, Charles Smith, began a tort action in the Wayne county circuit court against plaintiff herein and his son Philip to recover damages for the injuries he suffered in the collision. As stated in defendant’s brief, defendant’s counsel appearing in that case “as attorney for Charles Smith and the defendant here, under Condition ‘C’ of its policy, assumed control of the case for Bradley P. Griffin and Philip Griffin, his son.” The trial resulted in a judgment in Smith’s favor of $2,000 and costs taxed at $64.80. The insurance company refused to pay the judgment. Griffin testified he was practically bankrupt at that time and to escape a threatened body execution he gave a note for the amount of the judgment, costs and interest, with an assignment of the judgment as collateral. The assignment was filed in this case. The note was past due and unpaid at the time of this trial, and it was conceded that the judgment “was entered and never satisfied.” Following the judgment in Smith v. Griffin plaintiff brought this action on his policy to recover the amount of liability adjudged against him. Upon the trial a jury was called and considerable testimony taken. Both parties moved for a directed verdict, and after some discussion it was agreed between counsel the issues raised were purely questions of law, the jury was dismissed, the case submitted to the court and taken under advisement. An opinion was later filed denying defendant’s motion and granting plaintiff’s, with judgment in his favor for $2,064.80 and costs taxed at $70.83.
Defendant’s contention is that, under the terms of the policy plaintiff held, he is only indemnified against actual pecuniary loss, that the note he gave to avoid threatened imprisonment was not taken in settlement of the judgment, which concededly has not been satisfied, and, not having paid the judgment, he has suffered no loss.
Amongst the many provisions of the policy are the following:
“The General Casualty & Surety Company, hereinafter called the company, does hereby agree to indemnify the assured designated in the said schedule against loss, from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting at any time therefrom, accidentally suffered or alleged to have been suffered by any person or persons not employed by the assured, caused by the automobile vehicles described in statement numbered 5 of the schedule, * * * subject to the following conditions: * * *
“Condition C. If thereafter any suit is brought against the assured to enforce such a claim for damages, the assured shall immediately forward to such executive office of the company every summons or other process, and the company shall defend such suit, whether groundless or not; the expenses incurred by the company in defending such suit, including court costs and all interest accruing after entry of judgment, will be borne by the company irrespective of the limits of liability expressed in the policy. The company shall have the right to settle any claim or suit at any time. In the event that an execution on a judgment against the assured be returned unsatisfied in an action by a person who is injured or whose property is damaged, the judgment creditor shall have a right of action against the company to the same extent_ that the assured could have had, had he paid the judgment.
“Condition D. The assured shall not voluntarily assume any liability, nor incur any expense or settle any claim unless such settlement or expenditures are first authorized in writing by the company; except that the assured may provide at the time of the accident at the cost of the company such immediate surgical relief as is imperative.
“Condition E. In case of payment of loss under this policy the company shall be subrogated to all rights of the assured against any person or corporation as respects such loss.”
Undoubtedly the giving of a note by the assured to liquidate a judgment amounts to an actual loss under a contract of indemnity if the judgment creditor accepts it as payment of the original debt; but in this case it is conceded that although forbearance from body execution followed plaintiff’s giving a note for the amount with assignment of the judgment as collateral, the judgment was “never satisfied.” The transaction suggests, however, that if defendant’s construction of the policy is right and plaintiff is remediless until he pays the judgment, that type of insurance affords scant protection and is of little value to an impecunious assured when shadowed by the menace of a judgment against him in a tort action for personal injury.
In dealing with indemnity insurance the authorities have recognized two classes of policies, sometimes called respectively “liability contracts” and “indemnity contracts,” based on the distinction that in one class the policy is construed as enforceable when liability of the insured is shown, while in the other class it only becomes enforceable when the insured has actually sustained some damage or loss, as by paying a judgment against him coming within the scope of the policy.
In 36 C. J. pp. 1057, 1058, it is said of the determining factors:
“Where the policy provides that insured shall immediately notify the company in case of accident or injury, that the company would defend actions growing out of injuries, in the name of insured, and that insured should not settle any claim or incur any expense without the consent of the company, it is generally held to be a policy of indemnity against liability for damages, and is not a mere contract of indemnity against damages.” Citing numerous decisions, including Stephens v. Casualty Co., 135 Mich. 189 (3 Ann. Cas. 478).
The Stephens Case is, however, distinguishable from this in the wording of the indemnity and not decisive of the exact question raised here; but the court there said that—
“when a final judgment was rendered against the railway company the liability under defendant’s contract became fixed, and it was obligated to pay the amount of the indemnity, although the judgment had not been paid.”'
While the legal distinction between indemnity against liability and indemnity against loss is generally recognized and policies so classified, the authorities are not in harmony as to whether liability policies phrased similar to this against loss from liability to third persons are to be classified as contracts of liability or of indemnity.
If it was the insurer’s desire, or intent, that in case of accidental injuries suffered to any person not em ployed by the assured for which the latter became liable no rights under his policy would accrue to him until he had liquidated his liability therefor, whether determined by amicable adjustment or final judgment, it manifestly could be so clearly expressed in the policy by a distinct and unambiguous provision that there could be no question; but the provision on that subject in policies similar to this have often been couched in such ambiguous language, or with such qualifying conditions, that even courts of last resort have been unable to construe and classify them alike. A comparative examination of the eases cited by both sides and many others to be found is convincing of the following conclusions as to how that situation has developed:
“Tracing, now, the growth of the indemnity policy up to its present phraseology, its basic principle was that the assured would not only first pay the loss, but that he would attend to his own defense. The in-demnifier, standing aloof, would pay the final bill, providing the defense had been honestly conducted by the employer. Generally speaking, the practice, as well as the contract of the indemnifier, to take over the defense, came later. To do that under the old liability policy was natural, but under the pure indemnity policy was not natural. The insurer desired to defend through his own agent because he could do so more cheaply than the employer, who would charge the expense to him, and because he could be more certain of the good faith of that defense. He, accordingly, wished to become a mere reimburser in law while a defender in fact.
“But in taking over the defense, the insurer assumes a feature of a liability contract as distinguished from an indemnifying contract. When an accident occurs, he hurries to protect the assured and himself from liability by defeating the claimant in advance. But when the claimant has been successful, the insurer, falling back on the other theory, argues that he is not a liability insurer, only a reimbursement insurer.” Davies v. Maryland Casualty Co., 89 Wash. 571 (154 Pac. 1116, 155 Pac. 1035, L. R. A. 1916D, 395).
We deem it unnecessary to review the conflicting authorities on this branch of the insurance law in other jurisdictions. The subject will be found amply discussed in Patterson v. Adan, 119 Minn. 308 (138 N. W. 281, 48 L. R. A. [N. S.] 184); Blanton v. Cotton Mills Co., 103 Kan. 118 (172 Pac. 987, L. R. A. 1918E, 541), and cases there cited.
This policy is defendant’s production. The language adopted in the insuring clause and following conditions from “A” to “L” inclusive are of its own choosing. Technical construction of such policies is not viewed favorably (1 Joyce on Insurance [2d Ed.], § 212), and by a long line of authority obscure or ambiguous provisions are to be liberally construed (Id. § 221).
The insuring clause of this policy read in the light of provisions and conditions which follow is not clear, nor conclusive of but one meaning. So read it savors of both an indemnity and liability contract. Against the theory that the insurer is immune from liability with no direct concern in the accident until the assured has actually paid the loss even though contested and determined by a final judgment, the policy obligates him to give immediate notice of a possibly compen-sable accidept with all .particulars obtainable and if any action is brought against him to promptly advise the insurer, requires the latter to defend the case whether groundless or not and authorizes it to settle “any claim or suit at any time” without his consent, forbids him from assuming any liability or incurring any expense, except imperative surgical relief at the time of the accident, without written authority from the insurer, and in effect takes the whole matter out of his hands.
In the instant case defendant was promptly notified by Griffin of the accident, of the fact that young Griffin had been criminally taken for reckless driving and of the action brought by Smith for personal injuries. Its attorney first appeared for the defense in the criminal prosecution “as a matter of courtesy” and secured an acquittal, incidentally making a possible point for the defense and getting a line on the evidence in the threatened civil action which followed. It took charge of the defense in that case under the exclusive authority conferred by the policy, practically putting itself in the place of the assured, and contested it to an adverse conclusion. Under such circumstances the claim of estoppel is appealing. As said in Picket v. Fidelity & Casualty Co., 60 S. C. 477 (38 S. E. 160, 629), where a policy similar to this was involved:
“One of the objects of the provision authorizing defense of any suit for damages to be made by the insurer, and taking from the insured all right of interference, was to enable the insurer, if possible, to prevent any liability against the insured employer, and this liability which, by the policy, the insurer was to contest, was the liability against which the policy was issued.”
' Under the policy and facts shown in this case we think applicable the following conclusions of the court in Patterson v. Adan, supra:
“In a policy such as this, where the company has come into the litigation and assumed exclusive control thereof under its contract, it recognizes a liability, if it fails to defend successfully, to pay the assured the amount of the judgment it so permits to be established, not exceeding the sum stipulated in the policy, and also that, as to the plaintiff, it should be considered that such judgment is a debt due the assured from the company, and not dependent on any contingency.”
The judgment will stand affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
This bill is filed to set aside two levies on property belonging to the plaintiff in the village of Lawton, Michigan. The Phoenix Basket Company, a Michigan corporation, secured a judgment against Thomas F. Dodge on the 5th day of February, 1900, in the circuit court for Van Burén county, Michigan, for $555.37 damages and $20.50 costs. This judgment was renewed on May 31, 1910, and again on April 22, 1921. On May 28, 1920, an execution was issued on the second judgment and levy was made on the property in question. On August 17, 1921, an execution was issued and levy made under the third judgment. No sale has yet been made under either of the levies. The purpose of this suit is to have these two levies set aside. The Phoenix Basket Company was organized on February 24, 1898, with a time limit of 20 years. The time limit expired February 24, 1918, and the three years additional time given by statute expired February 24, 1921. The bill is filed on the theory that the first levy made under the second judgment cannot be enforced because that judgment is now outlawed; that the levy made under the third judgment cannot be sustained because that judgment is void for certain jurisdictional reasons; that neither of the judgments and neither of the levies are of any validity because there was no such corporation as the Phoenix Basket Company at the time the judgments were rendered, or at the time the executions were issued. The plaintiff further alleged in his bill as a reason why the levy should not be maintained, that the property levied on was his homestead of a value not to exceed $1,500. Service of the summons was not made upon the Phoenix Basket Company because it could not be found within the bailiwick. The defendant Barker was served and filed his answer, in which he denied the allegations of the bill and insisted on his right to maintain the levies. On the hearing a decree was entered granting the relief prayed for. From this decree, the defendant Barker has appealed.
The circuit judge rightly held that the levy of execution under the third judgment could not be enforced because when that judgment was rendered and when the execution thereon was issued the corporation had been dissolved. The testimony as to this fact is undisputed.
As to the levy of execution under the second judgment the court held that it could not be enforced because that judgment was outlawed. In so holding the court was wrong. It is true that the judgment was outlawed but the execution was issued and levy was made before it became outlawed. The levy was made May 28, 1920, and the defendant had five years from that date in which to enforce it. In Mosher v. Borden, 201 Mich. 106, this question was fully discussed and the court said:
“As the execution had been issued and a levy made within the lifetime of the judgment the levy should not be set aside or the sale restrained.”
Nor is the right of the defendant to maintain the levy affected by the dissolution of the corporation. As it was made before the corporation was dissolved, the levying officer has a right to proceed as though the dissolution had not occurred. 7 R. C. L. pp. 736, 737.
The claim that the property levied on is the homestead of the plaintiff, if true, furnishes no valid reason for setting aside the levy. The statute provides what proceedings shall be taken for the debtor’s protection under such circumstances. Judicature act, chap. 28 (3 Comp. Laws 1915, § 12816 et seq.).
The decree of the circuit court is reversed, with costs to the defendant. A decree dismissing the bill will be entered.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Steere, J.
This bill was filed to obtain relief- from a statutory foreclosure of a mortgage on a house and lot located in Bradford Smith’s subdivision of the west part of private claim 729 in the city of Detroit, Michigan. , The property in question had belonged to one Earl L. Thompson, who mortgaged it for $3,200 on October 8,' 1920, to the Wayne County and Home Savings Bank of Detroit, which was duly recorded the next day. On June 18, 1921, he obtained a loan of $600 from defendants Keary, through a real estate and loan broker of Detroit named Ebert, giving them a second mortgage on said land to secure the same, which was recorded five days later. On September 24, 1921, Thompson conveyed the property to plaintiff Jacob Moss and one Arnor Rubach by warranty deed subject to the two mortgages above mentioned which the grantees assumed and agreed to pay. Said deed was duly recorded. On October 31, 1921, Rubach and wife conveyed their' interest in said property to plaintiffs, Jacob and Lena Moss, subject to said mortgages, which the latter assumed, and agreed to pay. Some payments were made and the interest kept up on the first mortgage to the bank but no payments were made upon the second mortgage held by defend ants. This mortgage called for monthly payments of not less than $60 per month, the entire principal with interest to be paid in full by February 18, 1922. It expressly provided:
“That should default' be made in the payment of any instalment of principal maturing hereon, before the whole thereof becomes due, or of any instalment of interest when the same becomes due and payable, or of any taxes or assessments or premium for insurance, or any part thereof, when the same are payable as above provided, and should the same or any part thereof remain unpaid for the period of thirty days, then and from thenceforth, the aforesaid principal sum, with all arrearages of interest, shall at the option of said mortgagees, their legal representatives, or assigns, become due and be payable therefrom and thereafter although the period above limited for the payment of the same shall not then have expired, anything hereinbefore, or in said notes contained to the contrary thereof in any wise notwithstanding.”
In which case the mortgagees are authorized to declare the whole amount due upon said mortgage and proceed to enforce the same. In case of foreclosure $35 attorney fee is provided.
Over a month before plaintiffs acquired title to this property, in whole or in part, this second mortgage for $600 was in default, defendants had declared the whole amount due and begun statutory foreclosure proceedings by advertisement in the Springwells Tribune, a paper printed and published in Wayne county. After acquiring full record title to the property, subject to the two mortgages, plaintiffs sold it under a land contract dated November 10, 1921, to a man named Oliver, the consideration named in the contract being $10,300. The terms of payment and amount paid down are not shown, neither does it appear that this contract was ever recorded.
The mortgage contained the usual power of sale authorizing foreclosure by advertisement. Such fore closure is an ex parte non-judicial proceeding, based on contract and authorized by the mortgagor. While it should not be hampered by unreasonably strict construction of the act (Lee v. Clary, 38 Mich. 223), all essential provisions of the act must be complied with (Pierce v. Grimley, 77 Mich. 273). No personal notice is required under power of sale at common law or by the statute. The statutory requirements for foreclosure appear to have been regularly observed in proper time and manner. Public auction pursuant to foreclosure notice published for the statutory period in Springwells Tribune was held on November 22, 1921, by the sheriff of Wayne county, at the time and place specified, and the property was sold by him to defendants, they being the highest bidders. Following the close-of the sale the sheriff promptly executed a deed of the property to them as the act authorizes (3 Comp. Laws 1915, § 14957), which was duly recorded and left in the custody of the register of deeds of Wayne county, where it remained until the period of redemption expired," on November 23, 1922, when it was delivered to defendants.
Aside from the contention that the Springwells Tribune was not such a paper printed, circulated and published in the county within which the property is located as contemplated by the statute, it is practically conceded for plaintiffs that the strict letter of the law was followed in this statutory foreclosure. The claim and theory urged in their behalf as condensed from their bill is in substance that defendants as mortgagees violated the trust obligations which the law imposes on them as such, conceived and executed a plan to suppress or conceal as far as possible any notice to the mortgagor and others having an interest in the proceeding that they might, as they did, secure the property for themselves, and to that end both refrained from giving any notice to the mortgagor and made their statutory publication in a small and obscure paper printed in the village of Springwells, outside of Detroit.
Plaintiffs’ testimony in support of their contention that the newspaper in which publication was had was not such as required by the statute showed that the Springwells Tribune was a paper scarcely two years old at that time, published in the little village of Springwells, with a circulation of scarcely 400, little known in the city of Detroit and the youngest newspaper in Wayne county carrying legal notices. It was shown by defendants’ testimony to be the official paper of the village, that it was patronized for publication of legal notices by various attorneys of Detroit, several of the circuit judges of Wayne county had issued orders for publication of legal notices in it, that it was distributed' to various law offices in Detroit and its circulation was about equal to that of the Detroit Law Journal and the Belleville Enterprise, both of which have been held to meet statutory requirements. Copies of the two village papers were made exhibits in the case, that of the Belleville Enterprise containing a copy of the notice held legal in Lau v. Scribner, 197 Mich. 414, and that of the Spring-wells Tribune a copy of the notice in this case.
The statute (3 Comp. Laws 1915, § 14951) requires the notice of foreclosure of mortgages by advertisement to be given by publishing the same for twelve consecutive weeks, at least once in each week, in a newspaper printed in the county where the premises included in the mortgage and intended to be sold are situated. A proper notice legal in form was published for that period in the Springwells Tribune. This case is controlled, so far as involves the validity of the notice, by Lau v. Scribner, 197 Mich. 414, the paper there in question being the Belleville Enterprise. Vide, also, Hoock v. Sloman, 155 Mich. 1, where publication of notice of sale in the Detroit Law Journal was held valid.
Counsel for plaintiffs dwell at length on the prompt action taken to foreclose and inadequacy of price for which the property was sold on foreclosure sale as evidence of fraudulent conduct on the part of defendants and their agent, Ebert, the real estate and loan broker through whom Thompson procured the money to secure payment of which this second mortgage was. given. It was a comparatively short time loan to be paid in monthly instalments of not less than $60' secured by a second mortgage on a house and lot,, putting upon them the necessity of paying the first mortgage of $3,200, if the mortgagor failed to meet it, in order to protect their loan. Under such circumstances, prompt action to enforce payment of such instalments after the borrower had ignored and failed to meet them as they fell due can scarcely be counted as evidence of fraudulent- or unfair conduct on the part of the creditor.
The evidence indicates inadequacy of price, just how much is not altogether clear. What Moss and Rubach paid Thompson for the twice mortgaged property which he deeded to them after the foreclosure was begun is not shown. About a month after Rubach received his deed from Thompson he deeded his interest in the property to Moss and wife, in what way he was paid for his half, or how much, is not shown. Moss testified the property cost him $9,000 and he later sold it to Oliver for $10,300 under a land contract the terms of which are not shown, neither is Oliver made a party in this suit. But conceding inadequacy of price as claimed, mere inadequacy is not in itself sufficient ground for setting aside an otherwise legal sale. In the early case of Campau v. Godfrey, 18 Mich. 27, it was said by this court, speaking through Justice Christiancy :
“And no case has been cited, nor are we aware of any, in which an execution sale of real estate has been set aside, on motion or otherwise, for inadequacy of price alone, especially when, as in this case, it was subject to a year’s redemption. The statute giving a year’s redemption seems to rest mainly upon the idea that real estate may be sold for less than its value, and to give the time of redemption mainly on this ground. This is an adequate remedy, and if the debtor will not avail himself of it, he can not complain of it. Public policy requires that judicial sales which have been open and fair, and nothing done to prevent a sale at a higher price, should not be disturbed on the ground of inadequacy; since the effect of an opposite course would be to deter bidders, and render the prices on such sales still less. And any rule which might be laid down as to the degree of inadequacy would be wholly arbitrary;” citing decisions.
In Cameron v. Adams, 31 Mich. 426, a case presenting special features of hardship much more severe than any claimed here, it is said in an opinion by Justice Campbell:
“If the sale had been made under the decree of a court, the authorities cited on the argument would bear very strongly in favor of relieving complainant. Courts of equity have large powers for relief against the consequences of inevitable accident in private dealings, and may doubtless control their own process and decrees to that end. But we think there is no such power to relieve against statutory forfeitures. Where a valid legislative act has determined the conditions on which rights shall vest or be forfeited, and there has been no fraud in conducting the legal measures, no court can interpose conditions or qualifications in violation of the statute. The parties have a right to stand upon the terms of the law. This principle has not been open to controversy, and is familiar and elementary. The inadequacy of price cannot vitiate such a sale, if otherwise fair and regular. The owner of the right of redemption can always redeem within the year by refunding the amount paid, with interest at the rate fixed by the statute. It is only his failure to do this which has been the cause of his loss.”
Vide, also, Blackwood v. Sakwinski, 221 Mich. 464.
Plaintiffs last and most elaborately briefed contention is based on the proposition, as stated in 3 Jones on Mortgages, § 1906:
“A mortgagee or trustee, in the exercise of a power of sale, must act fairly and is under very much the same obligation to other parties in interest as a trustee in other cases. So far as other persons are interested in the property, the power is regarded as a trust, and the mortgagee is treated as a trustee in the exercise of it. Fairness and good faith are demanded of him.”
To what extent such trust obligations of a bare mortgagee carry to purchasers of the mortgaged property after foreclosure proceedings have been commenced is open to question. The right of statutory foreclosure under a power of sa,le is based upon a contract between the mortgagor and mortgagee. Plaintiffs were under no contractual relations with defendants at any time. They owed them nothing. The debt secured by this mortgage was Thompson’s, for money he borrowed from defendants evidenced by in-stalment notes, as to which he was in default before he sold the property. The statute does not even require the mortgagee to give notice, other than by publication. If it did, there is no proof Thompson was not notified. The burden of proof is on plaintiffs to show the invalidity of the foreclosure. The burden of proof rested upon plaintiffs to satisfactorily prove by a preponderance of evidence the unfair and fraudulent conduct of which they complain, in order to nullify this statutory foreclosure, which is fair on its face with all statutory requirements fully complied with. The infirmity of plaintiffs’ claim is in the major premise of facts upon which their counsel’s able argument is based.
When these foreclosure proceedings were begun Thompson, the mortgagor, owned this property, was the only party, except the first mortgagee, shown to have any interest in it, or known to defendants in the transaction. Moss testified that he and Rubach had negotiated with Thompson for the property before that time but makes no claim that fact was, or they were, known by defendants until near the time the period of redemption would expire. They acquired Thompson’s interest in the property a month after foreclosure proceedings were begun and did not give defendants notice of their subsequently acquired interest, personally or by mail, and remained total strangers to them. Moss testified that in October, 1921, when he received his deed from Rubach of the latter’s interest in the property he looked at it and “saw that Mr. and Mrs. Keary had a second mortgage on the property.” He further said he did not ask Thompson or Rubach or any one else whether any interest or principal had been paid on it because he understood from Rubach that it was a two years mortgage, and did not go or send any one to the register of deeds’ office to find out about it. He did tell the bank which held the first mortgage of his interest in the property but did not inform defendants because he “could not locate them.” Asked why he didn’t write them he replied, “To be honest with you, I waited for notice, the same as every business man.” Moss was himself in the real estate business. ' He admitted that he was in that line of business and had bought and sold real estate but said it was “on the side,” and his business was that of a painter and decorator; but acknowledged as his, a card announcing he was “in the real estate business.” As a real estate man he knew, or is presumed to have known, that he could learn the terms of this mortgage in the register of deeds’ office where it was recorded, and that interest would be due on it at least once a year. He tells of learning from a man he knew that Keary was a money lender who had two homes, one on Avalon avenue and one some place out of town, and the nearest he came to getting in touch with defendants until he learned the mortgage was foreclosed was to get Keary’s ’phone number and call up his home. When told he was not at home he gave his own address and telephone number to the woman who answered. On cross-examination he was asked and answered of this in part as follows:
“Q. How did they (defendants) know you owned it?
“A. I left word; my telephone number there with the lady and the street address.
“Q. And that is all you did?
“A. That is all I did.
“Q. And that is the only explanation now that you have to offer for this statement, that you expected Mr. or Mrs. Keary to send you a notice that this foreclosure was due.
“A. Anyway, I did not, because I left my street number and telephone number.
“Q. With the party?
“A. Yes.
“Q. And that is all you did?
“A. That is about all that I could have done.”
The property in question was occupied by tenants. Moss stated on direct-examination that the first knowledge he had of the foreclosure was November 20, 1922, when Oliver told him that the rent had been stopped. On cross-examination he said:
“I was unable to get in touch with Mr. and Mrs. • Keary until after the mortgage foreclosure had expired. That is true.
“Q. After this mortgage had expired you did succeed in getting in touch with Mrs. Keary by telephone?
“A. I was trying to ’phone her.
“Q. Afterwards you did?
“A. I was trying to call her before that. I did not get an answer. Once I did get a lady’s answer, but they was out.
“Q. Nobody home?
“A. Yes, I never went out to the place there at their residence.”
Moss testified that after he learned of the foreclosure, when Oliver told him that somebody had been to the property “stopping the rent,” he “went up and tried, the first time I got in it was with Mrs. Keary,” and she told him that she had nothing to do with the matter, as Mr. Ebert was handling it. He then got in touch with Mr. Ebert and talked with him about the foreclosure', offered to pay up the mortgage and all expenses, and was answered, “I will get in touch with Mr. Keary.” The next time Moss went back to Ebert he said, “I don’t know.” Moss tells of seeing the Kearys thereafter and various interviews he had with them and Ebert in which he said the latter “kept stalling along for about ten days.” Some of their interviews were apparently not altogether pleasant as Moss tells that later they “got to talking in a nice way.” Of an interview before that time he testified that in reply to his reflections as to his not being notified Ebert said, “We are not supposed to do that. We are just waiting for you to get in a trap, somebody got me in a trap and I got you in. a trap.” This is particularly emphasized as glaring evidence of defendants’ iniquitous, unfair and fraudulent plan to acquire the mortgaged property by a surreptitious foreclosure.
As Moss says he did not get in touch with Mr. or Mrs. Keary until the time to redeem had expired, nor with Ebert until' after he saw Mrs. Keary, the materiality of those ex post facto interviews seems, questionable. No claim is made of unkindly replies or declaration of sinister purpose by defendants themselves. Just what provocation Ebert had for his ungracious retort is not very clear. It may be conceded as indicating that he was not burdened with bowels of compassion, but does not impress us as a test of the validity of this foreclosure. The record shows that an attorney named S. R. Smith conducted the foreclosure proceedings for defendants. They were carried through with careful observance of all conditions and requirements of the statute.
His own testimony shows that Moss learned of the foreclosure two full days before the period of redemption expired. The fact that information came to him from notice to the tenants to stop paying rent some time before it had expired, is not in harmony with the theory that defendants were scheming to prevent plaintiffs getting notice of the foreclosure in time to redeem. At any time during the two days after Moss had actual notice he could have held himself harmless and rendered the sheriff’s deed on foreclosure void by stepping into the register of deeds’ office and depositing with him the amount the property was bid in for, with interest and a fee of one dollar for the register. As said in the Cameron Case, “It is only his failure to do this which has been the cause of his loss.”
While the various cases cited by plaintiffs’ counsel maintain in the main the principles they contend for, a careful examination of the controlling facts on which they turned shows them so far from analogous to those disclosed in the instant case that we do not find them controlling here nor deem it essential to review them at length. Plaintiffs have not sustained their charge of fraud and irregularity in this statutory foreclosure. It was strictly in compliance with statutory requirements, and, in legal contemplation, fair and regular. Courts of equity cannot impose additional conditions to relieve against statutory forfeiture. Plaintiffs had notice before the period of redemption expired and ample time to redeem.
The decree of the lower court dismissing plaintiffs’ bill will stand affirmed, with costs to defendants.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Sharpe, J.
Frank A. Muehlenbeck, while hauling stone for Ederer & Company, met his death in a collision between the truck he was driving and a Michigan Central railroad train on October 9, 1923. Carl A. Muehlenbeck, a brother of the deceased, was appointed administrator of his estate by the probate court of Saginaw county.
On November 23, 1923, the administrator filed the following petition in the probate court:
“Your petitioner respectfully represents that he is duly appointed and qualified administrator of the estate of Frank F. Muehlenbeck, who met death on October 9, 1923, at Swan Creek, Michigan, as the result of a collision between an automobile in which he was riding and a train of the Michigan Central Railroad Company.
“That the said company, while denying all liability in the matter, has offered and is prepared to pay in settlement the sum of five hundred dollars ($500).
“That your petitioner has investigated the facts of the accident, and believe said offer to be fair and for the best interests of the estate to accept the same.
“Wherefore, your petitioner prays your honorable court to authorize him to accept and receive the said sum of five hundred dollars ($500) and to execute a release in full acquittance of all claims against said company for injuries suffered and death sustained by said deceased.”
On the same day an order was entered by the court, reading as follows:
“Oh reading and filing the petition of Carl A. Muehlenbeck, administrator of' said estate, praying that he be authorized to compromise and settle a certain claim he holds against the Michigan Central Railroad Company for the sum of five hundred dollars ($500) and it appearing to the court that it would be for the best interests of said estate, it is ordered that said administrator be, and he is hereby authorized to accept and receive said sunt and to execute a release in full acquittance of all claims against said company for injuries suffered and death sustained by said deceased, upon payment to him as such administrator, of the sum of five hundred dollars ($500).”
The $500 was paid to the administrator by the railroad company, and he executed a receipt and release pursuant to the terms of the order, and afterwards turned the money over to the duly appointed guardian of the minor son of the deceased.
On December 10th following, the administrator filed a claim for compensation under the workmen’s compensation act, a report of the accident having theretofore been made by Ederer & Company. A petition, for the hearing of such claim was filed, signed by both the administrator and the guardian. Compensation was denied by the deputy commissioner. On review, the board awarded compensation for 300 weeks at $14 per week, together with funeral expenses. This award the defendants review by certiorari.
The defendants claim that the petition filed in the probate court, the order made thereon, and the release executed pursuant thereto establish an election to proceed against the wrongdoer, and operate as a bar to this claim for compensation. The conclusion reached by the department is thus stated:
“Respondents contend that applicant has elected to proceed against the Michigan Central Railroad Company, the third party responsible for the accident in this case. The administrator of the estate received a $500 settlement from the railroad company and the same was turned over to the applicant’s guardian. The administrator testified that this $500 settlement was for the damage to the truck owned by deceased. The petition for permission to make the settlement and the order of the probate court indicates that it was made for the injuries suffered and death of deceased but the administrator stated he had no intention of settling for the death of deceased, but rather for the damage to the truck.”
The finding as to the intention of the administrator is based on his testimony as follows:
“Q. In reference to this paper, this typewritten paper Exhibit 1, signed by C. A. Muehlenbeck, administrator, how did you happen to sign that? * * *
“A. Well, the railroad company man wanted to settle for the loss on the truck and it was settled in the judge of probate office.
. “Q. You had nothing to do with the preparing of the paper?
“A. Absolutely not.
“Q. Was it prepared by the railroad people themselves ?
“A. I imagine it was.
“Q. What did they say to you, if anything, if you didn’t take five hundred dollars you would not get anything?
“A. Well, we could either take five hundred dollars or nothing.”
No mention was made of an injury to the truck in either the petition, order or release. The guardian, in answer to a question put to him by the deputy commissioner, “Was that five hundred dollars paid on account of the accident to your son?” answered “Yes.”
In City of Grand Rapids v. Crocker, 219 Mich. 178, after a full consideration of the entire act and the purposes sought to be accomplished by it, we held that the word “employee” when used therein embraced also the dependents of the employee;
“That in case of the death of the employee the dependents may elect to proceed against the wrongdoer or to take compensation under the act; that an election to take under the act is a bar to an action brought by an administrator against the wrongdoer.”
It necessarily follows that if the administrator elects to proceed against'the wrongdoer and makes settlement with him, after due authorization from the probate court, he may not proceed against the employer under the act. LaLonde v. Jennison Hardware Co., 219 Mich. 194.
The proceedings in the probate court, followed by the execution of the release by the administrator, constituted an election to proceed against the railroad company, and barred the right of the defendant to recover compensation under the act. Had the settlement been procured by fraud, it might have been set aside in a suit in equity brought against the railroad for that purpose. But, founded as it was upon a court procedure, it may not be attacked in this collateral proceeding.
A somewhat similar question was presented in Smith v. Port Huron Gas & Electric Co., 217 Mich. 519. The plaintiff, who had been injured while in the employ of the Mueller Metals Company, entered into an agreement for compensation under the act with the insurance company carrying the risk of his employer. This agreement was approved by the industrial accident board. Plaintiff, declining to accept any payments under it, brought an action against the Port Huron Gas & Electric Company, claiming liability on its part for negligence causing his injuries. The defendant in that suit insisted that plaintiff had elected to proceed under the compensation act. The plaintiff was permitted “to show that he did not intelligently sign the contract with the Mueller Company and that his signature was procured by the fraud of the agents of that company.” He recovered a judgment. On review in this court, it was held “that the order of the board approving the contract * * * was a bar to plaintiff’s right to recovery,” and that “it may not be impeached for fraud in this collateral proceeding.”
Under the holding in City of Grand Rapids v. Crocker, supra, the employer or company carrying its risk, if adjudged liable to pay compensation under the act, is subrogated to the rights of the administrator and may recover from the “wrongdoer to the extent of the liability imposed on him under the act.” Should the award in this case be affirmed and action brought against the wrongdoer, the release executed by the administrator would be a bar thereto, and the burden would be cast on the employer to have it set aside. It is clear that it cannot be attacked in this proceeding before the commission, in which the railroad company is not a party.
The award is reversed and set aside.
McDonald, C. J., and Clark, Steere, Fellows, and Wiest, JJ., concurred with Sharpe, J. | [
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Bird, J.
By occupation plaintiff was a farmer. In January, 1924, he made a contract to haul logs for defendant lumber company for $10 a thousand. The lumber company was carrying on operations in the vicinity of plaintiff’s home. Plaintiff furnished his own team and equipment, and cared for them. While on the highway with a load of logs his rear axle broke and threw him to the ground and seriously injured his head. Application was made to the department of labor and industry for an award. The board of arbitration made an award and it was affirmed on review by the full board.
Defendants resist the claim on the ground that plaintiff was an independent contractor and not an employee within the meaning of the compensation law. In quite a similar case on the facts the following test was laid down to guide in determining whether one was an employee or independent contractor:
“We are of the opinion that the test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.” Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385 (Ann. Cas. 1918C, 664).
This test was applied in Opitz v. Hoertz, 194 Mich. 626, and in subsequent cases.
The contract of the parties was oral and provided for compensation at the rate of $10 per thousand feet. Plaintiff was to use his own team and equipment, and was usually paid every Tuesday after the logs were scaled. It appears that plaintiff worked when he pleased and laid off when he pleased. He could draw a large or a small load, and select his own highway. It appears that the defendant lumber company directed where and how the logs should be unloaded and piled in the railroad yard, and directed what logs should be hauled. It also had the right to terminate plaintiff’s employment at any time and to direct that no work should be done on certain days. The contract did not provide that plaintiff should haul any definite number or amount of logs, and Mr. Cochrane, who had charge of the business, testified that plaintiff had no authority to hire another man and team in his stead, or to hire an additional man and team.
The question of determining whether plaintiff was an employee or an independent contractor is one not without difficulty, as is usual in such cases. Plaintiff, when at work, appears to have been treated very much like the other employees that were driving the company’s teams, except the fact that the company did not direct the number of loads nor the size of them which should be drawn daily by him, nor did it provide that he should work every day. The manner of paying plaintiff by the thousand feet made the company rather indifferent to these details. In the essentials the company appears to have controlled. It directed what logs should be drawn, where they should be drawn to and how they should be piled. It selected its own time for scaling the logs and making payment for the hauling. There was no definite amount or number of logs to be hauled, as is usual in cases of independent contract. The question as to how long plaintiff was to work and whether he should work at all were also reserved by the company. And it would have been no violation of the contract if plaintiff had quit at any time. It appears that plaintiff had no right to substitute another team for his own, nor to employ an additional man and team. We think there is enough in the testimony to support the conclusion of the board that plaintiff was an employee, although the case is a close one.
Defendants are of the opinion that this case ought to be ruled by Polka v. Lynch Timber Co., 227 Mich. 606. It is similar in that in both cases plaintiff was paid not by the day but by the amount of work he did. They differ, however, in this: In the Polka Case the amount of work to be performed was definite, and Polka could employ what labor he chose to assist him. He was under obligation to do a stated amount of work, and could not be legally discharged if he were doing his work according to contract. These elements were not present in the case at bar.
The award will be affirmed.
McDonald, C. J., and Sharpe and Moore, JJ., concurred with Bird, J. | [
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Fellows, J.
Plaintiff owned some stock in the Springfield Body Corporation. Defendant Woods, a broker, who will hereafter be referred to as the defendant, sold it for him for $1,925. The testimony fairly shows that it was at least tacitly understood between the parties that defendant might invest a portion of the proceeds in the purchase of stock for plaintiff in such company as defendant should select. April 3, 1917, plaintiff received from defendant $425. The balance was used by defendant to purchase for plaintiff stock of Mineral Oil Paint Company, a Pennsylvania corporation of which defendant was president. ' Defendant caused a certificate of stock in the company to be issued to. plaintiff on April 20th and signed the same as president and forwarded it from Detroit to plaintiff in Ann Arbor, who there received it April 23d. The facts with reference to the approval of the sale of the stock of this company by the Michigan securities commission were these: There was a hearing on the company's petition April 11th, and as a condition of its sale the company was required to place in escrow 13,600 shares of stock; on April 18th this was modified by reducing the number of shares sis an escrow to 3,000; on April 25th this condition had been complied with and the sale of the stock was approved and the certificate provided for in section 11953, 3 Comp. Laws 1915, was issued. From the facts established, a jury would be justified in finding that defendant, acting as president of the company and in behalf of the company, sold to plaintiff through himself $1,500 of the stock of the company before its sale had been approved by the commission.
It is urged that there is a fatal variance between the declaration and the bill of particulars. The declaration counts on a sale in violation of the blue sky law, so-called, and while the bill of particulars recites that defendant invested the money in the stock of the company without plaintiff’s consent, it also, recites that:
* * * “said investment was made on and prior to the 20th day of April, 1917, in violation of the provisions of section 11958 of the Compiled Laws of 1915.”
It will thus be seen that both the declaration and the bill of particulars seek recovery based on a violation of the blue sky law. There was no fatal variance.
Both parties seem to have proceeded on the theory that in order to permit a recovery it was necessary to establish that defendant was a dealer. In this they were in error. Section 11958, 3 Comp. Laws 1915 (then in force), in part provides:
“It shall be unlawful for any investment company or dealer, or representative thereof, either directly or indirectly, to sell or cause to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner whatever in this State, any stocks, bonds or other securities (except as expressly exempted herein), unless and until said commission has approved thereof and issued its certificate in accordance with the provisions of this act.” * * *
In Edward v. Ioor, 205 Mich. 617 (15 A. L. R. 256), this court said:
“The defendants appeared by separate counsel and upon the argument it was strenuously urged that there was no liability as to some of them. But the record discloses they were engaged in a common enterprise, in consummating a transaction in face of, and contrary to, the terms of a penal statute. Under such circumstances we cannot say as matter of law that any of them should be exonerated from liability.”
In Thompson v. Cain, 226 Mich. 609, the defense was that defendant Cain did not actively participate in the sale. In reversing the case for instructions which materially limited defendant’s liability, we said:
“We are persuaded that these instructions incorrectly limited the liability of the defendant for participating, if he did participate, in a sale of stock in the face of and in violation of a penal statute. The action is not one for fraud but is based on the theory that the same is in violation of a penal statute and therefore void. A violation of the statute is made a misdemeanor (3 Comp. Laws 1915, § 11967). All aiding and assisting in the commission of a misdemeanor are principals. People v. Rice, 103 Mich. 350; People v. Barnes, 113 Mich. 213; People v. Wright, 90 Mich. 362; 16 C. J. p. 120. Hence if the defendant actively aided and assisted the agents Raymond and Thompson in making the sale, he violated the blue sky law whether he profited by the sale or not.”
Nor is it important that plaintiff did not receipt for the stock until some days later. When the stock was received by him he was in quarantine, and while receiving mail he was not permitted to send any out. As soon as the quarantine was lifted, he sent his receipt.
In People v. Hartman, 228 Mich. 171, the arrangement did not contemplate a delivery of the stock and it was urged that there had been no violation of the blue sky law. It was there said:
“If not a completed sale, it was clearly an offer or agreement to sell and within the letter as well as the spirit of the law.”
The rescission of the transaction was within a reasonable time after plaintiff learned that the sale to him was invalid. The suit was not brought for several years thereafter. It was, however, brought within the period of the statute of limitations. Delay in bringing the suit less than the statutory period does not defeat recovery.
Upon this record defendant was the prime mover in the sale of stock of a foreign investment company prior to its approval by the Michigan securities commission ; under our former holdings, he is liable. The only error we find, and it is one neither party complains of, is the direction of a verdict for the company. It likewise was liable. This error is one we can not review and we only mention it that the profession may not misconceive our holding.
The judgment is affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Clark, J.
Defendants, assigning error, say that the evidence shows no negligence on their part, and that plaintiff’s decedent was guilty of contributory negligence as a matter of law. About noon, August 2, 1924, plaintiff’s decedent, Peter N. Pline, was driving a Ford car west on a highway near Grand Rapids, known as Alpine road. Defendant Edna Parsons was driving a Hudson sedan, owned by her husband, the other defendant, south on State trunk line M-54, a paved road, 18 feet wide. As he approached the intersection, deceased’s view to the north was obstructed by bushes along the roadside (except a space of about 20 feet about 60 feet east of the pavement) until he reached a point 34 feet from the center of the trunk line, from which point his view to the north, at least 1,200 feet, was unobstructed. On the Alpine road there was a stop sign 75 feet from the east side of the pavement. Deceased stopped there, and, at a speed, according to plaintiff’s witnesses, of 7 or 8 miles an hour, then attempted to cross the trunk line. The Hudson car was approaching the intersection at a speed, according to plaintiff’s witnesses, of 50 to 55 miles per hour, or more. North of the intersection, 521 feet, was a culvert. A railing on the east side of the pavement ended 500 feet north of the intersection, and a railing on the west side ended 252 feet north. A maid of Mrs. Parsons rode the rear seat of the. sedan. She testified:
“Just north of that cross road, a little way down the hill, was a bridge, a little culvert with some railing along there. I saw Mr. Pline’s car when he came out from behind those bushes right at the corner of the fence. I saw him when he came in sight there at that time. I was in the Parsons car away down there by the culvert, down by that little bridge. We had crossed the bridge. We were down in the valley and right near the bridge. We just crossed over the bridge when I saw him coming in sight past those bushes. I remember there was some railing down there. To the best of my knowledge, there seemed to be this white guard rail on my right-hand side and on my left-hand side, at this little bridge. At the time I first saw Mr. Pline, our car was still down there between these railings, but not on the bridge. These railings go both ways from the bridge. I don’t think we were past the railing at the time I saw him. To the best of my knowledge we were out; just got past them. We were not on the culvert. When I first saw him, we had just got past the bridge; I don’t know how many car lengths. I would not try to estimate it because I could not. We were down below the hill. When I saw Mr. Pline coming out from behind these bushes, he went straight across the road. At the time I saw him come .out and start to go across, we had just crossed the bridge and were down at the foot of the hill.”
Assuming the speed of the Ford car to have been 8 miles and that of the Hudson to have been 55 miles, counsel, by computation, have placed the Hudson car 238 feet north of the intersection at the instant that the Ford car reached the point 34 feet east of the center of the intersection. There is testimony that when the Ford reached the edge of the pavement, the Hudson was then about 8 or 10 rods north of the intersection. Testimony adduced by defendants tends to show the speed of the Hudson to have been about 30 miles, that of the Ford to have been about the same, and that deceased was to blame for what happened, but on the questions for consideration the facts must be viewed in the light most favorable to plaintiff and they have been stated accordingly. There is testimony that Mrs. Parsons, approaching the intersection, was driving at an excessive and unlawful rate of speed. This was cogent evidence of negligence. Babbitt on Motor Vehicles (3d Ed.), § 522.
Respecting the question of contributory negligence of the deceased, we consider section 5, subd. a, Act No. 96, Pub. Acts 1923.
“When motor vehicles approach an intersection of a State trunk line highway and any other highway at the same time, the vehicle proceeding on the State highway trunk line shall have the right of way.”
This regulation does not apply unless there is a car on the favored road near enough to demand the right of way, and this right depends to some extent upon the relative positions of the vehicles. Deceased was not required to refrain from attempting to cross merely because defendants’ car was in sight, distantly approaching. If the Hudson car was so close to the intersection as to indicate, reasonably, to the deceased, that there was danger of collision if he attempted to cross, then it was his duty to wait and permit it to pass. It was the duty of each driver to use due care to avoid injury to others. If the circumstances were such as to induce in the mind of the deceased, acting as a reasonably prudent man, the belief that he had time and opportunity to cross, he cannot be said to be negligent. He was not bound to know at his peril that the other car was exceeding the speed limit.
“The regulation comes into force only when travelers are approaching the crossing so nearly at the same time and at such rates of speed that, if each proceeds without regard to the other, a collision or interference between them is reasonably to be apprehended.
“If a traveler, not having such right of procedure, comes to the crossing and finds no one approaching it upon the other street within such distance as reasonably to indicate danger of interference or collision, he is under no obligation to stop or to wait, but may proceed to use such crossing as a matter of right.
“He may then claim the right of way under the general rule that the first arrival at the intersection has the prior right. Hence, it is frequently a question for the jury as to which party has the right of way.” Huddy on Automobiles (7th Ed.), pp. 295, 296.
Of the effect of excessive speed it is said in Berry on Automobiles (4th Ed.), § 907:
“Under an ordinance providing that when automobiles approach a street crossing from intersecting streets ‘and the two vehicles are traveling at speeds that will bring them simultaneously to such intersection, the vehicle on the right shall have the right of way,’ a driver of an automobile who is observing the law of the road is not required to discover at his peril the approach of one who is violating the law and yield him the right of way.
“So, where it was shown that the plaintiff approached a street crossing within the allowable rate of speed, and that defendant, approaching the same crossing from the intersecting street, was two or three times farther away from the point where their paths would intersect, it was held that the plaintiff might assume that the defendant was keeping within the lawful limit of speed, in the absence of knowledge to the contrary, and that the two vehicles were traveling at speeds which would not ‘bring them simultaneously to such intersection.’ ”
In Ward v. Clark, 189 App. Div. 344 (179 N. Y. Supp. 466), there was a collision between a Ford car and a Hudson sedan, the latter, at the intersection, having the right of way. The court said:
“If the Hudson car had been far enough away, so that a person, in the exercise of reasonable care and prudence, would have been justified in believing that he could safely pass over the intersection ahead of the Hudson car -without danger of a collision, the driver of the Ford car would have been blameless.”
See, also, Weber v. Greenebaum, 270 Pa. 382 (113 Atl. 413); Salmon v. Wilson, 227 Ill. App. 286; Blum v. Gerardi, 182 N. Y. Supp. 297; Harris v. P. Koenig Coal Co., 223 Mich. 683.
In view of the evidence that when deceased’s car was 34 feet from the center of the intersection defendants’ car was 238 feet or perhaps a greater distance from that point, and of the evidence that when deceased’s car was just entering the east side of the pavement and had but 18 feet to go in crossing the pavement, defendants’ car was then from 132 to 165 feet distant, and having the opinion that deceased was not bound at his peril to discover that defendants’ car was approaching at an excessive and unlawful speed, we decline to hold deceased guilty of contributory negligence as a matter of law in attempting in such circumstances to cross the trunk line. That question and the question of defendants’ negligence were submitted to the jury under proper instructions.
Judgment affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
This action is brought to recover the purchase price of an order of goods. The plaintiff is a shoe manufacturer of the city of New York. The defendants are retail shoe dealers in Detroit, doing business as copartners under the name Thatcher Shoe Stores. The plaintiff, through its traveling salesman, sold to the defendants by sample on a single order, a quantity of ladies’ fancy shoes. The shoes were shipped in two separate shipments. The first shipment, which was made on December 3, 1920, was examined on its arrival by the defendants, and rejected on the claim that the shoes were not according to sample. The second shipment was made on the 6th of December, 1920, and was rejected without inspection. The defendants undertook to return both shipments by delivering them to the express company and notifying plaintiff of their action by letter. The plaintiff refused to accept a return of the goods and later, to prevent them from being sold for storage, the defendants took them from the express company and stored them. The plaintiff claims that the shoes were according to sample, that they were accepted by the defendants and that therefore they are liable for the purchase price as per order, amounting to $768.75. That in addition to this amount, there was $164.30 due on general account. In defense the defendants claimed that the shoes were not bought for general stock, but for a special trade, that they were not according to sample and were unsalable, and by reason thereof they lost $276.50 in profits, which they sought to recoup against the demands of the plaintiff. At the close of the proofs the plaintiff asked for a directed verdict, which was refused. The jury allowed the defendants $15 damages for loss of profits and deducted that amount from the $164.30 (which was not disputed) and returned a verdict for the plaintiff in the sum of $149.30. The plaintiff made motions for a judgment non obstante veredicto and for a new trial, both of which were denied, the court filing reasons in writing therefor. The plaintiff brings error.
Error is assigned on the refusal of the court to direct a verdict for the plaintiff.
Counsel’s claim in this regard is stated in his brief as follows:
“The motion should have been granted for the reason that the goods were the defendants’ from the time that they were put in the hands of the carrier at New York, having been shipped f. ,o. b. New York. * * * Thatcher’s acts in reference to the goods, constituted acceptance as a matter of law, first by offering the goods for sale, thus doing acts in relation to them which is inconsistent with the ownership of the seller.”
If defendants rightfully rejected the goods, it is immaterial that title passed on delivery to the carrier. If on their receipt it was found that they did not conform to the contract, they had a right to rescind the. sale and return them. This they did and whether they were right in doing so was a question of fact for the jury. Whether their acts in reference to the goods constituted an acceptance was also a question, for the jury.
It is further urged on behalf of the plaintiff that the defendants had no right to reject the second shipment without inspection. As we have before stated, there were two shipments, but they were on one and the same order of goods. The first shipment which was inspected and rejected comprised the larger portion of the order. The second shipment was supposed to contain 21 pairs of shoes. The plaintiff says that the contract was divisible, and that defendants could not reject the second shipment without inspection. Mr. Thatcher testified in regard to- the second shipment as follows:
“I could not accept 21 pairs out of an order, because it would be a broken lot. When you order shoes you order a run of sizes and the great difficulty in the shoe business is to get rid of what you call broken lots or broken sizes. 21 pairs or 40 pairs would be no good to me, for it would be a broken lot right away. I could not have kept them if they had been correct * * * I would not want to buy a lot of 21 pairs of shoes and offer them for sale, because the broken lines would be hard to get rid of.”
The order was for a full run of sizes and unless the defendants got all they ordered they did not want any. Having rejected the first shipment, if they did so rightfully, they were under no legal obligation to accept the second shipment, and if they were not obliged to take the second shipment it was not necessary that they should inspect it. The buyer was not bound to accept these goods in installments. The real question in the case was whether the goods conformed to the sample. If they did the plaintiff was entitled to the full purchase price on both shipments. If they did not the defendants were not liable for either shipment. The court submitted this question to the jury with proper instructions as to the rights and liabilities of the parties.
The defendants returned the shipments to the plaintiff, who refused to receive them. They remained with the express company for five months, and until after this suit was begun. The company notified the defendants that they would be sold for express charges. The defendants took them back and stored them. The plaintiff claims that in doing so they waived their former rejection and accepted the goods. We do not agree with this contention. When the plaintiff refused a return of the goods, it was the duty of the defendants to store them and in doing so the law assumes that they were holding them as bailee for the plaintiff. Uniform sales act (3 Comp. Laws 1915, § 11900).
Error is also assigned on the admission of evidence as to loss of profits and the charge of the court in relation thereto. It was the defendants’ claim that the goods were ordered for a special trade, that they were special shoes, that no substitute could be obtained in the market, and that they were entitled to special damages by way of loss of profits. Mr. Thatcher testified that if the shoes were sold their profit would be $3.50 a pair, which would give them a total profit of $276.50, on the 79 pairs. Of this amount the jury allowed them $15. Mr. Thatcher also testified:
“These shoes were ordered in a hurry-up order, on a rush order especially for my Thanksgiving and holiday trade. They were very much in demand, that is the reason I ordered them on a rush order. * * * There were customers waiting for these particular shoes. * * * I had inquiries for shoes of this particular description every day. I had no other shoes in my place that I could have sold in lieu of these. I could not get them at any other place within six weeks. High grade shoes are not carried in stock.”
Mr. Gabel, a retail shoe salesman in the defendants’ store, testified that he had a list of eight or ten customers who were waiting to be called when these shoes were received, and that he did not call them because the shoes were not according to sample and were not salable to their customers. If there was a breach of warranty under the circumstances, as appears in this case, the defendants were entitled to recover for their loss in profits. We think the facts show with reasonable certainty that there was at least a loss of $15, the amount allowed by the jury. We find no reversible error in the record.
The judgment is affirmed, with costs to the defendants.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Fellows, J.
On March 19, 1928, plaintiff, as vendee, and defendant, as vendor, entered into a written contract of purchase and sale of the premises located at 1700 Holden avenue in the city of Detroit. The terms of payment were: $10 down, $190 in 48 hours, $800 on delivery of conveyance, and $9,000 in monthly payments with 6 per cent, interest. Plaintiff was to be furnished an abstract showing good and merchantable title, and the deal was to be completed within ten days from receipt of the abstract. The agreement contained the following provision: “First party reserves the right to mortgage said property up to four thousand dollars ($4,000).” The contract was drawn by defendant’s agent with whom the property had been listed. There is a dispute as to when the abstract was furnished and this dispute forms the basis of one of defendant’s claims, that plaintiff did not offer to close the deal and tender the, $800 within the time provided for in the contract. Plaintiff, a young man, and his father and mother all testify that they went to the office of defendant’s agent, Mr. Campbell, to close the deal within the time and then tendered to Mr. Campbell the $800. Mr. Campbell, called by defendant as a witness, testifies on the subject of the time they came to close the deal as follows:
“Q. When did they want to close it, or do you know? When did they want to close it, if you know?
‘‘A. Well, they were ready to close this deal, I think it was a day before the last day that they had, the 10th day I think they were ready to close this deal then, if I remember right. As I say, they came to my place a couple of days, and it might have been three days before the last day that they had that they notified me.
“Q. You mean by the word ‘they’ the Smiths?
“A. Yes, sir; I do.”
We are satisfied that plaintiff offered to close the • deal and made the tender within the time fixed in the contract.
Defendant’s principal contention is that the contract was not drawn in accordance with the preliminary negotiations of the parties. It is quite doubtful if his answer properly alleges any fraud in procuring his signature, but we shall not apply any technical rules of pleadings as we are clearly convinced that no fraud is established and that the contract as prepared by defendant’s agent was in accordance with the agreement of the parties and was executed by defendant with full knowledge of its provisions. Defendant also insists that there was a mutual mistake. This is based (1) on his claim that it was not in accordance with the preliminary negotiations, which claim we have already disposed of, and (2) upon the claim that plaintiff was first party in the contract and that the language quoted reserving to “first party” the right to mortgage gave that right to plaintiff when it was mutually understood that defendant should have that right. This assumes that plaintiff was first party in the contract; but this is a fallacious- assumption. Up to this point in the contract neither party had been denominated as first or second party, and naming the vendor as the first party is so universally the custom that we are bound to say that the point is entirely without merit.
The written contract between the parties is the only contract before us; it was not procured by fraud, and there was no mutual mistake; parol testimony was not admissible to modify its terms. Smith v. Mathis, 174 Mich. 262; Ogooshevitz v. Arnold, 197 Mich. 203. The plaintiff has seasonably tendered performance and has kept the tender good; he was entitled to specific performance as decreed by the circuit court.
That decree will be affirmed,-with costs of this court.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Sharpe, J.
The plaintiffs are husband and wife. On November 17,1915, they resided in Austria. ■ Two of their sons, Ralph and Dusan, had come to this country several years before, and had been working for the defendant company. Ralph was accidentally killed on March 7, 1915, and Dusan on November 17, 1915. After Ralph’s death, a claim for compensation was made against the defendant, which resulted in an award of 50 cents per week for 300 weeks. After Dusan’s death, a similar claim was presented. The deputy commissioner denied compensation. On appeal, the commission found that plaintiffs were partial dependents on deceased and awarded them 50 cents per week for 300 weeks. .The plaintiffs here review this order by certiorari.
The commission had much difficulty in determining the questions presented on the proofs submitted. This is evidenced by a letter written by the chairman to defendant’s attorney, in which he says:
“We have been wondering if an award was made in this case as in the other, giving 50c per week, which would be $150 if it wouldn’t be satisfactory to the respondent company and perhaps be along the line of equity. It is so hard to separate the two cases and figure out in this case anything less or anything more than Was implied in the other decision.”
The testimony of the father was taken at his home. The testimony of both father and mother taken in the Ealph case was admitted over plaintiffs’ objection. The difficulty of securing competent and reliable proof in cases such as this is well illustrated by the facts appearing in this record. It is impractical for the employer to be represented by counsel when testimony is taken in a foreign country. It is apparent that the contributions testified to by the father in this case included some, if not all, that he claimed to have received from Ealph. The files in that case and the testimony of the father and mother then taken were, we think, admissible to show this fact. No regular contributions were made by either of the brothers. It is more than probable under the proofs that the remittances made included their joint contributions. It will serve no useful purpose to review the evidence submitted. In our opinion it sustains the findings of the commission and the conclusion reached by it.
The order is affirmed.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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FELLOWS, J.
Defendants were convicted under an information charging that:
“John B. Smith and Onie Singleton, late of the city of Flint, in the county of Genesee, and State of Michigan, heretofore, to-wit: On or about the 28th day of May, in the year one thousand nine hundred and twenty-two and on divers and other days and times between that day and the 22d day of November, A. D. 1924, at the city of Flint, in said Genesee county, did lewdly and lasciviously associate and cohabit together, he, the said John B. Smith, and she the said Onie Singleton, not being then and there lawfully married to each other, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”_
Defendants’ counsel seasonably moved to quash the information because it did not charge “that the offense was open and notorious.” This motion was overruled. The statute under which this prosecution was brought (3 Comp. Laws 1915, § 15467) is as follows:
“If any man and woman, not being married to each other, shall lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, shall be guilty of open and gross lewdness and lascivious behavior, or shall designedly make an open and indecent or obscene exposure of his or her person, or of the person of another, every such person shall be punished by imprisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars.”
It will be noted that this statute makes a statutory offense of: (a) lewd and lascivious association and cohabitation, (6) open and gross lewdness and lascivious behavior, and (c) open and indecent or obscene exposure. It will also be noted that, by its terms, lewd and lascivious cohabitation is made an offense as well as open and gross lewdness. The case relied upon by defendants’ counsel (Delany v. People, 10 Mich. 241) does not support his contention. The question there before the court was whether both parties must be joined as defendants. Mr. Justice Chbistiancy, who wrote for the court, called attention to the fact that the information did not charge a common-law offense because not charged to have been openly, publicly or notoriously committed. This but emphasized the fact that the offense is a statutory one. It is the general rule that, in charging a statutory offense, it is sufficient if it is charged in the language of the statute. Rice v. People, 15 Mich. 9; People v. Taylor, 96 Mich. 576 (21 L. R. A. 287); People v. Rogulski, 181 Mich. 481; and reasons of public policy make this general rule especially applicable to this character of cases. People v. Girardin, 1 Mich. 90; People v. Hicks, 98 Mich. 86; People v. Kennedy, 176 Mich. 384 (Ann. Cas. 1916A, 895); People v. Carey, 217 Mich. 601. The information follows the language of the statute; it is in the form prescribed by a recognized authority (Tiffany’s Criminal Law [5th Ed.], 891); it is sufficient.
In a brief charge fully protecting the rights of defendants the case was submitted to the .jury; we discover no error in it. If defendants had desired further instructions they should have preferred requests on such branches of the case as they deemed important. It was not required of the court to read the statute to the jury and his statement of the substance of it was correct.
The judgment will be affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Fellows, J.
The legislature at the 1923 session made provision for the widening and improvement of Woodward avenue between Detroit and Pontiac (Act No. 259, Pub. Acts 1923). In carrying out the project, lands owned by defendant in Oakland county were needed and the State highway commissioner instituted these condemnation proceedings under the general highway law in the probate court of Oakland county; commissioners were appointed, much testimony was taken, the question of necessity was found in favor of the State and damages awarded. Defendant here reviews the proceedings on certiorari.
On the day set for the hearing on the petition, defendant appeared by counsel who filed a motion to dismiss in connection with his answer, and which motion to dismiss should be first considered. It was and is insisted that the general highway law is unconstitutional because of defective title. We are not pointed to, and do not discover, any provisions of the act which are not germane to and covered by the title of the act. As against this objection, the act is valid (Loomis v. Rogers, 197 Mich. 265). It was also urged that the proceedings were defective because the petition did not show that a survey had been made. The petition, however, was amended over objection of defendant’s counsel in this particular and a blueprint of the survey was attached to the petition. The statute in express terms permits amendments to the petition (1 Comp. Laws 1915, § 4361). Another ground on which dismissal was asked was that there were others who had not executed rights of way and who were not made parties and that the statute contemplated a single proceeding against them all but defendant then offered no proof to sustain such allegation that there were other parties. So far as this record discloses there was nothing then offered in evidence or called to the attention of the probate court to sustain defendant’s claim. Defendant chose the proper occasion to raise the question of nonjoinder but he should have then sustained it by some proof. Not having then done so, we do not feel called upon to consider what the legal effect would be if there had actually been proof of a nonjoinder then before the court.
It is here urged that one of the commissioners appointed by the probate court was one of the county auditors of the county and that this disqualified him. No such claim was made in the probate court when he was appointed, and it is too late to raise this question for the first time here.
It is insisted by defendant that there was no proof showing the cost of the improvement or authorizing the commissioners in finding a public necessity. A careful reading of the record is convincing that defendant is wrong in both contentions. There was proof of the amount which had been paid to date of the hearing in securing the right of way and proof of the amount to be paid for this purpose in the future; there was proof that a contract had been let for a considerable amount of the work of laying the pavement and the figures were given; the commissioners could readily have determined from the testimony before them the approximate cost of the improvement. We think the testimony of Col. Waldron alone was abundantly sufficient to establish the public necessity for the improvement. There will be 28 feet on each side of the present development that will not immediately be used; it will, however, be needed soon, as the testimony discloses, for sidewalks, drainage and other public purposes. But the public authorities in dealing with streets and highways have a right to consider the future as well as the present neéds of the public (Story & Clark Piano Co. v. Ottawa Circuit Judge, 212 Mich. 1); and Col. Waldron very clearly demonstrates that millions of dollars would have been saved to the public had the original plan of the governor and judges providing for wide streets been extended and carried out. We have only to turn to City of Detroit v. Fidelity Realty Co., 213 Mich. 448, to confirm the fact that a failure to provide for the future is expensive to the public. In that case a narrow strip of land was not acquired through a slip and when it was later condemned it cost the city $18,500. There was plenty of testimony in the instant case to establish the public necessity and .upon certiorari we do not weigh it.
The award of damages was not within the range of the testimony; indeed, it was less than half of the lowest figures fixed by the State. This necessitates an examination of the case to determine whether a wrong theory was adopted by the commissioners in reaching the result. While the award of the commissioners only mentions the amount of damages awarded defendant (and each particular item making it up need not be stated), we are not left in doubt as to the theory adopted in reaching the result. Counsel for the State points out that the result was reached by deducting benefits from the damages and insists upon the right of the commissioners so to do. This presents the important question in the case. This court has held that, in the absence of a statute permitting benefits to be deducted from damages, it may not be done (Plantenga v. Railway Co., 190 Mich. 661; Detroit, etc., R. Co. v. National Bank, 196 Mich. 660). In the latter case the court was equally divided as to the disposition of the case, but all the Justices agreed that in the absence of statutory authority benefits may not be offset against damages. Counsel for the State insists such statutory authority exists. His argument is that section 2b, chapter 5, Act No. 367, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 4379 [2]), gives to the State highway commissioner the authority of the township highway commissioner to condemn lands and that this carries with it the provisions of section 23 of chapter 1 of Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4310). This section reads as follows:
“If any discontinued highway shall be upon lands through which a new highway shall be laid out, the same may be taken into consideration in estimating the damages sustained by the owner of such lands; and in like manner the benefits accruing to owners of lands by reason of laying out or altering any highway shall be taken into consideration.”
It will be noted, however, that this section deals with procedure not with power or authority of the township highway commissioner. The section of the act of 1921 referred to reads as follows:
“The State highway commissioner is hereby invested with full charge and control over roads heretofore or hereafter built or maintained by the State; and shall have the same authority to purchase or condemn land for highway purposes including lands containing gravel, stone or other material used and useful in highway construction as is or may be granted by law to township highway commissioners and to county road commissioners. The procedure that is, or may be, prescribed for condemnation proceedings instituted by board of county road commissioners, is hereby expressly made applicable to such a proceeding when brought by the State highway commissioner. Such right of purchase or condemnation shall be deemed to exist in the case of the construction or maintenance of any road built or improved solely by the State, or by the State with Federal aid, or by the State in conjunction with any of the municipalities of the State. The said commissioner may also exercise the same measure of authority as is or may be granted to county road commissioners with respect to the construction of drains when necessary for the construction or improvement of any highway within the contemplation hereof.”
This section gives to the State highway commissioner the authority of the township highway commissioner in purchasing or condemning lands, but the procedure in condemnation by county road commissioners is “expressly” made applicable. Turning to the procedure provided for in condemnation of lands by the county road commissioners (1 Comp. Laws 1915, § 4358 et seq.), we find no statutory authority to offset benefits against damages. We are con strained to hold that the commissioners proceeded on an erroneous theory in assessing defendant damages and that he was not awarded that “just compensation” guaranteed to him by the Constitution.
It follows from what has been said that the proceedings must be sustained except the award of damages which will be set aside and the case remanded for another inquest to assess the damages. Defendant will recover costs of this court.
Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. McDonald, C. J., did not sit. | [
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Sharpe, J.
Defendant reviews his conviction, on a charge of unlawfully having intoxicating liquors in his possession, on exceptions before sentence.
1. It is urged that the search warrant, under which certain evidence was secured, was issued without authority of law. The warrant described the premises as—
“the two two-story houses, one brown, the other green, on the premises situate, known and numbered as No. 704'Elizabeth street, in the city of Jackson.”
It was held in People v. Musk, 221 Mich. 578, that the description in a search warrant must point to a definitely ascertainable place. It is apparent from reading the entire warrant and the affidavit on which it was based that there was a community of occupation of the premises described in the warrant. The names of the occupants were unknown to the affiant, and were stated to be “one John Doe and Richard Roe.”
The grounds for the belief of the affiant were thus stated:
“For about a week preceding the date of this affidavit, I have watched the above places. Many men have entered the place sober, only to later come out drunk. I have seen men go into the place to come out later and go down to the railroad tracks near there where they produce bottles of moonshine whisky and drink from them. I have seen this happen from places less than 40 feet distant from them. This latter arrangement I have seen occur at least three or four times in the past week.”
Under the warrant, the officer was vested with authority to search the premises described therein. The description was definite* He was .not required to exercise any discretion in determining where the search should be made. The buildings apparently were occupied as one place of abode, and were used together as a place of public resort. In our opinion the warrant was properly issued, and authorized the search made. People v. Bawiec, 228 Mich. 32; People v. Flaczinski, 223 Mich. 650; People v. Flemming, 221 Mich. 609, and cases cited. The quotation from Meek v. Pierce, 19 Wis. 300, appearing in the Bawiec Case, is instructive.
2. The grounds for the belief of the affiant above quoted were clearly sufficient. People v. Starkweather, 224 Mich. 137; People v. Schregardus, 226 Mich. 279; People v. Flemming, supra.
3. One of the officers who executed the search warrant testified that when he entered the kitchen the defendant—
“had a tea pot or coffee pot in his hand from which there was moonshine whisky dropping onto the floor.”
The trial court read to the jury section 28 of Act No. 338, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 7079 [28]), and instructed them that if the defendant was pouring out a liquid when the officer entered for the purpose of preventing its seizure, they might find his action to be prima facie evidence of the intoxicating nature of the fluid. The charge in this respect was fully justified under the statute.
The record discloses no prejudicial error. The trial court will proceed to sentence.
McDonald, C. J., and Clark, Moore, Steere, Fellows, and Wiest, JJ., concurred with Sharpe, J. | [
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Moore, J.
John Francis Mulvihill, a boy 20 months old, on Sunday afternoon, June 19, 1921, received injuries by being struck by a street car, which resulted in his death. This litigation resulted. A motion to direct a verdict for the defendant was made and denied at the close of plaintiff’s case. A request to so charge was also made and denied at the close of plaintiff’s rebuttal. The verdict was $12,500 for the plaintiff. Motions non obstante and for a new trial were made and denied; exceptions taken and the cause removed to this court on writ of error. The accompanying diagram will help to explain the situation.
The child and its mother were in the drug store where the mother made some purchases. To enable her to open her purse she stood the child on the floor. Soon she heard the screen door slam and saw that her boy had passed through it. She hurried after him, trying to overtake him, but just failed of doing so. He ran directly across the sidewalk and into the street, and was struck by the fender Of the street car and thrown under it.
The first question calling for consideration is, Should there have been a directed verdict for the defendant? As might be expected the witnesses differed in their descriptions of what occurred. Witnesses produced by the defendant showed that as a Cadillac automobile, running from 20 to 22 miles an hour, approached Virginia Park from the north, its occupants observed the child leave the curb, and the driver of the automobile stopped the automobile about the center of Virginia Park, at a distance of about 88 feet from the child. Shortly before doing this the automobile had passed- the street car, which was going in the same direction, and was farther away from the child than was the automobile. The motorman testified he saw the child when it left the curb, and began to sound his gong and to apply the brake. The testimony is that the harder he rang the gong the faster the child ran. The motorman described in detail what he did, and testified that he did all he could to avoid the accident. On the cross-examination he testified in part:
“Q. Did you drop the fender that day before you got to Virginia?
“A. No, sir.
“Q. You didn’t drop it at Virginia?
“A. No, sir.
“Q. Didn’t drop the fender, didn’t drop that at all?
“A. I can’t remember nothing about the fender or the sand.
“Q. What part of the car hit the boy?
“A. The right corner of the front fender.”
On the direct-examination he said:
“Q. Now, you say you were endeavoring to ring .your bell and apply your brakes, after you had seen the child, you were resting on your left foot; and operating the gong with your right foot?
“A. With my right foot, yes, sir.
“Q. And what did you have to do in order to drop the fender?
“A. You will have to rest on the next foot to drop the fender. Some they have on the left side and some on the right side — just a little foot handle, you know, for to drop the fender down. I cannot tell exactly what side it was, but I know you will have to rest on one foot to drop your fender.
“Q. Well, will you state why you did not drop the fender?
“A. Yes, sir; I did not drop the fender because I did not have a chance to drop it.”
Then on the cross-examination he said:
“Q. If you drop a fender on these cars it drops clear down and nothing can get under the fender of a car?
“A. Yes, sir, clear down.
_ “Q. In other words, if you are coming along and this (indicating) is the street car track and my pencil—
“A. Yes, sir.
“Q. —were a child, you would drop the fender down, here (indicating) ?
“A. Yes, sir.
“Q. It goes clear down to the pavement?
“A. Yes, sir.
“Q. And the child would go up on top of tire fender?
“A. Yes, sir.
“Q. That is true, isn’t it?
“A. Yes, sir.
“Q. If you leave the fender up there is room for the child to go under the fender?
“A. Yes, sir.
“Q. And that is what happened in this case, the child went under the fender, didn’t it?
“A. Yes, sir.
“Q. Now, isn’t it true that all you have got to do in this car is to put your left foot on a clamp and the fender drops that (indicating) quick; it is on a spring?
“A. Yes, sir.
“-Q. Yes, sir; and you used the right foot continually all this time donging on the bell?
“A. Yes, sir.
“Q. And you used the right foot continually all this time donging on the bell; and the harder you rang the bell, the harder the child ran; isn’t that true?
“A. Yes, sir.”
One might query why a competent motorman should not know where in this car the foot handle was that would drop the fender if pressed. And the inquiry might also be made, why the motorman did not drop the fender instead of spending so much time with the gong. There was testimony that the motorman began to apply the brakes as soon as he saw the child.
There was other testimony from a witness produced by the defendant, we quote:
“Q. Did .you feel the power applied to the brakes when you were crossing Virginia Park?
“A. I will say he did; yes.
“Q. Well, then, he did apply the brakes before he hit the child ?
“A. Yes, sir, he did, in the middle of Virginia Park and about in the middle of the road and put on brakes —he had the brakes on.
“Q. And you felt them when you were going across Virginia Park?
“A. Yes, sir; yes, sir; very slow then, then he started up again and the other 50 feet this child got hurt.
“Q. When he started out did you feel him putting on the brakes? As he was crossing the middle of Virginia Park?
“A. Yes, sir.
“Q. And he kept those brakes on until the child was hit?
“A. No, no. He loosened up the brakes and started up his right-of-way to go ahead.
“Q. How far away was he then from the child when he put on the brakes finally?
“A. About five feet when he put the brakes on for sure that he knew he was going to hit and the child was going to run across the track.”
The jury was instructed over and over again that, if the motorman did all that a reasonably prudent man should do, they should return a verdict for the defendant.
The case was a border line case, but we think it presented a question for the jury. Schoepper v. Hancock Chemical Co., 113 Mich. 582; Woods v. Railway Co., 108 Mich. 396; Yonkus v. McKay, 186 Mich. 203 (Ann. Cas. 1917E, 458); Bayer v. Grocholski, 196 Mich. 325; Ricketts v. Froehlich, 218 Mich. 459.
Complaint is made of the argument of counsel. We do not think in the absence of an objection, that we can say this argument was reversible error. Samberg v. Knights of Maccabees, 158 Mich. 570 (133 Am. St. Rep. 396); Greenleaf v. Lambert, 192 Mich. 411; B. F. Goodrich Rubber Co. v. Wheel Co., 196 Mich. 605.
Complaint is made of that portion of the charge upon the question of damages in which reference is made to the present worth of the child’s probable earnings. It is not claimed that what was said was not a proper statement, but it is claimed that the judge should have informed the jury how to compute the present worth of the probable earnings. Counsel did not prefer any request upon that subject. If they had we have no doubt the trial judge would have elaborated upon that subject.
We do not think it can be said the record presents a case where there is reversible error. The argument of counsel is the subject of proper criticism, and should not have been made, and we think is reflected in the verdict. We have a case, however, where we must consider whether the verdict is excessive. The child lived about 40 hours after the injury. It would be more than 19 years, if he had lived, before the child would begin to earn anything for himself.
There is no "hard and fast rule for computing damages in such a case. The question of the measure of damages in the case of young children has been before this court in a number of instances. Some of the cases are Love v. Railroad Co., 170 Mich. 1; Fishleigh v. Railway, 205 Mich. 145; Swaczyk v. Detroit Edison Co., 207 Mich. 494, and Wilson v. Railway, 208 Mich. 411.
We think the verdict is clearly excessive. If the plaintiff will remit thereof to $5,000 within 30 days after this opinion is handed down the judgment to that amount will be affirmed. ' Otherwise the judgment will be reversed and a new trial granted to the appellant.
McDonald, C. J., and Bird and Wiest, JJ., concurred with Moore, J. | [
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Steers, J.
Defendant Percy J. Dillon is executor of the last will and testament of Emma McKellar who resided at Hudson, Lenawee county, Michigan, at the time of her death on February 23, 1923. Her will is dated October 14, 1921, and was duly admitted to probate in the probate court of Lenawee county on June 4, 1923. By it testatrix left a house and lot in Hudson and one-half of her personal property to her three sisters; and the remaining one-half of her personal property to her sister-in-law, Carrie Campbell. Dillon was named as executor in her will. The personal property which she left consisted mostly of securities valued at between $35,000 and $40,000. The executor’s bond was fixed by the court at $80,000. Plaintiffs Margaret Faulds of Bay City and Carrie Bowen of Port Huron, Michigan, together with Adah Williams of London, Ontario, are the surviving heirs-at-law of Dr. Duncan McKellar, former husband of said Emma McKellar. He died at Hillsdale, Michigan, on July 7, 1917. Defendants John and Mason Bryant, Mary Tuttle and Norton Bryant are respectively brothers, sister and nephew of Emma McKellar and intervening defendants. While said estate was in process of administration and before it had been distributed, plaintiffs filed this bill alleging that by agreement between Dr. McKellar and his wife, Emma, one-half of said personal estate left by her was a “trust fund in the hands of said executor for the benefit of the legal heirs of said Duncan McKellar, deceased,” the relief asked being:
“That this honorable court shall decree the one-half of said estate to be a trust fund in the hands of said executor for the benefit of the legal heirs of the said Duncan McKellar, deceased.
“And that the said Percy J. Dillon, said defendant, may be compelled, by the decree of this honorable court, specifically to perform the said agreement between the said Duncan McKellar and Emma McKellar, both deceased, and pay to the plaintiffs and Adah Williams, or their legal representatives, the one-half of said estate now pending in the probate court of said county.
“And that the said Percy J. Dillon, as executor, be restrained by an order of this court from distributing or paying out to the heirs of the said Emma McKellar, deceased, the one-half of said estate, until the further order of this court.”
Defendants pleaded issuably in denial. The case was duly heard on pleadings and proofs and taken under advisement by the court. An opinion was thereafter rendered in which the court held plaintiffs had failed to sustain the allegations of their bill by a preponderance of convincing proof, and a decree dismissing the bill was filed August 7, 1924, from which plaintiffs have appealed.
It was shown that Dr. McKellar practiced his profession in Hillsdale for over 30 years, just how long does not appear. The record does not disclose his or his wife’s age at the time of their deaths or marriage. They were married in 1904. They were then- well along in years and each possessed of some means, but how much either then had is not disclosed. They lived in Osseo, Hillsdale county, for a time after their marriage and then moved to the city of Hillsdale where they were living in a home of their own held in their joint names as tenants by entirety at the time of his death in 1917. Soon after his death she moved to Hudson where she had relatives and made her home there until her death between five and six years later. The testimony indicates that their marriage relations were pleasant and their home life congenial. They were understood to be well off and each possessed of independent means, but the statement in plaintiffs’ brief that “each had about the same amount of personal property” is apparently based on inference. That the doctor was solicitous of his wife’s welfare and desired that she should have available for her own use and benefit whatever he left in case she survived him is fairly shown, but just how much he did have or leave does not clearly appear. He apparently gave to her before he died or left to her by will all he had. There is no written evidence that any of it was impressed by a trust. Plaintiffs’ theory is that there was an oral trust by agreement, stated as follows:
“No children were born as a result of said marriage. They each had about the same amount of personal property, and entered into an agreement to pool their personal property and fix it so that the survivor could have the use of the whole of their collective property as long as he or she might live, and at the death of the survivor of them one-half of their personal property should go to the heirs of Duncan McKellar, and one-half to the heirs of Emma McKellar.”-
Whatever may have been previously talked, prec-atory or otherwise, the first definite move the doctor actually made directed to a disposition of his property in anticipation of death was in the winter of 1915 after he had become crippled by the loss of his foot. That is shown by the testimony of plaintiffs’ first witness, Mrs. Blanche Wolcott, and some 10 assignments of mortgages by him to his wife which Mrs.- Wolcott drew up. She was an old acquaintance of the McKellars and an occasional visitor at their house. She had worked in the register of deeds’ office and at abstracting for some years. The doctor had been her family physician and she had drawn up some papers for him at different times and thought she did most of their conveyancing after 1913. She stated that she was called there at one time in the fall or winter of 1915 to make a lot of assignments. Of this transaction she testified in part:
“I said, ‘If you will state what you want, we will go at it.’ We had, previous to this, talked- of the disposition of the property, and he says, Dr. McKellar spoke and says, ‘Well, I want to remember Emma first,’ or ‘look out for Em. first.’ He made the remark in that substance. I told him various ways in which he could dispose of his property. * * *
“Q. Did he say about anything going to his relatives ?
“A. I think so. I told him he could have it transferred to some disinterested party and then have it come back to them in joint title, if he wished it in that way. ‘Well,’ he says, T will look out for Em. first.’ He said ‘Em. and I have an understanding and I will look out for Em. first.’ He might have said ‘agreement.’ As I remember he said, ‘Em. and I have an understanding about our property and I want to look out for her first.’ He did not tell me what the understanding was, I never asked him. I proceeded to make an assignment of his mortgages and notes and bonds. I assigned them to Emma McKellar. I also made some papers from her to him. There were quite a few to make from her to him, I could not remember positively what they were.” * * *
Cross-Examination.
“Q. And you remember of drawing assignments of mortgages from her to him?
“A. I drew quite a good many papers, of course, I have no way of remembering those now. I think T drew assignments from her to him. That is my recollection.
“Q. Are you sure about that?
“A. I say that is my recollection.”
Redirect.
“But, as I remember it now, he says, ‘Em. and I have an understanding about our property.’
“Q. Is that your best recollection of his words?
“A. Yes, that is my best recollection. He might have said ‘Em. and I have an agreement.’ He conveyed the idea to me that there was something.”
If they had agreed to pool their personal property and impress it with a trust, and called in Mrs. Wolcott “to draw the necessary papers to carry out their agreement,” as plaintiffs’ counsel claim, her and their efforts to that end as she relates them consisted of some assignments from the doctor to his wife of securities and some assignments from her to him in connection with which he stated there was an understanding between him and his wife about their property, or conveyed to the scrivener an idea “that there was something,” and he would “look out for Em. first,” which he apparently did by assigning to her about $10,000 worth of mortgages with no suggestion of a trust or any other conditions. Her testimony indicates that she drew up other assignments from the doctor to his wife and “quite a few” from his wife to him but leaves to conjecture their nature and value.
Whatever the reason, the next move by Dr. McKellar and his wife for disposition of their property in anticipation of death was by wills which Mrs. Wolcott testified she did not draw and had never seen, but was; told of them by Mrs. McKellar, who did not tell their contents but said that there were other matters besides the assignments which they wanted to look after “and for that reason they had made their wills.”
On July 10, 1916, Mrs. McKellar deposited with the probate judge of Hillsdale county for safe keeping two wills, one made by herself and the other by Dr. McKellar. Both remained on deposit in the probate office until after the doctor’s death, about a year later. Soon thereafter she withdrew her will, on July 24, 1917, while his remained in the probate office and was later admitted to probate. It is dated July 10, 1916, and, omitting formal parts, reads as follows:
“Bearing in mind that my good * wife, Emma McKellar, has faithfully assisted me in the accumulation of my property and in ministering to me during sickness and affliction, as well as in time of health, I hereby give, devise and bequeath to her all my property, both real and personal wheresoever situate, of which I may die seized and possessed.”
On November 13,1918, Mrs. McKellar petitioned the probate court of Hillsdale county for admission of her husband’s will to probate, giving in her petition the estimated value of decedent’s estate as: “Real estate $ — no— or thereabout; personal estate, $200.00 or thereabout, as I am informed and believe.” Also stating that “the names, relationship, ages and residences of devisees, legatees and heirs-at-law of said deceased are as follows:
“Your petitioner, widow, Hillsdale. Carrie Campbell, sister, London, Canada. Margaret Faulds, sister, Saginaw, Michigan. Addie Stevens, niece, child of Addie Stevens, a deceased sister, Port Huron, Mich. All of legal age.”
She on the same date filed a petition that she be appointed' special administrator of said estate to collect and pay over to Addie Stevens the sum of $200 which deceased had deposited in a bank as trustee for her. This petition was granted on the same day, she being appointed special administrator on furnishing an approved bond in the sum of $400, which she did. On December 6, 1918, an order was made, after due notice and hearing admitting the doctor’s will to probate and appointing his wife, Emma, admin-istratrix. No further proceedings in the probate court are shown to have been taken in relation to his estate.
It is conceded that a trust of personal property may be created by parol.
“A trust may frequently be inferred from the facts and circumstances of a particular case, and its creation does not depend upon the use of a particular form of words.” (Quoting from the syllabus.) Chadwick v. Chadwick, 59 Mich. 87.
Of the essentials of a declaration of trust it is said in 26 R. C. L. pp. 1182, 1183:
“The owner and donor of personal property may create a perfect or complete trust, by his unequivocal declaration in writing, or by parol, that he himself holds such property in trust for the purposes named. * * * There is no prescribed form for the declaration of a trust; whatever evinces the intention of the party that the property of which he is the legal owner shall beneficially be another's is sufficient. The intention must be plainly manifest, and not derived from loose and equivocal expressions of parties, made at different times and upon different occasions; but any words which indicate with sufficient certainty a purpose to create a trust will be effective in so doing. It is not necessary that the terms ‘trust’ and ‘trustee’ should be used. The donor need not say in so many words, T declare myself a trustee,’ but he must do something which is equivalent to it, and use expressions which have that meaning.”
In support of their contention that there was an agreement between the doctor and his wife impressing their holdings with a trust plaintiffs not only rely on the circumstances related by Mrs. Wolcott and shown by the records, but confirmatory testimony of other witnesses. Minnie L. Kussell, who was probate clerk of Hillsdale county for many years, testified she lived the third house from the McKellars in Hillsdale, was well acquainted with them and neighborly. The doctor used to come to the office occasionally and she remembered drawing a deed for him at one time in which he conveyed a farm in northern Michigan to a sister and nephew whom he said were needy. She thought him a good business man, bright mentally, remaining so until his death which was very sudden. She saw him two or three days before he died “and he was as bright as ever.” Soon after he died Mrs. McKellar moved to Hudson and occasionally visited Hillsdale. On several occasions she visited. witness at the office for a short time. She would come up in the morning and wanted to go back at noon. On two different visits she said in substance:
“ ‘Well, I can’t stay any longer. I must go down and see about that will I promised to make. * * * I must go and make the will I promised the doctor I would make.’ She said it twice and I think I have it pretty straight.”
Mr. Marion Lagassee, who with his wife lived next door neighbor to the McKellars from 1911 until the doctor died, testified they were on friendly terms most of the time and saw a great deal of them. He frequently visited them, though not as often as his wife. In conversations at their home regarding his property the doctor said:
“He was to leave it to Mrs. McKellar, who was to have the use of it as long as she lived, and then it was to go to his heirs. He told me that on different occasions.
“Q. Did Mrs. McKellar tell you what was to be done with her property?
“A. Why, she said it would be the same as the doctor’s, that they had an agreement to that effect. That he was to have the use of her property if he outlived her, then it was to go to her heirs. * * * After he died Mrs. McKellar said that was the agreement, too. * * * It was a few days after he died, or after the will was read, she was at our home, I remember, and she said the doctor had left her his estate, but she had to return it to his heirs.”
Mrs. Neva Lagassee, wife of Marion, testified that their houses were practically on the same lot, she knew the McKellars well, was in their home a great deal and at times helped take care of the doctor after he became afflicted. He liked to talk, “figured he was a self-made man, had acquired his own money and she had her own.” She had frequently heard him tell that his property was to revert to his side of the family.
“Mrs. McKellar was to have the use of it if she survived him and the other way round if he survived her. * * * That was the talk from both of them, whichever survived was to have the use of the property of the other. * * * It was arranged that way. They had it definitely arranged. * * *
“Q. What did they say?
“A. ‘Well,’ doctor said, ‘If I die first Em. is to have my property as long as she lives, and the use of it, then it is to go to my people because I had my property before I married her and she had hers before she married me.’
“Q. Was she present when he said that?
“A. Always. They were always together.
“Q. What did she say about her property?
“A. The same thing.
“Q. Well, what?
“A. Well, in the same way. She said: ‘If I go first, doctor is to have the use of my property as long as he lives, and it is then to go to my people.’
“Q. When was this that you heard this talk?
“A. All those years that I lived there. * * * Upon frequent occasions he told me they had an arrangement between themselves whereby the property was to go as he had told me. This continued right along. I went there all the time of his life after he moved there.”
The testimony does not indicate that either the doctor or his wife had any particular friendship with or interest in the other’s relatives. So far as shown his relatives lived in the north or in Canada. She had relatives at Hudson, where she spent the rest of her life after he died. He was shown to have helped some of his relatives when needy and to have once said to a niece in his wife’s presence when talking about money, “Well, some day I will give you all property.”
Aside from the one niece who once visited them, the record does not disclose that Mrs. McKellar was acquainted with any of the doctor’s relatives. When she applied for probation of his will shortly after he died she named as his natural heirs two sisters and a niece. That she was mindful of their agreement, desired to observe it, and lamely attempted to do so is fairly indicated. She twice told Minnie Russell on her hurried visits to Hillsdale that she must “see about” or “go and make” her will as she had promised the doctor, and she did make two wills, the oldest in 1920, which was denied probate because not executed in compliance with statutory requirements. In it she attempted to leave half of her personal property to her husband’s “three sisters,” two of whose names she had apparently forgotten, stated in the will to be “as follows: Mrs. Carrie Campbell, London, Canada, Mrs. Addie______________, Mrs.____________________ In her last will, made over a year later, she yet remembered she had a “sister-in-law, Carrie Campbell,” to whom she attempted to leave half of her personal property, but whose death preceded hers, resulting in the doctor’s entire estate going to her heirs instead of his, if not impressed with a trust, as she herself had declared after his death was the condition under which he left it to her. Her notion or knowledge of who were his heirs seemed to have been hazy. Mrs. Wolcott, who was an old friend of both and knew them well, testified to a marked difference in their mental attainments. She “could not say Mrs. McKellar was not a bright woman,” but she was uneducated, “had no business ability whatever about her * * * did not have any education to any extent. She could write her name. She never wrote me a letter, but I had written letters for her to other people.”
In the findings of the trial court it is said: “That there was an ‘understanding’ between the parties the court has not the slightest doubt,” but the court was of the opinion “there is no clear proof that the understanding was to leave one-half of the property to all of Duncan’s heirs,” and the fact that Mrs. McKellar did leave one-half of the property to a sister justified the inference “that she was honestly attempting to carry out the ‘understanding’ existing between her and her husband.”
Aside from the fact that Mrs. McKellar twice ineffectually tried to will one-half of her personal property to one or more of the doctor’s heirs, we find no evidence, direct or inferential, that they owned an equal amount of property or that what the survivor left should be equally divided between his and her heirs. Neither do we find any testimony that Mrs. Campbell was ever mentioned by them in connection with their property, or otherwise, during his life. As we read this record there is not only convincing evidence that there was an understanding as to their property, but also clear and undisputed testimony by apparently reputable and disinterested witnesses that the “understanding” or “agreement,” as directly declared more than once by the doctor and his wife to others and in the presence of each other, was that the survivor should have the use of the other’s property during the remainder of his or her life and then leave it to the other’s “heirs” or “peopleand this was reaffirmed by her after his death when she said he had left her his estate, “but she had to return it to his heirs.”
The claim is made that the doctor’s will leaving all his property to his wife negatives any previous agreement they may have made relative to his property, and to sustain the trust necessitates setting aside his will. That will was contemporaneous with one made by Mrs. McKellar, both being filed by her in the probate office for safe keeping. Before the doctor’s death she told Mrs. Wolcott, who had drawn up the assignments, of their having made wills and told her there were other matters they wanted to look after which the assignments had not provided for “and for that reason they had made their wills.” After his death she withdrew her will and what matters it contained which assignments had not provided for are not disclosed. But when his will was filed for probate the only matter she claimed was controlled or affected by it was a $200 fund deposited by him in trust for Addie Stevens. She stated under oath in her petition that he left no other estate, and made ho other or further’claim under his will.
Neither side questions the truthfulness or honesty of Mrs. McKellar. What she said and did after her husband’s death shows that she consistently recognized the agreement between them and is persuasive that she only failed in her efforts to fulfill her obligations through total lack of business ability, and ignorance of the proper course to pursue.
It is further insisted for the defense that the agreement as claimed cannot be enforced because the amount of his property is not shown and there is no proof of the sum which should go to the doctor’s heirs, while it is urged for plaintiffs that Mrs. McKellar conceded by the wills which she made that it was one-half of the personal estate she left. That may have been her inference, but the agreement on which plaintiffs’ claim of trust is based does not so show. It was “his property,” “his estate” which she was to have the use of during her life, and then go to “his heirs.” An essential in the creation of a trust is the nature and amount, or amount of the-beneficiaries’ interest, must be made certain. Whatever property the doctor may have given to his wife for life use and then to go to his heirs, the only amount made certain is the about $10,000 in mortgages assigned to her in pursuance of their understanding as to their property. Whatever other assets he may have assigned to her or she to him, their nature and amount are left in conjecture.
Limited by such uncertainties to the assigned mortgages we are of opinion that it is convincingly shown both by explicit declarations and supporting circumstances that the doctor entrusted his property to his wife for her life use and thereafter to go to his heirs, thereby creating a trust, which she accepted, and thereby impressed such trust upon the estate she left to the amount so definitely shown, under the following general rule stated in Ray v. Simmons, 11 R. I. 266 (23 Am. Rep. 447), and quoted with approval in Hamilton v. Hall’s Estate, 111 Mich. 291:
“A person need use no particular form of words to create a trust or to make himself a trustee. It Is enough if, having the property, he conveys it to another in trust, or (the property being personal) if he unequivocally declares, either orally or in writing, that he holds it in prsesenti in trust or as a trustee for another.”
The decree of the lower court will be set aside and a decree may be entered in accordance with this opinion, with costs to plaintiffs.
McDonald, C. J., and Clare, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. Bird, J., did not sit. | [
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Bird, J.
Augusta Brainard, the deceased, was a woman of limited means, and in the last years of her life was in very poor health. For four years prior to her death she lived with, and was cared for by, her daughter, the plaintiff, Vera H. Eagen. While living with plaintiff she loaned her and her husband $650, and the same was secured by a real estate mortgage. Later, and before she died, she assigned the mortgage to her son, Kellogg Brainard, in trust, to pay the expense for her care and living, and the balance, if any, to pay the expense of the last sickness and death, including funeral expenses. After her death the defendant, Kellogg Brainard, who was trustee, denied that plaintiff was entitled to anything for the care and attention she had given her mother. She thereupon made an application to the probate court to be appointed administratrix of her mother’s estate, and this order was made in due time. She then presented her account to the two commissioners appointed by the court. Subsequently she made her proofs that she took care of her mother, with the mutual understanding that she was to be paid for her services and was to receive in payment what there was left of the estate after paying expenses of the last sickness and funeral expenses. Her claim was allowed by the commissioners at the sum of $1,608. No appeal was taken from the order of the commissioners. This bill was then filed under the provisions of section 13859, 3 Comp. Laws 1915, to subject the mortgage or proceeds to the payment of her claim.
Defendant answered and charged that plaintiff’s bill for services was a fraudulent one. That no legal agreement was shown which would justify a judgment in her behalf, and that the manner in which the judgment was obtained was a fraud upon the estate. A hearing was had and the chancellor found that there was an agreement between plaintiff and her mother that she should be paid for her services after her death, and held that after the trustee had paid the funeral expenses plaintiff should be entitled to the balance, about $211, to apply on her judgment. From this decree defendant appeals and makes substantially the same claims in this court.
The question of fraud is raised because the act of plaintiff in presenting a claim to the commissioners left plaintiff in the attitude of both plaintiff and defendant, and really left the estate without any one to look after its interest. Ordinarily, when an administrator has a personal contested claim before commissioners of the same estate, it is proper practice for him to request the probate court to appoint some one to look after the interests of the estate as respects such claim. This, however, was not done in the present case. This raises a very serious question, and we should be inclined to set aside the judgment were it not for the fact that the chancellor did not accept as final in the present proceeding the conclusion of the commissioners, but instead took proofs and re-examined the basis for the judgment rendered, and found there was a contract between plaintiff and her mother, and that the judgment was reasonable in amount, but he held that if there were any question as to whether the judgment was reasonable in amount, no harm would result, as all plaintiff would receive on her judgment of $1,608 was about $211. The chancellor found no intentional fraud on the part of any one connected with the estate. Under these circumstances we think the rights of defendant and the estate were amply protected, even though the practice before the commissioners was irregular, and that there is no equitable ground for a reversal of the decree. The decree is in accordance with the wishes of the deceased, and in accordance with the terms of the trust, and was an equitable conclusion.
The decree will be affirmed, with costs against the defendant personally.
In view of the conclusion we have reached it will be unnecessary to pass upon the motion to dismiss the appeal.
McDonald, C. J., and Sharpe and Moore, JJ., concurred. Clark, Steere, Fellows, and Wiest, JJ., concurred in the result. | [
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Bird, J.
Defendant was convicted of burning a farm barn and its contents in the county of Jackson with intent to defraud the insurer, in violation of sec tion 15289, 3 Comp. Laws 1915, and the case has been removed to this court on exceptions before sentence. Defendant was arrested and given a preliminary examination before a justice of the peace. At the conclusion of the proofs, defendant’s counsel made the following motion, which was denied:
“In behalf of the respondent, Ralph Lee, I move that the complaint and warrant in this case be dismissed and the respondent discharged for the reason there is no evidence in this cause to prove the corpus delicti of the crime of arson, or to rebut the presumption that the fire which consumed the barn was the result of accident or some providential cause.”
■ Afterwards, and before trial, defendant moved to quash the information on the same grounds with the additional reasons:
“(4) Because there was no proof made before the examining magistrate to justify a finding upon the part of such magistrate that there was reasonable grounds to believe that the respondent herein may have committed any of the offenses so charged against him.
“ (5) Because the evidence introduced at the examination in this cause before the examining magistrate does not make out a prima facie case of guilt.
“ (6) Because the evidence introduced at the examination in this cause before the examining magistrate does not show that the offense of arson was committed by respondent or any other person.”
This motion was denied and defendant assigns error thereon.
The point is made by the prosecutor that no motion was made by defendant at the close of the people’s case, or at any other time, for a directed verdict and, therefore, the question cannot now be raised. We have held that where such a motion was timely made before the jury is sworn, the court will inquire into the evidence before the justice and pass upon the motion. Barnard v. Judge of Superior Court of Grand Rapids, 199 Mich. 227.
In view of this assignment we have examined the evidence taken before the justice and find that the showing made by the prosecutor was, in substance, that defendant’s mother owned a farm of 200 acres in Summit township, upon which she and defendant resided. That the barn, 30 x 70, with basement, was insured for $2,000, and ran to the mother. That the contents were insured for $2,000, the policy running to mother and son; that application was made to the insurance company a short time before the fire for increased insurance on the barn, but the application was refused. That the barn was filled with hay, and contained between 70 and 100 tons, and that its value was in the neighborhood of $20 per ton. That there were oats and other personal property of the value of $1,000. It was further shown on the morning of September 20, 1923, that the hired man, John Smith, arose, went to the barn and did the chores. That defendant did not arise until breakfast. ' After breakfast both went to the basement of the barn. They secured baskets and started to pick tomatoes. Defendant was attending to a call of nature when Smith started, and did not reach the tomato patch until about three minutes after Smith did. The patch was between 16 and 18 rods distant from the barn. They filled their baskets, and as they started for the barn discovered it was on fire in the peak of the roof at the east end. They hurried to the barn and released five horses which were kept in the basement, and rescued what property they could. • The barn and contents were entirely consumed. Toward evening the hired man went to the mail box and found a card therein upon which was partly written and partly printed these words: “We cleaned you up this time.” One witness testified to seeing defendant go to the mail box while he was at the fire and he appeared to have something white in his hand. He did not see him deposit anything therein. Subsequently the fire marshal had an investigation at a cottage near Vandercook lake, a short distance from the farm, and defendant was present, having been subpoenaed. They remained in session from early evening until early morning, and during that time it is shown that defendant admitted he wrote the card and placed it in the box to divert suspicion from himself. Other witnesses talked with defendant about the cause of the fire, but to all of them he stated he did not know the cause of the fire. To one witness he said he was relieving himself in the-stable and lit a cigar and threw the match away and it may have caused it. The stables were in the west end of the basement. The fire first showed itself in the peak in the east end. There was a hay chute which went up midway in the barn. It appeared that there was no way to get up on the mow except by a rope. The testimony concerning the card and defendant’s admission came in under objection.
The defendant’s counsel makes the point that there was no proof of the corpus delicti. In other words, that there was no proof that the bam was intentionally and wilfully set on fire, and further, that there was no proof making it probable that defendant was connected with any offense of that kind. The rule laid down in Ruling Case Law is, we think, the universal rule:
“That proof of the single fact that a building has been burned does not show the corpus delicti or arson, but it must also appear that the burning was by the wilful act of some person criminally responsible, and not as the result of natural or accidental causes, for when a house burned, and nothing appears but that fact, the law rather implies that the fire was the result of accident or some _ providential cause than of criminal design. The main fact which is to be proven in the first instance is the burning of the building. * * _ * When the fact of the burning is established, then it is necessary to show how' the act was done, and by whom.” 2 R. C. L. p. 514.
“The corpus delicti in arson is not merely the burning of the house, but that it was burned by the wilful act of some person criminally responsible for his acts and not by natural and accidental causes.” State v. Jones, 106 Mo. 302 (17 S. W. 366).
On a trial for arson if nothing appears but the mere fact that the house was consumed by fire, the presumption is that the fire was the result of accident or of some providential cause. Phillips v. State, 29 Ga. 105.
Under these rules it was necessary for the prosecutor to show that the barn burned. This, of course, was shown. It was likewise necessary for him to show, or at least make, a prima facie case that the fire was intentionally or wilfully set. We are satisfied from a review of the evidence that the prosecutor failed in this regard unless it can be said that defendant’s confession with reference to the card establishes it.
It appears tó be well settled that the corpus delicti cannot be established by the confession of the accused alone. In People v. Lane, 49 Mich. 340, the information charged defendant with murder. The corpus delicti was established by the admission of the accused. This eourt said in dismissing the proceeding:
“The respondent was convicted of an intent to murder one Allen by administering morphine to him. The evidence that any such offense was committed was the respondent’s admission. The medical and other evidence in the case tended very strongly to show that the admission was unfounded. The defendant on the trial explained his story by saying that he invented it to get up a sensation by way of advertisement for a firm of sensational doctors. The explanation was extraordinary, but on the evidence it is more credible than the confession on which respondent was convicted.
“An unsupported confession should not be received as sufficient evidence of the corpus delicti. People v. Hennessy, 15 Wend. (N. Y.) 147; Stringfellow v. State, 26 Miss. 157 (59 Am. Dec. 247); State v. Guild, 5 Halst. (N. J. Law) 163 (18 Am. Dec. 404). The respondent on the case submitted to the jury was entitled to an acquittal, and the conviction must be set aside and a discharge ordered.”
This rule was announced in the very early case of People v. Lambert, 5 Mich. 365 (72 Am. Dec. 49), where it is considered at some length. The recent case of People v. Kirby, 223 Mich. 440, affirms the rule. In this case the question is so thoroughly and recently discussed that it will be unnecessary to repeat what was there said.
If the admission, which was in the nature of a confession, be eliminated from the testimony before the justice we think what was left was not sufficient to establish probable cause that the crime of arson had been committed by anyone. Aside from the confession, there is not sufficient to connect defendant with the offense. Of course there was the fact of opportunity, but that fact nearly always exists where a farmer’s buildings are destroyed by fire. We are of the opinion that the motion to quash should have been granted' for the reasons indicated.
The judgment of conviction will be reversed and the defendant discharged. The motion heretofore made in this cause by the people to dismiss the appeal on the ground that the printed record was not filed within the rule time will be denied, without costs.
McDonald, C. J., and Moore, Fellows, and Wiest, JJ., concurred with Bird, J. | [
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Moore, J.
This suit was commenced by capias ad respondendum. In the fall of 1920, Charles Meredith sold apples valued at $159.87, which were not paid for, and he assigned his claim to the plaintiff who had also sold apples valued at $333.04. This litigation resulted in a verdict and judgment in favor of the plaintiff in the sum of $561. The case is brought into this court by writ of error. The defendant pleaded the general issue and gave notice that
“defendant will insist in his defense that he did not, either orally or in writing, make any representations concerning the solvency and financial responsibility of E. J. Countryman, as plaintiff has in his declaration alleged, and defendant expressly pleads and claims the benefit of section 11983,- 3 Comp. Laws 1915.”
The defendant groups his assignments of error under three heads, but the pivotal question is whether h.e was entitled to a directed verdict.
We quote from the brief:
“Mr. Toner was relying on Mr. Thomas alone. This testimony indicates that Mr. Toner did not consider that he had any action for fraud against Mr. Thomas. And he could not have ah action in assumpsit against him because all he claims that Thomas said, would -amount to no more than a verbal guaranty, void under the statute of frauds. * * *
“It is earnestly urged upon this court that since this plaintiff and his assignor did not rely on the collectibility of Mr. Countryman, the representations of Mr. Thomas in that regard, even if made, become of no moment, and that the court should therefore have directed a verdict for the defendant, as requested. * * *
“As previously stated, it was the claim of the plaintiff upon the trial that the proofs showed that Mr. Thomas, personally, was buying these apples, and not as the agent of Mr. Countryman. If it be granted, for the sake of this argument, that such expressions as were made use of by the plaintiff and his assignor that ‘Mr. Thomas told me he would pay me,’ and the like, may be considered as evidence that Mr. Thomas had bought the apples personally, then there exists a fatal variance between the declaration and supporting affidavits, and the proof, because of the fact that the declaration and affidavits do not allege the falsity of Mr. Thomas’ representation that he was acting as agent for Mr. Countryman. * * *
“The notice attached to defendant’s plea claimed the benefit of section 11983, 3 Comp. Laws 1915, which requires a favorable representation concerning another to be in writing in order to be actionable. The declaration and supporting affidavits charge that Mr. Thomas represented that E. J. Countryman was financially good and responsible, and was able, ready and willing to pay for the apples. Nobody testified, however, that he did this in writing, the testimony of all the witnesses being that whatever was said by Mr. Thomas was by word of mouth only. Why, then, does not this statute apply?” (citing Pearson v. Wallace, 204 Mich. 643; Ver Wys v. Vander Mey, 206 Mich. 499; Burleson v. Blair, 207 Mich. 226 [9 A. L. R. 531]; Frederick v. Hill, 226 Mich. 515; Patten v. Downer, 227 Mich. 95, and other cases).
We quote from the brief of the plaintiff:
“It was the theory of the plaintiff that the defendant represented to Mr. Toner that he was buying apples, that he was in fact buying them for Mr. Countryman who was good and responsible, that the apples would be shipped to Mr. Countryman who would send back a check for them and then he, Thomas, would pay Mr. Toner. * * *
“We claim that Mr. Thomas, trading upon his acquaintance and upon the fact that he had purchased from his neighbors before that time and received credit and had later paid, fraudulently intended just prior to leaving the State, to ‘make a clean up’ on his neighbors, and to that end told them that he was buying apples and would ship them to E. J. Countryman who would immediately send back a check and that then he, Thomas, would pay for the apples. He at that time knew that Countryman was insolvent; he knew it on the 6th day of November before he shipped any apples, before he shipped the last of Mr. Toner’s apples, on the 22d day of November, he knew that Mr. Countryman was in bankruptcy, still he insisted to Mr. Toner ‘that there was nothing to it.’ That it was a frame-up by an uncle of Mr. Countryman’s. This was false and fraudulent. It was a false representation made with a then present intent to defraud both Mr. Toner and Mr. Meredith and get their property without paying for it.”
The trial judge charged the jury at very considerable length. We quote part of his charge:
“The plaintiff cannot recover unless he has established by a preponderance of the evidence that there were apples furnished and sold by him and Meredith or one of them to the defendant and that the sale or sales of apples was or were made to the defendant by reason of representations made by defendant, which representations were false in fact and plaintiff and Meredith relied thereon. * * *
“If the plaintiff has not established by a preponderance of the evidence that the sales of apples were made by plaintiff and Meredith to the defendant, Thomas, then the plaintiff cannot recover, because if the contracts of sale of the apples were made by them to Countryman, through the defendant, Thomas, as 'Countryman’s agent, and not to Thomas, himself, but to be by Thomas resold to Countryman, then the claim of the plaintiff and Meredith is against Countryman or his estate, and not against the defendant in this case. * * *
“Fraud is the gist of this action. Fraud is never presumed, but must be proved, and the burden, as I have said, is on the party alleging fraud to prove such allegations by a preponderance of the evidence. Fraud cannot be lightly inferred, but must be proven as alleged. If the defendant is guilty of fraud, it means that he fraudulently deceived the plaintiff, or Meredith, or both, as I have already instructed you.
“If you find that the apples were sold by the plaintiff and Meredith to the defendant, Thomas, and not to Countryman, and you find that the defendant was guilty of fraud as I have- already defined it to you, then the plaintiff will be entitled to recover, if all the elements are proven regarding sale of Meredith’s apples, then for the purchase price thereof, whatever you find it to have been, and if all the elements are proven regarding both sales, then for the purchase price of both sales, and add to the amount that you find to be due for such sale or sales, interest thereon at 5 per cent, per annum from November, 1920, in other words for two years and nine months. If any of these elements regarding the Toner apples are not proven, there can be no recovery for them, and if any of these elements regarding the Meredith apples are not proven, there can be no recovery for them.”
The claim of the defendant that the apples were sold to the defendant as the agent of Mr. Countryman, and that the credit was in fact .extended to Mr. Countryman is largely based upon the testimony of the defendant and his witnesses, isolated questions and answers of Mr. Toner and Mr. Meredith, and the construction put by counsel upon the language used in the affidavit attached to the writ of capias.
It is the claim of counsel for plaintiff that it has been their consistent claim that the credit was extended to Mr. Thomas, and that this was brought about by false statements made as to the ability and willingness of Mr. Countryman to pay for the apples. The testimony was very conflicting. If the jury believed the version of the transaction given by Mr. Toner and Mr. Meredith, they were justified in returning a verdict in favor of the plaintiff under the following authorities: Beebe v. Knapp, 28 Mich. 53; Hess v. Culver, 77 Mich. 598 (6 L. R. A. 498, 18 Am. St. Rep. 421); Clark v. Hurd, 79 Mich. 130; Angell v. Lewis, 97 Mich. 9; Massey v. Luce, 158 Mich. 128; Burleson v. Blair, 207 Mich. 222 (9 A. L. R. 531); Tooley v. Hayes, 224 Mich. 25, and other authorities found in the briefs. The issues involved were submitted to the jury in a charge fully as favorable to the defendant as he was entitled to.
We have examined the other errors assigned and think them not well taken.
The judgment is affirmed, with costs to the appellee.
McDonald, C. J., and Bird, Sharpe, Steere, and Fellows, JJ., concurred. Clark and Wiest, JJ., concurred in the result. | [
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Fellows, J.
. On April 9,1923, Lewis Hodges, who had before that pleaded guilty to a charge of breaking and entering, was placed on probation (1 Comp. Laws 1915, § 2029 et seq.). March 16, 1925, the sheriff of the county filed with the clerk an application to have the probation revoked because Hodges had violated the condition of his probation in that he had upon his plea of guilty been convicted of a criminal offense, that of contributing to the delinquency of one Myrtle Miller, a minor under the age of 17 years. On the same day of the filing of this petition, Hodges was in court and from the return to the writ of cer- tiorari it appears that the probation officer was ill and unable to appear in court and the hearing on the sheriff’s petition was adjourned until April 13th following without bond and upon the promise of Hodges to then appear. He did appear on the 13th and a hearing was had, and he was sentenced on the original charge. Later his present counsel moved to set aside the sentence based on the ground that it was imposed after the period of probation had expired and was, therefore, void. We allowed habeas corpus and certiorari to review this proceeding.
We have spent much time and have examined a large number of cases in an unsuccessful search for a controlling precedent. Before the enactment of probation laws there was an irreconcilable conflict between the State courts as to the inherent power of courts to suspend sentence. All agreed that the power existed to stay sentence for the purpose of making a motion for a new trial or in arrest of judgment, or to prepare a case for review, or to apply for a pardon, or to satisfy the conscience of the judge as to the proper sentence or for kindred purposes. But upon the right of the court to suspend sentence during good behavior, or with a view of the ultimate discharge of defendant without sentence, there was discord which can not be harmonized. Among our own cases see Weaver v. People, 33 Mich. 296; People v. Reilly, 53 Mich. 260; People v. Brown, 54 Mich. 15; People v. Kennedy, 58 Mich. 372; People v. Stickle, 156 Mich. 557. So far as the Federal courts are concerned, the question was settled adversely to the exercise of the power in Ex parte United States, 242 U. S. 27 (37 Sup. Ct. 72, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355), but that case recognizes the power of congress to pass appropriate legislation. In the margin in that case will be found the citation of a large number of cases from the State courts dealing with the question.
Marks v. Wentworth, 199 Mass. 44 (85 N. E. 81), called to our attention by defendant’s counsel, is not helpful to defendant. It has long been the practice in Massachusetts “to lay the case on file,” thus suspending sentence. Of this practice it was said in Commonwealth v. Dowdican’s Bail, 115 Mass. 133:
“Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance, by which the case is put out of court; but is a mere suspending of active proceedings in the case, which dispenses with the necessity of entering formal continuances upon the dockets, and leaves it within the power of the court at any time upon the motion of either party, to bring the case forward and pass lawful order or judgment therein.”
In both the Dowdican and the Marks Cases, it was pointed out that this could only be done with the consent of the defendant. In the Marks Case the defendant objected, and the writ of mandamus was issued not to compel his discharge but to compel disposition of the case either by sentence or discharge.
While it is not necessary that a formal hearing be had to revoke the probation (People v. Dudley, 173 Mich. 389), yet we think the better practice was adopted by the trial judge in the instant case of fixing a day of hearing and giving the defendant an opportunity to be heard. He was in court, made no objection to the adjournment of the matter, agreed to be present on the day fixed, and under the circumstances must be deemed to have consented to the adjournment. The language of the Supreme Court of North Carolina in State v. Everitt, 164 N. C. 399 (79 S. E. 274, 47 L. R. A. [N. S.] 848), is quite applicable. It was there said:
“It must not be overlooked that the suspension of judgment upon terms expressed therein, at September term, 1911, was entered with the defendant’s implied assent at least; he being present, and not objecting thereto. This court said in State v. Crook, 115 N. C. 760 (20 S. E. 513, 29 L. R. A. 260), that such an order is not prejudicial, but favorable to a defendant, in that punishment is put off, with the chance of escaping it altogether, and it is presumed that he was present and assented thereto, if he did not ask for it as a measure of relief from impending punishment. The court also expressed some surprise at the suggestion that the rights of a defendant are infringed or his interests impaired by allowing him to escape for the present the toils of the law, by suspending immediate action and affording him an opportunity for reformation as a basis for permanent clemency, instead of requiring him at once to undergo the punishment of the law, for the offense of which he had been convicted. And we repeat that it is strange he should complain of the merciful consideration which the law thus extends to him.”
And in Gibson v. State, 68 Miss. 241 (8 South. 329), it was said:
“As the defendant pleaded guilty, and was liable to be immediately sentenced to pay a fine and costs, and to be imprisoned, and the court, presumably with the consent of the defendant for whose benefit it was and who did not object, suspended judgment and postponed sentence except for costs, no wrong was done to him by pronouncing at a future'term the sentence, which might have been immediately given, but was thus delayed.”
Counsel for defendant stresses the language found in section 2032, 1 Comp. Laws 1915, being section 4 of the act, that “at any time during the' period of probation” the court may revoke the probation, and points out that the order was not actually made until after the period of probation originally fixed had expired. If no action had been taken during the period of probation a more serious question would be presented. But here the petition to revoke the probation was filed within the period of probation and we think it must be held that the filing of this petition within the period of probation gave the eourt jurisdiction which was not lost by a reasonable delay incident to a hearing upon it. Had objection been made to an adjournment the court could then have pasted sentence and no question could have been raised to its validity. People v. Dudley, supra. The fact that a witness was ill, or time was given defendant to prepare for a hearing, or the work of the court necessitated a delay, or for other good reason an adjournment was necessary, did not oust the court of jurisdiction to act upon a petition seasonably filed.
It follows that both writs must be dismissed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. Wiest, J., did not sit. | [
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Moore, J.
(dissenting). The plaintiff filed her bill of complaint praying for a divorce, for the custody of the infant children, and for alimony. Plaintiff charged that defendant treated her cruelly by continually finding fault with her and her children, using toward her vile, foul, and obscene language, continually using profane language, threatening to do her serious bodily harm, upon one occasion with a butcher knife, and that upon some occasions he ordered the daughter of plaintiff to leave their home, and caused plaintiff to be subjected to shameful abuses on the part of defendant, and never properly provided for the care of his family. To this bill of complaint defendant, on July 11, 1924, filed his answer denying all the allegations. There are three children, one born September 19, 1907, one July 16, 1909, and one March 26, 1912, all living with plaintiff. The parties were married on the second day of September, 1905, and during their married life purchased a lot with a small dwelling house and a small garage thereon. The property was purchased by these parties for $1,200 and there is now a mortgage upon it amounting to approximately $650. After a hearing in open court, the court granted plaintiff a decree of divorce, giving her the custody of the children, requiring defendant to pay the sum of $10 per week for the support of said children until the youngest child shall have attained the age of 16 years, requiring defend ant to pay the amount of $40 which he was in arrears, under an order for temporary alimony at the rate of $2.50 per week, and providing that the real property, consisting of this house and lot which was owned by the entireties, should be the property of the plaintiff, she to assume all back taxes and the mortgage thereon. The automobile was left to defendant: From this decree the defendant has appealed to this court.
It is the claim of counsel for the appellant that the trial judge was wrong, first, in granting plaintiff a decree of divorce; second, that he should not have given plaintiff custody of the two boys, and third, that if a divorce is granted “that the property should be held by the parties in common according to the provisions of the statute.”
We will take up these claims in the order stated:
1. There was testimony of language and conduct on the part of the defendant toward his wife that justified the trial judge in stating in his written opinion the following:
“The plaintiff has sustained the burden placed upon her by proving by a preponderance of the evidence of the charge against her of unchastity by the defendant. That is the most cruel thing that a husband can charge a wife with. And she has also sustained the burden of proof in showing that the aspersions he has cast upon her and that he has cursed and ill-treated her.”
■ It is true the defendant denied this testimony but the wife was corroborated by other witnesses. This testimony if quoted would not look well on a printed page, and we refrain from doing so.
2. Did the court err in relation to the custody of the boys? The statutory provisions as to who shall have the custody of the children in case of the separation of the parents are found in section 11484, 3 Comp. Laws 1915. No hard and fast rule is pre scribed by the statute. The important thing is what will be best for the child. See Weiss v. Weiss, 174 Mich. 435, and Nichols v. Nichols, 222 Mich. 126. The record indicated the children would be better off with the mother than with the father.
3. Did the court err in his disposition of the property? The testimony of the wife is illuminating, we quote:
“Eleven years ago this June in 1913, my husband and I purchased a home on contract. The purchase price was $1,200. There has been only $550 paid on it since that time, less than half of the purchase price. There was $50 paid down, $25 that he gave and $25 that I paid was the first payment, and he was to pay $11 a month on that, and there has been times when he didn’t even pay the taxes. I have paid the taxes twice. I have the slip right here. The July taxes were not paid yet a week ago.
“The Courti: All the payments made on the contract excepting the July taxes?
“A. Yes, and the water rates.
“Q. Have you made any improvements on that place ?
“A. Yes, I put in a furnace that cost $132. I put in a toilet that was $44. I put in a sink that was $23.25; I have put in flooring on the hall floor and the front room floor and the bedroom floor. It is just pine, soft wood. I papered it and painted it and plastered the places that were out, the broken pieces, out of my own money, and I have even as much as painted the outside of the house. I did the actual labor myself, that was last summer I painted on the outside of the house, and I painted and papered the downstairs throughout. I couldn’t say exactly how much money I put into the place, but I have a list made out of what I did do. The money that I have earned I put it into the place for the betterment of himself and myself and the children.”
This testimony is not seriously controverted.
The statutory provisions in case of property owned by the entireties are found in section 11437, 3 Comp. Laws 1915. See Montgomery v. Montgomery, 221 Mich. 31, and cases cited therein.
We see no occasion for disturbing the decree. It should be affirmed, with costs to the appellee.
Fellows, J., concurred with Moore, J.
Wiest, J.
The decree should be reversed and the case remanded to the circuit with direction to permit the two boys to give testimony. The record shows:
“Ames, Herbert, called.
“The Court: Who is this?
“Mr. Shaw: The boy.
“The Court: I will not take his testimony.
“Mr. Shaw: How'about him?
“The Court: This is the son of the parties in this suit, and he will not be sworn.
“Mr. Shaw: Either one of them? The other one is fifteen years old and this boy is twelve.
“The Court: I don’t think I will hear the testimony of the 15-year-old boy; I don’t think that these children should come here to testify either against father or mother. I think it is more than the father or mother should expect or ask of them.
“Mr. Shaw: Would the court talk with either of the boys here privately?
“The Court: No.
“Mr. Shaw: Mr. Ames, I think, would like that.
“The Court: I don’t think I will. As the matter now stands, I don’t think either party should have a divorce, and if I continue to think that, I won’t care to spend any time talking with them. This family, in my judgment, ought not to be separated, both probably are somewhat to blame, but I will hear all the testimony.”
Plaintiff had the benefit of the testimony of the 16-year-old daughter of the parties, and defendant had an undoubted right to introduce the testimony of the sons. Both sons were old enough to be witnesses under oath, and their exclusion presents to us a case decided without hearing all competent offered proof of one party. Public policy and private view of propriety afford no justification for such refusal to listen to testimony competent in the suit. The need of calling children to testify in a divorce case may be imperative. This is not a case of mere exclusion of testimony, covered by the statute permitting the taking thereof in a chancery suit irrespective of a ruling, but one of exclusion of witnesses. It would exact temerity beyond reason to hold it was the duty of counsel to take the testimony regardless of the exclusion of the witnesses by the court.
McDonald, C. J., and Clark, Bird, Sharpe, and Steere, JJ., concurred with Wiest, J. | [
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McDonald, C. J.
This is an appeal from a final order of the circuit court of Wayne county adjudging the defendant guilty of contempt in having violated an injunction of the court in a decree theretofore rendered. In a cause tried in the circuit court for the county of Wayne, there was involved the validity of a building restriction in deeds of the property known as Glynn Court Gardens subdivision in the city of Detroit. On February 6, 1925, the court made and entered a decree holding the building restriction valid and enjoining the defendant Austin, his heirs, representatives, agents, successors and assigns, from violating it. Subsequently, defendant Samuel Jospey acquired lots 1, 2 and 3 of this subdivision from Austin and began the erection of a 25-family apartment house. An order to show cause why he should not be adjudged guilty of contempt was issued on application of a property owner in the subdivision. On the hearing he was found guilty, and, from the order entered, he has appealed.
The question involves the construction of the building restriction, recited in the decree, which reads as follows:
“The parties of the second part for themselves, their heirs and assigns, agree with the party of the first part, his heirs, and assigns, that they will not erect any building upon the front of said premises other than a single private residence, a double house, or a two-family flat, apartment house, or terrace which shall be set back 25 feet from the front line of said lots and cost not less than $3,000 and that the plans thereof shall be submitted to and approved by the first party and that the premises shall be used for residence purposes only, except Linwood frontage which may be used for business purposes.”
For convenience, the restriction, so far as it applies to the question in issue, may be stated more briefly, as follows:
“The parties agree that they will not erect any building other than a single private residence, a double house, or a two-family flat, apartment house, or terrace.”
The plaintiff says that the adjective “two-family” which modifies the word “flat,” also modifies the words following, “apartment house” or “terrace,” and that the sentence should read, a two-family flat, a two-family apartment house or a two-family terrace.
The defendant contends that the adjective “two-family” cannot be used to qualify the words “apartment house” or “terrace” and he would have it read a two-family flat, an apartment house or a terrace.
The question is, Does this restriction forbid the erection of a 25-family apartment house? In our view of the matter it is not necessary to rest the property rights of these parties entirely upon the mere grammatical construction of a sentence. If the question were to be determined solely by the application of the rules of syntax, we might be inclined to hold with the defendant. But we are not so much concerned with the rules of syntax or the strict letter of the words used as we are in arriving at the intention of the restrictor, if that can be gathered from the entire language of the instrument. We are told in the decree, out of which this controversy has arisen, that the restriction was placed upon the lots in the subdivision as a part of a general building plan in the development and improvement of the property for the benefit of the then owner and of all subsequent owners. The chief concern of the restrictor was to sell his lots. That was the benefit of the restriction to him. That is why he restricted them to residential uses and to certain classes of buildings. It is only occasionally that a purchaser desires to build a large apartment house in a subdivision of this character. The great demand for lots comes from people looking for homes, people who want to build single private residences or double houses. It is fair to assume that the owner of the plat knew this, for the restriction indicates that he was attempting to restrict the use of the lots to one-family and two-family buildings. If he did not so intend why did he use the words “a single private residence, a double house or a two-family flat?” Why did he not say a four-family house or a four-family flat? Why restrict one purchaser to a 2-family building and permit another to erect a 25-family building? If he had done so it is a safe guess that he would not have sold very many lots. It is plainly evident from the language of the restriction that he intended to restrict the use of the lots to 2-family buildings. If he had intended that a purchaser could build a 25-family apartment or an apartment to accommodate any number of families, he might as well have omitted any reference to 2-family buildings. It would have been sufficient to have inserted a general restriction for residential uses. . In that event, all purchasers of lots in the subdivision would have had equal rights in the use of their property.
We think the circuit judge was right in holding that the restriction in question does not permit of the erection of a 25-family apartment house.
The order is affirmed, with costs to the plaintiff.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Sharpe, J.
The bill of complaint herein was filed to enjoin the Cinderella Theatre Company, Inc., hereinafter called the defendant, from disposing of or incumbering certain real estate and securities, pledged for the payment of certain notes of the defendant, held by plaintiff; for an accounting of the amount due thereon; and for the appointment of a receiver. Pending the hearing, the defendant company executed a bond, conditioned for the payment of any sum decreed to be due to plaintiff. The trial court found the defendant company indebted to plaintiff in the sum of $4,222.59. From the decree entered therefor, both parties appeal.
The plaintiff is a corporation. At the time the notes in question were given, Edward C. Frank was its president, and had entire charge of its business. He was also a general agent for the Philadelphia Life Insurance Company. Frank and Benjamin Jacobson were the sole members of a copartnership known as the Midwest Finance Company. Jacobson was a general agent for the Minnesota Mutual Life Insurance Company. Frank had appointed Jacobson a local agent for the Philadelphia company, and Jacobson in like manner had appointed Frank a local agent for the Minnesota company. The agents were entitled to a commission of 70 per cent, on the premium first paid in the Philadelphia company and 60 per cent, on those so paid in the Minnesota company. The commissions on all policies issued were equally divided between them.
On August 5,1921, the Midwest company and Jacobson had offices at 320 Fort street, west, in Detroit. The plaintiff company moved its offices into the same suite later in that month. The lease of the premises was taken by Frank and Jacobson. The rent and the expense of up-keep were paid by the Midwest company.
On August 5,1921, the defendant company borrowed $5,000 from the Midwest company. In order to obtain this loan, the defendant was required to take out an insurance policy in the Philadelphia company, of which Frank was general agent, on the life of its president, James N. Robertson, in the sum of $50,000. The initial premium on this policy was $1,914. This sum was included in the amount of the notes executed by the defendant. A land contract and certain securities were assigned to Jacobson as security for the payment of this loan. On October 6th there was a balance unpaid on these notes. A new loan was then made from the plaintiff company. Notes were executed therefor in the sum of $10,344.10. Of this sum defendant received a check for $7,814, at the same time giving two checks to Jacobson for $2,867.83 and $600 respectively. These checks represented the balance due on the notes executed on August 5th. They were indorsed to Frank and deposited in his account.' At the time this second loan was made, the defendant was required, to and did take out insurance in the Minnesota company on the life of its treasurer, T. R. Winsheimer, in the sum of $50,000. The premiums on these policies amounted to $3,552.50. In reduction of this amount, Jacobson took 100 shares of stock in the defendant company of the par value of $1,000. The land contract and securities were at this time assigned to plaintiff.
On February 2, 1922, another loan was made to defendant by plaintiff. For this defendant executed a note "in the sum of $3,932.50. Of this sum, $932.50 was the premium on another policy to be taken out on the life of Robertson. This policy was not issued, and the $932.50 was credited by plaintiff to defendant.
1. Plaintiff’s counsel contends that the plaintiff had nothing to do with the first loan made and that it should not be considered in determining the rights of the parties. It is true that this loan was made by the Midwest company. Of this company, plaintiff’s president was a partner. He knew that included in the notes defendant had executed and delivered to Jacobson for the Midwest company was the sum of $1,914, the amount of the insurance premium the defendant company had been compelled to pay in order to secure it. The policy was written by the company of which Frank was the general agent. If these notes were void to the extent of this sum, the payments made will be treated as applying on the legal indebtedness evidenced thereby. The balance remaining due at the time the new loan was made included this $1,914. It therefore entered into the notes given on October 6th. It was a part of the consideration for which they were given. Of its invalidity plaintiff’s president had full knowledge. In our opinion, this item must be considered in determining the amount legally due from defendant to plaintiff.
2. No claim is here made that these policies were issued as an additional security for the money loaned. Robertson had served in the World War, had been wounded, and several times had been confined in hospitals.' When the policy was delivered to him, a copy of his application was attached thereto. He noticed that the report of the doctor who had examined him stated that he had answered questions saying that he had never “had any accident or injury” or suffered from certain ailments with which he had been afflicted while in the service. He at once called Jacobson’s attention to this fact, and he promised to write the company and secure a waiver from them. None was obtained. It is apparent that there would have been no liability on the part of the company to pay this insurance had Eobertson died. The Winsheimer policies were never delivered to him. There had .been no assignment of any of these policies to secure the loans. The insurance requirement had but one purpose, and that was to permit those loaning the money to secure to themselves a higher rate of interest than the statute permits. The transactions, were clearly usurious, and no liability attached to the defendant to pay any sums except the moneys actually received by it. The subject of usury is discussed at such length in the somewhat recent case of Gladwin State Bank v. Dow, 212 Mich. 521 (13 A. L. R. 1233), where the authorities are reviewed, that it is unnecessary to further consider it to reach this result.
3. The trial court found that the moneys actually received by defendant were $5,000 on the first loan» $7,814 on the second, and $3,000 on the third — in all» $15,814. He also found that the defendant company had paid thereon (including a certificate of its stock for $1,000, which will hereafter be considered) $12,838.55, leaving a balance due plaintiff of $2,975.45.
While counsel on both sides challenge the correctness of these figures, a careful reading of the record satisfies us that they are correct. The several items from which the totals are arrived at are stated in his-opinion, and find ample support in the proofs. It will serve no useful purpose to quote the testimony concerning them.
4. When the second loan was made, a certificate for $1,000 of the preferred stock of the defendant company was issued in the name of Jacobson and accepted as a partial payment of the insurance premium of $3,552.50. Jacobson testified that this stock was issued for the benefit of himself and Frank, and that Frank then had the certificate. So far as the defendant company was concerned, it amounted to a payment of $1,000 on the premium of insurance which plaintiff insisted on its taking out to secure the loan from it. Marion Berg, assistant treasurer and bookkeeper of plaintiff, testified as to the entries relative to the three policies issued when the second loan was made. Her books show that a credit was given for $1,000 on the premium of the last two policies and settlement made with Jacobson after deducting it. While she was unable to identify this $1,000 as represented by the stock certificate, it is apparent that it was. It should be charged to plaintiff as a payment on the loan made at the time it was issued.
5. The trial court allowed the plaintiff interest on the sums received by the defendant at the rate stipulated in the notes, 7 per cent. In this we think he was in error. The statute (2 Comp. Laws 1915, § 5998) provides in express terms that—
“in any action brought by any person on such usurious contract, * * * if'it shall appear that a greater rate of interest has been, directly or indirectly, reserved, taken or received, than is allowed by law, the defendant shall not be compelled to pay any interest thereon.”
The cases cited in the footnote indicate that this provision has been uniformly adhered to by this court in determining the amounts due on such contracts. In Leach v. Dolese, 186 Mich. 695, 701 (Ann. Cas. 1917A, 1182), it is said:
“It follows that, if it is sought to enforce by an action a contract which in its inception was tainted by usury, the forfeiture of interest becomes operative under the statute.”
See, also, Gladwin State Bank v. Dow, supra.
The plaintiff in its bill of complaint seeks to compel payment of the usurious sums included in its notes. We may not therefore apply the rule that where the debtor seeks relief from a usurious contract in a court of equity he will be required to pay interest at the legal rate on the money actually received by him.
6. Defendant’s counsel insist that these policies were issued in violation of section 6, subdivision 3 of chapter 4, part 2, of Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100 [114]), and are therefore void. In view of the conclusion reached, it is not necessary to pass upon this question.
A decree may be here entered for plaintiff for $2,975.45 and interest at 5 per cent, from June 21, 1924, the date of the decree in the circuit court. There being a substantial reduction in the amount found to be due in such decree, the defendant will have costs in this court.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
Defendants were convicted of a misdemeanor, in transporting persons by motor vehicle, for hire, between the city of Muskegon and the village of Hart, without a permit from the Michigan public utilities commission. The prosecution was launched, in justice’s court, under complaint of one interested in an auto bus line operated in accordance with the law over a fixed route and on schedule, between the union depot in Muskegon and the hotel in Hart. Defendants prosecute .exceptions before sentence. Defendants operated a taxicab service at Hart, rendering service to patrons wishing to visit nearby towns or have cabs go to neighboring towns to get them. They insist that they only went to Muskegon to carry persons hiring them to do so, or to get persons calling them to Muskegon to carry them to Hart; that when so in Muskegon they carried any one on request to Hart; that they maintained no schedule of service or regularity of trips, and had no fixed price for carrying picked up passengers from Muskegon to Hart.
Act No. 209, Pub. Acts 1923, makes it unlawful to engage in the business of transporting persons or property, by motor vehicle, for hire, over the public highways, over fixed routes or between fixed termini, without a permit,from the public utilities commission; constitutes such carriers common carriers, subjects the business to regulation of rates, permits the commission to establish routes of operation, defines “fixed routes or between fixed termini” as the “route or termini over or between which said carrier shall usually or ordinarily operate such motor vehicle,” and makes determination of “whether such motor vehicle is operated over fixed routes or between fixed termini” a question of fact, and the commission’s finding thereon final.
, Is the provision of this statute, making it a misdemeanor to operate without a permit, general in nature, and open to invocation by any person, or in the nature of a special arm given the commission to enforce obedience to its power and mandates? Some of the provisions of the act lend color to the claim that a prosecution should be launched by the commission, after determination of the fact that an accused is operating in violation of the law. But, taking the act as a whole, this contention cannot be sustained.
The act being in derogation of common right to use the public highways, must, so far as its criminal provisions are concerned, be strictly construed. No intendments, beyond such as necessarily go along with the purpose expressed, can be indulged, for it must be assumed that all rights, theretofore common, remain undisturbed except as pointedly taken away or restricted. Taxicab or other service, by request, may be rendered over an identical route served by an auto bus system under permit, for the act is not intended to create a monopoly under permit, but to regulate a service by common carriers, and render it certain and its continuance permanent. Defendants had a right, in the prosecution of their taxicab service, to solicit business in their line at the village of Hart, and to carry patrons to Muskegon, or elsewhere, over the identical route served by the auto bus system operating under permit from the commission. They also had a right, upon request, to go to Muskegon to get patrons wanting their service to reach the village of Hart or be taken elsewhere, and, while so in Muskegon had a right to take any person, so requesting, to Hart or intermediate points. They could not, however, establish a service between Hart and Muskegon, or elsewhere, under schedule, or even intermittent, for the purpose of rendering a general auto bus service to the public, in competition with the auto bus service under State regulation, without a permit to do so from the commission.
Suppose a resident of the city of Lansing wants to go to the city of Mason, must' he take the train or interurban railway or the auto bus running under permit, or may he hire a taxicab or any other conveyance to take him there, and if he hires a taxicab is the owner thereof guilty of a misdemeanor if, at Mason, he finds some one who wants to come to Lansing and carries him and charges for doing so. Clearly the law was never intended to prevent such a legitimate conduct of business. Of course if the carriage of passengers is but a subterfuge to avoid regulation and the privilege tax imposed by the act, then there is guilt.
Defendants were not guilty, under their testimony, but were guilty under the testimony introduced by the prosecution. The proofs introduced by the prosecution tended to show that, defendants’ taxicabs, several days a week, were at the depot in Muskegon, with drivers thereof actively soliciting the general public to take their method of conveyance to Hart, rather than the service by auto bus under permit and regulation by the commission. This, if true, would show they plied active competition with the auto bus regulated service, without compliance with the law. If defendants were doing, without permit, privilege tax and regulation, what the auto bus service was doing under permit, payment of privilege tax and regulation, they have no occasion to complain of their conviction. The crucial issue of fact was decided against defendants and we must let them abide the determination of the jury.
Convictions affirmed and judgment advised.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Steere, J.
Defendant,- Joseph Schepps, was arrested, held for trial to the recorder’s court of the city of Detroit and jointly informed against with three claimed associates, charging them with the crime of robbery being armed with dangerous weapons. As charged in the information and shown by the testimony under which defendant was convicted, the transaction was what is commonly known as a daylight hold-up, in which the defendants while riding in a large sedan car on one of the streets of Detroit pulled up past a car in which the complaining witness, Killoran, was riding alone, crowded him into the curb until he stopped, then held him up with revolvers, pulled his cap down over his eyes, expeditiously plundered him and his car of a bag containing $1,825 and some other articles which took their fancy, and then quickly sped away in their car. Defendant pleaded not guilty to the information, was separately tried by a jury on March 14, 1922, and found guilty. When the casé was called for trial on that day and a jury about to be drawn defendant’s counsel interposed a motion for discharge of the accused, based upon the files and records of the case showing that upon the afternoon of March 9, 1922, the case had been called for trial, a jury drawn, examined and sworn and discharged from the case the next morning, without legal cause as was claimed, and trial continued until March 14, 1922.
The only question here pressed for consideration is that of former jeopardy. The record shows that on March 9, 1922, this case came up for trial in the recorder’s court and a jury was impaneled and sworn, after being accepted by both sides. The prosecutor then stated he desired to take up a matter with the court in the absence of the jury and by direction of the court the jury was conducted from the court room. The prosecutor then called the court’s attention to an article on the front page of a daily newspaper of that date prejudicially featuring the case, as he claimed, and suggested that the jurors either be especially cautioned on the subject, or if sequestered the officers be instructed to clip such articles from the newspapers before the jury were allowed to have them. The jury was then called in and the court gave them some instructions as to their conduct, telling them that they would be kept together during the trial, occupying quarters in the building which had been prepared for accommodation of jurors in such cases, and that they should not talk about the case either amongst themselves or with the officers who had them in charge. They then retired to their jury room. A juror, named Look, soon asked permission to speak with the judge and was allowed to do so, privately at first and apparently until he disclosed what he had in mind, when the matter was publicly taken up in open court as follows:
“The Court: What was it you were trying to explain to the court a moment ago ?
“Juror T. E. Look: Why, being that I have not heard any of the facts in the case, I would be prejudiced against the State for locking, me up.
“The Court: Why?
“Juror: Because I feel I am here on my honor and I am willing to work — I am not saying anything about that.
“The Court: Do you realize that it is a matter that is within the discretion of the court?
“Juror: Yes, I do, except the fact—
“The Court: Do you feel that under the circumstances, owing to the fact that you are going to be locked up, that you are not going to be able to give the State and the respondent a fair trial?
“Juror: Why, I have declared that is how I feel about it.
“The Court: Do you think that you are not going to be able to give a fair verdict in this case owing to the fact that the court has seen fit to confine you during this trial?
“Juror: Why, I don’t think so. I feel this way, your honor: If there has been no facts brought out
and there was no question about us jurors being prejudiced by somebody or something like that, I would not feel that way. I don’t know anything about the case.
“The Court: But you are going on record here in this court by saying that you are not going to be able to give a fair trial in this case owing to the fact that the court has seen fit to confine you. That is true, is it?
“Juror: I feel that way, your honor, yes.
“The Court (addressing counsel) : Well, what have you to say, gentlemen?”
What if anything was said by counsel is not disclosed, but the record shows further inquiry as follows:
“Juror: I am willing to be put on my honor that I won’t say anything about it, because there has not been any facts brought out; and that is just the way I feel about it. If anything had been gone into at all, I would not blame you at all for locking us up, because I know that is the procedure. On the other hand, if it is both parties that wants to lock us up, why, I would be prejudiced against both.
“The Court: Well, who is locking you up?
“Juror: I think it is the State.
“The Court: I’ll tell you it is the court. The State has nothing to do with it, neither has the defendant or his counsel.
“Juror: Well, that being the case, it sort of removes my prejudice. I thought it was the State or the city.
“The Court: Neither the city nor the State has anything to do with it, neither has the defendant nor his counsel said anything to me. I am to blame for your being confined.
“Juror: Well, I can’t have any prejudice against you — it wouldn’t pay.
“The Court: Well, do you still think that you would be able to sit as a fair and impartial juror in the case?
“Juror: Why, now that you have explained the circumstances, I believe that I could, regardless of inconvenience.
“The Court: All right.”
The jury was then put in charge of an officer and the court adjourned until the following morning. On the opening of court the next morning it was called to the attention of the presiding judge that Juror Look had undertaken to interrogate the officer in charge on the subject and the latter when called before the court and sworn testified that Look had asked him how long they would keep them locked up if they couldn’t agree, to which the officer had replied that it was discretionary with the court. The prosecutor then urged that the attitude of the juror after learning the jury would be confined during the trial and his declaration to the court tha,t it would prejudice him against the State was manifestly prejudicial to an impartial administration of justice, giving rise to an overruling necessity for discharging the jury and moved the court to declare the proceeding a mistrial. To this counsel for defendant objected. The ■ court thereupon said:
“Under all the circumstances the court feels that it is his duty to grant the motion just made by the prosecuting attorney, and the court does declare this is a mistrial.”
Counsel for defendant then moved his discharge on the ground he has been once placed in jeopardy by calling and swearing a jury, and the action of the court in discharging the jury at that stage of the proceedings amounted in legal effect to discharging the prisoner. This motion was denied and exception taken. The case was then adjourned for trial until March 14th next. When the case was called on that date, objection was made to a retrial because of former jeopardy, as before related.
Our first Constitution, of 1885, adopted the technical word “jeopardy” of the common law and provided in its declaration of rights that “No person, for the same offense, shall be twice put in jeopardy of punishment” (Art. 1, § 12). The framers of our Constitution of 1850, presumably familiar with the constitutional provision on the subject, rejected the technical phraseology there used; saying in concise and plain terms, “No person after acquittal upon the merits shall be tried for the same offense” (Art. 6, § 29). In like-language our present Constitution provides: “No person, after acquittal upon the merits, shall be tried for the same offense” (Art. 2, § 14). Just how under that provision of our Constitution the mere act of administering the oath to a jury amounts to an “acquittal upon the merits” of one accused of crime before even a word of testimony has been heard, is a question which apparently necessitates resort to the omitted technical word jeopardy for an answer. It may be conceded as a generally recognized rule of bench law when unmodified by constitutional or statutory provision, that jeopardy attaches as soon as a jury is called and sworn for the trial of an accused under a valid indictment or information for a felony, and this court has at times applied it to our constitutional provision, although it will be found in most of the cases where that rule is' recognized testimony was heard and the merits of the ca.se entered upon before the jury was discharged. Such was the case in People v. Taylor, 117 Mich. 583, cited for defendant. It was there said;
“Our own Constitution may be thought to have been intended to limit this immunity to cases where the acquittal has been upon the merits. * * * But it was held otherwise in the case of People v. Harding, 53 Mich. 485.”
The Harding Case, also cited for defendant, had been twice before tried upon its merits, resulting both times in a disagreement of the jury. A plea of former jeopardy was urged in bar against another trial but not sustained and the conviction on a third trial affirmed, it being held within the power of the trial court to pass upon the impossibility of an agreement and the necessity of discharging the jury before verdict. That was the controlling question in the case, and what was said as to acquittal on the merits was not essential to a disposition of the case. In those comments the court refers to the case of People v. Jones, 48 Mich. 554, also cited for defendant, which was said.to be “not very fully reported.” The attorney general there confessed error, which may have given the court a wrong impression as to what the record disclosed. An examination of the original record of that case on file in this court shows it to consist of certified copies of the circuit court’s files and records of the case, in manuscript, returned by the clerk of the trial court in response to the writ of error, and defendant’s assignments of error thereon. No briefs or bill of exceptions are shown to have been filed. The plea of former acquittal sets up a former trial, the impaneling of a jury, taking of the people’s testimony and discharge of the jury before verdict, without setting up the cause of discharge as required (People v. White, 68 Mich. 648), but reference is made to “the record thereof” where said proceeding “more fully and at large appears.” The certified copy of the journal entry of the proceeding complained of states it was there made to satisfactorily appear to the court by testimony produced in behalf of the defendant—
“that Frederick Snyder a juror sitting on the panel sworn to try said cause has expressed a positive opinion as to the guilt of said respondent and is not qualified to sit as said juror; therefore on motion of W. F. Riggs, attorney for said respondent, it is ordered that said Frederick Snyder be and is hereby excused from said panel, that a talesman be called, and that the trial of said cause be commenced anew.”
This court has more than once since then, and as late as People v. Fochtman, 226 Mich. 58, held that where such action is taken on the motion or by consent of the accused it will not operate as an acquittal, or former jeopardy.
In the case of In re Ascher, 130 Mich. 540 (57 L. R. A. 806), it was held that defendant was not placed in jeopardy by the court discharging the jury after it had been sworn and testimony given, where it was found that certain of the jurors were so prejudiced as to be unfit to sit in the cause and the misconduct of the officer in charge of the jury appeared to the court prejudicial to a fair and impartial trial. In a carefully considered opinion reviewing various phases of the question at length with quotations from authorities cited it was said of our constitutional provision: “While this language differs from that in the United States Constitution the law of jeopardy is doubtless the same under both.” The views there expressed have been adopted and, applied in our subsequent cases involving the question of former jeopardy until it can be said as a general proposition that this court is now committed to the views upon that subject adopted by the Federal courts under the United States Constitution. To the point of the power of the trial court to discharge the jury for cause shown after the trial has been entered upon without its operating to discharge the defendant, this court has twice quoted with approval the following conclusions of the United States Supreme Court in United States v. Perez, 22 U. S. 579:
“We think, that in all cases' of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a -manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.”
Under the rule which now obtains in this jurisdiction the accused is prima facie in jeopardy when his trial has been entered upon and progressed through selection and swearing a jury, the court then being fully organized for and committed to his trial. The court cannot thereafter through caprice or because of some irritating incident of the trial discharge the jury and call it a mistrial, without raising a bar to subsequent trial for the same offense (People v. Broshy, 222 Mich. 651). While that limited and conditional power to discharge the jury is recognized as reserved to the court for those rare cases where a manifest necessity arises or facts are discovered showing in the opinion- of the court that the ends of public justice would otherwise .be defeated, it should when not consented to by the defense be given careful consideration and only exercised when conditions in the nature of an emergency have risen satisfying the court that manifest necessity or the ends of justice make it imperative.
In the instant case, shortly after the jury was sworn and before the opening statement was made or any testimony taken, a juror of apparently peculiar bent of mind asked for an interview with the judge which led to an open investigation by the court as to his competency to act in the case as a juror. In his examination he clung quite tenaciously to his idea that sequestering the jury reflected on his honor and prejudiced him in the case. When the court asked him if he understood it was a matter in the discretion of the court he said he did, and when asked if he felt under the circumstances that owing to the fact he would be locked up he would not be able to give the State and respondent a fair trial, he said he had declared that was how he felt about it. When squarely asked: “Q. Do you think that you are not going to be able to give a fair verdict in this case owing to the fact that the court has seen fit to .confine you during this trial?” he replied, “Why, I don’t think so.” And later asked, “Q. But you are going on record here in this court by .saying you are not going to give a fair trial in this case owing to the fact the court has seen fit to confine you. That is true, is it?” he replied “I feel that way, your honor, yes.” Later in his rambling answers he said he thought the State was locking him up, and when told by the judge that it was he himself was to blame for the juror being confined he hedged with the reply, “Well, I can’t have any prejudice against you, it wouldn’t pay.” • When pressed by the court with further inquiries he finally emphasized his thought that he couldn’t have any prejudice against the court, as “it wouldn’t pay,” by saying that with the explanation of the court he had come to believe that he could sit as a fair and impartial juror, “regardless of the inconvenience.”
We are unable to give the importance urged for the defense to the judge’s incidental remark “All right” just before adjourning court for the day. Even if he meant the juror was all right to serve in the .-case it was within the power of the court to change such ruling after deliberating on the question over night and before the trial proceeded further. What was made known on convening of the court the following morning as to the juror interrogating the officer simply showed a continuation of his frame of mind over being locked up. There are many things in an incident of this kind which cannot be plainly portrayed in a printed record. As an aid in judging his qualifications and peculiarities the court saw and heard the juror and could note his appearance and attitude, tone of voice and manner of testifying when undergoing the investigation he had brought upon himself. It may be true as urged by the defense that jurors are often, or usually, dissatisfied when ordered sequestered, but if so they generally have intelligence enough to understand the situation and reason therefor, and to accept it in a complacent frame of mind as one of the attendant inconveniences of their service when drawn as jurors.
This court is not required to pass upon the wisdom of the course the trial court pursued, but upon whether there were sufficient circumstances shown for a basis of the trial court’s decision that the juror was disqualified from serving in the case and in that connection whether it affirmatively appears there was an abuse of the discretion with which the trial court was endowed. To constitute a finding of former jeopardy requiring us to reverse this case and discharge the defendant the action of the trial judge must have been such that this court can affirmatively find thére was no manifest necessity or that the ends of public justice would not have been otherwise defeated. Upon this record we are unable to so find.
The judgment will stand affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Moore, J.
On May 21, 1923, suit was started by the plaintiff against defendants. On June 19, 1923, the plaintiff filed her declaration which contained a common count in assumpsit, and a second count sounding in tort. On August 9, 1923, a writ of garnishment was issued in said cause directed to the Grand Rapids National Bank as- garnishee defendant. This writ of garnishment was served on August 10, 1923, on the president of the bank. No disclosure was made by such garnishee defendant because of the following circumstances: The Grand Rapids National Bank has several branch banks in Grand Rapids. The account garnisheed belonged to Leo Bowler, one of the defendants, which account was carried at one of the branch banks of the Grand Rapids National Bank. Mr. Waters, upon receipt of this writ of garnishment, turned it over to Mr. John Larson, an employee of said bank, with instructions to make a disclosure in accordance with said writ. Mr. Larson, upon re ceiving said writ from Mr. Waters, sent it to Donald G. Swarthout, cashier of the Hall and Division street branch bank, where Mr. Bowler kept his account. Within the time for making and filing a disclosure Mr. Swarthout filled out the blank disclosure and annexed it to his affidavit and returned it to Mr. Larson who believed that it was a copy, and that Mr. Swarthout had filed the original with the clerk of the court, and he filed in the office of the bank the unsigned disclosure from Mr. Swarthout. On January 16, 1924, a judgment was rendered in the main case against the defendants in the sum of $920.80, and on the same day a stay of proceedings was entered. On January 19, 1924, the default of said garnishee defendant was entered for want of an appearance and disclosure. On October 4, 1924, a default judgment was rendered against the garnishee defendant in the sum of $920.80 and costs.
At the time of service of the writ of garnishment the bank had nothing belonging to the defendant James Sutliffe, but had $53.50 in cash belonging to the defendant Leo Bowler. The first notice that the main office of the Grand Rapids National Bank had that such disclosure had not been filed was when the sheriff came in December, 1924, with an execution amounting to $920.80. The bank thereupon filed a motion to set aside the judgment on the following grounds:
“1. That defendant has a good and sufficient defense thereto, as shown by the affidavits of Dudley E. Waters, John Larson, Donald G. Swarthout and Leo Bowler, annexed hereto.
“2. That the default and judgment taken thereafter are invalid, for the reason that said default was entered during the period of the twenty days stay granted by the court after the trial of said cause.
“3. That said judgment and default are invalid for the reason that under section 13122, Michigan Compiled Laws of 1915, in an order to support garnish ment proceedings, the action must arise upon contract. That in this case suit was started having a count not only in contract, but also one in tort and that the judgment is a tort judgment and garnishment proceedings, therefore, are not authorized by the statute in such cases. That the default and judgment taken against said garnishee defendant is insufficient and invalid.”
This motion was presented to the circuit judge and he granted said motion and set aside the judgment which had been rendered against the garnishee defendant. The case is reviewed by mandamus.
It is claimed by the garnishee defendant that, because of the 20-day stay order in the original case, plaintiff might not enter the default of the garnishee defendant, and that to do so was such an irregularity as to justify the trial judge in setting aside the default; counsel citing Whirl v. Reiner, 229 Mich. 114, and other authorities which may be found in the brief of counsel. In the Whirl Case there was no proof on file of service of the declaration as the practice requires when the default was entered, making the case easily distinguishable from the instant case.
The 20-day stay order in the original case did not relieve the garnishee defendant from making its disclosure within the time fixed by the statute, nor did it make the default order void. The question of when a default may be set aside is not a new one in this State. It was discussed in Hakes v. Kent Circuit Judge, 213 Mich. 278, where it was held that after six months had elapsed after a default had been regularly entered the court was without jurisdiction to set aside the default. There is a collation of the authorities on page 285 of the opinion, and we will not repeat them here.
We have noticed the claim that the garnishment proceedings are void because the action was in tort, but we think the claim is not well taken. See sections 13132 and 12414, 3 Comp. Laws 1915, and Circuit Court Rule No. 22, § 4.
The trial court was without jurisdiction to make the order setting aside the default.
Writ will issue as prayed, with costs to the plaintiff.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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PER CURIAM.
Defendant, the Ingham County Sheriffs Office, appeals as of right from the trial court judgment in favor of plaintiff Thomas L. Krug in his suit seeking public records under the Freedom of Information Act (FOIA). We affirm.
I. FACTS AND PROCEDURAL HISTORY
In November of 2000, Detective Lieutenant Timothy Howery began investigating allegations that a sheriffs deputy was being sexually harassed via an Internet site by one or more of her co-deputies. Upon the advice of an assistant attorney general (AAG) with expertise in investigating computer crimes, Lt. Howery continued to monitor the site for further postings until he learned that the Internet provider hosting the site went out of business. Lt. Howery only identified one person using the site who he interviewed on March 8, 2001, after the site had been removed from the Internet.
Subsequently, the complaining deputy indicated her desire to discontinue the investigation. In May or June, Lt. Howeiy contacted Undersheriff Matthew Myers to advise him that no more information would be forthcoming in the investigation. Undersheriff Myers did not declare the investigation inactive or closed, although Lt. Howery believed it should have been closed at that time. On August 1, 2001, the AAG contacted Lt. Howery to determine if he could close his file on the complaint. Lt. Howery told the AAG that the investigation could go no further and he assumed that the AAG closed his portion of the file.
On August 23, 2001, plaintiff submitted an FOIA request to defendant to receive a copy of the case file involved in this investigation. Although plaintiff was the head of the deputies’ union, he identified himself as a citizen rather than a representative of an organization on the FOIA request form. Staff Services Administrator Major Allan C. Spyke informed Undersheriff Myers that the union had filed an FOIA request. Plaintiffs request was denied on August 27, 2001, by Maj. Spyke, who stated that the investigation was still open and, therefore, disclosure would interfere with an ongoing criminal investigation pursuant to MCL 15.243(l)(b)(i). Before denying the request, Maj. Spyke asked Lt. Howery if the case was still open, but failed to review the file. Defendant’s policy was to deny any FOIA request regarding open investigations. Even though no action was being taken with the file, Under-sheriff Myers testified that the investigation would have been compromised if the information had been released.
Rather than file a second FOIA request, plaintiff filed suit on October 19, 2001, seeking the release of the information. On October 30, Undersheriff Myers sent Lt. Howery a memo indicating that he was no longer interested in pursuing the investigation, and Lt. Howery officially closed the investigation on November 8. On that same day, however, defendant’s attorney prepared the answer in this case and included as an affirmative defense that the file was exempt from FOIA disclosure because it would interfere with an ongoing criminal investigation. Defendant failed to file the answer until November 13. Plaintiff finally discovered that the investigation had been closed on December 18, 2001, when he deposed Lt. Howery. In response to the subpoena, Lt. Howery brought the case file to the deposition. However, Undersheriff Myers’s memo had been redacted based on attorney-client privilege.
The trial court determined that defendant properly denied plaintiffs first request, but found that defendant should have treated the lawsuit as a continuing request for information under the FOIA and timely released the requested records. As plaintiff was required to resort to the courts to obtain the records, the trial court awarded plaintiff costs and attorney fees pursuant to MCL 15.240(6). As defendant falsely indicated in its affirmative defenses that the release of the public record would interfere with an ongoing investigation that had actually been closed, the trial court awarded plaintiff punitive damages of $500 pursuant to MCL 15.240(7). The trial court also ordered that Undersheriff Myers’s memo be released in full as the redacted information was innocuous and did not invade the privilege of any attorney-client relationship. This appeal followed.
II. CONTINUING request
Defendant contends that the trial court erroneously found plaintiffs lawsuit to be a continuing request for information. We first note that the trial court incorrectly determined that plaintiffs initial request was properly denied. Defendant was not entitled to deny plaintiffs FOIA request without actually determining that the entire case file was exempt from disclosure. Defendant was required to review the case file and release any nonexempt information — any information whose release would not have interfered with the investigation. As Maj. Spyke admitted that defendant’s policy is to issue blanket denials of all FOIA requests relating to open case files and that he actually failed to review the file before issuing defendant’s response, defendant’s denial was clearly improper.
Subsequently, the trial court properly ordered the release of the information after determining that defen dant’s lawsuit constituted a continuing request for information under the FOIA. Pursuant to MCL 15.235(7),
If a public body makes a final determination to deny in whole or in part a request to inspect or receive a copy of a public record or portion of that public record, the requesting person may do either of the following:
(a) Appeal the denial to the head of the public body pursuant to section 10.
(b) Commence an action in circuit court, pursuant to section 10.[ ]
Defendant argues that the trial court’s ruling is overly burdensome, as it requires defendant to continually review the status of case files requested under the FOIA. Defendant contends that only a resubmission of an FOIA request is sufficient to obtain the information following a change in circumstances. However, nothing in the plain language of the FOIA indicates that a party must continually resubmit his or her FOIA request to determine if a change of circumstances has occurred. In fact, the FOIA specifically directs a requesting party to only one of two options following a denial: appeal the denial to the head of the public body or commence an action in circuit court.
What constitutes a continuing request for information under the FOIA is a matter of statutory interpretation which we review de novo. The primary goal in statutory construction is to ascertain and give effect to the intent of the Legislature. When a statute’s language is clear and unambiguous, we must assume that the Legislature intended its plain meaning and enforce the statute as written. It is only when the statutory language is ambiguous that this Court is permitted to look beyond the statute to determine the Legislature’s intent. Statutory language is considered ambiguous when reasonable minds can differ with respect to its meaning.
Section 10 of the FOIA allows a party to either appeal a denial of an FOIA request to the head of the public body or to file suit in the circuit court to compel the disclosure of the requested records.* The plain language of the FOIA does not impose a duty on the requesting party to also resubmit a request. We must assume that the Legislature intentionally omitted such a requirement, and we are not entitled to read into the statute any provisions to this effect.
In a similar case, this Court found that a party’s right to seek judicial intervention following a denial of an FOIA request was not destroyed when the party also resubmitted the request to the public body. In Scharret v Berkley, the plaintiff resubmitted her FOIA request to the defendant after the defendant failed to respond in the statutorily required period of time. When the defendant finally denied her initial request in writing, the plaintiff filed suit. This Court reversed the trial court’s grant of summary disposition in favor of the defendant.
MCL 15.235(7) provides that if a public body makes a final determination to deny a request, the requesting person may either appeal the denial to the head of the public body or commence an action in the circuit court within 180 days. Nothing in the FOIA states that the resubmission of a request denied by virtue of the public body’s failure to respond divests the requesting person of the ability to exercise the options granted under MCL 15.240(l)(a) or (b).[ ]
The statute does not state that a party resubmitting an FOIA request loses the right to file suit. Similarly, the statute does not indicate that a party is required to resubmit an FOIA request to ensure that it receives the requested information if the public body determines that the information has become nonexempt during the course of litigation.
Although defendant contends that the circuit court’s order places a heavy burden on its shoulders — to monitor the status of all files upon which FOIA requests have been made — defendant’s assertion ignores the fact that “the FOIA is a prodisclosure statute.” Defendant had denied plaintiffs request and plaintiff had filed suit in this matter. Accordingly, defendant would already have been monitoring this file more closely and could easily have released the information as soon as it became nonexempt. As such, we find that the trial court properly considered plaintiffs lawsuit a continuing request for information under the FOIA and ordered its release.
III. PROPRIETY OF AWARD OF COSTS, ATTORNEY FEES AND PUNITIVE DAMAGES
Defendant further argues that the trial court improperly awarded plaintiff costs and attorney fees and punitive damages. Pursuant to MCL 15.240(6), a trial court must award reasonable costs and attorney fees to a plaintiff who successfully seeks the release of records in the circuit court. Plaintiff was clearly entitled to costs and fees in this case. Plaintiff filed suit as a result of defendant’s denial of his FOIA request. Plaintiff was forced to file this action to acquire the release of the requested information. The fact that defendant disclosed these records in a deposition before trial could occur does not negate the time and effort plaintiff was required to expend. Had defendant notified plaintiff that the case file had been closed rather than filing a false answer in this case, such an award might not be justified. However, defendant’s tactics caused the continuation of the litigation in which plaintiff prevailed, and the court’s award of costs and attorney fees was proper.
The trial court’s award of punitive damages in the amount of $500 was also proper.
If the circuit court determines in an action commenced under this section that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $500.00 to the person seeking the right to inspect or receive a copy of a public record... .[ ]
Defendant continued to conceal the requested records after the case file was closed and disclosure could no longer interfere with an ongoing investigation. Most importantly, defendant falsely indicated in its answer that the records were exempt from disclosure under MCL 15.243(1)(b)(i). Accordingly, the trial court properly determined that defendant had arbitrarily and capriciously violated the FOIA by delaying the disclosure of records and awarded punitive damages.
IV REDACTING INFORMATION BASED ON ATTORNEY-CLIENT PRIVILEGE
Defendant also contends that it was entitled to redact the memo from Undersheriff Myers to Lt. Howery and the redacted language referenced Undersheriff Myers’s discussion with defendant’s corporate counsel before closing the file. Whether the attorney-client privilege applies to a communication is a question of law that we review de novo. The scope of the privilege is narrow; it applies “ ‘only to confidential communications by the client to his attorney, which are made for the purpose of obtaining legal advice.’ ” When the client is an organization, the privilege attaches to communications between the attorney and any employee or agent “ ‘authorized to speak on its behalf in relation to the subject matter of the communication.’ ” It is clear that no attorney-client privilege applies to the redacted memo. Although the memo references a conversation between Undersheriff Myers and defendant’s corporate counsel, the memo was sent from one non-attorney to another to give instruction on a case file. As the memo is not within the scope of the attorney-client privilege, the trial court properly ordered its release in full.
Affirmed.
MCL 15.231 et seq.
The disclosure exemption specifically provides in part:
(1) A public body may exempt from disclosure as a public record under this act any of the following:
(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:
(i) Interfere with law enforcement proceedings. [MCL 15.243.]
Evening News Ass’n v City of Troy, 417 Mich 481,491-494; 339 NW2d 421 (1983), citing MCL 15.243(l)(b)(i) and MCL 15.244(1).
As the trial court did order the release of the requested records, the court’s erroneous ruling that plaintiffs initial FOIA request was properly-denied is moot and does not merit reversal.
MCL 15.235(7). Section 10 is located at MCL 15.240.
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
Weakland v Toledo Engineering Co, 467 Mich 344, 347; 656 NW2d 175 (2003), mod 468 Mich 1216 (2003).
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000).
In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
MCL 15.240(1).
See AFSCME v Detroit, 468 Mich 388, 400; 662 NW2d 695 (2003) (the courts must derive the Legislature’s intent from the language of the statute and not from missing language).
Scharret v Berkley, 249 Mich App 405; 642 NW2d 685 (2002).
Id. at 407-408.
Id. at 412-413.
Herald Co v Bay City, 463 Mich 111, 119; 614 NW2d 873 (2000).
Defendant also asserts that the trial court improperly found that defendant had a duty to release the requested information, as the requesting party was the head of the deputies’ union. Defendant correctly asserts that a party’s identity may not be considered when responding to an FOIA request. State Employees Ass’n v Dep’t of Mgt & Budget, 428 Mich 104,121; 404 NW2d 606 (1987) (opinion by Cavanagh, J.). However the trial court’s order was not based on this ground. Therefore, it does not merit further review.
MCL 15.240(6).
Thomas v New Baltimore, 254 Mich App 196, 202; 657 NW2d 530 (2002) (an award under MCL 15.240(6) was proper even though the public body disclosed the requested records while litigation was pending).
MCL 15.240(7) (emphasis added).
Leibel v Gen Motors Corp, 250 Mich App 229, 236; 646 NW2d 179 (2002).
In re Costs & Attorney Fees, 250 Mich App 89, 99; 645 NW2d 697 (2002), quoting McCartney v Attorney General, 231 Mich App 722, 731; 587 NW2d 824 (1998).
Leibel, supra at 236, quoting Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 618; 576 NW2d 709 (1998). | [
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BANDSTRA, J.
In this claim for failure to accommodate disability, plaintiff appeals as of right the trial court order granting summary disposition in favor of defendant pursuant to MCR 2.116(0(10). We conclude that plaintiff failed to adequately inform defendant of his alleged disability, resulting in no duty to accommodate. We affirm.
BASIC FACTS
Plaintiff began working with defendant’s fire department as a part-time firefighter in 1997. In December 2001, plaintiff applied for one of three full-time firefighter/paramedic positions that became available. The selection process involved a three-part examination consisting of practical, written, and oral portions. Plaintiff scored seventh, among as many applicants, with a combined test score of seventy-one percent. After the top applicant withdrew his name from contention, the remaining top three applicants with the highest combined scores (ranging from eighty-three to ninety-one percent) were offered the full-time positions.
Plaintiffs complaint alleged that defendant violated Michigan’s Persons With Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., by failing to provide a reasonable accommodation to plaintiff during the written portion of the examination. Specifically, plaintiff alleged that he suffers from dyslexia and that, before the written examination, he informed Fire Department Chief Robert McArthur that he needed a “reader” to assist him during the examination. Plaintiff claims that, as a result of defendant’s failure to provide the requested accommodation, he did not do well enough to be awarded a position.
At his deposition, plaintiff testified that he was first diagnosed with dyslexia in junior high school. However, the report from the Livonia Public Schools regarding plaintiffs condition does not specifically state that plaintiff suffered from dyslexia. It indicates only that plaintiff suffered from a “learning disability.” Plaintiff testified that, despite the school district’s conclusion that he had a learning disability, he never followed up with a visit to a doctor regarding his condition.
Plaintiff further testified that, before the firefighter/paramedic examination, the first time he informed Chief McArthur that he was dyslexic and required a reader was at the orientation for the examination. However, McArthur testified that while plaintiff informed him that he needed a reader, plaintiff never indicated that he needed the reader because he was dyslexic. Rather, McArthur testified that plaintiff told him he needed the reader because “he had difficulty taking tests, [and] that he did not like taking them____”
Plaintiff testified that, two days before the examination, he followed up with Chief McArthur on his initial oral request for a reader by leaving a note on McArthur’s desk, reiterating his desire to have a reader for the examination. But McArthur testified that he never saw the note. Plaintiff also indicated that he went to McArthur’s office the following day to ask him whether a reader would be provided. Plaintiff testified that McArthur told him that a proctor would be at the examination, and that if anyone had a question about the examination, they could ask the proctor. Plaintiff also testified that McArthur told all the candidates there would be no time limit for the written portion of the examination; however, “the understanding was that the test was from [9:00 a.m.] until whenever you finished] and then whenever you finished you [could] have lunch but the practical [portion of the examination started at 1:00 p.m.].” McArthur testified that plaintiff never indicated' that merely having the proctor available during the written examination was unacceptable. Despite the presence of the proctor during the 130-question examination, plaintiff testified that he did not approach her to ask questions because he believed it would be disruptive for the other test-takers and an embarrassment to himself.
Finally, plaintiff testified that his dyslexia did not affect his work as a part-time firefighter because he was able to keep a dictionary with him to aid him in filling out his job reports. Plaintiff acknowledged that at one point his reports had become so illegible that he was required to practice filling them out. Plaintiff also indicated that his dyslexia had not kept him from his daily activities.
Defendant moved for summary disposition pursuant to MCR 2.116(0(10). Defendant argued that plaintiffs PWDCRA claim was meritless because plaintiff failed to provide any documentary evidence regarding his alleged disability before the examination. Defendant further pointed out that plaintiff was not even diagnosed with dyslexia until he was examined by an expert witness — after he filed the lawsuit. And, although plain tiff allegedly provided a note to McArthur requesting a reader for the examination, plaintiff admitted that the note did not specifically inform McArthur that the reader was necessary because plaintiff had dyslexia.
In granting defendant’s motion for summary disposition, the trial court first noted that although plaintiff “provide[d] his employer, Chief McArthur, with written notice of his request for an accommodation two days prior to the exam at issue ... [t]he written notice did not contain the reason or disability requiring the accommodation.” The trial court ruled that plaintiffs claim must therefore fail because plaintiff did not provide sufficient documentation of his alleged disability before the examination:
It further appears undisputed that Plaintiff was not officially diagnosed as dyslexic until after the lawsuit was filed.
At the time of the requested accommodation it is undisputed that Plaintiff failed to provide his employer with any documentation regarding this disability. The absence of any documentation or other documentary evidence showing Plaintiff was dyslexic is fatal to his claim under the act____
An allegedly dyslexic Plaintiff is not handicapped under the civil rights statute when Plaintiff fails to provide documentary evidence in support of the allegation.
In other words, the trial court ruled that plaintiff could not maintain a claim of failure to accommodate because he had not properly notified defendant in writing of the need for accommodation. MCL 37.1210(18).
STANDARD OF REVIEW
We review de novo the grant or denial of a motion for summary disposition. Monat v State Farm Ins Co, 469 Mich 679, 682; 677 NW2d 843 (2004). “A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). In evaluating a motion brought under this subsection, we consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. “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.” Id.
Similarly, statutory interpretation is a question of law that we review de novo. Golf Concepts v Rochester Hills, 217 Mich App 21, 26; 550 NW2d 803 (1996). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp v City of Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001). The first criterion in determining legislative intent is the specific language of the statute. Rose Hill Ctr, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997). “If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written.” Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). “In reviewing the statute’s language, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory.” Id.
DISCUSSION
The only issue properly presented to us for review is whether the trial court correctly concluded that plaintiff failed to provide sufficient written notice regarding his alleged disability and thus failed to trigger a duty for defendant to accommodate that disability. The actual written notice plaintiff alleges he provided to defendant is not contained in the record. However, plaintiff did not testify, and does not specifically argue on appeal, that the written notice he allegedly provided defendant did anything beyond requesting a reader, i.e., it did not specify any handicap necessitating that assistance.
The statutory notice of accommodation provision states as follows:
A person with a disability may allege a violation against a person regarding a failure to accommodate under this article only if the person with a disability notifies the person in writing of the need for accommodation within 182 days after the date the person with a disability knew or reasonably should have known that an accommodation was needed. [MCL 37.1210(18).]
The trial court interpreted the above notice requirement as requiring that, in addition to a written request for an accommodation, the person requesting the accommodation must provide documented evidence of a specific disability to the employer. Therefore, the question before us is what type of written notification “of the need for accommodation” is necessary under MCL 37.12KX18).
Although simply stated, the most appropriate axiom for interpreting this statute is that we “should not abandon the canons of common sense.” Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). Additionally, if a statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and enforce the statute as written. Wickens, supra at 60.
In this case, nothing in the plain language of the statute provides any guidance on what type of written notification is necessary to reasonably inform the employer what type of accommodation is needed or, more importantly, why the accommodation is needed. However, the PWDCRA places the burden of proof for a claim of failure to accommodate on the person with a disability. MCL 37.1210(1). In light of that and applying common sense, we conclude that an employee cannot satisfy the written notice requirement of MCL 37.1210(18) by simply stating “I need a reader because I have difficulty with tests.” Without at least a brief explanation of why an accommodation is needed, in terms of some physical or mental condition, the employer has no basis on which to make an educated decision whether a “disability” under the PWDCRA, and thus any “duty to accommodate,” is at issue. The employer would be left in an unnecessarily precarious position. Having no informed basis on which to respond, an employer could deny an accommodation and be held liable in an action under the PWDCRA for a failure to accommodate — even though the employer had no way of knowing whether the act applied or whether an accommodation was legally necessary.
Our conclusion here is similar to the notice requirement for a claim alleging sexual harassment within a hostile work environment, pursuant to the Civil Rights Act, MCL 37.2101 et seq. An employer must have notice of the alleged harassment before liability will attach because, without such notice, the employer has no basis on which to take remedial action. Sheridan v Forest Hills Pub Schools, 247 Mich App 611, 621; 637 NW2d 536 (2001). Moreover, “[c]ourts must apply an objective standard of review when considering whether the em ployer was provided adequate notice.” Id. “ ‘[N]otice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring.’ ” Id. at 622, quoting Chambers v Trettco, Inc, 463 Mich 297, 319; 614 NW2d 910 (2000) (emphasis in Sheridan).
For instance, in Elezovic v Ford Motor Co, 259 Mich App 187, 196; 673 NW2d 776 (2003), lv gtd on unrelated issues 470 Mich 892 (2004), this Court ruled that the plaintiff failed to provide adequate notice to her employer of alleged sexual harassment. Although the plaintiff filed various grievances and complaints alleging that a co-worker’s actions created a “hostile environment,” nothing in the written notices indicated that the alleged sexual harassment had occurred in the workplace. Id. Therefore, under the objective standard required by Chambers, supra at 319, this Court ruled that the plaintiff failed to establish that the defendant had notice of the alleged sexual harassment. Elezovic, supra at 196.
The analogy to the notice requirement of hostile work environment/sexual harassment cases is useful because both notice requirements have the same purpose: to make an employer aware of the situation so that, if necessary, remedial action can be taken. Thus, both types of discrimination cases must be premised on the employer having a certain level of awareness regarding a plaintiffs situation because that enables the employer to know what type of remedial action to take. Under MCL 37.1210(18), the notice of a need for accommodation must allow defendant the opportunity to assess the accommodation request. Without some specified showing of the reason for the requested ac commodation, an employer cannot properly determine whether to grant the requested accommodation.
Our conclusion in this regard also disposes of plaintiffs claim that defendant owed him a duty to engage in an interactive process regarding his need for an accommodation. That claim, based on federal law, is premised in part on a showing that “the employer knew about the employee’s disability.” Barnes v Northwest Iowa Health Ctr, 238 F Supp 2d 1053, 1085 (ND Iowa, 2002). For the reasons stated, plaintiff cannot satisfy this requirement here and this claim is without merit.
We affirm.
Defendant also argued that plaintiff did not meet the definition of an individual with a “disability” under MCL 37.1103(d)(i)(A). Specifically, defendant pointed out that plaintiff testified that his dyslexia did not prevent him from performing any of his major life activities and argued that plaintiff failed to establish that his dyslexia is “unrelated to [his] ability to perform” the duties of a firefighter/paramedic. Id. Further, defendant argued that even if plaintiff met the definition of an individual with a disability, his claim would still fail because he did not establish that defendant failed to reasonably accommodate his alleged disability. These arguments did not form the basis of the trial court’s ruling and, in light of our decision to affirm on other grounds, we express no opinion on their merit.
On appeal, plaintiff argues that defendant failed to properly post notices regarding how to properly allege a disability and need for accommodation under MCL 37.1210(19) and argues that defendant was thus prohibited from requiring notification under the statute and common-law estoppel principles. However, these issues were not preserved below and plaintiff has failed to provide any citation of the record that would substantiate his position that notice was not posted. See Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (“a mere statement without authority is insufficient to bring an issue before this Court”). Moreover, it is insufficient for plaintiff “simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Further, plaintiff argues that defendant’s actions constituted a failure to promote him because of a disability under MCL 37.1202(l)(a), but “[tjhis issue was not preserved for appeal because it was not raised in and decided by the trial court.” Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). The only allegation in plaintiffs complaint was a failure to accommodate under MCL 37.1210(18), and that was the basis for the trial court’s ruling.
This is an issue of first impression; there is no Michigan case law interpreting what type of written notice of a “need for accommodation” is sufficient to satisfy MCL 37.1210(18).
In the worst case, in the absence of a requirement that there be notice of a known disability, a plaintiff could bring a claim of failure to accommodate upon later discovering that he had a disability justifying the accommodation at the time. Further, we note that here the record does not establish that plaintiffs written request even referenced the PWDCBA. However, even if he had done so, but failed to provide any information on the condition he claimed was a disability, our conclusion would be the same. | [
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ON REMAND
Before: OWENS, EJ., and MARKEY and MURRAY, JJ.
PER CURIAM.
Our Supreme Court has remanded this case to this Court with an instruction to review the trial court’s finding that defendant TechniSand’s mining dune sand does not violate the Michigan environmental protection act (MEPA), MCL 324.1701 et seq.; we are also directed to expedite our review. 471 Mich 508, 521, 525; 684 NW2d 847 (2004). We do not tarry restating our prior decision, or our Supreme Court’s decision to the contrary. Instead, we proceed with the task at hand.
In general, we review de novo the proper application of MEPA. Preserve the Dunes, 471 Mich 513; Trout Unlimited, Muskegon-White River Chapter v White Cloud (After Remand), 209 Mich App 452, 456; 532 NW2d 192 (1995). But we will not overturn a trial court’s findings of fact unless they are clearly erroneous. Id.-, Portage v Kalamazoo Co Rd Comm, 136 Mich App 276, 279; 355 NW2d 913 (1984). A finding is clearly erroneous when evidence exists to support it but this Court is left with a definite and firm conviction that the trial court made a mistake. Id. at 279-280; Trout Unlimited, supra at 456. On appeal, we recognize that the trial court “ ‘heard the witnesses, observed their demeanor on the stand, and was in the best position to determine their credibility and to conclude what the facts in the case really were.’ ” Ray v Mason Co Drain Comm’r, 393 Mich 294, 303; 224 NW2d 883 (1975), quoting Martin v Arndt, 356 Mich 128, 140; 95 NW2d 858 (1959); see, also, MCR 2.613(C).
The trial court heard testimony over seven days, viewed the site with representatives of all parties to the suit, and made the following factual determinations. In November 1996, defendant Department of Environmental Quality (DEQ) issued a permit authorizing TechniSand to mine sand in an area partially designated as a “critical dune area” under the sand dune mining act (SDMA), MCL 324.63701 et seq., and the sand dune protection and management act (SDPMA), MCL 324.35301 et seq. The SDMA incorporates the definition of “critical dune area” found in the SDPMA. MCL 324.63702(1); MCL 324.35301(c). Plaintiff filed suit under MEPA, seeking declaratory and injunctive relief prohibiting TechniSand’s proposed mining activities in that area.
The 126.5 acre site at issue is one mile inland from Lake Michigan in Berrien County, east of Interstate 196. Slightly more than half (seventy-one acres) is designated as “critical dune area.” The trial court found that the critical dune acreage at issue constitutes one-tenth of one percent of the statewide total of critical dune area. 1-196, the Blue Star Highway, residential parcels, and county roadways separate the site from Lake Michigan. The trial court also found that “this site is the last acreage within critical dune areas in the entire state in which sand mining could be authorized by the DEQ.” The trial court recognized that sand is a natural resource and that the critical dune area contained other natural resources, such as flora and fauna.
Both sides presented expert testimony. For various reasons the trial court ultimately concluded that defendants’ experts were more credible than plaintiffs experts. Defendants’ experts testified that the site was “typical and unexceptional as to flora in comparison with most of the 71,000 acres of critical dune area of the state.” In addition, the court accepted defendants’ expert’s opinion that the water table and the inland dune ecosystem would not be significantly affected by TechniSand’s proposed mining activity as restricted by the permit and carried out in accord with the mining and reclamation plan. MCL 324.63704(2)(c), 324.63706. Plaintiff does not contest the trial court’s factual findings, and we find no clear error.
In making its ultimate findings under MEPA, the trial court followed the road map of MCL 324.1703(1) to determine: (1) whether plaintiff established a prima facie case that TechniSand’s conduct has “or is likely to pollute, impair, or destroy the air, water, or other natural resources,” and, if so, (2) whether defendants rebutted plaintiffs prima facie case with evidence to the contrary, and, if not, (3) whether defendants established as an affirmative defense that “there is no feasible and prudent alternative . . . and that [such] conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction.” Id.; see Ray, supra at 308-309; Nemeth v Abonmarche Development, Inc, 457 Mich 16, 24-25; 576 NW2d 641 (1998). The trial court also concluded the “[p]roper application of MEPA’s impairment standard requires a statewide perspective,” citing Thomas Twp v Sexton Corp, 173 Mich App 507, 517; 434 NW2d 644 (1988). The court applied the four factors outlined in Portage, supra at 282, along with other considerations, properly recognizing that the Portage factors are “not mandatory, exclusive, or dispositive,” Nemeth, supra at 37, and concluded that TechniSand’s proposed mining activities did not violate MEPA.
MEPA, at MCL 324.1701, provides:
(1) The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.
(2) In granting relief provided by subsection (1), if there is a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state, the court may:
(a) Determine the validity, applicability, and reasonableness of the standard.
(b) If a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court.
Thus, when deciding a claim filed under MEPA, the trial court must first determine whether a pollution control standard exists and whether to apply it. MCL 324.1701(2); Nemeth, supra at 35. MCL 324.1701(2) specifically authorizes the court to determine the validity, reasonableness, and applicability of any standard for pollution or pollution control “and to specify a new or different pollution control standard if the agency’s standard falls short of the substantive requirements of the MEPA.” Nemeth, supra at 30, quoting Her Majesty the Queen v Detroit, 874 F2d 332, 337 (CA 6, 1989) (emphasis in Queen).
Plaintiff argues that the trial court erred by considering how the proposed mining would affect the total critical dune area in the state because each and every critical dune area must be protected unless one of the two exceptions in MCL 324.63702 applies. But our Supreme Court’s holding in the present case that “the SDMA does not contain an antipollution standard,” and eligibility for a sand dune mining permit under § 63702 is “unrelated to whether [TechniSand’s] proposed activities on the property violate MEPA” fatally undercut plaintiffs argument. 471 Mich 516, 519.
Plaintiff also claims that the Legislature established applicable pollution control standards in its findings in § 35302 of the SDPMA, MCL 324.35302:
(a) The critical dune areas of this state are a unique, irreplaceable, and fragile resource that provide significant recreational, economic, scientific, geological, scenic, botanical, educational, agricultural, and ecological benefits to the people of this state and to people from other states and countries who visit this resource.
(b) Local units of government should have the opportunity to exercise the primary role in protecting and managing critical dune areas in accordance with this part.
(c) The benefits derived from alteration, industrial, residential, commercial, agricultural, silvicultural, and the recreational use of critical dune areas shall occur only when the protection of the environment and the ecology of the critical dune areas for the benefit of the present and future generations is assured.
Plaintiff argues that because the Legislature found that sand dunes are “unique” and “irreplaceable,” the scope of the analysis of the environmental effect of sand mining must be limited to the particular dune that will be impaired or destroyed.
The trial court rejected subsections b and c of MCL 324.35302 as pollution standards, but ruled that it would give subsection a “due weight.” The court determined that because subsection b deals with the role of local government in the protection of dunes, it could not be construed as a pollution standard. Furthermore, the word “use” in subsection c could not apply to the DEQ in granting permits for sand mining because the definition of “use” in the SDPMA expressly excludes sand mining under the SDMA. The trial court reasoned:
By exempting sand dune mining from the definition of “use” in Part 353 (MCL 324.35301(j)), and yet in the succeeding section, declaring that critical dune areas are irreplaceable, it is clear that the legislature contemplated sand dune mining in critical dune areas under the umbrella of MEPA.... The calculus for the court’s de novo determination must include the notion that sand as a natural resource in a critical dune area will be removed, but that fact is not dispositive in and of itself to preclude mining. Indeed, plaintiff concedes that permanent removal of sand is not a per se violation of MEPA.
The trial court further opined that to read MEPA and the SDPMA as barring any permanent removal of sand for commercial or industrial purposes would, in essence, render the SDMA meaningless. The trial court then determined that the Portage factors were “partially instructive” and concluded on the basis of its review of the expert testimony presented that TechniSand’s proposed mining activities did not violate MEPA.
Regarding the removal of sand from the critical dune area in question, the trial court reasoned that
71 acres of this site is located in a critical dune area as defined. Critical dune areas, as a whole in the state of Michigan are a resource under MEPA’s umbrella of protection. As part of all critical dune areas in Michigan, this subject 71 acres is one tenth of one percent (0.1%) of the entire state’s resource. In addition, as already stated, this is the last site in Michigan under current law which is eligible for the issuance of a sand dune mining permit in a critical dune area. Accordingly, the mining of this 71 acres will not implicate a scarce or even soon-to-be scarce resource. Indeed, under current law, the critical dune resource of our state has absolute protection from further mining henceforth. Under these circumstances, this court cannot conclude that the critical dune areas as a whole in this state will be destroyed or impaired within the meaning ofMEPA.
We can find no legal error in the trial court’s reasoning. Our Supreme Court opined in this case that MCL 324.63709 was the appropriate statute under which to consider plaintiffs claims under MEPA. 471 Mich 521. MCL 324.63709 incorporates MEPA into the SDMA by providing that the DEQ “shall deny a sand dune mining permit if, upon review of the environmental impact statement, it determines that the proposed sand dune mining activity is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in those resources, as provided by [MEPA].” Thus, in a MEPA action involving the SDMA, such as this one, the statute requires the trial court to use an approach that assesses the total effect of the sand dune mining on the environment, not just the effect on the particular location from which sand is to be removed. We find support for this conclusion in the scope of the environmental impact statement (EIS) necessary to obtain a sand dune mining permit. MCL 324.63704(2)(b), 324.63705. The EIS must specifically address the effect of the proposed activity on the immediate area and on other natural resources, including the groundwater, air, flora, fauna, and wildlife habitats. Id.
Moreover, in MCL 324.35302(a), the Legislature refers collectively to the critical dune areas of Michigan as a natural resource. The individual dunes themselves are apparently not contemplated. Consequently, the trial court did not err in assessing the mining of the critical dune area on the site in relation to its effect on the total acreage of critical dune area in the state to determine the extent to which the natural resource, i.e., all the critical dune areas in the state, would be impaired or destroyed by TechniSand’s mining of sand.
After concluding that TechniSand’s proposed mining activity would not impair or destroy this state’s natural resource, critical sand dune areas, within the meaning of MEPA, the trial court assessed “whether other natural resources on the site will be implicated so as to rise to the level of impairment or destruction of a natural resource.” The trial court concluded that evidence of minimal effect on nonscarce animal life did not merit judicial intervention under MEPA. The trial court recognized that “one of the primary purposes of the MEPA is to protect our natural resources before they become ‘scarce.’ ” Nemeth, supra at 34. Nevertheless, the trial court found the evidence did not merit MEPA intervention. We find no error.
The trial court also found from the expert testimony presented at trial that three plant species of potential significance existed at the site: Juncus Scirpoides, Ludwigia Alternefolia, and Rexus Virginia. Of these three species, the trial court found that only Juncus was threatened. Further, the trial court found from the testimony of plaintiffs expert, Dr. Barbara Madsen,
who testified that the site was “ecologically significant,” that plaintiff had presented sufficient evidence to establish a prima facie case of a MEPA violation. But the trial court found that Madsen’s testimony, for a number of reasons, was unpersuasive on critical points. Instead, the trial court accepted both the testimony of Peter Collins, who prepared the EIS for TechniSand’s application for its sand dune mining permit, and Dr. Frederick Goff, whom the trial court found to be highly qualified in the science disciplines necessary to the determinations in this case. The trial court found the testimony defendants presented to be “persuasive to the point of conclusively rebutting that portion of plaintiffs case relating to flora.” Consequently, the trial court found it “unnecessary to address the statutory affirmative defenses propounded by the defendants . ...” We do not find clear error in the trial court’s factual findings, nor do we find error in the trial court’s application of the law. Nemeth, supra at 24-25; Portage, supra at 279.
Plaintiff also argues that the trial court erred by utilizing the Portage factors because, as our Supreme Court stated in Nemeth, supra at 34, the primary purpose of MEPA is to protect our natural resources before they become scarce. Instead, as noted above, plaintiff asserts the appropriate standard is that set forth by the Legislature: critical dune areas are unique and irreplaceable. Plaintiffs argument presents a question of law, the proper application of MEPA, which we review de novo. 471 Mich 513.
As we discussed above, the standard to apply to claims that MEPA has been violated in the context of the SDMA is found at MCL 324.63709, which incorporates MEPA. To obtain a sand dune mining permit, the applicant must complete an EIS pursuant to the re quirements of MCL 324.63705. Many of the factors listed in the statute are comparable to the factors this Court outlined in Portage. Thus, both MCL 324.63705 and Portage require the court to evaluate the environmental situation before the proposed action, the effect of the activity on the surrounding environment, and whether the proposed activity will affect the flora, fauna, or other natural resources in the area. In addition, both Portage and MCL 324.63705 state that the list of factors is not exclusive. Plaintiff has not argued, and cannot successfully argue, that the factors in MCL 324.63705 are not “valid, applicable, and reasonable.” Nemeth, supra at 35; MCL 324.1701(2)(a).
Our review of the trial court’s opinion reveals that its analysis focused on the expert testimony both in support of and challenging the findings in the EIS. In writing its opinion, the court conducted a review de novo of the evidence and made detailed factual findings based on the experts’ testimony. Nemeth, supra, at 34; City of Jackson v Thompson-McCully Co, 239 Mich App 482, 489; 608 NW2d 531 (2000). The court did not limit its review to consideration of the Portage factors; it also addressed other considerations such as the effect of the mining on ground water levels, the proximity of the mining to other development, the compatibility of the mining with adjacent uses and setback requirements, and the experts’ opinions regarding the inventory of threatened and endangered flora and fauna. All these considerations are pertinent to demonstrating a MEPA violation justifying judicial intervention. Consequently, the trial court did not apply the wrong standard.
In sum, we find no clear error by the trial court in its findings of fact, and we find no error in the trial court’s application of MEPA in the context of the SDMA permit issued by the DEQ to TechniSand to permit sand dune mining as restricted by the permit at the site in question. Accordingly, we must affirm the decision of the trial court.
We affirm.
253 Mich App 263; 655 NW2d 263 (2002).
The permit restrictions included TechniSand granting the DEQ a permanent conservation easement to maintain the highest dune crests and distancing mining operations from an adjacent wetland and threatened plants.
In the context of whether a proposed action’s effect on wildlife would be so significant as to constitute an environmental risk requiring judicial intervention, the Portage Court opined that the factors “[t]he trial court should consider include: (1) whether the natural resource involved is rare, unique, endangered, or has historical significance, (2) whether the resource is easily replaceable (for example, by replanting trees or restocking fish), (3) whether the proposed action will have any significant consequential effect on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed), and (4) whether the direct or consequential impact on animals or vegetation will affect a critical number, considering the nature and location of the wildlife affected.” Portage, supra at 282.
MCL 324.35301(j) provides:
“Use” means a developmental, silvicultural, or recreational activity done or caused to be done by a person that significantly alters the physical characteristic of a critical dune area or a contour change done or caused to be done by a person. Use does not include sand dune mining as defined in [the SDMA].
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Per Curiam.
i. OVERVIEW
Intervening plaintiff Michigan Department of Environmental Quality (DEQ) appeals by leave granted the June 9, 2003, order entered by Macomb Circuit Court Judge James M. Biernat allocating receivership expenses. On appeal, the DEQ asks this Court to set aside the trial court’s order holding the DEQ jointly and severally hable for the expenses of a receivership instituted in this action to marshal and sell real property belonging to defendants, Clifford Seslar; Vitoangelo E Stramaglia; Philip Stramaglia; PMAV Enterprises, Ltd.; and Tony Anthony Complete Demolition, Inc., in order to collect on a default judgment in favor of plaintiffs, Attica Hydraulic Exchange and William Wildner. We reverse.
II. BASIC FACTS AND PROCEDURAL HISTORY
In 1998, Attica Hydraulic Exchange (Attica) and William Wildner filed a lawsuit against the Stramaglias, alleging breach of contract, fraud, and misrepresentation in connection with the Stramaglias’ sale of property at 24545 21 Mile Road to Attica and Wildner and in connection with the dumping of toxic waste onto the property by the Stramaglia defendants. On March 10, 2000, Attica and Wildner obtained a judgment against the Stramaglia defendants jointly and severally for $2,255,000. When Attica and Wildner encountered difficulties collecting on the judgment, they requested that a receiver be appointed. On October 18, 2000, the trial court appointed defendant R. John Umlauf as receiver to resolve all issues regarding the sale of the 21 Mile Road property. The receiver was eventually given the authority to sell two other parcels of property owned by Philip Stramaglia (the Inwood property and the North River Road property ) to satisfy the judgment. To accomplish this task, the receiver was authorized to retain John Beeding as counsel and to sign a listing agreement with Anton, Zorn & Associates to list the property for sale. The court ordered the receiver’s fees to be paid from the proceeds of the sale of the property and be considered a priority lien. The receiver, and the receiver’s attorney, incurred substantial costs and expenses in attempting to clear title to the North River Road and Inwood properties because the number of encumbrances on the properties necessitated four separate actions to quiet title.
At the same time this suit was progressing through the court, the Inwood property and the North River Road property were the subjects of a suit by the Attorney General and the DEQ against various Stramaglia family members and companies. In Case No. 96-5468-CZ in the Macomb Circuit Court, the DEQ alleged that these defendants violated Michigan’s Natural Resources and Environmental Protection Act (NREPA) and the DEQ also brought several common-law claims based on the Stramaglias’ operation of nine unlicensed solid waste disposal sites, including the North River Road and Inwood sites.
After the five-week bench trial in Case No. 96-5468-CZ, but before an opinion was issued, the DEQ moved to intervene in this action. The DEQ asserted it should be allowed to intervene to ensure that the sale or disposition of the North River Road and Inwood properties included provisions to clean up the environmental contamination from the Stramaglia defendants, to ensure that any excess proceeds from the sale of these properties be applied to clean up the environmental contamination at another six properties, which were the subject of Case No. 96-5468-CZ, and to reimburse the DEQ for the expenses of its cleanup of the ninth site. On March 21, 2001, the trial court granted the DEQ’s motion to intervene, ordering that Attica and Wildner’s judgment was to remain superior to all claims by the DEQ and further ordering that the receiver “shall continue acting in his capacity as per all prior orders and for the benefit of the State of Michigan.”
On May 8, 2001, the trial court issued an eighty-page opinion in Case No. 96-5468-CZ finding Philip Stramaglia liable for remediating the environmental contamination at the North River Road and the Inwood properties and at six other sites. A judgment was entered on April 9, 2002, finding all defendants jointly and severally liable for all costs incurred for remedial action at each site. The trial court also ordered that any proceeds from the sale of the North River Road and Inwood properties be held in escrow and used to reimburse the DEQ’s remediation costs. In addition, the trial court imposed fines of $250,000 on each defendant, for each site, and for each of three violations.
In September 2001, Philip Stramaglia filed for Chapter 7 bankruptcy with the United States Bankruptcy Court, Eastern District, Case No. 01-58077. On March 6, 2002, the Inwood property was sold at auction to Attica and Wildner, who submitted the sole commercially reasonable bid, for $2 million to protect their judgment against the Stramaglia defendants. Also on that date, the trial court ordered the receiver to convey title to the North River Road property to Attica and Wildner for a reduction of $200,000 against the judgment.
On July 5, 2002, the receiver filed a motion arguing that because the receivership assets were under the control of the United States Bankruptcy Court and could not be sold to satisfy the expenses of the receiver, the DEQ, along with Attica and Wildner, should be responsible to pay the expenses of the receivership. The receiver argued that the DEQ was responsible for the receivership fees because (1) the DEQ asserted an interest in the property that was the subject of the litigation, (2) the DEQ was aware of the existence of the receivership when it filed its motion to intervene, (3) the DEQ received notice of the work of the receivership and worked with the receiver, (4) the receiver’s attorney appeared before the court in Case No. 96-5468-CZ in support of the DEQ, (5) the DEQ was aware of the existence of orders approving agreements in connection with the sale of the subject properties, (6) the DEQ did not have a receiver appointed in Case No. 96-5468-CZ, and (7) the DEQ would benefit from the work of the receiver in the marshalling and clearing title to the assets. The receiver requested that the trial court order the DEQ to pay the receivership expenses and the $200,000 fee to Anton, Zorn & Associates for marketing and auctioning the Inwood Property.
The DEQ filed a response to the receiver’s motion, asserting that because the DEQ did not move for the appointment of a receiver, it should not be subject to an order directing it to pay any of the receivership expenses under MCR 2.622(D). Further, the DEQ had no secured or pecuniary interest in the property to protect. The DEQ’s interest was a regulatory and law enforcement interest with no entitlement to the property. The receiver’s hiring of Anton, Zorn & Associates and other professionals in his quest to sell the property subject to the receivership would have occurred regardless of whether the DEQ had intervened in the action. The DEQ acknowledged that Beeding, counsel for the receiver, appeared twice in Case No. 96-5468-CZ, providing guidance to the court in that case and support for the DEQ because of his experience with the Stramaglia defendants. Finally, the DEQ argued that the receiver’s claim for his expenses against the DEQ should be brought in the Court of Claims.
The motion was heard and taken under advisement by the trial court. On July 19, 2002, the receiver submitted a supplemental brief in support of his motion, arguing that he and his attorney could not go unpaid and that the nonpayment of their expenses was causing hardship. The receiver asserted that the policy behind MCR 2.622 — that the parties who benefited from the receivership are responsible to pay the receivership expenses where the assets of the receivership are insufficient to pay the receivership expenses — required a finding that the DEQ be responsible for the receiver ship expenses. The receiver stated that the DEQ benefited from the receivership in that it (1) sought to have its terms for the remediation of the properties imposed on any transfer thereof, (2) utilized the receiver’s attorney in Case No. 96-5468-CZ, and (3) sought to impose and retain benefits from the pending sale of the property by requiring any prospective purchaser to post a $4 million bond. The receiver stated that the expenses of the receiver and the receiver’s attorney totaled $510,419.24, and further stated that the DEQ’s portion of those expenses should be half, $225,209.62.
On July 31, 2002, the trial court issued an opinion and order denying the receiver’s motion to attribute receivership expenses to the DEQ for the reason that the DEQ did not intervene in the subject lawsuit until five months after the receiver was appointed and, under the plain language of MCR 2.622(D), the DEQ was not obligated to pay the receivership expenses. In so holding, the trial court noted that to hold the DEQ responsible for the receivership expenses would be contrary to public policy and would chill the efforts of the state to regulate the environment and protect the public.
The receiver filed a motion for reconsideration and a motion for oral argument. In his motion, the receiver stated that the court made a palpable error in finding that the DEQ’s interest in the property was only regulatory where the DEQ sought monetary relief in its motion to intervene because it requested that any proceeds from the sale of the Inwood property or the North River Road property be held in escrow and used to reimburse the DEQ’s remediation costs. The receiver also pointed out that the judgment in Case No. 96-5468-CZ provided for civil fines to be paid by the Stramaglia defendants, which the DEQ hoped to obtain from the sale of the North River Road or Inwood properties. The receiver stressed that the DEQ knew that any sale of the North River Road property and the Inwood property would have to be effectuated by the receiver. The receiver argued that the DEQ chose to use the preexisting receivership to reach its goal of obtaining monetary relief in connection with the civil judgment in its own matter when it could have sought similar or different relief in the other matter by way of a garnishment or writ of execution. The receiver also argued that the trial court’s conclusion that public policy mitigated in favor of denying the receiver’s motion to attribute receivership expenses to the DEQ constituted a palpable error where the DEQ was not seeking to regulate or protect the public in using the receiver, but was seeking to recover remediation costs from any potential sale of the property. The receiver asserted that, in fact, public policy favored granting his motion to attribute expenses. Otherwise, no receiver would be willing to accept a court appointment. Finally, the receiver stated that the receivership expenses were causing a hardship for him and his attorney. The DEQ filed a response to the motion for reconsideration, arguing that the receiver failed to demonstrate that the trial court made a palpable error in its prior ruling.
After a hearing on the receiver’s motion for reconsideration, on December 20, 2002, the trial court issued an opinion and order granting the motion. The trial court concluded that because the DEQ used the receiver to achieve the relief it sought in this matter, because that relief was monetary relief, and because the DEQ admitted that the receiver’s counsel assisted the DEQ in Case No. 96-5468-CZ, the DEQ was benefited by the receivership and receivership expenses would be attributed to the DEQ.
On January 24,2003, the trial court entered an order approving the fees of $10,000 for the receiver, $450,000 for the receiver’s attorney, and $10,000 for the receiver’s attorney in the bankruptcy action. Attica and Wildner and the DEQ filed claims of appeal from this order in Docket Nos. 246693 and 246658. These appeals were dismissed for lack of jurisdiction because the January 24, 2003, order was not a final order appealable as of right.
On February 10, 2003, the DEQ filed a bench brief asserting that it was not legally responsible for any of the receivership expenses, but, to the extent the trial court found it responsible, the DEQ should only be obligated to pay for work that the receiver and his counsel actually performed on behalf of the DEQ’s goal of remediating the Inwood and North River Road properties. The DEQ admitted that it intervened to protect its potential interest in a possible monetary judgment for environmental response costs and fines, but stated that its primary objective in intervening was to enforce environmental cleanup obligations. The DEQ attached all the billing of the receiver and his attorney since the date of the DEQ’s intervention in the case and highlighted and tabbed the sections pertaining to work done for the DEQ. The total expenses tabbed and highlighted amounted to $8,432.76.
At a hearing on April 25, 2003, the trial court ruled that the DEQ was jointly and severally responsible with Attica and Wildner for the expenses of the receivership. The trial court found that, from the date of the DEQ’s intervention, all the receiver’s work could be viewed as being performed for the joint benefit of Attica and Wildner and the DEQ. An order was entered to this effect on June 9, 2003. Included in the order of June 9, 2003, was a provision ordering that Anton, Zorn & Associates was entitled to $200,000 for its services and this amount was the joint and several liability of Attica and Wildner and the DEQ. On September 12, 2003, the trial court granted the DEQ’s request for a stay of proceedings.
On June 30, 2003, the DEQ filed both a claim of appeal (Docket No. 249396) and an application for leave to appeal (Docket No. 249395), in this Court relating to the order of June 9, 2003. Although the claim of appeal was dismissed for lack of jurisdiction because the order of June 9, 2003, was not a final order appealable as of right, this Court granted leave to appeal on October 29, 2003.
III. SUBJECT-MATTER JURISDICTION
A. STANDARD OP REVIEW
We review de novo the question whether subject-matter jurisdiction exists.*
B. MCL 600.6419
The Court of Claims has exclusive jurisdiction over certain claims against the state and its subdivisions pursuant to MCL 600.6419. In pertinent part, MCL 600.6419 provides:
(1) Except as provided in sections 6419a and 6440, the jurisdiction of the court of claims, as conferred upon it by this chapter, shall be exclusive.... The court has power and jurisdiction:
(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state, and any of its departments, commissions, boards, institutions, arms or agencies.
(4) This chapter shall not deprive the circuit court of this state of jurisdiction over... proceedings for declaratory or equitable relief, or any other actions against state agencies based upon the statutes of this state in such case made and provided, which expressly confer jurisdiction thereof upon the circuit court....
The Court of Claims has exclusive jurisdiction over all claims in contract and tort against the state. In this case, however, there are no allegations that the DEQ committed a tort or breached a contract. The DEQ intervened in this action in which Attica and Wildner brought tort and contract claims against the Stramaglia defendants. The receiver’s postjudgment pursuit of payment of his and his attorney’s fees and expenses from the DEQ is not a claim under tort or contract law, but an apportionment of court costs. Therefore, the apportionment of receivership expenses does not fall within the exclusive jurisdiction of the Court of Claims and the trial court had jurisdiction, under MCL 600.6419(4), to decide this matter.
IV RECOVERING THE COSTS OF THE RECEIVERSHIP
A. STANDARD OF REVIEW
Whether the trial court had the authority to order an intervening party to pay for the costs of a receivership that it did not request is a question of law. We review de novo questions of law.
B. MCR 2.622(D)
In initially denying the receiver’s motion to attribute receivership expenses to the DEQ in its opinion and order of July 30, 2002, the trial court stated:
Here, the record demonstrates receiver was appointed over five months before intervening plaintiff even became a party in this case. See order dated October 18, 2000; cf. complaint of intervenor filed March 30, 2001. As such, intervening plaintiff neither moved for nor requested the appointment of receiver. Pursuant to the clear and unambiguous language of MCR 2.622(D), and contrary to receiver’s assertions, the Court is convinced intervening plaintiff is not obligated to pay receivership expenses. Receiver’s argument fails.
Even if the Court were to rule otherwise, it is nevertheless persuaded the case law and statutes receiver relies upon are distinguishable and inapplicable to the case at bar. For example, there is no showing intervening plaintiff has any interest in the properties other than from a regulatory or law enforcement standpoint; therefore, there is no basis upon which to hold intervening plaintiff liable for receiver’s expenses or attorney fees. Further, nowhere in the statutes cited by receiver does it indicate that intervening plaintiff should be held liable for those expenses and attorney fees. In any event, the Court is convinced that holding intervening plaintiff responsible for such expenses and attorney fees is contrary to public policy, and would chill the efforts of the state to regulate the environment and protect the public.
In reversing itself and granting the receiver’s motion for reconsideration and in finding the DEQ responsible to pay the expenses of the receivership, the trial court pointed to the fact that the DEQ obtained a monetary judgment in Case No. 96-5468-CZ and filed a motion to intervene in this case seeking monetary relief. The trial court, on December 19, 2002, stated:
Based on the foregoing, it is clear intervening plaintiff has utilized the services of receiver in order to achieve the relief it seeks in this matter. Indeed, intervening plaintiff has admitted that receiver’s counsel has “assisted” intervening plaintiff to help “keep the facts straight” in this complex matter. See hearing transcript dated July 15, 2002, p 14. Additionally, the record reflects intervening plaintiff has consulted with receiver regarding various aspects of the administration of the receivership. See hearing transcript dated July 15, 2002, p 10. Moreover, the record indicates intervening plaintiff has utilized the receivership to retain its financial interest in the event of any overage of any sales of properties. See hearing transcript dated July 15, 2002, pp 10-12.
Upon thoughtful reflection of the record, the Court is convinced reconsideration of its Opinion and Order issued July 30, 2002 is appropriate. It has now been made clear to the Court that intervening plaintiff has utilized the services of the receiver and has benefited from the receivership. In keeping with the rationale of Fisk [v Fisk, 333 Mich 513; 53 NW2d 356 (1952)], then, the Court is persuaded receiver has a right to be compensated for his services and expenses. Accordingly, the Court will exercise its equitable powers and attribute receivership expenses to intervening plaintiff.
After a judgment for. money has been rendered, a trial court has the discretion to appoint a receiver of any property the judgment debtor has or may acquire. A receiver is appointed by a circuit court under the court’s equitable powers to subserve the interests of all persons interested in the subject matter committed to his care.
Generally, a receiver’s expenses are satisfied from the property within the receivership. However, if there are insufficient funds in the receivership to satisfy the receiver’s expenses, the trial court is authorized to direct the party who moved to appoint the receiver to pay them under MCR 2.622(D), which provides:
Expenses in Certain Cases. When there are no funds in the hands of the receiver at the termination of the receivership, the court, on application of the receiver, may set the receiver’s compensation and the fees of the receiver’s attorney for the services rendered, and may direct the party who moved for the appointment of the receiver to pay these sums in addition to the necessary expenditures of the receiver.... [Emphasis supplied.]
This court rule gives the trial court discretion to direct the “party who moved for the appointment of the receiver” to pay the receiver’s compensation and necessary expenditures. Here, Attica and Wildner, and not the DEQ, moved for the appointment of the receiver in this case. The DEQ did not intervene in the suit until after the receiver had been appointed. Therefore, MCR 2.622(D) does not provide legal authority for the trial court’s order that the DEQ be responsible for the receivership expenses.
The two cases the receiver relies on in his motion to attribute receivership expenses, Fisk and Bailey v Bailey, do not provide legal authority for the trial court’s order. In Fisk, the Michigan Supreme Court addressed whether an employee of a company, who served as a receiver and ran the company along with the judgment creditor, was entitled to compensation as a receiver and who was to pay the compensation. The Michigan Supreme Court held that because the judgment creditor and judgment debtor agreed by stipulation to the appointment of the employee as receiver, the employee was entitled to compensation and the com pensation was to come out of the assets held in the receivership. The Court stated that the primary purpose of a receivership was to preserve and protect the property involved in the controversy, and the party that ultimately establishes his right to the property thus held is the one who benefits from the property having been protected and preserved.
Fisk’s holding that a receiver is entitled to be compensated from the assets of the receivership is not directly applicable to this case, in which there are no assets in the receivership and the question is whether an intervening plaintiff who did not stipulate the appointment of the receiver can be saddled with the expenses of the receivership. The trial court apparently relied on Fisk for the proposition that any party that benefits from the receivership is responsible to pay the expenses of the receivership. Although Fisk does hold that the party who benefited from the receivership is responsible for the receivership expenses, Fisk defines a party who benefits as one who “ultimately establishes his right to the property . . . having been protected and preserved.” Under this definition, the DEQ does not qualify as a party who benefits from the receivership. The DEQ is a division of the state of Michigan that intervened in this suit to protect the environmental integrity of the property by requiring the inclusion of provisions in any disposition of the North River Road or the Inwood properties for the cleanup of the environmental contamination and, by claiming any excess proceeds from the sale of these properties to fund the cleanup of the six other properties on which the Stramaglia defendants dumped waste materials, to reim burse the state for its expenses in the cleanup of the ninth site. The DEQ’s interest, therefore, was essentially regulatory.
Further, if the receivership had successfully cleared the title and sold the properties, the DEQ would not have gained the right to the property, but only to any “excess proceeds” after the priority claims of the receivership and Attica and Wildner. Therefore, under the definition of “beneficiary” in Fisk, the DEQ does not qualify as a beneficiary of the receivership so as to be responsible for the costs of the receivership.
Bailey is similarly unhelpful. In Bailey, the mortgagees to a hotel held in receivership, after consenting to allow the receiver to borrow money to keep the hotel operating, contested the charging of the property with the receivership expenses. The Michigan Supreme Court held that, because the mortgagees availed themselves of a possible advantage by keeping the hotel concern going in an attempt to effect its sale, they could not contest the charging of the property with the receivership expenses. The Court held that the mortgagees could not lodge a protest because the expenses benefited the mortgagees as the parties ultimately entitled to the property. Here, there is no question regarding whether charges against the North River Road and Inwood properties were permissible. The question presented is whether the trial court can order an intervening plaintiff to pay receivership expenses when that party did not request the appointment of the receiver. Bailey does not provide this authority.
For these reasons, we conclude that the trial court lacked the authority to order the DEQ to pay the costs of the receivership, in whole or in part. The discretionary language in MCR 2.622(D) (“the court, on application of the receiver, may set the receiver’s compensation and the fees of the receiver’s attorney for the services rendered, and may direct the party who moved for the appointment of the receiver to pay these sums ...”) applies to whether the court decides to direct a party to pay the costs, not whom it may direct to pay the costs. Whom the court may direct to pay the costs is clearly stated in the plain language of the rule: “the party who moved for the appointment of the receiver . ...” In light of this conclusion, we need not address the question whether the trial court abused its discretion in granting the receiver’s motion for reconsideration.
Reversed.
Philip Stramaglia is also known as Vito Stramaglia.
We will refer to these defendants collectively as the Stramaglia defendants.
The Stramaglia defendants filed a claim of appeal from the judgment entered in March 2001, in Docket No. 226271. That appeal was dismissed pursuant to a stipulation of the parties.
This property is a parcel of approximately 191 acres at 4985 Inwood Road, west of Mound Road in Washington Township, Michigan.
This property is a parcel of approximately thirteen acres of land at 24601 North River Road adjacent to the Clinton River in Mt. Clemens, Michigan.
Philip Stramaglia; John Simonicini; Anthony Stramaglia; Inge Stramaglia; Michael Stramaglia; Vito Stramaglia; Peter Adamo; All-State Contracting Company; All-State Dismantling, Inc.; All-State Wrecking Company; Andiamo, Inc.; C.O.D. Crushed Concrete Company; Investment Development Company; Stramaglia Construction, Inc.; Tri-County Contractin; Tri-County Disposal Company; Tri-County Disposal & Recycling, Inc.; and Tri-County Recycling, Inc.
MCL 324.101 et seq.
We assume that the bankruptcy court entered an order finding that both the North River Road property and the Inwood property were part of the bankruptcy estate, because the parties all referred to the fact that these properties were no longer available to satisfy the receivership expenses, but were under the jurisdiction of the bankruptcy court. We note, however, that this order does not appear in the lower court record.
On July 22, 2002, plaintiffs filed a concurrence with the receiver’s supplemental brief.
On March 28, 2003, the trial court had entered an order allowing Anton, Zorn & Associates to intervene in the action for the purpose of pursuing its claimed commission of $200,000 for the marketing of the Inwood property.
McCleese v Todd, 232 Mich App 623, 628; 591 NW2d 375 (1998).
Parkwood Ltd Dividend Housing Auth v State Housing Dev Auth, 468 Mich 763, 772; 664 NW2d 185 (2003).
See Universal Underwriters Ins Co v Kneeland, 464 Mich 491, 496; 628 NW2d 491 (2001).
MCL 600.2926, 600.6104(4).
MCL 600.2926.
State Treasurer v Abbott, 468 Mich 143, 153 n 10; 660 NW2d 714 (2003).
See MCR 2.622(D); Fisk, supra at 516.
Bailey v Bailey, 262 Mich 215; 247 NW 160 (1933).
Fisk, supra at 516.
Id.
Bailey, supra at 217-218.
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BANDSTRA, J.
Defendant Glen Lake Association (GLA) appeals as of right the trial court order that modified the established normal level of Glen Lake under the inland lake levels part (ILLP) of the Natural Resources and Environmental Protection Act, MCL 324.30701 et seq. We conclude that the trial court had continuing jurisdiction to modify the lake level and that plaintiffs, private party riparian property owners, had standing to invoke that jurisdiction. Further, we do not conclude that the trial court’s order was clearly erroneous on the merits and we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Glen Lake and the Crystal River are located in Leelanau County, immediately adjacent to the Sleeping Bear Dunes National Lakeshore. Water flows from Glen Lake over a dam into the Crystal River, which then meanders several miles before discharging into Lake Michigan. The dam controls the release of water from Glen Lake into the Crystal River. Therefore, any alter ations in the height of the dam result in converse effects on the Glen Lake and Crystal River systems: increasing the height of the dam results in an increased height of Glen Lake, but a decreased instream flow for the Crystal River.
In the early 1940s, in response to concerns about erosion damage caused by high water levels in Glen Lake, the Leelanau County Board of Supervisors filed an action in the Leelanau Circuit Court under the statutory predecessor of the ILLP to determine the “natural height and level,” now MCL 324.30702, of the water in Glen Lake. In 1945, the Leelanau Circuit Court entered an order setting the natural height and level of Glen Lake at 596.75 feet above sea level. In 1954, in response to a lawsuit that claimed that the lake level was being maintained at a level higher than 596.75 feet, the Leelanau Circuit Court ordered the Glen Lake Improvement Association (the predecessor of the GLA,) to establish a supervisory committee to operate the dam to maintain the court-ordered water level of 596.75 feet. Since that time, the GLA has normally maintained the water level at or near 596.75 feet by inserting and removing dam boards. At various times of dry weather, the supervisory committee allowed the water level to drop below 596.75 feet to supplement flow to the Crystal River.
In 2000, the GLA contracted to have a new dam built to allow for more precise incremental control over the lake water level. During construction in June 2001, the GLA’s contractor completely shut off the flow of water to the Crystal River. The Michigan Department of Environmental Quality (DEQ) received numerous com plaints about extremely low water levels in the Crystal River and, upon investigation, observed low water levels, exposed mud flats, dry sand bars, and extensive fish kills.
In August 2001, plaintiffs, a small group of individual Crystal River riparian property owners and a canoe livery on the Crystal River, filed suit against the GLA, as the “delegated authority” to manage the dam. Plaintiffs also filed suit against Leelanau County. Plaintiffs sought to establish a new lake level, below the lake level set in 1945, to raise the height of the Crystal River. Plaintiffs alleged violations of the ILLP and the Michigan environmental protection act (MEPA), MCL 324.1701 et seq. However, the trial court only addressed plaintiffs’ petition for a modified lake level order, and the GLA challenges only that ruling on appeal.
II. ANALYSIS
A. THE TRIAL COURT PROPERLY DETERMINED THAT IT HAD JURISDICTION OVER THE CASE
The GLA argues that the trial court erred in concluding that it had jurisdiction over this case. We disagree.
Whether the trial court had subject-matter jurisdiction is a question of law that we review de novo. Rudolph Steiner School of Ann Arbor v Ann Arbor Charter Twp, 237 Mich App 721, 730; 605 NW2d 18 (1999). Additionally, whether a party has standing is a question of law that we review de novo. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004). Finally, the interpretation of a court rule is also a question of law that we review de novo. Hinkle v Wayne Co Clerk, 467 Mich 337, 340; 654 NW2d 315 (2002).
The GLA frames this argument in terms of subject-matter jurisdiction. That issue can be raised at any point in the proceedings, including after the trial as occurred here. Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 319; 503 NW2d 758 (1993); MCR 2.116(D)(3). However, as discussed below the issue is really one of standing, not subject-matter jurisdiction. The GLA failed to preserve this issue, but, instead, effectively consented to plaintiffs’ standing to sue by entering into stipulations regarding the trial and its objective. Accordingly, the GLA has waived this issue.
“Subject-matter jurisdiction and standing are not the same thing. Jurisdiction of the subject matter is the right of the court to exercise judicial power over a class of cases, not the particular case before it; to exercise the abstract power to try a case of the kind or character of the one pending.” Altman v Nelson, 197 Mich App 467, 472; 495 NW2d 826 (1992). Under the ILLR the trial court here clearly was granted “continuing jurisdiction” to consider the necessity for changes in the previously entered orders regarding the normal lake level for Glen Lake. MCL 324.30707(5). Accordingly, the GLA’s challenge here is not about the trial court’s jurisdiction over the subject matter at issue. Instead, the challenge is to plaintiffs’ standing to invoke that jurisdiction.
The GLA’s argument here is thus an attempt to have this matter dismissed because plaintiffs lack the legal capacity to sue under the statute. MCR 2.116(C)(5). However, this ground for dismissal of plaintiffs’ action should have been raised in the GLA’s first responsive pleading or in a motion filed prior to that pleading. MCR 2.116(D)(2). Because the GLA did not raise its standing challenge in that fashion, the issue is waived. MCR 2.111(F)(2); Stanke, supra at 319.
Imposition of these rules against the GLA here is appropriate. The GLA did not just fail to raise the standing issue early in the case, before discovery and attempts at settlement, it also affirmatively acquiesced to plaintiffs’ right to sue by entering into a stipulation agreeing to the entry of a modified lake level order and, to that end, specifying the issues to be decided at trial and the mechanisms by which lake level determinations would be implemented. “A party cannot stipulate a matter and then argue on appeal that the resultant action was error.” Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d 339 (2001). It would be unfair to plaintiffs and a waste of judicial resources to hold, following trial proceedings to which the GLA consented, that there was no standing to bring this action.
We acknowledge that the GLA raised its purported subject-matter jurisdiction argument largely on the basis of Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379; 651 NW2d 756 (2002), which was decided during the trial of this case. However, that provides the GLA no justification for its delay. The Yee decision was based on Wortelboer v Benzie Co, 212 Mich App 208, 214; 537 NW2d 603 (1995), and In re Van Ettan Lake, 149 Mich App 517, 525-526; 386 NW2d 572 (1986), both of which interpreted the statute as disallowing riparian property owners from bringing suit under the ILLP to initially determine a normal lake level. Yee, supra at 398-399. Thus, the GLA cannot claim that before Yee was decided it had no reasonable basis to assert its challenge against plaintiffs’ right to bring this suit. This issue is not properly preserved for appellate review.
Further, on its merits, the GLA’s argument fails. Although the GLA relies primarily on Yee, the issue presented in that case was whether private parties can initially bring an action to determine a lake level under the ILLE The Yee Court held that they could not, but that the statute, instead, reserved the authority to initiate such an action to the counties and the DEQ. Yee, supra at 397-398 and 398 n 42. This Court reasoned that “the Legislature clearly limited the court’s power to determine legal lake levels to those actions initiated by” these public authorities. Id. at 398. Notably, this Court further stated, “Once such a determination has been made, however, circuit court jurisdiction over a lake’s level continues.” Id. at 398 n 41.
In this regard, the Yee Court relied on Anson v Barry Co Drain Comm’r, 210 Mich App 322, 325-326; 533 NW2d 19 (1995) and Wortelboer, supra. Yee, supra at 398-399 ns 41, 44. The plaintiffs in Anson were private owners of lakefront property who filed an action to enforce an existing lake level order. This Court reasoned that they could invoke the court’s continuing jurisdiction under the statute. Anson, supra at 326. Similarly, the plaintiffs in Wortelboer were private property owners of land bordering an outlet stream from Crystal Lake. They brought an action against Benzie County claiming that the lake levels established by a previous court order under the inland lake statute were causing environmental damage to the stream. This Court noted that the plaintiffs had standing to bring the action both because they were “interested persons” under the statute and because they had a legally protected interest that was in jeopardy of being adversely affected. Wortelboer, supra at 213-214. Although holding that the statute did not authorize the plaintiffs to initiate an original action against the county, this Court noted that, instead, “plaintiffs’ proper remedy would be to petition the circuit court for reconsideration of the lake levels.” Id. at 215.
Because this matter does not involve an original action to establish a lake level, the GLA’s reliance on Yee is misplaced. This case involves plaintiffs’ right to invoke the trial court’s continuing jurisdiction over a matter already the subject of an existing lake level order. Consistent with Anson and Wortelboer, we conclude that plaintiffs had standing under the ILLP to invoke continuing jurisdiction in this action.
B. THE TRIAL COURT’S FINDINGS OF FACT WERE NOT CLEARLY ERRONEOUS
The GLA argues that the trial court erred in finding that the court-ordered lake level caused environmental harm to the Crystal River, and in entering a modified lake level order to remedy the damage caused by maintaining a lake level of 596.75 feet at the expense of the Crystal River riparian property owners. We disagree.
We review a trial court’s findings of fact in a bench trial for clear error and we review de novo its conclusions of law. Ambs v Kalamazoo Co Rd Comm, 255 Mich App 637, 651; 662 NW2d 424 (2003); MCR 2.613(C). “A finding is clearly erroneous where, although there is evidence to support the finding, the reviewing court is left with the definite and firm conviction that a mistake has been made.” Ambs, supra at 652. “An appellate court will give deference to ‘the trial court’s superior ability to judge the credibility of the witnesses who appeared before it.’ ” Id., quoting Rellinger v Bremmeyr, 180 Mich App 661, 665; 448 NW2d 49 (1989); MCR 2.613(C).
Here, the parties stipulated the entry of a modified lake level order before trial, thereby acknowledging the necessity of a change in the court-ordered lake level. Again, “[a] party cannot stipulate a matter and then argue on appeal that the resultant action was error.” Chapdelaine, supra at 177. The GLA’s claim that the trial court erred in entering a modified lake level order is waived. All that is properly at issue is the substance of that order.
At trial, plaintiffs presented a management plan and regulation algorithms with the assistance of three expert consultants: Dr. Paul Moore, an associate professor in biology at Bowling Green State University, who was qualified as an expert in stream ecology; Dr. Roger Wallace, a professor in civil and environmental engineering at Michigan State University, who was qualified as an expert in hydraulics and hydrology; and Dr. Mark Luttenton, an associate professor of biology at Grand Valley State University and a research fellow with the Center for Integrated Limnology and Environmental Research at the University of Michigan, who was qualified as an expert in freshwater ecology, including limnology and stream ecology.
Dr. Moore visited the Crystal River on three separate occasions in August 2001, March 2002, and May 2002, during which he took photographs, field measurements, biological samples, and sediment samples. On the basis of his observations of the river and the organisms in the river, Dr. Moore determined that it was a benthic carbon driven river, meaning that “primary productivity” is generated by organisms living on the bottom of the river. Dr. Moore explained that it was important to determine where the primary productivity was occurring to “understand how flow is going to impact the system.”
Dr. Moore identified three “critical habitats” within the river. First, because aquatic organisms need moist sediment, increasing the “wetted surface area” would result in more primary productivity. Second, the “emergent islands and microphytes,” or reeds that have emerged out of the water, when wet, provide a larger surface area for increased marine algae growth, also resulting in more primary productivity. The emergent islands and microphytes also provide refuge to macro-invertebrates from predatory fish. Finally, fallen trees and debris, when submerged in water, provide areas where larval fish and minnows escape predation by waterfowl and fish.
Dr. Moore testified that on the basis of measurements taken from stream gauges, he was able to estimate the water levels necessary to maintain the key ecological functions of the river. Dr. Moore testified that a reading of 1.7 feet, which corresponded to a National Park Service (NPS) measurement at the same location, was a reasonable target level for the river, i.e., a water level at which the key ecological functions of the river could occur. Dr. Moore then extrapolated that 1.55 feet would be a level at which the key ecological functions of the river would be impaired, and 1.85 feet would be a high water level of the river at which the key ecological functions of the river would thrive.
Dr. Wallace then developed plaintiffs’ regulation algorithms by incorporating consideration of the water level needs of the Crystal River and Glen Lake. Dr. Wallace explained that the water supply to the lake and the river came from precipitation minus evaporation. However, because of the historical practice of maintaining the court-ordered lake level by raising the dam, the river was doubly affected during periods of low precipitation. That is, not only would the river not receive water from precipitation, it also would not receive water from the lake, because the lake was being maintained at an artificially high level through the use of the dam. Dr. Wallace explained that the management plan was intended to “bring some balance back with the system more in line with the way it would be if it weren’t so highly regulated [by using the dam to maintain the lake level set by the court in 1945].”
In developing plaintiffs’ regulation algorithms, Dr. Wallace relied on the figures set out by Dr. Moore, i.e., 1.85 feet (normal), and 1.55 feet (low) for the water levels in the river. For the water levels in the lake, Dr. Wallace used the high water level for the lake that was set out in the pretrial stipulation, i.e., 596.90 feet above sea level. Dr. Wallace used the normal water level for the lake that was set out in the 1945 court order, i.e., 596.75 feet above sea level. Finally, Dr. Wallace determined the low level for the lake on the basis of historical data and a field analysis of lake ecology, i.e., 596.50 feet above sea level. The management plan explained that the algorithms “make decisions based on [3] index levels for Glen Lake and another 2 index levels for the Crystal River.” Specifically,
[t]he May algorithm focuses on how to raise the new control gates — this is equivalent to adding stop logs — to achieve summer lake levels while [e]nsuring adequate flow in the Crystal River during a biologically critical period of time. The June-August algorithm focuses on how to manage lake levels during the summer recreational season. The Fall-Winter algorithm provides guidance on how to drop the control surface at the end of the recreation season in order to prepare for the coming winter and spring.
Dr. Luttenton then testified regarding the potential effect plaintiffs’ proposed regulation algorithm would have on Glen Lake, if implemented. Dr. Luttenton relied on a comprehensive study of Glen Lake by Dr. Timothy Keilty and determined that the primary potential effect of lowering the water level of Glen Lake would be on the fisheries and aquatic plant communities. In order to assess potential effects from a lower water level, Dr. Luttenton visited Glen Lake twice to develop a general impression of the lake and to confirm the information in the Keilty study. Dr. Luttenton assessed the basic characteristics of the lake and determined the habitat needs of the species of fish that inhabited the lake during each stage of their respective life cycles.
Dr. Luttenton testified that implementation of plaintiffs’ regulation algorithm would not cause any problems for the species of fish that inhabited the lake. Indeed, Dr. Luttenton indicated that allowing the lake level to rise slightly in the spring would benefit two species at the egg stage in their life history. Dr. Luttenton testified that it was critical to maintain a high enough water level so that the fish could migrate out of wetland shore areas to deeper water during their transition from egg stage to juvenile stage. However, this typically happens by the end of June when the water levels are still high, and once migrated out, a drop in the water level of the lake would not affect the fish. Dr. Luttenton concluded that a drop in the water level of the lake three inches below the court-ordered level, as provided in the regulation algorithm, would result in shoreline exposure, but would not cause any detectable problems for the fish in Glen Lake.
The GLA presented a management plan and regulation algorithm with the assistance of Anthony Groves, a water resources director in the civil engineering division of Progressive Architecture and Engineering, who was qualified as an expert in limnology. On the basis of his computation of the long-term average water level of Glen Lake at 596.75 feet, Groves concluded:
Maintaining a level above 596.75 feet in Glen Lake will exacerbate the potential for shoreline damage during periods of above-normal precipitation and high water. There appears to be a significant potential for erosion, and damage to shoreline structures and septic systems if a water level above 596.75 persists on Glen Lake. Conversely, maintaining a level significantly below 596.75 feet will create the potential for navigational difficulties in the lake during periods of below-normal precipitation and low water. It is important to note that lowering the water level of Glen Lake by only two or three inches could expose several feet of bottomland along the lake shoreline. Further, lowering the lake level would allow additional sunlight penetration to the lake bottom and expand the photic zone in which submersed aquatic plants can colonize.
Maintaining a minimum flow of 18 cfs [cubic feet per second] in the Crystal River during the summer months will sustain a river stage of about 1 foot and a wetted perimeter of about 37 feet in the first straight river stretch below the dam. This minimum flow appears sufficient to protect and sustain the biological integrity of the Crystal River system.
Groves then recommended that no departure be made from the court-ordered lake water level of 596.75 feet, except during drought conditions during summer months. Groves proposed that to alleviate the potential for hardship to the Crystal River as the result of diminished outflow during the summer months, Glen Lake be temporarily lowered to a level not below 596.60 feet until the flow in the river equals or exceeds 18 cfs.
The trial court issued its decision and order, modifying the existing court-ordered lake level and adopting the regulation algorithms proposed by plaintiffs. The trial court made the following findings of fact and conclusions of law:
The effects of low water on the river were discussed by a number of experts. Not surprisingly, they include damage to the fish population and rooted aquatic plant communities as well as loss of primary productivity in the river. Additional impacts are felt by the river’s mussel and clam population[s], its communities of benthic insects and a deleterious impact on other aquatic plants and animal communities. There are also harmful increases in water temperature. Naturally, reductions in flow also impair navigability which impacts the recreational public, including but not limited to visitors to the national lakeshore. Riparian owners along the river are also impacted by reduced navigability, impacts on the river’s biology as well as loss of scenic and property values.
Recognizing a long tradition of balancing the needs of the lake and the river and mitigating the harm associated with erosion from high water on Glen Lake, the Court finds it necessary to institute a modified lake level order with regulation algorithms that will provide a more precise mechanism for managing the lake level and sharing the environmental burden of drought.
A key finding by this Court is that the Crystal River is not merely a tool used to maintain Glen Lake’s water level. Rather, it is a viable part of the watershed, and, the management of Glen Lake’s water level must be done so as to minimize environmental consequences to both the lake and the river.
This Court has continuing jurisdiction to enforce and modify its 1945 and 1954 Lake Level Orders for Glen Lake. See, Yee, Wortelboer, supra, and MCL 324.30707(5). Individuals aggrieved by this Court’s Lake Level Orders may file petitions to modify them and this Court has continuing authority to revisit the Orders from time to time. However, persons who feel aggrieved by this Court’s lake level Orders must understand that they have not and will not be issued in a vacuum. The focus of this Court’s efforts are environmental and recreational. The Court is not motivated to maximize income to commercial canoe liveries or minimize the length of docks. There are a number of well-established criteria that must play a role in the determination of a lake level and in any subsequent determinations to modify it. These factors would certainly include a consideration of past lake level records and the normal seasonal fluctuations of lake level. In this process, ordinary high and low water marks have been determined and evaluated. Both the lake and the river have been the subject of substantial development. It is important in determining the levels of each that a consideration be given to septic tanks, drain fields, sea walls, docks and other physical features.
The lake and the river have been the subject of extensive government study. Government surveys and reports have been provided to the Court as well as studies of the watershed’s hydrology. Although the national lakeshore and the federal government were not parties to this action, they did submit reports that are relevant to this Court’s decision and those reports have been considered.
There is a clearly established relationship between the lake and the river. The river provides upstream drainage from the lake and the stream has its own downstream flow requirements and impacts on downstream riparians. Property owners generally understand this relationship and historically managed the lake level with respect for it. Property owners on the lake and the river have well-recognized riparian rights which include but are not limited to recreational use of the surface waters, fishing and protection of wildlife habitat.
Consistent with the [ILLP], the Court considered these factors as they were offered through the testimony and evidence received at trial. MCL 324.30707(4). Having reviewed this evidence, the Court finds that the [ILLP] and Wortelboer contemplate that more than one lake level may be established. MCL 324.30701(H). In fact, the [ILLP] does not set a maximum or minimum number of levels for a lake and provides that lake levels may vary seasonally. MCL 324.30707(5). While the 1945 and 1954 Lake Level Orders have established 596.75 feet as the natural level of Glen Lake, management of this level has indeed recognized seasonal fluctuations and, for most of its history, a balanced management approach between the lake and river. Conversely, the notion that maximizing benefit to Glen Lake riparians can occur without a consideration of the down stream consequences on the Crystal River is not consistent with the [ILLP], existing Lake Level Orders or the substantial history of water level management by the Glen Lake Association.
Accordingly, to accomplish all those purposes set forth in MCL 324.30707(4), the Court finds that the history of managing Glen Lake’s water level on a seasonal basis and in response to changing conditions has been and continues to be a sound approach. Consistent with the enhanced technology associated with the improved dam and the greater recognition of the relationship between the lake and the river, the Court adopts the Crystal River Management and Implementation Plan (“Plan”) with the Order Modifying 1945 and 1954 Glen Lake Level Orders that is being entered concurrently with this Decision and Order.
In adopting this Plan, it is the Court’s goal, consistent with the state statutes and appellate precedent, to maximize the natural resources of this state while preserving and protecting property around the lake and the river and to do so in the interest of public health, safety and welfare. Although management of high water has not proven to be as challenging as the management of low water conditions, the Plan addresses both.
Due to the parties’ agreement that a modified Lake Level Order needs to be implemented and that regulation algorithms are appropriate and the Court’s findings that its continuing jurisdiction is clear and that the [ILLP] and appellate precedent sensibly recognize the variables that affect a lake level necessarily contemplate the potential for different levels that respect different seasons and changing environmental conditions, this Court is not making findings other than on Count I of the Plaintiffs’ complaint. It believes that complete relief can be provided to the parties without a consideration of MEPA, common[-]law riparian rights or claims of contempt for violation of the current Lake Level Order. The Court believes that this relief may be fully implemented through the Plan which it hereby adopts with its modified Lake Level Order. This Corut further contemplates that this Plan shall be implemented on a dynamic basis and looks forward to adjusting its elements as further information regarding the hydrology and biology of the watershed becomes available. The Court also looks forward to further input from the federal authorities responsible for managing the national lakeshore.
The Court and the parties agree that the Association’s water level committee shall have sole authority and responsibility to manipulate the gates of the dam in accordance with the Plan, the modified Lake Level Order, the terms of this Decision and the continuing supervisory jurisdiction of the Court.
In adopting the plan proposed by plaintiffs, the trial court specifically found it to be a better approach than that proffered by the GLA:
The Court has received and reviewed the alternative Glen Lake Level Control Algorithm and adopts that submitted hy Plaintiffs as it is more sophisticated, should produce more technical data and is more likely to provide the effective, dynamic management tool this Court finds to be essential to the long term maintenance of a healthy lake level and river flow.
In conjunction with the issuance of its opinion and order, the trial court entered an order' modifying the 1945 and 1954 Glen Lake Level Orders from “[t]he existing legal lake level of 596.75 feet above sea level... to 596.75 feet above sea level with a range of up to plus two inches above and minus three inches below that level.” The order provided that “[t]he lake level shall continue to be allowed to vary seasonally and in response to changing conditions in the way that has historically occurred, subject to the terms [of] this Order.” Moreover, the order adopted plaintiffs’ management plan and seasonal algorithms, “[i]n order to better accomplish the purposes set forth in MCL 324.30707(4),” and “for the protection of the river, lake, and associated natural resources under MCL 324.1704(1).”
The trial court determined that plaintiffs presented more detailed and comprehensive evidence on the potential effect that modifying the lake level order might have on Glen Lake and the Crystal River and that the testimony of the GLA’s lake expert was less convincing. The trial court considered the factors set out in MCL 324.30707(4), and properly entered a modified lake level order setting the “normal level” of the lake to “provide the most benefit to the public; [] best protect the public health, safety, and welfare; [] best preserve the natural resources of the state; and [] best preserve and protect the value of property around the lake.” MCL 324.30701(h). The trial court’s decision to adopt plaintiffs’ regulation algorithms and management plan was supported by the evidence, and we find no clear error.
C. THE TRIAL COURT DID NOT ERR IN ORDERING THE DEQ AND THE NPS TO PARTICIPATE IN THE TECHNICAL COMMITTEE
The GLA also argues that the trial court erred in ordering the DEQ and the NPS to participate in the technical committee because it did not have jurisdiction over those entities because they were not parties to the litigation. We disagree.
The trial court order modifying the preexisting lake level order provided for the formation of a technical committee, to be composed of one member from each of the following: the GLA, the Crystal River Association, the water level committee, the DEQ, the NPS, and the Office of the Leelanau County Drain Commissioner. The trial court ordered the technical committee to develop an implementation plan and a monitoring plan, and to serve as an advisory body and information-gathering resource for the water level committee. Additionally, the trial court ordered the technical committee to annually compile the data and results generated by the monitoring plan and prepare a report for the court, presenting the data and results of monitoring, and recommending any changes or adjustments to the regulation algorithms deemed appropriate. The order provided that the technical committee, the GLA, or the Crystal River Association could seek a hearing before the court regarding the recommendations in the report, or that the court could hold a hearing by its own initiative. Finally, the order provided that the technical committee was to hold meetings no fewer than three times a year.
Initially, as plaintiff points out, the GLA does not have standing to dispute the trial court’s appointment of the DEQ and NPS to the technical committee. “To have standing to appeal means that a person must be ‘aggrieved’ by a lower body’s decision.” Dep’t of Consumer and Industry Services v Shah, 236 Mich App 381, 385; 600 NW2d 406 (1999); MCR 7.203(A). The GLA has provided no authority to suggest that it is properly considered to be “aggrieved” merely because the DEQ and the NPS will be part of the technical committee’s advisory process. Moreover, the record indicates that the DEQ and the NPS have voluntarily participated in technical committee meetings since entry of the order.
Further, MCL 324.30701(g) defines “interested person” as “the department and a person who has a record interest in the title to, right of ingress to, or reversionary right to land that would be affected by a permanent change in the natural or normal level of an inland lake.” The statute specifically mentions the department, i.e., the DEQ, as an “interested person.” And the NPS, as overseer of the Sleeping Bear Dunes, through which the Crystal River runs, is an “interested person” because it would be affected by changes in the level of Glen Lake. As interested persons, the DEQ and the NPS were entitled to provide “testimony and evidence” to the court regarding the appropriate normal lake level, MCL 324.30707(4)(i), and we see no reason they should be disallowed from providing the trial court continuing assistance with respect to adjustments to that level that might become necessary.
Finally, as plaintiff points out, the establishment of the technical committee is somewhat akin to the appointment of an expert witness, which the trial court has the authority to appoint under MRE 706. The rule specifically allows a court to choose an expert “of its own selection.” MRE 706(a). We find no error in the trial court’s decision to include in the technical commit tee entities with the sorts of expertise represented by the DEQ and the NPS.
The GLA’s argument that the trial court erred in establishing a technical committee including the DEQ and the NPS is without merit.
III. PLAINTIFFS’ CROSS-APPEAL
We note that while an appellee is not limited to the issues raised by an appellant if a cross-appeal is filed pursuant to MCR 7.207, Bhama v Bhama, 169 Mich App 73, 83; 425 NW2d 733 (1988), plaintiffs do not raise any additional issues in their cross-appeal and merely reiterate their responses to the issues raised on appeal by the GLA. Therefore, because we have already addressed the issues in the context of the GLA’s appeal as of right, we decline to address them in the context of the cross-appeal.
IV CONCLUSION
We recognize that this case presents environmental and ecological issues of great effect and sensitivity. We commend all parties, as well as the trial court, for the manner in which these issues have been addressed. While some may view today’s result more favorably than others, we appreciate that all involved here have responsibly been seeking an overall approach that will best serve the entire Glen Lake and Crystal River water system.
The trial court’s decision to adopt plaintiffs’ regulation algorithms and management plan was supported by the evidence and was not clearly erroneous. We affirm the trial court’s entry of a modified lake level order.
The predecessor statute, the Inland Lake Level Act (ILLA), 1961 PA 146, was substantively identical to the ILLP Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 386 n 7; 651 NW2d 756 (2002).
The Court reasoned that the statute “does not create or protect individual rights regarding inland lake levels or create a civil cause of action for the benefit of individuals who are not satisfied with the county’s exercise of authority.” Id. at 214.
In light of that determination and in consideration of the fact that the trial court did not consider or base its decisions on the non-ILLP allegations of plaintiffs’ complaint, we need not determine whether plaintiffs had an independent cause of action under the MEPA.
MCL 324.30707(4) provides:
In a determination of the normal level of an inland lake, the court shall consider all of the following:
(a) Past lake level records, including the ordinary high-water mark and seasonal fluctuations.
(b) The location of septic tanks, drain fields, sea walls, docks, and other pertinent physical features.
(c) Government surveys and reports.
(d) The hydrology of the watershed.
(e) Downstream flow requirements and impacts on downstream riparians.
(f) Fisheries and wildlife habitat protection and enhancement.
(g) Upstream drainage.
(h) Rights of riparians.
(i) Testimony and evidence offered by all interested persons.
(j) Other pertinent facts and circumstances.
Again, in light of the fact that the trial court did not consider plaintiffs’ MEPA claims, there is no need to additionally consider the propriety of the DEQ or NPS involvement as disinterested, technically qualified “masters” under MEPA. See MCL 324.1703(2). | [
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PER CURIAM.
Plaintiff, an ex-corporal with the Lincoln Park Police Department, appeals as of right the order of dismissal in this action for the recovery of pension benefits. The issue on appeal involves an earlier order granting summary disposition on behalf of defendant Board of Trustees of the Lincoln Park Policemen’s and Firemen’s Retirement System (the board). Plaintiff asserts that the board incorrectly calculated his pension benefit. We affirm the dismissal of the action.
Plaintiff sustained an injury in the course of his employment that caused him to be completely disabled, unable to maintain his employment. On October 29, 1989, plaintiff retired on account of the disability and received a duty disability annuity of fifty-five percent of his average final compensation. When plaintiff attained the voluntary retirement age of fifty-five in 1998, the board recalculated plaintiffs pension benefit, giving credit for the time plaintiff received the disability annuity. On February 20, 2002, plaintiff filed a complaint seeking recalculation of his retirement benefit. He argued that for the purpose of his retirement benefit, the final average compensation should be calculated using a corporal’s wages for the five-year period preceding the date plaintiff reached the voluntary retirement age of fifty-five.
On January 14, 2003, the board filed a motion for summary disposition pursuant to MCR 2.116(0(10). The board asserted that plaintiff took a duty disability retirement in 1989, and the board, in conformance with the terms of § 296.15 of the retirement provisions provided plaintiff with a disability annuity based on an average final compensation figure derived from plaintiffs compensation in the five years before his retire ment in 1989. When plaintiff reached the voluntary retirement age of fifty-five in 1998, the board recalculated plaintiffs benefit pursuant to § 296.13 of the retirement provisions to include credited service accumulated during plaintiffs disability, retaining the average final compensation figure determined in 1989. The board maintained that because average final compensation is calculated using the five-year period before a member’s effective date of retirement, and because plaintiffs effective date of retirement was 1989, the board properly used the years 1984 through 1989 to calculate plaintiffs average final compensation. The trial court concurred with the board’s position and granted the board’s motion for summary disposition.
Plaintiff argues that the board erred when it calculated plaintiffs average final compensation. He contends that his average final compensation should have been based on a corporal’s rate of compensation for the five-year period preceding 1998, the year plaintiff reached the voluntary retirement age of fifty-five and his retirement was switched from a duty disability retirement to a service retirement.
Pension benefits are provided by the city of Lincoln Park Policemen’s and Firemen’s Retirement System in accordance with chapter 296 of the Charter of the City of Lincoln Park. “The rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances.” Gora v Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998). This Court’s goal in interpreting either statutes or ordinances is to give effect to the intent of the enactors. Warren’s Station, Inc v City of Bronson, 241 Mich App 384, 388; 615 NW2d 759 (2000). We do so by examining the plain language used in the enactment. Id. “If the language is clear and unambiguous, the courts may only apply the language as written.” Brandon Charter Twp v Tippett, 241 Mich App 417, 422; 616 NW2d 243 (2000), citing Ahearn v Bloomfield Charter Twp, 235 Mich App 486, 498; 597 NW2d 858 (1999).
Sections 296.14 and 296.15 of the charter govern duty disability retirements. Section 296.14 provides in pertinent part:
Upon the application of a member or his or her department head, a member who has become or becomes totally and permanently incapacitated for duty in the service of the City, by reason of a personal injury or disease which the Retirement Board finds to have occurred solely and exclusively as the natural and proximate result of causes arising out of and in the course of his or her employment by the City, shall be retired by the Board after a medical examination of such member is made by or under the direction of a medical committee.
Section 296.15(b) provides:
A member who retires before attainment of his or her voluntary retirement age, on account of disability as provided in Section 296.14, shall receive a disability annuity of fifty-five percent of his or her average final compensation. Such disability annuity shall begin as of the date of his or her disability, but in no case more than six months before the date his or her application for disability retirement is filed with the Retirement Board or before the date his or her name last appeared on a City payroll with pay, whichever is later. Such disability annuity shall continue to his or her attainment of voluntary retirement age or recovery prior thereto. Such disability annuity shall be subject to Sections 296.20 and 296.21 and shall not exceed sixty-five percent of the average final compensation. [Emphasis added.]
“Retirement” is defined as “a member’s withdrawal from service of the City with an annuity payable from funds of the retirement system.” Section 296.02(n). “Average final compensation” is defined as “the average of the annual compensations for the ranks held by a member during his five years of service immediately preceding the effective date of his retirement... Section 296.02(d). “Service” is defined as “service rendered by a police officer or firefighter in the employ of the City and paid for by the City.” Section 296.02(o).
Under §§ 296.14 and 296.15 of the retirement system provisions, a police officer who suffers a disabling injury in the course of his employment may be retired and may receive a disability annuity. Section 296.15(a) states that “[a] member who retires ... on account of disability ... shall receive a disability annuity . ...” Plaintiff asserts in his complaint that he began receiving a duty disability annuity from the city on October 29, 1989, after suffering an injury in the course of his employment. The disability annuity was fifty-five percent of plaintiffs average final compensation.
When plaintiff attained the age of fifty-five in 1998, his duty disability retirement converted to a service retirement pursuant to § 296.15(c), which provides:
Upon attaining voluntary retirement age,[ ] such disability retirant shall receive annuity according to Section 296.13. In computing such annuity, to begin as of his or her attainment of voluntary retirement age, he or'she shall be given service credit for the time he or she received a disability annuity provided for in subsection (b) hereof.
Section 296.13 provides:
Upon retirement as provided herein, a member shall receive a straight life annuity equal to 2.5 percent of his or her average final compensation, multiplied by the number of years and fraction of a year of credited service, subject to a maximum of seventy percent of his or her average final compensation.
The plain language of § 296.13 states that a member’s annuity will be based on his or her “average final compensation.” As stated above, “average final compensation” is defined as “the average of the annual compensations for the ranks held by a member during his or her five years of service immediately preceding the effective date of his or her retirement. . . .” Plaintiff did not render service to the city after he took the duty disability retirement in 1989. The board properly applied the plain language of § 296.13 when it calculated plaintiffs average final compensation by averaging plaintiffs annual compensations for the ranks he held during his five years of service immediately preceding the effective date of his retirement in 1989.
Affirmed.
“Voluntary retirement age” means, for a new member, the attainment of age fifty-five with twenty-five or more years of service or after twenty-eight years of service regardless of age. For an interim member, “voluntary retirement age” means the attainment of age fifty-five or after twenty-eight years of service regardless of age. For an original member, “voluntary retirement age” means the attainment of age fifty with twenty-five years of credited service, or age sixty regardless of the number of years of credited service, or after twenty-eight years of service regardless of age. Section 296.02(p). It is undisputed that plaintiff attained the voluntary retirement age of fifty-five in 1998. | [
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ON RECONSIDERATION
Before: FITZGERALD, EJ., and BANDSTRA and SCHUETTE, JJ.
PER CURIAM.
Petitioner, Police Officers Association of Michigan (POAM), appeals as of right the order granting summary disposition pursuant to MCR 2.116(0(10) in favor of respondents, Ottawa County Sheriff, Ottawa County, and Ottawa County Board of Commissioners. On reconsideration, we reverse and remand. See Police Officers Ass’n of Michigan v Ottawa Co Sheriff, 263 Mich App 358 (2004).
I
POAM is a labor organization that serves as the bargaining agent for the sheriffs deputies who are employed by respondents. The collective bargaining agreement that existed between POAM and respondents expired on December 31, 1999. On June 5, 2000, POAM filed a petition on behalf of the sheriffs deputies seeking compulsory arbitration under 1969 PA 312, which provides for compulsory arbitration of labor disputes in municipal police and fire departments. MCL 423.231. In its petition, POAM identified fourteen dis puted issues, including “Grievance Procedure” and “Arbitrator’s Powers.”
The arbitration panel held a prehearing conference on September 19, 2000, and identified all the issues to be arbitrated as “economic.” The panel also identified “retroactivity” as an issue. On September 26, 2001, POAM accepted respondents’ offer of settlement, but noted that “there were remaining issues concerning ‘duration (retroactive) on wages and grievance procedure duration (retroactive/prospective).’ ”
On October 4, 2001, the arbitration panel conducted an arbitration hearing on the unsettled issues. POAM raised an issue regarding respondents’ refusal to arbitrate grievances that occurred after the expiration of the prior collective bargaining contract. POAM sought retroactive arbitration of the twelve grievances, and respondents contended, in part, that the issue was not timely because the issue of retroactivity of arbitration of grievances was not contained in the initial petition for arbitration.
The arbitration panel issued a majority opinion and award on February 4, 2002, declining to consider POAM’s last best offer concerning the right to retroactively arbitrate grievances because “the Act and the rules prohibit a consideration of the arbitration-related issues at a time near or at the scheduled arbitration hearing.” The panel’s majority cited MCL 423.238, as well as 1999 AC, R 423.505 and 423.507, in support of its conclusions.
On February 21, 2002, POAM filed a complaint seeking to vacate that portion of the arbitration award that refused to consider POAM’s last best offer on the right to arbitrate pending grievances. POAM argued that MCL 423.238 and Rules 423.505 and 423.507 do not prohibit a party from raising “issues in dispute prior to the close of the hearing, and that both POAM and defendants were ‘on notice of the existence of the dispute throughout the pendency of the arbitration proceeding.’ ” Both parties moved for summary disposition. The trial court granted respondents’ motion for summary disposition, agreeing with the reasoning of the arbitration panel’s majority.
II
POAM argues that the arbitration panel erred by refusing to consider POAM’s last best offer regarding the retroactive arbitration of grievances at the hearing and that the trial court erred by granting summary disposition in favor of respondents. This Court reviews de novo a trial court’s grant or denial of summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Similarly, statutory construction is a question of law that is subject to review de novo. Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995). While circuit courts are limited in their review of arbitration decisions pursuant to statute, MCL 423.242, we may review an error of law that is substantial and apparent on its face. Collins v Blue Cross Blue Shield of Michigan, 228 Mich App 560, 567; 579 NW2d 435 (1998) (citations omitted).
Section 8 of Act 312, MCL 423.238, provides in relevant part:
At or before the conclusion of the hearing held pursuant to section 6, the arbitration panel shall identify the economic issues in dispute, and direct each of the parties to submit, within such time limit as the panel shall prescribe, to the arbitration panel and to each other its last offer of settlement on each economic issue. The determination of the arbitration panel as to the issues in dispute and as to which of these issues are economic shall be conclusive. [Emphasis added.]
The arbitration panel concluded that “by allowing an issue to be added near or at the hearing, when it is opposed by the other side, serious problems could be created.”
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Gladych v New Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003). The plain language of MCL 423.238 provides that the arbitration panel shall identify the economic issues in dispute at or before the conclusion of the hearing held pursuant to section 6. The Legislature’s use of the disjunctive “or” indicates that the Legislature intended for arbitration panels to determine the economic issues in dispute either at the hearing or before the conclusion of hearing. There is no language in MCL 423.238 that requires issues to be determined before the hearing or that precludes the consideration of new issues at the hearing. The arbi tration panel’s conclusion that the issue regarding the retroactive arbitration of grievances was precluded under MCL 423.238 because the issue was not raised before the hearing does not comport with the plain language of the statute and is an error of law that is substantial and apparent on its face.
Additionally, statutory language should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp v City of Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001). Because police and fire departments are forbidden from striking, public policy requires an “alternate, expeditious, effective and binding procedure for the resolution of disputes” to maintain the high morale of the employees and the efficient operation of the departments. MCL 423.231. “[T]o that end, the provisions of [MCL 423.231 et seg.] shall be liberally construed.” MCL 423.231.
Accordingly, we conclude that the arbitration panel erred in concluding that MCL 423.238 precluded the consideration at the arbitration hearing of POAM’s issue regarding the retroactive arbitration of grievances. Nothing in the plain language of MCL 423.238 precludes a party from identifying a disputed issue at the arbitration hearing. The arbitration panel erred by failing to consider POAM’s last best offer on the issue of retroactive arbitration of grievances, and the trial court erred by granting respondents’ motion for summary disposition.
Reversed and remanded. Jurisdiction is not retained.
Under Act 312, an arbitration panel is composed of an employer’s delegate, and employee’s delegate, and an impartial delegate from the Michigan Employment Relations Commission. MCL 423.234.
POAM’s delegate on the panel dissented.
MCL 423.238 only applies to economic issues. While appellant challenges both the panel’s determination that the retroactivity question is arbitrable and that it is an economic issue, for purposes of this case these determinations are “conclusive.” MCL 423.238.
Section 6, MCL 423.236, provides in relevant part:
Upon the appointment of the arbitrator, he shall proceed to act as chairman of the panel of arbitration [and] call a hearing, to begin within 15 days.... The hearing conducted by the arbitration panel may be adjourned from time to time, but, unless otherwise agreed by the parties, shall be concluded within 30 days of the time of its commencement....
Nonetheless, the record makes clear that the parties discussed the issue of retroactive arbitration of grievances and that defendants were on notice that the issue was in dispute.
The arbitration panel also relied, in part, on 1999 AC, R 423.505 and 423.507(1) and (2) in rejecting POAM’s last best offer regarding the arbitration of grievance issues. 1999 AC, R 423.505 provides for the submission of a petition to initiate compulsory arbitration under Act 312. 1999 AC, R 423.507 addresses the prehearing and arbitration hearings. Neither rule requires the identification of issues in advance of the hearing.
Respondents raise several alternative grounds for affirming the trial court’s grant of summary disposition in their favor, none of which we find persuasive. | [
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PER CURIAM.
Defendant Richard Fox, as an owner of an undivided one-eighth interest in 2620 First Street (the First Street lot), a riparian lot on Gun Lake previously owned by defendants John and Linda Rough, appeals as of right from the trial court order permanently enjoining defendant and several other First Street lot owners from using the First Street lot to access Gun Lake in violation of the plaintiff Yankee Springs Township’s antifunneling ordinance found within its riparian-lot-use regulations. We affirm.
Defendant first argues that the plaintiffs riparian ordinance does not apply to Gun Lake because the lake is not wholly located within the plaintiffs borders. We disagree. We review the trial court’s interpretation of the township zoning ordinance de novo. Brandon Charter Twp v Tippett, 241 Mich App 417, 421; 616 NW2d 243 (2000).
In Hess v West Bloomfield Twp, 439 Mich 550, 562; 486 NW2d 628 (1992), our Supreme Court held that riparian rights are derived from land. Thus, it is the location of the riparian land, and not the location of the lake that abuts the land, that determines the plaintiffs authority and jurisdiction in this case. Further, the Township Zoning Act, MCL 125.271 et seq., “permits townships to regulate riparian rights, such as dockage of boats, as part of their zoning power.” Hess, supra at 565-566. Therefore, because the riparian lot at issue is located within plaintiffs boundaries and because plaintiff is authorized by statute to regulate riparian rights, plaintiff has the authority to regulate defendant’s riparian rights in this case.
Defendant next contends that the riparian-lot-use regulations are void for vagueness because the regulations do not provide fair notice of the conduct proscribed. We review the constitutionality of this ordinance de novo. Jott, Inc v Clinton Charter Twp, 224 Mich App 513, 525; 569 NW2d 841 (1997).
A statute or ordinance may be void for vagueness if (1) it is overbroad and impinges on First Amendment freedoms, (2) it does not provide fair notice of the conduct it regulates, or (3) it gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated. Dep’t of State v Michigan Ed Ass’n-NEA, 251 Mich App 110, 116; 650 NW2d 120 (2002). Because defendant’s void-for-vagueness challenge is limited to the argument that the ordinance does not provide fair notice of the conduct proscribed, we must examine the constitutionality of the ordinance “ ‘without concern for the hypothetical rights of others.’ ” People v Knapp, 244 Mich App 361, 374 n 4; 624 NW2d 227 (2001), quoting People v Vronko, 228 Mich App 649, 652; 579 NW2d 138 (1998). Thus, “ ‘[t]he proper inquiry is not whether the [ordinance] may be susceptible to impermissible interpretations, but whether the [ordinance] is vague as applied to the conduct allegedly proscribed in this case.’ ” Knapp, supra at 374 n 4, quoting Vronko, supra at 652.
The relevant section of the plaintiffs zoning ordinance concerning riparian-lot-use regulations provides as follows:
In any zoning district where a parcel of land is contiguous to a lake or pond, either natural or man-made, such parcel of land may be used as access property or as common open space held in common by a subdivision, association or any similar agency; or held in common by virtue of the terms of a plat of record; or provided for common use under deed restrictions of record; or owned by two or more dwelling units located away from the waterfront only if the following conditions are met:
1. That said parcel of land shall contain at least 70 lineal feet of water frontage and a lot depth of at least 100 feet for each dwelling unit or each single-family unit to which such privileges are extended or dedicated.... [Section 15.14.2.]
Defendant argues that, under one permissible interpretation, the various types of ownership listed in the introductory paragraph of this section can be interpreted as modifying both “access property” and “common open space.” According to defendant, if such an interpretation is adopted, the lot owners are not in violation of the ordinance because the First Street lot does not constitute access property “owned by two or more dwelling units located away from the waterfront.” Defendant further contends that one can also interpret the types of ownership listed in the introductory para graph as modifying only “common open space.” Under the second interpretation, defendant would be in violation of the ordinance because the First Street lot qualifies as access property.
Under the rules of grammar and statutory construction, which apply to ordinances, Gora v City of Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998), if reasonable minds can differ with respect to the meaning of a statute, judicial construction is appropriate. Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998). However, we believe that reasonable minds could not disagree regarding the meaning of the ordinance.
The disjunctive term “or” refers to a choice or alternative between two or more things. Root v Ins Co of North America, 214 Mich App 106, 109; 542 NW2d 318 (1995). Accordingly, applying basic grammar rules and rules of statutory construction, the introductory paragraph set forth in § 15.14.2 of the zoning ordinance can only correctly be interpreted in one way. Consequently, there can be no question that for a parcel of land to be used as access property, it must comply with the conditions listed in § 15.14.2, including:
1. That said parcel of land shall contain at least 70 lineal feet of water frontage and a lot depth of at least 100 feet for each dwelling unit or each single-family unit to which such privileges are extended or dedicated. Frontage shall be measured by a straight line which intersects each side lot line at the water’s edge.
At least eight families with nonwaterfront dwellings own one-eighth interests in the First Street lot. Because the lot has only 103 feet of water frontage, the riparian-lot-use regulations prohibit the use of the lot as access property. Thus, we find that the ordinance was not void for vagueness.
Defendant next argues that the ordinance is unconstitutional because it denies him substantive due process. We disagree.
As stated previously, we review the trial court’s ruling on a constitutional challenge to a zoning ordinance de novo. Jott, supra at 525. Judicial review of a challenge to an ordinance on substantive due process grounds requires application of three rules:
(1) the ordinance is presumed valid; (2) the challenger has the burden of proving that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of the property; that the provision in question is an arbitrary fiat, a whimsical ipse dixit; and that there is not room for a legitimate difference of opinion concerning its reasonableness; and (3) the reviewing court gives considerable weight to the findings of the trial judge. [A & B Enterprises v Madison Twp, 197 Mich App 160, 162; 494 NW2d 761 (1992).]
To establish that a zoning ordinance violates substantive due process protections, a party must show (1) that there is no reasonable governmental interest advanced by the zoning classification or (2) that the ordinance is unreasonable because it contains arbitrary, capricious, and unfounded exclusions of legitimate land use. Frericks v Highland Twp, 228 Mich App 575, 594; 579 NW2d 441 (1998).
The 1987 antifunneling ordinance in question explains the problems that led to its adoption, including overcrowding and pollution of lakes and other waterways, as well as the dangers to life and property posed by an increased risk of boating accidents. Likewise, the expressed intent of the riparian-lot-use regulations is that the regulations are designed to prevent funnel development and to protect and preserve lakes.
The protection of natural resources such as lakes is a reasonable governmental interest. In Hess, our Su preme Court stated that the Legislature, in granting townships the authority to promote public health, safety, and general welfare by enacting zoning ordinances, was complying with its “constitutional mandate to protect the environment, including bodies of water, from impairment or destruction.” Hess, supra at 565. Protecting Gun Lake from congestion and pollution and protecting the public from the risk of increased boating accidents promotes public health, safety, and welfare. The goals of the ordinance are reasonable governmental interests that state law expressly permits townships to regulate. Further, limiting the number of dwelling units given access to riparian lots will curtail tunneling, or lake access by nonriparian lot owners. Thus, the ordinance is rationally related to its stated purpose.
Furthermore, the ordinance is not unreasonable as an arbitrary and capricious exclusion of legitimate uses of land. We find a rational relationship between the ordinance and its objective. Limiting the number of dwelling units with lake access to one for every seventy feet of lakefront property would curtail lake congestion, pollution, and the risk of boating accidents by cutting down on overuse. The fact that the ordinance does not seek to regulate public lake access does not make it arbitrary or capricious. Likewise, the fact that the ordinance does not regulate all types of access does not mean it is not rationally related to its goals of reducing lake congestion, lowering the risk of accidents on the lake, and preserving the lake. On the contrary, the riparian regulations at issue limit overuse by cutting down on the private use of the lakefront by owners of nonwaterfront property. Thus, the regulations are neither arbitrary nor capricious.
Plaintiffs failure to similarly regulate the use of state-licensed marinas or planned unit developments or to coordinate its riparian ordinance with ordinances of other townships surrounding the lake does not render the ordinance arbitrary and capricious. As our Supreme Court has cautioned:
[I]t is the burden of the party attacking to prove affirmatively thát the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property. ... It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness. [Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 432; 86 NW2d 166 (1957).]
Here defendant has not shown that there is no room for a difference of opinion on the reasonableness of the ordinance. Again, the mere fact that the ordinance does not regulate all types of lakefront access, but only regulates lakefront access of residential riparian lots, does not lead to the conclusion that the ordinance is an arbitrary one. The ordinance’s riparian-lot-use regulations apply uniformly to all residential riparian lots, and not just to defendant’s lot. We therefore conclude that the ordinance is not an arbitrary restriction on defendant’s use of his property.
Defendant finally argues that the trial court erred in finding that plaintiffs claim was not barred by the equitable affirmative defense of laches. We disagree. We review a trial court’s equitable decisions de novo. Webb v Smith (After Second Remand), 224 Mich App 203,210; 568 NW2d 378 (1997). We review for clear error the findings of fact supporting the trial court’s equitable decision. Id.
The doctrine of laches is concerned with unreasonable delay that results in “circumstances that would render inequitable any grant of relief to the dilatory plaintiff.” In re Contempt of United Stationers Supply Co, 239 Mich App 496, 503-504; 608 NW2d 105 (2000). The application of the doctrine of laches requires the passage of time combined with a change in condition that would make it inequitable to enforce the claim against the defendant. Gallagher v Keefe, 232 Mich App 363, 369; 591 NW2d 297 (1998). Laches does not apply unless the delay of one party has resulted in prejudice to the other party. City of Troy v Papadelis (On Remand), 226 Mich App 90, 97; 572 NW2d 246 (1997). “ Tt is the effect, rather than the fact, of the passage of time that may trigger the defense of laches.’ ” Id., quoting Great Lakes Gas Transmission Co v MacDonald, 193 Mich App 571, 578; 485 NW2d 129 (1992). The defendant has the burden of proving that the plaintiffs lack of due diligence resulted in some prejudice to the defendant. Gallagher, supra at 369-370. Laches can be applied to bar an attempt to abate a zoning ordinance violation. Independence Twp v Skibowski, 136 Mich App 178, 185; 355 NW2d 903 (1984).
Defendant presented testimony that plaintiff knew of John Rough’s plan to sell undivided one-eighth interests in his riparian lot to provide nonriparian lot owners with private lakefront access as early as 1994, as evidenced by the fact that the plaintiffs assessor and supervisor warned Rough at that time that his actions violated the plaintiffs antifunneling ordinance. According to defendant, plaintiff, despite knowing of Rough’s plan in 1994, failed to initiate its action to enforce the antifunneling ordinance until March 2002 and, therefore, failed to exercise due diligence in bringing its action against defendant.
On June 4, 1997, Rough filed an affidavit with the Barry County Register of Deeds acknowledging that he was aware of the existence of an antifunneling ordinance before he pursued his plan to convey undivided interests in the First Street lot for lakefront access. The trial court, relying on the fact that Rough’s affidavit was recorded in 1997, concluded that defendant and the other First Street lot owners had constructive notice that plaintiff had an antifunneling ordinance before they purchased their interests in the First Street lot. Therefore, according to the trial court, defendant was not prejudiced by plaintiffs delay in initiating its action.
Defendant contends that constructive notice was insufficient to permit the conclusion that defendant was not prejudiced by plaintiffs dilatory tactics. In Larzelere v Starkweather, 38 Mich 96, 107 (1878), our Supreme Court stated:
There are cases which go very far in extending the doctrine of laches in applying the rule of constructive notice. We think, however, the better and certainly the safer rule to be that a mere want of caution is not sufficient, — not that [a party] had incautiously neglected to make inquiries, but that he had designedly abstained from making inquixy for the very purpose of avoiding knowledge. In other words, that he acted in bad faith.
To the extent that this language can be interpreted as suggesting that constructive notice is insufficient when applying the doctrine of laches, we conclude that it is inapplicable because it speaks to a set of facts not present in this case. When Rough first informed plain tiff of his plan to subdivide the First Street lot to provide lakefront access, plaintiff told him that such actions were in violation of the plaintiffs antifunneling ordinance. Thereafter, plaintiff sent Rough a letter specifically informing him that his conveyances of one-eighth interests in the First Street lot were not in compliance with the riparian-lot-use regulations of the plaintiffs zoning ordinance. The trial court correctly held that, following Rough’s recording of the affidavit with the register of deeds, plaintiff had every reason to believe that any potential buyers of a one-eighth interest in the First Street lot had, at the very least, constructive notice of the plaintiffs position regarding enforcement of its antifunneling ordinance relative to the First Street lot. At a minimum, on the basis of the filing of the affidavit, defendant had constructive notice of the existence of plaintiffs antifunneling ordinance in 1997, before he purchased a one-eighth interest in the First Street lot. Therefore, he was not prejudiced by plaintiffs failure to initiate this action until 2002. We hold that the trial court did not err in concluding that plaintiffs claims were not barred by laches.
Affirmed.
Moreover, we observe that in Larzelere, our Supreme Court recognized that, notwithstanding the doctrine of stare decisis, a rule of law from a case that is factually distinguishable may not be binding on a different set of facts:
In the preparation of an opinion, the facts of the case are in mind. It is prepared with reference to such facts, and when considered in connection therewith, will generally be found satisfactory. When, however, an attempt is made to pick out particular parts or sentences, and apply them indiscriminately in other cases, nothing but confusion and disaster will be likely to follow. In other words, the opinion and decision of a court must be read and examined as a whole in the light of the facts upon which it was based. [Larzelere, supra at 101.] | [
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PER CURIAM.
The petitioner appeals by leave granted the trial court’s partial grant of the respondent’s motion in limine and motion for reconsideration of, or relief from, the order approving the supplemental petition in this child protective proceeding. The respondent cross-appeals the trial court’s partial denial of the same motions. In the petitioner’s appeal, we reverse the trial court’s order to the extent that it prevents the petitioner from presenting evidence concerning the circumstances of Florence Unger’s death at proceedings to determine whether the trial court has jurisdiction over ■the respondent’s minor sons under MCL 712A.2. In the respondent’s cross-appeal, we affirm the trial court’s denial of the respondent’s motion on the basis that proving criminality for purposes of MCL 712A.2(b)(2) does not require a prior criminal adjudication of guilt.
i
The respondent is the father of two minor sons, born in 1993 and 1996. This child protective matter arises from the respondent’s suspected involvement in the murder of his wife, the children’s mother, Florence Unger. In October 2003, the respondent, Mrs. Unger, and their sons went on a vacation to Benzie County, where they rented a cabin on Lower Herring Lake. About 8:00 a.m. on October 25, 2003, Mrs. Unger was found dead, lying at the edge of the lake. According to the investigating officer, Benzie County Sheriffs Deputy Detective Sergeant Tom Kelly, Mrs. Unger appeared to have fallen from a boathouse deck onto a concrete pad twelve feet below. Blood on the concrete pad indicated that her body had been moved between 2-1/2 and 3 feet from the concrete pad into the water. The medical examiner concluded that the death was a homicide.
Although the respondent was not immediately charged with any crimes arising from Mrs. Unger’s death, he was apparently the focus of the investigation and the lone suspect in the killing. Soon after Mrs. Unger’s death, the respondent’s sons were removed from his care and placed with maternal relatives. The office of the Benzie Prosecuting Attorney sought temporary wardship of the minor children, which the Benzie Circuit Court, Family Division, approved on October 27, 2003. The parties stipulated a change of venue to Oakland County, the minor children’s county of residence.
Thereafter, in November 2003, the petitioner filed a “supplemental” petition to terminate the respondent’s parental rights, which the trial court authorized. The petition sought jurisdiction over the children on the basis of MCL 712A.2(b)(l) and (2), and explicitly stated that the children’s “home or environment, by reason of neglect and/or cruelty and/or criminality and/or drunkenness and/or depravity of Father is an unfit place for the children to live. They are subject to a substantial risk of harm to their mental well being.” The petition sought to terminate the respondent’s parental rights under MCL 712A.19b(3)(g) and (j). The “criminality” alleged in the petition is the alleged murder of Mrs. Unger, which alleged criminality is based on the testimony by Detective Sergeant Kelly during a preliminary hearing on the original petition.
In February 2004, after the trial court had authorized the supplemental petition and before the trial to determine the trial court’s jurisdiction over the children, the respondent moved for reconsideration or rehearing of the trial court’s order authorizing the supplemental petition. The respondent first sought dismissal of the petition on the basis that because the petitioner’s statutory basis for asserting jurisdiction depended on its theory that the respondent killed Mrs. Unger, there could be no jurisdiction because the trial court lacked authority to determine “criminality” in the absence of a criminal conviction. Alternatively, the respondent contended that because the trial court lacked subject-matter jurisdiction to find him guilty of a criminal offense, any evidence of alleged criminality should be excluded pursuant to MRE 403. The respondent also asserted that the introduction by the petitioner of evidence of alleged “criminality” represented an attempt to “try” the criminal case in this civil proceeding, thus violating his right to due process and a fair trial.
In reply to the respondent’s motion, the petitioner contended that evidence of the homicide was highly relevant to proving both the criminality alleged as the basis for jurisdiction and that respondent was a danger to the minor children. The petitioner also asserted that use of evidence of criminality did not constitute an attempt to try the criminal case in this civil proceeding and, moreover, that the petitioner was not entitled to the protections guaranteed a criminal defendant. The guardian ad litem appointed to represent the children agreed with the petitioner’s assertions, arguing that the focus of the proceedings was not whether the respondent could be found guilty of homicide, but whether there was a basis for the trial court to exercise jurisdiction over the minor children.
In its written opinion, the trial court, although first acknowledging that criminality was not the only basis for jurisdiction alleged in the supplemental petition, rejected the respondent’s contention that a criminal conviction or charge was a necessary prerequisite to a finding of criminality for the purpose of establishing jurisdiction over the minor children. Nevertheless, the trial court granted the respondent’s motion to exclude evidence regarding Mrs. Unger’s death, concluding that the use of such evidence against the respondent in the absence of criminal charges or a conviction would deny the respondent the due process of law. The trial court stated:
[T]he prosecutor has repeatedly stated, in various phrases and interpretations, that he will prove that respondent murdered Florence Unger in the adjudicative phase of these proceedings. The standard of review [sic] in the adjudicative phase is a preponderance of the evidence. MCR 3.972(C). This court’s evaluation of respondent’s due process rights in this civil child protective proceeding will affect respondent’s rights to care for and manage his children. A risk of erroneous deprivation of the right to care for and manage his children exists by attempting to try a criminal case in family court using a lower burden of proof standard.
The trial court also concluded that although collateral estoppel would not apply to future criminal proceedings, the outcome of the civil proceedings could prejudice the respondent, his children, Mrs. Unger’s family, or the state in a future criminal proceeding. For these reasons, the trial court barred petitioner from offering any evidence regarding the circumstances of Florence Unger’s death in this proceeding.
This appeal and cross-appeal ensued, and on May 19, 2004, we granted the petitioner’s application for leave to appeal and stayed proceedings in the trial court.
II
We review de novo questions of statutory interpretation. People v Hock Shop, Inc, 261 Mich App 521, 524; 681 NW2d 669 (2004). We review for abuse of discretion a trial court’s decision to admit or exclude evidence; however, when resolving an evidentiary issue requires resolving a question of law such as a constitutional question, our review is de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999); Mahaffey v Attorney General, 222 Mich App 325, 334; 564 NW2d 104 (1997).
m
A
In light of its potentially dispositive nature, we first address the respondent’s argument on cross-appeal. The respondent contends that the petitioner cannot prove that “criminality” rendered the minor children’s home or environment unfit on the date the supplemental petition was filed, MCL 712A.2(b)(2), because the respondent had not been convicted of a crime at that time and the trial court lacks subject-matter jurisdiction to make a finding of criminality. We disagree.
[A] family court has subject-matter jurisdiction when the allegations in the petition provide probable cause to believe that it has statutory authority to act because the child’s parent or guardian neglected the child, failed to provide a fit home, or committed any of the other conduct described in the statute. Whether the allegations are later proved true is irrelevant to whether the family court has subject-matter jurisdiction. [In re AMB, 248 Mich App 144, 168; 640 NW2d 262 (2001).]
The statute providing the family court’s authority, MCL 712A.2, provides, in part:
The court has the following authority and jurisdiction:
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:
(1)... who is subject to a substantial risk of harm to his or her mental well-being.. . [or]
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
For the family court to acquire jurisdiction over the minor children, “the factfinder must determine by a preponderance of the evidence that the child comes within [a] requirement of MCL 712A.2.” In re S R, 229 Mich App 310, 314; 581 NW2d 291 (1998).
We first briefly address the respondent’s rather unremarkable argument that the petitioner must establish that criminality rendered the home or environment unfit at the time the petition was filed. The statute speaks in the present tense, and, therefore, the trial court must examine the child’s situation at the time the petition was filed. The respondent claims that such a showing cannot be made in this case because he was not convicted of a crime at that time the petition was filed. As discussed below, however, we conclude that “criminality” does not mean “conviction.”
The Legislature did not define “criminality” for the purpose of MCL 712A.2. Accordingly, we consult dictionary definitions to assist us in giving the term its ordinary and generally accepted meaning. People v Cathey, 261 Mich App 506, 514 n 4; 681 NW2d 661 (2004), citing Koontz v Ameritech Services, Inc, 466 Mich 304, 313; 645 NW2d 34 (2002). The primary definition of “criminality” is “the state of being criminal.” Random House Webster’s College Dictionary (2nd ed, 2000). The primary definition of “criminal” is “of the nature of or involving crime.” Id.
Contrary to the respondent’s assertions, in order for the trial court to assume jurisdiction over the minor children on the basis of criminality, the petitioner does not need to prove that the respondent was convicted of a crime. “[T]he state of being criminal” differs from the state of being prosecuted and convicted of a criminal offense because an activity can be criminal in nature regardless of whether the violated criminal law is enforced. The petitioner, therefore, must demonstrate by a preponderance of the evidence only that the respondent engaged in criminal behavior. As the petitioner aptly notes, if the Legislature intended to require proof of a conviction, it would have said so as it did in MCL 712A.19b(3)(n), which permits the trial court to terminate parental rights if it finds by clear and convincing evidence that the parent is “convicted” of violating specific sections of the penal code and that termination is in the child’s best interests. Because the Legislature did not state that a petition founded on MCL 712A.2(b)(2) must be predicated on a conviction, we conclude that it did not intend such a requirement. See Hock Shop, Inc, supra at 528-530, citing People v Wilcox, 83 Mich App 654; 269 NW2d 256 (1978).
We further disagree with the respondent’s contention that the trial court lacks subject-matter jurisdiction to make a finding of criminality. The fact that the trial court cannot determine the respondent’s guilt and issue a judgment of conviction for the criminal charge against him does not preclude it from determining that a preponderance of the evidence demonstrates that the respondent engaged in criminal behavior and that the behavior has rendered the home or environment unfit. Because a factual finding of “criminality” differs from the imposition of a judgment of conviction, the trial court does not exceed the bounds of its jurisdiction by determining that criminality exists.
B
The petitioner first asserts on appeal that the trial court erred by deciding that finding criminality on the basis of the respondent’s responsibility for Mrs. Unger’s death, in the absence of a criminal charge or conviction, violates the respondent’s due process rights. We agree.
“ ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993), quoting Mathews v Eldridge, 424 US 319, 332, 334; 96 S Ct 893; 47 L Ed 2d 18 (1976) (citation omitted). “ ‘Analysis of what process is due in a particular proceeding depends on the nature of the proceeding and the interest affected by it.’ ” Sherrod v Detroit, 244 Mich App 516, 524; 625 NW2d 437 (2001), quoting Klco v Dynamic Training Corp, 192 Mich App 39, 42; 480 NW2d 596 (1991). In child protective proceedings, the focus is the protection of the child, not the punishment of the parent, Brock, supra at 107-108, or the vindication of “the public interest in the enforcement of the criminal law... ,” People v Gates, 434 Mich 146, 162; 452 NW2d 627 (1990).
We consider the following factors to determine what process is due:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” [Brock, supra at 111, quoting Mathews, supra at 335.]
In the adjudicative phase of a child protective proceeding, the parent’s liberty interest at stake is the interest in managing his children, and the procedures used in such proceedings protect the parent from the risk of being erroneously deprived of this interest. Brock, supra at 111. The governmental interest at stake is the child’s welfare, which coincides with the child’s interest of being free from an abusive environment. Id. 113 n 19. “ ‘[T]he child’s interest in a continuation of the family unit exists only to the extent that such a continuation would not be harmful to him.’ ” Id. (citation omitted).
Here, despite concluding that it has the authority to make a factual finding of criminality and that such a finding does not depend on proof of a conviction, the trial court nevertheless concluded that determining criminality in this case in the absence of a criminal charge or conviction would violate respondent’s due process rights because “attempting to try a criminal case in family court using a lower burden of proof” creates a risk of erroneous deprivation. We find that the trial court erred in this conclusion.
Rather than appropriately balancing the factors stated in Mathews, supra at 335, the trial court focused on the harm the children would suffer if deprived of their father and the potential bias the respondent might incur in the subsequent criminal proceedings. As stated above, however, the children’s interest in maintaining a relationship with their father exists only to the extent that it would not be harmful to them. Brock, supra at 113 n 19. Their welfare is of the utmost importance in these proceedings, id. at 115, and due process is not offended by determining whether the trial court has jurisdiction to decide whether the relationship with their father should continue. Procedural due process seeks to protect the children from an erroneous termination of their relationship with their father, not a statutorily proper termination. See id. at 113.
By weighing the potential for bias against the respondent in future criminal proceedings, the trial court departed from its responsibility to determine the process due the respondent in this case and improperly considered and applied to these proceedings the due process to which the respondent would be entitled in the criminal proceedings. We emphasize that the respondent’s liberty interest in these proceedings is the care and maintenance of his children. Id. at 111. His right to due process in this case is not offended by determining, even in the absence of a criminal conviction, whether a preponderance of the evidence shows that he engaged in criminal behavior. In this regard, a finding that jurisdiction rests with the trial court in this case does not amount to a criminal conviction, and the respondent cannot be punished as a result of the adjudicative proceeding. Moreover, in light of the lower burden of proof in this case, a finding of criminality is insufficient to establish the respondent’s guilt in the criminal proceeding. See Gates, supra at 159. In any subsequent criminal proceeding, the respondent will have all the constitutional rights afforded criminal defendants, including the rights to a fair trial and to be presumed innocent, People v Banks, 249 Mich App 247, 256, 258; 642 NW2d 351 (2002) (citations omitted), and the right to require the prosecution to prove his guilt beyond a reasonable doubt, People v Gaudin, 515 US 506, 509-510; 115 S Ct 2310; 132 L Ed 2d 444 (1995).
Simply put, a trial to determine whether the respondent engaged in criminal behavior that supports jurisdiction over the minor children does not amount to a criminal trial with a lower burden of proof. The respondent’s contention that a fair trial will be difficult to achieve in the criminal proceeding because the public will not be able to differentiate between a finding of jurisdiction over the minor children and a criminal conviction has no relevance in determining what due process requires in this proceeding. The trial court erred by deciding that due process is violated by proceeding to determine whether a preponderance of the evidence shows that respondent killed Mrs. Unger.
c
The petitioner also argues that the trial court erred by granting the respondent’s motion in limine to exclude evidence of the circumstances surrounding Mrs. Unger’s death. We agree. The trial court offered no specific justification for granting the motion in limine, suggesting that its decision to exclude such evidence rested on its determination that presenting this evidence would violate the respondent’s due process rights. Because we have rejected the trial court’s due process analysis as erroneous, we likewise find that if the trial court ruled that evidence concerning the circumstances of Mrs. Unger’s death should be excluded as a violation of the respondent’s due process rights, it erred by relying on faulty due process analysis. However, to the extent that the trial court’s decision rested not on due process grounds, but, instead, on the respondent’s claim that admitting evidence of the circumstances surrounding Mrs. Unger’s death violates MRE 403, we conclude that the trial court abused its discretion in excluding the evidence on this latter basis. As the trial court intimated, it may later address specific objections to specific evidence as it is offered for admission in this proceeding. In general, however, whether the respondent killed Mrs. Unger is highly relevant to the issue whether “criminality” renders the children’s home or environment unfit. Although evi dence that the respondent killed Mrs. Unger is prejudicial in the sense that any evidence offered against a party is prejudicial, People v Oswald (After Remand), 188 Mich App 1, 8; 469 NW2d 306 (1991), this evidence is not unfairly prejudicial, Allen v Owens-Coming Fiberglas Corp, 225 Mich App 397, 404; 571 NW2d 530 (1997) (stating that “[u]nfair prejudice exists when marginally relevant evidence might be given undue or preemptive weight by the jury or when it would be inequitable to allow use of such evidence”), citing Haberkorn v Chrysler Corp, 210 Mich App 354, 361-362; 533 NW2d 373 (1995).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Although the petition indicates that it is a supplemental petition, it appears that the petition is more accurately described as an amended petition.
We reject the respondent’s contention that the petitioner failed to preserve its arguments on appeal. The petitioner opposed the respondent’s arguments in the trial court, albeit without the depth of its appellate analysis. The petitioner is not prevented from asserting and thoroughly briefing these issues on appeal. Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002).
We decline to address the Attorney General’s argument, raised in its brief amicus curiae, that the trial court abused its discretion by reviewing the respondent’s motions despite the fact that they were untimely filed. This issue was not raised by the petitioner on appeal and is, therefore, not properly before us. MCR 7.212(H)(2); Reynolds v Bureau of State Lottery, 240 Mich App 84, 103; 610 NW2d 597 (2000).
As this Court stated in In re AMB, supra at 176-177:
In this context, jurisdiction has a very specific meaning. In order for a child to come within a family court’s jurisdiction, the family court must hold an adjudication, which is a trial on the merits of the allegations in the petition. Following the adjudicative hearing, the family court must find that a preponderance of legally admissible evidence demonstrates that there is factual support for one of the grounds permitting judicial involvement under MCL 712A.2(b). Once the family court determines that the child comes within its jurisdiction, it can enter dispositional orders that govern all matters of care for the child.
Although not directly raised on appeal, we also note that a respondent cannot be compelled to incriminate himself in the child protective proceedings.
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. [Phillips v Deihm, 213 Mich App 389, 399-400; 541 NW2d 566 (1995), citing Mien v Illinois, 489 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).]
This fact, however, will not prevent an adverse inference against the respondent in this proceeding if he chooses not to testify. Phillips, supra at 400, citing Baxter v Palmigiano, 425 US 308, 318; 96 S Ct 1551; 47 L Ed 2d 810 (1976). | [
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PER CURIAM.
Appellant Michigan Consolidated Gas Company (MichCon) appeals by right an order of appellee Michigan Public Service Commission (PSC) reducing MichCon’s gas costs by $26,529,000 for purposes of calculating its 2002 gas cost recovery (GCR) factor. We affirm.
i
Our review of PSC orders is narrow. In re MCI Telecom Complaint, 255 Mich App 361, 365; 661 NW2d 611 (2003). All rates, fares, charges, practices, and services the PSC prescribes are prima facie lawful and reasonable. Id.; MCL 462.25. A party challenging an order of the PSC has the burden of showing by clear and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8).
ii
MichCon first argues that the PSC order at issue is unlawful because it violates the general prohibition against retroactive ratemaking. We disagree.
MichCon relies on Bd of Pub Utility Comm’rs v New York Tel Co, 271 US 23, 31; 46 S Ct 363; 70 L Ed 808 (1926), particularly noting the holding in that case that the Fourteenth Amendment guarantees a utility “a reasonable return on the value of the property used at the time that it is being used for the public service.” MichCon also refers to the further holding in that case that past profits “cannot be used to sustain confiscatory rates for the future.” Id. at 32. MichCon suggests that, although it realized a profit during the overall period from 1999 to 2001, it was still unconstitutionally confiscatory for the PSC to impose a $26,529,000 adjustment for the 2002 GCR plan year that will force it to sell a portion of its gas in that year below its actual cost. But we distinguish New York Tel because that case involved the overall rates for telephone service, not an isolated part of determining a rate as in the present case. Specifically, in New York Tel, it was undisputed that the rates at issue were “not sufficient to yield a just return after paying taxes and operating expenses, including a proper allowance for current depreciation.” Id. Because the rates in New York Tel did not yield an overall just return for the utility during the relevant period, those rates were held to be unconstitutionally confiscatory. In contrast, the $26,529,000 adjustment to MichCon’s allowable 2002 gas costs does not by itself determine whether the total amount MichCon receives for providing gas services in 2002 affords it a just return.
Indeed, in Duquesne Light Co v Barasch, 488 US 299, 314; 109 S Ct 609; 102 L Ed 2d 646 (1989), the Court held that the United States Constitution “protects the utility from the net effect of the rate order on its property.” In other words, an isolated part of determining a utility’s rate for a given period, such as the adjustment at issue in this case, cannot violate the utility’s constitutional protection against a confiscatory rate if the overall rate allowed to the utility during that period provides a fair return. Because the relevant proceeding below did not involve a consideration of MichCon’s actual return or loss on regulated gas sales in 2002, i.e., a reconciliation proceeding, there is no basis to conclude, and thus MichCon has not established, that the adjustment at issue unconstitutionally deprived it of a fair return on its investment in violation of the Fourteenth Amendment. Rather, no claim of an unconstitutionally confiscatory rate is ripe for consideration before a reconciliation proceeding at which MichCon’s actual return or loss on regulated gas sales would be known or determined.
Turning to the heart of this appeal, MichCon invokes the prohibition on retroactive ratemaking articulated in Michigan Bell Tel Co v Pub Service Comm, 315 Mich 533; 24 NW2d 200 (1946). In that case, the PSC on December 28, 1944, ordered a telephone company to reduce its gross revenues for 1944 by $3.5 million and to refund a pro rata amount to its customers. Id. at 535. The PSC entered this order although its predecessor regulatory body had authorized the company’s rates and charges before December 28, 1944. Id. at 542-543. Our Supreme Court held the PSC’s order was effectively a retroactive rate reduction imposed without statutory authority. Id. at 544-547. Still, we conclude that the Michigan Bell prohibition on retroactive ratemaking is simply inapposite to the present case. Here, the PSC did not order MichCon to refund amounts to its customers or adjust the amount that the PSC had already authorized Mich-Con to charge for gas. Rather, this case is part of the proceedings to set the rate that MichCon will be approved to charge for gas in 2002. Accordingly, we conclude that this case does not involve an attempt to, in effect, retroactively reduce rates or charges that had previously been finally approved, as occurred in Michigan Bell. We find support for this conclusion in this Court’s statement in Detroit Edison Co v Pub Service Comm, 221 Mich App 370, 376; 562 NW2d 224 (1997), that prohibited retroactive ratemaking “involves a change either upward or downward in the rates charged by a utility for its service under a lawful order.”
MichCon also argues, either as part of or in tandem with its retroactive ratemaking argument, that the $26,529,000 adjustment at issue constituted an improper refund from profits that MichCon made on the sale of gas from 1999 to 2001. MichCon contends that the PSC improperly considered its actions in 2001 to decrement its gas in storage in this 2002 GCR proceed ing. First, we reject MichCon’s position that the PSC may not consider events in years predating the GCR plan year of the particular proceeding because it is plainly inconsistent with provisions of MCL 460.6h that establish the framework for the GCR process. In particular, MCL 460.6h(6) directs the PSC to “evaluate the reasonableness and prudence of the decisions underlying the [GCR] plan filed by the gas utility” pursuant to MCL 460.6h(3). In turn, MCL 460.6h(3) expressly requires the filing of a GCR plan not less than three months before the start of the period covered by the GCR plan. Thus, the PSC’s review of a GCR plan necessarily involves considerations of a utility’s decisions that were made before the relevant GCR plan year. Also, the amount of stored gas available at the start of a GCR plan year is based on decisions made and implemented before that time. Given that the GCR process for MichCon was only suspended for a set period from 1999 to 2001, MichCon was on notice that it could be subject to PSC regulation, including an evaluation of its underlying decisions regarding the use of stored gas in a GCR process for 2002. Because some decisions regarding gas supplies for 2002 would inevitably have been made in 2001, it follows that MichCon was also on notice that the PSC could review its decisions regarding removals of gas from storage in 2001 when the PSC reviewed MichCon’s GCR plan for 2002.
Moreover, contrary to MichCon’s position, the PSC’s decision to order the $26,529,000 adjustment does not amount to ordering a “refund” from MichCon’s profits in 2001. In this regard, MichCon asserts that the PSC’s decision absolves its customers from paying for $26,529,000 worth of gas they consumed in 2001. We disagree because the order at issue does not change the fact that MichCon charged its customers $2.95 per thousand cubic feet (Mcf) for gas in 2001 or require any direct refund from payments attributable to those charges. Rather, the adjustment the PSC ordered affects the amount that MichCon will ultimately be allowed to charge customers for gas it sells them in 2002. While this may effectively require MichCon to sell some gas in 2002 for less than it paid for it, the essential basis for this is the PSC’s view that MichCon acquired that gas at an unwarranted high price because of its unreasonable decisions regarding withdrawals of stored gas in 2001. Consequently, it is not entitled to full reimbursement for the cost of that gas. From Mich-Con’s perspective, it might appear that it is being required to refund some of the profit that it made in 1999 to 2001, but that is not the actual basis for or the direct effect of the adjustment ordered by the PSC. In fact, the adjustment is simply part of the PSC’s calculation of the rate that MichCon should be allowed to obtain for selling gas in 2002. That is, setting a GCR factor for a given plan year does not constitute ordering a utility to “refund,” even if the utility is precluded from recovering the full cost of gas it provides as part of the GCR factor during the plan year because the PSC determined that the utility unreasonably and imprudently obtained some of that gas at an unduly high price. Further, contrary to MichCon’s position, the PSC did not determine that the rate of $2.95 per Mcf it previously authorized was unreasonable. Instead, the PSC considered only the reasonableness of the GCR factor that MichCon sought to establish for 2002.
MichCon also argues that this Court’s holding in Attorney General v Pub Service Comm, 262 Mich App 649; 686 NW2d 804 (2004), indicates that the adjustment to its 2002 GCR factor at issue “unquestionably” amounted to unlawful retroactive ratemaking. We disagree. In that case, the Attorney General appealed a PSC decision to allow Detroit Edison to amortize over 1998 and 1999 extraordinary storm-related expenses incurred in 1997 and to offset half those extraordinary expenses in 1998 against a previously ordered rate reduction. Id. at 650-652. This Court held that the PSC’s decision did not constitute retroactive ratemaking; rather, the PSC permitted the use of deferred cost accounting for storm-related expenses. Id. at 655. Further, the Court held there was no violation of Michigan Bell because the “PSC did not authorize or require Detroit Edison to readjust the rates charged in a prior year.” Id. at 657. So, contrary to MichCon’s position, Attorney General actually supports the conclusion that no retroactive ratemaking occurred in this case because the PSC did not alter the rate that MichCon was authorized to charge for gas while the 1999-2001 frozen rate of $2.95 per Mcf was in effect.
Nevertheless, MichCon asserts that the Attorney General panel found there was no retroactive ratemaking in that case because the deferral of expenses was requested before the accounting books were closed for 1997 and that deferral was expressly permitted under the accounting rules governing those extraordinary expenses. From this, MichCon suggests that the present case involves retroactive ratemaking because the adjustment to the 2002 GCR factor was made after the accounting books were closed for the 1999-2001 period without any authority in accounting rules. But Attorney General does not support such a conclusion. Although the Attorney General panel did state that Detroit Edison’s request to recover its extraordinary storm-related expenses for 1997 was timely because it was made before it closed its books at the end of the 1997 calendar year, id. at 659, that decision is simply inapposite to the present case. This case does not involve a request by a utility to increase its rates to recover certain expenses; it involves the PSC’s review of a GCR plan submitted by a utility. Accordingly, there is simply no issue of timeliness in this case. Similarly, the Attorney General panel stated that once the 1997 expenses at issue were deferred to 1998 and 1999, “they became expenses incurred in the year to which they were deferred” and that the amortization process “is consistent with established and accepted regulatory and accounting principles.” Id. at 658. Again, that holding does not apply to the present case because the PSC did not defer expenses from one period to another. It simply disallowed some of the gas costs MichCon claimed for 2002 because those costs were not reasonably and prudently incurred. MCL 460.6h(6).
MichCon also relies on Consumers Power Co v Pub Service Comm, 460 Mich 148, 168; 596 NW2d 126 (1999), which held that the PSC lacked statutory authority (at that time) to require an electric utility to provide “retail wheeling” or to transmit a third-party provider’s electricity through its system to a customer. MichCon suggests that the PSC lacked any statutory authority to materially change the gas customer’s choice (GCC) program that MichCon had in place from 1999 to 2001 and that it is improperly doing so on a retroactive basis by the $26,529,000 adjustment at issue. Assuming that the holding in Consumers Power extends to the provision of gas service so that the PSC could not have ordered MichCon at the relevant time to implement a GCC program or to adopt an amended version of its proposed program, that is immaterial to the present case. In the order at issue, the PSC did not alter any term of the GCC program under which Mich- Con operated from 1999 to 2001. Rather, the PSC determined MichCon’s GCR factor for 2002, a matter plainly within its authority under MCL 460.6h.
We note that, throughout its briefs on appeal, Mich-Con repeatedly refers to being granted discretion by the PSC’s earlier order in PSC Case No. U-11682, which authorized the program in place from 1999 to 2001 and included a fixed rate of $2.95 per Mcf for gas. MichCon suggests that this discretion encompassed MichCon’s having the right to withdraw gas from storage, so that considering such storage withdrawals as a factor in support of disallowing gas costs for purposes of the 2002 GCR factor retroactively changes that order. We do not believe that anything in the PSC order in Case No. U-11682 may reasonably be read as granting MichCon such an assurance that decisions it made during 2001 could not be considered for purposes of a 2002 GCR plan year proceeding. Indeed, the PSC order in Case No. U-11682 noted that “[djuring the three-year program, there is no mechanism in Mich Con’s proposal to increase charges for system supply gas even if gas commodity prices increase” and that “[t]he relief granted will not increase the rates of any customer.” This could reasonably be considered as an indication that, in entering its order in Case No. U-11682, the PSC did not contemplate or intend to authorize MichCon to shift costs related to the rate of $2.95 per Mcf in place from 1999 to 2001 to its customers in later years and thereby increase the rates that customers would subsequently pay.
We also reject MichCon’s argument that MCL 460.6h(6) did not authorize the PSC to consider as a factor gas that MichCon had stored before 2002 because it is contrary to the plain language of that statutory provision. In particular, MichCon is incorrect in arguing that MCL 460.6h(6) limits the PSC to considering certain factors with regard to a gas supply and cost review. Rather, the language of MCL 460.6h(6) authorizing the PSC to consider “other relevant factors” in evaluating the decisions underlying a GCR plan can only reasonably be understood as allowing the PSC to consider any relevant factor in its review of a GCR plan as opposed to the PSC being required to limit its consideration to the factors claimed by MichCon. To read into the language the limitation MichCon seeks would violate the principle that unambiguous statutory language must be enforced as written. Robertson v DaimlerChrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002).
Finally, MichCon invokes the principle of statutory construction that statutes are presumed to operate prospectively unless a contrary intent is clearly manifested. Franks v White Pine Copper Div, 422 Mich 636, 671; 375 NW2d 715 (1985). MichCon argues that the PSC violated this principle in the order being appealed because there is no clearly manifested intent in MCL 460.6h to allow a suspended GCR clause to be applied retroactively to MichCon’s gas storage decrement actions in 2001. But this case does not involve retroactive application of MCL 460.6h because the relevant statutory language has been in force since 1982, well before the circumstances pertinent to this case. Although MichCon’s GCR clause was suspended from 1999 to 2001, that does not change the fact that MCL 460.6h was in force throughout that time. The PSC’s consideration of events that occurred in 2001 when applying a statute enacted in 1982 does not involve the retroactive application of legislation.
hi
MichCon also argues that the PSC acted unreasonably by making the $26,529,000 adjustment at issue. We disagree.
At its heart, the pertinent rationale of the PSC was that MichCon indicated in its application for the 1999-2001 program in Case No. U-11682 that it, rather than its customers, would bear the risk of the market price of gas rising above $2.95 per Mcf during that period and that MichCon’s storage decrement in 2001 was an inappropriate attempt to avoid the consequences of that undertaking by substantially reducing its losses in 2001 through delaying purchases of gas at market prices until 2002 to pass the price of gas greater than $2.95 per Mcf on to MichCon’s customers.
We conclude that the PSC’s decision was reasonable and supported by the evidence. In re Michigan Cable Telecom Ass’n Complaint, 239 Mich App 686, 690; 609 NW2d 854 (2000). As an initial matter, the PSC’s conclusion that MichCon undertook the 2001 storage decrement simply to reduce losses that year is supported by the testimony of Don Stanczak, MichCon’s Director of Regulatory Policy, that MichCon undertook that storage decrement “to moderate the loss on gas sales for 2001.”
Recognizing this, we believe that it was reasonable for the PSC to conclude that MichCon’s decision to make unusually large withdrawals of gas from storage in 2001 was not reasonable and prudent within the meaning of MCL 460.6h(6). It is apparent that a substantial motivating factor for MichCon to propose the flat rate of $2.95 per Mcf from 1999 to 2001 was the possibility of it obtaining larger profits by selling gas that it acquired at market rates well below that amount than it would under the GCR process. It was reasonable for the PSC to effectively view MichCon as simultaneously accepting the risk of losing money during that period if market prices of gas rose above $2.95 per Mcf.
MichCon’s argument is based largely on the PSC order in Case No. U-11682 lacking an express prohibi tion against MichCon’s withdrawing an extremely large amount of gas from storage in 2001 to mitigate its losses for that year and to transfer purchases of new gas to 2002 at higher rates to be passed on to MichCon’s customers. But we believe it is implicit that the PSC did not intend to grant, and its order in Case No. U-11682 cannot reasonably be construed as having granted, MichCon a free hand to so disregard the interests of its 2002 GCR customers. Both MichCon’s application and the PSC order in Case No. U-11682 emphasized that MichCon was assuming the risk with regard to the market price of gas. Indeed, the language in that application may readily be viewed as indicating that MichCon would accept losses resulting from an increased market price of gas during the 1999-2001 period rather than attempting to transfer such costs to its customers.
Further, there is no language in the PSC order in Case No. U-11682 indicating that MichCon’s actions from 1999 to 2001 would be free from PSC review if MichCon returned to the GCR process in 2002, which, as indicated previously, MichCon should have known was a possibility throughout that period. Also, it would have made no sense for the PSC, which after all is charged in substantial part with protecting ratepayers, to have authorized MichCon to disregard the interests of its ratepayers in 2002.
We recognize that MichCon’s application in Case No. U-11682 did refer to the setting of a fixed gas rate of $2.95 per Mcf as affording it “the purchasing and operational flexibility necessary to support customer choice.” Apparently, MichCon wishes to treat this reference to “operational flexibility” as an indication that it was free to remove an unlimited amount of gas from storage to reduce its losses if the market price of gas exceeded $2.95 per Mcf during the 1999-2001 rate freeze without having to account for that decision in the GCR process in 2002. The PSC acted reasonably in rejecting this position. The vague reference to “operational flexibility” in the application does not reasonably equate to granting MichCon free license to make any decisions it wished in 2001 without regard to the effect of those decisions on the cost of gas for its customers if it returned to the GCR process in 2002. Moreover, as previously discussed, MCL 460.6h(6) expressly directs the PSC to evaluate the reasonableness and prudence of decisions underlying a GCR plan. Accordingly, the application in Case No. U-11682 should not be considered as somehow exempting MichCon from review of its 2001 storage decrement decision for purposes of its 2002 GCR plan.
We also realize that MichCon’s application in Case No. U-11682 included the following:
MichCon will permit customers who initially choose third party suppliers to return to MichCon sales service at the proposed fixed gas commodity rate of $2.95 per Mcf plus existing gas rates irrespective of prevailing market prices. To the extent that MichCon does not have sufficient gas supplies to provide for the gas requirements of these returning customers, MichCon will assume the risk of purchasing gas supplies on the open market at rates in excess of the fixed $2.95 per Mcf gas commodity rate.
Still, the PSC could reasonably have concluded that this language did not signal that MichCon intended to withdraw unusually large amounts from its normal storage merely if the market price of gas rose above $2.95 per Mcf. Rather, this language confirms that MichCon assumed the risk of buying additional gas at market prices if the amount of gas it needed increased because of customers who had opted for an alternate supplier returning to being full-service MichCon cus tomers if the market price of gas rose above $2.95 per Mcf. From our review of the record, MichCon presented no evidence to reasonably support a finding that its large-scale withdrawals from storage in 2001 were motivated in substantial part by unexpected demand from such returning customers (who, in fact, constituted a small minority of MichCon’s total customers) rather than simply being based on an effort to reduce losses in 2001 on sales to all customers, the bulk of whom never left full service with MichCon.
We do not believe that MichCon’s arguments that unpredictable events contributed to the increase in the market price of gas, including illegal or unethical conduct by some of MichCon’s suppliers, should alter our analysis. Generally, the risk of a party suffering adverse effects from such events is part of operating in a competitive market economy. Of course, it is unfortunate that either MichCon or its customers would suffer because of unscrupulous conduct by third parties, but there is no reason why MichCon’s customers rather than MichCon should bear the risk of such conduct by third parties in connection with the rate of $2.95 per Mcf in force from 1999 to 2001 that MichCon voluntarily sought and obtained.
Last, we find unpersuasive MichCon’s analogy to the law of the case doctrine. MichCon acknowledges that the law of the case doctrine does not “technically apply” with regard to the earlier PSC order in Case No. U-11682. The law of the case doctrine is inapplicable because, when that doctrine applies, “a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with respect to that issue.” Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001). The PSC is not an appellate court. Moreover, the order in Case No. U-11682 did not purport to address any issue regarding MichCon’s 2002 GCR factor. Further, the gist of MichCon’s argument in this regard appears to be that the order being appealed is somehow inconsistent with the order in Case No. U-11682. That is simply incorrect. As we have discussed, the earlier order does not provide that Mich-Con’s decisions in 2001 were exempt from review for purposes of a 2002 GCR proceeding.
We affirm.
In the jurisdictional statement section of its brief, appellee Michigan Community Action Agency Association (MCAAA) indicates that this appeal should be dismissed because its motion for rehearing filed on April 11,2003, is still pending before the PSC. However, MichCon filed its claim of appeal with this Court on the same date. Because of the lack of a specific time stamp on the motion filed with the PSC, it is unclear whether that motion was filed before or after MichCon filed its claim of appeal with this Court. Thus, we conclude that the MCAAA has not established that this Court lacks jurisdiction in this case on the basis of the existence of a pending motion before the PSC at the time the claim of appeal was filed because it is possible that the claim of appeal was filed first.
The Legislature subsequently granted such authority by enacting the Customer Choice and Electricity Reliability Act, 2000 PA 141 and 142, MCL 460.10 through 460.10bb. See Consumers Energy Co v Pub Service Comm No 2, 261 Mich App 455, 457; 683 NW2d 188 (2004). | [
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FITZGERALD, J.
Fetitioner FG appeals by leave granted a circuit court order affirming the probate court’s denial of her petition to review her closed file relating to judicial bypass proceedings in which she participated as a minor pursuant to the Farental Rights Restoration Act (ERRA), MCL 722.901 et seq. We reverse.
I. FACTS AND PROCEDURAL HISTORY
In the fall of 1996, when petitioner was fifteen years old, she successfully petitioned the probate court for a waiver of parental consent to obtain an abortion under the PRRA and former MCR 5.783, now MCR 3.615. As required by MCR 3.615(B), petitioner’s file was sealed at the conclusion of the proceedings. Subsequently, petitioner had the requested abortion.
In 2000, after petitioner reached the age of majority, she petitioned the probate court to open her file for her review pursuant to MCR 3.615(B)(3). Petitioner claimed that she was suffering from mental illness during the bypass proceedings and at the time of her abortion. She contends that, because of her illness and prescribed medication, she has only a vague memory of these events. On account of her alleged impaired recollection, petitioner wished to determine from the probate court file whether she knowingly sought the waiver of parental consent and consented to the abortion, and whether her rights had been violated during the proceedings giving rise to a cause of action. The probate court denied petitioner’s request, finding that she failed to establish “good cause” to open the file as required by the court rule. The court reasoned that because the probate court’s role was to determine whether petitioner was mature enough and had sufficient knowledge and understanding to waive parental consent, MCL 722.904(3)(a), the record would not contain the sought-after information regarding the quality of petitioner’s decisions.
Petitioner appealed to the circuit court. Petitioner indicated to the circuit court that she wished to review her file to determine what information the probate court received from her social worker and attorney and considered regarding her history of mental illness and treatment in granting the waiver. The circuit court determined that the probate court had not abused its discretion in determining that petitioner failed to establish good cause to open her file. This appeal followed.
II. STANDARD OF REVIEW
Petitioner contends that the circuit court improperly reviewed the probate court’s decision for an abuse of discretion. The probate court determined that petitioner failed to establish good cause to open her file pursuant to MCR 3.615(B)(3). As the decision involves the interpretation of a court rule, petitioner asserts that the circuit court should have reviewed the decision de novo. Whether the circuit court applied the correct standard of review is a question of law that we review de novo. Arthur Land Co, LLC v Otsego Co, 249 Mich App 650, 661-662; 645 NW2d 50 (2002); Palo Group Foster Care, Inc v Dep’t of Social Services, 228 Mich App 140, 145; 577 NW2d 200 (1998).
MCR 3.615(B)(3) provides:
The court shall maintain only one file of all papers for each case. The file shall be inspected only by the judge, specifically authorized court personnel, the minor, her attorney, her next friend, the guardian ad litem, and any other person authorized by the minor. After the proceedings are completed, the file may be opened only by order of the court for good cause shown and only for a purpose specified in the order of the court.
The probate court determined that petitioner had not shown good cause to open her file. However, the term “good cause” is not defined by the court rule. The interpretation of a court rule, like a question of statutory construction, is subject to review de novo on appeal. St George Greek Orthodox Church of Southgate v Laupmanis Assoc, PC, 204 Mich App 278, 282; 514 NW2d 516 (1994). The construction of the term “good cause” is also a question of law subject to review de novo. See generally Daniels v Allen Industries, Inc, 391 Mich 398; 216 NW2d 762 (1974), superseded by statute in Davis v O’Brien, 152 Mich App 495; 393 NW2d 914 (1986). See also Richards v McNamee, 240 Mich App 444, 447, 451-453; 613 NW2d 366 (2000). Furthermore, it is well settled that when there is no dispute concerning the underlying facts, the questions presented on appeal are to be treated as questions of law. Capac Bus Drivers Ass’n v Capac Community Schools Bd of Ed, 140 Mich App 542, 547; 364 NW2d 739 (1985); Robinson v Young Men’s Christian Ass’n, 123 Mich App 442, 445; 333 NW2d 306 (1983). The only issue before the probate court was whether the facts presented, which were not in dispute, were legally sufficient to constitute “good cause” pursuant to the court rule. Accordingly, the circuit court erred in failing to review the probate court’s decision de novo.
III. GOOD CAUSE
Petitioner challenges the circuit court’s affirmation of the probate court’s finding that she failed to establish good cause to open her file pursuant to MCR 3.615(B)(3). First, we must determine the definition of “good cause” as used in the court rule. We must give effect to a statute or court rule as written when its language is clear and unambiguous. People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999). In construing ambiguous language, every word or phrase, unless specifically defined, should be given its plain and ordinary meaning, considering the context in which the words are used. Yaldo v North Pointe Ins Co, 457 Mich 341, 346; 578 NW2d 274 (1998); Lewis v LeGrow, 258 Mich App 175, 183; 670 NW2d 675 (2003). The court may consult a dictionary to determine the ordinary meaning of undefined words in a statute or court rule. Lewis, supra at 183; In re Complaint of Knox, 255 Mich App 454, 460; 660 NW2d 777 (2003); St George Greek Orthodox Church, supra at 282. Also, “[t]he court must consider the object of the statute [or court rule], the harm it is designed to remedy, and apply a reasonable construction [that] best accomplishes the statute’s [or rule’s] purpose, but should also always use common sense.” Morris & Doherty, PC v Lockwood, 259 Mich App 38,44; 672 NW2d 884 (2003). Courts should seek to avoid a construction that would produce absurd results, injustice, or prejudice to the public interest and should strive to be logical and best accomplish the statute’s or rule’s purpose. Id.
As the court rule fails to define “good cause,” we turn to the dictionary and case law for assistance. Black’s Law Dictionary (7th ed) defines “good cause” as “[a] legally sufficient reason.” Similarly, this Court has defined “good cause” as “a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.” Richards, supra at 452, citing Franchise Mgt Unlimited, Inc v America’s Favorite Chicken, 221 Mich App 239, 246; 561 NW2d 123 (1997), quoting Black’s Law Dictionary (6th ed) (Franchise Mgt was vacated on other grounds 459 Mich 954 [1999]). Following these definitions, petitioner must show a legally sufficient or substantial reason for opening her file consistent with the purpose of MCR 3.615(B).
The purpose of MCR 3.615(B) is to protect the confidentiality of a minor seeking to obtain a waiver of parental consent for an abortion. See MCR 3.615(B)(1) (“The court shall assure the confidentiality of the file, the assistance given the minor by court personnel, and the proceedings”). The rule protects the file and the minor’s identifying information from disclosure to persons other than the judge and specifically authorized court personnel, as well as the minor herself and those acting with her authorization. The rule further pro vides that the file shall be closed at the conclusion of the proceedings and may only be opened by order of the court upon a showing of good cause. MCR 3.615(B)(3).
Petitioner sought to reopen her file to determine whether she voluntarily sought the waiver of parental consent, whether she voluntarily consented to an abortion, whether any of her rights were violated, and whether she has any causes of action arising from the proceedings. She explained that she was under medical treatment for psychiatric disturbances and mental illness, for which she was receiving treatment (including medication) at the time of the proceedings. Petitioner indicates that, as a result of the treatment, she has only a vague recollection of the waiver proceedings. Respondent does not challenge the factual allegations made by petitioner that “she was under medical treatment” and that she “only has a vague recollection” of the waiver proceedings. Petitioner asserts that her mental illness and resulting treatment were information that should have been provided to and considered by the probate court during the waiver proceedings and she seeks to determine what information she, her former attorney, and her former social worker gave the court regarding her mental conditions. Petitioner’s reasons for seeking to review her file are legally sufficient to constitute good cause under MCR 3.615(B)(3), and her confidentiality will not be compromised as a result of allowing her to review the file.
Reversed.
HOEKSTRA, J., concurred.
MCR 5.783 has since been replaced by MCR 3.615, which is identical in all respects.
Petitioner is also referred to by her initials to preserve her confidentiality under this provision.
Petitioner was given the opportunity to review her file with the agency that conducted her abortion, but was unable to glean any relevant information.
The circuit court originally found that it lacked jurisdiction over the appeal and directed the filing to this Court. However, a panel of this Court vacated that order and remanded for a determination on the merits. Unpublished order of the Court of Appeals, entered February 1, 2002 (Docket Number 238267).
A panel of this Court initially denied petitioner’s application for leave to appeal. Unpublished order, entered September 6, 2002 (Docket No. 242202). In lieu of granting leave to appeal, the Michigan Supreme Court remanded to this Court for consideration as on leave granted. 468 Mich 919 (2003).
Many of the appellate rules, MCR 7.101 et seq., apply equally to the circuit court when taking an appeal from the probate court. MCR 7.101(A)(1). Accordingly, we find no reason to distinguish between the circuit court’s appellate role and that of this Court.
The circuit court relied on In re Dixon, 116 Mich App 763; 323 NW2d 549 (1982), remanded by 417 Mich 986 (1983), in support of its application of the abuse of discretion standard. In Dixon, this Court upheld a probate court determination that the petitioner had not shown good cause to open adoption records. Although the standard applied was not referenced by name, this Court first reviewed de novo the probate court’s interpretation of the applicable statute, finding that the good cause determination required a balancing of the respective interests. 116 Mich App 768. This Court then afforded the probate court’s balancing of those interests the more deferential abuse of discretion standard. Id. at 771.
The circuit court relied on Dixon in affirming the probate court’s decision. However, Dixon does not provide an appropriate analytical framework for this case. There, this Court provided that the determination whether good cause had been shown to open adoption files required a balancing test between the competing interests of the adoptee, the biological parents, and the state. Dixon, supra at 768. In the instant matter, there are no competing interests to balance. Rather, the state’s only interest, as expressed in MCR 3.615(B)(3) is in protecting the confidentiality of the minor and the proceedings. The minor’s interest also is in having her confidentiality preserved. Thus, the interests of petitioner and of the state are essentially the same. Therefore, Dixon is inapposite. | [
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PER CURIAM.
In these consolidated appeals, plaintiffs Lawrence Reed and James D. Kuenner, as personal representatives of the estates of their decedents, appeal by leave granted the trial court’s order granting summary disposition in favor of defendant Beach Bar pursuant to MCR 2.116(C)(10) in these wrongful death and dramshop actions. We reverse and remand to the trial court for a jury trial, as there exists a question of fact regarding Curtis J. Breton’s visible intoxication when he was served in defendant’s bar.
I. FACTS AND PROCEDURAL HISTORY
At 10:11 p.m. on April 20, 2001, Mr. Breton was traveling northbound on US-127 at approximately one hundred miles an hour. He crossed over the center line into oncoming traffic and collided with a vehicle occupied by plaintiffs’ decedents. Both vehicles caught fire on impact and none of the occupants survived. At the time of the accident, Mr.. Breton’s blood alcohol level was 0.215 percent.
Mr. Breton, a firefighter, ended a twenty-four hour shift at 7:30 a.m. He and his coworker, John Marsh, joined a drop-in hockey game and then ate lunch at a pub with friends. Mr. Marsh testified that the lunch party lasted two hours, that he consumed two beers during this time, and that Mr. Breton consumed an unknown amount of beer at that location. Following lunch, Mr. Marsh and Mr. Breton purchased a twelve pack of beer and went to a family member’s home to repair a damaged boat dock. During the hour in which the men worked, each consumed about two or three beers.
At 5:00 p.m., Mr. Breton drove Mr. Marsh to defendant’s bar where they met a friend. A waitress, Lindsey Mizerik, served the men two pitchers of beer at that time. Shortly after 6:00 p.m., Mr. Breton drove Mr. Marsh home to arrange for a babysitter and both men consumed two beers each in a ten-minute period. Upon their return to defendant’s bar at around 8:00 p.m., each consumed two more bottles of beer and shared a large pizza. At approximately 9:00 p.m., Mr. Breton drove Mr. Marsh to the Eagle’s Nest bar where the men ordered their final pitcher of beer. Mr. Breton returned Mr. Marsh to his home at 9:50 p.m. Mr. Breton told Mr. Marsh that he was fine and left. It is disputed whether Mr. Breton made a final stop at defendant’s bar before the fatal collision occurred.
During the course of the evening, Mr. Breton encountered various people who testified at deposition that Mr. Breton did not appear to be intoxicated. Ms. Mizerik testified that she remembered Mr. Breton because he continually attempted to secure a date with her. She testified that Mr. Breton never exhibited any erratic behavior and appeared aware of his surroundings. He did not look like he had been drinking all day and she never considered refusing to serve him. Ms. Mizerik believed that Mr. Breton returned to defendant’s bar between 10:00 and 11:00 p.m., to ask her once more for a date; however, Mr. Breton neither ordered nor was served any alcohol at that time.
According to Mr. Marsh’s testimony, he and Mr. Breton drank roughly the same amount of alcohol. When the pair left defendant’s bar for the Eagle’s Nest, Mr. Marsh could feel the effects of the alcohol he had consumed and assumed that Mr. Breton felt the same. At the Eagle’s Nest, they encountered Fire Chief Mike Hendges. Chief Hendges testified that he spoke with Mr. Breton, and that he perceived the men to be in a good mood, not intoxicated. However, Chief Hendges went to Mr. Marsh’s home shortly after the accident and noticed that Mr. Marsh was visibly intoxicated at that time. Mr. Breton also encountered Robert Potts, his former youth hockey coach and the owner of a convenience store that sells liquor. Mr. Potts testified that Mr. Breton exhibited no visible signs of intoxication during their conversation, such as slurred speech, glassy or bloodshot eyes, or an altered demeanor.
Plaintiffs also presented the reports of two expert witness toxicologists. Mr. Reed’s expert witness specifi cally found — based on Mr. Breton’s weight, metabolism and blood alcohol level — that Mr. Breton had consumed twenty-four or twenty-five beers in a nine-hour period and still had twelve or thirteen drinks in his system at the time of the accident. This concentration of alcohol would have affected Mr. Breton’s central nervous system, leading to visible signs of intoxication, such as excitement, confusion, and stupor. Based on this concentration, the toxicologist also determined that Mr. Breton would have been visibly intoxicated when he was served at defendant’s bar.
Following the accident, plaintiffs filed suit against the named defendants, alleging negligence for selling intoxicating liquor to a visibly intoxicated person in violation of MCL 436.1801(2). At the close of discovery, defendant filed a motion for summary disposition pursuant to MCR 2.116(0(10). As it was not the last establishment to serve Mr. Breton, defendant argued that it was entitled to a rebuttable presumption pursuant to MCL 436.1801(8) against liability. Defendant further argued that plaintiffs failed to overcome this presumption by presenting sufficient evidence that Mr. Breton was visibly intoxicated when served in defendant’s bar. The trial court granted defendant’s motion against both plaintiffs. The trial court determined that plaintiffs faded to present a genuine issue of material fact regarding the last location to serve alcohol to Mr. Breton. Accordingly, the court found that defendant was entitled to the statutory presumption. The trial court determined that, in order to overcome this presumption, plaintiffs were required to present “positive, unequivocal, strong and credible evidence” that Mr. Breton was visibly intoxicated when he was served at defendant’s bar. The court stated that the testimony of the expert witnesses was insufficient to meet this burden and granted summary disposition to defendant. This appeal followed.
II. REBUTTABLE PRESUMPTION OF MCL 436.1801(8)
Plaintiffs contend that the trial court improperly granted defendant’s motion for summary disposition, as there was evidence that defendant may have been the last establishment to serve Mr. Breton. Plaintiffs further contend that, even if defendant were entitled to the statutory presumption of nonliability, the trial court improperly required plaintiffs to meet a heightened burden of coming forward with evidence to rebut that presumption. This Court reviews a trial court’s determination regarding a motion for summary disposition de novo. A motion under MCR 2.116(0(10) tests thefactual support of a plaintiffs claim. “In reviewing a motion for summary disposition brought under MCR 2.116(0(10), we consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists.” Summary disposition is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
The rebuttable presumption against liability is provided in MCL 436.1801(8) as follows:
There shall be a rebuttable presumption that a retail licensee, other than the retail licensee who last sold, gave, or furnished alcoholic liquor to the minor or the visibly intoxicated person, has not committed any act giving rise to a cause of action under subsection O).[ ]
We first note that it is not at all clear from the depositions submitted that defendant’s bar was Mr. Breton’s final stop that evening. Ms. Mizerik testified that Mr. Breton returned to defendant’s bar sometime between 10:00 and 11:00 p.m. to ask her once more for a date. However, even if Mr. Breton returned to defendant’s bar after taking Mr. Marsh home and before the accident, Ms. Mizerik testified that Mr. Breton was not served at that time. Based on this testimony, the trial court properly ruled that defendant was entitled to the statutory presumption of nonliability.
We must, therefore, determine if the circumstantial evidence of Mr. Breton’s visible intoxication when served at defendant’s bar is sufficient to rebut the statutory presumption of nonliability. It is well settled, where the statutory presumption does not apply, that a plaintiff may establish a dramshop action solely on circumstantial evidence.
A rebuttable presumption is “[a] presumption that can be overturned upon the showing of sufficient proof.” According to Black’s Law Dictionary, all presumptions, other than conclusive presumptions, are rebuttable. The manner of rebutting a presumption has been stated in various ways. It has been said that “[o]nce evidence tending to rebut the presumption is introduced, the force of the presumption is entirely dissipated and the party with the burden of proof must come forward with evidence to avoid directed verdict.”* Pursuant to the Michigan Rules of Evidence, a presumption in a civil case, not created by statute, “imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption” without shifting the ultimate burden of persuasion in the case. Following the adoption of MRE 301, the burden to overcome a presumption has been stated as follows:
[I]f the jury finds a basic fact, they must also find the presumed fact unless persuaded by the evidence that its nonexistence is more probable than its existence.[ ]
... [T]he function of a presumption is solely to place the burden of producing evidence on the opposing party. It is a procedural device which allows a person relying on the presumption to avoid a directed verdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption.[ ]
To make rebuttable presumptions “disappear,” the challenging party must generally produce credible or competent evidence to the contrary.
For example, the presumption pursuant to MCL 257.675c(l) that the registrant of an illegally parked vehicle is the person responsible for the violation may be rebutted by “competing evidence” of another’s liability. The presumption of acceptance of an offer to dedicate land for a public use under the Land Division Act may be rebutted by competent evidence that the dedication was withdrawn by the plat proprietor. The presumption that parties establishing a joint bank account intend to include a right of survivorship and to be equal owners of the account may be rebutted with testimony that one owner contributed more to the account than the other.
Michigan courts have determined that some presumptions require a higher burden of proof to overcome. The general rule has been varied occasionally to “give weight to probability and social policy.” The trial court in this case determined that plaintiffs were required to show by “positive, unequivocal, strong and credible evidence” that Mr. Breton was visibly intoxicated when he was served at defendant’s bar. As noted previously, however, this Court has never determined that such a heightened burden of production is required to rebut the presumption in MCL 436.1801(8).
The heightened burden of production applied by the trial court has been used in other circumstances — those involving the use of a motor vehicle. For instance, where there is a rear-end collision, there is a presumption that the following vehicle was negligent in causing the injury. However, this presumption may be rebutted with “positive, unequivocal, strong and credible evidence” that the first vehicle came to a sudden and abrupt stop at a time and place that a stop was not reasonably expected. Pursuant to the owner’s liability statute, also known as the family car doctrine, when a vehicle causing injury is driven by someone other than the owner, “It shall be presumed that the motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of the injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family.” If the driver is not an immediate family member, there exists a common-law presumption that the owner has knowledge of or consented to the driver’s use. To overcome both the statutory and common-law presumptions, the challenging party must provide “positive, unequivocal, strong and credible evidence” that the car was not driven with the owner’s knowledge or consent.
Although the Michigan Supreme Court has never articulated the reason for applying this heightened burden of proof in the case of a rear-end collision, there is ample evidence of the Court’s intent with regard to the owner’s liability statute. First, “an automobile, if driven by an inexperienced, incompetent, or reckless driver, partakes of the nature of a dangerous instrumentality.” Second, the only witnesses who can testify to the owner’s knowledge or consent are the owner and his or her relative or acquaintance. Such witnesses are unlikely to testify in the opposing party’s favor. We do not find that either of these propositions supports rejecting the general burden of production and the application of this heightened burden in the current situation.
The presumption of MCL 436.1801(8) involves the level of intoxication of an individual and not the motor vehicle that may be involved in a subsequent injury. The instrumentality of the harm is not the motor vehicle as in the owner’s liability statute. Rather, it is the intoxicated individual himself or herself. Accordingly, the policy reasons for applying the heightened burden of production to rebut the presumption in owner’s liability cases are inapplicable in the current situation. Furthermore, the statute itself does not delineate a higher burden of production to rebut the presumption it creates. The courts are not entitled to presume that an omission in a statute was unintentional and fill in the blanks. The Legislature, in adopting MCL 436.1801(8), knew of the standard for overcoming a rebuttable presumption in a civil case provided in MRE 301. If the Legislature intended to depart from the general rule provided in MRE 301 and impose a heightened burden of production on plaintiffs attempting to overcome the statutory presumption of nonliability, the Legislature would have included this heightened standard in MCL 436.1801(8). As the Legislature failed to do so, we must assume that the Legislature intended the general standard for rebutting presumptions provided in MRE 301 to apply in this situation.
Accordingly, the standard to rebut the presumption is the presentation of competent and credible evidence that it was more probable than not that Mr. Breton was visibly intoxicated when he was served at defendant’s bar. Plaintiffs presented circumstantial evidence in this regard. Mr. Marsh testified that he felt the effects of the alcohol he consumed when the men left defendant’s bar and he assumed Mr. Breton felt the same. The expert toxicologists’ reports indicated that Mr. Breton had a significant amount of alcohol in his system when served at defendant’s bar. Based on that amount, the experts believed that Mr. Breton would have exhibited visible signs of intoxication at that time. “ ‘Circumstantial evidence in support of or against a proposition is equally competent with direct.’ ” As plaintiffs presented competent and credible evidence that Mr. Breton was visibly intoxicated when he was served at defendant’s bar, the trial court improperly found that plaintiffs failed to overcome the statutory presumption of nonliability. Plaintiffs presented sufficient evidence to create a genuine issue of material fact to place this issue before the trier of fact, and defendant’s motion for summary disposition was improperly granted.
We reverse and remand for a jury trial, as a question of fact exists regarding Mr. Breton’s visible intoxication when he was served in defendant’s bar. We do not retain jurisdiction.
Although Mr. Reed has raised issues against all the original defendants, this appeal only pertains to defendant Beach Bar.
MCL 436.1801(3) provides for an action for a violation of MCL 436.1801(2) as follows:
Except as otherwise provided in this section, an individual who suffers damage or who is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to a be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, shall have a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death.... [MCL 436.1801(3).]
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d 685 (1999).
Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001).
MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001).
MCL 436.1801(8).
Dines v Henning, 437 Mich 920; 466 NW2d 284 (1991), adopting the dissenting opinion in 184 Mich App 534, 540-541; 459 NW2d 305 (1990); Miller v Ochampaugh, 191 Mich App 48, 58; 477 NW2d 105 (1991); Heyler v Dixon, 160 Mich App 130, 145-146; 408 NW2d 121 (1987).
Black’s Law Dictionary (6th ed).
Id.
Id.
MRE 301. MRE 301 specifically provides:
In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. [MRE 301.]
According to McCormick, this is the most widely accepted view of rebuttable presumptions. The presumption shifts the burden of producing evidence with respect to the presumed fact. Once the challenging party produces contrary evidence, the presumption disappears. McCormick, Evidence (5th ed), § 344, p 445.
In fact, this is also the standard found in the federal rules of evidence. The language of the Michigan court rule mirrors its federal counterpart in all relevant respects. See MRE 301, 1978 note; FRE 301. Although Congress allows the United States Supreme Court to prescribe federal rules of evidence, 28 USC 2072(a), Congress originally enacted the federal rules, including FRE 301. People v Stevens, 461 Mich 655, 666 n 10; 610 NW2d 881 (2000). Congress enacted this version of FRE 301 only after much debate on the different methods of rebutting presumptions. Widmayer v Leonard, 422 Mich 280, 287-288; 373 NW2d 538 (1985).
See also Dawes v Wittrock Sandblasting & Painting, Inc, 266 Neb 526, 544; 667 NW2d 167 (2003); Oregon v Dahl, 336 Ore 481,486-487; 87 P3d 650 (2004) (while finding this standard of proof applicable in civil cases, the Oregon court also found that a common-law presumption disappears when “legally sufficient rebutting evidence” is produced).
Widmayer, supra at 289.
Krisher v Duff, 331 Mich 699, 705; 50 NW2d 332 (1951); Cebulak v Lewis, 320 Mich 710, 722-723; 32 NW2d 21 (1948). The Krisher Court specifically found:
It has been well settled in this State that the effect of a rebuttable presumption is to make out a prima facie case at the beginning of a trial. Having established the original prima facie case, the presumption then casts the burden of proof on the opposite party. Presumptions cannot be weighed against other credible evidence, for they have no value as evidence unless no other credible evidence, whatsoever is introduced in regard to the presumed fact. As a rule, they disappear if and when credible evidence is introduced from which the facts may he found. [Krisher, supra at 705.]
Ford Motor Credit Co v Detroit, 254 Mich App 626, 630; 658 NW2d 180 (2003).
MCL 560.255b.
Marx v Dep’t of Commerce, 220 Mich App 66, 81-82; 558 NW2d 460 (1996).
Cebulak, supra at 722-723; Danielson v Lazoski, 209 Mich App 623, 629; 531 NW2d 799 (1995). For further situations in which a presumption is rebutted by competent and credible evidence, see Krisher, supra at 705-706.
Widmayer, supra at 288 n 10. For example, the presumption that a child’s best interests will be served by remaining in the care of his or her natural parents must be rebutted by clear and convincing evidence. See In re Trejo, 462 Mich 341, 351; 612 NW2d 407 (2000); Greer v Alexander, 248 Mich App 259, 267-268; 639 NW2d 39 (2001).
See Zeni v Anderson, 397 Mich 117, 134; 243 NW2d 270 (1976), quoting Lucas v Carson, 38 Mich App 552, 557; 196 NW2d 819 (1972), cited in Bieszck v Avis Rent-A-Car Sys, Inc, 459 Mich 9, 19 n 10; 583 NW2d 691 (1998); Hill v Wilson, 209 Mich App 356, 360; 531 NW2d 744 (1995), quoting Kao v Lauredo, 617 So 2d 775, 777 (Fla App, 1993).
MCL 257.401(1).
Bieszck, supra at 11, quoting a former version of MCL 257.401(1).
Id. at 17.
Id. at 19; Krisher, supra at 706; London v Titan Ins Co, 251 Mich App 633, 649; 651 NW2d 93 (2002).
Krisher, supra at 707; Cebulak, supra at 723.
Krisher, supra at 706; Cebulak, supra at 723-726, quoting O’Dea v Amodeo, 118 Conn 58, 63-67; 170 A 486 (1934).
See AFSCME v Detroit, 468 Mich 388, 400; 662 NW2d 695 (2003) (the courts must derive the Legislature’s intent from the language of the statute and not from missing language).
Cebulak, supra at 719, quoting Ricketts v Froehlich, 218 Mich 459, 461; 188 NW 426 (1922). | [
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CAVANAGH, J.
Petitioner appeals as of right the dismissal of its petition for review by the Michigan Tax Tribunal (MTT) on the ground that it lacked subject-matter jurisdiction. We affirm.
On February 19, 2002, petitioner filed its petition for review pursuant to MCL 211.53a for recovery of excess tax payments not made under protest. It averred that, because of a mutual mistake of fact, it had paid taxes in excess of the correct and lawful amount since “Petitioner and Respondent did not realize at the time the personal property tax statements were filed that Petitioner was double reporting certain assets.” Specifically, petitioner claimed that its inadvertent double reporting on its personal property statements caused respondent to assess the personal property twice and petitioner to pay taxes twice on the same property, which constituted a mutual mistake of fact under MCL 211.53a.
On March 13, 2002, the MTT sua sponte entered an order of dismissal of the action. The MTT held, in pertinent part, that petitioner had not properly invoked its subject-matter jurisdiction under MCL 205.735 because petitioner had not protested the assessments at issue to its board of review. The MTT further held that the assessments at issue were not the result of either a clerical error or a mutual mistake of fact because the assessments resulted solely from petitioner’s failure to properly prepare its personal property statements. The MTT, citing Int’l Place Apartments-IV v Ypsilanti Twp, 216 Mich App 104, 109; 548 NW2d 668 (1996), and Wolverine Steel Co v Detroit, 45 Mich App 671, 674; 207 NW2d 194 (1973), noted that the “mere presence of an erroneous assessment does not suffice as either a clerical error or mutual mistake of fact,” and, thus, petitioner failed to properly invoke the MTT’s subject-matter jurisdiction under MCL 211.53a. Finally, the MTT noted that the remedy for the incorrect reporting of personal property is through the filing of a petition with the Michigan State Tax Commission under MCL 211.154.
Petitioner filed its claim of appeal with this Court and, without reaching the merits of the appeal, the order of dismissal was reversed and the matter remanded to the MTT for the purpose of addressing the issue of necessary joinder or substitution of parties. Ford Motor Co v Romeo, unpublished order of the Court of Appeals, entered September 13, 2002 (Docket No. 240649). Thereafter, petitioner submitted a motion to the MTT to amend its petition to substitute Bruce Township for the city of Romeo as respondent and to make minor corrections in the petition. The amended petition averred that it was filed pursuant to MCL 211.53a for a refund of personal property taxes paid as a result of a mutual mistake in that property was reported twice and assessed twice. It further averred that the MTT had original and exclusive jurisdiction over the matter pursuant to MCL 205.73103) because it was a proceeding for a tax refund under the property tax laws. On January 17, 2003, the MTT granted petitioner’s motion to substitute, denied its motion for leave to file an amended petition, and dismissed the petition on the ground that petitioner had not properly invoked the MTT’s subject-matter jurisdiction. This appeal followed.
Petitioner argues that the MTT erroneously concluded that it lacked subject-matter jurisdiction over the petition, which sought a refund of excess taxes paid, pursuant to MCL 205.731(b), as a result of a mutual mistake of fact, as required by MCL 211.53a. We agree with petitioner that the MTT had jurisdiction, but uphold the decision to dismiss on the substantive basis of the MTT’s holding — that petitioner failed to state a claim on which relief could be granted, MCR 2.116(C)(8). We review a decision of the MTT to determine whether it committed an error of law or adopted a wrong legal principle; factual findings supported by competent, material, and substantial evidence on the whole record will not be disturbed. Professional Plaza, LLC v Detroit, 250 Mich App 473, 474; 647 NW2d 529 (2002); Michigan Milk Producers Ass’n v Dep’t of Treasury, 242 Mich App 486,490-491; 618 NW2d 917 (2000).
The Tax Tribunal Act, MCL 205.703 et seq., grants the MTT exclusive and original jurisdiction over property tax proceedings as follows:
The tribunal’s exclusive and original jurisdiction shall be:
(a) A proceeding for direct review of a final decision, finding, riding, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.
(b) A proceeding for refund or redetermination of a tax under the property tax laws. [MCL 205.731.]
Petitioner argues that, pursuant to MCL 205.731(b), the MTT had jurisdiction over its petition for a refund under the property tax laws, namely, MCL 211.53a of the General Property Tax Act, which provides:
Any taxpayer who is assessed and pays taxes in excess of the correct and lawful amount due because of a clerical error or mutual mistake of fact made by the assessing officer and the taxpayer may recover the excess so paid, without interest, if suit is commenced within 3 years from the date of payment, notwithstanding that the payment was not made under protest.
Relying on Shell Oil Co v Estate of Kert, 161 Mich App 409, 421-422; 411 NW2d 770 (1987), a contract case, petitioner claims that the excess payment was the result of a “mutual mistake of fact” within the contemplation of the statute because “Ford mistakenly identified this property twice on its personal property statement, and the assessor mistakenly based the assessment on that non-existent property’s putative value.” Because the MTT is vested with the power and authority to adjudicate tax refund cases, it had subject-matter jurisdiction over petitioner’s petition. See In re AMB, 248 Mich App 144, 166-167; 640 NW2d 262 (2001). Accordingly, we turn to the substantive basis for the MTT’s holding — that petitioner failed to state a claim on which relief could be granted. See MCR 2.116(C)(8).
The meaning of the phrase “mutual mistake of fact” as provided in MCL 211.53a presents an issue of statu tory construction. In construing a statute, our goal is to ascertain, and give effect to, the intent of the Legislature; thus, we first consider the statute’s language. In re MCI, 460 Mich 396, 411; 596 NW2d 164 (1999). If the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236-237; 596 NW2d 119 (1999). The fair and natural import of its terms, in view of the subject matter of the law, governs. In re Wirsing, 456 Mich 467, 474; 573 NW2d 51 (1998). On March 8, 2000, the MTT issued an “order designating definition of ‘mutual mistake of fact’ as precedent” as that phrase is used in MCL 211.53a. General Products Delaware Corp v Leoni Twp, 2001WL 432245 (MTT Docket No. 249550, March 8, 2001). We accord deference to the MTT’s interpretation of a statute that it is legislatively charged with enforcing, although we are not bound by that interpretation. See Judges of the 74th Judicial Dist v Bay Co, 385 Mich 710, 727-729; 190 NW2d 219 (1971); Bechtel Power Corp v Dep’t of Treasury, Revenue Div, 128 Mich App 324, 329; 340 NW2d 297 (1983).
MCL 211.53a was enacted following our Supreme Court’s decision in Consumers Power Co v Muskegon Co, 346 Mich 243; 78 NW2d 223 (1956), which held that equitable principles did not apply to cases seeking recovery of excess taxes paid by mistake because taxation powers are controlled by constitutional and statutory provisions. Id. at 247-251. In that case, the respondent’s assessor calculated and levied the excess tax, and the petitioner, which failed to discover that the amount was excessive, paid the tax. The excess tax was the result of the assessor misplacing the decimal point when entering the tax data into the tax and assessment rolls so that instead of, for example, the proper tax of $32.94 being entered, the erroneous tax of $329.40 was entered. Id. at 251-253 (SMITH, J., dissenting). In other words, the error was not based on misinformation, it was based on an obvious clerical or arithmetic mistake. The Court concluded that “[t]o grant the relief requested by the plaintiff would require this Court to exercise legislative prerogatives — namely, to write into the statute the right to recover taxes paid under mutual mistake.” Id. at 251.
Subsequently, in 1958 the Legislature exercised its authority and provided a limited remedy in cases of excess taxation, i.e., “Any taxpayer who is assessed and pays taxes in excess of the correct and lawful amount due because of a clerical error or mutual mistake of fact made by the assessing officer and the taxpayer may recover the excess so paid ... .” MCL 211.53a. In 1967, the Legislature more directly addressed the issue raised in Consumers Power Co, supra, by enacting MCL 211.53b(l), which begins: “If there has been a clerical error or a mutual mistake of fact relative to the correct assessment figures, the rate of taxation, or the mathematical computation relating to the assessing of taxes ....” MCL 211.53b(2) granted the right of recovery to both the taxpayer and the assessing officer.
There are, however, clear limits to a taxpayer’s right to recover excess tax payments under MCL 211.53a. A mistake of law, rather than of fact, does not accord relief. Noll Equipment Co v Detroit, 49 Mich App 37, 41-43; 211 NW2d 257 (1973). An error that is not clerical in nature — the result of typing, transposing, or calculating assessment figures incorrectly — is not correctable under the statute. Int’l Place Apartments-IV, supra at 109. Similarly, the statute does not permit recovery of excess taxes paid because of a unilateral mistake of fact, i.e., a mistake of fact that is not made by both the assessing officer and the taxpayer. It is this mutuality requirement with regard to the mistake of fact that is at issue here. Precisely, what is a “mutual mistake of fact made by the assessing officer and the taxpayer”? MCL 211.53a.
This is an issue of first impression. The phrase “mutual mistake” has “acquired a peculiar and appropriate meaning in the law,” MCL 8.3a, so we may first turn to a legal dictionary in an attempt to ascertain its meaning. See People v Jones, 467 Mich 301, 304-305; 651 NW2d 906 (2002). Black’s Law Dictionary (7th ed) defines “mutual mistake” as “[a] mistake in which each party misunderstands the other’s intent” and as “[a] mistake that is shared and relied on by both parties to a contract.” A “mistake” is defined as “[a]n error, misconception, or misunderstanding; an erroneous belief.” Id. In the context of property tax law, neither definition of “mutual mistake” is very helpful except that we may derive that implicit in the concept of mutuality is a temporal or “at the same time” component. That is, for something to be mutual, it must be shared by or common to both parties. So, a “mutual mistake of fact” is a shared or common error, misconception, misunderstanding, or erroneous belief about a material fact. MCL 211.53a, then, requires that both the assessing officer and the taxpayer have the same erroneous belief regarding the same material fact, which belief directly caused both the excess assessment and excess payment of taxes.
Here, the assessing officer and the taxpayer, petitioner, were not operating under the same mistake of fact. The direct cause of the excess assessment was the assessing officer’s reliance on petitioner’s personal property statements, which were represented as full and true statements of all tangible personal property owned or held by petitioner. It is undisputed that the assessing officer did not conduct any independent inventory of petitioner’s assets. Accordingly, the assessor’s “mistake of fact” was his erroneous belief that petitioner’s disclosure of property was accurate. The direct cause of petitioner’s excess payment of the taxes was its own mistake concerning the nature of its personal property. In other words, its “mistake of fact” was its erroneous belief that it owned specific personal property that was taxable. Because the assessing officer and petitioner were not operating under the same mistake of fact, a refund under MCL 211.53a was not available and petitioner failed to state a cognizable claim under MCL 205.735.
The key to the “mistake of fact” analysis under MCL 211.53a is to determine what mistake of fact directly caused the assessor’s excess assessment and compare it to the mistake of fact that directly caused the taxpayer’s excess payment. If they are the same, the mutuality requirement of MCL 211.53a is met. When an assessor assesses a tax in excess of the correct and lawful amount and the taxpayer pays it, there is always a mistake that is mutual in the sense that both parties made a mistake; but, there is not always a “mutual mistake of fact.” If the assessor’s over-assessment resulted from an error in professional judgment with regard to the subject property and the taxpayer’s overpayment was the consequence of oversight, there would be no “mutual mistake of fact” giving rise to a remedy under MCL 211.53a, albeit there may be a remedy available under MCL 211.154. However, for example, if the assessor’s error was because of his reliance on an incorrect survey representation by a third party of a boundary line and the taxpayer paid the taxes relying on that same misrepresentation, there would be a mutual mistake of fact for which relief would be available under MCL 211.53a.
The Tax Tribunal attempted to explain this nebulous concept of “mutual mistake” as it applies to property tax law as follows:
Mutuality occurs at an intersection of the parties’ respective specific focus upon a singular fact or set of facts, and the resulting mistaken belief. That is, the statute’s phrase “mutual mistake of fact” necessitates mutuality as to both the referenced fact being materially the same information, specifically contemplated by both parties, and the mistaken belief concerning that fact be formed by both parties.
The concept of mutual mistake in property tax law, in its application, is that mutuality must be present at both the level of referenced fact and the mistaken belief. The test criteria is [sic, are] simple. If each party references the same factual data, but draws different mistaken beliefs, or references different factual data, but draws the same mistaken belief, there is no “mutual mistake of fact.” [General Products Delaware Corp, supra at 21, 22.]
We generally agree with the MTT’s characterization of the “mutuality” test, but we find it more complicated than necessary. It and the MTT’s thirty-plus-page opinion on the matter are not “user friendly.” Comparing the “mistake of fact” that directly caused the assessor’s excess assessment to the “mistake of fact” that directly caused the taxpayer’s excess payment will provide the necessary information to determine whether the requisite mutuality for recovery under MCL 211.53a exists.
Petitioner relies on contract law principles to support its interpretation of the phrase “mutual mistake of fact” as “a belief by one or both of the parties not in accord with the facts,” that “relate[s] to a basic assumption of the parties upon which the contract is made and which materially affects the agreed performances of the parties.” See Shell Oil Co, supra at 421-422. The MTT rejected the proposition that the “mutual mistake” terminology used in contract law is equally applicable to property tax law. See General Products Delaware Corp, supra at 29-31. We agree. Contract law principles are not necessarily analogous to tax law principles. The relationship between the parties to a contract is vastly different from the association between the taxpayer and the tax assessor. A contractual relationship arises by contract — a bargained exchange of obligations entered into by choice and requiring mutual assent or a “meeting of the minds” on all essential terms — and the relationship is governed by those terms. Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 372-373; 666 NW2d 251 (2003). The taxpayer and the tax assessor’s association arises by operation of law and is governed by the law. Equitable principles may relieve contracting parties of obligations induced by mistake — particularly because a mutual mistake of fact destroys the necessary “meeting of the minds” requirement for formation — but such principles are not equally necessary, or applicable, in the area of tax law. See Consumers Power Co, supra at 246-251. Contrary to the dissent, it should be apparent that we are not relying on “equitable considerations,” as might be applicable in contract law cases, in construing the term “mutual mistake.”
However, even if such equitable principles did apply to property taxation disputes, as petitioner promotes, these principles would not intercede to provide relief unless there were a “mistake” of fact. The traditional mistake-of-fact doctrine found in contract law is an equitable doctrine that defines “mistake” as follows:
A mistake within the meaning of equity is a non-negligent but erroneous mental condition, conception, or conviction induced by ignorance, misapprehension, or misunderstanding, resulting in some act or omission done or suffered by one or both parties, without its erroneous character being intended or known at the time. [27A Am Jur 2d, Equity, § 7, pp 525-526.]
In other words, “mistakes” that are the result of the mistaken party’s own negligence, and which are to their detriment, are not relieved by equity. See, e.g., Bateson v Detroit, 143 Mich 582, 584; 106 NW 1104 (1906); Dombrowski v Omer, 199 Mich App 705, 709-710; 502 NW2d 707 (1993); Villadsen v Villadsen, 123 Mich App 472, 477; 333 NW2d 311 (1983).
This concept of “negligent” mistakes is not novel; rather, in contract law a party to a contract will not be relieved of his obligation to perform unless (1) both parties were mistaken regarding a material fact, Gortney v Norfolk & Western R Co, 216 Mich App 535, 542; 549 NW2d 612 (1996), or (2) one party’s negligence led the other party to erroneously believe there was a meeting of the minds regarding a material fact, Warren v Maccabees Mut Life Ins Co, 83 Mich App 310, 315; 268 NW2d 390 (1978). “[The] parties are mutually mistaken, though their mental errors are not quite identical. In spite of this ‘mutuality,’ there is a contract, due to the negligence of the one and the reasonableness of the other.” Id., quoting 3 Corbin, Contracts, § 608, p 671. Further, as explained by our Supreme Court in Spoon-Shacket Co, Inc v Oakland Co, 356 Mich 151, 156; 97 NW2d 25 (1959), citing the dissenting opinion in Consumers Power Co, supra at 251, “equity can and should intervene whenever it is made to appear that one party, public or private, seeks unjustly to enrich himself at the expense of another on account of his own mistake and the other’s want of immediate vigilance — litigatory or otherwise.” So, neither equitable principles nor the dissenting position espoused in Consumers Power Co support an equitable recovery under MCL 211.53a when the purported “mistake of fact” that led to the excess tax was the direct result of the taxpayer’s negligence.
We also note and disagree with the interpretation of MCL 211.53a set forth as obiter dictum in Wolverine Steel Co, supra at 674: “We believe § 53a alludes to questions of whether or not the taxpayer had listed all of its property, or listed property that it had already sold or not yet received, etc.” This interpretation does not incorporate the “mutuality” component of the analysis and, thus, is rejected. MCR 7.215(J)(1). The Wolverine Steel Co Court also implied that MCL 211.53a and 211.53b were to be read in pari materia so as to limit the type of “mutual mistakes of fact” referenced in MCL 211.53a to those explicitly stated in MCL 211.53b, i.e., “mutual mistake[s] of fact relative to the correct assessment figures, the rate of taxation, or the mathematical computation relating to the assessing of taxes....” Id. at 674. The MTT also adopted that very narrow interpretation of MCL 211.53a through the use of the in pari materia rule of statutory interpretation, declaring that MCL 211.53a is specifically limited in application to those special circumstances relieved under MCL 211.53b. General Products Delaware Corp, supra at 24. However, as argued by amicus curiae, the Michigan Chamber of Commerce, such a restrictive interpreta tion of MCL 211.53a ignores the clear legislative intent not to so limit the types of “mutual mistakes of fact” as evidenced by the omission of such provision. See Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993). Neither we nor the MTT may engraft such a limitation. See id.
In sum, the MTT properly concluded that petitioner was not entitled to relief under MCL 211.53a. Petitioner was not assessed and did not pay taxes in excess of the correct and lawful amount due because of a mutual mistake of fact made by itself and the assessing officer. MCL 211.53a. But, did the MTT have the right to dismiss the petition sua sponte? The Tax Tribunal rules, 1999 AC, R 205.1101 et seq., do not address such dismissals; therefore, we turn to the Michigan Court Rules. 1999 AC, R 205.1111(4). MCR 2.116(I)(1) provides: “If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay.” Here, the dispositive issue was one of law; specifically, the construction of MCL 211.53a. There were no disputed issues of fact. The pleadings showed that respondent was entitled to judgment as a matter of law because the averred over-assessment and excess payment were not the result “of a clerical error or mutual mistake of fact made by the assessing officer and the taxpayer . . . .” MCL 211.53a. Accordingly, the MTT had the right, and duty, to dismiss the action. MCR 2.116(I)(1). For this reason, the MTT properly denied petitioner’s motion to amend its petition because such amendment would be futile — recovery is not afforded on the grounds asserted. See MCL 205.731, 211.53a; Lane v KinderCare Learning Centers, Inc, 231 Mich App 689, 697; 588 NW2d 715 (1998).
Petitioner also contends that the MTT inappropriately relied on MCL 205.735. However, the MTT’s reference to MCL 205.735(2) (which confers jurisdiction on the MTT over assessment disputes) was likely an effort to illustrate the thorough nature of its consideration of petitioner’s petition alleging overpayment by means of double payment and need not be considered further here because petitioner disavows an assessment dispute.
Affirmed.
Fort Hood, J., concurred.
Petitioner asserted the same claims against the city of Woodhaven and Wayne County, as well as against the city of Sterling Heights, which were similarly dismissed by the MTT The appeals that followed, Docket Nos. 246378 and 246379 respectively, were resolved by substantially similar opinions issued on the same day as this opinion.
Consumers Power Co, supra, was overruled in part by Spoon-Shacket Co, Inc v Oakland Co, 356 Mich 151, 171; 97 NW2d 25 (1959).
In General Products Delaware Corp, as discussed above, the MTT held that such consideration of the petitioner’s personal property tax statement was irrelevant to the “mistake of fact” determination. Id. at 37-39. We disagree because reliance on the statement directly caused the excess tax assessment.
Accordingly, the dissent’s apparent concern that no remedy is available in the event of such unilateral mistakes is not persuasive. | [
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Marilyn Kelly, J.
This case requires us to resolve three issues. First, whether a utility’s right of first entitlement to provide electrical service to “the entire electric load on the premises” of a “customer” ceases when the “customer” on the property changes. Second, whether the Public Service Commission (PSC) is required to impose interest on a refund it awards when it determines that a utility has overcharged a consumer. Third, whether the PSC is required to impose a fine whenever a utility “neglects” to comply with one of its orders.
We conclude that a utility’s right of first entitlement set forth in Rule 460.3411 (Rule 411) of the Michigan Administrative Code extends to the entire premises initially served. And the right is not extinguished when a customer is no longer present on the premises. We also conclude that the PSC is not required to impose interest on a refund it awards to an overcharged utility consumer. Finally, we hold that the PSC is required to impose a fine pursuant to MCL 460.558 only when a utility “wilfully or knowingly” neglects to comply with a PSC order. Therefore, we reverse the judgment of the Court of Appeals and reinstate the decision of the PSC.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Great Wolf Lodge of Traverse City, LLC, owns a water-park resort on 48 acres near Traverse City. The resort sits on part of a 120-acre parcel once farmed by the Oleson family. On July 14, 2000, plaintiff entered into an option agreement to buy a portion of the property from GDO Investments (GDO), which acquired it after Mr. Oleson’s death.
Defendant Cherryland Electric Cooperative claims that it provided electricity to the Oleson property beginning in the 1940s. Cherryland ran an electric line, known as a “service drop,” to the property. At one time or another over the years, Cherryland, Consumers Energy Company, and Traverse City Light & Power (TCLP) serviced farm buildings on the property.
After the last farming tenant vacated the premises in September 2001, the electricity was turned off. However, according to a GDO employee, GDO continued to pay a minimum monthly bill from Cherryland so that it had the option to have the electricity turned back on.
Later, when plaintiff was planning new construction on the property, it solicited bids for electric service from Cherryland, Consumers Energy, and TCLP At that time, Cherryland did not claim that it had the sole right to provide electric service to the property. TCLP was the winning bidder, and in December 2001, plaintiff contracted with TCLP to provide electricity to its planned resort.
By January 2002, the farm buildings were scheduled to be demolished. GDO asked Cherryland to remove its service line so that the building it was attached to could be taken down. But Cherryland made it a condition for removing the service drop that it would be the electricity provider. Plaintiff claims that it agreed in order to keep the project on schedule. Thus, plaintiff asserts, Cherryland coerced it to rescind its contract with TCLP and contract with Cherryland to avoid construction delays, loss of revenue, or litigation.
In May 2002, plaintiff entered into a three-year contract for electrical service with Cherryland. Under the contract’s terms, Cherryland charged plaintiff $0.0496 a kilowatt-hour. This was the large resort service (LRS) rate set by the PSC. In February 2003, Cherryland applied to the PSC for formal approval to charge plaintiff the LRS rate.
This rate is available to consumers with a load factor greater than 50 percent and at least a 1500-kilowatt load. The application Cherryland signed recited these conditions. It also stated that, if plaintiff did not meet them, a different rate would apply. Shortly thereafter, in March 2003, plaintiff and Cherryland replaced their May 2002 contract with another that expressly provided for service at the LRS rate.
In July 2004, the PSC rejected Cherryland’s application. It expressed concern that plaintiff was the only customer that Cherryland charged the LRS rate and questioned whether plaintiffs electrical needs were typical for a large resort. The PSC directed Cherryland to apply instead for a “special contract” to serve plaintiff. It also concluded that Cherryland had violated MCL 460.552 by implementing the LRS rate without PSC approval and fined Cherryland $10,000 pursuant to MCL 460.558. However, the PSC approved the LRS rate “for up to one year or until a special contract is approved.”
Plaintiff and Cherryland attempted to negotiate a special contract but were unable to reach an agreement. In August 2004, Cherryland filed an application with the PSC for approval of a special contract with plaintiff. The contract had not yet been agreed to, but Cherry-land indicated that plaintiff was reviewing it. However, plaintiff intervened before the PSC and expressed concerns about the proposed special contract. According to plaintiff, it imposed unconscionable late charges and required plaintiff to forever bind itself to Cherryland. The PSC dismissed Cherryland’s application in October 2004, indicating that it could be refiled once the parties reached an agreement. It also indicated that the parties could petition the PSC to resolve any disputes to the extent that the PSC had jurisdiction to hear those disputes.
In November 2004, Cherryland began unilaterally charging plaintiff for electricity at the large commercial and industrial (LCI) rate. Cherryland claimed that it made the change because plaintiff almost never used enough electricity to satisfy the minimum requirements of the LRS rate. Therefore, Cherryland feared that the PSC would again fine it for charging an improper rate.
In July 2005, plaintiff filed a two-count complaint against Cherryland in the PSC. Count I alleged that Cherryland had violated MCL 460.552 and the PSC’s 2004 order by charging plaintiff the LCI rate rather than the LRS rate. Plaintiff sought a refund of the amounts that it had paid in excess of the LRS rate. Finally, plaintiff asked that the PSC fine Cherryland for violating its order and require Cherryland to stop charging plaintiff the LCI rate and return to the LRS rate. In count II, plaintiff asked the PSC to declare that plaintiff could receive all components of its electrical service from any provider of its choosing. Plaintiff also asked the PSC to order Cherryland to transfer its distribution facilities to any new provider chosen by plaintiff and to remove any unnecessary facilities on its property.
Cherryland moved for summary disposition. A hearing referee ruled for plaintiff on count I and for Cherryland on count II. The referee concluded that Cherry-land’s conduct was a “purposeful and flagrant violation” of the PSC’s 2004 order. He determined that plaintiff was entitled to a refund of $72,550.16 plus interest and recommended that Cherryland be fined $44,250. Regarding count II, he agreed that plaintiff could choose its electric supplier, but added that no authority permitted plaintiff a full choice of providers for all components of its electric service.
The PSC agreed that plaintiff was entitled to summary disposition on count I and with the amount of the refund to which it was entitled. However, the PSC declined to impose a fine or interest on Cherryland. Although the PSC concluded that Cherryland “should have sought clarification” of its 2004 order, it stated that “Cherryland’s interpretation of the July 22 order was not so clearly unreasonable as to justify the imposition of a fine or interest on the refund to [plaintiff].” Finally, the PSC agreed with the hearing referee that count II should be dismissed.
The circuit court affirmed the PSC’s order in large part. It concluded that plaintiff was an existing customer of Cherryland under Rule 411 because the property (the Oleson farm) was the customer, not the entity that owned the property. Therefore, Cherryland had the right to continue providing electric service to the prop erty. However, the circuit court reversed the decision not to impose a fine and interest on Cherryland. It ruled that the language of the PSC’s 2004 order was clear and unambiguous and concluded, contrary to the PSC, that Cherryland’s misinterpretation of the order was clearly unreasonable.
Plaintiff and the PSC both appealed. The Court of Appeals consolidated the appeals and, in a published opinion, affirmed in part, reversed in part, and remanded to the PSC for further proceedings. The Court of Appeals affirmed the circuit court’s ruling that the PSC was required to impose a fine and interest on Cherryland. However, the Court of Appeals concluded that plaintiff was free to choose its electric distributor if there was no customer governed by the restrictions of Rule 411. It held that the plain language of Rule 411(1)(a) defined “customer” as the “buildings and facilities served” by an electricity provider. The panel reasoned as follows:
If the changes in buildings and facilities and interruption of service came about in reasonable proximity to and for the purpose of a change in ownership and plan for the site,... those changes and that interruption did not create a new customer. If, however, the previous owner held on to the site for a significant period after all land uses requiring electricity had been abandoned, requested that electric service be terminated, and demolished buildings or removed facilities, or at least allowed them to stand without electricity, for reasons other than anticipation of an immediate change of ownership or land use, then those actions should be deemed to have extinguished the previously existing customer or customers on the site, thus severing the utility-customer relationship.[ ]
The panel concluded that the record was insufficient to determine whether there was an existing customer and remanded the case to the PSC for further factual development, findings, and conclusions. It also directed the PSC to consider whether a “customer!]” was “already receiving service” pursuant to MCL 124.3 when plaintiff acquired the property. If so, MCL 124.3(2) would prohibit TCLR a municipal electricity provider not regulated by the PSC and not subject to Rule 411, from contracting with plaintiff to provide electric service.
Cherryland and the PSC appealed in this Court. We granted the parties’ applications for leave to appeal.
STANDARD OF REVIEW
A court reviewing an administrative agency’s interpretation of a statute should give the agency’s interpretation “respectful consideration” and, if it is persuasive, should not overrule it without “cogent reasons.” We have held that “[i]n construing administrative rules, courts apply principles of statutory construction.” All rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasona ble. A final order of the PSC must be authorized by law and, if a hearing is required, supported by competent, material, and substantial evidence on the whole record. A party aggrieved by a PSC order must show by clear and satisfactory evidence that the PSC’s order is unlawful or unreasonable.
CHERRYLAND’S RIGHT OF FIRST ENTITLEMENT UNDER RULE 411(11)
The PSC adopted Rule 411 in 1982 as part of a comprehensive regulatory scheme for electric utilities. At that time, it stated that the purpose of Rule 411 was “to avoid unnecessary and costly duplication of facilities and to provide objective standards for extension of electric service . . . .”
The PSC argues that its decisions interpreting Rule 411 clearly establish that “once a first utility entitlement is established, a subsequent change in ownership does not create a new prospective customer on the old premises.” In effect, the PSC’s interpretation of Rule 411(11) gives the first-serving utility a right in perpetuity to serve the property on which a customer is located.
Rule 411(11) provides that “[t]he first utility serving a customer pursuant to these rules is entitled to serve the entire electric load on the premises of that customer even if another utility is closer to a portion of the customer’s load.” Rule 411(l)(a) defines “customer” as “the buildings and facilities served rather than the individual, association, partnership, or corporation served.” Rule 102(f) defines “premises” as “an undivided piece of land which is not separated by public roads, streets, or alleys.”
When those definitions are incorporated into Rule 411(11), it reads as follows:
The first utility serving [buildings and facilities] pursuant to these rules is entitled to serve the entire electric load on the [undivided piece of land which is not separated by public roads, streets, or alleys] of [those buildings and facilities] even if another utility is closer to a portion of the [buildings and facilities’] load.
Thus, Rule 411(11) grants the utility first serving buildings or facilities on an undivided piece of real property the right to serve the entire electric load on that property. The right attaches at the moment the first utility serves “a customer” and applies to the entire “premises” on which those buildings and facilities sit. The later destruction of all buildings on the property or division of the property by a public road, street, or alley does not extinguish or otherwise limit the right. This conclusion is consistent with the rule’s purpose of avoiding unnecessary duplication of electrical facilities.
Plaintiff argues that this right of first entitlement lasts only as long as an “existing customer” is being served. We disagree. If Rule 411(11) were intended to be read as plaintiff argues, it could simply have stated that “[t]he first utility serving a customer pursuant to these rules is entitled to serve the entire electric load of that customer.” However, Rule 411(11) explicitly ties the right of entitlement to the premises, not to the customer. Notably, nothing in Rule 411 or elsewhere in the PSC rules indicates that this right of first entitlement terminates if the initial customer, the initial “buildings and facilities served,” changes.
For this reason, contrary to the dissent’s contention, our reading of the rule does not redefine “customer” as “premises.” Both this opinion and the dissent give the same effect to the word “customer” in Rule 411(11). We agree that to trigger the right of first entitlement, there must first be a “customer” served by the utility. We further agree that the “premises of that customer” dictate the scope of the utility’s right.
Plaintiff argues that Rule 411(2) undercuts our interpretation because it refers to “existing customers.” However, Rule 411(2) states simply that “[existing customers shall not transfer from one utility to another.” Hence, it establishes nothing more than that existing “buildings and facilities” cannot transfer from one utility to another. It does not advance plaintiffs argument that eliminating a customer cuts off the right in Rule 411(11) to serve the “entire electric load on the premises” of the initial customer.
In this case, is it undisputed that Cherryland was the first utility to provide electric service to buildings and facilities on the Oleson farm. Once Cherryland did so, Rule 411(11) gave it the right to serve the entire electric load on the premises. That right was unaffected by subsequent changes in the “customer,” because the right extends to the “premises” of the “buildings and facilities” that existed at the time service was established. Later destruction of the buildings and facilities on the property did not extinguish that right.
Given that Cherryland is entitled to the benefit of the first entitlement in Rule 411(11), it is irrelevant that TCLP is a municipal corporation not subject to PSC regulation. Rule 411(11) both grants and limits rights. It grants a right of first entitlement to Cherryland while limiting the right of the owner of the premises to contract with another provider for electric service. Plaintiff put that limitation directly at issue by seeking a declaratory ruling that it is free to contract for electric service with any electricity provider. Assuming arguendo that MCL 124.3 does not restrict TCLP from contracting with plaintiff to provide electric service, Rule 411(11) restricts plaintiff from seeking that service from any entity other than Cherryland. Plaintiff may not circumvent the limitation of Rule 411(11) by attempting to receive service from a municipal corporation not subject to PSC regulation. Thus, MCL 124.3 has no application to the instant dispute.
In sum, the PSC’s determination that Cherryland had the right to serve the entire premises was authorized by law and supported by competent, material, and substantial evidence. Plaintiff has failed to demonstrate that the PSC’s May 2006 order was unlawful or unreasonable.
THE PSC IS NOT REQUIRED TO IMPOSE INTEREST ON A REFUND
The PSC’s authority to award interest in addition to a refund under these circumstances is not explicitly authorized by statute. Rather, it has its genesis in the Court of Appeals’ decision in Detroit Edison Co v Pub Serv Comm. In that case, the Court of Appeals held that the PSC’s authority to award interest derives from MCL 460.6(1). MCL 460.6(1) vests the PSC with the power and jurisdiction, among other things, to “regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of public utilities.” Because “[t]he selected rate of interest has a direct impact on the fees and charges that a utility’s customers ultimately pay for service,” the Court of Appeals concluded that the PSC had authority to determine the amount of interest to award.
However, plaintiff has cited no authority for the proposition that the PSC must award interest when it grants a refund in these circumstances. Rather, Detroit Edison makes clear that the PSC has broad discretion when determining the amount of interest to award. Therefore, plaintiff cannot demonstrate that the PSC’s decision not to impose interest on the refund in this case was unlawful.
Nor has plaintiff demonstrated that the PSC’s failure to award interest was “unreasonable.” We have defined “unreasonable” as “arbitrary, capricious or totally unsupported by admissible and admitted evidence.” The PSC declined to impose interest on the refund to plaintiff because it concluded that Cherryland reasonably misconstrued its July 2004 order. This conclusion was not arbitrary or capricious because evidence on the record supported the PSC’s conclusion that Cherry-land’s interpretation of the order was not clearly unreasonable.
Cherryland’s application for approval of the LRS rate noted that the rate is available only to customers with a load factor greater than 50 percent and at least a 1500-kilowatt load. Plaintiff met these requirements only in August 2003 and July 2005. Moreover, the PSC had previously fined Cherryland for charging plaintiff an unapproved rate. Taken together, this evidence supported the PSC’s determination. It was not clearly unreasonable for Cherryland to change the rate charged to plaintiff because plaintiff had not complied with the load requirements for the LRS rate.
MCL 460.558 REQUIRES THAT A FINE BE IMPOSED WHEN A UTILITY FAILS OR NEGLECTS TO COMPLY “WILFULLY OR KNOWINGLY”
MCL 460.558 states:
Every corporation, its officers, agents and employes, and all persons and firms engaged in the business of furnishing electricity as aforesaid shall obey and comply with every lawful order made by the commission under the authority of this act so long as the same shall remain in force. Any corporation or person engaged in such business or any officer, agent, or employe thereof, who wilfully or knowingly fails or neglects to obey or comply with such order or any provision of this act shall forfeit to the state of Michigan not to exceed the sum of 300 dollars for each offense. Every distinct violation of any such order or of this act, shall be a separate offense, and in case of a continued violation, each day shall be deemed a separate offense. An action to recover such forfeiture may be brought in any court of competent jurisdiction in this state in the name of the people of the state of Michigan, and all moneys recovered in any such action, together with the costs thereof, shall be paid into the state treasury to the credit of the general fund.[ ]
The Court of Appeals reasoned that MCL 460.558 does not apply solely in cases of “wilful or knowing failure to comply with a lawful PSC order; it also applies in the event of negligent noncompliance.” We disagree. Under the Court of Appeals’ construction, MCL 460.558 would require that a fine be imposed any time a utility or its agent fails to comply with a PSC order. If that construction were what the Legislature intended in enacting MCL 460.558, there would have been no need to include the modifiers “wilfully or knowingly.” Rather, the Legislature could simply have mandated a fine in cases in which a party “fails or neglects” to obey a PSC order.
“Wilfully” and “knowingly” are adverbs, which generally modify verbs. The most natural reading of MCL 460.558 is that these terms are intended to modify both verbs immediately following them and separated by the disjunctive “or.”
The record here indicates that the PSC determined that Cherryland made a mistake by unilaterally imposing the LCI rate. The PSC concluded that Cherryland should instead have sought clarification of its July 2004 order. It was not unlawful or unreasonable to conclude that Cherryland did not 'willfully or knowingly fail or willfully or knowingly neglect to obey or comply with the PSC’s July 2004 order. Hence, MCL 460.558 did not require the PSC to impose a fine on Cherryland.
CONCLUSION
We hold that a utility’s right of first entitlement under Mich Admin Code, R 460.3411(11) entails the right to serve the entire premises. That right is not extinguished when there is a new customer, i.e., new “buildings and facilities served,” on the premises. We also hold that, absent a statutory mandate to do so, the PSC need not impose interest when it awards a refund to a party. Finally, we hold that the PSC is required to impose a fine pursuant to MCL 460.558 only when a utility willfully or knowingly neglects to comply with its order. Therefore, we reverse the judgment of the Court of Appeals and reinstate the decision of the PSC.
Young, C. J., and Cavanagh and Mary Beth Kelly, JJ., concurred with Marilyn Kelly, J.
Mich Admin Code, R 460.3411(11).
MCL 460.558.
TCLP later sued Cherryland for tortious interference with a contract and recovered $275,000. Plaintiff was not a party to that litigation.
In re Application of Cherryland Electric Coop, order of the Public Service Commission, entered July 22, 2004 (Case No. U-13716), p 8.
In re Complaint of Great Wolf Lodge of Traverse City, LLC, Against Cherryland Electric Coop, order of the Public Service Commission, entered May 25, 2006 (Case No. U-14593), p 15.
Great Wolf Lodge of Traverse City, LLC v Pub Serv Comm, 285 Mich App 26; 775 NW2d 597 (2009).
Id. at 40.
MCL 124.3(2) provides that “[a] municipal corporation shall not render electric delivery service for heat, power, or light to customers outside its corporate limits already receiving the service from another utility unless the serving utility consents in writing.”
Great Wolf Lodge of Traverse City, LLC v Pub Serv Comm, 486 Mich 869 (2010).
In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 108; 754 NW2d 259 (2008).
Detroit Base Coalition for Human Rights of the Handicapped v Dep’t of Social Servs, 431 Mich 172, 185; 428 NW2d 335 (1988), citing Gen Motors Corp v Bureau of Safety & Regulation, 133 Mich App 284; 349 NW2d 157 (1984).
MCL 462.25; see also Mich Consol Gas Co v Pub Serv Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973).
Const 1963, art 6, § 28.
MCL 462.26(8).
In re Regulations Governing Service Supplied by Electric Utilities, order of the Public Service Commission, entered July 13, 1982 (Case No. U-6400), p 10.
In re Complaint of Indiana Mich Power Co Against Midwest Energy Co, order of the Public Service Commission, entered June 7, 2005 (Case No. U-14193), p 19.
Mich Admin Code, R 460.3411(11).
Mich Admin Code, R 460.3411(1)(a).
Mich Admin Code, R 460.3102(f).
The dissent’s citation of Rule 411(14) does not aid its argument. First, the purpose behind Rule 411(11) does not “influence [our] interpretation” of the rule. Post at 56 n 2. We simply observe that our interpretation of the rule’s language is also consistent with that purpose. Rule 411(14) does nothing to undercut our interpretation.
Second, Rule 411(14) is an irrelevant distraction from the issue presented in this case. Both this opinion and the dissent decide this case on the basis of our interpretation of the language in Rule 411(11). The dissent does not even attempt to argue that Rule 411(14) provides any additional support for its interpretation.
Thus, the dissent’s statement that “if there are no buildings or facilities being served, there is no ‘customer,’ ” post at 53, is correct, but irrelevant.
Our disagreement with the dissent appears when the scope of this right is fully defined. The dissent does not view the parameters of the right of first entitlement in Rule 411(11) as firmly established when the utility first serves a customer. Instead, it is an undefined right that a property owner is free to vitiate at any time by tearing down all of the “customers” on the property. Similarly, a later-constructed road dividing the property in two would create a new “premises,” hence a new “customer,” if there were no buildings being served on the newly defined “premises.” This approach leaves the utility’s right of first entitlement undefined, wholly outside the control of the utility and the PSC, and subject to unilateral abrogation by property owners. This result would be contrary to the purpose of keeping “[t]he electric transmission and distribution businesses . . . under a regulated monopoly utility structure.” See Public Service Commission, The Commission had its historic beginnings over 130 years ago <http://www.michigan.gov/mpsc/ 0,1607,7-159-16400-40512-,00.html> (accessed May 9, 2011) (describing the history of the PSC).
Mich Admin Code, R 460.3411(2).
We note that a utility may waive this right “if another utility is willing and able to provide the required service and if the [PSC] is notified and has no objections.” Mich Admin Code, R 460.3411(12).
Detroit Edison Co v Pub Serv Comm, 155 Mich App 461; 400 NW2d 644 (1986).
Id. at 469.
Significantly, the Legislature has made interest awards mandatory under other circumstances involving the PSC. See, e.g., MCL 460.6j(16) (stating that if the PSC orders “refunds or credits” to customers in orders involving “a power supply cost reconciliation,” the refunds, credits, or additional charges “shall include interest”) (emphasis added).
Detroit Edison, 155 Mich App at 470-471 (“[T]here is no reason why the interest element of the guarantee needs or ought to he determined by the circuit court as part of its equitable powers. The circuit court’s equitable powers arise from situations where there is probable cause to believe that a party is threatened with irreparable injury. ... The method of establishing an interest rate simply does not present a situation of a comparable nature. Moreover, this complex subject is one in which the Commission has superior expertise.”).
Associated Truck Lines, Inc v Pub Serv Comm, 377 Mich 259, 279; 140 NW2d 515 (1966).
Emphasis added.
Great Wolf Lodge, 285 Mich App at 47.
See generally Porto Rico Railway, Light & Power Co v Mor, 253 US 345, 348; 40 S Ct 516; 64 L Ed 944 (1920) (“When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”). | [
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Young, C.J.
In this case, we are called upon to determine whether the community caretaking exception to the Fourth Amendment’s requirement that a warrant be obtained before a residence can be entered applies to a first-response firefighter answering a 911 call and, if so, whether the firefighter’s entry into defendant’s residence was reasonable in the instant case. We conclude that the community caretaking exception applies to firefighters no less than to police officers when they are responding to emergency situations that threaten fife or property. We also conclude that the firefighter’s actions in this case were reasonable, thus satisfying the community caretaking exception to the warrant requirement. Accordingly, we reverse the decision of the circuit court and the Court of Appeals’ judgment and remand this case to the circuit court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
Defendant, Mark Slaughter, resided in a townhouse in Royal Oak, Michigan. In May 2007, defendant’s neighbor, Kathleen Tunner, saw water running down her basement wall and over her electrical box. She also heard water flowing behind that wall, which adjoined defendant’s townhouse. Tunner attempted to locate defendant by knocking on his door, but he was not home. She then called her townhouse management company in a further attempt to locate defendant. After this attempt failed, Tunner dialed 911. The city of Royal Oak dispatched several firefighters to the townhouse, including Lieutenant Michael Schunck. After consulting with Tunner about her emergency call, Schunck entered defendant’s residence. When he went to the basement to shut off defendant’s water and to assess whether any additional measures needed to be taken to prevent a fire, Schunck observed, in plain view, grow lights and several dozen plants that appeared to be marijuana. He then reported what he saw to the Royal Oak police.
The Royal Oak Police Department dispatched an officer to secure defendant’s townhouse while another officer procured a search warrant. After entering defendant’s townhouse, officers seized 48 marijuana plants, grow lights, a watering system, defendant’s state identification card, books on marijuana horticulture, packaging material, and other drug paraphernalia.
Defendant was charged with manufacturing with the intent to deliver more than 20 but fewer than 200 marijuana plants. The district court bound defendant over as charged, notwithstanding defendant’s claims that the firefighter’s entry into the townhouse violated his Fourth Amendment rights and that he did not exercise dominion and control over the seized marijuana plants.
Although defendant did not appeal the bindover decision, he subsequently filed a pretrial motion to suppress in the circuit court. After hearing testimony and oral argument, the court granted the motion in a written opinion and order. The circuit court concluded that Lieutenant Schunck “did not attempt to hear or see for himself what was causing the problem [that led Tunner to dial 911], nor did he attempt to verify the existence of running water in the wall prior to entering the defendant’s home.” The circuit court also observed that Schunck had indicated that “he would have entered the apartment even if he had shut off the water and/or electrical from the outside” because “he has to investigate the [911] calls to the fullest extent possible____”
The circuit court applied this Court’s decision in People v Tyler and the United States Supreme Court’s decision in Camara v Muni Court of City & Co of San Francisco in concluding that firefighters are required to procure a warrant before entering a building “to prevent a fire from occurring....” Furthermore, it relied on the fact that this Court’s decision in People v Davis, which articulated the community caretaking exception to the Fourth Amendment’s warrant requirement, did not contain “anything related to the investigation of a possible fire hazard.” Accordingly, the court ruled that the firefighters could not avail themselves of the community caretaking exception.
The Court of Appeals affirmed the circuit court’s ruling in a split, unpublished decision, albeit on alternative grounds. First, the majority determined, contrary to the circuit court’s decision, that the community caretaking exception can apply to searches performed by first-response firefighters to abate a possible fire hazard. However, the majority explained that “the record permits the conclusion that the firefighters were simply too quick to enter into defendant’s unit and failed to investigate the complaint” before entering defendant’s residence. Thus, the majority concluded that “there are too many outstanding questions to conclude whether the firefighters acted reasonably” and, therefore, that the circuit court had properly granted the motion to suppress.
The dissenting judge agreed with the majority that first-response firefighters can avail themselves of the community caretaking exception to the Fourth Amendment’s warrant requirement. The dissenting judge, however, concluded that the firefighters had acted reasonably in the instant case, indicating that “[t]he firefighters were faced with a possible emergency situation and they needed to make quick judgments about what to do in order to avoid a potential fire.”
This Court granted the prosecutor’s application for leave to appeal and ordered the parties to brief whether
(1) the actions of firefighters may fall under the “community caretaker” exception to probable cause requirements; (2) the “emergency aid” aspect of the community caretaker exception applies in this case; and (3) the Court of Appeals erred when it held that the firefighters were first obligated to attempt to remedy the condition for which a neighbor called by using means that did not involve entry into the defendant’s home.[ ]
II. STANDARD OF REVIEW
A court’s factual findings at a suppression hearing are reviewed for clear error, but the application of the underlying law — the Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution — is reviewed de novo.
III. ANALYSIS
A. FOURTH AMENDMENT PRINCIPLES
The Fourth Amendment of the United States Constitution guarantees every person’s right to be free from unreasonable searches and seizures and provides, in its entirety:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[ ]
Similarly, article 1, § 11 of the Michigan Constitution provides, in relevant part:
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.
This Court has ruled that the Michigan Constitution “is to be construed to provide the same protection as that secured by the Fourth Amendment, absent ‘compelling reason’ to impose a different interpretation.”
Although the entry into defendant’s residence was warrantless, “[u]nder the common law and agreeably to the Constitution search may in many cases be legally made without a warrant. The Constitution does not forbid search, as some parties contend, but it does forbid unreasonable search.” While many warrantless searches are unreasonable pursuant to the warrant requirement, the United States Supreme Court has articulated several instances in which warrantless searches are reasonable. These include searches of automobiles, searches incident to contemporaneous lawful arrests, inventory searches conducted according to established procedure, searches conducted dur ing exigent circumstances, and searches the police undertake as part of their “community caretaking” function.
The instant case involves only the last circumstance listed — searches undertaken as part of a community caretaking function — and requires this Court to determine the scope of that community caretaking exception to the Fourth Amendment’s warrant requirement. Because it is uncontested that the initial search of defendant’s residence was warrantless, we must determine whether the community caretaking exception to the warrant requirement applies.
B. THE COMMUNITY CARETAKING EXCEPTION
The United States Supreme Court first recognized the community caretaking exception to the warrant requirement in Cady v Dombrowski, which involved the constitutionality of the search of the trunk of an out-of-town police officer’s automobile. The police officer was hospitalized after a serious automobile accident, and local police officers arriving on the scene of the accident directed that the injured officer’s vehicle be towed to a private garage. Because the private garage was unsecured, local police sought to locate and safeguard the injured officer’s service revolver. After failing to find the revolver on the officer’s person or in the glove compartment of the vehicle, officers searched the vehicle’s trunk and discovered the revolver, along with evidence of a murder.
Before addressing the legality of the search, the Court explained that police officers often perform certain duties independent of their duty to investigate crimes:
Local police officers ... frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.[ ]
In considering the case before it, the Cady Court determined that the officers had acted not to investigate a crime, but out of “concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle.” The Court concluded that searches conducted to further these community caretaking functions do not necessarily require a warrant in order to be reasonable. Once it had determined that the search was not conducted pursuant to an investigation, the Court analyzed the reasonableness of the search within the scope of the officers’ community caretaking functions: the officers “were simply reacting to the effect of an accident — one of the recurring practical situations that results from the operation of motor vehicles and with which local police officers must deal every day.” In the end, the Court held that the warrantless search was a reasonable exercise of the officers’ community caretaking functions and concluded that their search of the vehicle did not violate the Fourth Amendment:
Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not “unreasonable” within the meaning of the Fourth and Fourteenth Amendments.[ ]
This Court has recognized the community caretaking exception as applicable under Michigan law. In People v Davis, we explained:
The police perform a variety of functions that are separate from their duties to investigate and solve crimes. These duties are sometimes categorized under the heading of “community caretaking” or “police caretaking” functions. When police, while performing one of these functions, enter into a protected area and discover evidence of a crime, this evidence is often admissible....
[According to the United States Supreme Court, the defining characteristic of community caretaking functions is that they are totally unrelated to the criminal investigation duties of the police.
Federal and state courts have included a variety of police activities under the heading of community caretaking functions. Courts have held that impoundment of automobiles and inventory searches of them, as in Cady, responding to missing vehicle complaints, investigating noise complaints, and searching an unconscious person for identification are community caretaking functions.[ ]
Davis further explained that, because “[community caretaking activities are varied and are performed for different reasons,” not all conduct that falls within the police’s community caretaking functions can be judged equally. Indeed, shortly after issuing the Davis decision, this Court listed several additional types of intrusions that courts have justified pursuant to the exercise of community caretaking functions: Accordingly, courts must consider the reasons that officers are undertaking their community caretaking functions, as well as “the level[] of intrusion the police make while performing these functions,” when determining whether a particular intrusion to perform a community caretaking function is reasonable. For instance, “a police inventory of a car is much less intrusive than a police entry into a dwelling.” This is because the privacy of the home stands “ ‘[a]t the very core’ ” of the Fourth Amendment and because “[i]n [no setting] is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home . .. .” Thus, the threshold of reasonableness is at its apex when police enter a dwelling pursuant to their community caretaking functions.
[CJourts have included a multiplicity of police functions within the meaning of the community caretaking function, including entering an apartment to remove a former girlfriend following a domestic dispute, removing an intoxicated person from the street, entering an abandoned boat to ascertain ownership and the safety of the mariners, responding to a missing vehicle complaint, searching an unconscious person for identification, and responding to persons likely to be in need of emergency aid.[ ]
C. FIREFIGHTERS AND THE COMMUNITY CARETAKING EXCEPTION
This Court asked the parties to brief whether the community caretaking exception to the warrant requirement applies to firefighters’ actions. We conclude that the community caretaking exception to the warrant requirement applies when a firefighter, responding to an emergency call involving a threat to life or property, reasonably enters a private residence in order to abate what is reasonably believed to be an imminent threat of fire inside. Therefore, once it is determined that a firefighter’s entry into a private residence was an exercise of community caretaking functions, and not an exercise of investigative functions, we must consider the reasonableness of the entry within the context of that community caretaking purpose.
United States Supreme Court caselaw specifically pertaining to firefighters supports this conclusion. In Michigan v Tyler, the Court concluded that “the Fourth Amendment extends beyond the paradigmatic entry into a private dwelling by a law enforcement officer in search of the fruits or instrumentalities of crime.” Indeed, “there is no diminution in a person’s reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman . . . .”
The principle most relevant to this case from those decisions applying the Fourth Amendment’s warrant requirement to firefighters is that the Fourth Amendment applies equally to police officers and firefighters. It thus follows that if a police officer can avail himself of an exception to the warrant requirement, a firefighter can likewise avail himself of an exception if the circumstances permit. Indeed, Tyler is premised on just that principle: that the exceptions to the warrant require ment apply no less to firefighters than to police officers who have responded to 911 calls requiring imminent action to prevent harm to persons or property.
Like decisions applying the community caretaking exception to police officers’ actions, Tyler distinguished a firefighter’s community caretaking functions from his investigative functions. As a general rule, “official entries to investigate the cause of a fire must adhere to the warrant procedures of the Fourth Amendment.” Nevertheless, “it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view.” In short, under Tyler, the purpose of a firefighter’s initial entry into a building is crucial in determining whether a warrant is required for that entry.
The Tyler Court’s application of the Fourth Amendment to firefighters fits directly into the purposes of the community caretaking exception. Thus, as Cady and Tyler illustrate, we must analyze the reasonableness of the initial intrusion in light of the scope of the intrusion and the firefighter’s purpose in entering the residence. If the purpose of a firefighter’s initial entry into a private residence is to abate an imminent threat of fire, then a warrantless entry is lawful under the Fourth Amendment as long as it is reasonable. Contrarily, if the purpose of a firefighter’s entry is solely to investigate a crime, then a warrant is required unless a different exception to the warrant requirement applies. Tyler’s holding and rationale lead inexorably to the conclusion that the community caretaking exception applies to firefighters. Therefore, we hold that the community caretaking exception applies to firefighters.
Application of the community caretaking exception does not provide firefighters with a blank check to enter private residences; rather, it only authorizes reasonable intrusions. Because “[c]ommunity caretaking functions are varied and are performed for different reasons,” reviewing courts must tailor their analysis to the specifics of a particular intrusion before determining whether it is reasonable. Although neither Michigan caselaw nor that of the United States Supreme Court has specifically analyzed what factors affect whether a firefighter’s intrusion into a private residence is reasonable, there is ample authority within the caselaw applying specific factors in related circumstances that allows this Court to articulate the standards that both protect individuals’ Fourth Amendment rights and allow firefighters to perform their duty to abate serious fire hazards.
As stated, the privacy of the home stands at the very core of the Fourth Amendment’s protections, and the zone of privacy is most clearly defined “when bounded by the unambiguous physical dimensions of an individual’s home.” In determining whether firefighters acted reasonably in entering an individual’s home, a reviewing court must first consider the firefighters’ basis for making the intrusion — namely, whether, acting in good faith, they “possess [ed] specific and articulable facts” leading them to the conclusion that their actions were necessary to abate an imminent threat of fire inside the private residence. Their belief in the necessity of their intrusion need not be “ironclad,” only “reasonable.” Furthermore, courts must not engage in a “hindsight determination” that an entry is unreasonable simply because no imminent hazard actually existed. Rather, courts must determine whether an entry was reasonable on the basis of the circumstances known to the firefighters at the time of entry.
Next, courts should consider the scope of the entry, which “must be limited to the justification therefor” and may not extend beyond what “is reasonably necessary to determine” whether the imminent threat of fire exists inside the private residence. If firefighters do, in fact, find such a threat inside the residence, they may “remain in [the] building for a reasonable time” to abate the hazard and to “investigate [its] cause,” because investigating the cause of the hazard “may be necessary to prevent its recurrence.”
Finally, in determining whether a particular entry is reasonably necessary, firefighters are not constrained to follow the least intrusive means of abating the imminent threat of fire. Indeed, that firefighters could have abated the fire hazard “by ‘less intrusive’ means does not, by itself, render the search unreasonable.” Rather, reviewing courts must consider whether the means and scope of entry were themselves reasonable under the totality of circumstances, not whether they were perfect.
D. APPLICATION
Because the community caretaking exception is not a blank check for warrantless entry by firefighters, we apply the foregoing analysis to determine whether the firefighters’ entry into defendant’s residence was reasonable.
As stated, we must first analyze the firefighters’ basis for entering defendant’s private residence. The circuit court’s findings of fact are relevant here and are not clearly erroneous:
[Lieutenant Schunck] was called to [defendant’s townhouse], in the City of Royal Oak. The call was based upon a report of a possible electrical problem with running water. Upon arrival, he spoke to a neighbor [Tunner], who indicated she suspected water was running between a common wall, which shares an electrical panel. [Schunck] attempted to make contact with the owner of the neighboring apartment, but was unsuccessful. If there was water running onto an electrical box, it presented a life hazard and structure fire situation. [Schunck] made entry into the defendant’s home to see if there was water running into the electrical box.. .. [Schunck] went into the apartment to check for running water, and shut off the electricity. It was possible ... to shut off the water to the entire complex from outside, but the general practice is to shut off the individual apartment.
Upon cross-examination, [Schunck] indicated he did not see or hear any water before or after entering the apartment. In fact, he admitted he did not find any running water in the apartment. [Schunck] also admitted he did not shut off the water of the neighbor, nor did he check that apartment for water or dampness. He also admitted he did not turn off the electrical box for either apartment. [Schunck] was not sure where the meter [was] which would have permitted him to shut off the electricity without entering the apartment.
Upon re-direct examination, [Schunck] indicated he was not sure if he entered [Tunner’s] apartment. He also indicated he would have entered [defendant’s] apartment even if he had shut off the water and/or electrical from the outside. He testified he has to investigate the calls to the fullest extent possible....
At no point did the circuit court indicate that it disbelieved Schunck’s testimony. Schunck also testified that he shut off the water to defendant’s townhouse and that he did so from the basement of defendant’s townhouse.
It is clear from Schunck’s testimony that he acted in good faith. There is no indication that his entry into defendant’s residence was pretextual, and only upon entering defendant’s basement to shut off the water to defendant’s residence did Schunck see what appeared to be contraband in plain view.
Of course, good faith alone is not sufficient to satisfy the requirements of the Fourth Amendment; firefighters must “possess specific and articulable facts” leading them to the conclusion that their imminent action is necessary to abate the threat to persons or property inside the private residence. In this case, Schunck knew of the 911 call and the information it contained. Moreover, he spoke with Tunner, who reported that she saw water coming into her basement from the wall that she shared with defendant and that she heard water flowing behind that wall. Schunck had no reason to disbelieve Tunner’s assertion, although there was no evidence that he corroborated Tunner’s statement by witnessing or hearing the water himself. Nevertheless, Tunner’s report of water leakage next to her electrical box was specific and articulable evidence supporting Schunck’s conclusion that his imminent action was necessary to abate a condition inside defendant’s residence that he reasonably believed was a threat to persons or property.
Furthermore, the fact that the townhouse complex contained several units attached to each other elevated the imminence of the potential hazard. Schunck explained that the attached units were “real close together” and that they “share[d] electrical panels in the basement at the bottom of these [common] walls.” Moreover, because a “high density” of people lived in “all [the] connected apartments,” Schunck explained that “a definite life hazard and possible structur[al] fire type situation” existed. These facts further supported Schunck’s decision to enter defendant’s residence.
We conclude that, in assessing whether an entry was reasonable, courts must also determine whether the scope of the entry was “limited to the justification therefor” or whether it extended beyond what was “reasonably necessary” to abate the hazard inside the private residence. In this case, Schunck entered defendant’s townhouse by having one of his crew enter the townhouse through a window in order to let him enter through the front door. Moreover, Schunck shut off the water to defendant’s townhouse from the basement, which was where Tunner believed the water was flowing and where Schunck found, in plain view, the plants he believed to be contraband. Therefore, the extent of Schunck’s entry and search of defendant’s residence was limited to the area of the residence that the available information indicated was the location of the hazard.
The Court of Appeals panel determined that Schunck entered without considering alternative, less intrusive means of abating the hazard. This kind of post hoc analysis is inconsistent with the principles for assessing the reasonableness of entry that we announce today.
Although it was possible for Schunck to turn off the water from outside defendant’s residence, several facts led Schunck to the conclusion that actual entry into defendant’s residence was necessary. First, because defendant’s residence was physically attached to several other units, Schunck sought to minimize disruption to defendant’s neighbors. Schunck believed that turning off defendant’s water from outside the unit would have shut off the water to the entire complex. Generally, he testified, the fire department “isolate[s] the individual problem in the apartment and shut[s] [the water] off from the inside.” Second, even if he had turned off the water to defendant’s residence from the outside, Schunck testified that “[t]here’s no question” he would have still entered the residence because, as an agent of the city of Royal Oak, he needed to be sure the situation was “totally safe.” Accordingly, there is no indication that Schunck’s entry exceeded what he thought necessary to abate what he believed to be the fire hazard inside defendant’s townhouse.
On the basis of all these facts, we conclude that Schunck acted reasonably in entering defendant’s residence pursuant to an emergency call. The Fourth Amendment does not prevent firefighters responding to emergency calls from undertaking their duty to protect the public from imminent danger. However, we emphasize that the Fourth Amendment does not give firefighters a blank check to enter and search private residences, and we caution reviewing courts to apply these principles carefully in order to ensure the appropriate protection of private residences under the Fourth Amendment. The Fourth Amendment strikes a careful balance, as seen in the instant case, between a citizen’s reasonable expectation of privacy with his similarly reasonable expectation that emergency personnel will act swiftly to protect his residence from the threat to persons or property therein.
E. RESPONSE TO THE DISSENT
In addition to the responses made to the dissent throughout this opinion, we offer the following general discussion of the dissent’s criticisms of our holding.
One of the recurring themes of the dissent is that this opinion does not address how the various community caretaking functions fit within the Fourth Amendment. The response to this criticism is simple: this case only addresses how to apply the Fourth Amendment when a firefighter enters a private residence that he believes to be under the imminent threat of fire. We leave all other variants and all other applications of the community caretaking exception for another day.
For this reason alone, the dissent’s criticism of this opinion for “not wad[ing] into [the] judicial morass” of the distinctions among the community caretaking doctrine, the emergency doctrine, and the emergency aid doctrine is off the mark. Moreover, the dissent’s understanding of these doctrines is needlessly complex because it characterizes them as separate and distinct exceptions to the warrant requirement, rather than as aspects of the community caretaking exception. Readers can judge for themselves whether this opinion thoroughly examined the law relevant to deciding this case. The central purpose of a state court of last resort is not merely to bemoan that “the scope of [the community caretaking] exception[] is far from clear,” but to establish clear principles of law, consistent with the Constitution, that subsequent courts can apply as the facts of any particular case dictate.
By contrast, the dissent would further muddle Fourth Amendment doctrine by deriving several separate exceptions to the warrant requirement based on the exercise of community caretaking functions. But if there is anything clear from the United States Supreme Court’s articulation of the community caretaking exception, it is that actions pursuant to community care-taking functions qualitatively differ from actions pursuant to criminal investigations. This is the central basis for today’s holding.
The dissent would also hold that the community caretaking exception does not apply to entry into private residences. A central part of the dissent’s rationale appears to be that because the decision identifying the community caretaking exception, Cady v Dombrowski, “included language that sharply distinguished automobile searches from searches of private residences,” the exception cannot encompass searches of private residences. However, the dissent can identify no United States Supreme Court decision that rejected the application of the community caretaking exception to private residences. Indeed, the dissent admits, in its discussion of the “emergency” and “emergency aid” exceptions, that firefighters acting pursuant to their community caretaking functions may, under certain circumstances, enter a private residence.
The dissent claims that this opinion “extinguishes the emergency and emergency-aid exceptions to the warrant requirement in Michigan. . . ,” Far from it. We recognize that these different aspects of the community caretaking exception apply the exception to specific circumstances. Our opinion today merely recognizes that in all these circumstances, we must apply the standard of reasonableness that governs all Fourth Amendment cases. Thus, while different circumstances will lead to different conclusions regarding the reasonableness of a particular search, we are only constitutionally required to forbid unreasonable searches.
The reasonableness of the instant entry turns on the fact that the responding firefighters believed that there existed the imminent threat of an electrical fire in defendant’s residence. The firefighters reasonably believed that the danger posed an imminent threat to property or life, and they acted reasonably in abating that threat.
IV CONCLUSION
We conclude that the community caretaking exception to the Fourth Amendment’s warrant requirement applies no less to firefighters than to police officers engaged in abating emergency conditions that concern the protection of life and property. Thus, first-response firefighters may avail themselves of the community caretaking exception to the Fourth Amendment’s warrant requirement. In this case, the firefighter entered defendant’s residence in order to abate what he reasonably believed was the imminent threat of a serious electrical fire. We conclude that he acted reasonably in doing so and that, accordingly, the circuit court and the Court of Appeals majority erroneously suppressed the evidence he discovered in plain view during this entry. We therefore reverse the circuit court’s decision and the Court of Appeals judgment and remand this case to the circuit court for entry of an order denying defendant’s motion to suppress and for further proceedings consistent with this opinion. We do not retain jurisdiction.
Markman, Hathaway, Mary Beth Kelly, and Zahra, JJ., concurred with Young, C.J.
Although one of the issues at defendant’s preliminary examination concerned whether defendant actually resided at the Royal Oak town house, defendant admitted during his testimony at the suppression hearing that he had lived at the townhouse for “a year or two” before his arrest.
Defendant’s and Tunner’s townhouses are adjoining units in a single structure containing approximately 12 individual units.
MCL 333.7401(2)(d)(ii).
People v Tyler, 399 Mich 564; 250 NW2d 467 (1977), aff'd sub nom Michigan v Tyler, 436 US 499 (1978).
Camara v Muni Court of City & Co of San Francisco, 387 US 523; 87 S Ct 1727; 18 L Ed 2d 930 (1967).
People v Davis, 442 Mich 1; 497 NW2d 910 (1993).
People v Slaughter, unpublished opinion per curiam of the Court of Appeals, issued March 16, 2010 (Docket No. 287459).
Id. at 5.
Id. at 6.
Id. at 2-3 (Meter, J., dissenting).
People v Slaughter, 486 Mich 1069 (2010).
People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005).
The Fourth Amendment was incorporated to the states in Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
People v Collins, 438 Mich 8, 25; 475 NW2d 684 (1991), citing People v Perlos, 436 Mich 305; 462 NW2d 310 (1990), People v Chapman, 425 Mich 245; 387 NW2d 835 (1986), People v Catania, 427 Mich 447; 398 NW2d 343 (1986), People v Smith, 420 Mich 1, 23 n 16; 360 NW2d 841 (1984), and People v Nash, 418 Mich 196; 341 NW2d 439 (1983).
Carroll v United States, 267 US 132, 146; 45 S Ct 280; 69 L Ed 543 (1925).
See Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 L Ed 2d 576 (1967).
See California v Carney, 471 US 386; 105 S Ct 2066; 85 L Ed 2d 406 (1985).
See Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969); Maryland v Buie, 494 US 325; 110 S Ct 1093; 108 L Ed 2d 276 (1990).
See South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976).
See Minnesota v Olson, 495 US 91; 110 S Ct 1684; 109 L Ed 2d 85 (1990). The exigent circumstances exception to the warrant requirement is inapplicable to this case. “When the police act pursuant to the exigent circumstances exception, they are searching for evidence or perpetrators of a crime.” Davis, 442 Mich at 24.
See Cady v Dombrowski, 413 US 433; 93 S Ct 2523; 37 L Ed 2d 706 (1973).
Id. at 435-437.
Id.
Id. at 441.
Id. at 447.
Id. at 446.
Id. at 448.
Davis, 442 Mich at 20-23. Part of an officer’s community caretaking function is the rendering of emergency aid to injured persons. This Court has concluded that, in entering a dwelling to render emergency aid to a person inside, “[an] officer must be motivated primarily by the ‘perceived need to render aid or assistance’ ” and “may not do more than is reasonably necessary to determine whether a person is in need of assistance, and to provide that assistance.” City of Troy v Ohlinger, 438 Mich 477, 484; 475 NW2d 54 (1991), quoting State v Prober, 98 Wis 2d 345, 365; 297 NW2d 1 (1980). This Court has further required entering officers to “possess specific and articulable facts that lead them to” the conclusion that someone inside “is in need of immediate aid.” Davis, 442 Mich at 25-26. Proof of someone’s needing assistance need not be “ironclad,” only “reasonable.” Michigan v Fisher, 558 US 45,_; 130 S Ct 546, 549; 175 L Ed 2d 410, 414 (2009). While there is no evidence that the firefighters who entered defendant’s residence possessed specific and articulable facts that led them to the conclusion that someone inside was in need of immediate aid, these principles are instructive in determining whether they believed imminent action was necessary to prevent a threat that placed persons and property in danger.
Davis, 442 Mich at 25.
In re Forfeiture of $176,698, 443 Mich 261, 273-274; 505 NW2d 201 (1993) (citations omitted). In that case, this Court “deeline[d] to employ the community caretaking exception” because “[b]oth of the officers who entered the home testified that the purposes of the entry were to search for intruders and to secure the premises in an effort to thwart an attempted escape,” not to undertake any of the listed community caretaking functions. Id. at 274-275. The case’s discussion of community caretaking functions, while dicta, nevertheless illustrates that, contrary to the dissent’s suggestion that the community caretaking exception applies on its face to only a narrow and undefined subcategory of cases involving police community caretaking functions, this Court has considered several different — and unrelated — community caretaking functions when determining whether a warrantless search is reasonable.
Davis, 442 Mich at 25.
Id.
Payton v New York, 445 US 573, 589-590; 100 S Ct 1371; 63 L Ed 2d 639 (1980), quoting Silverman v United States, 365 US 505, 511; 81 S Ct 679; 5 L Ed 2d 734 (1961).
Payton, 445 US at 589.
Michigan v Tyler, 436 US 449, 504; 98 S Ct 1942; 56 L Ed 2d 486 (1978).
Id. at 506; see also Camara, 387 US at 530 (“It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”).
Similarly, Michigan statutory law recognizes the same emergency/investigation distinction, providing firefighters in uniform and under supervision the authority to “take all necessary steps and requirements to protect persons and property until [a] dangerous condition is abated,” MCL 29.7a(2), as well as the separate authority to “investigate causes and effects related to dangerous conditions,” MCL 29.7a(3).
Tyler, 436 US at 508.
Id. at 509.
Our decision here is expressly limited to the question whether the community caretaking exception applies to firefighters. We leave to another day the determination whether that exception may extend to other emergency first responders.
Davis, 442 Mich at 25.
Payton, 445 US at 589-590.
See, e.g., Colorado v Bertine, 479 US 367, 374; 107 S Ct 738; 93 L Ed 2d 739 (1987) (“[Reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.”).
Davis, 442 Mich at 25.
Fisher, 558 US at _; 130 S Ct at 549; 175 L Ed 2d at 414.
Id.
See id. This standard is consistent with the United States Supreme Court’s application of the warrant requirement to administrative searches in Camara. The search conducted in Camara was one to administer “fire, health, and housing code inspection programs. . ..” Camara, 387 US at 533. While the administration of fire, health, and housing code inspection programs is important to public safety, the application of the warrant requirement to the “routine systematized inspection” involved in Camara turned in part on the fact that “[i]t has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement.” Id. As stated, the application of the community caretaking exception in this case is limited to situations in which firefighters reasonably believe that their entry is necessary to abate an immediate threat to persons or property.
See Davis, 442 Mich at 26.
Tyler, 436 US at 510. Investigating a fire can reveal “continuing dangers such as faulty wiring or a defective furnace.” Id. Accordingly, the Court determined that “officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished.” Id. (emphasis added).
Cady, 413 US at 447.
Davis, 442 Mich at 25.
Contrary to the dissent’s assertion, the fact that Tunner did not immediately call 911, but instead sought to reach defendant, does not negate Schunck’s belief in the imminence of the threat of electrical fire, nor does it make that belief objectively unreasonable.
Id. at 26.
There is no indication that the marijuana plants were hidden from plain view in the basement of defendant’s residence. Accordingly, if Schunck’s entry into defendant’s basement was lawful, then the plain view exception to the warrant requirement allowed this evidence to provide probable cause for the subsequent search warrant, pursuant to which were seized the marijuana plants along with other related evidence found elsewhere in defendant’s residence. See Arizona v Hicks, 480 US 321; 107 S Ct 1149; 94 L Ed 2d 347 (1987).
Post at 334-335. Notwithstanding the dissent’s protestations otherwise, today’s holding is consistent with other courts’ applications of the community caretaking exception. For example, the Washington Supreme Court has determined the “community caretaking function exception to encompass not only the ‘search and seizure’ of automobiles, but also situations involving either emergency aid or routine checks on health and safety.” State v Kinzy, 141 Wash 2d 373, 386; 5 P3d 668 (2000). Similarly, the Illinois Supreme Court recognized that “[c]ourts use the term ‘community caretaking’ to uphold searches or seizures as reasonable under the fourth amendment when police are performing some function other than investigating the violation of a criminal statute.” People v McDonough, 239 Ill 2d 260, 269; 940 NE2d 1100 (2010).
Post at 334.
Post at 348.
The United States Supreme Court has held that if no exception to the warrant requirement applies, a warrantless search is unreasonable. Katz, 389 US at 357. This proxy for what constitutes a reasonable search nevertheless applies the same Fourth Amendment standard: reasonableness.
As the dissent points out, post at 349 n 62, the Davis Court explained that “[w]hile categorizing these different activities under the heading of ‘community caretaking functions’ may be useful in some respects, it does not follow that all searches resulting from such activities should be judged by the same standard.” Davis, 442 Mich at 25. When read in its context — following an extensive (but not necessarily exhaustive) list of different community caretaking functions — it is clear that the Davis Court meant simply that the circumstances of each search must be taken individually to determine whether the search was reasonable. There is no indication that the Davis Court meant to depart from the universal application of the reasonableness standard to all Fourth Amendment inquiries; rather, it sought to apply “standards specifically applicable to emergency aid entries.” Id. We do not disturb the standards that the Davis Court applied in that context. We simply articulate standards applicable to situations in which a firefighter enters a private residence to abate what he believes to be an imminent threat of fire.
The dissent criticizes this opinion for “fail[ing] to explain which community-caretaking functions, beyond responding to an emergency or administering emergency aid, would reasonably justify a warrantless entry into a home.” Post at 349. However, any such articulation would be dicta, because it would incorporate circumstances not controlling in the instant case. | [
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ON REHEARING
Markman, J.
This case returns to this Court on a motion for rehearing. The Michigan Campaign Finance Act (MCFA) prohibits a “public body” from using public resources to make a “contribution or expenditure” for political purposes. MCL 169.257(1). At issue in this case is whether a public school district’s administration of a payroll deduction plan that collects and remits political contributions from its employees to the Michigan Education Association’s political action committee (MEA-PAC) runs afoul of § 57 of MCFA, MCL 169.257(1). We hold that it does. Through administration of a payroll deduction plan that remits funds to a partisan political action committee, a school district makes both a “contribution,” because public resources are being used to advance the political objectives of the committee, and an “expenditure,” because public “services” and “facilities in assistance of” these same political objectives are being provided. Thus, the school district’s payroll deduction plan is prohibited by MCL 169.257. This interpretation is consistent not only with the language of the statute, but also with the evident purpose of § 57, which is to mandate the separation of the government from politics in order to maintain governmental neutrality in elections, preserve fair democratic processes, and prevent taxpayer funds from being used to subsidize partisan political activities. Accordingly, we grant the motion for rehearing, vacate the December 29, 2010, decision of this Court, and affirm the judgment of the Court of Appeals.
I. FACTS AND HISTORY
Petitioner, the Michigan Education Association (MEA), is a voluntary, incorporated labor organization that represents approximately 136,000 members employed by public schools, colleges, and universities throughout Michigan. The MEA-PAC is a separate segregated political fund established by the MEA in accordance with § 55 of MCFA, MCL 169.255. The MEA-PAC is significantly funded by payroll deductions of MEA members who have authorized the deductions. The purpose of the MEA-PAC is to facilitate and coordinate the involvement of the MEA in politics by electing candidates favored by the MEA and by furthering the enactment of MEA legislative and executive policy initiatives.
As a public-employee labor organization, the MEA has entered into collective bargaining agreements with various public school districts across the state. Some number of these agreements, including that between the MEA’s locally affiliated Kalamazoo County/Gull Lake Education Associations and the Gull Lake Community Schools (the school district), require that a school district administer a payroll deduction plan for the contributions of MEA members to the MEA-PAC. Administration of the payroll deduction plan requires the school district to distribute payroll deduction forms; collect, enter, and monitor the data of participating MEA members; and record, track, and transmit payroll deductions to the MEA-PAC. In return for these services, the MEA has proposed to pay all costs that the school district incurs in administering the plan.
In this case, the school district conditioned acceptance of the collective bargaining agreement on the MEA obtaining a declaratory ruling concerning the validity of the payroll deduction plan. Accordingly, on August 22, 2006, the MEA filed a request for a declaratory ruling with respondent, the Secretary of State, to determine whether the school district could make and transmit payroll deductions to the MEA-PAC. Respondent ruled that, absent express statutory authority, the school district is prohibited from expending public resources for a payroll deduction plan on behalf of the MEA-PAC. The MEA appealed to the circuit court, which held that respondent’s ruling was “arbitrary, capricious and an abuse of discretion,” reasoning that, although the school district’s administration of the plan constitutes an “expenditure” under MCFA, when the costs of administering the plan have been reimbursed, “no transfer of money to the MEA-PAC has occurred, and therefore an ‘expenditure’ has not been made within the meaning of the MCFA.”
In a split decision, the Court of Appeals reversed, holding that § 57 of MCFA prohibits a “public body,” such as a school district, from using public resources “to make a contribution or expenditure.” According to the Court, the costs associated with the plan constitute an “expenditure,” and the reimbursement of such costs does not alter that conclusion. Mich Ed Ass’n v Secretary of State, 280 Mich App 477, 486; 761 NW2d 234 (2008). Judge WHITBECK dissented and would have affirmed the trial court, but on different grounds. He reasoned that the costs incurred by the school district in its administration of the payroll deduction plan do not constitute an “expenditure” as MCFA defines it. Id. at 490. The MEA then sought leave to appeal in this Court. On November 5, 2009, we heard oral arguments on the application, and nearly seven months later we granted the MEA’s application for leave to appeal. Finally, on December 29, 2010, a majority of this Court reversed the judgment of the Court of Appeals and held that a school district’s administration of a payroll deduction plan that remits funds to the MEA-PAC “is not precluded by any prohibition in MCL 169.257(1) and is therefore permitted.” Mich Ed Ass’n v Secretary of State, 488 Mich 18, 21; 793 NW2d 568 (2010). Respondent moved for rehearing of the Court’s December 29, 2010, decision, arguing that the Court committed error by holding that a public school’s administration of a payroll deduction plan that remits funds to a partisan political action committee was not prohibited by MCL 169.257(1). We now grant respondent’s motion for rehearing, and we vacate the December 29, 2010, decision of this Court, and affirm the judgment of the Court of Appeals.
II. STANDARD of review
The interpretation of statutes constitutes a question of law that this Court reviews de novo on appeal. Eggleston v Bio-Med Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
III. PURPOSE OF MCL 169.257
“It is well settled that the Legislature of this state is empowered to enact laws to promote and regulate political campaigns and candidacies.” Council No 11, AFSCME v Civil Serv Comm, 408 Mich 385, 395; 292 NW2d 442 (1980) (citations omitted). The people of Michigan have granted the Legislature broad powers to regulate elections. Among other things, our Constitution empowers the Legislature to set forth the qualifications of electors; the time, place, and manner of elections; and limitations on terms of office. Const 1963, art 2, §§ 1 through 10. Furthermore, Const 1963, art 2, § 4 requires the Legislature to preserve the integrity of elections, providing in pertinent part:
The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.
Charged to preserve the “purity of elections” and to “guard against abuses of the elective franchise,” the Legislature enacted MCL 169.257, commonly referred to as § 57 of MCFA. Section 57 prohibits a “public body” from using public resources “to make a contribution or expenditure” for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. The clear purpose of § 57, as reflected in its language, is to mandate the separation of the government from politics in order to maintain governmental neutrality in elections, preserve fair democratic pro cesses, and prevent taxpayer funds from being used to subsidize partisan political activities.
IV ANALYSIS
MCL 169.257(1) provides, in pertinent part:
A public body or an individual acting for a public body shall not use or authorize the use of funds, personnel, office space, computer hardware or software, property, stationery, postage, vehicles, equipment, supplies, or other public resources to make a contribution or expenditure or provide volunteer personal services that are excluded from the definition of contribution under [MCL 169.204(3)(a)].
There is no question that a school district constitutes a “public body” within the meaning of § 57. Accordingly, the issue in this case is whether by administering a payroll deduction plan that remits funds to a political action committee, a school district makes a “contribution or expenditure” within the meaning of the same provision. If the plan does, it is expressly prohibited.
A. “CONTRIBUTION”
MCL 169.204(1) defines a “contribution” as follows:
“Contribution” means a payment, gift, subscription, assessment, expenditure, contract, payment for services, dues, advance, forbearance, loan, or donation of money or anything of ascertainable monetary value, or a transfer of anything of ascertainable monetary value to a person, made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question.[ ]
An “in-kind contribution” is defined as a “contribution .. . other than money.” MCL 169.209(3).
The school district’s administration of the payroll deduction plan that facilitates payments to the MEA-PAC is prohibited by MCL 169.257(1) because the school district uses its public resources “to make a contribution” in a variety of ways. First, the school district employs public resources to administer the plan that allows MEA members “to make a contribution.” For example, the school district must use its paper, pens, and copiers to develop and execute payroll deduction authorization forms; school personnel must collect, enter, and monitor the data of participating MEA members into computers and accounting software, all of which must be specifically configured to record, track, and transmit payroll deductions to the MEA-PAC; school personnel must then be prepared to respond to individual teachers who find it necessary from time to time to adjust or correct or withdraw their own deduction authorizations; and this process must necessarily involve the use of public office space, equipment, and employee time. Use of the school district’s resources to facilitate MEA members’ “contributions” constitutes a straightforward violation of MCL 169.257(1). More specifically, § 57(1) prohibits the school district from using its resources “to make a contribution.” To “make” pertinently means “to cause to exist or happen[.]” Random House Webster’s College Dictionary (2000), def 2. The school district “makes” a “contribution” to the MEA-PAC because it “causes to exist or happen” “contributions” from MEA members that otherwise would not be made but for the school district’s administration of the payroll deduction plan.
Second, the school district itself makes a prohibited “contribution” to the MEA-PAC because its administration of the payroll deduction plan constitutes something of “ascertainable monetary value.” There is inherent value to the MEA-PAC in having payroll deductions automatically taken from members’ wages as opposed to requiring individual solicitations by the MEA-PAC. That there is such “ascertainable monetary value” is self-evident from the very fact that the MEA-PAC has affirmatively sought out the assistance of the school district and has litigated to the highest court of this state an appeal asserting its right to enter into the instant agreement with the school district. Parties do not typically enter into contracts absent a belief that the rights or benefits accorded them under the contract have some “ascertainable monetary value,” and the instant contract seems no different. Such value can almost certainly be identified as the sum of (a) the additional contributions resulting from the ease of the payroll deduction process compared to a political contribution process in which individual solicitations must be undertaken and (b) the reduced administrative and transactional costs of the former process compared to the latter process. The MEA obviously prefers the payroll deduction process because it is a more efficient, and a more productive, process by which to secure funding for its political activities. The school district is not incidental to this process, but constitutes an indispensable element. Without the school district’s contracted-for services, some lesser amount of contributions would presumably be raised on behalf of the MEA-PAC, and at a greater cost.
Third, the administration of the payroll deduction plan also constitutes an “in-kind contribution,” defined by MCL 169.209(3) as a “contribution... other than money.” Although it is clearly possible to quantify the time spent by employees and the resources expended by the school district in administering the deduction plan, and thereby to ascertain the cost of such a “contribution” to the school district, it is more difficult to quantify the intangible benefits that the MEA receives from the deduction plan. However, it is quite certain that these benefits substantially outweigh the costs to the school district, and therefore cannot be calculated simply by reference to the school district’s costs. The most significant of these is simply the extent of access to a district’s MEA membership that is afforded the MEA-PAC by the deduction plan. Such access avoids any need on the part of the MEA-PAC to establish its own administrative apparatus for political fundraising, vitiates its need to engage in mailings and alternative forms of communications with its members, and dispenses with its burden of having to process checks, money orders, or credit cards from contributors, as would be necessary for any other solicitor of political contributions. As MEA’s counsel at oral argument acknowledged, this procedure has proven to be an “effective” means to raise money. Almost certainly, the marginal administrative costs of the payroll deduction plan to the school district, which already may have in place a mechanism by which taxes and charitable contributions can be deducted from employees’ paychecks, will be less than the administrative costs of an equivalent plan to the MEA, which does not already have a similar mechanism in place. The difference between these respective costs can fairly be described as an “in-kind contribution” by the school district to the MEA-PAC, however difficult it may be specifically to quantify in dollars. It is a “contribution... other than money” that is made for the “purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question.”
The services undertaken on behalf of the MEA-PAC are “made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question,” MCL 169.204(1), because, as discussed earlier, the purpose of the MEA-PAC is to facilitate and coordinate the involvement of the MEA in partisan politics. Thus, the school district’s administration of the deduction plan constitutes a “contribution” as that term is defined by MCL 169.204(1). Because the school district employs public resources to make this “contribution,” its administration of the deduction plan is a straightforward violation of §57 of MCFA.
B. “EXPENDITURE”
Section 57 of MCFA also prohibits a “public body” from using public resources to make an “expenditure.” MCL 169.257(1). An “expenditure” is defined as
a payment, donation, loan, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate, or the qualification, passage, or defeat of a ballot question. [MCL 169.206(1).]
The school district’s administration of the payroll deduction plan on behalf of the MEA-PAC constitutes a prohibited “expenditure” because the school district directly provides “services” and “facilities in assistance of” the MEA-PAC. The school district provides “services” to the MEA-PAC in its administration of the deduction plan by developing and executing payroll deduction authorization forms; by collecting, entering, and monitoring the data of MEA members by means of computers and accounting software, all of which must be configured to record, track, and transmit payroll deduc tions to the MEA-PAC; and by accommodating individual teachers who find it necessary from time to time to adjust or correct or withdraw their deduction authorizations. Further, the school district provides “facilities in assistance of” the MEA-PAC through the use of public office space and equipment. These “services” and “facilities in assistance of” the MEA-PAC are, once again, made for the purpose of “the nomination or election of a candidate, or the qualification, passage, or defeat of a ballot question,” MCL 169.206(1), because, as discussed previously, the purpose of the MEA-PAC is to facilitate and coordinate the involvement of the MEA in politics, by electing candidates favored by the MEA and by enacting MEA legislative and policy initiatives. Thus, the school district’s administration of the payroll deduction plan constitutes an “expenditure” as that term is defined by MCL 169.206(1) and is specifically prohibited.
Justice HATHAWAY concedes that the school district’s administration of the deduction plan “falls within the general definition of ‘expenditure’ under MCL 169.206(1)....” Post at 256. However, she would hold, as would Justice CAVANAGH, that the plan also falls within a specific statutory exclusion from the definition of an “expenditure.” This exception provides that an “expenditure” does not include “[a]n expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund or independent committee.” MCL 169.206(2)(c). According to Justice HATHAWAY, a school district’s administration of a payroll deduction plan that remits payments to a political action committee constitutes an “ ‘expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund or independent committee’ ” and is, therefore, allowed under § 57. Post at 257, quoting MCL 169.206(2)(c). However, her analysis overlooks the fact that a “public body,” such as a school district, is not authorized to establish a separate segregated fund under MCFA and, therefore, may not rely on the § 6(2)(c) exclusion.
Instead, this exclusion is clearly designed to apply only to corporations and labor organizations that possess the authority to create, establish, administer, or fund separate segregated funds in the first place. This interpretation, limiting the § 6(2) (c) exclusion to corporations and labor organizations, is a necessary implication from the structure of MCFA for three reasons. First, § 54 of MCFA, MCL 169.254, imposes the same rule, prohibiting the making of a “contribution or expenditure,” on corporations and labor organizations that § 57 imposes on public bodies. In pertinent part, § 54 provides:
Except with respect to the exceptions and conditions in ... section 55 [MCL 169.255],.. a corporation, joint stock company, domestic dependent sovereign, or labor organization shall not make a contribution or expenditure .... [MCL 169.254(1) (emphasis added).]
Second, unlike § 57, § 54 does not constitute an absolute prohibition against making a “contribution or expenditure”; rather, pursuant to § 55,
[a] corporation organized on a for-profit or non-profit basis, a joint stock company, a domestic dependent sovereign, or a labor organization formed under the laws of this or another state or foreign country may make an expenditure for the establishment and administration and solicitation of contributions to a separate segregated fund to be used for political purposes. A separate segregated fund established under this section shall be limited to making contributions to, and expenditures on behalf of, candidate committees, ballot question committees, political party committees, political committees, and independent committees. [MCL 169.255(1).]
Third, there is no similar counterpart in § 57 that allows a “public body” to make “an expenditure for the establishment and administration and solicitation of contributions to a separate segregated fund . . . Thus, under § 55, the only entities allowed to establish a separate segregated fund are corporations, joint stock companies, domestic dependent sovereigns, or labor organizations, such as the MEA. Considered together, § 55 and the § 6(2)(c) exclusion that permits an “expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund” provide a limited mechanism allowing entities such as the MEA to create, establish, administer, or fund a separate segregated fund for purposes that would otherwise be disallowed by § 54. In contrast, a “public body,” such as a school district, is not entitled to create, establish, administer, or fund a separate segregated fund, under § 55 or any other provision, and thus may not. rely on the § 6(2) (c) exclusion from the definition of an “expenditure.”
Even if, as Justice HATHAWAY claims, the § 6(2)(c) exclusion is not limited to § 55 entities, her application of the exclusion remains illogical. Justice HATHAWAY concludes that although a school district’s administration of the payroll deduction plan constitutes an “expenditure,” it is nevertheless
explicitly excluded from the statutory definition under MCL 169.206(2)(c), which provides that an “expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund or independent committee” is not an “expenditure.” A public school’s administration of a payroll deduction system falls squarely within the statutory exception. The system is set up to facilitate MEA member contributions to their separate segregated fund, the MEA-PAC. Therefore, the administration of the system is not an “expenditure” under the MCFA. [Post at 256.]
Justice HATHAWAY thus concludes that the administration of a payroll deduction plan falls “squarely within the statutory exception.” Under MCL 169.206(2)(c), an “expenditure” does not encompass what would otherwise be an “expenditure” for (a) establishment of a separate segregated fund or independent committee, (b) administration of a separate segregated fund or independent committee, or (c) solicitation of contributions to a separate segregated fund or independent committee. Thus, in order to fall within the purview of this exception, a “public body” must be engaged in one of these enumerated activities. In this case, however, the school district is engaged in none.
First, the school district is not making an “expenditure” for the establishment of a separate segregated fund or independent committee because the separate' segregated fund, the MEA-PAC, has already been established by the MEA. In any event, the school district could not establish a separate segregated fund in the first place, because that authority is limited to the entities enumerated in § 55 (corporations, joint stock companies, domestic dependent sovereigns, and labor organizations).
Second, the school district is not making an “expenditure” for the administration of a separate segregated fund or independent committee because the school district is not “administering” the MEA-PAC; rather, the school district is simply administering the payroll deduction plan that remits funds to the MEA-PAC. That is, the school district makes no determinations at all concerning amounts of funds to be raised from MEA members or other funding sources; the nature and substance of communications to MEA members and other funding sources about the need and urgency of such contributions; the identification of political candidates and causes as beneficiaries of the MEA-PAC, and in what amounts; or strategies for optimizing the impact of MEA-PAC participation in political campaigns and causes. Justice HATHAWAY, however, would hold that the plain language of the statute dictates that the administration costs- at issue are excluded from the statutory term “expenditure.” See post at 256. In so asserting, Justice HATHAWAY misinterprets the statute, because the only administrative costs that are excluded under this exclusion are those associated with administering a “separate segregated fund or independent committee.” MCL 169.206(2)(c). That the school district is administering a process by which payments are remitted to such a fund is hardly the equivalent of administering the fund itself, such that the § 6(2) (c) exclusion would apply. Justice HATHAWAY is confused in this regard.
Third, the school district is not making an “expenditure” for the solicitation of contributions to a separate segregated fund or independent committee; rather, the school district is using public resources for processing payments to the MEA-PAC. As discussed earlier, the school district’s “expenditure” consists of the use of personnel, office space, computers, software, and other public resources to remit payments to the MEA-PAC. The school district is not, for example, maintaining an advertising campaign on behalf of the MEA-PAC, cold- calling MEA members, or preparing mailers or brochures to enlist contributors. As such, the school district’s use of public resources for processing payments to the MEA-PAC cannot be viewed as soliciting contributions, but only as facilitating such contributions, an entirely distinct concept. It follows that because the school district’s administration of the payroll deduction plan does not fall within any of the three enumerated exclusions set forth in MCL 169.206(2) (c), it is not excluded from the definition of an “expenditure.”
C. KELEVANCE OF ADVANCE PAYMENTS
Having determined that the school district’s administration of the payroll deduction plan that remits payments to the MEA-PAC constitutes both a “contribution” and an “expenditure,” the question remains whether the MEA’s preparedness to pay in advance the school district’s costs associated with the plan remedies what would otherwise constitute a violation of § 57. For the reasons that follow, it does not.
The Court of Appeals correctly held that there is “nothing in the plain language of the MCFA that indicates reimbursement negates something that otherwise constitutes an expenditure.” Mich Ed Ass’n, 280 Mich App at 486. A court’s primary purpose in interpreting a statute is to ascertain and effectuate legislative intent. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). “Courts may not speculate regarding legislative intent beyond the words expressed in a statute. Hence, nothing maybe read into a statute that is not within the manifest intent of the Legislature as derived from the act itself.” Omne Fin, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999) (citations omitted). The Legislature declined to provide that advance payments remedy what would otherwise constitute a violation of § 57.
The suggestion that advance payments remedy a violation of § 57 is belied by the terms of the statute. Section 57 provides that “[a] public body . .. shall not use or authorize the use” of public resources to make a “contribution or expenditure . ...” MCL 169.257(1) (emphasis added). The use of “shall” in a statute generally “indicates a mandatory and imperative directive.” Burton v Reed City Hosp Corp, 471 Mich 745, 752; 691 NW2d 424 (2005) (citations omitted). As such, the statute mandates that the school district not “use or authorize the use of” its public resources to make a “contribution” or an “expenditure.” Nothing in MCFA leads to the conclusion that the Legislature intended § 57 to be interpreted any differently. Irrespective of whether the school district is reimbursed for its administration of the payroll deduction plan, the school district nonetheless has employed public resources to make a “contribution or expenditure” for political purposes. The advance payment of expenses simply does not negate what § 57 is intended to prohibit. That is, the gravamen of § 57 is not that a “public body” whose resources have been employed for private political purposes be compensated on a dollar-for-dollar basis, but that public resources not be used for such purposes in the first place. That the costs of dismantling the wall separating government and partisan political campaigning are to be paid by those who desire to use taxpayer resources for partisan political campaigning is not the point of § 57; rather, it is that the wall not be dismantled.
Furthermore, the unquantifiable cost to the school district, as well as to taxpayers, parents, and students, of having time and resources diverted from the school district’s primary responsibilities of administering schools and educating students in order to administer a process of raising political contributions for the MEA-PAC cannot simply be paid in advance or reimbursed. Time is a zero-sum resource, and it is irretrievably lost to taxpayers, parents, and students when it is taken away from the former responsibilities and redirected to the latter responsibilities. If some lesser portion of each day is devoted to the interests of the school district and a greater portion of each day is devoted to the partisan political interests of a labor organization, taxpayers, parents, and students suffer. Although advance payment may recompense the school district its employees’ salaries for the time spent on administration of the plan and for the use of supplies and other public resources, monetary reimbursement, paid in advance or otherwise, is simply insufficient to recover the time that is diverted from the primary obligations of the school district.
Moreover, because neither advance payments nor reimbursements prevent the prohibited “use” of public resources from occurring in the first place, the act is punishable as a misdemeanor and subject to a fine that may be “equal to the amount of the improper contribution or expenditure.” MCL 169.257(2)(b). The fact that one of the penalties for making an improper “contribution or expenditure” requires the violator to pay an amount that is “equal to the amount of the improper contribution or expenditure” indicates strongly that such a payment, whether in the form of a “penalty” or a “reimbursement,” does not transform an improper “contribution or expenditure” into a proper one. Had the Legislature intended otherwise, the misdemeanor statute would more likely have read that the criminal sanction to be paid is “equal to the amount of the improper contribution or expenditure, less any reimbursement of such contribution or expenditure.”
V RESPONSE TO DISSENTS
As discussed previously, Justice HATHAWAY’s position that the school district’s administration of a payroll deduction plan is not an “expenditure” because the cost of administration is an “expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund or independent committee,” MCL 169.206(2)(c) — an enumerated exception to the statutory definition of “expenditure” — lacks merit for two reasons. First, a school district’s administration of a payroll deduction plan is not excluded from the definition of an “expenditure” under that section because a “public body,” such as a school district, is not authorized to create a separate segregated fund under MCFA and, therefore, may not rely on the § 6(2)(c) exclusion from the definition of an “expenditure.” Second, even if a “public body” is entitled to rely on this exclusion, the school district’s administration of the payroll deduction plan does not fall within the statutory exception because the school district’s “expenditure” cannot be characterized as “[a]n expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund or independent committee.” As also previously discussed, the school district’s administration of the payroll deduction system is a prohibited “contribution.” However, Justice HATHAWAY reasons that the school district’s administration of the payroll deduction plan does not constitute a “contribution.” This latter aspect of her opinion warrants further discussion.
(a) In circular fashion, Justice HATHAWAY would hold that the definition of “contribution” encompasses the term “expenditure” and, thus, because the school district’s administration of the payroll deduction plan does not constitute an “expenditure,” it also cannot be a “contribution.” Justice HATHAWAY then states that “[t]he only other way that the administration of the system could be a ‘contribution’ under the MCFA would be if administering the system resulted in a ‘transfer of anything of ascertainable monetary value ....’” Post at 258. This assertion is erroneous. As discussed earlier, an “in-kind contribution,” which is a “contribution ... other than money,” also constitutes a “contribution.” MCL 169.209(3). Similarly, MCFA defines as a “contribution” a “payment.” MCL 169.204(1). The school district arguably makes a “payment” to the MEA-PAC when it transfers money from participating MEA members to the MEA-PAC. Although in these circumstances the school district only acts as a conduit, a “contribution” made at the direction of another person “shall be regarded as an expenditure or contribution attributable to both persons for purposes of expenditure or contribution limits.” MCL 169.270.
(b) Justice HATHAWAY further errs, in our judgment, as did the former majority opinion, by concluding that her interpretation is necessary to avoid absurd results. In discussing whether the administration of the payroll deduction plan constitutes a “transfer of anything of ascertainable monetary value” and thus a “contribution,” Justice Hathaway states:
There are two possible interpretations of the word “transfer” in the statute. The first interpretation would require that any conveyance of value for services provided to a campaign, regardless of whether the services are paid for, would constitute a contribution. The second would require a net conveyance of value in order to be a “transfer of anything of ascertainable monetary value.” I believe that the latter is the only logical interpretation. Any other interpretation of “contribution” would lead to an absurd result, and statutes must be construed to prevent absurd results. For example, under the majority’s interpretation, a print shop that sells signage to a campaign in the normal course of business would be making a contribution to the campaign because it has transferred something of monetary value to the campaign, even though the shop has been compensated for the cost of providing the signage. Such an interpretation of “contribution” defies common sense, and I do not read the statute in this manner. [Post at 259-260 (citations omitted).]
By emphasizing that her interpretation is necessary to avoid “absurd results,” Justice HATHAWAY appears to concede that the more natural interpretation of the law is that asserted by this majority opinion. Resort to an “absurd results” analysis is generally necessary only to avoid an interpretation that would otherwise flow from a statute by the application of traditional principles of interpretation.
In essence, Justice HATHAWAY believes that it is necessary to read MCL 169.204(1) as if it referred to a “net transfer of anything of ascertainable monetary value,” which it does not, in order to avoid the allegedly “absurd result” to which our interpretation of MCL 169.204(1) would lead. What is this allegedly “absurd result”? What is this result that is “quite impossible that [the Legislature] could have intended”? Pub Citizen v United States Dep’t of Justice, 491 US 440, 471; 109 S Ct 2558; 105 L Ed 2d 377 (1989) (Kennedy, J, concurring). What is this result that is “unthinkable” or “bizarre”? Green v Bock Laundry Machine Co, 490 US 504, 527; 109 S Ct 1981; 104 L Ed 2d 557 (1989) (Scalia, J, concurring). What is this result that “cannot rationally . . . mean” what it seems to mean? Id. at 528. That .there be no exchanges of value between a “public body” and a partisan political action committee? That the government not further the partisan interests of a political action committee? That taxpayer resources not be employed to collect, and facilitate, partisan political contributions? While these results may be “absurd” to the dissenting justices, we do not find them to be “absurd” at all. Once again, the dissenting justices seem to equate an absurd result with a disagreeable result. Cameron v Auto Club Ins Ass’n, 476 Mich 55, 84-86; 718 NW2d 784 (2006) (Markman, J., concurring); Petersen v Magna Corp, 484 Mich 300, 370; 773 NW2d 564 (2009) (Markman, J., dissenting). Furthermore, the specific “absurd result” alleged here by Justice HATHAWAY, that a print shop could not. sell signs to a campaign because this would constitute a “contribution,” is itself absurd. A print shop is not a “public body” and therefore, unlike a school district, is not regulated by § 57 of MCFA.
(c) The former majority opinion also erred when it concluded that MCL 408.477 of the wages and fringe benefits act provides authority for the school district to administer the payroll deduction plan. Mich Ed Ass’n, 488 Mich at 38 n 29. “[S]chool districts and school officers have only such powers as the statutes expressly or impliedly grant to them.” Jacox v Van Buren Consol Sch Dist Bd of Ed, 293 Mich 126, 128; 291 NW 247 (1940). “ ‘The extent of the authority of the people’s public agents is measured by the statute from which they derive their authority, not by their own acts and assumption of authority.’ ” Sittler v Mich College of Mining & Technology Bd of Control, 333 Mich 681, 687; 53 NW2d 681 (1952) (citation omitted). Contrary to the former majority opinion, the authority to administer a payroll deduction plan for a political action committee is not expressly or impliedly granted to schools by any statute.
While MCL 408.477 of the wages and fringe benefits act refers to payroll deductions, it does not authorize school districts to administer payroll deductions for political action committees. MCL 408.477(1) provides in full:
Except for those deductions required or expressly permitted by law or by a collective bargaining agreement, an employer shall not deduct from the wages of an employee, directly or indirectly, any amount including an employee contribution to a separate segregated fund established by a corporation or labor organization under section 55 of the Michigan campaign finance act, Act No. 388 of the Public Acts of 1976, being section 169.255 of the Michigan Compiled Laws, without the full, free, and written consent of the employee, obtained without intimidation or fear of discharge for refusal to permit the deduction.[ ]
From this provision, the former majority opinion summarily concluded that, “under the plain language of MCL 408.477, public bodies have the authority to administer a payroll deduction plan that contributes money to the MEA-PAC if the MEA enters into a collective bargaining agreement that expressly permits the deductions.” Mich Ed Ass’n, 488 Mich at 38 n 29. This is another example of the former majority opinion’s misinterpretation of a statute. MCL 408.477 has absolutely nothing to do with whether a “public body” may administer a payroll deduction plan for the benefit of the MEA-PAC. Rather, the statute describes the approval required for an employer to deduct a portion of an employee’s wages and states that in order to deduct wages from an employee, the employer must obtain the employee’s voluntary consent. The statute also provides that such consent is not required when the wage deduction is expressly permitted by law or by a collective-bargaining agreement. The most that can be discerned from this statute as it pertains to the instant case is that, if the school district is to deduct wages from its employees, it must obtain the employees’ voluntary consent unless the deduction is expressly permitted by law or a collective-bargaining agreement. However, neither MCL 408.477 nor any other statute provides authority for a “public body” to administer a payroll deduction plan that contributes money to a political action committee. Therefore, even if the school district’s administration of a payroll deduction plan did not constitute a “contribution” or an “expenditure,” which it clearly does, the school district would still lack the authority to administer such a plan because no statute gives the school district this authority and the school district only has the authority granted to it by statute. Indeed, as explained earlier, the Legislature has affirmatively and expressly forbidden a school district, or any other public body, from making a “contribution or expenditure” to a political action committee.
VI. JUSTIFICATION FOR REHEARING
The dissenting justices assert, explicitly or implicitly, that this opinion undoes their opinion of December 29, 2010, upon rehearing without offering any new justification for doing so other than the views expressed in the dissent from that opinion. See post at 251 (Hathaway, J., dissenting), and post at 236 n 1 (Cavanagh, J., dissent ing). For the benefit of the dissenting justices, we will attempt to provide this justification.
First, contrary to Justice HATHAWAY’s assertion, we respectfully disagree that the previous majority opinion “followed the language of the law.” Post at 252. Indeed, we believe that opinion to have interpreted MCFA in a manner that bore little resemblance to its actual language. The previous majority opinion (a) effectively inserted words into the law that are absent from the law, e.g., construing the “transfer of anything of ascertainable monetary value” to require that there be a “transfer of anything of net ascertainable monetary value,” see Mich Ed Ass’n, 488 Mich at 36, (b) effectively altered words in the law, e.g., substituting for “ascertainable monetary value” “ascertained” monetary value, id. at 37, (c) applied the facts to the law in an implausible fashion, e.g., asserting that the administration of the payroll deduction plan was not done for the “ ‘purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question,’ ” id., quoting MCL 169.204(1), (d) mischaracterized the facts, e.g., asserting that the administration of the payroll deduction plan by the school constituted no “transfer of ascertainable monetary value” to the MEA-PAC but “merely allow[ed] someone else to make a contribution,” Mich Ed Ass’n, 488 Mich at 37, (e) failed to analyze relevant and determinative provisions of the law, e.g., the definition of an “in-kind contribution,” (f) paraphrased the law in an imprecise manner, e.g., summarizing an exception to the law’s broad prohibition that is applicable to the administration of a separate segregated fund or independent committee as one applicable to the administration of contributions, id. at 29-30, and (g) overlooked words of the law, e.g., asserting that because the administration of the payroll deduction plan does not constitute an “expenditure,” the “only other way” that it could constitute a “ ‘contribution’ ” would be if a “ ‘transfer of anything of ascertainable monetary value’ ” resulted, id. at 34, quoting MCL 169.204(1), despite the fact that MCFA defines a “contribution” in other ways to include “a payment” or an “in-kind contribution.”
Second, while the dissenting opinions make light of the fact that we supposedly have little justification for this new opinion other than the views expressed in the dissent from the original opinion, we believe that such a justification is actually rather compelling. That is, we believe that the previous dissent was in accordance with the language and intent of MCFA, while the previous majority opinion was not, and as between an analysis of the law that is in accordance with its language and intent and one that is not, we prefer the former.
Third, we “justify” granting the motion for rehearing, and reconsidering our previous decision, because we believe that the issue before the Court is one of considerable importance to the people of this state and to the integrity of the state’s political and public processes. Through MCFA, the people have sought to maintain a separation of politics and the government in order to maintain governmental neutrality in elections, preserve fair democratic processes, and prevent taxpayer funds from being used to subsidize partisan political activities. The previous majority opinion, and the present dissenting opinions, would dismantle this separation. They would increasingly involve the taxpayer in the subsidization of partisan political activities and increasingly erode the neutrality of public institutions in these same activities. While the dissenting justices seem very little moved by these concerns, we believe that they are substantial. It should be a matter of great pride to the people of Michigan that its history, with very few exceptions, has been a history characterized by electoral fair play and an honest political process. Both parties, and their supporters, can take credit for this history. We believe that the people of this state understand well the importance to this history of a legal system in which parties and political action committees cannot commandeer taxpayer resources and in which government cannot place a thumb on the scale concerning who will prevail in the political process. In short, we believe that the people understand well, for it is at the root of MCFA, that to breach these principles is incompatible with a government that is “instituted for ... [the] equal benefit.. . and protection” of the people. Const 1963, art 1, § 1.
Finally, we believe that the former majority’s remarkable treatment of this case itself constitutes grounds for granting rehearing. This case was alternately subject to unprecedentedly dilatory treatment and unprecedentedly accelerated treatment. See Mich Ed Ass’n, 488 Mich at 64-68 (Markman, J., dissenting). Before this case was heard in November of last year, it was subject to the lengthiest delay, by far, of any of the 280 cases considered under the procedures of MCR 7.302(H)(1), which authorize this Court to order oral argument before deciding whether to grant leave to appeal. See also footnote 4 of this opinion. Subsequently, after finally granting leave to appeal and hearing oral argu ments, a majority opinion was prepared in near-record time, the period for dissenting justices to respond to this opinion was substantially shortened, and, in December, these opinions issued in what approached, if not exceeded, record time for a major decision of this Court.
VII. CONCLUSION
MCL 169.257 prohibits a “public body” from using public resources to make a “contribution or expenditure” for political purposes. Through administration of the payroll deduction plan in this case, remitting payments to the MEA-PAC, the school district makes both a “contribution” and an “expenditure” as defined by MCFA. The MEA-PAC’s offer to reimburse the school district for expenses incurred in its administration of the plan does not remedy an otherwise clear violation of MCL 169.257. This interpretation is consistent not only with the language of the statute, but also with the evident purpose of MCL 169.257, which is to mandate the separation of the government from politics in order to maintain governmental neutrality in elections, preserve fair democratic processes, and prevent taxpayer funds from being used to subsidize partisan political activities. The payroll deduction plan in this case is inconsistent with this legislative purpose and inconsistent with the language of the law. Accordingly, the judgment of the Court of Appeals is affirmed.
Young, C.J., and Mary Beth Kelly and Zahra, JJ., concurred with Markman, J.
Concerning Justice Hathaway’s reference to now Chief Justice Young’s dissent in United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 27; 795 NW2d 101 (2009) (USF&G), see the Chief Justice’s response in his concurring opinion in Anglers of the AuSable v Dep’t of Environmental Quality, 489 Mich 884, 885 (2011), the thrust of which was that the majority opinion in USF&G prevailed over his dissent, as is the fate of most dissents. The Chief Justice casts his vote in this case as justices have traditionally done, in accordance with their original vote in the underlying case, and our new justices, Justices Mary Beth Kelly and Zahra, also cast their vote as new justices have traditionally done, in accordance with their best understanding of the law. See, e.g., USF&G, in which Justice Hathaway herself cast a vote in this manner, and Duncan v Michigan, 488 Mich 957 (2010) (Davis, J, concurring), in which the fourth justice in support of the former majority opinion in this case also cast his vote in this manner. Justice Hathaway would apparently require the majority justices in this case to abide by an entirely different set of legal rules.
The Secretary of State is authorized to issue declaratory rulings to implement MCFA, MCL 169.201 et seq., in accordance with the Administrative Procedures Act, MCL 24.201 to 24.328.
The Court directed the parties to brief
(1) whether a school district’s use of government resources for a payroll deduction plan for contributions made by members of [the MEA] to MEA’s political action committee is either an “expenditure” or a “contribution” under § 6 of the [MCFA], MCL 169.206;
(2) whether § 57(1) of the MCFA, MCL 169.257(1), prohibits a school district from expending governmental resources for such a payroll deduction plan if the costs of the plan are prepaid by the MEA; and (3) whether a school district has the authority to collect and deliver payroll deductions for such contributions. [Mich Ed Ass’n v Secretary of State, 483 Mich 1001 (2009).]
The order granting leave to appeal directed the parties to address the effect, if any, of Citizens United v Fed Election Comm, 558 US 310; 130 S Ct 876; 175 L Ed 2d 753 (2010). Mich Ed Ass’n v Secretary of State, 486 Mich 952 (2010). It was clear from the outset that Citizens United had no discernible effect on this case and that the grant of leave to appeal, following the argument on the application, imposed unnecessary expenses on the parties and considerably delayed resolution of an important dispute of statewide importance. See id. at 953 (Markman, J., dissenting).
See also, e.g., the political activities by public employees act, MCL 15.401 et seq. (providing that an employee of the state or local unit of government may not engage in political affairs during working hours); the Michigan Gaming Control and Revenue Act, MCL 432.201 et seq. (providing that members, employees, or agents of the Michigan Gaming Control Board may not engage in political activity for the duration of their employment); and Civil Service Rule 1-12.6 (prohibiting state employees from participating in political activities during working hours).
MCFA defines a “public body” to include “[a] county, city, township, village, intercounty, intercity, or regional governing body; a council, school district, special district, or municipal corporation; or a board, department, commission, or council or an agency of a board, department, commissioner, or council.” MCL 169.211(6)(c).
The MEA-PAC is a “person” because, as a separate segregated fund, it functions as the result of an organization or group of persons acting jointly. See MCL 169.211(1).
All agree that the MEA members’ “payment” or “donation of money” to the MEA-PAC constitutes a “contribution” under MCL 169.204(1) and that the school district facilitates that “contribution” to the MEA-PAC. However, Justice Cavanagh asserts that the school district does not employ public resources to “make” the MEA members’ contribution because it “merely transfers money from one place to another.” Post at 240-241 n 4. This characterization significantly trivializes the nature of the school district’s participation in the MEA-PAC’s fundraising. As already discussed, to “make” relevantly means to “cause to exist or happen.” Simply put, if the public resources of the school district had not been employed to facilitate the MEA members’ contributions, those “contributions” would not have “happened.”
Relying on the dictionary definition of “ascertain,” Justice Hathaway asserts that the school district’s administration of the payroll deduction plan does not have “ascertainable monetary value” because the monetary benefits conveyed to the MEA-PAC have not been “determined definitely, with certainty and assurance.” Post at 261. Unfortunately, Justice Hathaway has defined the wrong word. “Ascertainable” does not mean “to find out definitely” or “learn with certainty or assurance,” as Justice Hathaway opines, because that is the definition of “ascertain,” not “ascertainable.” Random House Webster’s College Dictionary (2000). Rather, “ascertainable” means “able to be ascertained.” New Shorter Oxford, English Dictionary (3d ed) (emphasis added).
While the MEA has not provided this Court with numbers regarding the specific benefits yielded from the district’s administration of the deduction plan, it is safe to say that the additional contributions garnered, and the reduction in administrative and transactional costs, are “able to be ascertained.” In short, if the school district no longer automatically deducted contributions from the paychecks of its employees, the MEA would have to hear the added cost of individually contacting each of its members and individually soliciting contributions from them. Everyone understands that this procedure would be a far more costly, and less effective, way of collecting political contributions than the current procedure. Such a cost is easily “ascertainable,” even if the MEA and Justice Hathaway are uninterested in calculating it, and thus the cost of direct solicitation that the MEA avoids by the current procedure constitutes a “contribution” as MCFA defines it.
Justice Hathaway asserts that “this argument ignores that an in-kind contribution must still be a ‘contribution’ as defined by the statute.” Post at 262 (emphasis added). This point is hardly “ignored,” for it constitutes the principal focal point of the instant section. That the administration of the deduction plan not only constitutes a “contribution” but also an “in-kind contribution” merely establishes an additional way in which the school district’s administration of the plan is prohibited by MCFA.
The previous majority opinion stated that “[w]hen a public body administers a payroll deduction plan, it does not do so in an attempt to influence a political race or a ballot question.” Mich Ed Ass’n, 488 Mich at 37. However, that opinion failed to recognize that MCL 169.204(1) defines “contribution” as “a payment. . . made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question.” (Emphasis added.) As discussed, the school district uses its public resources “to make” the MEA members’ payments. Therefore, the pertinent question is not whether the “public body” itself is attempting to influence a political race or ballot question, but whether payments that result from its administration of the payroll deduction plan are intended for that purpose. It is obvious here that the “payment[s] [are] made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question.” Id. This is the purpose that individual MEA members have in mind when they authorize payments, and it is the purpose that the MEA-PAC has in mind when it receives payments from the school district. It is equally obvious that the school district itself must be fully cognizant of this purpose both when it receives payments from individual MEA members and when it delivers payments to the MEA-PAC. That the school district itself might not care whether such payments will influence a political race or ballot question does not alter the fact that the purpose of these payments is to do precisely that.
The previous majority opinion erred when it concluded that administration of the plan “merely allows someone else to make a contribution for the purpose of influencing a political issue,” Mich Ed Ass’n, 488 Mich at 37, i.e., the MEA member who has authorized the payroll deduction. Instead, the school district itself makes both a “contribution” and an “in-kind contribution” by providing valuable services to the MEA-PAC in aid and furtherance of its political activities. That is, quite independently of the contributions of individual MEA members, the school district contributes something of further “ascertainable monetary value” to the MEA-PAC.
Justice Cavanagh asserts that there is “simply no basis in the statutory language to support the majority’s position.” Post at 247. As discussed, our position, limiting the § 6(2)(c) exclusion to § 55 entities, such as corporations and labor organizations, is a necessary and logical implication derived from MCFA. In discerning legislative intent, “[t]he whole act provides [the] proper ‘frame of reference,’ ” and each section must be considered together with other sections. Metro Council No 23, AFSCME v Oakland. Co Prosecutor, 409 Mich 299, 318; 294 NW2d 578 (1980) (citation omitted). The exclusion of certain expenditures from the definition of “expenditure” in § 6(2)(c) invokes exactly the same operative language as § 55 and is plainly directed toward elaborating on § 55 by making clear that no expenditures authorized by § 55 for the establishment of a separate segregated fund will be treated as a prohibited expenditure by § 54. This does not render § 6(2)(e) “superfluous” or “completely unnecessary,” as Justice Cavanagh claims. Post at 247. Rather, as already explained, § (6)(2)(c) serves to underscore, and to make explicit, what is otherwise only implicit in § 55 — that “expenditures” permitted by § 55 are not otherwise prohibited by § 54.
Furthermore, if § (6)(2)(c) is interpreted to apply to public bodies, which are not authorized to establish separate segregated funds in the first place, the operative language of § 57, which prohibits the use of public resources to subsidize partisan political activities, would be rendered null and void. When a political action committee commandeers the resources of the government to raise political contributions for its own benefit, as occurred here, that conduct could always he categorized under Justice Cavanagh’s interpretation as falling within the § 6(2)(c) exception and rendered permissible. Thus, the § 6(2) (c) exception would entirely consume the rule prohibiting public bodies from making “expenditures” for political purposes, and the Legislature would effectively have taken with the right hand what it had just given with the left. Under such an interpretation, § 6(2) (c) would allow the Secretary of State’s office, for example, to solicit contributions to a partisan or special interest political action committee with each driver’s license renewal communication; it would allow Secretary of State employees to administer the political contributions received through this process; it would allow Secretary of State facilities and computers to he deployed to malee and print relevant informational pamphlets and political action committee materials; and it would allow the Secretary of State’s office to attach the postage for these solicitations. This interpretation cannot conceivably he what the Legislature intended when it enacted MCFA. Reading MCFA in its entirety, and in context, it is clear that the Legislature intended the § 6(2)(c) exception to apply only to those entities that possess the authority to create, establish, administer, or fund separate segregated funds in the first place.
Justice Cavanagh concludes that MCFA excepts from the definition of “expenditure” an “expenditure” for the (a) establishment of contributions to a separate segregated fund, (b) administration of contributions to a separate segregated fund, and (c) solicitation of contributions to a separate segregated fund. Reading § 6(2) (c) in isolation could support his interpretation; however, reading MCFA in its entirety, in particular after due consideration of MCL 169.255(1), makes clear that the only reasonable interpretation of § 6(2) (c) is that it pertains to the “establishment” or “administration” of a “separate segregated fund” and not the “establishment” or “administration” of “contributions.” See Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (“The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended.”). His interpretation disregards the fact that this Court must consider § 6(2)(c) and § 55 together, “so as to produce, if possible, an harmonious and consistent enactment” of MCFA. State Treasurer v Wilson, 423 Mich 138, 145; 377 NW2d 703 (1985). Unmistakably, the objective of § 55 is to provide authority for certain (private) entities to establish and operate a separate segregated fund, and, in pursuit of this objective, § 55 provides that such entities “may make an expenditure for the establishment and administration and solicitation of contributions to a separate segregated fund.” As the only legislative authority allowing for the creation of a separate segregated fund, the use of the terms “establishment” and “administra tion” must pertain to the “establishment” or “administration” of a “separate segregated fund,” and not to the “establishment” or “administration” of “contributions”; otherwise, the ability to establish and administer a separate segregated fund could not exist in the first place. And § 6(2)(c), which uses nearly identical language, must be interpreted the same way, “so as to produce... an harmonious and consistent enactment” of MCFA. Wilson, 423 Mich at 145.
Justice Hathaway asserts:
This argument is unfounded and contrary to the plain language of the statute. The plain language of the statute applies to the administration of contributions to a separate segregated fund; the statute does not specify who has to make the contributions. The MEA members’ contributions to the MEA-PAC are administered through the payroll deduction system. Thus, the district, by administering the payroll deduction system, is administering contributions to the MEA-PAC, an action that is explicitly allowed according to the plain language of the statute. [Post at 256-257.]
This does not make sense. Even if MCL 169.206(2)(e) were not limited to § 55 entities, this provision does not exclude from the definition of “expenditure” an “expenditure” for the “administration of contributions”; rather it excludes an “expenditure” for the administration of a “separate segregated fund or independent committee,” which is inapplicable here for the simple reason that the school district is not making an “expenditure” for the administration of a separate segregated fund or independent committee.
Even assuming arguendo that the school district’s administration of the payroll deduction plan constitutes “an expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund or independent committee,” which we believe it plainly does not, by its terms, the exclusion only applies to an “expenditure” and not to a “contribution.”
Moreover, the advance payment of the school district’s expenses in administering the deduction plan does not avoid the question of the extent to which an exchange of something of “ascertainable monetary value” has taken place. If the school district has provided a service “at cost” to the MEA-PAC, even though the “ascertainable monetary value” of that service to the MEA-PAC exceeds that cost, as it almost always will in an economy in which service providers typically seek to profit from their services, further inquiry would he necessary concerning the specific terms of the school district-political action committee transaction, even if such a transaction were permissible in the first place under § 57.
If the MEA-PAC is allowed to commandeer the resources of a “public body” simply by reimbursing its costs, there is nothing that would prevent the political action committee of any corporation from demanding or receiving the same treatment.
The MEA also argues with regard to reimbursements that because the school district is reimbursed all costs and expenses, its administration of the deduction plan does not amount to a “contribution or expenditure” given that a “contribution” does not encompass “[a]n offer or tender of a contribution if expressly and unconditionally rejected, returned, or refunded in whole or in part within 30 business days after receipt,” MCL 169.204(3)(c), and an “expenditure” does not include “[a]n offer or tender of an expenditure if expressly and unconditionally rejected or returned,” MCL 169.206(2)(e). However, this argument clearly lacks merit because the MEA-PAC’s offer to reimburse expenses can hardly be said to constitute a “rejection, return, or refund” of a “contribution” or an “expenditure.” When the school district collects and remits payments from MEA members to the MEA-PAC, it makes an “offer or tender” of a “contribution or expenditure.” To qualify for the “offer or tender” exception, the MEA-PAC would have to unconditionally “reject or return” the services of the school district, something that it neither does nor has any intention of doing. Because the school district’s services are unconditionally accepted by the MEA-PAC, the school district’s administration of the payroll deduction plan is not excluded from the definition of a “contribution” or an “expenditure” under either section of MCFA. Finally, the obvious should be observed, to wit, although the Legislature excluded from the definitions of “contribution” and “expenditure” “an offer or tender” of a “contribution or expenditure” that has been rejected, returned, or refunded, there is no similar exclusion for “reimbursements,” an exclusion that should he thought to have been obvious, if genuinely intended. Justice Hathaway nonetheless intuits from the “reject or return” exception that “contribution” in MCL 169.204(1) “clearly requires ... a net transfer of value ... Post at 260-261.
Justice Cavanagh asserts that MCL 169.270 does not apply in this case “because an MEA member is not seeking to circumvent the MCFA’s contribution limits,” post at 243. However, MCL 169.270 contains no subjective component. That is, regardless of whether any MEA member has a desire to “circumvent” MCFA’s contribution limits, a “contribution or expenditure which is controlled by, or made at the direction of, another person ... shall be regarded as an expenditure or contribution attributable to both persons for purposes of expenditure or contribution limits.” MCL 169.270. Because the statute is applicable, and because a public body is absolutely prohibited from making a “contribution” for political purposes under MCL 169.257(1), the only logical inference is that the “contribution limit” for a public body is zero. Therefore, when the school district facilitates an MEA member’s “contribution” and that “contribution” is attributable to the school district pursuant to MCL 169.270, the school district as a public body has surpassed its “contribution limit.”
Although I continue to abide by an “absurd results” rule — albeit a vastly different “absurd results” rule than that of the dissenting justices— Chief Justice Young, who joins this opinion, does not. See People v McIntire, 461 Mich 147, 152-160; 599 NW2d 102 (1999); cf. Cameron v Auto Club Ins Ass’n, 476 Mich 55, 78-80, 84-86; 718 NW2d 784 (2006) (Markman, J., concurring).
We recognize that this argument is now absent from Justice Hathaway’s dissenting opinion. Nonetheless, it is a part of the former majority opinion under reconsideration today. Apparently, § 7 of the wages and fringe benefits act, MCL 408.477, provided authority for the school district to administer the payroll deduction plan on December 29, 2010, but not any longer. Given that Justice Hathaway now seems to agree with the majority that the wages and fringe benefits act does not provide authority for the district to administer the deduction plan, does she now have an alternative analysis concerning from where this authority derives?
On this note, Justice Cavanagh asserts that when MCL 408.477(1) and MCL 423.209, which grants authority for public employees to engage in collective bargaining, are “considered in tandem,” they “ ‘expressly or impliedly grant’ school districts the authority to enter collective-bargaining agreements that require a school district to administer a payroll deduction plan.” Post at 245. But this analysis is flawed. We have no doubt that school districts have the authority to engage in collective bargaining, and also the authority to administer certain types of payroll deduction plans. However, that authority is limited to “engag[ing] in lawful concerted activities .. . .” MCL 423.209 (emphasis added). The collective-bargaining agreement in this case required the district to engage in an activity in violation of MCL 169.257 and thus cannot serve as the source of authority to make a “contribution or expenditure.” By contrast, we have no doubt that a school district has the authority under the law to administer 401(k) contributions, social security and Medicare deductions, and payroll deductions for the payment of union dues and service fees.
See also MCL 169.255(6) (regulating the manner in which contributions for a separate segregated fund may be obtained).
Justice Cavanagh claims that we fail to “realize that [his] interpretation of the MCFA is consistent” with the purpose of MCL 169.257. Post at 251. This is a rather remarkable proposition. If the purpose of MCL 169.257 is, as we believe it to he, to mandate the separation of the government from politics, then it would seem that Justice Cavanagh’s interpretation, which permits the use of public resources in support of partisan political activity, is the antithesis of that purpose. That is, MCL 169.257 prohibits the use of public resources in aid of partisan political activity, and Justice Cavanagh’s interpretation permits it. | [
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Cavanagh, J.
The issue in this case is whether the trial court abused its discretion when it concluded that defendants were personally notified of the default judgment against them and denied defendants’ motion to set aside the judgment. We hold that the trial court abused its discretion and that defendants are entitled to relief from the judgment under MCR 2.612(B) because (1) personal jurisdiction over defendants was necessary and apparently acquired, (2) defendants had no knowledge of the action pending against them, (3) defendants entered an appearance within one year after the final judgment, (4) defendants have presented facts and arguments showing meritorious defenses to plaintiffs breach of contract and fraud claims, and (5) granting defendants relief from the judgment will not prejudice any innocent third persons. Accordingly, we reverse and remand the case to the trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS
The lawsuit at issue in this case arose out of a contractual relationship between plaintiff and defen dant Richco Construction, Inc. In 2003 and 2004, plaintiff was working on a residential subdivision construction project in Monroe County. In the summer of 2003, plaintiff hired Richco as a subcontractor to work on the sewer system for the project. There was no written contract.
It is undisputed that Richco’s corporate filings with the state of Michigan’s Department of Labor and Economic Growth (DLEG) (now the Department of Licensing and Regulatory Affairs) indicated that defendant Ronald Richards, Jr., was the corporation’s president and treasurer and that Thomas Richards was the corporation’s secretary and vice president. Further, the corporate filings identified Ronald as Richco’s resident agent and the corporation’s registered office address as 27734 Ecorse Road in Romulus, Michigan. Finally, the address shown for Ronald and Thomas as corporate officers was also 27734 Ecorse Road in Romulus.
Richco’s work on the sewer system did not satisfy the governing municipality, and after Richco’s efforts to repair the work were not satisfactory, plaintiff contracted with another party to finish the work, delaying the project according to plaintiff. Defendants claim that Richco was never fully paid and, at some point, Richco recorded a construction lien, which plaintiff claims caused further problems.
Plaintiff filed a breach of contract and fraud complaint on July 19, 2006, in the Monroe Circuit Court, but plaintiff was not able to serve any of the defendants. Plaintiffs process server attempted to serve the com plaint at Richco’s business address on file with DLEG, but no one was at that address. The process server discovered that Richco had vacated the listed address and had not left a forwarding address. A motor home was parked in the parking lot at the Ecorse Road address, and another tenant in the area told the process server that it might belong to one of the individual defendants. Plaintiffs counsel used the license plate on the motor home to obtain a phone number, but the person who answered denied that the motor home was connected to either individual defendant. In October 2006, the process server investigated a lead about a Ronald Richards in Waterford, Michigan, but that person was not the defendant in this case. Plaintiffs complaint was dismissed without prejudice on October 30, 2006, because plaintiff could not effect service.
After the complaint was dismissed, plaintiff continued its efforts to locate defendants by contacting the Secretary of State and again searching DLEG’s files. These efforts were unsuccessful, however, and plaintiff refiled the same complaint on January 7, 2007, along with a motion to allow alternative service. Plaintiff explained its previous efforts to locate defendants and noted that service was attempted at Richco’s registered office without success. The trial court allowed alternative service by (1) posting the documents at Richco’s registered address, (2) mailing the documents to the registered address for Thomas, (3) mailing the documents to the registered address for Ronald, and (4) pubhshing a copy of the order in a Monroe County newspaper pursuant to MCR 2.106. After there was no response to the notice, the court clerk entered a default against all three defendants on April 5, 2007. Notice of the default was sent by regular and certified mail to Richco, Thomas, and Ronald at the Ecorse Road address and was published in a Monroe County newspaper.
On September 28, 2007, plaintiff moved for entry of a default judgment, claiming approximately $244,000 in damages, plus the cost of a bond, “contractual interest,” $8,000 in attorney fees, and more than $15,000 in prejudgment interest. After a hearing on October 10, 2007, the trial court granted plaintiffs motion and signed a default judgment ordering that Richco, Ronald, and Thomas were jointly liable for a total of $371,598.37.
Plaintiff located defendants after the default judgment was entered and, on April 12, 2008, Ronald’s and Thomas’s personal vehicles were seized from their homes in Wayne County. According to defendants, this was how they first became aware of plaintiffs complaint and the default judgment.
Four days later, on April 16,2008, defendants filed an emergency motion to set aside the default judgment, and defense counsel made a special appearance. The motion was not accompanied by an affidavit, but defense counsel attempted to provide signed affidavits from Thomas and Ronald at the hearing on the motion held on April 22, 2008. The trial court refused to consider the affidavits and denied defendants’ motion to set aside the default judgment, noting that defendants had not filed an affidavit of factual and meritorious defense as required by MCR 2.603(D)(1). Defendants moved for reconsideration and included more detailed supporting affidavits from Thomas and Ronald, but the trial court denied reconsideration without a hearing.
The Court of Appeals denied defendants’ application for leave to appeal, but this Court remanded for consideration as on leave granted. Lawrence M Clarke, Inc v Richco Constr, Inc, 481 Mich 939 (2008). On remand, the Court of Appeals affirmed the trial court’s decision to deny the motion to set aside the default judgment. Lawrence M Clarke, Inc v Richco Constr, Inc, unpublished opinion per curiam of the Court of Appeals, issued November 17, 2009 (Docket No. 285567). The Court of Appeals reasoned that defendants’ motion to set aside the default judgment was properly denied because defendants had failed to file a timely affidavit in support of their motion. Defendants sought leave to appeal in this Court, and this Court ordered oral argument on whether to grant the application or take other peremptory action. Lawrence M Clarke, Inc v Richco Constr, Inc, 486 Mich 1071 (2010).
II. STANDARD OF REVIEW
A trial court’s decision regarding a motion to set aside a default judgment is reviewed for an abuse of discretion. Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d 638 (1999). When construing a court rule, this Court employs the legal principles governing the application and construction of statutes. Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000).
III. ANALYSIS
A trial court may grant relief from a judgment if the defendant was not personally notified of an action pending against the defendant and several additional requirements are satisfied. Specifically, MCR 2.612(B) states:
A defendant over whom personal jurisdiction was necessary and acquired, but who did not in fact have knowledge of the pendency of the action, may enter an appearance within 1 year after final judgment, and if the defendant shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve the defendant from the judgment, order, or proceedings for which personal jurisdiction was necessary, on payment of costs or on conditions the court deems just.
Thus, defendants may be entitled to relief from the default judgment if (1) personal jurisdiction over defendants was necessary and acquired, (2) defendants in fact had no knowledge of the action pending against them, (3) defendants entered an appearance within one year after the final judgment, (4) defendants show a reason justifying relief from the judgment, and (5) granting defendants relief from the judgment will not prejudice innocent third persons.
As a preliminary matter, we acknowledge that defendants did not offer their affidavits of meritorious defense simultaneously with their motion to set aside the default judgment and that this arguable misstep was the foundation of the lower courts’ decisions. The lower courts, however, applied MCR 2.603(D)(1) in reaching their decisions. That rule permits a court to grant relief from a default judgment when, along with the fulfillment of other requirements, “an affidavit of facts showing a meritorious defense is filed.” We conclude that the lower courts’ reasoning is inapplicable to our analysis of MCR 2.612(B) because, unlike MCR 2.603(D)(1), MCR 2.612(B) does not expressly state that a defendant must provide an affidavit of meritorious defense. Therefore, we conclude that defendants may seek relief under MCR 2.612(B), and we do not opine about whether MCR 2.603(D)(1) requires that an affidavit of meritorious defense be filed simultaneously with a motion to set aside a default judgment.
A. PERSONAL JURISDICTION
A court “cannot adjudicate [an in personam] controversy without first having obtained jurisdiction [over the] defendant by service of process . . .Eisner v Williams, 298 Mich 215, 220; 298 NW 507 (1941). A court must obtain personal jurisdiction over a defendant in order to “satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances.” MCR 2.105(J)(1). “The fundamental requisite of due process of law is the opportunity to be heard.... This right to be heard has little reality or worth unless one is informed that the matter is pending. . . .” Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950) (quotation marks and citation omitted). Personal notice, however, is not necessary to satisfy due process requirements in all cases. Jacob v Roberts, 223 US 261, 265; 32 S Ct 303; 56 L Ed 429 (1912). Rather, under MCR 2.105(I)(1), “[o]n a showing that service of process cannot reasonably be made as provided by [MCR 2.105], the court may by order permit service of process to be made in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.” As MCR 2.105(J)(1) explains, the provisions of the court rules related to service of process are “intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances.” See, also, Krueger v Williams, 410 Mich 144, 156; 300 NW2d 910 (1981) (explaining that “[s]ervice may be made personally on a defendant or, if this is not possible, constructive service is permitted”), and Mullane, 339 US at 314 (explaining that notice that is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” is sufficient to satisfy due process). But while personal service is not always required, “[t]he requirement of notice so as to afford an opportunity to be heard is clearly the heart” of Michigan’s substituted-service court rule. Krueger, 410 Mich at 158.
Because defendants were parties to the action in this case, personal jurisdiction over them was required to satisfy due process. Defendants argue that the trial court failed to acquire personal jurisdiction over them because plaintiffs efforts to provide them with notice were so lacking that they were deprived of notice and an opportunity to be heard. Nevertheless, for the purpose of this appeal, we assume arguendo that the trial court acquired personal jurisdiction over defendants because we conclude that defendants are entitled to relief under MCR 2.612(B) and this Court does not decide cases on constitutional grounds when doing so can be avoided. People v Quider, 172 Mich 280, 288-289; 137 NW 546 (1912).
B. DEFENDANTS’ KNOWLEDGE OF THE ACTION
As previously stated, defendants must also show that they did not “in fact have knowledge of the pendency of the action” in order to be entitled to relief under MCR 2.612(B). This Court has not considered what is required for a party to have knowledge in fact under MCR 2.612(B), but this Court has generally taken care to acknowledge that a difference in specificity exists between the phrase “actual knowledge” and mere “knowledge.” See, e.g., Travis v Dreis & Krump Mfg Co, 453 Mich 149, 173; 551 NW2d 132 (1996) (opinion by BOYLE, J.) (explaining that when “the Legislature [is] careful to use the term ‘actual knowledge,’ and not the less specific word ‘knowledge,’ we determine that the Legislature meant that constructive, implied, or imputed knowledge is not enough”).
But MCR 2.612(B) does not simply use the word “knowledge”; rather, it states that a defendant may be relieved of a judgment if the defendant “did not in fact have knowledge of the pendency of the action. . . .” (Emphasis added.) “In fact” is defined as “[a]ctual or real; resulting from the acts of parties rather than by operation of law.” Black’s Law Dictionary (9th ed). This definition further distinguishes actual knowledge from constructive or implied knowledge of the pending action. Thus, we conclude that the plain language of MCR 2.612(B) permits a defendant to seek relief from a default judgment as long as the defendant did not have actual knowledge of the pending action.
Our conclusion is supported by the available caselaw and supplemental authority. In Nat’l Car Rental v S & D Leasing, Inc, 89 Mich App 364, 368; 280 NW2d 529 (1979), the Court of Appeals concluded that lack of actual notice was sufficient to satisfy the knowledge-in-fact requirement. In support of its conclusion that knowledge in fact is synonymous with actual knowledge, the Court of Appeals in Nat’l Car cited 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 180, which explained that “[t]he intent of [GCR 1963, 528.2] is that failure to receive actual notice is itself sufficient ground for relief from default judgment . . ..” (Emphasis added.) Notably, more recent supplemental authority also explains that failure to receive actual notice is sufficient to satisfy the knowledge-in-fact requirement of MCR 2.612(B). See 3 Longhofer, Michigan Court Rules Practice (5th ed), § 2612.8, p 505.
In this case, defendants did not have actual knowledge, or knowledge in fact, of the action pending against them because defendants were never personally served with a summons and complaint and stated in their affidavits that they only became aware of the action against them when personal property was seized from Thomas’s and Ronald’s homes on April 12, 2008. Also, during oral argument before this Court, plaintiffs counsel impliedly conceded that defendants did not have actual notice of plaintiffs action against defendants when he argued that constructive notice is sufficient to bar relief under MCR 2.612(B).
Finally, plaintiffs attempts to serve defendants were unlikely to provide defendants with actual knowledge of the action against them, even under the court rules permitting substituted service. Under MCR 2.105(I)(2), a motion requesting substituted service
must set forth sufficient facts to show that process cannot be served under this rule and must state the defendant’s address or last known address, or that no address of the defendant is known. If the name or present address of the defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain it.
“A truly diligent search for an absentee defendant is absolutely necessary to supply a fair foundation for and legitimacy to the ordering of substituted service,” Krueger, 410 Mich at 168, and substituted service “is not an automatic right,” id. at 159. Further, even if a motion for substituted service is granted, MCR 2.105(I)(1) requires that the substituted service be “reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.” Thus, substituted service must be “ ‘reasonably certain to inform those affected,’ ” and “the means employed to notify interested parties must be more than a mere gesture; they must be means that one who actually desires to inform the interested parties might reasonably employ to accomplish actual notice.” Sidun v Wayne Co Treasurer, 481 Mich 503, 509-510; 751 NW2d 453 (2008), quoting Mullane, 339 US at 315.
In this case, even assuming that plaintiffs attempt to personally serve defendants satisfied the diligent-inquiry requirement for seeking substituted service, the method of substituted service used was inadequate to provide defendants with actual knowledge of the action against them. Three of the trial court’s four requirements involved mailing service to the address that the trial court and plaintiff already knew was no longer a current address for defendants. And the trial court’s fourth requirement, publishing a copy of the order in a Monroe County newspaper, was also unlikely to succeed given the significant limitations of publication alone as a successful form of providing any notice, let alone actual notice. See Dow v Michigan, 396 Mich 192, 207, 210; 240 NW2d 450 (1976) (stating that publication is unlikely to provide notice), and Mullane, 339 US at 315-317 (stating that publication alone is not a reliable means of providing notice). On the other hand, we have previously concluded that when “the specific whereabouts of a person is unknown, service of process by publication may be the most practicable and adequate method of service available.” Krueger, 410 Mich at 166; see, also, Sidun, 481 Mich at 510-512 (discussing Mullane, 339 US 306, and Jones v Flowers, 547 US 220; 126 S Ct 1708; 164 L Ed 2d 415 [2006], and noting that, depending on any “unique information” about the intended recipient and the specific circumstances and conditions of the case, service by publication may be constitutionally sufficient with regard to parties whose addresses are unknown). Thus, it cannot be said with certainty that plaintiffs efforts were insufficient to provide constructive knowledge that passed constitutional muster. But in this case, publication in a Monroe County newspaper was particularly unlikely to provide defendants with actual knowledge of the action against them, given that defendants resided in Wayne County and performed the work in Monroe County in 2004 at the latest and that the advertised notice was not published in the newspaper until 2007.
Thus, although plaintiffs efforts may have been adequate to satisfy the requirements for granting a motion for substituted service and the subsequent substituted service may have been enough to provide defendants with sufficient constructive knowledge of the action against them to satisfy MCR 2.105(I)(1), we conclude that plaintiffs efforts were inadequate to provide defendants with actual knowledge as required by MCR 2.612(B). Thus, we conclude that defendants satisfied this requirement for relief from the default judgment under MCR 2.612(B).
C. APPEARANCE WITHIN ONE YEAR AFTER FINAL JUDGMENT
Next, under MCR 2.612(B), defendants must have entered an appearance within one year after the final judgment. A default judgment is a final judgment. Allied Electric Supply Co, Inc v Tenaglia, 461 Mich 285, 288; 602 NW2d 572 (1999). In this case, the default judgment against the defendants was entered on Octo ber 10, 2007, when the trial court granted plaintiffs motion and signed the default judgment. On April 16, 2008, defense counsel made a special appearance and filed an emergency motion to set aside the default judgment. On April 22, 2008, the trial court held a hearing on defendants’ motion. Thus, defendants made an appearance well within one year after the default judgment.
D. REASON JUSTIFYING RELIEF FROM THE JUDGMENT
Defendants also must show “reason justifying relief from the judgment....” MCR 2.612(B). This Court has not previously considered what is required to justify relief in the context of this court rule. However, it is clear that a defendant seeking relief under MCR 2.612(B) need not show mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, or other misconduct of an adverse party because MCR 2.612(C) provides for relief from a judgment on those grounds. Indeed, MCR 2.612(C)(3) expressly states that subrule (C) “does not limit the power of a court to entertain an independent action to reheve a party from a judgment, order, or proceeding; [or] to grant relief to a defendant not actually personally notified as provided in subrule (B)----”
In one of the few published opinions applying either MCR 2.612(B) or its predecessor, GCR 1963, 528.2, the Court of Appeals in Nat’l Car, 89 Mich App at 368-369, relied on Honigman & Hawkins, p 180, to provide further clarification of the requirement of a “reason justifying relief” and concluded that a defendant must only show that it did not have actual notice of the action and that a meritorious defense to the action exists. Nat’l Car’s conclusion is further supported by Longhofer, § 2612.8, p 505, which explains that
[t]he requirement of showing “reason justifying relief” was intended substantially to restate the requirement of “showing a meritorious defense” applied in connection with setting aside default judgments.... [FJailure to receive actual notice is itself sufficient ground for relief of default judgment, if the defendant can show that he or she has a meritorious defense ....
This interpretation of what is required to satisfy MCR 2.612(B) is consistent with the other court rules addressing relief from a default judgment. Under MCR 2.603(D)(1), a party seeking to set aside a default judgment must satisfy two separate and distinct requirements: (1) good cause for the failure to respond to the complaint and (2) a meritorious defense. Alken-Ziegler, 461 Mich at 229. However, MCR 2.603(D) states twice that MCR 2.612 provides an exception to its requirements for setting aside a default judgment. MCR 2.603(D)(2) (“Except as provided in MCR 2.612 . . . .”); MCR 2.603(D)(3) (“In addition, the court may set aside a default and a default judgment in accordance with MCR 2.612.”). Thus, we conclude that a defendant may satisfy the requirement of a “reason justifying relief from the judgment” by showing that he or she (1) did not have actual notice of the action and (2) has a meritorious defense.
In this case, as previously explained, defendants did not have actual notice of the action. See part III(B). Defendants have also presented facts and arguments showing meritorious defenses to plaintiffs breach of contract and fraud claims sufficient to justify relief from the default judgment.
By forcefully contesting the damages awarded to plaintiff, defendants have presented facts showing a meritorious defense to plaintiffs contract claim sufficient to justify relief from the judgment under MCR 2.612(B). “In actions for breach of contract, ... in order to recover substantial damages the plaintiff must offer evidence from which the loss can be computed with reasonable certainty.” Vandenberg v Slagh, 150 Mich 225, 229; 114 NW 72 (1907). In this case, the only support for the contract damages award of more than $370,000 was the testimony of a single witness who was employed by plaintiff. According to the record, that hearing was conducted over the course of six minutes, and no documentary evidence supporting the witness’s testimony regarding the contract damages was introduced. Furthermore, the witness provided no support for the award of contractual interest, prejudgment interest, attorney fees, or costs. Rather, the only support for those damages was the statements of plaintiffs counsel on the record. Indeed, plaintiffs counsel conceded at oral argument before this Court that “[t]here was no documentary evidence presented to the trial court. . . .” In fact, the only explanation plaintiffs counsel offered to support plaintiffs claim for contractal interest in this oral contract case was that it was his “understanding. . . that the contract interest was basically agreed upon by the parties . ...” The documentary evidence in the record supporting the damages award is insufficient to allow calculation of the damages with reasonable certainty and, thus, the individual and corporate defendants in this case have a meritorious defense to plaintiffs breach of contract claim. .
Defendants have also noted several fundamental deficiencies in plaintiffs fraud claim that constitute a meritorious defense to those claims. Generally, in order to establish an actionable fraud claim, a plaintiff must show
(1) [t]hat defendant made a material representation; (2) that it was false; (3) that when he made it he knew it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury [Scott v Harper Recreation, Inc, 444 Mich 441, 446 n 3; 506 NW2d 857 (1993) (quotation marks and citations omitted).]
Furthermore, fraud requires a misrepresentation about the past or present. Hi-Way Motor Co v Int’l Harvester, 398 Mich 330, 336, 339; 247 NW2d 813 (1976). Finally, MCR 2.112(B)(1) requires that fraud allegations be stated with particularity.
We conclude that defendants have presented sufficient facts showing a meritorious defense against plaintiffs fraud allegations given that plaintiff may not have stated its fraud claim with particularity under MCR 2.112(B)(1) because plaintiff did not allege in its complaint that defendants made a misrepresentation about the past or the present. Instead, the support for plaintiffs fraud allegation addressed only what defendants “would” do in the future. Furthermore, plaintiffs complaint only referred to Thomas’s and Ronald’s conduct; therefore, it appears that there may be no basis for a fraud claim against defendant Richco. In addition, defendants’ argument that plaintiffs fraud allegations are merely mislabeled contract claims also represents a meritorious defense to the fraud claim because a plaintiff generally cannot maintain an action in tort for nonperformance of a contract. Ferrett v Gen Motors Corp, 438 Mich 235, 242; 475 NW2d 243 (1991). Finally, defendants have presented an argument representing a meritorious defense to plaintiff’s claim that defendants fraudulently filed a construction lien on plain tiffs property. Defendants argue that they filed the hen in accordance with the applicable laws only after plaintiff refused to pay them for the work that defendants had performed. Therefore, we conclude that defendants have presented facts and arguments representing meritorious defenses sufficient to satisfy the requirement of MCR 2.612(B) that the defendant show a reason justifying relief from the judgment.
E. PREJUDICE TO THIRD PARTIES
Finally, defendants must show that “innocent third persons will not be prejudiced” if the default judgment is set aside. MCR 2.612(B). Because this case involves a contract dispute and all the parties to the contract were also parties to this action, it appears that no third parties would be prejudiced if the default judgment were to be set aside. Also, there is no evidence in the record that any third parties have an interest in this case. Thus, we conclude that this requirement is met.
IV CONCLUSION
We hold that the trial court abused its discretion when it concluded that defendants were personally notified of the default judgment against them. We also hold that defendants are entitled to relief from the default judgment under MCR 2.612(B) because defendants satisfied each of the five elements within that court rule. Thus, we reverse and remand the case to the trial court for further proceedings consistent with this opinion.
Young, C.J., and Marilyn Kelly, Markman, Mary Beth Kelly, and Zahra, JJ., concurred with Cavanagh, J.
Although defendants contest the trial court’s personal jurisdiction over them, we will assume arguendo that the trial court acquired personal jurisdiction for purposes of applying MCR 2.612(B) in this opinion for the reasons discussed in part 111(A) of this opinion.
After this Court heard oral arguments on defendants’ application for leave to appeal, plaintiff and Thomas agreed to a settlement, and Thomas withdrew his application for leave to appeal. Thus, Thomas is no longer a party to this case, and this opinion has no effect between plaintiff and Thomas.
To the extent that defendants’ failure to offer their affidavits simultaneously with their motion creates any doubt that defendants are entitled to relief from the default judgment, our holding is consistent not only with the plain language of MCR 2.612(B), but also with the general principle that “[d]efaults are not favored and doubts generally should be resolved in favor of the defaulting party.” Wood v DAIIE, 413 Mich 573, 586; 321 NW2d 653 (1982).
In Krueger, we considered the predecessor of MCR 2.105(1), GCR 1963, 105.8, which was substantively similar to MCR 2.105(I)(1).
In Nat’l Car, the Court of Appeals applied GCR 1963, 528.2, the predecessor of MCR 2.612(B). The language used in MCR 2.612(B) and GCR 1963, 528.2 is nearly identical. GCR 1963, 528.2 stated:
Any defendant over whom personal jurisdiction was necessary and acquired but who did not in fact have knowledge of the pendency of the action may, at any time within 1 year after final judgment, enter his appearance, and if he shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve him from the judgment, order, or proceedings as to which personal jurisdiction was necessary, on payment of such costs thereon or such creditors as the court deems just.
Despite the trial court’s refusal to consider defendants’ affidavits as part of defendants’ motion to set aside the default judgment under MCR 2.603(D)(1), it is proper for this Court to consider the affidavits as part of our analysis of MCR 2.612(B). To begin with, there is no requirement that an affidavit of meritorious defense be filed at all, let alone that it must be filed simultaneously with the motion for relief from judgment under MCR 2.612(B). Also, MCR 2.119(C)(1) permits a court to modify the period for service of affidavits “for good cause.” In this case, good cause existed because defendants did not unreasonably delay production of the affidavits: the motion to set aside the judgment was filed in an emergency fashion only 4 days after defendants first learned of the judgment against them, and defendants provided affidavits at the hearing on their motion to set aside the judgment, which was held 10 days after the motion was filed. Moreover, Thomas was out of the state for work during the period between defendants’ first notice of the judgment and the filing of the motion. Finally, defendants also provided more detailed affidavits with their motion for reconsideration of the trial court’s order denying the motion to set aside the default judgment. Therefore, we conclude that defendants’ affidavits of meritorious defense may be considered as part of our application of MCR 2.612(B).
Although MCR 2.106(D)(1) requires that notice be published in a newspaper in the county where the defendant resides, publication in the Monroe County newspaper arguably satisfied that requirement with respect to Richco despite the fact that Richco was registered in Wayne County because when a corporation does not maintain its registered office, the corporation is “deemed to have a place of residence in the county where it exercises its corporate powers and transacts its business.” Flewelling v Prima Oil Co, 291 Mich 281, 285; 289 NW160 (1939). But because Ronald and Thomas are not corporations, and both lived in Wayne County, it is unlikely that publication in Monroe County was sufficient to provide actual notice to the individual defendants.
Although the two dissenting justices in Allied Electric, 461 Mich at 291-292 (Marilyn Kelly, J., dissenting), continue to adhere to their position in that case, the disagreement between the majority and dissenting positions in Allied Electric is of no moment in this case. | [
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Young, C. J.
This case requires us to consider whether a plaintiff who seeks to establish an adverse possession claim that would affect property in a recorded plat must file a claim under the Land Division Act (LDA), MCL 560.101 et seq., if the plaintiff is not expressly requesting that the plat be vacated, corrected, or revised. We hold that an action that seeks to establish a substantive property right arises independently of an LDA action to vacate, correct, or revise a recorded plat. It is only after such a property right has been recognized that the need arises under the LDA to revise a plat that does not reflect the newly recognized property right. Until that property right is legally recognized, the LDA is inapplicable. The language of the LDA and our cases analyzing the LDA demonstrate that an LDA action is appropriate when a party’s interest arises from or is traceable to the plat or the platting process.
An action to quiet title by adverse possession confers judicial recognition that the possessor acquired marketable title of record to the property at issue. A successful quiet title action also establishes a substantive property right that was not previously shown within the plat. Without possessing record title to the property, no one, including plaintiffs, had a basis on which to request an alteration of the plat under the LDA. Therefore, plaintiffs were not required to proceed under MCL 560.221, which allows a circuit court to vacate, correct, or revise a plat but does not “enable a court to establish an otherwise nonexistent property right.” Accordingly, we affirm the judgment of the Court of Appeals. However, we order the circuit court to strike the portion of its order that corrected the plat to reflect plaintiffs’ successful quiet title action because plaintiffs did not request that relief.
I. FACTS AND PROCEEDINGS
The dispute in this case arises from a disagreement between plaintiff Florence Beach and defendant Lima Township (the township) over property rights to areas of land shown as platted streets on the Harford Village plat. The Harford Village plat, which was made and recorded in 1835, has remained unaltered since its execution. It consists of six blocks arranged in two rows of three. Blocks I, II, and III, which are the relevant blocks here, are bordered to the south by Jackson Road, a county road that runs east to west. Block I is bordered to the west by West Street, a county road that runs north and south. The other relevant streets shown on the plat, North Street, East Street, and Cross Street, have never been developed or used as roads.
Through several conveyances that occurred in 1854, 1881, and 1897, the Beach family acquired the area of land now known as the Beach Family Farm. In particular, the Beach Family Farm consists of all of the lots in Blocks II and III of the plat. In 1954, the township purchased lots in Block I, which is currently the site of a community hall. In 2004, the township purchased several more lots in Block I, intending to build a fire department substation. The township also intended to use and develop part of North Street and part of Cross Street as roads for ingress and egress to the substation.
Plaintiffs disputed the township’s right to use the undeveloped property designated as streets on the plat and filed the instant action to quiet title to the areas platted as North, East, and Cross Streets based on adverse possession. The township filed a counterclaim to quiet title with regard to its right to the platted streets. The parties then filed cross-motions for summary disposition.
The township moved for summary disposition under MCR 2.116(C)(8) and (10), arguing that plaintiffs’ action should be dismissed because they were required to file an action under the LDA to vacate portions of the plat. Plaintiffs contended in their motion for summary disposition, filed under MCR 2.116(C)(8), (9), and (10), that there was no genuine question of material fact that they had acquired title by adverse possession.
The circuit court denied the township’s motion but ordered an evidentiary hearing on plaintiffs’ motion. Following the hearing, the court granted plaintiffs’ motion for summary disposition. The circuit court found that large trees, at least 100 years old, were growing in the middle of the areas platted as streets and that the Beach family had adversely possessed the disputed property by farming, as well as by maintaining private trails and fences on the disputed property. The circuit court held that plaintiffs had established the elements of adverse possession and that plaintiffs were not required to proceed under the LDA. Although plaintiffs had not requested such relief, the court ordered that “[t]o the extent that it is necessary the Harford Plat shall be corrected to remove Cross, North, and East Street[s]....”
On appeal, the Court of Appeals affirmed. In response to the township’s argument that plaintiffs were required to file their claim under the LDA, the Court of Appeals held that “because plaintiffs did not expressly seek in this action ‘to vacate, correct, or revise a dedication in a recorded plat,’ ” an action under the LDA was not required. The Court of Appeals construed our decisions in Martin v Beldean and Tomecek v Bavas as supporting the proposition that “akin to quieting title, resolution of underlying disputes regarding the nature, character, and scope of existing property rights that could potentially lead to plat revisions may be undertaken in the context of an LDA action, but it is not mandatory.” The Court of Appeals also concluded that Martin and Tomecek permit “a bifurcated approach, involving, first, a determination regarding the nature, character, and scope of the existing property interests being disputed by the parties and, second, an alteration of the plat map, if necessary, so that it is consistent with the property interests as determined by the court.” The township subsequently sought leave to appeal, which we granted.
II. STANDARD of review
We review de novo a decision on a motion for summary disposition. We also review de novo questions of statutory interpretation. In addition, whether plaintiffs were required to bring their action under the LDA is a question of law that we review de novo. An action to quiet title is an equitable action that we also review de novo.
III. ANALYSIS
This Court has long recognized the common law doctrine of adverse possession, which the Legislature has since codified. To establish adverse possession, the party claiming it must show “clear and cogent proof of possession that is actual, visible, open, notorious, exclusive, continuous and uninterrupted for the statutory period of 15 years, hostile and under cover of claim of right.” After the statutory period ends, the record owner’s title is extinguished and the adverse possessor acquires “legal title” to the property. Acquisition of title in this manner includes “the right to defend the possession and to protect the property against the trespass of all others.” However, the title acquired by adverse possession is neither record title nor marketable title until the adverse possessor files a lawsuit and obtains a judicial decree. Thus, until an adverse possessor obtains the necessary judicial decree, there is no record of the adverse possessor’s ownership interest to verify whether the possessor actually satisfied the elements of adverse possession. The circuit court ruled that the Beach family had established the elements of adverse possession and acquired title to the land before 1907. Consequently, the judicial decree quieting title in plaintiffs settled any ownership claims of the township and conferred marketable title of record to the disputed property on plaintiffs.
The question posed by this case is whether a non-record property holder seeking to establish marketable title by proof of adverse possession must bring such an action under the LDA, rather than solely as an action to quiet title.
The LDA became effective on January 1, 1968. This act and the amendments to it are the most recent manifestations of the Legislature’s regulation of platting. In particular, the LDA provides a process for surveying and marking subdivided property, as well as for recording with the local municipality the information compiled on a plat. The LDA also permits a circuit court to vacate, correct, or revise a recorded plat, which the LDA defines as a “map.” A land plat describes underlying property interests in conformity with record ownership as nearly as practicable.
For the purposes of this case, the most pertinent portion of the LDA, MCL 560.222, provides:
Except as provided in section 222a,[ ] to vacate, correct, or revise a recorded plat or any part of a recorded plat, a complaint shall be filed in the circuit court by the owner of a lot in the subdivision, a person of record claiming under the owner, or the governing body of the municipality in which the subdivision covered by the plat is located.
In addition, MCL 560.223 requires that the complaint set forth “[t]he part or parts, if any, sought to be vacated and any other correction or revision of the plat sought by the plaintiff” and “[t]he plaintiff’s reasons for seeking the vacation, correction, or revision.” MCL 560.224a sets forth the parties that must be joined in actions under the LDA. And MCL 560.229 requires a plaintiff to record the judgment after the entry of an order for vacation, correction, or revision of a plat.
The creation, termination, and vacation of plats are controlled by the statutory authority of the LDA. Consequently, “the exclusive means available when seeking to vacate, correct, or revise a dedication in a recorded plat is a lawsuit filed pursuant to MCL 560.221 through 560.229.” Requiring a lawsuit that seeks to alter any part of a plat to be filed under the LDA ensures that the plats on file remain accurate. However, “[t]he LDA was never intended to enable a court to establish an otherwise nonexistent property right. Rather, the act allows a court to alter a plat to reflect property rights already in existence.”
We conclude that plaintiffs, who filed an action to quiet title based on adverse possession, were not required to proceed with an action under the LDA. Plaintiffs’ quiet title action was the appropriate action to establish their entitlement to hold record title to the property at issue. Because plaintiffs’ quiet title action established a substantive property right that was not reflected in the plat or traceable to the platting process, their action involved more than merely correcting the plat to reflect a preexisting interest in land. Plaintiffs’ claim to the property developed more than a century ago; however, public recognition of that right depended on plaintiffs’ ability to prove the elements of adverse possession in a present-day quiet title action.
The township’s challenge to plaintiffs’ claim required the circuit court to resolve the merits of plaintiffs’ adverse possession claim before considering any claims regarding the plat’s accuracy. If plaintiffs had failed to prove adverse possession by clear and cogent evidence, the township’s interest in the land would have been paramount and the plat would have remained accurate. Revising a plat ensures that the plat accurately reflects existing substantive property rights; a revision does not, however, establish rights that did not exist previously. Rather, when a claimant challenges title to land through adverse possession, substantive property rights are established through a quiet title action. Therefore, plaintiffs could not have obtained the relief they sought by merely filing a claim under the LDA.
Our conclusion finds support in the plain language of the LDA. The LDA defines a plat as a “map or chart of a subdivision of land.” This Court has also described plats as “a description of the physical property interests on a particular area of land.” When a party files an LDA action to vacate, correct, or revise a recorded plat, MCL 560.223(b) requires the plaintiff to set forth the “reasons for seeking the vacation, correction, or revision of the plat.” However, without a judicial decree showing that plaintiffs validly obtained record title to the property, there is no legal or record basis for plaintiffs to seek a vacation, correction, or revision of the plat. Thus, the plat accurately reflected the underlying substantive property rights until the change in ownership rights was established by plaintiffs’ adverse possession action.
Our conclusion is also supported by this Court’s caselaw addressing the LDA. We previously discussed the scope of LDA actions in Martin v Beldean and Tomecek v Bavas. In Martin, the plaintiffs were landowners in a recorded plat consisting of 21 lots and three outlots who filed a quiet title action to have a provision of the plat language regarding an outlot declared “null and void.” The plaintiffs owned a lot in the plat that bordered the outlot in question and also had an ownership interest in the outlot itself. The plaintiffs argued that the restriction regarding use of the outlot had expired and claimed that they were entitled to have the plat language removed. The Court of Appeals agreed.
We reversed and held that the plaintiffs’ efforts to have a plat dedication of an outlot declared “null and void” required the filing of an LDA action. This was because the Martin plaintiffs’ requested order sought relief that only the LDA could afford. The plaintiffs had improperly filed a quiet title action because the removal of plat language constituted an action to vacate, correct, or revise the plat and a lawsuit under the LDA is “the exclusive means available” for a party to vacate, correct, or revise a recorded plat.
The dissent incorrectly concludes that Martin requires plaintiffs in the instant case to file under the LDA. Martin presents the very opposite situation from the one this case presents. Unlike plaintiffs here, the Martin plaintiffs had a preexisting substantive property right — reflected in the plat and documented by a deed — in the plat whose language they sought to have declared void. Thus, the issue in Martin concerned whether the plat’s language accurately reflected the parties’ preexisting rights as outlined in the plat itself. Furthermore, the relief sought by the Martin plaintiffs’ quiet title action was to conform the plat at issue to those preexisting property rights. In this case, plaintiffs had no recognized, recorded, preexisting property rights in the disputed land. Plaintiffs’ sole claim to the land required establishing legally cognizable substantive property rights that were not recognized within the plat, which plaintiffs could only accomplish by proving, for the first time in more than 100 years, that they and their predecessors in interest had satisfied the elements of adverse possession. Finally, unlike the action in Martin, plaintiffs’ successful quiet title action leaves the plat unchanged, but inaccurate. However, because plaintiffs have now successfully established their rights to the property, they have a basis on which to request that the plat be corrected.
In Tomecek, we considered a dispute over the meaning of a restrictive covenant running with a plat, which prevented the plaintiffs from erecting a building on their lot until that lot had access to a municipal sanitary sewer line. Because the lot at issue was landlocked, the plaintiffs had an easement over two other lots through which they accessed their property, but upon which no utilities were located. The plaintiffs argued that they were entitled to use their easement to access the municipal sewer line. A second easement existed on the plat where plaintiffs’ lot was located, and both easements were labeled “drive easement” on the plat. At the time of platting, the second easement was used as a right of way and had utilities located on it as well. Four justices concluded that the original grantor intended both easements to be used for right-of-way access and for utility access. Thus, the plaintiffs were permitted to access utilities through their easement.
Tomecek also addressed whether the LDA permitted a court to affect underlying substantive properly rights by vacating, correcting, or revising a recorded plat. Five justices concluded that “[t]he LDA cannot be used to create substantive property rights” and set forth the following principles regarding the parameters of an action under the LDA:
The LDA defines a plat as a map. A plat is a description of the physical property interests on a particular area of land. A map, by itself, is not a determination of substantive property interests. If one “revises” a map of the United States to show Michigan encompassing half of the country, it does not make it so. The LDA was never intended to enable a court to establish an otherwise nonexistent property right. Rather, the act allows a court to alter a plat to reflect property rights already in existence [ ]
Thus, the LDA cannot establish substantive property rights by redrawing the lines in a plat because the plat, as a map, merely reflects preexisting substantive property rights.
The lead opinion in Tomecek also concluded that, when the trial court altered the plat at issue, the plaintiffs’ LDA action did not “create” a property right:
In this case, the LDA did not create new substantive property rights when the circuit court altered the plat to reflect that the central easement encompasses utility access. This right existed with respect to the central easement since its inception, when the original grantors recorded the central easement intending it to include utilities. The trial court merely used the LDA as the tool to validate property rights that already existed.[ ]
Because the right to use the easement in question for utility access existed at the time of platting, the LDA did not create a property right. Thus, the issue in Tomecek concerned the scope of the easement rights that existed in the plat. By contrast, in this case, plaintiffs’ legal entitlement to the property existed independently of the plat.
Contrary to the dissent’s arguments, our analysis does not draw “hypertechnical distinctions” between this case and our precedents analyzing the LDA. Rather, our analysis simply recognizes the limitations of the LDA and the common thread that runs through Hall, Martin, and Tomecek In those cases, the disputes centered on whether a plat accurately reflected existing substantive property rights as determined by the relevant plat language. In this case, the dispute concerns the establishment of a substantive right neither reflected in the plat nor traceable to the platting process. The LDA’s language, coupled with the applications of the LDA set forth earlier, highlights the crucial limitation of LDA actions to vacate, correct, or revise a recorded plat. If a party’s interest in land is traceable to the plat or the platting process, the LDA is the appropriate avenue for relief. If, as here, a party seeks to establish a substantive interest in land that is not traceable to the plat nor the platting process, the LDA cannot provide the necessary relief.
Additionally, plaintiffs’ quiet title action did not seek to have the plat language regarding North, East, and Cross Streets declared “null and void,” nor does it “vacate, correct, or revise” the plat. Rather, plaintiffs’ quiet title action served a very different purpose from the purpose served by an LDA action. Unlike the factual situations in Hall, Martin, and Tomecek, plaintiffs’ interest in the disputed property did not depend on the plat, the plat’s dedication language, or whether the township abandoned the streets. Plaintiffs ac quired their interest in the land by adverse possession, the very nature of which requires acting in a manner contrary to another person’s interests, including interests that are reflected in a plat. Plaintiffs’ quiet title action required plaintiffs to affirmatively establish their entitlement to the disputed land and, thus, merely revising the plat could not provide plaintiffs the necessary relief.
We agree with the township that the Legislature has expressed an intent that a plat may only be properly altered, in whole or in part, by following the procedures set forth in the LDA. We are not persuaded, however, by the township’s argument that because the consequence of plaintiffs’ successful quiet title action altered substantive rights created by the dedication of land in a recorded plat, they were required to bring their action under the LDA in the first instance. This position is inconsistent with the holding in Tomecek. If the rights indicated in the plat were superior to the underlying substantive property rights indicated in the register of deeds, the township would be correct. However, we see nothing to suggest that the LDA elevates the plat description above the underlying substantive property rights contained therein. Thus, the LDA does not require a party to proceed under its procedures unless that party is seeking to alter the plat or the dedication language of the plat to which the party has a preexisting substantive property right as the owner of the property or a person of record claiming under the owner.
Furthermore, we reject the claim that plaintiffs’ action to quiet title by adverse possession is merely a disguised action to alter a plat and the assertion that our decision encourages artful pleading or gamesmanship. Plaintiffs in this case merely pleaded what they sought to accomplish, which was to establish a substantive interest in property on the basis of adverse possession. Although we see no reason why plaintiffs could not have addressed both the adverse possession claim and the LDA claim in bifurcated proceedings — in which the court would have first addressed the quiet title claim and then, if necessary, resolved any issues regarding the plat — there is nothing in the LDA that requires a litigant to proceed in that manner. The action to quiet title was a necessary prerequisite, permitting plaintiffs to obtain the marketable title of record that is essential to supporting a subsequent claim for altering the plat under the LDA. Thus, a meaningful and necessary distinction exists between establishing marketable title of record by adverse possession and having that property interest accurately reflected in the plat.
Finally, we hold that the circuit court erred when it ordered the unrequested relief that, “[t]o the extent that it is necessary[,] the Harford Plat shall be corrected to remove Cross, North, and East Street and vest[] title in favor of the plaintiffs.” Because the LDA provides the exclusive means to vacate, correct, or revise a plat, and plaintiffs did not proceed under the LDA, the circuit court lacked the authority to order a correction of the plat. Although plaintiffs now have a basis on which to seek a revision of the plat, the circuit court was without jurisdiction to order the correction of the plat at the time plaintiffs sought to quiet title to the property. Therefore, we order the circuit court to strike that portion of its order.
IV. CONCLUSION
We conclude that plaintiffs were not required to file their action under the LDA. Although plaintiffs could have filed an action under the LDA contingent on establishing their substantive right in a quiet title action, they were not required to do so because they did not expressly request the alteration of the plat and because plaintiffs’ quiet title action established a substantive property right for the first time. Accordingly, we affirm the judgment of the Court of Appeals that plaintiffs were not required to bring their action under the LDA on the basis of the preceding analysis and remand the matter for the circuit court to strike the erroneous portion of its order instructing that the plat be revised.
Marilyn Kelly, Hathaway, Mary Beth Kelly, and Zahra, JJ., concurred with Young, C.J.
MCL 560.221 provides that “[t]he circuit court may, as provided in sections 222 to 229 vacate, correct, or revise all or a part of a recorded plat.”
Tomecek v Bavas, 482 Mich 484, 496; 759 NW2d 178 (2008).
After Ms. Beach filed this action, the circuit court ordered the remaining plaintiffs joined as necessary parties because they each had an interest in the Beach Family Farm, which plaintiffs assert includes the disputed platted streets. For ease of reference, we will generally refer to plaintiffs collectively.
Beach v Lima Twp, 283 Mich App 504; 770 NW2d 386 (2009).
Id. at 509.
Martin v Beldean, 469 Mich 541; 677 NW2d 312 (2004).
Tomecek, 482 Mich 484.
Beach, 283 Mich App at 518.
Id. at 520 (emphasis omitted).
The order granting leave to appeal directed the parties to brief only “whether a plaintiff who seeks to establish an adverse possession claim that would affect property in a recorded plat must file a claim under the Land Division Act, MCL 560.101 et seq., if the plaintiff is not expressly requesting that the plat be vacated, corrected or revised.” Beach v Lima Twp, 485 Mich 1036 (2010).
Woodman v Kera LLC, 486 Mich 228, 236; 785 NW2d 1 (2010).
Dep’t of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008).
Martin, 469 Mich at 546.
Walker v Bowen, 333 Mich 13, 20; 52 NW2d 574 (1952).
See Sanscrainte v Torongo, 87 Mich 69; 49 NW 497 (1891).
See MCL 600.5801, which provides in part:
No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this section.
(4) In all other cases under this section, the period of limitation is 15 years.
Burns v Foster, 348 Mich 8, 14; 81 NW2d 386 (1957) (“It is elementary that the burden of proving adverse possession rests upon the party who alleges it.. . .”); MCL 600.5801.
“Michigan courts have followed the general rule that the expiration of the period of limitation terminates the title of those who slept on their rights and vests title in the party claiming adverse possession.” Gorte v Dep’t of Transp, 202 Mich App 161, 168-169; 507 NW2d 797 (1993), citing Gardner v Gardner, 257 Mich 172, 176; 241 NW 179 (1932).
Miller v Miller, 100 Mich 563, 564; 59 NW 242 (1894).
Zabowski v Loerch, 255 Mich 125, 128; 237 NW 386 (1931) (citation and quotation marks omitted).
See Escher v Bender, 338 Mich 1, 7-8; 61 NW2d 143 (1953) (“Title established through adverse possession is free from encumbrance and of a character to assure quiet and peaceful enjoyment.. ., but it is not a marketable title of record until there has been a judicial determination of such title.”); Deane v Rex Oil & Gas Co, 325 Mich 625, 631; 39 NW2d 204 (1949) (“To show a record title by adverse possession requires a suit and the recording of a decree.”).
Beginning in 1907, Michigan law precluded obtaining title to publicly owned property through adverse possession. See 1907 PA 46; Arduino v Detroit, 249 Mich 382, 387; 228 NW 694 (1930).
As we noted in Martin, 469 Mich at 543:
In the earliest days of this state, indeed, even before statehood, in order to allow townships to be subdivided into discrete areas containing, for example, residential lots, dedicated streets, alleys, parks, etc., plat legislation was enacted. After Michigan became a state in 1837 there were numerous statutes amending and revising the requirements for recording and changing plats over the years. Further, in 1873 Michigan began centrally maintaining a file of all plats with the State Treasurer so that interested individuals could inspect them and ascertain the rights and limitations of a given plat.
Tomecek, 482 Mich at 495 (opinion by Kelly, J.).
Id.; MCL 560.221.
MCL 560.102(a) (“ ‘Plat’ means a map or chart of a subdivision of land.”).
See MCL 560.206(1).
MCL 560.222a refers to public utility easements and is not relevant to this case.
These parties include the owners of record title of each lot or parcel of land within 300 feet of the lands described for vacation or revision; the municipality where the plat is located; the director of the Department of Energy, Labor, and Economic Growth (now the Department of Licensing and Regulatory Affairs); the drain commissioner; the chairperson of the board of county road commissioners; public utilities with installations or equipment in the plat; and the directors of the state transportation department and the Department of Natural Resources if the plat includes a state highway. MCL 560.224a.
MCL 560.229 provides:
Within 30 days after entry of judgment, for vacation, correction, or revision of a plat, plaintiff shall record the judgment in the office of the register of deeds. The register of deeds shall place on the original plat the date, liber, and page of the record of the court’s judgment.
Martin, 469 Mich at 542-543.
Id. at 551 n 24.
Tomecek, 482 Mich at 496 (opinion by Kelly, J.).
See id.
See MCL 600.2932.
As early as 1937, this Court acknowledged the distinction between obtaining title by adverse possession and vacating a plat. See Olsen v Grand Beach, 282 Mich 364, 368-369; 276 NW 481 (1937).
MCL 560.102(a).
Tomecek, 482 Mich at 496 (opinion by Kelly, J.) (emphasis added).
As additional support for this analysis, we note that the LDA affords standing to file a complaint “to vacate, correct, or revise a recorded plat or any part of a recorded plat” only to “the owner of a lot in the subdivision, a person of record claiming under the owner, or the governing body of the municipality in which the subdivision covered by the plat is located.” MCL 560.222. If we were to hold, as the dissent argues, that an adverse possessor is required to file under the LDA, the adverse possessor may not have standing to pursue the very LDA action that the dissent would require. If a party acquired land in a plat by adverse possession hut did not become an “owner of a lot in the subdivision,” the party could not file an LDA action under MCL 560.222. Therefore, if, as the dissent argues, an LDA action were a prerequisite to establishing an adverse possession claim, a person who was not already a lot owner would he left without recourse to acquire record title by adverse possession. Such a holding would work a fundamental change in property law by effectively precluding an entire class of litigants from establishing record and marketable title through adverse possession. Nothing in the LDA indicates that the Legislature intended this result.
Martin, 469 Mich at 544-545.
Martin v Redmond, 248 Mich App 59; 638 NW2d 142 (2001).
Martin, 469 Mich at 550.
The Martin plaintiffs expressly requested that the court “ ‘remov[e] the. .. restrictions/reservations from the subject portion of Outlot A owned by the Plaintiffs and/or declaring same null and void.’ ” Id. at 545 n 10.
Id. at 542-543.
Our decision is also consistent with Hall v Hanson, 255 Mich App 271; 664 NW2d 796 (2003), which we cited with approval in Martin. Martin, 469 Mich at 550 n 21. In Hall, the defendants filed a counterclaim to quiet title, alleging that the relevant plats “were clouds on their title.” Hall, 255 Mich App at 277. The Hall defendants challenged the validity of a street dedicated in a plat and claimed that the plaintiffs had failed to accept the dedication or, in the alternative, abandoned the street. The defendants in Hall did not claim an interest in the street hy virtue of adverse possession or on any other basis independent of the plat. Rather, the defendants’ claimed interest in the street at issue was directly traceable to and arose from the plat and the platting process. If the street were vacated — that is, if a court determined that the plaintiffs had failed to accept the dedication or abandoned the street — the defendants would, hy operation of law, own the vacated portions of the street because, as reflected in the plat, they were abutting landowners. See MCL 560.227a. Unlike plaintiffs here, the Hall defendants claimed a property interest that arose from the plat. Thus, the defendants’ interest in the relevant property emanated from the plat and the platting process, and the defendants were required to proceed under the LDA because their claim addressed the scope of property interests as reflected in the plat. The Hall defendants, in short, were not establishing a substantive right that was not depicted in the plat, whereas, in this case, plaintiffs’ claim did establish a substantive right that was established without regard to the plat.
Tomecek, 482 Mich at 487-489 (opinion by Kelly, J.).
Id. at 487-488.
Id. at 487; id. at 499 (opinion by Cavanagh, J.).
Id. at 497 (opinion by Kelly, J.); id. at 505 (opinion by Young, J.).
Id. at 496 (opinion by Kelly, J.) (emphasis added); accord id. at 505 (opinion by YOUNG, J.). It is not clear how the dissent reconciles its position with Tomecek, which compels the conclusion that plaintiffs’ quiet title action was appropriate. In this case, without first quieting title, plaintiffs’ LDA action would have involved the establishment of a substantive right, which, as five justices held in Tomecek, is relief that the LDA cannot provide.
Id. at 496 (opinion by Kelly, J.) (emphasis added).
Post at 148.
Contrary to the dissent’s assertions, our decision does not suggest that Martin was decided incorrectly. As stated throughout this opinion, the factual and legal differences that distinguish the instant matter from Martin compel the result of this case. Moreover, the dissent’s repeated efforts to transform plaintiffs’ quiet title claim into an LDA action to revise a plat erroneously conflates two distinct legal actions. Yet, notwithstanding the attempt to mesh these different claims such that we should require plaintiffs to proceed under the LDA, the dissent agrees that plaintiffs could not file an LDA action without first establishing a substantive interest in the land: “If the plat had been simply altered without a judicial decree that plaintiffs were the true owners of the property, the LDA would have served as the vehicle to ‘establish an otherwise nonexistent property right,’ which would be contrary to our holding in Tomecek .. . .” Post at 145-146.
The quiet title action at issue serves precisely that (limited) purpose: to obtain the necessary judicial decree. Unless and until plaintiffs affirmatively demonstrate their superior interest in the land, the LDA is inapplicable. The dissent errs by treating plaintiffs’ lawsuit, which did not seek and could not have obtained a plat revision without first succeeding in this claim, as an action that must he filed under the LDA.
The dissent argues that plaintiffs’ quiet title action “for all practical purposes sought to vacate or otherwise alter the plat. . . .” Post at 140. However, in actuality, plaintiffs’ quiet title action served the entirely separate purposes of establishing a cognizable substantive property right in land and obtaining record ownership of the property. The inescapable conclusion of plaintiffs’ action — and the gravamen of plaintiffs’ claim — is that plaintiffs sought to establish an otherwise unrecognized substantive interest in land. As this Court recognized in Tomecek, the LDA is incapable of providing the relief plaintiffs requested. Moreover, as outlined earlier and conceded by the dissent, plaintiffs’ action was a necessary prerequisite to an LDA action. We agree with the dissent that the essential issue is “whether plaintiffs’ quiet-title action seeks to ‘vacate, correct, or revise a recorded plat or any part of a recorded plat.’ ” Post at 154. However, because we believe that plaintiffs’ quiet title action did not seek such relief — either in form or in substance — we do not require plaintiffs to proceed under the LDA.
The dedication provision of MCL 560.253(1) does not change our analysis. The plain language of § 253 addresses itself to the conveyance of substantive property rights by a landowner when the plat is initially created and how those rights are reflected in a plat. When a landowner certifies, signs, acknowledges, and records a plat pursuant to the LDA, that process is “deemed” sufficient to convey property interests to the donees represented in the plat. The LDA indicates that the only time at which a plat establishes substantive rights is when a plat is created in conformity with the LDA’s requirements. Thus, although a property owner may convey substantive rights by creating a plat because the LDA “deemfs]” it so, the plat that results from this process merely reflects those conveyed rights because a plat, as defined by the LDA, is a “map or chart of a subdivision of land.” MCL 560.102(a). Section 253 does not undermine our conclusion that plaintiffs’ quiet title action was appropriate because plaintiffs established a substantive interest in the disputed property that was neither represented in the plat nor traceable to the platting process.
Tomecek, 482 Mich at 496 (opinion by Kelly, J.).
The dissent’s effort to harmonize the quiet title statute with the LDA highlights the basic disagreement between the two opinions. The dissent argues that plaintiffs’ quiet title action overlaps with and must yield to the LDA and accuses the majority of “viewfing] it as of little moment whether a plaintiff avails himself of the quiet-title statute or the LDA[.]” Post at 142. On the contrary, we find the distinction of considerable moment, and our analysis recognizes the separate purposes served by quiet title actions and actions under the LDA, as well as the limitations of each. Quiet title actions enable a party to establish a substantive right. LDA actions, on the other hand, are concerned with whether a map accurately reflects the substantive rights described therein and do not authorize a court to establish an otherwise nonexistent right. Tomecek, 482 Mich at 496 (opinion by Kelly, J.). Had plaintiffs merely filed an LDA action grounded on the bare assertion that the plat was inaccurate because of an unproven claim of adverse possession, plaintiffs would not have been entitled to relief because the LDA could not have provided the requested substantive relief. Thus, the distinction between the two claims is of substantial importance, and it is unnecessary for quiet title actions to yield to the LDA when the LDA plainly cannot provide the same relief. Therefore, because each claim serves a separate purpose — as demonstrated previously — -there is no tension between the statutes and no need to harmonize them.
That a quiet title action to establish title to land is a “necessary prerequisite to the alteration of [a] plat” is a proposition with which the dissent agrees. Post at 145. The dissent errs by conflating the plat alteration with the action to quiet title despite recognizing that a party must establish title — accomplished here through a quiet title action— before any alteration to a plat becomes necessary.
See Olsen, 282 Mich at 368-369 (recognizing the distinction between claiming title by adverse possession and vacating a plat); Howard v Berrien Springs, 311 Mich 567, 568, 570; 19 NW2d 101 (1945) (recognizing the plaintiffs right to quiet title based on adverse possession “as to any claim of defendant village in the premises,” which included land in a recorded plat dedicated “ ‘to remain open and free for the benefit of the public’ ”).
Martin, 469 Mich at 542-543.
We recognize that the practical effect of our analysis is to render the plat inaccurate. But the township is not without recourse to correct the plat because it has standing under the LDA, as the municipality in which the subdivision covered by the plat is located, to seek to correct the plat. MCL 560.222. Although the township is not required to file such an action, it may certainly do so if it desires to rectify the inaccuracy of the plat by having it altered to indicate that plaintiffs have record title to the disputed property. Plaintiffs, as lot owners, may do the same. Id. | [
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Zahra, J.
This case presents the question whether scoring prior record variables (PRVs) when calculating a defendant’s recommended minimum sentence range under the statutory sentencing guidelines is improper when a defendant’s minimum and maximum sentences may be enhanced pursuant to MCL 333.7413(2). The sentence enhancement in MCL 333.7413(2) falls under the purview of MCL 777.21(4), and, therefore, the answer necessarily turns on the language .of MCL 777.21, which sets forth the instructions for calculating a defendant’s minimum sentence range. Reading all the provisions of this statute together, and thus giving effect to the Legislature’s stated intent, we hold that MCL 777.21 requires the scoring of the PRVs when MCL 333.7413(2) is applicable. Accordingly, we affirm defendant’s sentences.
I. FACTS AND PROCEDURAL HISTORY
A jury convicted defendant of delivery of less than 50 grams of heroin and conspiracy to deliver less than 50 grams of heroin. The trial court scored the PRVs and the relevant offense variables (OVs), calculating defendant’s minimum sentence range at 5 to 23 months in prison with a statutory maximum of 20 years. Because defendant had a prior conviction for a controlled substance offense, the trial court applied the sentence enhancement in MCL 333.7413(2). The trial court doubled both the minimum and maximum sentences for each conviction and sentenced defendant within the enhanced guidelines range to concurrent terms of 46 months to 40 years’ imprisonment.
Defendant appealed as of right his convictions and sentences, which the Court of Appeals affirmed in an unpublished opinion per curiam. In particular, defendant challenged the enhancement of his minimum sentences under MCL 333.7413(2). While defendant’s appeal was pending in the Court of Appeals, we issued People v Lowe, 484 Mich 718; 773 NW2d 1 (2009), holding that when MCL 333.7413(2) is applicable, it authorizes a court to enhance both a defendant’s minimum and maximum sentences. Relying on Lowe, the Court of Appeals rejected defendant’s challenge to his sentences.
Defendant subsequently moved for reconsideration, recognizing the holding in Lowe, but arguing that additional language from Lowe indicated that PRVs should not be scored if a defendant’s sentence may be enhanced under MCL 333.7413(2). The Court of Appeals denied defendant’s motion for reconsideration without further comment.
Defendant sought leave to appeal in this Court through counsel in the State Appellate Defender Office (SADO) and by filing a separate application in propria persona. We directed the prosecuting attorney to answer the application for leave filed by SADO on defendant’s behalf. After receiving the prosecutor’s answer, we denied the application that had been filed in propria persona. With respect to the application filed by SADO, we scheduled oral argument, instructing the parties to address whether the scoring of PRVs is improper when a defendant’s minimum and maximum sentences may be doubled pursuant to MCL 333.7413(2).
II. STANDARD OF REVIEW
We review questions of statutory interpretation de novo.
III. ANALYSIS
The question here is whether the Legislature intended that a court score the PRVs when calculating the minimum sentence range for an offender whose sentence may be enhanced under MCL 333.7413(2). MCL 777.21, which instructs on the calculation of the minimum sentence range, provides:
(1) Except as otherwise provided in this section, for an offense enumerated in part 2 of this chapter [MCL 777.11 through MCL 777.19], determine the recommended minimum sentence range as follows:
(a) Find the offense category for the offense from part 2 of this chapter. From [MCL 777.22], determine the offense variables to be scored for that offense category and score only those offense variables for the offender as provided in part 4 of this chapter [MCL 777.31 through MCL 777.49a]. Total those points to determine the offender’s offense variable level.
(b) Score all prior record variables for the offender as provided in part 5 of this chapter [MCL 777.50 through MCL 777.57]. Total those points to determine the offender’s prior record variable level.
(c) Find the offense class for the offense from part 2 of this chapter. Using the sentencing grid for that offense class in part 6 of this chapter [MCL 777.61 through MCL 777.69], determine the recommended minimum sentence range from the intersection of the offender’s offense variable level and prior record variable level. The recom mended minimum sentence within a sentencing grid is shown as a range of months or life.
(2) If the defendant was convicted of multiple offenses, subject to [MCL 771.14], score each offense as provided in this part [MCL 777.21 through MCL 777.22].
(3) If the offender is being sentenced under [MCL 769.10, MCL 769.11, or MCL 769.12], determine the offense category, offense class, offense variable level, and prior record variable level based on the underlying offense. To determine the recommended minimum sentence range, increase the upper limit of the recommended minimum sentence range determined under part 6 for the underlying offense as follows:
(a) If the offender is being sentenced for a second felony, 25%.
(b) If the offender is being sentenced for a third felony, 50%.
(c) If the offender is being sentenced for a fourth or subsequent felony, 100%.
(4) If the offender is being sentenced for a violation described in [MCL 777.18], both of the following apply:
(a) Determine the offense variable level by scoring the offense variables for the underlying offense and any additional offense variables for the offense category indicated in [MCL 777.18],
(b) Determine the offense class based on the underlying offense. If there are multiple underlying felony offenses, the offense class is the same as that of the underlying felony offense with the highest crime class. If there are multiple underlying offenses but only 1 is a felony, the offense class is the same as that of the underlying felony offense. If no underlying offense is a felony, the offense class is G.
(5) If the offender is being sentenced for an attempted felony described in [MCL 777.19], determine the offense variable level and prior record variable level based on the underlying attempted offense.
Our overriding goal for interpreting a statute is to determine and give effect to the Legislature’s intent. The most reliable indicator of the Legislature’s intent is the words in the statute. We interpret those words in light of their ordinary meaning and their context within the statute and read them harmoniously to give effect to the statute as a whole. Moreover, “every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory.” If the statutory language is unambiguous, no further judicial construction is required or permitted because we presume the Legislature intended the meaning that it plainly expressed.
MCL 777.21(1) sets forth the general rule for determining a defendant’s minimum sentence range, while subsections (2) through (5) set forth exceptions to the general rule and additional explanations regarding how the sentencing guidelines are applied to various specific classes of defendants and offenses. Reading § 21(1) as the general rule is supported by the clear language of that subsection, which begins by stating, “Except as otherwise provided in this section,. .. determine the recommended minimum sentence range as follows[.]” The minimum sentence range is thus determined by following the instructions in § 21(1) unless one of the other subsections applies and provides an instruction that is inconsistent with the language in § 21(1).
The Legislature’s use of “[e]xcept as otherwise provided” does not mean that when one of the other subsections is applicable, § 21(1) is entirely inapplicable. Rather, giving effect to the statute as a whole, § 21(1) is inapplicable only to the extent that one of the other subsections is inconsistent with an instruction in it. For the purposes of this case, § 21(l)(b) instructs that a court “[s]core all prior record variables for the offender . . . .” The general rule applicable in all cases is thus to score the PRVs unless the language in another subsection of the statute directs otherwise.
In this case, the only other subsection relevant to the calculation of defendant’s recommended minimum sentence range was § 21(4), which applies to violations “described in section 18 of this chapter . . . .” Section 18 of chapter XVII of the Code of Criminal Procedure refers to MCL 777.18, which includes subsequent controlled substance violations under MCL 333.7413(2). As a result, the determination of defendant’s minimum sentence range was also subject to the instructions in MCL 777.21(4). We must therefore consider the interplay between MCL 777.21(1) and MCL 777.21(4).
When applicable, § 21(4) provides additional rules relating to the scoring of OVs and the determination of the offense class of the sentencing offense. These in structions replace the OV and offense class directives in § 21(1)(a) and (c) with the directives in § 21(4)(a) and (b). In particular, § 21(4) directs a court to determine the OV level by scoring the OVs for the underlying offense and any additional OVs for the offense category indicated in § 18. It also directs a court to determine the offense class using the underlying offense, while specifying that if there are multiple underlying felony offenses, the offense class is the same as that of the underlying felony with the highest crime class. It further directs that when there are multiple underlying offenses, but only one is a felony, the offense class is the same as that of the underlying felony. If no underlying offense is a felony, the offense class is G. However, § 21(4) does not explicitly instruct a court not to score the PRVs. Rather, absent from § 21(4) is any reference whatsoever to PRVs. Consequently, when read as a whole, the statute’s language plainly supports the conclusion that the general rule to score PRVs still applies because § 21(4) has not “otherwise provided.”
The language of § 21(4) further supports this interpretation by stating, “If the offender is being sentenced for a violation described in section 18 of this chapter, both of the following apply[.]” The subsection continues with two specific provisions regarding how to determine the OV level and the offense class. Significantly, the Legislature did not state that “only both of the following apply” or “both of the following apply exclusively” when determining an offender’s minimum sentence range under § 21(4). The absence of such exclusive language further demonstrates that that § 21(4) works in conjunction with, and not independently from, § 21(1).
We reject defendant’s argument that the absence of a reference to PRVs in § 21(4) shows that the Legislature intended that the PRVs are not to be scored with respect to a defendant whose offense falls under § 21(4). Crucial in addressing this argument are the 2006 amendments of MCL 777.21. Specifically, the amendments inserted “[e]xcept as otherwise provided in this section” in the opening sentence of § 21(1) and rewrote § 21(4), which had previously stated, “If the offender is being sentenced for a violation described in section 18 of this chapter, determine the offense class, offense variable level, and prior record variable level based on the underlying offense.” As a result of these amendments, § 21(4) no longer refers to PRVs.
Defendant contends that the removal of the reference to scoring PRVs in MCL 777.21(4) and the retention of the references to PRVs in MCL 777.21(3) and (5) show that the Legislature intended that a court not score PRVs when §21(4) is applicable. Defendant also argues that scoring the PRVs on the basis of the language of § 21(1) when § 21(4) applies would render the references to scoring PRVs in the other subsections superfluous.
The.Legislature did not alter any language in subsections (3) and (5), and thus those subsections retain their references to PRVs. Generally, when language is included in one section of a statute but omitted from another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion. Similarly, “[c]ourts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.”
We conclude that the 2006 amendments only clarified the OVs and offense class applicable to offenders falling under the purview of § 21(4). Removing the reference to PRVs did not affect the general direction that the PRVs be scored. Significantly, not all OVs are scored for each class of crime. Thus, for offenses to which MCL 777.18 is applicable, legislative clarification was necessary because a court must consider the § 18 offense and the underlying offense when scoring the OVs. The amendments of § 21(4) inform a trial court which OVs should be scored when § 18 comes into play, as well as which crime class applies, in order to clarify which sentencing grid must be used when calculating a defendant’s minimum sentence range. Section 21(4) is thus not a standalone, independent sentencing statute, but merely part of the larger whole meant to provide additional guidance and the potential for heightened OV scoring for offenders falling under § 18, as well as clarity concerning the applicable offense class for those offenders.
The retention of the reference to PRVs in MCL 777.21(3) and (5) does not undermine our conclusion. When considering the actual language of these subsections, each, when applicable, instructs a court to “determine the . .. prior record variable level based on the underlying offense.” Before the 2006 amendments, § 21(4) contained the same language. Thus, when read in context, subsections (3) and (5) do not contain freestanding instructions to score the PRVs. Rather, they indicate that when those subsections are applicable, the determination of a defendant’s PRV level is based on the underlying offense.
Significantly, all seven PRVs are scored for all felonies. And the scoring of the PRVs generally only considers a defendant’s prior conduct. As a result, the underlying offense has no effect on the scoring of the PRVs because they are determined by reviewing a defendant’s criminal history regardless of the underlying offense. Therefore, the instruction to determine the PRV level on the basis of the underlying offense is inherently illogical. A court cannot determine the PRV score on the basis of the underlying offense when the scoring of any of the PRVs is in no way contingent on the underlying offense. Yet reading the statute in the manner that defendant suggests would give an artificial meaning to the references to PRVs in § 21(3) and (5), contrary to the language of the statute, because it would require that we overlook the full instruction to determine a defendant’s PRV level on the basis of the underlying offense.
We conclude that § 21(4) does not provide an instruction regarding the scoring of the PRVs contrary to that set forth in § 21(1). Rather, the 2006 amendments clarified how a court determines the applicable OVs and offense classes for offenders falling under the purview of § 21(4). No distinction or further clarification was needed with regard to the PRVs because, as previously addressed, the PRVs are scored the same way no matter what the underlying offense. Reading the various changes enacted as part of the 2006 amendments of the statute together supports the conclusion that the general rule to score the PRVs still applies to § 21(4) because § 21(4) does not provide otherwise. The addition of the phrase “except as otherwise provided” to § 21(1) works in conjunction with the new language in §21(4), stating that “both of the following apply,” in introducing the substantive changes regarding the applicable OVs and offense classes. Thus, the rules “otherwise provided” only relate to the OV and offense class directions. Drawing this conclusion does not restore to the statute language that the Legislature omitted. Instead, the general direction in § 21(1) to score PRVs carries through to § 21(4) because there is no explicit language in § 21(4) instructing courts not to score PRVs. The PRVs are scored not because the Legislature removed the reference to scoring them, but because in the amendments to § 21(4), the Legislature simply did not provide a contrary rule that displaced the general PRV rule or an explicit direction not to score the PRVs.
We recognize that our conclusion is contrary to statements made in Lowe, in which we stated, in a section of that decision responding to the dissent, that the absence of a reference to PRVs in § 21(4) appeared to indicate that the Legislature intended that offenders falling under § 21(4) should not be scored with regard to the repeat nature of the offense. The reference that Lowe made to § 21(4) not encompassing scoring of the PRVs was merely a statement of the obvious because § 21(4) does not mention PRVs at all, due to the fact that PRVs are addressed in other subsections of the statute. Moreover, the pertinent statements in Lowe are clearly nonbinding obiter dicta. The only issue in Lowe was whether MCL 333.7413(2) permitted a trial court to enhance the minimum and maximum portions of a defendant’s sentence or whether the trial court could instead only enhance the maximum portion of the sentence. The issue presented here is whether the PRVs should be scored for an offender who falls under the purview of MCL 777.21(4). The issue here is not contingent on the issue decided in Lowe, and the statements regarding § 21(4) in Lowe were not essential to the determination of that case. Consequently, we clarify that the holding in Lowe is limited to whether MCL 333.7413(2) permits a trial court to enhance a defendant’s minimum and maximum sentence.
IV CONCLUSION
We hold that when calculating a defendant’s recommended minimum sentence range under the sentencing guidelines when the defendant’s minimum and maximum sentences may be enhanced pursuant to MCL 333.7413(2), a trial court should score the PRVs. Reading MCL 777.21(1) and (4) in conjunction with one another, MCL 777.21(1) instructs that the PRVs must be scored for each offender when determining the minimum sentence range. MCL 777.21(4), when read as a part of the larger whole, and in context with how the sentencing guidelines operate generally, does not displace this general requirement or provide a contrary instruction. Rather, MCL 777.21(4) is merely intended to provide guidance regarding how to determine the OV level and offense class for offenders falling under MCL 777.18. Accordingly, the trial court properly scored the PRVs. Defendant’s sentences are affirmed.
Young, C.J., and Markman, Hathaway, and Mary Beth Kelly, JJ., concurred with Zahra, J.
MCL 333.7401(2)(a)(iv).
MCL 750.157a.
MCL 333.7413(2) states, “Except as otherwise provided in subsections (1) and (3), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both.”
People v Peltola, unpublished opinion per curiam of the Court of Appeals, issued October 20, 2009 (Docket No. 288578).
People v Peltola, unpublished order of the Court of Appeals, entered December 14, 2009 (Docket No. 288578).
We directed the prosecutor to specifically address the argument that Lowe, 484 Mich 718, precludes the scoring of the PRVs in this case.
People v Peltola, 488 Mich 876 (2010).
Id.
People v Krueger, 466 Mich 50, 53; 643 NW2d 223 (2002).
It is undisputed that if the PRVs should not have been scored, defendant is entitled to resentencing. See People v Francisco, 474 Mich 82, 88-92; 711 NW2d 44 (2006). If the trial court had not scored the PRVs, defendant’s minimum sentence range would have been zero to 6 months, which if doubled would have resulted in a zero- to 12-month minimum sentence range, rather than the 10- to 46-month minimum range calculated by the trial court, and the trial court would have been required to impose an intermediate sanction rather than a prison term absent a reason justifying a departure. MCL 769.34(4)(a).
People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002).
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999); Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 (1993).
AFSCME v Detroit, 468 Mich 388, 399-400; 662 NW2d 695 (2003) (quotation marks and citations omitted).
Morey, 461 Mich at 330.
See Vega v Lakeland Hosps, 479 Mich 243, 250-251; 736 NW2d 561 (2007) (treating the phrase “ [e]xcept as otherwise provided” in the same manner).
MCL 777.18 also applies to a controlled substance offense or offense involving gamma-butyrolactone on or near school property or a library, MCL 333.7410; recruiting or inducing a minor to commit a controlled substance felony, MCL 333.7416(1)(a); conspiracy, MCL 750.157a(a); inducing a minor to commit a felony, MCL 750.157c; voluntarily suffering a prisoner to escape, MCL 750.188; a felony committed in a weapon-free school zone, MCL 750.237a; and larceny of rationed goods, MCL 750.367a.
Section 21(1)(a) instructs on the offense category and the OVs to score in determining the OV level. Section 21(1)(e) instructs on finding the offense class and using the grid for that offense class to determine the recommended minimum sentence range on the basis of the intersection of the OV level and the PRV level.
Emphasis added.
2006 PA 655.
The amendments also corrected a Roman numeral in § 21(2) to reflect the correct chapter number applicable to that subsection, but that change is irrelevant to the analysis here. The relevant changes to the statute were as follows, with strikeout showing deleted language and underlining showing new language:
(1) Excent as otherwise provided in this section. fPor an offense enumerated in part 2 of this chapter, determine the recommended minimum sentence range as follows:
(4) If the offender is being sentenced for a violation described in section 18 of this chapter, determine the-offense class — offense variable level, and prior record variable level based on-the underlying offense, hoth of the following annlv:
(a) Determine the offense variable level bv scoring the offense variables for the underlying offense and any additional offense variables for the offense category indicated in section 18 of this chapter-
(b) Determine the offense class hawed on the underlying offense. If there are multiple underlying felony offenses, the offen se class is the same as that of the underlying felony offense with the highest crime class. If there are multiple underlying offenses hut only 1 is a felony, the offense class is the same as that of the underlying felony offense. If no underlying offense is a felony, the offense class is G. [MCL 777.21, as amended by 2006 PA 655.]
See Russello v United States, 464 US 16, 23; 104 S Ct 296; 78 L Ed 2d 17 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (quotation marks and citation omitted) (alteration in Russello).
Farrington, 442 Mich at 210.
MCL 777.22.
As an illustration, defendant’s subsequent substance abuse offense violated MCL 333.7413(2), which, as noted, is an offense listed in MCL 777.18. In applying the instructions under MCL 777.21(4), the trial court scored the OVs for the underlying offense, delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), which falls under the controlled substance offense category, as well as the offense variables applicable to MCL 333.7413(2), which falls under the public trust offense category. Consequently, in addition to the variables scored as a result of defendant’s controlled substance offense, the trial court also scored OVs 4, 9, 10, and 16 as a result of defendant’s public trust offense. Defendant’s offense class was D because delivery of less than 50 grams of heroin is a class D offense and MCL 777.21(4) instructs that the offense class is based on the underlying offense.
The verb selections in MCL 777.21 lend additional support to our conclusion that the amendments of § 21(4) had no impact on the general rule to score PRVs when determining the guidelines range under that subsection. When setting forth the general rule for PRVs in § 21(1)(b), the Legislature used the verb “score,” instructing “score all prior record variables as provided in part 5 of this chapter.” In § 21(4), however, the Legislature merely used the verb “determine,” stating “[d]etermine the offense variable level” and “[djetermine the offense class ....” The word “determine” is also used in the general rule in § 21(1)(a), instructing courts on how to determine the OVs to be scored and the offender’s OV level. Conversely, “determine” is not used for the PRV instruction, which instead uses the word “score.” The direction to “score” is a command, meaning that unless directed otherwise, a court must score an offender’s PRVs in order to calculate the guidelines. “Determine,” on the other hand, simply provides additional explanation concerning which OVs to score. Thus, when comparing the use of “determine” in § 21(1) with the use of “determine” § 21(4), the word choices in the statute support the conclusion that the amendments of § 21(4) were merely intended to provide further explanation regarding how to determine the OV level and the offense class for a defendant who committed an offense listed in § 18.
MCL 777.21(3) (emphasis added). The language of subsection (5) is identical, except that it directs that the PRVs be scored on the basis of the “underlying attempted offense” because subsection (5) concerns attempted felonies.
MCL 777.21(1)(b); 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 22:96, p 204.
MCL 777.50 et seq. PRV 7, MCL 777.57, provides an exception to this general rule in that it concerns subsequent and concurrent convictions, but this exception does not alter our analysis.
We note that our reading of the statute is consistent with and effectuates the Legislature’s intent to promote uniformity and consistency in sentencing through the use of the sentencing guidelines and the general legislative purpose to punish recidivist offenders more severely. See MCL 769.10; MCL 769.11; MCL 769.12; MCL 333.7413; see also People v Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003) (“The premise of our system of criminal justice is that, everything else being equal, the more egregious the offense, and the more recidivist the criminal, the greater the punishment.”). By requiring the scoring of the PRVs, our analysis effectuates this purpose by avoiding the untoward consequence of punishing a recidivist drug offender less severely than a first-time drug offender.
Lowe, 484 Mich at 729-730. Specifically, this Court stated:
The dissent further argues that, because the sentencing guidelines apply to defendant’s underlying offense — the possession of methamphetamine — the sentence must be within the minimum sentence guideline range as calculated for that offense. Post at 737. However, the Legislature expressly provided that the guidelines specifically apply to sentencing done pursuant to [MCL 333.7413(2)], MCL 777.18, and implemented a specific scheme for when “the offender is being sentenced for a violation [of § 7413(2)],” MCL 777.21(4). Under this scheme, the trial court is directed to calculate the minimum sentence range based on the offense variables and offense class for the underlying felony. MCL 777.21(4). Notably, § 21(4) includes no scoring for prior record variables, even though MCL 333.7413(2) only applies if a defendant has, in fact, committed a prior offense. In light of this, it seems reasonable to conclude that the Legislature, knowing that § 7413(2) allowed an enhancement of the minimum sentence, intended the minimum sentence guideline range to he calculated without respect to the underlying offense’s repeat nature. If the Legislature had intended for § 7413(2) to operate only as an enhancement of the maximum sentence, then MCL 777.21(4) would have been unnecessary, and the Legislature would have had no reason to apply the minimum sentence guidelines to sentencing under MCL 333.7413(2). [Id. (second alteration in Lowe).]
Obiter dicta are not binding precedent. Instead, they are statements that are unnecessary to determine the case at hand and, thus, “lack the force of an adjudication.” Wold Architects & Engineers v Strat, 474 Mich 223, 232 n 3; 713 NW2d 750 (2006) (citations and quotation marks omitted).
With respect to the other appellate issue raised by defendant regarding his sentencing credit, we deny leave to appeal because we are not persuaded that the question presented should be reviewed by this Court. | [
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Cavanagh, J.
In this case, we hold that the trial court erred when it required defendant to register as a sex offender under the Sex Offenders Registration Act (SORA) 20 months after defendant had been sen tenced. Accordingly, we reverse the judgment of the Court of Appeals, which had affirmed the trial court’s decision to require defendant to register under SORA.
I. FACTS AND PROCEDURAL HISTORY
On August 6, 2005, defendant and his wife agreed to babysit their neighbors’ two boys. Defendant prepared the children for bedtime by bathing them. Defendant’s son and the older neighbor boy went to another room after getting dressed for bed. The younger neighbor boy, three-year-old JWJ was uncooperative as defendant attempted to diaper and dress him. According to defendant, he used his finger to flick JW’s penis in an effort to get his attention. Defendant flicked JW’s penis twice because JW did not respond to the first flick. JW cried after the second flick.
Defendant was charged with second-degree criminal sexual conduct and second-degree child abuse with sentence enhancement as a fourth-offense habitual offender. On January 27, 2006, defendant pleaded nolo contendere to third-degree child abuse as a second-offense habitual offender. MCL 750.136b(5); MCL 769.10. The parties agreed that the trial court could use the police report as the factual basis for the plea, and, at the plea hearing, the trial court quoted briefly from the police report.
At sentencing on March 17, 2006, the prosecution requested that defendant be required to register as a sex offender under SORA’s catchall provision, MCL 28.722(e)(xi). In support of the registration request, the prosecution recited statements from the victim advocate that defendant had rubbed JW’s penis and given him candy after the flicking incident. Defendant objected, and Allegan Circuit Court Judge Harry A. Beach noted that the prosecution’s supporting information was not included in the record. Furthermore, Judge Beach stated that defendant’s crime was “a rather abusive assault” but not a “sex act” and concluded that registration under SORA was not appropriate in light of the facts in the record. Thus, Judge Beach did not require defendant to register under SORA, but left the question open, subject to the prosecution’s setting a hearing to take testimony regarding whether defendant’s conduct required registration. Judge Beach stated that the court was retaining jurisdiction for that purpose but issued a judgment of sentence that did not require registration.
Approximately 20 months after the sentencing hearing, the prosecution moved for entry of an order requiring defendant to register under SORA. Defendant objected, arguing that the procedure was improper. A hearing on the prosecution’s motion was scheduled before Judge William A. Baillargeon because Judge Beach had retired. At the December 13, 2007, hearing, JW’s father testified that he had had three conversations with defendant and that defendant had stated that he had been “bullying” JI^ but had not explained what he meant by “bullying.” Defendant testified that he was deeply sorry for his conduct and that he had flicked JW’s penis in a reaction to JW’s uncooperativeness. He explained that he used the term “bullying” to describe a grown man inflicting pain on a small boy. Defendant testified that he had not been disciplining JW in the sense that he had warned him that his penis would be flicked if he did not behave and further denied that his actions were intended to injure or humiliate JW. Finally, defendant stated that he had been frustrated when the incident occurred but not angry. No testimony or evidence was presented in support of the prosecution’s prior assertions at sentencing that defendant had rubbed JW’s penis and given JW candy after the flicking.
Judge Baillargeon ruled that defendant must register under SORA, stating that there was no procedural bar to granting the prosecution’s motion because Judge Beach had reserved a decision on the SORA issue. Also, Judge Baillargeon stated that the information used to support the plea was sufficient to show that defendant’s act was “certainly something that would be envisioned by the law and I think that by itself would constitute the registration that the People seek.” Finally, Judge Baillargeon concluded that the testimony from the evidentiary hearing supported his decision to require registration under SORA because the discussion about “bullying” rather than disciplining “underlies and bolsters” the registration requirement.
The Court of Appeals denied defendant’s application for leave to appeal, but this Court remanded the case to the Court of Appeals for consideration as on leave granted. People v Lee, 485 Mich 914 (2009). On remand, the Court of Appeals affirmed Judge Baillargeon’s decision to require registration under SORA. People v Lee, 288 Mich App 739; 794 NW2d 862 (2010). The Court of Appeals determined that there was no procedural bar to requiring registration, in part because registration may be imposed at any time while the trial court has jurisdiction over a defendant. The Court of Appeals concluded that because defendant was still on probation, the trial court retained jurisdiction, and, thus, Judge Baillargeon’s decision to require registration under SORA was proper. Id. at 744-745. This Court granted defendant’s application for leave to appeal. People v Lee, 488 Mich 953 (2010).
II. STANDARD OF REVIEW
This Court reviews de novo lower courts’ interpretations and applications of statutes and court rules. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); Pellegrino v AMPCO Sys Parking, 486 Mich 330, 338; 785 NW2d 45 (2010).
III. ANALYSIS
Under MCL 28.723(1)(a), a defendant must register as a sex offender if the defendant is convicted of a specified “listed offense” as defined in MCL 28.722(e)(i) through (x) and (xii) through (xiv). Defendant’s crime in this case, third-degree child abuse, is not a specified listed offense. Therefore, if defendant is to be required to register, it must be under SORA’s catchall provision, MCL 28.722(e)(xi), which requires registration for a “violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age.” With regard to applying the catchall provision, MCL 769.1(13) explains that
[i]f the defendant is sentenced for an offense other than a listed offense as defined in section 2(d)(i) to (ix) and (xi) to (xiii)[ ] of the sex offenders registration act, 1994 PA 295, MCL 28.722, the court shall determine if the offense is a violation of a law of this state or a local ordinance of a municipality of this state that by its nature constitutes a sexual offense against an individual who is less than 18 years of age. If so, the conviction is for a listed offense as defined in section 2(d)(jc) of the sex offenders registration act, 1994 PA 295, MCL 28.722, and the court shall include the basis for that determination on the record and include the determination in the judgment of sentence.
Thus, if a defendant’s crime falls under the catchall provision, MCL 28.722(e)(xi), under MCL 769.1(13), the crime is a listed offense, requiring registration under SORA. In turn, for convictions of listed offenses after October 1, 1995, MCL 28.724(5) provides the following with regard to SORA’s registration procedures: (1) the defendant “shall register before sentencing,” (2) “[t]he probation officer or the family division of circuit court shall give the individual the registration form after the individual is convicted” and explain the individual’s duties under SORA, and (3) “[t]he court shall not impose sentence ... until it determines that the individual’s registration was forwarded to the department [of state police] as required under [MCL 28.726].” Finally, for crimes falling under the catchall provision, MCL 769.1(13) adds additional procedural requirements regarding registration under SORA, including that the court must include the determination that the crime is a listed offense under the catchall provision, for which registration was therefore required, “in the judgment of sentence.”
In this case, the only issue we reach is the effect of the trial court’s failure to include a definitive determination of defendant’s registration status in the judgment of sentence and the subsequent 20-month delay between sentencing and the determination that defendant must register. We hold that the trial court’s decision mandating registration was erroneous because the court failed to comply with the statutory requirements.
To begin with, we reject the Court of Appeals’ conclusion that the trial court “did not commit procedural error” when it ordered defendant to register under SORA 20 months after sentencing. The Court of Appeals reasoned that the trial court retained jurisdiction over defendant because defendant remained on probation. Lee, 288 Mich App at 744-745. However, the Court of Appeals cited no authority in support of its conclusion and, indeed, none exists.
Furthermore, it is clear that the trial court committed multiple procedural errors in this case. First, the trial court did not require defendant to register under SORA “before sentencing” as required by MCL 28.724(5). Second, because the trial court did not impose the registration requirement until long after sentencing had occurred, the trial court did not ensure completion of the second requirement of MCL 28.724(5), and, thus, both the probation officer and the family division of the circuit court failed to “give [defendant] the registration form after [defendant was] convicted” and explain his duties under SORA. Third, when the trial court imposed defendant’s sentence without a final SORA determination, it ignored the clear directive of MCL 28.724(5) that it “shall not impose sentence . . . until it determines that the individual’s registration was forwarded to the department [of state police] as required under [MCL 28.726].” (Emphasis added.) Finally, if defendant’s conviction fell under the catchall provision, the trial court also failed to comply with MCL 769.1(13) when it entered the judgment of sentence without including in the judgment its determination that the crime was a listed offense for which registration was required. Although the trial court indicated in the judgment of sentence that a hearing was to be set regarding defendant’s possible registration as a sex offender, that is not a determination regarding registration. Furthermore, there is no support in SORA for permitting a postsentencing hearing to make a determination regarding registration. Indeed, such a hearing is a clear violation of the registration procedures established by MCL 28.724(5).
As a result of these procedural errors by the trial court, the sentence imposed in the March 20, 2006, judgment of sentence may have been invalid. See People v Whalen, 412 Mich 166, 170; 312 NW2d 638 (1981) (recognizing that sentences that “do not comply with essential procedural requirements” are invalid). Thus, the prosecution could have sought to correct the sentence because, under MCR 6.429(A), “[a] motion to correct an invalid sentence may be filed by either party.”
In this case, however, the time limits to bring a motion to correct an invalid sentence were long past. MCR 6.429(B) sets the time limits for a motion to correct an invalid sentence, and that court rule applies to prosecutors and defendants alike because the statute governing appeals by the prosecution, MCL 770.12, does not indicate that the prosecution is entitled to seek relief beyond the time provided in the court rules. Because defendant entered a plea in this case, he could only appeal by leave of the Court of Appeals. See MCR 6.302(B)(5). Therefore, in this case, MCR 6.429(B)(3) required that a motion to correct the sentence be brought “within 6 months of entry of the judgment of conviction and sentence.” But the prosecution’s motion to require registration was filed 20 months after the judgment of sentence entered. Thus, even if the sentence imposed in the March 20, 2006, judgment of sentence was invalid because of the procedural errors relating to registration under SORA, the prosecution’s motion was untimely under MCR 6.429(B)(3), and the trial court should have denied it.
Finally, it is notable that Judge Beach determined that registration under the catchall provision, MCL 28.722(e)(xi), was not proper on the record before the trial court at sentencing. Although Judge Beach erroneously permitted the prosecution to bring additional evidence at a postsentencing hearing, see MCL 28.724(5) and MCL 769.1(13), the prosecution failed to provide any new evidence at that hearing in support of its previous claim that defendant had rubbed JW’s penis and given JW candy after the flicking incident. Thus, Judge Baillargeon’s conclusion that the information used to support the plea alone was sufficient to require registration under SORA’s catchall provision was in direct conflict with Judge Beach’s previous determination that the information used to support the plea did not support the prosecution’s request for registration. In accordance with the essence of the general rule favoring sentencing by the judge who accepts a plea, Judge Beach’s findings should have been afforded substantial deference. Indeed, in a case procedurally similar to this one, this Court stated that for a successor trial judge “[t]o sentence a prisoner to the penitentiary . . . when the [previous] trial judge has distinctly said he ought not to be so sentenced, is not supplying his omissions, but is overruling his decision.” Weaver v People, 33 Mich 296, 298 (1876). Just as the successor judge in Weaver erred by overruling the predecessor judge’s determination rather than merely correcting an omission, Judge Baillargeon’s determination regarding registration under SORA improperly overruled Judge Beach’s previous decision in light of the prosecution’s failure to provide any new evidence or support for its previous claim that defendant had rubbed JW’s penis and given JW candy after the flicking incident.
IV CONCLUSION
Under MCL 769.1(13) and MCL 28.724(5), a trial court must, before imposing a sentence, satisfy multiple requirements in order to properly require a defendant to register as a sex offender. Because the trial court in this case failed to satisfy those statutory requirements, its subsequent decision at a postsentencing hearing held 20 months after the sentence was entered to require registration was erroneous. Furthermore, the prosecution failed to bring a motion to correct the arguably invalid sentence within the time limit provided in MCR 6.429(B)(3). Accordingly, we reverse the judgment of the Court of Appeals and vacate the trial court’s order requiring defendant to register under SORA.
Young, C.J., and Marilyn Kelly, Markman, Hathaway, Mary Beth Kelly, and Zahra, JJ., concurred with Cavanagh, J.
We acknowledge that the Legislature amended various provisions of SORA effective July 1, 2011. 2011 PA 17. Because the trial court decided the relevant issues before July 1, 2011, we analyze this case under the statutory provisions in effect when the case was decided by the trial court.
None of defendant’s prior convictions involved criminal sexual conduct.
“[S]ection 2” refers to MCL 28.722. MCL 28.722 was amended by 2002 PA 542, effective October 1, 2002, but the cross-reference in MCL 769.1(13) was not updated to reflect the fact that the applicable provisions in MCL 28.722 were relettered as subdivision (e), rather than subdivision (d), and that the catchall provision was renumbered as subparagraph (xi), rather than subparagraph (x).
Because we conclude later in this opinion that the trial court improperly imposed the registration requirement after sentencing and, thus, erred when it granted the prosecution’s postsentencing motion requesting that the trial court require defendant to register, we need not determine whether, on the facts of this particular case, defendant’s crimé “by its nature constitutes a sexual offense” sufficient to satisfy SORA’s catchall provision. MCL 28.722(e)(xi). As a result, this opinion should not be interpreted to hold that defendant’s conduct in this case was or was not a sexual offense.
To the extent that People v Meyers, 250 Mich App 637, 640; 649 NW2d 123 (2002), implicitly endorsed such a delay when it affirmed the trial court’s decision to require registration under SORA 23 days after sentencing, it is overruled.
Because third-degree child abuse is not a specified listed offense requiring registration under SORA, and Judge Beach determined that, on the record available at sentencing, defendant’s crime did not require registration because the facts did not satisfy the catchall provision, arguably the sentence imposed in the judgment of sentence, without a registration requirement, was valid. And, notably, MCR 6.429(A) states that a “court may not modify a valid sentence after it has been imposed except as provided by law.” (Emphasis added.) See, also, People v Barfield, 411 Mich 700, 703; 311 NW2d 724 (1981) (stating that “a trial court cannot set aside a valid sentence and impose a new and different one, after the defendant has been remanded to jail to await the execution of the sentence”) (quotation marks and citation omitted); People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997) (“[T]he authority of the court over a defendant typically ends when a valid sentence is pronounced . . . .”); and People v Holder, 483 Mich 168, 177; 767 NW2d 423 (2009) (“[I]f the original judgment of sentence was valid when entered, MCR 6.429[A] controls . . . .”). Therefore, arguably, the trial court should have rejected the prosecution’s postsentencing motion to require defendant to register under SORA because the sentence imposed was valid and modification of a valid sentence is not permitted under MCR 6.429(A). But because we conclude that the prosecution was not entitled to have its postconviction motion considered even if the sentence imposed was invalid, we will assume, for purposes of this case, that the sentence was invalid.
See, e.g., People v Pierce, 158 Mich App 113, 115; 404 NW2d 230 (1987), citing People v Clemons, 407 Mich 939 (1979). This general rule recognizes that the judge who accepts a defendant’s plea is in the best position to ensure that a defendant’s sentence is “based upon the circumstances established at the time of the plea,” Pierce, 158 Mich App at 115-116, so that, consistently with the “modern view of sentencing,” the sentence imposed is “tailored to the particular circumstances of the case and the offender,” People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973). | [
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Per Curiam.
Defendants appeal as of right from an order denying defendants’ motion for summary disposition and granting plaintiff’s motion for summary disposition. We affirm in part, reverse in part, and remand.
In 1960, defendants’ and plaintiff’s predecessors in interest entered into a sand and gravel contract granting plaintiff’s predecessor the exclusive right to extract sand and gravel from deposits on defendants’ predecessors’ property in exchange for an annual payment of a minimum royalty. Defendants, who amended the contract in 1987, terminated the contract in 1995 because it had been in existence for over thirty-five years without plaintiff extracting any sand or gravel. Seeking to have the contract enforced, plaintiff filed this declaratory judgment action. Defendants filed a counterclaim and affirmative defenses, stating that the contract was unconscionable and violated the rule against perpetuities. Both parties submitted motions for summary disposition pursuant to MCR 2.116(C)(8) and (9). The lower court granted only plaintiff’s motion. Although we agree with the court that the rule against perpetuities does not apply to this property interest, we find that the pleadings were sufficient to state a claim of unconscionability.
Appellate review of a motion for summary disposition is de novo. Singerman v Municipal Service Bureau, Inc, 455 Mich 135, 139; 565 NW2d 383 (1997). A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of a claim. Id. A motion brought under MCR 2.116(C)(9) seeks a determination whether the opposing party has failed to state a valid defense to the claim asserted against it. In re Smith Estate, 226 Mich App 285, 288; 574 NW2d 388 (1997). The motions are analogous to one another in that both are tested by the pleadings alone, with the court accepting all well-pleaded allegations as true and determining whether the defenses are so clearly untenable as a matter of law that no factual development could possibly deny a plaintiffs right to recovery. Id.
Defendants argue that the lower court erred in granting plaintiff summary disposition on the basis that the contract was conscionable. We agree. The examination of a contract for unconscionability involves inquiries for both procedural and substantive unconscionability. Northwest Acceptance Corp v Almont Gravel, Inc, 162 Mich App 294, 302; 412 NW2d 719 (1987). Accordingly, there is a two-pronged test for determining whether a contract is unenforceable as unconscionable, which is stated as follows:
(1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?; (2) Is the challenged term substantively reasonable? [Id. (citing Allen v Michigan Bell Telephone Co, 18 Mich App 632, 637-638; 171 NW2d 689 [1969]).]
Reasonableness is the primary consideration. Stenke v Masland Development Co, Inc, 152 Mich App 562, 572-573; 394 NW2d 418 (1986); Gianni Sport Ltd v Gantos, Inc, 151 Mich App 598, 601; 391 NW2d 760 (1986).
Here, defendants alleged in their counterclaim both that their predecessors in interest were unrepresented by counsel during negotiations and execution of the original contract and that defendants were unrepresented during the negotiations and execution of the 1987 amendment. Additionally, defendants’ pleadings contain several allegations of unreasonableness attributed to the length of time since the contract’s inception, during which plaintiff never extracted sand or gravel from the property. When these allegations are accepted as true, we cannot conclude that they are defenses so clearly untenable as a matter of law that no factual development could possibly deny plaintiff’s right to recovery. However, in granting plaintiff’s motion for summary disposition, the lower court made a contrary determination that the contract was “easily comprehensible” and did not involve “trickery.” This determination constitutes a finding of fact that is inappropriate to make when considering a motion for summary disposition pursuant to MCR 2.116(C)(8) or (9). Because motions pursuant to these two subrules concern only the sufficiency of the pleadings, the lower court was required to presume that defendants’ allegations were true and was not permitted to create its own factual findings. In re Smith Estate, supra at 288. Accordingly, the court should not have granted plaintiff summary disposition on this basis.
Next, defendants argue that the lower court erred in granting plaintiff summary disposition on the basis that the parties’ contract did not violate the rule against perpetuities. We disagree. The rule against perpetuities, which is codified at MCL 554.51; MSA 26.49(1), is violated if, at the time the instrument creating a future estate comes into operation, it is not certain that the estate will either vest or fail to vest within twenty-one years of the death of a person named in the instrument. Stevens Mineral Co v Mich igan, 164 Mich App 692, 695; 418 NW2d 130 (1987). The rule applies only to nonvested property interests. MCL 554.53; MSA 26.49(3). Therefore, in all cases where a party invokes application of the rule, the first consideration is whether the character of the interest is vested. Toms v Williams, 41 Mich 552, 562; 2 NW 814 (1879). A vested property interest is one that is capable of becoming possessory immediately upon the expiration of the preceding estate. Stevens, supra at 696. Stated another way, a vested interest exists when there is no condition precedent to the holder taking possession other than the termination of prior estates, however and whenever that may occur. 1 Cameron, Michigan Real Property Law (2d ed), § 7.2, pp 234-235. If there is a condition precedent, then the interest is contingent or nonvested. Id.
Plaintiff’s property interest pursuant to the contract in this case is properly characterized as a profit á prendre in the form of the right to extract and acquire defendants’ sand and gravel. A profit á prendre is the right to acquire, by severance or removal from another’s land, something previously constituting part of the land. VanAlstine v Swanson, 164 Mich App 396, 405; 417 NW2d 516 (1987) (citing Evans v Holloway Sand & Gravel, Inc, 106 Mich App 70, 78; 308 NW2d 440 [1981]). Additionally, because there is no condition precedent to plaintiff’s property interest, we find that plaintiff’s profit á prendre vested at the time of the creation of the contract. Although plaintiff has not yet exercised its right to enter the property and extract sand and gravel, plaintiff nonetheless possesses a present right to do so. This is true even though plaintiff will not possess a property interest in the materials themselves until after extracting the sand or gravel. See Stevens, supra at 698. Accordingly, we hold that the lower court properly granted plaintiff summary disposition on this basis because plaintiffs vested property interest may not be voided by application of the rule against perpetuities.
Defendants argue that the lower court should have applied the rule against perpetuities in this case because plaintiffs profit á prendre will not vest until plaintiff begins extracting sand or gravel from the property. For their position, defendants primarily rely on this Court’s statement in Stevens, supra at 698, that until the profit á prendre ”is actually exercised and possession is taken, it is a floating, indefinite, and incorporeal right.” This statement in Stevens was derived from Harlow v Lake Superior Iron Co, 36 Mich 105, 119-120 (1877), a case in which the plaintiff sought to eject the defendant from certain property by arguing that his lease granted him a possessory interest in the property and not merely a privilege to mine the property. We do not read the statement in Harlow to address the issue raised by defendants regarding when a profit a prendre vests. Instead, we believe our Supreme Court only intended to describe the nature of a profit á prendre and emphasize that it is not a property right capable of enforcement by an action for ejectment because the right does not confer possession of a physical thing. Therefore, we are not persuaded that defendants’ argument merits a different conclusion in this case.
Affirmed in part, reversed in part, and remanded for further proceedings regarding defendants’ unconscionability claim. We do not retain jurisdiction.
In addition to the arguments that we address in this opinion, defendants also argue that plaintiff’s property interest violates public policy and that the dormant minerals act, MCL 554.291 et seq.; MSA 26.1163(1) et seq., applies to the property interest. We need not address these arguments because defendants did not make these arguments to the lower court, instead raising them for the first time on appeal. Vander Bossche v Valley Pub, 203 Mch App 632, 641; 513 NW2d 225 (1994). Moreover, defendants did not include these arguments in their questions presented to this Court as required by MCR 7.212(C)(5).
We note that our conclusion is consistent with decisions of other courts that, when confronted with this issue in varying factual contexts, have also held that the rule against perpetuities does not apply to a profit á prendre because it is a vested property interest. See Greenshields v Warren Petroleum Corp, 248 F2d 61, 70-71 (CA 10, 1957) (contractual right to explore for and acquire title to gas and oil); Rousselot v Spanier, 60 Cal App 3d 238, 242-243; 131 Cal Rptr 438 (1976) (reservation of nonpossessoiy interest in oil and gas); Goetz v Goetz, 174 Kan 30, 36, 38; 254 P2d 822 (1953) (devise of oil or gas income); Anderson v Gipson, 144 SW2d 948, 950 (Tex Civ App, 1940) (hunting rights and privileges conveyed by lease); 61 Am Jur 2d, Perpetuities and Restraints on Alienation, § 49, pp 60-61.
In a related discussion concerning royalty interests in gas and oil, the Arkansas Supreme Court made the following observation pertinent to defendants’ argument in this case:
It is hard for us to conceive of an estate in real property which vests barrel by barrel or stratum by stratum. In the analogous case of a profit a prendre, such as the perpetual right to take game or fish from another’s land, the estate in real property is a present vested interest which is unaffected by the rule against perpetuities. Gray, The Rule Against Perpetuities (4th Ed.), § 279. Although the owner of such a privilege acquires a personal property interest whenever he bags a duck or lands a fish, this action is merely an incident in the enjoyment of the estate in real property. [Hanson v Ware, 224 Ark 430, 437; 274 SW2d 359 (1955). ] | [
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Markman, J.
Plaintiff appeals as of right an order granting defendant’s motion for summary disposition. We affirm.
Plaintiff, a diagnosed schizophrenic or paranoid schizophrenic, began working for the Michigan Employment Security Commission (MESC) in 1983. (Defendant administers the mesc’s benefit plans.) Plaintiff alleged that defendant’s long-term disability (ltd) plan discriminated against him in violation of the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. Pursuant to the plan, employees who had accrued fewer than 184 hours of sick time, “Plan I employees,” were entitled to ltd benefits for twenty-four months while employees who accrued at least 184 hours of sick time, “Plan II employees,” were entitled to ltd benefits up to the age of sixty-nine. Plaintiff was granted a medical leave in October 1992. He filed for ltd benefits in March 1993. He was categorized as a Plan I employee because he had fewer than 184 hours of accrued sick time. Because he previously received benefits during medical absences, plaintiff’s ltd benefits ended in April 1994. Plaintiff alleged that the plan’s distinction in benefits based on accrued sick time deprived him of ltd benefits and constituted discrimination on the basis of his handicap since he needed to utilize more sick time because of his handicap. Defendant filed a motion for summary disposition, alleging that plaintiff was not “handicapped” as defined by the HCRA and, therefore, not protected by the statute. Further, defendant argued that its ltd plan was not discriminatory. The trial court granted defendant’s motion for summary disposition. It held that plaintiff’s condition was related to his ability to perform his job and that he was therefore not covered by the hcra. It also declared that defendant’s ltd plan was not discriminatory because “the disparate treatment [was] applied equally to those with and without disabilities.”
Appellate review of decisions regarding motions for summary disposition is de novo. Spiek v Dep’t of Transportation, 456 Mich 331; 572 NW2d 201 (1998).
MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. The motion must be granted if no factual development could justify the plaintiff’s claim for relief. 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. [Id. at 337.]
The hcra defines the term “handicap” as
[a] determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: . .. substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. [MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A).]
Without deciding the issue, we will assume for purposes of this opinion that plaintiffs mental condition constitutes a “handicap” under the hcra, (i.e., that plaintiff’s mental condition “is unrelated to the individual’s ability to perform the duties of a particular job or position”). The issue then becomes whether the ltd plan discriminates on the basis of a handicap.
In pertinent part, the HCRA provides that an employer shall not:
(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.
(c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an individual of employment opportunities or otherwise adversely affects the status of an employee because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position. [MCL 37.1202(I)(b), (c); MSA 3.550(202)(l)(b), (c).]
To establish a prima facie case of discrimination under the HCRA, “a plaintiff must demonstrate (1) that he is handicapped as defined by the HCRA, (2) that the handicap is unrelated to his ability to perform the duties of a particular job, and (3) that he was discriminated against in one of the ways described in the statute.” Tranker v Figgie Int’l, Inc, 221 Mich App 7, 11; 561 NW2d 397 (1997). Under the approach set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), “the threshold inquiry is whether the plaintiff has established a prima facie case of discrimination.” Meagher v Wayne State Univ, 222 Mich App 700, 710; 565 NW2d 401 (1997). To establish a prima facie case of discrimination, the plaintiff must produce enough evidence “to create a rebuttable presumption of . . . discrimination.” Id. at 711. If the plaintiff establishes a prima facie case, the burden of production then shifts to the employer to articulate a nondiscriminatory rationale for the action. Id. at 711. If the employer meets this burden of production, the plaintiff must then “prove by a preponderance of the evidence that the legitimate reason offered by the defendant was a mere pretext.” Id.
Here, plaintiff alleges in his complaint that the plan “discriminates against individuals such as plaintiff who need to use sick time because of their handicap.” This claim is premised upon the assumption that handicapped employees disproportionately will be categorized as Plan I employees by virtue of their high utilization of sick time. We cannot accept this argument. First, it is not self-evident that handicapped employees use disproportionately more sick time than do nonhandicapped employees. Handicapped employees are so characterized on the basis of their handicap, not their propensity to take disproportionate advantage of sick time. Handicapped employees, like nonhandicapped employees, vary in the amount of sick time they utilize. Handicapped employees who accrue 184 hours of sick time will be designated as Plan II employees, not Plan I employees. Concomitantly, nonhandicapped employees who fail to accrue 184 hours of sick time for reasons unrelated to any handicap will be designated as Plan I employees. Therefore, the total group of Plan I employees is both under-inclusive and over-inclusive of the total group of handicapped employees. Accordingly, failure to accrue the requisite hours of sick time to be classified as a Plan II employee is not, in our judgment, a good proxy for handicapped status. Moreover, even if a connection between handicapped status and the utilization of sick time could be demonstrated, it would remain plaintiffs burden to show that the connection was sufficiently strong to implicate the 184-hour line of demarcation between Plan I and Plan II employees.
Second, to the extent that a particular handicap does require disproportionate use of sick time, the handicap will at some point begin to affect the employee’s ability to “perform the duties of a particular job or position.” The hcra affirmatively requires an employer to reasonably “accommodate” handicapped employees, MCL 37.1102(2); MSA 3.550(102)(2). However, we discern nothing in the act to indicate that once such accommodation has been made, handicapped employees are presumed to be either less capable than other employees of performing their duties or more likely to impose additional costs upon an employer through disproportionate use of such benefits as sick leave. Indeed, we believe that the act is premised upon the contrary notion that a fully accommodated handicapped employee will be generally indistinguishable from a nonhandicapped employee. See MCL 37.1103(e)(i); MSA 3.550(103)(e)(i). If plaintiffs premise — that handicapped employees will disproportionately be categorized as Plan I employees because of their handicap-related use of sick time — were true, handicapped employees as a class would be highly distinguishable from nonhandicapped employees with respect to the costs that they impose upon an employer. We cannot conceive of an inteipretation of the HCRA that would be better designed to discourage the hiring of qualified handicapped employees. There is simply no statutory basis for the conclusion that the HCRA is intended to reach handicaps that bear on an employee’s ability to perform his job duties or that impose additional costs on employers going beyond the costs of “reasonable accommodation.” For these reasons, plaintiff will be unable to state a claim under the HCRA on the basis of his contention that the plan’s use of accrued sick time as a criterion to determine the extent of ltd benefits discriminates against handicapped persons.
In his appellate brief, plaintiff contends that whether there is a link between handicaps such as his and disproportionate use of sick time is a factual issue that is not amenable to summary disposition under MCR 2.116(C)(8). However, summary disposition under MCR 2.116(C)(8) is appropriate “where no factual development could justify the plaintiff’s claim for relief.” Spiek, supra at 337. As stated above, there is not a demonstrated link between failure to accrue 184 hours of sick time and handicapped status. If such a link could be demonstrated, it would take plaintiff outside the province of the hcra because it would distinguish handicapped employees from non-handicapped employees with respect to the costs to employers of such benefits going beyond the costs of “reasonable accommodation.” Accordingly, we are convinced that no factual development could justify plaintiff’s claim that the LTD plan’s use of accrued sick time as a criterion for distinguishing levels of LTD benefits discriminates against handicapped persons. Plaintiff fails to allege a relationship between the ltd plan’s criterion (accrued sick time) and handicapped status sufficient to make out a rebuttable presumption of discrimination -under the HCRA and is thus unable to establish a prima facie case of handicap discrimination. We therefore affirm the trial court’s order granting defendant’s motion for summary disposition.
Affirmed.
Defendant contends that plaintiff is not “handicapped” under the hcra because he was unable to perform his job duties at the time he applied for ltd benefits. Obviously, anyone who applies for ltd benefits is unable to perform their job at that time. The more appropriate analysis is clearly whether plaintiffs handicap was unrelated to his ability to perform his job at the time he was enrolled in the benefit program. However, our analysis does not require us to resolve this issue.
In his appellate brief, plaintiff states that, for example, a benefit plan that tied benefits to use of the drug azt would discriminate against persons handicapped with aids. Plaintiffs conclusion follows only if there is a relationship between azt use and having aids — which we presume can be shown. Here, though, there is no demonstrated relationship between having accrued sick time of less than 184 hours and being handicapped.
In his complaint, plaintiff alleges that there is no actuarial basis for providing different levels of ltd benefits on the basis of accrued sick time and that this criteria “is merely a subterfuge to evade the purposes of the [hcra].” However, before analysis of a discrimination matter proceeds to the step of determining whether a proffered nondiscriminatory rationale is a pretext, a plaintiff must establish a prima facie case of discrimination. See Meagher, supra at 710-711. Here, plaintiff, in our judgment, has failed to state a prima facie case of handicap discrimination. | [
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Per Curiam.
While plaintiff was on psychiatric disability leave from her employment with defendant, plaintiff expressed homicidal ideation regarding her immediate supervisor to a psychiatrist assigned to evaluate her disability claim. After she returned to work, plaintiff was terminated as a result of those statements. Plaintiff claimed discrimination under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the Michigan Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq., MSA 3.550(101) et seg.The matter was submitted to binding arbitration and, following a hearing, the arbitrator ruled in plaintiff’s favor. Eventually, an order confirming the arbitrator’s ruling was entered by the circuit court. Defendant now brings this appeal, and we vacate the arbitrator’s decision.
i
In 1985, plaintiff began working for defendant as a secretary, and in 1989 she was promoted to administrative analyst. Plaintiff generally received positive performance reviews until she was promoted to the position of technical writer in 1992. Plaintiff’s immediate supervisor, Marjorie Jacobson, criticized plaintiff’s substandard work and plaintiff became very sensitive to this criticism. Todd Harrison, a human-resources specialist who was brought in to address the problem, concluded that plaintiff had been promoted beyond her skill level and that she “would not be a good candidate for reassignment within the company as her performance/interpersonal skill deficiencies precede her.” Shortly after receiving her performance appraisal from Derek Knight, her manager, plaintiff began a medical leave of absence for job stress. Plaintiff was treated by Dr. Rosalind Griffin, who concluded that plaintiff suffered from major depression/adjustment disorder and was disabled from work.
To confirm plaintiff’s continued eligibility for disability benefits, defendant’s benefit plan administrator arranged for plaintiff to be examined by another psy chiatrist, Dr. Jolyn Welsh Wagner. At the interview, plaintiff was angry because Dr. Wagner arrived twenty-five minutes late and because she believed defendant had disseminated information to her coworkers that she was undergoing psychiatric care. In an interim report sent to defendant’s plan administrator on the same day as the examination, Dr. Wagner opined that plaintiff presented as an “angry hypervigilant, and extremely paranoid woman who made various threatening statements about her supervisor.” Plaintiff attributed her problems at work to racism perpetrated by Jacobson, who she described as a “white bitch,” and stated that she felt unsupported by Knight, her “Uncle Tom black manager.” The report further stated that plaintiff said Jacobson was “living on borrowed time” and warned that plaintiff’s comments should be taken seriously. In a more detailed report, Dr. Wagner indicated that plaintiff stated she “had killed [Jacobson] a thousand times in [her] mind,” and that she talked about “taking a .38 and blowing [Jacobson] away.” Plaintiff further indicated to Dr. Wagner that “she had thought of killing her supervisor prior to the [company] strike and had decided not to when the department was dispersed to other areas to meet the demands of the strike.”
Defendant forwarded a copy of Dr. Wagner’s interim report to plaintiff’s treating physician, Dr. Griffin, and asked if she believed plaintiff posed a threat to Jacobson or others in the workplace. Dr. Griffin responded that she did not feel plaintiff had the ability to carry out her homicidal thoughts referenced in Dr. Wagner’s report, that plaintiff had not expressed similar thoughts during their sessions, and that she did not feel plaintiff was a danger to herself or others in the workplace. Dr. Griffin added that defendant should safeguard plaintiffs confidentiality and that plaintiffs prognosis for returning to work was uncertain because of plaintiffs belief that her coworkers had been informed of her psychiatric treatment. Dr. Griffin ultimately determined that plaintiff had recovered from her disability. When plaintiff returned to work she was terminated. Defendant had made the decision to terminate plaintiffs employment after receiving Dr. Wagner’s report, but delayed firing plaintiff until she returned to work.
Plaintiff filed a request for binding arbitration pursuant to her employment agreement with defendant. Hearings were held before an arbitrator with regard to plaintiff’s claims that her discharge violated the ADA and the HCRA. During the hearing, defendant acknowledged that plaintiff’s statements to Dr. Wagner were the sole reason for plaintiffs termination. At the hearing, plaintiff testified that she did not recall making most of the statements attributed to her in Dr. Wagner’s report; although she did acknowledge calling Jacobson a liar and a bitch. Dr. Wagner testified in a deposition that she would not characterize plaintiff’s statements as “threats,” but rather as expressions of plaintiff’s thoughts. Dr. Wagner also stated that she would defer to the opinion of the treating physician, Dr. Griffin, with respect to whether plaintiff had recovered from her disability or whether she posed any actual threat to Jacobson. Dr. Griffin testified in her deposition that she never reported plaintiff’s homicidal ideation because she did not believe that plaintiff would act on it or that she otherwise posed any threat to Jacobson.
The arbitrator ruled in plaintiffs favor with regard to both claims and ordered that plaintiff be reinstated with back pay to a “comparable, but not identical, position” under a different supervisor and at a different work site if possible. The award added that defendant had the right to satisfy itself that plaintiff did not present a threat to other employees by requiring plaintiff to be examined by another psychiatrist and to continue treatment if necessary. Specifically, the arbitrator found that plaintiff’s statements to Dr. Wagner were products of her psychiatric disability. The arbitrator also found that defendant was aware when it decided to terminate plaintiff’s employment that she suffered from a psychiatric disability that manifested itself in homicidal ideation. Therefore, the arbitrator concluded that defendant’s termination of plaintiff was a violation of both the ADA and the HCRA because defendant was not justified in considering plaintiff to be an unqualified person and did not have a nondiscriminatory basis for termination. On judicial review, the circuit court confirmed the arbitrator’s ruling.
n
On appeal, defendant argues that the trial court erred in affirming the arbitrator’s award because it was premised on an error of law. We agree.
A
The parties’ arbitration agreement included a provision for limited judicial review of the arbitrator’s decision:
The decision of the arbitrator shall be final and binding; however, that limited judicial review may be obtained in a Michigan federal district court or Michigan circuit court of competent jurisdiction (a) in accordance with the standards for review of arbitration awards as established by law; or (b) on the ground that the arbitrator committed an error of law.
We find this judicial review provision to be consistent with the provisions of MCL 600.5001 et seq.; MSA 27A.5001 et seq., and MCR 3.602, which govern “statutory arbitration” awards. See Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 495; 475 NW2d 704 (1991). Under the court rule, a statutory arbitration award may be vacated in limited circumstances, such as where an arbitrator evidences partiality, refuses to hear material evidence, or exceeds powers. MCR 3.602(J)(1); Gordon Sel-Way, supra at 495-497. Arbitrators exceed the scope of their authority “whenever they act beyond the material terms of the contract from which they primarily draw their authority, or in contravention of controlling principles of law.” DAIIE v Gavin, 416 Mich 407, 434; 331 NW2d 418 (1982); Gordon Sel-Way, supra at 496. A reviewing court may vacate an arbitration award where it finds an error of law that is apparent on its face and so substantial that, but for the error, the award would have been substantially different. Gordon Sel-Way, supra at 497. Given these foregoing principles, we find no merit to plaintiffs argument that the parties’ arbitration agreement was invalid to the extent that it allowed judicial review for errors of law. As our Supreme Court stated in Gavin, supra at 433, “If the appellate judiciary has any proper function at all, it is to correct material error.”
B
The gravamen of this appeal requires us to determine whether the arbitrator committed an error of law in ruling that plaintiff was discharged because of her disability, rather than for her homicidal ideation toward her supervisor. Although we do not dispute the arbitrator’s finding of fact that plaintiff’s homicidal ideation was a product of her psychiatric condition, we conclude that the arbitrator committed an error of law in ruling that defendant’s discharge of plaintiff constituted discrimination under the ADA and the HCRA. We hold that plaintiff failed to establish a prima facie case of discrimination under the ADA or the HCRA because her homicidal ideation left her unqualified for employment with defendant and because defendant did not discharge her because of her disability.
The federal ADA and this state’s HCRA have similar purposes and definitions, and utilize similar analyses. Stevens v Inland Waters, Inc, 220 Mich App 212, 216-217; 559 NW2d 61 (1996); Fritz v Mascotech Automotive Systems Group, Inc, 914 F Supp 1481, 1491 (ED Mich, 1996). To establish a prima facie case under the ADA, a plaintiff must demonstrate that (1) she was disabled, (2) she was qualified to perform the essential functions of the job, and (3) her employer subjected her to discriminatory treatment solely because of her disability. 42 USC 12112; Fritz, supra at 1491. Similarly, a prima facie case of discrimination under the HCRA is established where (1) the plaintiff is “handicapped” as defined in the statute, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job or position or is unrelated to her qualifications for employment or promotion, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. MCL 37.1202(1); MSA 3.550(202)(1), MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A); Stevens, supra at 215.
Defendant argues on appeal that, because plaintiff was discharged for her expressed homicidal ideation regarding her supervisor, not because of her disability, it did not act with discriminatory intent. Our review of the current state of the law regarding this issue supports defendant’s argument that a disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee’s disability. See, e.g., Maddox v Univ of Tennessee, 62 F3d 843, 848 (CA 6, 1995) (upholding discharge of a football coach for drunken driving, even though he claimed his behavior was the result of alcoholism); Landefeld v Marion General Hosp, Inc, 994 F2d 1178, 1181 (CA 6, 1993) (upholding discharge of an internist whose misconduct in pilfering colleagues’ hospital mailboxes was claimed to be a result of his mental illness); EEOC v Amego, Inc, 110 F3d 135, 149 (CA 1, 1997) (upholding discharge of nurse who, because of depression, attempted suicide by taking overdoses of prescription medications); Johnson v New York Hosp, 96 F3d 33, 34 (CA 2, 1996) (upholding discharge of hospital employee who claimed that off-duty scuffle with hospital security guards while intoxicated was a result of his alcoholism); Pesterfield v Tennessee Valley Authority, 941 F2d 437, 442 (CA 6, 1991) (upholding discharge of employee whose psychological condition rendered him hypersensitive to criticism and rejection in the workplace). Recently, in Palmer v Cook Co Circuit Court, 117 F3d 351 (CA 7, 1997), the Seventh Circuit Court of Appeals held that an ADA claim failed where the plaintiff had been discharged because of threats she made to her supervisor, not because of her diagnosed major depression/delusional disorder. Chief Judge Posner explained, id. at 352:
There is no evidence that Palmer was fired because of her mental illness. She was fired because she threatened to kill another employee. The cause of the threat was, we may assume, her mental illness. . . . But if an employer fires an employee because of the employee’s unacceptable behavior, the fact that that behavior was precipitated by a mental illness does not present an issue under the Americans with Disabilities Act. The Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge — in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one.
A qualified individual with a disability is one who satisfies the requisite skill, experience, education, or other work-related requirements of the job and who can perform its essential functions with or without reasonable accommodation. 42 USC 12111(8). Simply put, the ADA does not cover all disabled persons, but only those who can perform their jobs’ essential functions with the aid of reasonable accommodation. Indeed, an express provision of the ADA allows employers to defend against a charge of discrimination by establishing certain employee “qualification standards” that are job-related, consistent with business necessity, and accomplished by reasonable accommodation. 42 USC 12113(a). “Qualification stan dards” include “a requirement that an individual shall not pose a direct threat to the health and safety of other individuals in the workplace.” 42 USC 12113(b). “Direct threat” means “a significant risk to the health and safety of others that cannot be eliminated by reasonable accommodation.” 42 USC 12111(3).
Plaintiff argues that defendant impermissibly perceived her as a direct threat to workplace safety, despite the fact that she had never directly threatened her supervisor and despite the opinion of plaintiff’s treating psychiatrist that plaintiff would not act on her homicidal ideation. While we acknowledge the distinction between expressing homicidal thoughts to a psychiatrist in the context of a disability benefit determination and directly threatening a co-worker— given that employees are not generally subject to discharge or discipline for mere thoughts or ideas — we are not persuaded that the distinction is controlling on these facts.
Our research has uncovered two cases that discuss an employer’s response to an employee’s perceived, as opposed to actual, threat against a co-worker. In Layser v Morrison, 935 F Supp 562, 569 (ED Pa, 1995), the plaintiff was employed as a security guard and, while suffering job-related stress and depression, dreamed that he had pointed his revolver at his supervisor’s head. The plaintiff sought professional help, telling a psychiatrist about the dream. The psychiatrist, fearful that the plaintiff posed a serious threat, warned the plaintiff’s supervisor, who repossessed the plaintiff’s revolver and placed him on inactive duty for three months. The plaintiff sued and, on the defendant-employer’s motion for summary judgment, the district court held that the plaintiff’s ADA claim was precluded because, among other reasons, the defendant had submitted sufficient evidence in support of its affirmative defense under 42 USC 12113(b) that the plaintiff “posed a significant risk” to the safety of others. The court stated: “The evidence presented could prove that a threat existed that Layser might have, acting under stress, anger, and depression, shot [his supervisor].” Id. at 569. And, in Vargas v Gromko, 977 F Supp 996, 1002-1003 (ND Cal, 1977), the plaintiff told his doctor that he would have shot his supervisors if he had had a gun. After he was discharged, the plaintiff contended that, because his statement was qualified with the word “if,” it could not be perceived as a real threat because he did not have the instrumentality to carry out the threat. The district court, in dismissing the plaintiff’s ADA claim, concluded: “[A] reasonable trier of fact could not find that, simply because Plaintiff did not possess a gun at the moment he uttered his threat to Dr. Harrison, the threat could not have been perceived as real.” Id. at 1003.
Here, the facts are considerably more compelling than those in Layser or Vargas, supra. Plaintiff’s homicidal thoughts regarding Ms. Jacobson were frighteningly specific and detailed, not vague or isolated. Indeed, plaintiff indicated to Dr. Wagner that her vehement bitterness toward Ms. Jacobson had culminated in a specific plan to Mil her, but that plaintiff had decided not to when a strike intervened. We believe it is clear that employers must be afforded wide latitude to ensure a safe workplace for their employees. Where an employee’s homicidal thoughts about a co-worker are either expressed in the workplace, or otherwise made known to others in the workplace, the law does not require the employer to establish that the employee would affirmatively act on her homicidal thoughts before discharging her. To hold otherwise would, in the words of Chief Judge Posner, “require an employer to retain a potentially violent employee . . . plac[ing] the employer on a razor’s edge — in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone.” Palmer, supra at 352. Thus, we conclude that defendant did not violate the ADA in discharging plaintiff, whom it considered a direct threat to workplace safety.
Finally, we acknowledge that an employer generally has a duty to make “reasonable accommodations” to enable a disabled employee to perform the essential functions of the job, if the employer can do this without “undue hardship.” 42 USC 12112(b)(5)(A). However, the duty of reasonable accommodation applies only where the disabled employee is otherwise qualified for the position. Here, because plaintiff’s homicidal thoughts left her unqualified for continued employment with defendant, we need not further address the issue of reasonable accommodation. In this context, we defer again to Chief Judge Posner, who explained in Palmer, supra at 353:
[W]e cannot believe that this duty [of reasonable accommodation] runs in favor of employees who commit or threaten to commit violent acts. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand. So clear is this that we do not think a remand is necessary to explore the possibilities of accommodation. [Citations omitted.]
See also Williams v Widnall, 79 F3d 1003, 1006 (CA 10, 1996).
The ada’s “qualified” language and the hcra’s “handicapped” language entail largely identical analyses. Fritz, supra at 1491. That is, plaintiff here has failed to meet her burden under the HCRA of establishing that her handicap was unrelated to her ability to perform the duties of her job or unrelated to her qualifications for employment, and that defendant discharged her with discriminatory intent. MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A), MCL 37.1202(l)(b); MSA 3.550(202)(l)(b); Crittenden v Chrysler Corp, 178 Mich App 324, 331; 443 NW2d 412 (1989).
Accordingly, because plaintiff has failed to establish a prima facie case under either the ADA or the HCRA, her claims fail. The arbitrator committed substantial legal error in ruling otherwise; therefore, we vacate the circuit court order confirming the arbitrator’s award.
The circuit court order confirming the arbitrator’s award is vacated.
Plaintiff filed an action in state court to enforce the arbitration award. Defendant answered and filed a counterclaim to vacate the award. A default judgment was erroneously entered against defendant and then set aside. Defendant removed the action to the federal district court, which affirmed the arbitrator’s decision. See Collins v BCBSM, 916 F Supp 638 (ED Mich, 1995). The Sixth Circuit Court of Appeals vacated the district court’s ruling, however, after determining that the federal courts lacked subject-matter jurisdiction over the action. See Collins v BCBSM, 103 F3d 35 (CA 6, 1996). The action was then remanded to the original state trial court, where the parties filed cross-motions for summary disposition, and the circuit court confirmed the arbitrator’s award.
Our holding today is not intended to have a chilling effect on the sanctity of the physician-patient privilege or the psychiatrist-patient privilege. Plaintiff here was not protected by any such privilege in her discussions with Dr. Wagner, because Dr. Wagner was retained by defendant’s benefit plan administrator for the purpose of evaluating plaintiff’s eligibility for continued disability benefits, not for the purpose of treatment. Thus, plaintiff was aware that Dr. Wagner’s report would be forwarded to defendant for review. Moreover, we note that a patient’s threats of violence, made while under treatment, are generally not privileged. Davis v Lhim, 124 Mich App 291, 303; 335 NW2d 481 (1983), on remand 147 Mich App 8, 382 NW2d 195 (1985), rev’d on other grounds sub nom Canon v Thumundo, 430 Mich 326; 422 NW2d 688 (1988). | [
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Gage, J.
This case is before this Court on remand from our Supreme Court for consideration as on leave granted. Professional Rehabilitation Ass’n v State Farm Mut Automobile Ins Co, 452 Mich 857 (1996). Plaintiff appeals an order issued by the circuit court that affirmed a district court order granting summary disposition to defendant. We reverse.
Defendant’s insured, Clifford Lay, was injured in an automobile accident in October 1980. Within one year of the accident, Cherrie Lay was appointed her husband’s guardian. Plaintiff provided extensive medical and rehabilitation services to Clifford. Defendant paid for some, but not all, of the services plaintiff provided. In a letter dated May 27, 1992, defendant denied payment for services plaintiff provided to Clifford on July 11, 1991, August 5, 1991, September 16, 1991, and December 31, 1991. On June 25, 1993, Cherrie Lay assigned Clifford’s rights under the insurance policy to plaintiff. Plaintiff filed suit in the district court on May 12, 1994, seeking to recover the balance due on plaintiff’s account for the four unpaid 1991 service dates.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), alleging that the suit was barred by the no-fault act’s one-year statute of limitations, MCL 500.3145; MSA 24.13145. Plaintiff defended on the basis of the insanity saving provision of the Revised Judicature Act (RJA), MCL 600.5851; MSA 27A.5851, arguing that it tolled the one-year-back provision. Plaintiff further contended that whether Clifford Lay had suffered a condition of mental derangement such that the insanity saving provision applied was a question of fact making summary disposition inappropriate. The district court granted defendant’s motion and dismissed the claim. The court held that the one-year statute of limitations applied because Clifford’s guardian was obligated to bring a lawsuit under the act within one year of her appointment. Plaintiff filed a motion for reconsideration, which was denied by the district court without elaboration, following a brief discussion on the record clarifying that plaintiff had, in fact, filed suit within one year of its receipt of the assignment.
Plaintiff then filed a claim of appeal with the circuit court, which affirmed the dismissal of plaintiff’s claim on the separate ground that no assignment of no-fault benefits is permitted under MCL 500.3143; MSA 24.13143, an argument that had been raised by defendant in its response to plaintiff’s district court motion for reconsideration. The circuit court disagreed with plaintiff’s argument that assignment of past due or presently due benefits, as distinguished from future benefits, was allowed and held that the assignment to plaintiff was void as a matter of law and that dismissal of plaintiff’s claim had therefore been proper.
Next, plaintiff filed an application for leave to appeal to this Court, which this Court denied for lack of merit. Plaintiff’s subsequent motion for rehearing was also denied. Plaintiff then filed an application for leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the matter to this Court “as on leave granted for it to consider whether the circuit court’s opinion that the assignment is void under MCL 500.3143; MSA 24.13143, and whether the district court’s opinion that the tolling provision for insanity was inapplicable because the injured person had a guardian, are clearly erroneous.”
i
On remand, plaintiff first argues that the circuit court erred in holding that an assignment of past due no-fault benefits violates MCL 500.3143; MSA 24.13143. We agree.
This Court reviews grants of summary disposition de novo as a question of law. Smith v Globe Life Ins Co, 223 Mich App 264, 270; 565 NW2d 877 (1997). A motion for summary disposition tests the factual support for a claim to determine whether it can be resolved on an issue of law. Id. at 272. Giving the benefit of reasonable doubt to the nonmovant, the court must determine whether a record might be developed that would result in an issue upon which reasonable minds could differ. Id. All inferences are to be drawn in favor of the nonmoving party. Id. Thus, before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by the evidence at trial because of some deficiency that cannot be overcome. Id.
Statutory interpretation is a question of law also subject to review de novo on appeal. USAA Ins Co v Houston General Ins Co, 220 Mich App 386, 389; 559 NW2d 98 (1996).
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. [Id. at 389-390 (emphasis added; citations omitted).]
The no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq., “was offered as an innovative social and legal response to the long payment delays, inequitable payment structure, and high legal costs inherent in the tort (or ‘fault’) liability system. The goal of the no-fault insurance system was to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses.” Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978). An insurer is hable to pay personal protection insurance 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 the no-fault act. MCL 500.3105(1); MSA 24.13105(1). The act itself fur ther notes that statutory benefits “are payable as loss accrues,” MCL 500.3142(1); MSA 24.13142(1), and that 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.” MCL 500.3142(2); MSA 24.13142(2).
The statute at issue, MCL 500.3143; MSA 24.13143, provides in full: “An agreement for assignment of a right to benefits payable in the future is void.” We believe that this statutory language is “clear and unambiguous.” USAA Ins Co, supra at 389. Under the plain language of the statute, “a right to benefits payable in the future” is distinguishable from a right to past due or presently due benefits. Keeping in mind our duty to discern and effectuate the intent of the Legislature, we believe that if the Legislature had intended to prohibit the assignment of all rights, it would not have included the word “future” in the language of the statute. The Legislature is presumed to have intended the meaning that a statute plainly expresses. Institute in Basic Life Principles, Inc v Watersmeet Twp (After Remand), 217 Mich App 7, 12; 551 NW2d 199 (1996).
Having found that the statute serves only to ban the assignment of benefits payable in the future and not those that are past due or presently due, we must determine whether the assignment in question purports to assign only past due and presently due benefits or whether it purports to assign future benefits as well. We could locate only one published opinion that interprets this provision in terms of an assignment to a medical provider, and that is the opinion cited by the circuit court in support of its dismissal of plaintiff’s claim. In Aetna Casualty & Surety Co v Starkey, 116 Mich App 640; 323 NW2d 325 (1982), the parent of an injured child assigned to a hospital no-fault insurance benefits due from an insurer. Although plaintiff argues that the assignment in Aetna was executed before the provision of any services and by its terms applied to future benefits, the opinion does not make this point clear. This Court described the language of the assignment as purporting to assign “any insurance benefits from Aetna which would become due and payable,” id. at 642, or as “any benefits which would become payable.” Id. at 646. By its own language, the Aetna assignment dealt with benefits that “would become” payable, and this Court held that this prior assignment of personal protection benefits to a medical provider was void under MCL 500.3143; MSA 24.13143. However, this Court did not hold that any assignment of benefits, including those past due or presently due would be invalid.
The assignment in the present case provided for
all of Clifford Lay’s rights to be reimbursed or to have counseling services expenses paid by State Farm Mutual Automobile Insurance Company and any other insurer or self-insurer for services provided by Professional Rehabilitation Associates in connection with injuries to Clifford Lay arising out of an automobile accident.
We find the language of the assignment somewhat ambiguous. On the one hand, the assignment states “ah of Clifford Lay’s rights,” which connotes both past and future benefits. On the other hand, it refers to “services provided” in the past tense. To the extent that the assignment can be read as assigning future benefits, that part of the assignment is void as a matter of law. MCL 500.3143; MSA 24.13143. This holding does not abrogate the entire assignment, however. The failure of a distinct part of a contract does not void valid, severable provisions. Samuel D Begola Services, Inc v Wild Bros, 210 Mich App 636, 641; 534 NW2d 217 (1995). The primary consideration in determining whether a contractual provision is severable is the intent of the parties. Id.
In the present case, the assignment was made only after defendant had denied coverage for four specific service dates. Moreover, plaintiff sought recovery only for the specific service dates already denied by defendant. We conclude that the parties intended to assign Clifford Lay’s right to recover payment for these past due benefits. To the extent that the parties purported to assign Clifford Lay’s right to recover payment for those past service dates and therefore past due or presently due benefits, MCL 500.3143; MSA 24.13143 does not invalidate the assignment. The circuit court therefore erred in affirming the district court’s grant of summary disposition to defendant on the ground that the assignment of benefits to plaintiff was invalid.
n
Plaintiff also argues that the district court erred in holding that the insanity saving provision of MCL 600.5851; MSA 27A.5851 was inapplicable because Clifford Lay had a court-appointed guardian who was obligated to file a lawsuit under the no-fault act within one year of her assignment. We agree.
The no-fault statute of limitations, MCL 500.3145; MSA 24.13145, provides in pertinent part:
(1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.
Were it not for the saving provision of the Revised Judicature Act, we would hold that plaintiff’s claim was time-barred. However, the general saving provision of the Revised Judicature Act applies to all causes of action created by Michigan statutes even when the statute creating the right contains its own limitation period. Rawlins v Aetna Casualty & Surety Co, 92 Mich App 268, 277; 284 NW2d 782 (1979). The saving provision applies to actions for the recovery of personal protection insurance benefits under the no-fault act. Geiger v DAIIE, 114 Mich App 283, 290-291; 318 NW2d 833 (1982). MCL 600.5851; MSA 27A.5851 provides in pertinent part:
(1) Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852.
(2) The term insane as employed in this chapter means a condition of mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know and is not dependent on whether or not the person has been judicially declared to be insane.
Defendant argues, and the district court apparently agreed, that the appointment of a guardian for Clifford Lay constituted removal of his disability, and that Cherrie Lay thus had the responsibility to file a lawsuit for the collection of the disallowed payments within one year of her appointment as Clifford’s guardian. We disagree. In Paavola v Saint Joseph Hosp Corp, 119 Mich App 10; 325 NW2d 609 (1982), this Court held that the appointment of a guardian for a mentally incompetent person is not a removal of the disability under MCL 600.5851(1); MSA 27A.5851(1). “Periods of limitation, therefore, do not begin to run against insane persons upon such appointment.” Paavola, supra at 14. The disability saving provision provides that an individual mentally incompetent at the time a cause of action accrues may file the claim before the applicable limitation period runs after the disability is removed. Calladine v Dana Corp, 679 F Supp 700, 702 (ED Mich, 1988). The period does not begin to run with the appointment of a guardian on behalf of a mentally incompetent person. Id.
Thus, in response to the Supreme Court’s directive on remand and to plaintiff’s argument on appeal, we find that the district court erred in holding that the one-year-back rule barred the claim in the present case because Clifford Lay’s guardian had not filed suit within one year of appointment. Whether Clifford Lay had a condition of mental derangement such that the insanity saving provision applies is a question of fact that also rendered summary disposition inappropriate and must be determined on remand to the district court.
We note that defendant appears to concede this issue on appeal and contends that if plaintiff had demonstrated to the district court that it commenced its action within one year of its assignment, the lawsuit would not have been barred by the one-year-back rule. Contrary to defendant’s claim that plaintiff never made the assignment a part of the district court record, we note that the assignment was attached as an exhibit to plaintiff’s brief in opposition to defendant’s motion for summary disposition in the district court and was thus part of the record below. Moreover, we note that an assignee stands in the shoes of the assignor and acquires the same rights as the assignor possessed. First of America Bank v Thompson, 217 Mich App 581, 587; 552 NW2d 516 (1996). Therefore, plaintiff stands in the shoes of Clifford Lay and possesses whatever right Clifford would have to collect past due or presently due benefits from defendant.
We find that the district court erred as a matter of law in granting summary disposition to defendant, and the circuit court erred in affirming the grant. We therefore reverse the circuit court’s order affirming the district court’s order, and we remand to the district court for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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McDonald, J.
The defendant seeks a review of her conviction on a charge of being a common prostitute. Her principal complaint of error relates to the refusal of the trial court to grant a continuance in order that she might have time to subpoena her witnesses and to prepare for trial.
The conceded facts show that she was arrested in the early morning of November 24, 1927. She was arraigned in the forenoon of the following day in the recorder’s court of the city of Detroit. After plea, her attorney demanded a jury trial and asked for an adjournment to give him time to subpoena witnesses and prepare for trial. His request was refused and she was immediately placed on trial. At 4:30 p. m. of the same day the jury announced a disagreement and was discharged. The defendant again requested a continuance of a few days. This request was denied, and the second trial, which resulted in a conviction, was begun on the following morning.
The question is whether the trial judge abused his discretion in refusing the defendant’s application for a continuance.
“Every person accused of crime and his counsel are entitled' to a reasonable time in which to prepare for a trial after an accusation of crime is made; and a failure to afford this right is neither consonant with a sense of justice nor a fair and impartial administration of the law. What is a reasonable time is to be determined from all the facts and circumstances of the case and must be left largely to the discretion of the trial court, subject to review for abuse thereof.” 16 C. J. p. 449.
There was very little testimony that could be produced on either side of the issue in this case. The people relied on the testimony of a man who followed the defendant into her home at 1 o’clock in the morning, and who testified that he there had sexual intercourse with her for which he paid her three dollars. She was a witness on the trial. She admitted the man: was in her rooms at that time, but denied the act of intercourse. In addition to her testimony, she produced several character witnesses, but she now says that, by refusing á continuance' of the case, the trial court deprived her óf the testimony of two other witnesses. What these witnesses would have testified to if they had been sworn she does not state. In her application for a continuance, she did not inform the court what she proposed to show by these witnesses. Whether their testimony would be competent or material to the issue, or whether their attendance could be procured if a continuance were granted, was not shown.
In view of these facts, though her case was disposed of with unusual dispatch, we are of the opinion that, in refusing a continuance, the trial court did not abuse its discretion. People v. Mason, 63 Mich. 510; People v. Burwell, 106 Mich. 27; People v. Berridge, 212 Mich. 576; People v. Mascz, 226 Mich. 187.
The judgment of conviction is affirmed.
Fead, C. J., and North, Fellows, Wiest, Clark, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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Potter, J.
Plaintiff brings certiorari to review an order of Judge Fred S. Lamb, sitting in the Wayne circuit court, committing him for contempt. One Greenberg, doing business as the West Side Wall Paper and Paint Store, December 16, 1926, in consideration of the sum of $1,367 to him in hand paid by Jacob Cohn, made,. executed, and delivered to Cohn a commercial chattel mortgage covering the property in the store, and covenanted and agreed he would not remove the property covered by the mortgage or any part thereof except in the ordinary course of retail business from the store then occupied, without the written consent of said Cohn to be indorsed on the chattel mortgage. September 21, 1927, the parties to the mortgage got together and Cohn agreed to accept $950 in full settlement. After this, Greenberg went to a firm of lawyers in Detroit, of which plaintiff was a member. Greenberg filed a bill, Rubin acting as his attorney, for an injunction in the Wayne circuit court, in chancery, restraining Cohn, his counselors, solicitors, attorneys, and agents under a penalty of $10,000 from interfering with the quiet and peaceful possession by Greenberg of his store and from interfering with his business or from ejecting him or attempting to eject him from his store. The bill of complaint alleged the chattel mortgage was paid. Rubin assisted Green-berg in removing the personal property from the location where it was mortgaged. Cohn, through his attorneys, then filed a petition to commit Greenberg and Rubin for contempt for misuse of judicial process.
October 15, 1927, the court made an order fining Greenberg $50, and directing Greenberg and Rubin to return the property which had been removed from the store where it was located when mortgaged. About $1,700 worth of property was taken from the store. Greenberg and Éubin returned approximately $100 worth. A further petition was filed by Cohn asking that Greenberg and Rubin be committed for contempt. They appeared and answered, but before the case was finally disposed of Greenberg paid the fine imposed and Greenberg and Rubin returned the property. The order of the court having been complied with, the question here is a moot one. The writ is therefore denied.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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McDonald, J.
This is a suit to foreclose a trust mortgage given by Lew W. Tuller and wife to the Security Trust Company of Detroit, Michigan, to secure a bond issue of $1,150,000. The mortgage pledged real estate and buildings comprising two hotel properties in the city of Detroit. The hotels were not furnished when the mortgage was executed, but by its terms it covered after-acquired furniture, furnishings, and equipment used in the buildings. On June 10, 1925, the furniture and furnishings had been put in. The trust instrument was then filed with the city clerk as a chattel mortgage. It had been previously recorded in the office of the register of deeds in Wayne county. No affidavit of renewal was filed with the city clerk until March 8, 1928. During the period that the Security Trust Company was in default for failure to file the renewal affidavit, the Tullers sold the premises and personal property to the Properties Company, a Delaware corporation, and this corporation sold to the defendant the Dickinson Island Land Company. Mr. Tuller was the principal stockholder of the Properties Company, and the defendant Berman is a stockholder and director of the Dickinson Island Land Company. In the latter purchase, Mr. Berman carried on the negotiations for himself and his company. As a result of the transaction, he became the owner of one-third and the Dickinson Island Land Company of two-thirds of the premises and personal property covered by the trust mortgage. There was default in the payment of principal, interest, and taxes under the terms of the mortgage. The trustee declared all the bonds immediately due and payable, and filed this bill to foreclose thé mortgage. On the hearing there was no contest except as to the furniture and furnishings contained in the hotel buildings. It was the contention of Mr. Berman-and the Dickinson Island Land Company that they purchased the property without any notice or knowledge ¿hat the furniture and furnishings were covered by the mortgage. The trial judge accepted their view of the case, and denied the right of the trustee to include the furniture and fixtures in its foreclosure. The plaintiff has appealed.
The only question involved is whether the defendants purchased the furniture and furnishings with knowledge or notice that they were subject to the lien of the trust mortgage.
The claims of the parties, as stated in their briefs, are as follows:
“The plaintiff does not claim that the defendants had constructive notice that the trust mortgage covered the personal property, i. e., that the mortgage was filed as provided for by statute. The plaintiff believes it is not necessary to go into the question whether the defendants had actual knowledge — were actually conscious of the fact that the mortgage covered the personalty before they closed the deal. But the plaintiff does claim that these defendants had actual notice that the mortgage covered the personalty; i. e., that there are certain facts that are conceded and admitted by the defendants to be true from which, as a matter of law, the defendants are charged with notice that the mortgage covered the personalty.”
The defendants say:
“We will concede that the defendants’ knowledge of the existence of the trust mortgage bound them to all the terms, conditions, and covenants contained in said mortgage, whether or not the defendants actually knew of the various terms, conditions, and covenants. We claim, however, that a chattel mortgage on furniture and furnishings is not a necessary part of a trust mortgage on real estate and that defendants’ knowledge of the existence of the real estate mortgage did not fix upon them notice of the chattel mortgage clause contained therein.”
It will be noted that there is no disagreement between the parties as to the effect of recording with the register of deeds this mortgage covering both realty and personalty. Whether or not the defendants knew of the mortgage, the fact that it was recorded was constructive. notice to them that real estate was mortgaged, but was no notice that it covered personal property. And, no renewal affidavit having been filed with the city clerk, as required by statute, the filing of the mortgage there did not charge the defendants with notice that the furniture and furnishings were pledged. It will also be noted that there is no claim that defendants had any express notice or actual knowledge of the existence of the chattel mortgage. So that, if they are to be charged with notice, it must be because of their knowledge of some facts or circumstances sufficient in law to put them on inquiry or which in themselves amount to actual notice that the furniture and furnishings were covered by the trust mortgage. We find such facts in the preliminary agreement between defendant Berman and the Properties Company and in the abstracts which were examined by Berman’s counsel.
The preliminary agreement for the purchase of the property by the Dickinson Island Land Company was signed by Mr. Berman. He was acting for himself and the company. The agreement recites the sale to Berman of the two hotel properties “together with all the personal property, fixtures and equipment therein,” after which is the following statement:
“The foregoing properties and personal property therein are free and clear of all liens and incumbrances, excepting a mortgage to the Security Trust Company in amount of one million one hundred fifty thousand ($1,150,000) dollars.”
This language either means that both the real estate and personal property were covered by the mortgage to the Security Trust Company or leaves it uncertain as to whether the personal property was included. • If it be construed to mean that both were included, Mr. Berman had actual .notice that the furniture and furnishings were covered by the trust mortgage. If there is any uncertainty about it, he was bound to make inquiry, to examine the mortgage and ascertain the facts-. He-saw a copy of the mortgage but did not examine it. He testified:
“I saw a copy of it. I did not read it. I saw a copy of it, I think, Mr. Marks just showed me — I did not read through it at all.
“Q. When was that?
“A. That was the day before the deal was closed or the day the deal was closed.
“Q. You saw a great big thick printed pamphlet?
“A. Thick book, but I didn’t read it.
“Q. You didn’t know what was in it?
“A. No.”
The fact that the trust mortgage was in a “big thick pamphlet” was no excuse for failure to examine it. It was printed, and it would have been an easy matter for a man of Mr. Berman’s wide business experience and familiarity with trust mortgages to have turned to that portion which showed what property was covered. He knew at least that it covered a portion of the property which he was buying. He had information from the preliminary agreement sufficient to put an ordinarily prudent business man on inquiry. Good faith required that he examine the mortgage when he had the opportunity to do so.
“To constitute good faith, there must be an absence * * * of knowledge or even notice * * * of facts and circumstances calculated to put an ordinarily prudent business man on inquiry, so that he would-ascertain the truth.” 8 Am. & Eng. Enc. Law (1st Ed.), p. 841, approved in Austin v. Hayden, 171 Mich. 38, 54 (Ann. Cas. 1915B, 894).
From the recitals in the preliminary agreement, it might in truth be said that Mr. Berman had actual knowledge that the furniture and furnishings were subject to the trust mortgage, but at least he had actual notice sufficient in law to put him to inquiry beyond asking Mr. Tuller if they were incumbered.
Further evidence of notice is found in the abstracts of title which were examined by defendants’ attorney. Notice to the attorney was notice to the client. Littauer v. Houck, 92 Mich. 162 (31 Am. St. Rep. 572).
There were three abstracts. The entries on the abstract of the-trust mortgage which the attorney says he read described the real estate covered by the mortgage and followed with the words, “and personal property. Also other land.” The abstract of the conveyance to the Properties Company, the defendants’ grantor, specifically described the personal property conveyed, including the furniture and furnishings. Immediately following in the same paragraph of the entry was the following:
“Subject to the lien and obligations of or contained in the certain indenture or trust mortgage hereinafter mentioned securing an issue of $1,150,000, 6%% 1st mortgage serial gold bonds, and which said mortgage and the bonds secured thereby the party of the second part assumes and agrees to pay as hereinafter provided.”
In the paragraph which follows, it was stated:
“Subject to a Certain trust mortgage * * * recorded in the office of the register of deeds of Wayne county, Michigan upon May 7, 1924, in liber 1164 of mortgages at page 181.”
The attorney admits that he read these entries, but says that he supposed “personal property” meant “miscellaneous building equipment.” There was no ground for any such supposition. The fact was that all the personal property including the furniture and furnishings was subject to the trust mortgage. The abstractor intended to convey that information, but the necessity for abbreviated entries forces the use of general terms. When the attorney saw that personal property in these hotels was incumbered, it was his duty to examine the mortgage to see if the personal property his client was buying was included.
It is apparent from the opinion of the circuit judge that he was influenced by the testimony of the attorney that he had no knowledge the furniture and furnishings were covered by the mortgage. It is not a question of knowledge. It is a question of actual notice. The notice bound him to ascertain the facts by an examination of the mortgage. Had he done so, he would have obtained the knowledge which he says he did not have.
It is our conclusion that the recitals in the preliminary agreement and the entries in the abstracts gave the defendants information which made it incumbent on them to make inquiry to ascertain if the personal property they were purchasing was covered by the trust mortgage. They are chargeable with what they would have learned had they made such inquiry. In this view of the case, it must be held that the defendants purchased the furniture and furnishings subject to the plaintiff’s mortgage.
Under authority of the trust mortgage, the circuit judge in his decree allowed the plaintiff, trustee, the sum of $6,000 as an .attorney fee for preparing and trying the case in the circuit court; and a further allowance is asked for appealing to this court. This litigation is the result of the plaintiff’s failure to file an affidavit of renewal with the city clerk as required by statute. To compel the bondholders to bear the expense incurred because of the trustee’s carelessness makes no favorable appeal to the conscience of the court.
In respect to the finding that the trust mortgage covering the furniture and furnishings is subject to the rights of the defendants Berman and the Dickin son Island Land Company the decree of the trial court is reversed. In all other respects, it is affirmed. ' A decree will be entered in this court in accordance with this opinion. The plaintiff will have costs.
Fead, C. J., and North, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred.' | [
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North, J.
In October, 1926, John L. McCord, the appellee herein, filed a petition in the probate court of Wayne county, in which he asked to have a guardian appointed of the person and estate of his mother, Dora McCord. Mrs. Mabel Gilmore, a daughter and the only other living child of Mrs. McCord, signed a waiver of notice of the hearing, and in effect joined in the petition. Service was made on Mrs. McCord. On the day set for hearing, the petitioner appeared in support of the application, and, there being no opposition thereto, Dora McCord was found to be an incompetent, and the Security Trust Company was appointed guardian of her person and property. About a month later the daughter, Mrs. Mabel Gilmore, filed a petition in the probate court asking that the order appointing the guardian be set aside. In her petition she recited that she consented to the former proceedr ing “through inadvertence.” After proper notice this second petition was brought on for hearing, Mrs. McCord was found mentally competent, and the former order appointing the guardian was set aside and vacated by the probate judge. The defendant herein, John L. McCord, appealed from the order of the probate court to the circuit court, the case was tried by a jury, and Mrs. McCord was there found to be incompetent.. Thereupon judgment was entered as follows:
“That said Dora McCord be adjudged mentally incompetent to have the care, management, control and custody of her person and property and that the Security Trust Company, guardian of said Dora McCord, be and is hereby continued.”
The alleged incompetent has brought the case to this court by writ of error.
Mrs. Dora McCord was the wife of Charles McCord. They lived together as husband and wife for nearly 50 years, and accumulated a substantial amount of property, which consisted mainly of three apartments in the city of Detroit of the value of $55,000 or more, which produced a gross income varying from $1,000 to $1,200 per month; and of real estate in the city of Toledo, Ohio, of substantial value. Mr. and Mrs. McCord held title to the Detroit properties as tenants by entirety. He died on the 20th of August, 1926. There is some uncertainty in the record as to the age of Mrs. McCord, but she was between 65 and 69 years of age at the time of her husband’s death. Loretta Dougherty is the granddaughter of Mr. and Mrs. Charles McCord, being the daughter of Mrs. Mabel Gilmore. Loretta was 18 years of age at the time of her grandfather’s death/ Her father died when she was about two years old, and from that time on she lived with her grandparents, and was practically brought up by them as their own child. It is the claim of Mrs. Dora McCord it was her husband’s desire that the Detroit property should be given to Loretta. About a month after her husband’s death Mrs. Dora McCord and Loretta went to the office of a real estate man who prepared three deeds, by which Mrs. Dora McCord conveyed to Loretta the three parcels of Detroit real estate. It appears from the record that Mrs. McCord supposed a provision was put into each of these deeds whereby she reserved a life estate in the property conveyed. This was not done; and it is now claimed, in explanation of the transaction, that the scrivener who prepared these deeds recommended that Mrs. McCord go to a lawyer to have the proper papers prepared for the purpose of securing a life estate to her. There is some testimony that the scrivener also suggested that Loretta should make a will in favor of her grandmother so that in the event of Loretta’s death before that of the grandmother, title to the property would again be vested in Mrs. McCord. Neither the will nor the papers relative to the life estate were prepared; but this is explained by the fact that there was delay in securing for the attorney who was to prepare these papers the descriptions of the parcels of land involved. Two of the above mentioned deeds were recorded, but the remaining deed had not been made a matter of record before the guardianship proceedings were instituted.
John McCord resided in New York; he was 42 years of age at the time of the trial, and he claims because of being summoned by long distance telephone by his mother he came to Detroit, October 15, 1926. Immediately upon his arrival he learned of the making of the deeds to Loretta. There is some conflict in the testimony as to just what happened, but there is proof that Loretta destroyed the one unrecorded deed, and that she executed two other deeds by which she attempted to reconvey the property to her grandmother. This was brought about by the rather vigorous insistence of John McCord. In the discussion of this matter between John and his mother, she insisted at first that she had not conveyed the property, and she at all times insisted that she had reserved to herself a life estate. As the result of these transactions John McCord made the application first above mentioned to have his mother declared incompetent and have a guardian appointed of her person and property.
It is insisted by Mrs. McCord and the daughter, Mrs. Mabel Gilmore, that they misunderstood the purport of the guardianship proceeding, and that they were misled and deceived by John into the belief that it was merely an application to have a trustee appointed to take charge of Mrs. McCord’s property during the time she was to be absent on a proposed trip to Florida with her son, John. As soon as Mrs. McCord became aware of the fact of her having been adjudicated an incompetent, she evidently protested against the same, and the matter took the course hereinbefore indicated.
The bill of exceptions presents five assignments of error, as follows:
1. The court erred in overruling the objection made by Mr. Baird, attorney for the plaintiff, to the following question:
“Q. Would certain whims, violent' changes in emotion; a certain change from being pleased and. pleasant to a fit of rage or anger be taken into consideration?”
This question was propounded on cross-examination to a psychiatrist, who had testified in behalf of the plaintiff as an expert witness. The question was asked relative to forming a professional opinion as to incompetency, and was answered in the affirmative; and clearly there was no error in permitting the question and answer to stand in the record.
2 and 3. Assignments of error 2 and 3 refer respectively to each of two hypothetical questions asked on direct-examination of expert witnesses produced by the defendant. Each of these questions covers substantially two and one-half pages of the printed record, and it would serve no good purpose to repeat them here. Notwithstanding the assignment of error as to one of these questions, the record discloses that no objection whatever was made in the trial court to its being propounded or to the answer made thereto. Assignments of error not based on a record made in the lower court cannot be considered. As to the other hypothetical question, the objection which the trial court overruled is as follows:
“Mr. Baird. Object because the hypothetical question is not based on a set of facts. My brother has said — I can only remember a few. He says that this mother had been in the habit of counseling and advising with her son. As a matter of fact the mother testified that she never consulted with her son; in fact he came to her for advice. I will also say that on the question of inability of the mother to identify the deeds, it was due to the fact that she did not have her glasses; she did not look at the deeds carefully.”
Before this question was propounded the son had testified to frequent occasions on which his mother had advised and consulted with 'him about her business affairs; and further he said: “All my life she has asked my advice on different matters.” It was therefore perfectly proper to embody this as one of the assumed facts in the hypothetical question notwithstanding the mother had denied the same. In re Rosa’s Estate, 210 Mich. 628; Duffy v. Charters, 180 Mich. 572. There is nothing else in the objection as made which is in any way meritorious or even in the form of a valid objection, and therefore the trial court was justified in overruling the same.
4 and 5. The principal question involved is covered by assignments 4 and 5, in which it is asserted that there is “no evidence in said cause that the plaintiff was an incompetent person within the meaning of the law;” and “that the verdict was in violation of the charge of the court as to the law governing the question of ■ incompetency.” Without attempting a full resumé of the testimony bearing upon the question of Mrs. McCord’s incompetency, it will appear from the following references to the testimony that it was clearly a question of fact for the jury: There is proof that Mrs. McCord insisted even at the trial of this case that she had reserved a life estate'to herself in the deeds to Loretta. Unquestionably this, was not true. She positively denied her signatures on certain deeds, and shortly thereafter acknowledged them to be her signatures. There is also evidence that about a week after her husband’s death she agreed with her son that a Mr. Stewart should have charge of collecting the rentals from the Detroit property, but within one or two days she refused to allow him to perform this service. Her son, John, testified that when he came to her home on or about the 15th of October, 1926, she did not recognize him; and he further said that his mother thereupon started raving and saying, “whatever I did, I did of my own free will; whatever I done I done it of my own free will.” The son claimed at that time his mother insisted that she had not deeded away any of her property but that she still owned it all; but when he finally informed ,her that she had deeded it away without reservation she stated that she wanted it deeded back to her. The son also testified that about this time on an occasion when a picture dropped from the wall, his mother said, “There, that was your father warning me in regard to the property;” and at another time after her husband’s death she thought she heard a noise and said to her son, “That was your father in the bedroom counting that money,” and, upon being asked what money, she said, “When your father died he had three sacks of money that high (indicating). I walked in and seen him counting it.” John also testified that on one occasion Loretta said her grandfather came to her bedroom the night before and sat on her bed and talked with her all night; and thereupon Mrs. McCord said, “I wish I could have talked to him.” John also testified that his mother told him that she could always see him coming on the train when he was on his way to Detroit from New York; and further he testified that in his mother’s presence Loretta said to him, “I had to hide all the belladonna and aconite in the house because grandma wanted to commit suicide.” John also testified that his mother wanted him to kill the husband of one of her deceased daughters because she thought he had misused her daughter during her lifetime, whereas there was no foundation whatever for this delusion; and further that because of some difference with a Mr. Stewart, his mother said, “I am going to have the little Italian peddler kill him; he will kill him for $200.” Other instances of like character might be cited from the record. Practically all of this testimony given by John was denied by his mother or some other witness; and it must be admitted that one gets the impression from reading the record that much of John McCord’s testimony is rather incredible. Notwithstanding this, taken in connection with other corroborating testimony, it clearly presented an issue on this phase of the case for the determination of the jury. No complaint is made in the record about the charge of the court as given to the jury; and the verdict cannot be said to be in violation of the law as therein stated.
Except as it is a necessary inference included in counsel’s fourth assignment of error that there is “no evidence that the plaintiff was an incompetent person,” there is no claim that the verdict was contrary to the weight of the evidence. The sole issue in this case was the mental competency of Mrs. McCord. She, as well as the other witnesses, was before the trial court in giving her testimony; and therefore the circuit judge had an opportunity not afforded to this court to form a judgment as to whether the verdict was against the weight of the evidence. For this reason this case is peculiarly of the type wherein the contention that there is no proof to support the verdict or that the verdict is contrary to the great weight of evidence is primarily a question for the trial court. Barger v. Bissell, 204 Mich. 416. Notwithstanding this, the appellant did not make a motion for a new trial before perfecting her appeal. This is regrettable, because the reading of her testimony from the printed record produces a rather strong conviction of her mental competency. But the trial judge denied the appellant’s motion for a directed verdict at the close of the proofs, thereby ruling that the case presented an issue of fact arising from conflicting testimony as to Mrs. McCord’s competency. The verdict having been adverse to Mrs. McCord, and a motion for a new trial not having been made, we cannot consider the question as to whether the verdict was against the weight of evidence. Clarke v. Case, 144 Mich. 148; Truesdell v. Railroad Co., 225 Mich. 374; Taylor v. Goldsmith, 228 Mich. 259; Kauf man v. Kaufman’s Estate, 230 Mich. 388; Bishop v. Shurly, 237 Mich. 76. In a recent decision, Justice Fellows has reiterated the proposition of law applicable here, as follows:
“The fact that we would have reached a different conclusion than the jury is not controlling. We should set aside a verdict, and only set one aside, when it is against the overwhelming weight of evidence.’ McConnell v. Elliott, 242 Mich. 145.
We are reluctant to do so, but we feel constrained to hold that, under the record presented to this court, the verdict must be allowed to stand.
The judgment of the circuit court is affirmed, with costs to the appellee.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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FEAD, C. J.
Defendants are stockbrokers in the city of Detroit. On November 15, 1921, plaintiff opened an account with them. He deposited 11,500 shares of Eureka Croesus stock as collateral for the purchase of an additional 4,500 shares on margin at 46 cents per share. The stock rapidly depreciated in price. Plaintiff appreciated that the stock was volatile, and on November 21, 1921, voluntarily and without call from defendants deposited with them 200 shares of Utility Compressor stock, and on November 26, 1921, $800 in cash as additional collateral to protect his account. The Eureka Croesus stock was then selling at about 30 cents per share. The price continuing to decrease, on January 14, 1922, the defendants, without notice to plaintiff, sold 16,000 shares of his stock' at 18 cents to 19 cents per share to pay his debt to them of about $2,800.
Two days after the sale plaintiff demanded of defendants that they reinstate his account, and upon their refusal he commenced this suit for the value of the stock and money he had pledged with them, upon the theory of conversion. The case was tried before the court without a jury, and defendants had judgment. Plaintiff recognized defendants’ right to sell his stock to protect themselves, but his claim was that in arranging the account it was agreed between himself and defendants that he would furnish further collateral whenever defendants should call for it. This action is founded upon the theory that the sale amounted to a conversion because defendants sold without notice to him and demand for further margins. Defendants’ claim was that:
“I told Mr. Stibbard that under the terms of our contract, which is sent out on all invoices, that he must abide by them and live up to them without a call from us for margin. It was up to him to watch his margin at all times and come in when it was necessary, as he knew it would be.”
The invoices received by plaintiff contained, in small print, the provision that defendants could sell, for their . protection, at any time and without notice or demand for margin. Plaintiff said he had not read this clause.
In his findings of fact the court found that the defendants’ version of the agreement for additional margins and sale was established. This finding was sustained by the testimony. Consequently defendants had authority to sell plaintiff’s stock without notice to him to protect themselves on his account.
Plaintiff further urged that the total value of his pledged property in defendants’ hands was $4,884 and his debt to defendant $2,859.32, and, because of the discrepancy, the margin was ample and the sale was not justified. Two thousand dollars of this margin was represented by 200 shares of Utility Compressor stock. The evidence of value of the Utility Compressor shares was - based upon subscriptions taken by the corporation in a sales campaign in which it was trying to finance itself by sale of shares. It was not shown that there was a market for this stock.
It is well known that the margins required by brokers vary with the character of the securities dealt in, the state of the general and particular market, and other factors. There was no testimony from brokers or others familiar with the business to indicate that the margin remaining at the time of sale was sufficient, according to recognized custom, to require defendants to continue the account. In’the absence of such testimony, the court cannot say that defendants’ action was not justified.
In view of the findings of the circuit court and their legal effect, it is not necessary to discuss plaintiff’s other assignments.
The judgment is affirmed.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
Defendant Mara-Rickenbacker Company, a corporation dealing in second-hand automobiles, acquired by purchase an automobile registered in Ohio. On August 25, 1926, the defendant dealer sold the car to defendant Pushkin, who paid for it and accepted delivery. Pending receipt of certificate of title and of registration in this State, and that Pushkin might use the car, the dealer loaned him a set of its license plates which were put on the car. On August 27, 1926, while Pushkin was driving the car, having on it license plates of the dealer, it collided with plaintiff’s car to plaintiff’s damage, which was caused by Pushkin’s negligence. The declaration, as amended, may be said to be against both of the above defendants. The dealer alone defended. Tried without a jury, there were findings and judgment for plaintiff, and defendant dealer.brings error.
Plaintiff contends that although the defendants made a bargain, the price was paid and accepted, and the car was taken and delivered, there was no sale, because certificate of title had not passed; that the car still was owned by the dealer, who, therefore, was liable, having consented to Pushkin’s driving it for “sale or demonstration purposes;” citing section 11, Act No. 287, Pub. Acts 1925.
Appellant urges that there was a sale, that Pushkin was the owner of the car at the time of the accident, and that the use, though illegal, of the dealer’s license plates, had no causal relation' to the accident,' and that it, therefore, is not liable. If Pushkin was the owner of the car at the time of the accident, the dealer is not liable here for the reason that its license plates, loaned to and used by Püshkin, neither caused'nor contributed to cause the accident, had no causal relation to it. Spencer v. Phillips & Taylor, 219 Mich. 353; Beebe v. Hannett, 224 Mich. 88; Janik v. Ford Motor Co., 180 Mich. 557 (52 L. R. A. [N. S.] 294). This rule is supported by the great weight of authority. 16 A. L. R. 1108, note, and 35 A. L. R. 62, note.
If the dealer owned the car at the time in question, it follows on the facts here that it consented to Pushkin’s driving it, and therefore, under a statute of this State, the dealer is liable. Act No. 287, Pub. Acts 1925, § 29.
The decisive question is, Which of the defendants owned the car? Is the sale void for the dealer’s violation of the statute (section 3, Act No. 46, Pub. Acts 1921, as amended by Act No. 16, Pub. Acts 1923) in failing to deliver to Pushkin
“an affidavit of conveyance or assignment in such form as the secretary of State shall prescribe, to which shall be attached the assigned certificate of title received by such dealer.”
By section 4 of Act No. 46, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 4832 [15]), it was a crime punishable by fine or imprisonment or both to sell a motor, vehicle without complying with the provisions of section 3 above quoted from. The legislature provided penalty for such violation, fine or imprisonment or both. It did not expressly provide that the sale or transfer without such compliance be void or fraudulent. If the courts are to add such penalty, further than that specifically given by the legislature, it must clearly appear from the statute that the legislature so intended. See Dunlop v. Mercer, 156 Fed. 545, and 13 C. J. p. 422.
Among other things, the title of Act No. 46, Pub. Acts 1921, declares its purpose “to regulate purchase and sale or other transfer of ownership” and “to facilitate the recovery of motor vehicles * * * stolen.” The act is designed to discourage and to prevent stealing of automobiles, to protect the public against crime. It states definitely a rule of sale or transfer of automobiles, and it provides the stated penalty for violation thereof. In Cashin v. Pliter, 168 Mich. 386 (Ann. Cas. 1913C, 697), it was said:
“The general rule is well settled that, where statutes enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void.”
See, also, Edward v. Ioor, 205 Mich. 617 (15 A. L. R. 256), and cases cited.
In view of the purpose and language of the statute, we think it was the intent of the legislature that a sale or transfer of an automobile in violation of the provisions of the act should be void. It follows that in the case at bar there was not a sale to Pushkin, that as between him and the dealer, the dealer was the owner of the car (which ownership on this record the dealer may not question), that it was being driven with consent of the dealer at the time of the accident, and that it is liable.
Judgment affirmed.
Fead, C. J., and North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, C. J.
On August 17, 1918, after some negotiations conducted through Hall, their mutual agent, the parties executed a written contract for an exchange of farms, with abstracts to be furnished and time allowed to have them examined by competent persons for merchantable title, the deeds to be executed within ten days. On August 28, 1918, the deeds were executed, from plaintiffs to defendants, and from Mrs. Smith to plaintiffs. Clarence A. Smith had no interest in his wife’s farm, but actfed as her agent in conducting the negotiations.
The contract provided for an exchange of the “respective equities” of the parties, each to assume the mortgage and land contract obligations on the premises received. The deed to plaintiffs contained an exception in,the warranty clause “as to the leases, options and easements appearing of record in the office of the register of deeds of said Clinton county” in certain libers of deeds and on pages named. The records so designated cover the conveyance in 1905 of perpetual right to flow 16.92 acres of land included in plaintiffs’ deed. The right is in the Piatt Power & Heat Company, evidently a defunct corporation, and has never been exercised by use.
After acquiring the title, plaintiffs executed a contract for sale of part of the farm conveyed to them by Mrs. Smith, agreeing to convey unincumbered title, and, in a later action by the assignees of the contract, were required to pay damages of $1,700 on account of the flowage exception to the title. Defendants were not made parties to that suit. The plaintiffs brought this action in January, 1924, for reformation of the deed on the ground of mutual mistake and for reimbursement for the damages of $1,700, paid their contract purchaser, and expenses. The mutual mistake claimed was the belief of both parties that the flowage rights expired in 1920. Plaintiffs had decree of reformation striking the flowage easement clause from the deed and for money damages.
Defendants claimed, and plaintiffs denied, that plaintiff Crane was informed of the outstanding easement before the preliminary contract was executed. Crane testified that, before the deed was executed, Smith told him that Mr. Ray Latting had said the flowage rights would expire in 1920. Latting is an attorney, but Crane said he did not know him nor his occupation. Smith testified that he told Crane he understood the easement would expire in 1920 by limitation for nonuser, but asserted that he further told him the price of the farm would be the same regardless of the easement. Crane denied the latter statement.
After the contract was executed, Crane, or Hall as his agent, or both, submitted the abstract to Mr. Dean Kelley, an attorney, who gave them a written opinion that the title was “subject to easement as to flowage and water power rights purported to be held by Piatt Power & Heat Company.” Crane told Kelley what Smith had said about the expiration of the easement. At the hearing he did not remember what Kelley ad vised him about the flowage rights. Kelley drafted the deed, which plaintiffs accepted. He was not produced as a witness.
All matters in the preliminary agreement relating to the title merged in the deed. Goodspeed v. Nichols, 231 Mich. 308.
To reform a written instrument on account of mutual mistake, the evidence of the mistake and the mutuality thereof ought to be clear and satisfactory, so as to establish the fact beyond cavil. Burns v. Caskey, 100 Mich. 94; Kenyon v. Cunningham, 146 Mich. 430; Lyons v. Chafey, 219 Mich. 493; 34 Cyc. p. 984; 23 R. C. L. p. 367.
The plaintiffs have not sustained the burden of such showing of mutual mistake. No conditions extrinsic the records, except nonuser, bore upon the effect of the easement. The whole story was written upon the public records and was read by plaintiffs’ attorney. The attention of the latter was expressly called to Smith’s statement to Crane about the expiration of the flowage rights. Having caused an independent investigation to be made by an attorney of their own selection, to whom the facts were open and known, the plaintiffs are not in a position to continue to claim that they accepted Smith’s statement of the time of expiration, without at least a' fair showing that the advice of their attorney did not undeceive them. Crane did not make the required showing by professing uncertainty as to what his attorney had told him.
The deed was drafted by plaintiffs’ attorney, upon full knowledge of the facts and claims. There was no showing that he made a mistake in stating its agreed terms. The mistake, if any, was purely one of law, “an erroneous conclusion as to the legal effect of known facts.” 40 C. J. p. 1228. Mistake as to the legal effect of a written instrument, deliberately executed and adopted, constitutes no ground for relief in equity. Holmes v. Hall, 8 Mich. 66 (77 Am. Dec. 444); Martin v. Hamlin, 18 Mich. 354 (100 Am. Dec. 181).
The decree will be set aside and the bill dismissed, with costs to defendants.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
Plaintiff, a boy, was astride a small bicycle which was parked on his right side of a street in Flint. He had one foot on the curb and. the other on the pavement. He had been there for nearly 10 minutes. It was about 8 o’clock in the, evening of September 16,1926. The street lights were on. The street runs north and south. The boy was on the east side facing north. Defendants’ automobile, driven by defendant Mrs. Wooley north on the street, ran over plaintiff and the bicycle, and plaintiff was injured. At the conclusion of plaintiff’s proof, verdict for defendants was directed on the ground that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff brings error. , •
The accident antedates the uniform motor vehicle act (Act No. 318, Pub. Acts 1927). No point is made in fact or law respecting presence or absence of light or lights on the bicycle at the time. It does not appear that parking vehicles in the street was forbidden. The bicycle is a vehicle. Myers v. Hinds, 110 Mich. 300 (33 L. R. A. 356, 64 Am. St. Rep. 345); 4 Words and Phrases (2d Ser.), 1146; 8 Words & Phrases (1st Ser.), 7284.
On the case as presented, it is held that the boy had a right to park his little vehicle in the street as he did, that he was not negligent in being there, nor in not being watchful of vehicles coming from behind. The record shows no negligence of plaintiff. It indicates negligence of defendant. In its present state it does not support counsel’s contention that defend ants were wanton or reckless or guilty of gross negligence. Gibbard v. Cursan, 225 Mich. 311.
Judgment reversed. Costs to plaintiff. New trial granted.
Fead, C. J., and North, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
(after stating the facts). The learned trial judge was of the opinion that the case of Patrons’ Mutual Fire Ins. Co. v. Brinker, 236 Mich. 367, was controlling, and stated that but for that case he would hold with plaintiff. .We are persuaded that the instant case is clearly distinguishable from that case. In that case the defendant had taken out and paid for insurance in the same way he would have bought insurance in an old line company; the charter at the time the policy was issued did not permit assessment on that class of insurance; having bought and paid cash for his insurance, this court held he could not be called upon by an amendment to pay for it again by way of an assessment. The insurance there involved was similar to class C in the instant case. The case is further distinguishable in that the company there was not in liquidation. While section 13 of chapter 4 of part 4 of Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100 [275]), provides for ratable assessments, section 16 (§ 9100 [278]) recognizes the right to classify risks.
The insurance defendants took out required them to pay assessments to cover losses in the kind of risks then insurable by the company, and which although, no different are now known as class A and class B. They are by these assessments now required to pay for such loss and no others. They are not now required to pay for losses in class C or any other class. They pay the same as if class C did not exist. They are called upon to pay not a penny more nor a penny less than they would be called upon to pay if class C had not been created. By the act of 1919, farmers’ mutuals were permitted to enter new and broader fields. Manifestly, any insurance company insuring different classes of property, and dealing with such different classes in different manner, must have the right to classify. They cannot insure all the different classes at a flat rate. This company segregated the business so that, although it was taking on new business and doing it in a new way, it kept intact the old business, and, as pointed out, defendants suffered not a penny by the amendments to its charter. But beyond that, under the agreement in the policy, the defendants were bound by the amendments to its charter. Wineland v. Maccabees of the World, 148 Mich. 608; DeGraw v. Supreme Court I. O. F., 182 Mich. 366; Brown v. Great Camp K. O. T. M. M., 167 Mich. 123; Williams v. Supreme Council C. M. B. A., 152 Mich. 1. We conclude the trial judge was in error in directing a verdict for defendants. He was also in error in refusing to''admit exhibit “C” which was not an offer of compromise.
The judgment will be reversed and a new trial granted. Plaintiff will recover costs of this court.
North, Wiest, Clark, Potter, and Sharpe, JJ., concurred. Fead, C. J., and McDonald, J., did not sit. | [
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Potter, J.
Royal B. Bostatter was shot and killed by defendant Milton G. Hinchman. Plaintiff, widow and administratrix of the estate of deceased, brought suit against defendants Franz, sheriff of Berrien county, Paget, under sheriff, Hinchman, special deputy sheriff, and the General Casualty & Surety Company, surety on the sheriff’s official bond. There was judgment for plaintiff against defendants Franz, Hinchman, and General Casualty & Surety Company, and they bring error.
Defendants claim Hinchman was special deputy sheriff with limited powers, without authority to act in the northern part of Berrien county; that his acts complained of were without authority, without direction from the sheriff, and without warrant, and the sheriff and the surety on his official bond are not liable therefor.
Defendant Franz appointed Hinchman special deputy sheriff and gave him a card as follows:
“Special Deputy Sheriff.
“I do hereby appoint Milton Hinchman special deputy sheriff, during my pleasure.
“Dated: May 1st, 1925.
“Fred C. Franz, Sheriff,
“Berrien County,
“St. Joseph, Michigan.”
The appointment of Hinchman as special deputy sheriff was not filed in the office of the county clerk in accordance with the statute (1 Comp. Laws 1915, § 2446). In the fall of 1925 defendant Franz went hunting in upper Michigan. Paget, under sheriff, was left in charge of the sheriff’s office. A number of farmers in Berrien county had been robbed of apples, potatoes, and chickens. Paget called Hinchman to the sheriff’s office and told him and a Mr. Guy to investigate and find out who was doing the thieving. Paget told them to look for a Ford truck. Deceased and his father-in-law, John Borton, whose farm deceased worked, lived in Allegan county, and November 23, 1925, took a Ford truckload of apples to South Bend and sold them. They had the money received from the sale of the apples. They left South Bend after lamplight. The lights of the truck were not good, its radiator was running dry and the engine heating. They stopped to get water. Defendant Hinchman and Guy came up. Hinchman says he flashed a light on his official badge, told deceased he was a deputy sheriff, and said; “We want to talk with you;” that the minute he said that, deceased stepped on the gas and tried to get away. Hinchman began to shoot, he says, at the tires on the truck. Bostatter was instantly killed. Mr. Borton, who was in the cab of the truck with deceased, says he saw no badge and no officer and heard no request for conversation and no command to stop. There is no claim that Hinchman had a warrant for Bostatter’s arrest; that he had been ordered or directed to shoot either by the sheriff or the under sheriff, or that deceased had violated any law. Defendant Hinchman says he was suspicious of the deceased because a canvas covered something on the back of the truck. Borton says he thought it was an attempted hold-up.
Defendant Hinchman was out on the highway in the nighttime looking for thieves, as he was ordered to do by Paget, under sheriff. He was there because of his official employment as a deputy sheriff. He claims he told deceased he was a deputy sheriff and showed him his official badge as such. He was not acting as an independent citizen. He had, so far as the record shows, never known, seen, or heard of deceased until the night of the shooting.
A sheriff is a sworn minister of justice (Handy v. Clippert, 50 Mich. 355), elected for two years (1 Comp. Laws 1915, § 2441). He must give a bond in the penal sum of $10,000 (1 Comp. Laws 1915, § 2441), conditioned that he “shall well and faithfully, in all things perform and execute the office of sheriff of said county.” 1 Comp. Laws 1915, § 2442. A sheriff may appoint deputies “for whose official acts he shall be in all respects responsible.” 1 Comp. Laws 1915, § 2443. He has charge of the jail and custody of prisoners “and shall keep them himself or by his deputy or jailor, for whose acts he shall be responsible.” 1 Comp. Laws 1915, § 2448. The sureties upon a sheriff’s bond are liable for any default or misfeasance in office of any deputy sheriff even after the death, resignation, or removal of the, sheriff by whom such deputy was appointed. 1 Comp. Laws 1915, § 2449. Any action for malfeasance, misfeasance, or nonfeasance of a deputy sheriff survives the death of the sheriff and may be prosecuted against his executors or administrators. 1 Comp. Laws 1915, § 2450.
At common law a sheriff was not liable for the wrongful acts of his deputy acting beyond the scope of his authority. 35 Cyc. p. 1613; Murfree on Sheriffs, § 60; Murrell v. Smith, 3 Dana (Ky.), 462; Johnson v. Williams’ Adm’r, 111 Ky. 289 (63 S. W. 759, 54 L. R. A. 220, 98 Am. St. Rep. 416); Michel v. Smith, 188 Cal. 199 (205 Pac. 113); Ivy v. Osborne, 152 Tenn. 470 (279 S. W. 384). The common-law rule prevails in some States. In others a deputy sheriff is regarded as in the private service of the sheriff. He acts in. his place and stead. He is a public officer only because of his appointment by the sheriff. Foley v. Martin, 142 Cal. 256 (71 Pac. 165, 75 Pac. 842, 100 Am. St. Rep. 123); Michel v. Smith, supra. Neither a sheriff nor his deputy is liable for acts within the scope of his authority. A sheriff is liable in damages for an excessive levy. Handy v. Clippert, supra; taking on judicial process property not belonging to defendant, Behler v. Drury, 51 Mich. 111; taking exempt property on execution, Stilson v. Gibbs, 53 Mich. 280; failure to levy a writ of attachment, Beard v. Clippert, 63 Mich. 716; Springett v. Colerick, 67 Mich. 362; abuse of judicial process, Van Dusen v. King, 106 Mich. 133; and failure to permit an execution defendant to select his exemptions, Hutchinson v. Whitmore, 90 Mich. 255 (30 Am. St. Rep. 431); Parker v. Canfield, 116 Mich. 94. If these acts are performed by a deputy the sheriff and his bondsmen are liable. They are all illegal, in excess of authority, though done under color of official sanction. The act of Hinchman was in excess of his authority, though done under color of official sanction.
“The purpose of an official bond is to provide indemnity against malfeasance and misbehavior in public office, the misuse of powers belonging to the office, and the assumption, under guise of official action, of powers not belonging to it. All acts so performed, though unlawful or wrongful, are official acts within the meaning of an undertaking that an officer shall faithfully and impartially discharge the duties of his office; and as such may be reasonably considered to have been within the contemplation of the sureties at the time they entered into the undertaking, as constituting a breach of its conditions.” 24 R. C. L. p. 956.
See, also, Smith’s Sheriffs, Coroners and Constables, p. 566; Crocker on Sheriffs, § 849; Gwynne on Sheriffs, p. 583; Murfree on Sheriffs, § 60.
The sureties on the bond of a sheriff are liable with him for any trespass committed by him in attempting to discharge his official duties. Charles v. Haskins, 11 Iowa, 329 (77 Am. Dec. 148). An officer who acts in excess of his authority becomes a trespasser and his acts in excess of such authority breach his official bond. Martin v. Smith, 136 Ky. 804 (125 S. W. 249, 29 L. R. A. [N. S.] 463); Johnson v. Williams’ Adm’r, supra.
If a deputy sheriff is guilty of unlawful conduct in the discharge of his official duties, the sheriff is liable for such unlawful acts and so are the sureties on the sheriff’s bond. State, ex rel. McPherson, v. Beckner, 132 Ind. 371 (31 N. E. 950, 32 Am. St. Rep. 257).
An official act is an act done by the officer in his official capacity under color and by virtue of his office. Campbell v. People, 154 Ill. 595 (39 N. E. 578); Turner v. Sisson, 137 Mass. 191; Greenberg v. People, 225 Ill. 174 (80 N. E. 100, 8 L. R. A. [N. S.] 1223, 116 Am. St. Rep. 127); Clancy v. Kenworthy, 74 Iowa, 740 (35 N. W. 427, 7 Am. St. Rep. 508); Miles v. Wright, 22 Ariz. 73 (194 Pac. 88, 12 A. L. R. 970); Hall v. Tierney, 89 Minn. 407 (95 N. W. 219); Warner v. Grace, 14 Minn. 487; Reichman v. Harris, 252 Fed. 371; Meek v. Tilghman, 55 Okla. 208 (154 Pac. 1190); Brown v. Weaver, 76 Miss. 7 (23 South. 388, 42 L. R. A. 423, 71 Am. St. Rep. 512); Greenius v. American Surety Co., 92 Wash. 401 (159 Pac. 384, L. R. A. 1917F, 1134).
Here the deputy sheriff was acting in, his official capacity. He acted under color of office. “The fault of the deputy was the fault of the sheriff.” Prosser v. Coots, 50 Mich. 262.
Judgment is affirmed, with costs to plaintiff.
Fead, C. J., and North, Fellows, Clark, McDonald, and Sharpe, JJ., concurred. | [
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McDonald, J.
The defendant was convicted on a charge of the unlawful possession and transportation of intoxicating liquor. He had been employed by one Richard Johnson to transport a truckload of household goods from a warehouse in Grand Rapids to Johnson’s home in Montcalm county, Michigan. ' He owned the truck and assisted in loading the goods. Among the goods were several paper cartons. In one of these, covered with a paper and a burlap sack, were two gallons of moonshine whisky. After loading the truck he drove to- Johnson’s farm. Officers of Montcalm county were there searching for liquor. They had found some in the house and barn and suspected that more might be on the truck. The officers claim that the defendant went into the house, held a whispered conversation with Johnson and hurriedly started for the truck. They asked him if he had any liquor in his load, and he replied that there was none that he knew of. A search revealed the cartons containing two gallons of moonshine whisky. At the trial, the -defendant was a witness and testified that he supposed the load contained household goods only, and that he had no knowledge of the whisky. At the conclusion of the proof, the court directed the jury to find the defendant guilty as charged. He reviews his conviction by writ of error.
The only error relied on relates to the action of the court in instructing the jury that, under his own- testimony, the defendant was guilty as charged. It is quite apparent that in directing the verdict the circuit judge relied on the holding of this court in People v. Avery, 286 Mich. 549. , The cases are readily distinguishable in their facts. In the Avery Case, the load which defendant was transporting consisted entirely of liquor put up in such a manner as to put an ordinarily reasonable man on inquiry. In the instant case, the load was mostly household goods. However, the box containing the liquor was open. Defendant assisted in loading it. They placed it just behind the cab under some articles of furniture, but it was easy of access if defendant had desired to examine it. It was in his possession, and under the statute knowledge of possession is presumed. But he testified that he had no knowledge of it. If the circumstances were such as to put a reasonable man on inquiry and he made no effort to ascertain the contents of the box, his lack of knowledge would be no defense to a charge of unlawful possession. Such is the holding of this court in the Avery Case. Under all of the circumstances in the instant case, the defendant was entitled to have submitted to the jury under proper instructions the question whether he had knowledge or was charged with knowledge of the fact that he had intoxicating liquor in his possession. The court erred in directing a verdict of guilty as charged.
The judgment of conviction is reversed and a new trial granted.
Fead, C. J., and North, Fellows, Wiest, Clark, and Sharpe, JJ., concurred. Potter J., did not sit. | [
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Wiest, J.
In 1907, John B. Morris took out a benefit certificate in the Protected Home Circle of Sharon, Pennsylvania, for $500, payable to “Jessie M. Morris, wife.” Mr. Morris paid his monthly dues to and including the month of December, 1923. He died February 5, 1924, without having designated any change of beneficiary. Some time before his death the beneficiary obtained a divorce and married a man by the name of Kadir. At the time of his death Mr. Morris had failed to make the payments due for the insurance for the month of January, 1924, and, under the law of the society, was automatically suspended. A few days before his death his former wife tendered the proper officer of the society the dues for the month of January and the tender was refused. This suit was brought upon the certificate by the beneficiary named therein, and, at the trial, defendant offering no evidence, verdict was directed in favor of plaintiff. At the close of plaintiff’s proofs defendant moved for a directed verdict in its favor. This was denied. Defendant also moved for a new trial, but did not request the circuit judge to file reasons in case of denial. The motion was denied, no reasons were filed and no exceptions entered. . Defendant reviews by writ of error.
It is claimed, in behalf of defendant, that, when the beneficiary was divorced, she lost her status as beneficiary. The law of the society contains no provision respecting the divorce of a beneficiary. This is not a case of a fraternal society limiting membership to a particular religious belief, or benefits to $500 or less, and, therefore, without the terms of the statute (Comp. Laws Supp. 1922, § 9100 [194, 219]), and within our decision in Ancient Order of Hibernians v. Mahon, 221 Mich. 213, but a society within the provisions of the statute limiting beneficiary to that of wife, and, therefore, within our decision in Modern Woodmen of America v. Patton, 229 Mich. 62.
Plaintiff, upon divorce, was no longer beneficiary.
The judgment is reversed, without a new trial, with costs to defendant.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, J.
The Michigan State highway department is engaged in the construction and improvement of a State trunk line highway known as U. S. 10. This highway is also known as Woodward avenue, evidently because it is an extension of Woodward avenue, one of the principal thoroughfares of Detroit. Incident- to such construction and improvement, it will be increased to 200 feet in width and for this purpose it is necessary to acquire adjacent property. For a distance of 9.1 miles the right of way of the Detroit, Grand Haven & Milwaukee Railway Company lies adjacent to this highway. It became necessary to acquire this portion of the railroad right of way to carry out the plan of widening the public highway. The Detroit, Grand Haven & Milwaukee Railway Company has operated under' a franchise from the State of Michigan which restricts the power of the State to tax this railroad. With a view both to acquiring so much of the railroad right of way as is needed for the highway improvement and also to securing the surrender of the special charter held by the railroad company and its reincorporation under the general railroad laws of Michigan, a proposed contract was negotiated with the railroad company. This, contract was embodied in Act No. 340, Pub. Acts 1927, by which its execution on behalf of the State was authorized. Section 1 of this act provides:
“The governor of the State of Michigan is hereby authorized and empowered to negotiate with the Detroit, Grand Haven & Milwaukee Railway Company for a surrender of its special charter; its reincorporation under the general railroad laws of the State, and its tax’ation in accordance with the general laws of this State providing for the taxation of railroad companies ; to acquire or cause to be acquired by the State highway commissioner, a new right of way for said railroad company approximately nine and one-tenth miles in length, in Oakland county, Michigan. The governor, secretary of State and State highway commissioner are authorized and empowered to convey said new right of way to be acquired by the State of Michigan, on behalf of said State, to said railroad company ; to make, execute and deliver proper deed or deeds of conveyance for the same in consideration of the release by said railroad company, and the transfer and conveyance by it to the State of Michigan of the right of way now occupied by said railroad company between mile post number thirteen and mile post number twenty-two and one-tenth adjacent to trunk line number ten in Oakland county as provided in the form of contract annexed hereto and made a part hereof, so that the right of way of said trunk line highway number ten, known as Woodward avenue, may be widened to a width of two hundred feet for a distance of approximately nine and one-tenth miles in accordance with said contract. The State highway commissioner is hereby authorized and empowered to acquire by purchase or condemnation, as a State project, a right of way not to exceed seventy feet in width along and adjacent and/or parallel to either or both sides of the new railroad right of way as a part of the proposed relocation and improvement where and when deemed advantageous and/or necessary by the State administrative board.”
The contract contemplated by the statute was ultimately consummated. For the purpose of carrying out the terms of the contract and thus securing so much of the railroad’s present right of way as is needed to widen Woodward avenue, the State through its highway commissioner has undertaken to obtain by purchase or condemnation the new railroad right of way. He has secured by purchase a large portion of the land needed, but has not been able to agree upon terms of purchase with certain owners of other lands required.
Act No. 215, Pub. Acts 1925, provides:
“Section 1. Whenever the line of any railroad or railway company is upon or adjacent to the right of way of a trunk line highway and such right of way or any part thereof, is necessary to1 be acquired for widening, straightening, altering or otherwise improving such highway, the State highway commissioner shall be authorized to enter into negotiations with such railroad or railway company for the purchase of said right of way, or of any part thereof, and to enter into an agreement with any such railroad or railway company to exchange other designated property for such' right of way, or for any part thereof, whenever such other designated property shall be acquired by him; and whenever any such agreement has been entered into, the said State highway commissioner shall be authorized and he is hereby empowered to acquire such other property by purchase or condemnation, and when acquiring to execute the necessary conveyances and releases thereof to such railroad or railway company for its use, and to take in exchange therefor the railroad or railway right of way or part thereof for such public highway purposes in accordance with such agreement.
“Sec. 2. The procedure that is, or may be, prescribed for condemnation proceedings instituted by boards of county road commissioners or the procedure that is, or may be, provided for the condemnation by State agencies and public corporations of private property for the use or benefit of the public, is hereby expressly made applicable to any proceeding brought by the State highway commissioner under the provisions of this act.”
Section 2 above expressly authorizes procedure which is or may be provided for condemnation of private property by State agencies for the use and benefit of the public. Adopting such procedure, the State highway commissioner gave notice of a hearing incident to the determination by him of the necessity for the proposed construction and improvement of Woodward avenue, and the necessity for taking certain parcels of land therefor. Such a hearing was had at the time and place specified. The plaintiff herein and other landowners whose rights are involved were present.. Testimony was taken in behalf of the State, but none was offered in behalf of the property owners. Based upon the hearing so held, the commissioner made a determination that it was necessary to construct and improve, and to complete the construction and improvement of this highway; and_ that it was necessary to take for that purpose the several parcels of land described, including the parcels belonging to the plain tiff herein. The validity of this determination is attacked and the proceeding had before the State highway commissioner has been brought here for review by writ of certiorari.
It has often been judicially announced that the power of eminent domain is an incident of and inherent in the sovereignty of the State; but the contention is rightly made by the plaintiff herein that since we have certain constitutional and statutory provisions which specify the methods and conditions of exercising this power, the State, as well as every other agency which utilizes this method of acquiring private property, must proceed in accordance with the constitutional limitations and with the provisions of the statutes in so far as they do not contravene the Constitution. The plaintiff asserts the procedure herein does, not conform to this requirement and that both of the Public Acts of 1927 here involved (Act No. 92 and Act No. 340) are in violation of the provisions of the Constitution of this State, and that therefore the State highway commissioner’s determination of necessity should be vacated.
Constitutionality of Act No. 92, Pub. Acts 1927. It is contended by the plaintiff that its property is being taken without a judicial determination of the necessity therefor. Act No. 92, Pub. Acts 1927, § 4, provides that the hearing as to the necessity of the proposed construction or improvement (which necessity is admitted by plaintiff in the instant case) and also as to the necessity' of taking the particular property therefor shall be had before the State highway commissioner. It is further provided in the act (§ 27) that: “Any proceedings taken under the provisions of this act shall be subject to review upon certiorari.” But it is asserted -inplaintiff’s brief:
“The determination of necessity by the State highway commissioner is not a judicial determination within the purview of sections 1 and 2 of article 13 of the Constitution of Michigan, and section 4 of Act No. 92 is unconstitutional and void in so far as it provides for a hearing on the question of necessity and a determination thereof by the State highway commissioner.”
Under the provision of our State Constitution (art. 13, § 1) both the question of the necessity for taking private property and the compensation to be awarded therefor when controverted must be settled by a judicial determination. Hendershott v. Rogers, 237 Mich. 338. But it has been determined recently in this State that the statutory hearing before the State highway commissioner together with the provision for a review of such hearing upon certiorari to a proper court affords the property owner an opportunity to have a judicial determination of his rights in compliance with the constitutional requirement. Ziegel v. Genesee County Board of Road Com’rs, 241 Mich. 161. Act No. 92, Pub. Acts 1927, therefore cannot be held to be unconstitutional on the theory or claim that it does not provide for a judicial determination of the question of necessity.
Incident to this phase of the case, it may be noted the plaintiff also asserts that if the State highway commissioner is held to be acting as a judicial officer in determining the question of necessity, then his personal interest in the issue submitted to him is such as renders his determination a nullity and results in taking the plaintiff’s property without due process of law. We fail to find in this record any justification for plaintiff’s contention that the State highway commissioner has a personal interest in this highway development. It is true, as stated in plaintiff’s brief, that the commissioner has secured the right of way through other parcels by purchase, but it does not follow from this that he has such a personal interest as would disqualify him from acting incident to securing the right of way through plaintiff’s property. So far' as is disclosed by this record, the commissioner’s only interest in securing this right- of way is that of a public official desirous of faithfully discharging the duties of his office. This is not such a personal interest as disqualifies one from acting in a judicial capacity.
Constitutionality of Act No. 340, Pub. Acts 1927. Act No. 340, Pub. Acts 1927, provides for the purchase or condemnation, if necessary, of a new right of way to be transferred by the State to the railroad company in exchange for a certain portion of its present roadbed. This has been termed substituted compensation. It involves the condemnation of plaintiff’s land under the highway law when in fact it is to be used for a railroad right of way and not for a highway. Its taking for highway purposes is necessary only in an indirect or secondary sense. The plaintiff asserts that:
“The taking of the lands of petitioners for use as a railroad right of way in highway proceedings * * * will result in the taking of the properties of petitioners without due process of law and without just compensation.”
The parcels of property sought to be acquired from the plaintiff are located in a highly restricted residential subdivision and distant substantially three-quarters of a mile from Woodward avenue, where the highway improvements will actually be made. The question is presented as to the power of the legislature to enact a law authorizing the State to obtain title to this property under the highway condemnation act when in fact the property sought to be so acquired is desired for the right of way of the railroad, and its acquisition is only indirectly necessary in widening and improving Woodward avenue. We have squarely before us the question as to whether under the highway act there can be what may be termed substituted con demnation or compensation by substitution. New authorities in point can be found, but the question is passed upon and ably considered in an opinion rendered by Chief Justice Taft in Brown v. United States, 263 U. S. 78 (44 Sup. Ct. 92). It appears in this case that in 1921 congress passed an act (41 U. S. Stat. pp. 1367, 1403) giving
“authority in connection with the construction of American Falls Reservoir, to purchase or condemn and to improve suitable land for a town site to replace a portion of the town of American Falls which will be flooded by the reservoir, and to provide for the removal of buildings to such new site and to plat and to provide for appraisal of lots in such new town site and to exchange and convey such lots in full or part payment for property to be flooded by the reservoir and to sell for not less than the appraised valuation, any lots not used for such exchange.” * * *
Certain lands were condemned under this act. It was urged in the Brown Co.se as in the instant case that such a statutory provision is unconstitutional in that it involves the taking of the property of one person for the purpose of transferring it to another. Chief Justice Taft thus disposes of this contention:
“The plaintiffs contend that the power of eminent domain does not extend to the taking of one man’s property to sell it to another; that such an object cannot be regarded as for a public use of the property, and, without this, appropriation can have no constitutional validity. The district court held that the acquisition of the town site was so closely connected with the acquisition of the district to be flooded, and so necessary to the carrying out of the project, that the public use of the reservoir covered the taking of the town site. We concur in this view. * * *
“No one would say that a legislative act authorizing a railway company to build a railroad exceeds the constitutional limit by reason of a specific provision that the company may condemn land not only for the right of way, but also additional land adjacent thereto for use as borrow pits in making fills and embank ments, or for use as spoil banks or dumps for the earth excavated from tunnels and cuts. Such adjacent land would certainly be devoted to the public use for which the railway was being constructed. If so, then the purchase of a town site on which to put the people and buildings of a town that have been ousted to make the bed of a reservoir would seem to be equally within the constitutional warrant. The purchase of a site to which the buildings of the town can be moved and salvaged, and the dispossessed owners be given lots in exchange for their old ones, is a reasonable adaptation of proper means toward the end of the public use to which the reservoir is to be devoted. The transaction is not properly described as the condemnation of the land of one private owner to sell it to another. * * * A method of compensation by substitution would seem to be the best means of making the parties whole. The power of condemnation is necessary to such a substitution.”
As a case of somewhat similar purport, see Pitznogle v. Railway Co., 119 Md. 673 (87 Atl. 917, 46 L. R. A. [N. S.] 319). See, also, Bradshaw v. Rogers, 20 Johns. (N. Y.) 103; Bigelow v. Draper, 6 N. D. 152 (69 N. W. 570); 1 Nichols on Eminent Domain (2d Ed.), p. 171.
Having in mind that the primary purpose of Act No. 340, Pub. Acts 1927, was that of highway construction and improvement, and that the relocation of the railroad right of way was inseparably connected with the project, we hold that the working out of the whole problem was properly delegated by the legislature to the State highway department under the terms of the contract embodied in the statute. The undertaking was declared by the legislature to be a public necessity. See Act No. 340, Pub. Acts 1927, § 4. It is conceded in plaintiff’s brief that the proposed highway improvement is a public necessity which requires the taking of the railroad’s present right of way. Everything now sought to be done by the State highway commissioner is expressly authorized by the act of the legislature. The project is one of great importance to the people of the State; and presumably under Act No. 340, Pub. Acts 1927, and the terms of the contract embodied therein, the complicated situation involved in this highway construction and improvement is being worked out in a more practical, economical, and advantageous manner for all parties concerned than it otherwise could have been. The general method of procedure has the stamp of approval of high authority in the case of Brown v. United States, supra; and this court ought not to interfere with the consummation of the contract embodied in Act No. 340 unless it clearly contravenes constitutional provisions.
The specific objections raised by the plaintiff in its opposition to having its lands taken in this proceeding are these:
1. The plaintiff, whose property is being taken for a railroad right, of way, will be deprived of having a determination by a jury of the necessity for taking its property and of the amount of compensation therefor; whereas a trial by jury could be had if this condemnation proceeding were conducted under the so-called railroad act instead of the highway law. It is true that the railroad act (chap. 157, 2 Comp. Laws 1915) affords a jury trial but it does not follow that the legislature may not provide a proper procedure without trial by jury. The present undertaking is a State project and as such clearly falls within the exception found in the State Constitution as to the right, of a jury trial. The constitutional provision is as follows:
“When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed, by. law: Provided, That the foregoing provision shall not be construed to apply to the action of commissioners of highways or road commissioners in the official discharge of their duties.” Art. 13, § 2.
“In the absence of a special constitutional or statutory provision there is no right to trial by jury in condemnation proceedings. Due process of law does not require the damages in such proceedings to be assessed by a jury.” 20 Cyc. p. 999.
The highway act under which the commissioner is here proceeding provides for a determination of necessity by a hearing before the State highway commissioner, and for an assessment of damages by three court commissioners. ' Act No. 352, Pub. Acts 1925, § 7. This, we think, fully protects the plaintiff’s constitutional rights.
2. It is asserted by the plaintiff that its property is being taken for the use and benefit of another or of other private interests, and that in this its constitutional rights are violated. ‘ This position is not tenable. The State is taking this land for use as a railroad right of way, the procuring of which is necessitated by the construction and improvement of a State trunk line highway. This is a taking for a public and not for a private use. The use of this property as a railroad right of way, entirely apart from the State highway need, is a publics use. Under no> other theory could the right to exercise the power of eminent domain be delegated by the State to railroad companies. It has long been settled in this. State that taking land for a railroad right of way is a taking for a public purpose. Swan v. Williams, 2 Mich. 427; Grand Rapids, etc., R. Co. v. Weiden, 70 Mich. 390. Therefore it can not be said that the power of eminent domain is here being used for the purpose of condemning the property of one person for the private use of another.
3. The plaintiff also urges that the requirements of the State for constructing this highway would have been satisfied by the mere condemnation of the present right of way of the railroad company; and since the railroad has the power to condemn land, there exists no necessity for the procurement by the State of another right of way for the railroad. In taking this position, the plaintiff overlooks the fact that the need of acquiring plaintiff’s land for a new railroad right of way arose incident to and as a necessary part of the construction of a State highway, and that it is therefore within the right and power of the State under the legislative enactment (Act No. 340, Pub. Acts 1927) to relocate the railroad. Under the circumstances of this case, it is as much within the right of the State to direct that the power of eminent domain be exercised by the State highway commissioner in obtaining this new railroad right of way as it is within the State’s right to delegate such authority to the railroad itself. The State has seen fit by appropriate legislation to empower the commissioner to act, and we fail to find a lack of authority for so doing or that the plaintiff’s rights are thereby invaded.
4. The plaintiff strenuously insists that it will be unable to recover full compensation for damage to its property if it is taken for railroad purposes under the highway act because the measure of damage provided in the highway law is less than that specified in chapter 157, 2 Comp. Laws 1915, which contains the general provision for condemnation of railroad rights of way. That one legislative act may contain a different provision than is found in another as to the measure of damages is not controlling. The test is whether the provision in the act falls short of the constitutional requirement for just compensation. A comparison of the provisions of these two acts relative to the damages to be awarded discloses a close similarity with the- exception of the provisions for payment of costs and an attorney fee required by the railroad act. The provision in the latter act as to damages (2 Comp. Laws 1915, § 8255) is that the commissioners (or jury) “shall ascertain and determine the damages or compensation which ought justly to be made.” The highway law provision (Act No. 352, Pub. Acts 1925, § 16) is: — “The court commissioners shall appraise the damages to be paid as compensation,” etc. It is true that the highway law of this State provides that in fixing compensation the benefits accruing to the property owner are offset against the damage awarded. See Act No. 352, Pub. Acts 1925, § 18; In re Macomb County Board of County Road Com’rs, 242 Mich. 239. But it does not follow from this that in a proceeding wherein the State highway commissioner is seeking to secure a right of way, the damage to be awarded the property owner will be anything short of the “just compensation” provided in section 2 of art. 13 of the Constitution, In the present case, as in an ordinary proceeding for condemning a right of way for a railroad, it will be the duty of the commissioners “to compensate the owner'for what his landed interest will suffer from the use proposed to be made of it by the railroad company.” Barnes v. Railway Co., 65 Mich. 251. Adequate compensation is such only as puts the injured party in as good condition as he would have been in if the injury had not been inflicted. It includes the value of the land, or the amount to which the value of the property from which it is taken is depreciated. Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393. There is no provision in our statutes for offsetting benefits against damages incident to taking land for a railroad right of way; and in the absence of an express statutory provision such a deduction cannot be made. Detroit, etc., R. Co. v. National Bank, 196 Mich. 660; State Highway Commissioner v. Breisacher, 231 Mich. 317. With this construction placed upon the highway act, it is not subject to the objection that it fails to provide adequate compensation for the property owner and is therefore unconstitutional. Nor does it leave force to plaintiff’s contention that since it is here sought to condemn a railroad right of way the procedure must be under and in accordance with the general railroad act rather than under the highway law. By Act No. 340, Pub. Acts 1927, § 4, the State highway commissioner is authorized and empowered to secure this right of way “in accordance with the general laws of the State.” The present proceeding instituted by him is “in accordance with the general laws of the State;” and if those laws are properly administered plaintiff’s rights as to just compensation will be fully respected. A reference to the railroad act will disclose several reasons why it would be impossible for the State highway commissioner to- file a petition thereunder. For example, that statute (2 Comp. Laws 1915, § 8252) requires the petition to be in the name of the railroad company, and to be signed and sworn to by a director or other representative of the railroad company. We are of the opinion that the legislature intended that the State highway commissioner, in carrying into effect the provisions of Act No. 340, Pub. Acts 1927, should proceed as far as possible in conformity with' the provisions of the highway condemnation law; and that by his so doing the plaintiff will not be deprived of property without just compensation, or without due process of law.
Other objections to Act No. 340, as to its constitutionality, are that it provides for the use of the State’s credit by the Detroit, Grand Haven & Milwaukee Railway Company; and that the act is local in its application and is invalid because it was not submitted to local ratification as required by section 30, art. 5, of the State Constitution.
Article 10, § 12, of the State Constitution provides:
“The credit of the State shall not be granted to nor in aid of any person, association or corporation, public or private.”
The claim that the use of the State’s credit is granted to the railroad company is based upon a provision in the contract embodied in Act No. 340, Pub. Acts 1927, by which the State undertakes to create a revolving fund to be used in carrying out the terms of the contract whereby in consideration of an agreement by the railroad company to surrender its special charter and to convey to the State from its present right of way the land' needed to widen Woodward avenue for a distance of 9.1 miles, the State has agreed to bear the expense of securing a new right of way for the railroad company and of constructing a single track thereon, but with the provision and agreement that within 15 years the total amount of money so expended by the State is to be repaid in fixed annual installments. We think this cannot be construed to be a granting of the use of the State’s credit to the railroad company, but instead it is the. consummation of a contract by and between the parties whereby the State will secure the land necessary for widening Woodward avenue and the surrender of the railroad’s special charter. The consideration for this is the undertaking and agreement on the part of the State as set forth in the contract. The good faith of the undertaking is in no> way assailed. It has to do with the legitimate administration of State affairs, and neither it nor the act in which it is embodied is subject to' the objection that it is an attempt on the part of the State to grant the use of its credit to the railroad company. Nor can Act No. 340 be successfully attacked on the theory that it is a local act. As hereinbefore noted, the primary purpose of that act is the construction and improvement of a State trunk line highway. We have recently held that building and maintaining public highways are matters of concern to the State at large and that the legislation providing therefor is not local in character. Moreton v. Secretary of State, 240 Mich. 584, citing Attorney General v. Bruce, 213 Mich. 532; Loomis v. Rogers, 197 Mich. 265.
The only other objections raised by plaintiff are that the testimony taken before the State highway commissioner did not show any necessity exists for taking its land; and that the testimony did not show that the commissioner attempted to secure by purchase a right of way across plaintiff’s lands before giving notice of the hearing as is required by law. The return of the commissioner to the writ issued, together with the transcript of the testimony taken before the commissioner and embodied in his return, establishes quite conclusively that neither of these objections is well founded. The undisputed proof supports the commissioner’s finding of a necessity for taking this property, and it appears from the record in the case that an attempt was made to secure the right of way by purchase. Further, it is alleged in the petition filed by the officers of the plaintiff corporation that they do not reside in Oakland county where the land is located. Under the statute the commissioner is authorized to proceed without first attempting to purchase land which is owned by persons who are nonresidents of the county wherein the land is located. See Act No. 92, Pub. Acts 1927, § 4. This same section also provides that after the commissioner has made his determination of necessity, his declaration that he has been unable to agree with the owners for the purchase and his determination as to necessity shall not be questioned. Neither of the objections last above considered is meritorious.
Many cases cited in plaintiff’s brief are distinguishable from the instant case in that the right of eminent domain was there attempted to be exercised to accomplish a purpose not authorized by law; but here we have a case wherein the State highway commissioner has been specifically authorized and empowered by legislative enactment to do exactly that which he seeks to accomplish in this proceeding. Such legislation can and should be sustained because the relocation of the railroad' right of way has been rendered necessary by and incident to the highway improvement ; and the property sought is being taken for public use. We do not find that the statutes involved offend against the Constitution or that there is any irregularity in the proceeding conducted by the State highway commissioner.
The relief sought in the petition must be denied and the petition dismissed, with costs to the defendant.
Fead, C. J., and Wiest, Clark, and Sharpe, JJ., concurred. Fellows, McDonald, and Potter, JJ., did not sit. | [
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Fer CURIAM.
Respondent appeals as of right the Court of Claims order granting summary disposition in favor of petitioner in this tax matter. We affirm.
Petitioner is a Michigan corporation engaged in the business of tire sales and repairs in Michigan and elsewhere. When petitioner sells a tire to a customer, the customer has the option of purchasing a “Certificate for Repair, Refund, or Replacement” at an extra cost. Pursuant to the certificate, if a tire covered by the certificate is damaged within three years of purchase and the tire still has a stated depth of tread remaining, the customer is entitled to have the damaged tire repaired at no cost by petitioner. In the event the tire is irreparably damaged, the customer is entitled to a full cash refund equal to the purchase price and sales tax paid on the tire. Additionally, at the customer’s request, petitioner must provide the customer the opportunity to purchase a comparable replacement tire at a price not exceeding the purchase price of the original tire.
During the tax years at issue (2003-2006), petitioner charged and remitted sales tax to respondent on each original tire sale, but claimed a credit on that remitted sales tax in the event that the tire was returned as irreparably damaged under the certificate. If petitioner sold a replacement tire to the customer pursuant to the certificate, petitioner collected and remitted sales tax to respondent on the replacement tire and also remitted use tax on the replacement tire. In 2007, petitioner requested from respondent a refund of the use taxes remitted on these replacement tires on the ground that petitioner had paid both sales tax and use tax on those tires. Following an audit, respondent denied petitioner’s request.
Petitioner then requested an informal conference with respondent, following which respondent issued an informal conference recommendation supporting respondent’s decision to deny petitioner’s request. The informal conference recommendation concluded that petitioner was not permitted to claim a sales tax credit on the return of the irreparably damaged tires because the return provided for in the certificate was not a “return of goods” under the General Sales Tax Act, MCL 205.51 et seq., as defined by respondent’s administrative Rule 16, Mich Admin Code, R 205.16. Further, the recommendation concluded that the replacement tires were provided for free and not sold at retail and that petitioner was, therefore, required to pay use tax on the replacement tire and was not entitled to a refund of that tax. Respondent officially adopted the conclusions of the informal conference recommendation in a January 27, 2010, decision and order of determination denying petitioner the refund it had requested.
Following respondent’s decision, petitioner appealed in the Michigan Court of Claims, and both parties submitted motions for summary disposition. In its October 12, 2011, opinion, the court held that respondent’s Rule 16 was invalid because of its improperly restrictive definition of “returned goods,” that petitioner was entitled to claim a returned-goods sales tax credit on an original tire sale, and that the replacement tire was sold at retail, making the application of a use tax to that tire inappropriate. The court also held that petitioner would be entitled to the returned-goods sales tax credit even under the restrictive definition of “returned goods” found in Rule 16. Accordingly, the court granted petitioner’s motion for summary disposition and denied respondent’s motion for summary disposition. This appeal followed.
This Court reviews de novo questions of statutoiy interpretation. Wexford Med Group v City of Cadillac, 474 Mich 192, 202; 713 NW2d 734 (2006). A lower court’s decision on a motion for summary disposition is also reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Under MCR 2.116(0(10), “[sjummary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).
On appeal, respondent first argues that petitioner was not entitled to a returned-goods sales tax credit when replacing a customer’s tire pursuant to the certificate. We disagree.
Michigan imposes a six percent sales tax on the gross proceeds of “all persons engaged in the business of making sales at retail, by which ownership of tangible personal property is transferred for consideration . . . .” MCL 205.52(1). MCL 205.56b provides that with respect to such sales tax, “[a] taxpayer may claim a credit or refund for returned goods .. . .”
As acknowledged by respondent, the statutory language at issue is sparse. Our goal in statutory construction, however, is, as always, to give effect to the Legislature’s intent. McCormick v Carrier, 487 Mich 180, 191; 795 NW2d 517 (2010).
This Court begins by reviewing the language of the statute, and, if the language is clear and unambiguous, it is presumed that the Legislature intended the meaning expressed in the statute. Judicial construction of an unambiguous statute is neither required nor permitted. When reviewing a statute, all non-technical words and phrases shall be construed and understood according to the common and approved usage of the language, MCL 8.3a, and, if a term is not defined in the statute, a court may consult a dictionary to aid it in this goal. [Id. at 191-192] (citations and quotation marks omitted).
With these parameters in mind, we do not agree with respondent’s contention that the most reasonable con struction of the phrase “returned goods” in MCL 205.56b is that the goods must be returned within a certain time frame and be in substantially the same condition as when they were sold. This “reasonable construction” would require us to take a relatively simple, straightforward, and short statute and add several, much more meaningful and elaborate phrases that, had the Legislature intended for them to appear, it could easily have included.
It is undisputed that petitioner engaged in the retail sale of tires, that it charged customers a six percent sales tax on the original tires at issue, and that it remitted that tax to respondent. When those customers who had purchased certificates presented petitioner an original tire that was deemed irreparable, they returned the original tire to petitioner. When one “returns” a good, one reverts it to a former owner. See The American Heritage Dictionary of the English Language (4th ed). That is precisely what occurred in this matter. And upon the return of an irreparable tire to petitioner, petitioner provided the customer with a full cash refund, including the sales tax. The customer was free to simply take this refund, spend part of it on a tire of lesser value, put all of it toward a tire of greater value, put some or all of it toward other automotive goods and services offered by petitioner, or use it to acquire a tire of comparable value to the original tire for the price paid for the original tire. In short, the customer received a cash refund that could be used in any manner that the customer chose. Petitioner is thus entitled to a credit for the previously remitted sales tax under MCL 205.56b.
While respondent concentrates heavily on petitioner’s obligation under the certificate to provide the customer with the option of purchasing a comparable tire for the full value of the refund, this is but one possible use of the refund. Under respondent’s interpretation, petitioner would be unable to obtain a refund or credit for sales tax remitted to respondent in cases in which petitioner refunded the customer’s money and the customer merely walked out the door with the refunded cash. Such a result is both contrary to the plain language of MCL 205.56b and to the underlying purpose of the sales tax.
Respondent next asserts that the trial court erred by not treating respondent’s administrative Rule 16 as a valid legislative rule. According to respondent, had the court properly applied the rule, the only reasonable interpretation of MCL 205.56b would preclude petitioner from obtaining a refund under the returned-goods credit. We disagree.
Respondent issued Rule 16 to clarify the meaning of “returned goods” under the General Sales Tax Act. The rule provides, in relevant part, as follows:
(1) Credits or refunds for returned goods, the sales of which have been subject to tax, may be deducted only if the goods are voluntarily returned for full exchange, an entire refund of purchase price, or full credit. When the property is returned within a reasonable time after the date of sale, and the purchase [sic] is made whole, a credit may be had on the tax paid on the rescinded sale. [Mich Admin Code, R 205.16.]
Rules adopted by an agency in accordance with the Administrative Procedures Act, MCL 24.201 et seq., generally have the force and effect of law. Clonlara, Inc v State Bd of Ed, 442 Mich 230, 239; 501 NW2d 88 (1993). These so-called “legislative rules” are invalid, however, if the agency that enacts them lacks statutory authority to enact such rules, the rules are enacted through improper procedure, or the rules are unreason able. Id. at 240. Any rule an agency issues without exercising delegated legislative power is an “interpretive rule.” Id. at 239. Such rules interpret and apply the provisions of a statute under which the agency in question operates and are invalid “if they do more than specify the application of a legislative purpose implicit in the general language used by the legislature, if they conflict with the governing statute, if they extend or modify the statute, or if they have no reasonable relationship to a statutory purpose.” Id. at 240-241; 243 n 26.
No statute authorizes respondent to enact a definition of “returned goods” that carries the force and effect of law. As such, Rule 16 is not a valid legislative rule. Further, while Rule 16 can properly be construed as an interpretive rule because it states respondent’s interpretation of a statute, Rule 16 also changes the scope of, modifies, and narrows the returned-goods credit in the General Sales Tax Act. Even a cursory reading of Rule 16 shows the fact that it contains far more restrictive language than MCL 205.56b. As such, it is invalid as a matter of law. Id.
In any event, even if we were to find that Rule 16 is a valid legislative rule, petitioner has met the requirements. First, the tires were voluntarily returned to petitioner upon being irreparably damaged. True, there was damage to the tires, but just as in instances where a person receives a gift and does not like it or buys an item that was defective from the beginning and returns it, the tires were nonetheless voluntarily returned instead of being retained by the customer. In each instance, an outside influence or effect led to the return of the items, but nothing forced the customer to return it.
Second, the tires were returned for a full refund or credit. Respondent has not argued otherwise. Finally, while difficult to gauge, it could be argued that the tires were returned within a “reasonable time” after the date of sale. There is no indication of the time within which most of the tires were returned. However, for items that are intended to last many years, a reasonable time in which to return the items may indeed be within three years. The period for tires would certainly be different than the period for a pair of soccer cleats for an 8-year-old child. Because respondent did not further define this entirely subjective phrase in its rule and there is no indication when the tires at issue were returned, we cannot say that petitioner failed to meet the requirements of this rule.
Respondent next contends that because petitioner is not entitled to a credit for returned goods under MCL 205.56b, the use tax imposed on any replacement tire provided is not duplicative. We disagree.
As indicated already in this opinion, petitioner is entitled to a credit for returned goods. Moreover, because the replacement tires that were purchased were purchased with the refunded money, they are retail goods as well and subject to sales tax, but not use tax. The use tax is complementary to the sales tax, and the two taxes cannot be imposed on the same transaction because the use tax does not apply to goods sold at retail. Gen Motors Corp v Dep’t of Treasury, 466 Mich 231, 237; 644 NW2d 734 (2002); MCL 205.94(l)(c)(i). Because the sales tax applies to goods sold at retail, the sales tax applies to both transactions under the certificate, and the use tax applies to neither. In sum, because petitioner was entitled to a sales tax credit for returned goods on the original tires and the replacement tires were sold at retail, petitioner is entitled to a return of the use taxes remitted to respondent for the replacement tires. While respondent complains that this re- suits in petitioner only remitting sales tax for one tire after the application of the returned-goods sales tax credit, that is precisely what the tax credit allows when a customer returns a good for a cash refund that is used to purchase another good at retail.
Affirmed.
K.F. Kelly, EJ., and Markey and SERVITTO, JJ., concurred. | [
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PER CURIAM.
In this declaratory judgment action, the issue before us is the priority of liability insurance coverage with respect to a motor vehicle accident that occurred while the allegedly at-fault driver, defendant Victor Martin, was driving a vehicle with the permission of the owner, Grand Greenville, Inc. (Grand Greenville), a used car dealership. Martin and his insurer, defendant State Farm Mutual Automobile Insurance Company (State Farm), appeal as of right the trial court’s October 9, 2007, order denying their motion for summary disposition and granting summary disposition to plaintiff Auto-Owners Insurance Company (Auto-Owners), Grand Greenville’s insurer. According to State Farm and Martin, the trial court erred by determining that Auto-Owners’ primary liability coverage was limited to $20,000 and that Auto-Owners had no obligation to defend Martin in the underlying negligence action. We agree. Accordingly, we reverse and remand to the trial court for a grant of summary disposition in favor of State Farm and Martin and a declaratory judgment that Auto-Owners is primarily liable, up to its $1 million policy limit, for Martin’s use of Grand Greenville’s vehicle, that State Farm is only liable on an excess basis after Auto-Owners’ coverage has been exhausted, and that State Farm is entitled to reimbursement of defense costs.
i
The pertinent facts of this case are undisputed. On March 22, 2004, Martin was involved in a motor vehicle accident with defendant Paula Mapes. At the time of the accident, Martin was driving a vehicle owned by Grand Greenville. Martin was interested in purchasing the vehicle, and the trial court determined that he was driving it with Grand Greenville’s permission. Grand Greenville carried garage liability insurance issued by Auto-Owners. Martin carried automobile insurance issued by State Farm on his personal vehicle, which was not involved in the accident.
Auto-Owners’ insurance policy provides garage liability coverage of up to $1 million. Section IV of the policy, entitled “DEFINITIONS,” provides, in part:
A. “INSURED” shall mean, wherever used in Coverages A and B[ ] and in other parts of this coverage form when applicable to these coverages, not only the named insured but also ... any person while using an automobile covered by this coverage form and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.
Garage customers[ ] are not insureds with respect to the use of automobiles covered by this coverage form except in accordance with the following additional provisions:
(1) If there is other valid and collectible insurance, whether primary, excess or contingent, available to the garage customer and the limits of such insurance are sufficient to pay damages up to the applicable limit of the financial responsibility law of the state where the automobile is principally garaged, no damages are collectible under the policy.
(2) If there is other valid and collectible insurance available to the garage customer, whether primary, excess or contingent, and the limits of such insurance are insufficient to pay damages up to the applicable limit of the aforesaid financial responsibility law, then this insurance shall apply to the excess of damages up to such limit.
(3) If there is no other valid and collectible insurance, whether primary, excess or contingent, available to the garage customer, this insurance shall apply but the amount of damages payable under this policy shall not exceed the applicable limit of the aforesaid financial responsibility law.
The section of the policy entitled “CONDITIONS” provides, in part:
5. FINANCIAL RESPONSIBILITY. Such insurance as is afforded by this coverage form under Coverages A and B shall comply with the provision of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of an automobile during the policy period, to the extent of the coverage and limits of liability required by such law.
9. OTHER INSURANCE.... Except when stated to apply in excess of or contingent upon the absence of other insurance, the insurance afforded by this is [sic] coverage form is primary insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the Company’s liability under this coverage form shall not be reduced by the existence of such other insurance.
State Farm’s insurance policy provides liability limits of $100,000 for each person and $300,000 for each accident. With respect to liability coverage for the use of non-owned cars, the policy provides:
3. Temporary Substitute Car, Non-Owned Car, Trailer
If a temporary substitute car, a non-owned car or a trailer designed for use with a private passenger car or utility vehicle-.
a. has other vehicle liability coverage on it; or
b. is self-insured under any motor vehicle financial responsibility law, a motor carrier law or any similar law,
then these coverages are excess over such insurance or self-insurance.
On February 16, 2006, Mapes and her husband filed a negligence action against Martin and Grand Green-ville for injuries she sustained in the accident. On April 2, 2007, Auto-Owners filed a declaratory judgment action seeking a determination of the priority of coverage under Auto-Owners’ and State Farm’s insurance policies. Thereafter, State Farm and Martin moved for summary disposition pursuant to MCR 2.116(C)(10) and (I), and Auto-Owners moved for summary disposition under MCR 2.116(I)(2).
Following a hearing on the parties’ motions for summary disposition, the trial court determined, pursuant to Citizens Ins Co of America v Federated Mut Ins Co, 448 Mich 225; 531 NW2d 138 (1995) (Citizens), that Auto-Owners was responsible for paying $20,000 on behalf of Martin under Michigan’s no-fault act, MCL 500.3101 et seq., but that it “was permissible for [Auto-Owners] to exclude coverage applicable to [Martin] above the $20,000/$40,000 limits of liability.” The court ordered that “with respect to the payment of the plaintiffs in the underlying [liability] case. .. [Auto-Owners] shall be responsible for paying the first $20,000 on behalf of [Martin]; [State Farm] shall be responsible for paying the next $100,000 under its policy insuring [Martin]; and [Auto-Owners] shall be responsible for paying up to the next $980,000 pursuant to its coverage of [Grand Greenville].” The court denied State Farm’s request for defense costs. State Farm and Martin filed a motion for reconsideration, which the trial court denied. State Farm and Martin now appeal as of right.
ii
We review a trial court’s decision on a motion for summary disposition de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR 2.116(0(10), which tests the factual sufficiency of the complaint, we consider all the evidence submitted by the parties in the light most favorable to the nonmoving party. Id. at 119-120. Summary disposition should be granted only where the evidence fails to establish a genuine issue regarding any material fact. Id. at 120. Under MCR 2.116(1)(2), summary disposition is properly granted in favor of the nonmoving party if that party, rather than the moving party, is entitled to judgment. DaimlerChrysler Corp v Wesco Distribution, Inc, 281 Mich App 240, 245; 760 NW2d 828 (2008).
Insurance policies are interpreted in accordance with the principles of contract interpretation. Farmers Ins Exch v Kurzmann, 257 Mich App 412, 417; 668 NW2d 199 (2003) (Kurzmann). Insurance policies are also subject to statutory regulation, and mandatory statutory provisions must be read into them. Id. at 417-418; see also Casey v Auto-Owners Ins Co, 273 Mich App 388, 399; 729 NW2d 277 (2006). Insurance policy provisions that conflict with statutes are invalid, but the contracting parties are assumed to have intended a valid contract. Roberts v Titan Ins Co (On Reconsideration), 282 Mich App 339, 358-359; 764 NW2d 304 (2009). Therefore, the policy must be interpreted in harmony with statutory requirements when possible. Id. at 359. The interpretation of clear contractual language is an issue of law reviewed de novo. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003). The determination whether contractual language is ambiguous is also an issue of law that is reviewed de novo. Casey, supra at 394. While ambiguities in a contract generally raise questions of fact for a jury, if a contract must be construed according to its terms alone, it is the court’s duty to interpret the language. Klapp, supra at 469; Kurzmann, supra at 418. When the intent of the parties in an insurance contract cannot be ascertained from the evidence provided, any ambiguities should be construed against the insurer. Klapp, supra at 472, 474, 477 n 16; Kurzmann, supra at 418.
In Citizens, our Supreme Court considered two consolidated cases, each involving a vehicle insured under an automobile liability policy issued by Federated Insurance Company to the vehicle owner but driven by a nonowner. Citizens, supra at 227. “In each case, the driver of the vehicle carried insurance for a personal automobile that was not involved in the accident at issue. . . . Following the accident in each case, personal injury actions were initiated by the accident victims against the respective drivers.” Id. at 228. Initially, the Court determined that “while subject to certain excep tions ..., the no-fault act unambiguously requires that a policy of automobile insurance, sold to a vehicle owner pursuant to the act, must provide coverage for residual liability arising from use of the vehicle so insured.” Id. at 230 (emphasis in original). The Court further determined that Federated’s insurance policy violated the no-fault act in that it denied “residual liability coverage to an entire class of persons” who used the vehicles that it insured, specifically “customers” who used the vehicles with the owners’ permission, unless the customer was uninsured or underinsured. Id. at 230-231.
The Citizens Court next considered the amount of residual liability coverage that Federated was required to provide, stating:
We resolve that question in accord with State Farm Mutual Automobile Ins Co v Shelly, 394 Mich 448; 231 NW2d 641 (1975), in which this Court held that when an unambiguous insurance policy is void because it is against the policy of the Motor Vehicle Accidents Claims Act, MCL 257.1101 et seq...., the reinstated coverage is limited to the amount required by the applicable automobile insurance law. See also MCL 500.3101. .., which states that a policy represented or sold as providing security shall be deemed to provide insurance for the payment of the benefits described in § 3101 of the no-fault act.
In this state, the amount of residual liability coverage required by the applicable no-fault law is determined by reference to § 3009(1). See MCL 500.3131(2). Section 3009(1) requires coverage of at least $20,000 for injury or death of one person, and $40,000 for injury or death of two or more persons (20/40 coverage). MCL 500.3009(1).... Therefore, Federated’s reinstated coverage must provide the 20/40 statutory minimum.
Moreover, Federated’s reinstated coverage is primary to any insurance benefits that may be available under policies that the drivers have purchased. Although we acknowledge that the Legislature has remained silent concerning who among competing insurers must provide primary residual liability benefits, we refuse to construe that silence as expressly authorizing an owner’s insurer, such as Federated, to unilaterally dictate the priority of coverage among insurers in a manner that shifts insurance costs to the nonowner of the vehicle. To construe the Legislature’s silence in that manner would undermine the dominant principle expressly embodied by the no-fault act: vehicle owners and their insurers are responsible for bearing the costs of injuries caused by the permissive use or operation of the vehicle. Instead, because the obligation to obtain residual liability insurance is triggered by the obligation to register a vehicle, rather than by the operation of the vehicle, we think it reasonable to conclude that the owner or registrant of the vehicle has the primary duty to provide residual liability insurance.
Accordingly, in each of these cases, Federated must provide primary 20/40 residual liability coverage. [Citizens, supra at 234-235 (emphasis in original).]
The Court further concluded that the insurers of the drivers were only obligated to pay residual liability benefits if provided for under the terms of their respective policies. Id. at 236.
In this case, Auto-Owners acknowledges that pursuant to the Supreme Court’s holding in Citizens, the provision in its policy excluding residual liability coverage for “garage customers” — except when the customer is uninsured or underinsured “up to the applicable limit of the financial responsibility law of the state” — is invalid to the extent that it would preclude coverage required by the no-fault act. Thus, the primary question at hand is the amount of residual liability coverage Auto-Owners is required to provide for Martin’s use of Grand Greenville’s vehicle. As indicated, Auto-Owners argues (and the trial court ruled) that under Citizens its primary liability coverage of Martin is limited to the “20/40” coverage requirement of the no-fault act. Thereafter, State Farm must provide excess liability coverage under the “non-owned car” provision of its policy, up to its policy limit of $100,000, and then Auto-Owners is responsible for up to the next $980,000 pursuant to its coverage of Grand Greenville and Grand Greenville’s liability under the owner’s liability statute. On the other hand, State Farm and Martin argue that under caselaw issued after Citizens, Auto-Owners is primarily liable up to its policy limit of $1 million before State Farm’s excess coverage applies.
In State Farm Mut Automobile Ins Co v Enterprise Leasing Co, 452 Mich 25; 549 NW2d 345 (1996) (Enterprise), our Supreme Court considered, in three consolidated cases, “whether Michigan’s no-fault insurance act is violated by a car rental agreement purporting to shift the responsibility for providing primary residual liability coverage on the vehicle from the owner to the driver and the driver’s insurer.” Id. at 27. The Citizens Court had specifically declined to apply its conclusion to situations involving rental cars, determining that it was not necessary to overrule State Farm Mut Automobile Ins Co v Snappy Car Rental, Inc, 196 Mich App 143; 492 NW2d 500 (1992) (Snappy I). Citizens, supra at 233. In Enterprise, however, the Court overruled Snappy I, stating, in part:
Our decision to let Snappy I stand was the result of an attempt to distinguish the facts of the cases. That is a distinction we no longer feel is sustainable.... We now conclude that a rental car contract is no more voluntary or mutual than the dealership’s policy at issue in Citizens.
... The driver is not informed that the rental cat-company, as the owner, is required by law to carry insurance on the vehicle that covers any permissive user. The owner cannot shift that responsibility to another party. Just as Federated was required to provide insurance coverage for permissive users in Citizens, we now hold that a car rental company, like any other car owner, must obtain insurance coverage for permissive users of its vehicles.
Further, subsequent developments in the case law have convinced us that the effect of leaving Snappy I intact, even if the distinction could be sustained, would be to eviscerate the intended effect of Citizens. In Citizens, we spoke strongly about the importance of placing the burden of providing primary liability coverage on vehicle owners, as intended by the Legislature. ... The gravamen of our holding in Citizens is that the no-fault act requires car owners to be primarily responsible for insurance coverage on their vehicles. However, the car rental companies have been largely successful in avoiding that responsibility, as demonstrated by the Court of Appeals decisions in these cases. Under Snappy I, the Court of Appeals found that it was required to permit car owners to shift the primary responsibility for providing coverage for the use of their vehicles to the driver and the driver’s insurer. Because this violates the intent of the no-fault act, we overturn Snappy I to the extent that it holds that car owners may avoid primary responsibility for vehicle insurance coverage by agreeing to allocate that responsibility to the driver or driver’s insurer.
Even if the driver could make a voluntary election to allocate the responsibility for coverage to the driver’s insurer, the resulting agreement to allocate would still be void. Enforcing such an agreement would permit the driver to unilaterally dictate the insurance obligations of the parties. Those obligations are a matter of contract, and cannot be unilaterally reassigned. In Citizens, we declined to permit an owner’s insurer to dictate those obligations. ... Under the terms of the insurance contracts, the driver cannot bind the insurance company that issued the driver’s policy of coverage for a personal automobile to provide coverage for another car.
The driver cannot defeat the provisions of the no-fault act by stating that the owner need not pay insurance. Because the driver cannot bind the driver’s insurer, a driver who agreed to shift coverage would remain solely liable for damages caused by use of the vehicle. The rental car would be left uninsured under the terms of the rental agreement stating that the owner provides no insurance. This lack of coverage violates the no-fault act. .. . Just as the car rental company cannot shift liability to a driver’s insurer, it cannot shift liability to a driver personally. Either shift of responsibility away from the owner would violate the act because it requires owners to provide primary coverage. We accordingly hold that the car rental companies and their insurers are required to provide primary residual liability coverage for the permissive use of the rental cars, up to their policy limits or the minimum required by statute. [Enterprise, supra at 33-36 (emphasis added; heading omitted).]
Notably, the Court did not specify whether the “policy limits” or the “minimum required by statute” controls in situations where the owner or owner’s insurer attempts to exclude coverage completely. The Court simply concluded that “any such shifting provision is void. Vehicle owners, including the car rental companies in these cases, are required to provide primary coverage for their vehicles and all permissive users of their vehicles.” Id. at 27-28 (emphasis added). The Court then remanded the cases to the trial court to allocate the liability between the primary insurers (the car rental companies’ insurers) and the excess insurers (the drivers’ insurers). Id. at 41.
On remand, the trial court concluded that Enterprise, which was self-insured with Travelers Insurance Company as an excess carrier for claims over $500,000, could not limit the amount of its liability and rejected Enterprise’s indemnity claim against Majid Sako, the driver. Enterprise Leasing Co of Detroit v Sako, 233 Mich App 281, 283; 590 NW2d 617 (1998). Plaintiffs Enterprise and Travelers subsequently appealed to this Court. A panel of this Court stated the plaintiffs’ arguments, which are similar to Auto-Owners’ arguments in this case, as follows:
Plaintiffs argue that, because the financial responsibility act only requires insurance with minimum limits of $20,000/$40,000, Enterprise was responsible as a self-insurer only for the first $40,000 of claims by the multiple plaintiffs in the underlying action and that anything over $40,000 is excess and, therefore, State Farm’s excess coverage becomes applicable at that point. In other words, Enterprise would be liable for the first $40,000 as a self-insurer, State Farm would be responsible for the next $50,000 (the policy limits) as the excess carrier [the driver’s insurer], and then Enterprise would be liable in tort for the amounts over $90,000 as the owner of the vehicle, subject to its indemnity claim against Sako and, of course, the coverage by Travelers for amounts over $500,000. [Id. at 283-284.]
In rejecting the plaintiffs’ arguments, the panel noted that the arguments were “based on the premise that a self-insurer’s responsibility is limited to the minimum coverage required by law.” Id. at 284. The panel stated that “a certificate of self-insurance issued by the Secretary of State is the functional equivalent of a commercial policy of insurance with respect to the no-fault act and the financial responsibility act. When a company applies for self-insured status, that company represents that it is able and will continue to be able to satisfy judgments obtained against it.” Id. (citations omitted). Accordingly, the panel held:
There is nothing in the financial responsibility statute that limits the self-insured’s liability to the minimum coverage requirements of the no-fault or financial responsibility acts. A self-insured’s liability extends to the full value of its assets. A company that prefers to avoid unlimited risk has the option of purchasing a commercial insurance policy.
We are convinced that, when a car rental company enjoys the advantages of self-insurance, it cannot attempt to limit its risks by asserting that its responsibility is limited to the minimum coverage requirements of the no-fault or the financial responsibility acts. Consequently, Enterprise is liable for the full amount of the settlement. Moreover, because State Farm’s coverage was excess to any other insurance, and because Enterprise’s self-insurance was not limited to the statutory minimum, State Farm is not directly liable for any portion of the settlement.
We now turn to the second issue raised, namely, whether Sako is liable for any portion of the settlement under an indemnification claim. However, in light of our resolution of the first issue, and a concession made by plaintiffs in their brief on the second issue, the indemnification issue may now be deemed abandoned. In their brief on appeal, plaintiffs, in footnote 12, concede that indemnity does not apply to the first $40,000 because the Supreme Court’s decision in this case makes Enterprise first in priority with respect to the amount of primary residual liability coverage. However, as resolved in the first issue, the limit of Enterprise’s primary liability is not $40,000 as Enterprise argues, but is the full value of their assets. Therefore, the import of plaintiffs’ concession is that indemnity does not apply to that higher amount of primary liability, i.e., the full value of Enterprise’s assets. Accordingly, in light of this discussion, we decline to address the merits of the indemnity issue. [Id. at 284-285.]
Thereafter, a panel of this Court ruled in Kurzmann that in circumstances where the insurer knows or should know that an exclusionary clause in its policy is invalid, the insurer is primarily liable up to the limits of its policy. Kurzmann, supra at 419-420, 422. Kurzmann involved an automobile liability policy that violated public policy under the no-fault act by purporting to exclude coverage for bodily injury to the insured or a member of the insured’s family. Id. at 414, 418-419. The exclusion at issue had been declared void as against public policy in Michigan for over 20 years. Id. at 418. The trial court held that “the insurance policy was ambiguous because it specifically stated that it was in compliance with financial-responsibility laws and yet included an invalid limitation on bodily-injury coverage for insureds.” Id. at 416. Citing Shelly, the insurer argued that while its exclusionary provision was void, any reinstated coverage should be limited to the minimum amount required by the statute. Id. at 415, 419. The insurer further argued that the language excluding coverage was unambiguous and thus the rule of reasonable expectation was inapplicable. Id. at 415. The panel rejected the insurer’s arguments and held that because the insurer knew or should have known at the time it issued the policy that the exclusion was void, the insurer was bound by the policy limits. Adopting the rationale set forth in Detroit Automobile Inter-Ins Exch v Parmelee, 135 Mich App 567, 570; 355 NW2d 280 (1984), (Parmelee), the Kurzmann panel explained:
Parmelee ... held that when an insurance policy contains an exclusion that the insurer knows or should know is void,[ ] the insurer may not rely on the void exclusion to reduce the policy coverage to the statutory minimum. This Court declared that the exclusionary clause was ambiguous in light of the fact that the [insurer] knew the provision violated public policy and allowed its insured to pay for a policy containing additional residual bodily injury coverage beyond the amount required by law.
We see no reason why Farmers [the insurer in Kurzmann] should benefit from the statutory mínimums when they knowingly placed invalid exclusionary provisions in their policy and then allowed their insureds to purchase increased coverage. Farmers’ blatant violation of the long-held public policy in this case is offensive and should not be condoned or rewarded. [Kurzmann, supra at 419-420, 422 (citations omitted).]
Given the insurer’s inclusion of an exclusion it knew to be invalid, the panel held the insurer primarily liable up to the policy limits. Id. at 422.
The Kurzmann panel also considered Shelly and Citizens, where the reinstated coverage was limited to the amount required by the applicable automobile insurance law, but effectively concluded that those decisions did not preclude it from following Parmelee under the circumstances of the case:
Notably, Farmers completely fails to cite any authority that overrules or even criticizes the decision reached in Parmelee. Moreover, a review of the cases cited by Farmers shows that they either predate Parmelee or are distinguishable.
For instance, Farmers cites Shelly ... for the proposition that if an unambiguous provision in an insurance contract is void, the reinstated coverage is limited to the minimum amount mandated by law. Not surprisingly, Farmers overlooks the fact that Shelly was decided before this Court’s decision in Parmelee. Indeed, as previously indicated, Parmelee, supra, actually noted the plaintiff insurance company’s reliance on Shelly for that same proposition but did not find it persuasive. Farmers’ reliance on [Citizens] is also without merit. In Citizens, supra at 227-228, the policy exclusion at issue actually dealt with an insurer’s liability when the driver of the vehicle involved in an accident carried an insurance policy for a personal automobile not involved in the accident. As explained in [Enterprise], Citizens, supra at 227, required the Court “to determine ‘the validity of a vehicle owner’s policy of liability insurance that denies coverage to any permissive user who is otherwise insured for an amount equal to that specified by the no-fault act.’ ” We also note that Citizens relied on Shelly when it determined that the reinstated coverage was limited to the statutory minimum. Citizens, supra at 234. [Kurzmann, supra at 420-421.]
It appears that the Kurzmann panel followed Parmelee over Shelly in part because Parmelee was decided more recently than Shelly, such reliance fails to appropriately consider the greater precedential weight of Shelly as a decision of our Supreme Court. However, the Kurzmann panel also referred to the fact that Parmelee did not find Shelly persuasive under the circumstances presented. The Parmelee panel stated that the exclusion at issue had been held void as against public policy and that the insurer “should have been aware that the policy at issue contained a clause that, if not totally void, was certainly ambiguous in the instant situation where defendants had paid for a policy containing extra residual bodily injury coverage of $100,000/$300,000 but the law, MCL 500.3009(1) required limits of $20,000/$40,000.” Parmelee, supra at 570. The panel then applied the principle that ambiguity in a policy “must be liberally construed in favor of the insured and against the insurer who drafted it” to affirm the trial court’s holding that the contractual policy limits applied in that case. Id.
Like the insurer in Kurzmann, Auto-Owners knew or should have known that the exclusionary clause in the policy at issue was void. The no-fault act clearly directs that a policy sold pursuant to the act must provide residual liability coverage for use of the vehicle insured, and, eight years before Auto-Owners issued its policy, our Supreme Court expressly declared the type of exclusion at issue invalid. Citizens, supra. Consequently, in keeping with this Court’s ruling in Kurzmann, we find that the exclusionary clause was ambigu ous in light of the fact that Auto-Owners knew or should have known for at least eight years before its issuance of the policy that its attempt to exclude garage customers (a subset of permissive users) from coverage clearly violated the no-fault act, yet it nevertheless included the exclusion in its policy. Therefore, the policy must be construed in favor of the insured to provide coverage up to the policy limits to both the owner of the vehicle and its permissive users.
In an attempt to distinguish the facts of this case from those in Kurzmann and Parmelee, Auto-Owners points out that those cases dealt with different exclusionary provisions than the one at issue, provisions “applicable to all the parties and limits of liability.” Auto-Owners appears to be referring to the fact that the invalid exclusionary provision in this case only excludes coverage for “garage customers,” with certain exceptions; whereas, in Kurzmann and Parmelee, the exclusionary provisions at issue excluded coverage for the named insured. While Auto-Owners makes a valid distinction, it does not explain why this distinction is material. Because we see no material distinction, we are bound to follow the holding in Kurzmann that by knowingly including an invalid exclusionary provision in its policy, an insurer renders the policy ambiguous and the policy must be construed against the insurer.
Auto-Owners also argues that its policy contains a statutory compliance provision that operates to reduce coverage to the statutory minimum in the face of an invalid policy exclusion. The provision states as follows:
5. FINANCIAL RESPONSIBILITY. Such insurance as is afforded by this coverage form under Coverages A and B shall comply with the provision of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of an automobile during the policy period, to the extent of the coverage and limits of liability required by such law.
Auto-Owners’ position lacks merit for several reasons. First, this Court in Kurzmann rejected a similar argument by the insurer in that case, and held that the existence of a statutory compliance provision in the face of a known invalid exclusion and policy limits above the statutory minimum rendered the policy ambiguous and therefore the policy limits applied. Kurzmann, supra at 416, 418, 421. Second, the provision in Auto-Owners’ policy addresses compliance with motor vehicle financial responsibility law, which is not the law at issue in this case. Rather, Auto-Owners’ policy violates the no-fault act. Third, Auto-Owners’ provision contains no amending or conforming language. It merely states that its policy shall comply with motor vehicle financial responsibility law to the extent of the coverage and limits of liability required by such law. Aside from an improper exclusion of garage users, Auto-Owners’ policy did comply with financial responsibility law, as it sold a policy that provided coverage in an amount that complied with financial responsibility law in Michigan. The provision contains no language indicating that in the event an exclusion is deemed void, only the statutory minimum applies. We cannot be expected to read into the policy language that it did not provide. Finally, if Auto-Owners wanted to limit its coverage of garage customers to the statutory minimum, it could have expressly stated so; it chose not to, creating the ambiguity at issue.
Even if Kurzmann were not binding in this case, Auto-Owners is still liable up to its policy limits under the general principles of contract law. Under such principles, the inclusion of an invalid exclusionary provision results in the deletion or voiding of the offending language, while leaving intact the remainder of the policy’s terms and obligations, including the provisions addressing the extent of coverage. Here, the terms of the policy require Auto-Owners to pay “all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law” for damages because of bodily injury or property damage caused by “any person while using an automobile covered by” the insurance policy “provided the actual use of the automobile is with the permission of the named insured.” Deletion of the void exclusionary language leaves intact the policy language that covers as an insured any person using the automobile with the permission of the named insured. With regard to liability coverage, the insurance contract provides $1 million as the limit for each occurrence. The policy limit of $1 million remains intact despite the invalid exclusion.
Our finding comports with our Supreme Court’s finding in Enterprise, which affirmed and extended its holding in Citizens that an owner is primarily responsible for paying residual liability benefits, that vehicle owners are required to provide primary coverage for their vehicles and all permissive users of their vehicles, and that any attempt to shift liability away from the owner to the driver violates the no-fault act and is void.
Auto-Owners argued before the trial court that Grand Greenville engaged in a bargained-for commercial transaction, and, consequently, the parties were free to enter into a contract restricting primary coverage to the extent permitted by law. It is noteworthy, however, that Auto-Owners sold Grand Greenville a $1 million policy and acknowledges that the policy covers Grand Greenville, as the owner of the vehicle involved in the accident, up to $1 million. The section of Auto-Owners’ policy entitled “OTHER INSURANCE” provides, in pertinent part:
Except when stated to apply in excess of or contingent upon the absence of other insurance, the insurance afforded by this coverage form is primary insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the Company’s liability coverage under this coverage form shall not be reduced by the existence of other such insurance.
By seeking to limit its coverage to the statutory minimum of $20,000, and then any remaining amount of damages for which Grand Greenville is held liable only after Martins’ insurance coverage is exhausted, Auto-Owners is attempting to unilaterally shift a portion of the residual liability away from the owner of the vehicle to the driver or the driver’s insurance company, neither of which is a party to the contract. Our Supreme Court has expressly condemned such shifting as violative of the no-fault act. As stated in Citizens, although “the Legislature has remained silent concerning who among competing insurers must provide primary residual liability benefits, we refuse to construe that silence as expressly authorizing an owner’s insurer ... to unilaterally dictate the priority of coverage among insurers in a manner that shifts insurance costs to the nonowner of the vehicle.” Citizens, supra at 235 (emphasis in original). The Supreme Court extended its analysis of this issue in Enterprise and held that “any such shifting provision is void. Vehicle owners ... are required to provide primary coverage for their vehicles and all permissive users of their vehicles.” Enterprise, supra at 27-28 (emphasis added). Pursuant to the owner’s liability statute, MCL 257.401, Grand Greenville remains 100 percent liable for damages related to the subject accident. In attempting to distinguish between Grand Greenville as the owner insured and Martin as a permissive user, which Auto-Owners is also statutorily required to include as an insured, Auto-Owners is attempting to unilaterally dictate priority of coverage. This it cannot do. Given our finding that Auto-Owners is primarily liable up to its policy limits of $1 million, we need not address Auto-Owners’ argument regarding subrogated indemnification and State Farm’s coverage.
in
Finally, we address State Farm’s claim that it is entitled to reimbursement of defense costs from Auto-Owners for defending Martin in the underlying action. Auto-Owners asserts that State Farm waived this issue by failing to file a counterclaim seeking reimbursement of its defense costs or request reimbursement in its answer or affirmative defenses. We conclude that this issue was properly preserved for appellate review. Auto-Owners requested a declaratory judgment on the rights and responsibilities of the parties, together with any other relief to which it was entitled. MCR 2.605, which grants Michigan courts the power to issue declaratory judgments, also grants the courts power to issue further “necessary or proper relief. . . against a party whose rights have been determined by the declaratory judgment.” At the hearing on the parties’ motions for summary disposition, counsel for State Farm and Martin requested that the trial court consider the issue of defense costs. The court responded, “I find that State Farm is not entitled to the costs of defense from Auto-Owners insofar as State Farm has liability under the policy that Mr. Martin is being required to pay $100,000 for purposes of completeness.”
In Radenbaugh v Farm Bureau Gen Ins Co of Michigan, 240 Mich App 134, 137-138; 610 NW2d 272 (2000), a panel of this Court addressed insurers’ duty to defend:
It is well settled that “if the allegations of the underlying suit arguably fall within the coverage of the policy, the insurer has a duty to defend its insured.” Further,
“[a]n insurer has a duty to defend, despite theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. The duty to defend cannot be limited by the precise language of the pleadings. The insurer has the duty to look behind the third-party’s allegations to analyze whether coverage is possible. In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured’s favor.”
Also, the following fundamental principles of insurance law apply:
“It is well settled in Michigan that an insurer’s duty to defend is broader than its duty to indemnify. In order to determine whether an insurer has a duty to defend its insured, this Court must look to the language of the insurance policy and construe its terms to find the scope of the coverage of the policy.” [Citations omitted.]
In this case, section III of Auto-Owners’ policy includes a provision regarding its duty to defend, stating that it has “the right and duty to defend . . . any suit against the insured alleging such injury or destruction and seeking damages . . . where the Company is liable to the insured . . .The provision further states that Auto-Owners has the obligation to pay certain expenses in addition to the applicable limits of liability. Auto-Owners argues that because Martin is not an “insured” under its policy and it is only obligated to provide liability coverage for Martin under the no-fault act, it has no obligation to defend Martin under the terms of its policy. But, under the holding in Kurzmann, Auto-Owners is required to provide primary residual liability coverage for Martin’s use of Grand Greenville’s vehicle up to its policy limits. Therefore, while Kurzmann did not address the issue of defense costs, it follows that Auto-Owners is obligated to defend Martin in the underlying action and that State Farm is entitled to reimbursement for those costs.
Reversed and remanded to the trial court for a grant of summary disposition in favor of State Farm and Martin and a declaratory judgment that Auto-Owners is primarily liable for Martin’s use of Grand Greenville’s vehicle (up to its $1 million policy limit), that State Farm is only liable on an excess basis after Auto-Owners’ coverage has been exhausted, and that State Farm is entitled to reimbursement of defense costs. We do not retain jurisdiction.
Coverages A and B are “BODILY INJURY LIABILITY” and “PROPERTY DAMAGE LIABILITY” under section I of the policy.
The parties agree that Martin was a “garage customer” as defined hy the policy
In context, this reference to a “void” policy provision plainly referred to a policy provision that was void to the extent that it would limit liability coverage required by the no-fault act.
Further, the Kurzmann Court was not required to follow Parmelee under MCR 7.215(J)(1) because Parmelee was decided before November 1, 1990, but could find it persuasive and adopt its reasoning.
In Farm Bureau Gen Ins Co of Michigan v Haller, 474 Mich 1057 (2006), our Supreme Court denied leave to appeal Farm Bureau Gen Ins Co of Michigan v Haller, unpublished opinion per curiam of the Court of Appeals, issued April 26, 2005 (Docket No. 250272) {Haller), which applied the Kurzmann panel’s rationale. The Haller panel held that the criminal acts exclusion in the insurance policy at issue violated the no-fault act, the exclusion was unenforceable and invalid, and coverage in the amount of the policy limit was applicable. Haller, supra at 2. In holding that the policy limit rather than the statutory minimum applied, the panel stated that it agreed with the conclusion reached in Kurzmann, noting that the Kurzmann panel had distinguished Shelly and Citizens. Id. at 6. Additionally, the Haller panel stated:
Moreover, and aside from Kurzmann and the case law discussed therein, a contractual provision of the insurance policy dictates that the $300,000 policy limit controls. The relevant provision provides:
“COMMON POLICY CONDITIONS
“M. CONFORMITY WITH STATUTE
“Terms of this policy which are in conflict with the statutes of the state where the property described in the Declarations is located are amended to conform to such statutes.”
Under contract law principles, this self-amending language indicates that the inclusion of an invalid provision, i.e., the “criminal acts” exclusion in this instance, results in the deletion or voiding of the offending language, while leaving intact the remainder of the contractual terms and obligations, including the provisions addressing the extent of the coverage. The insurance policy’s liability coverage requires [the insurer] to pay “all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’... to which [the] insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance, or use of a covered ‘auto.’ ” With regard to the policy’s limit regarding liability coverage, the insurance contract provides that $300,000 is the most that [the insurer] “will pay for any one accident or loss.” The policy limit of $300,000 remains intact despite the inapplicability of the exclusion for criminal acts. [I'd.]
The policy was issued on September 10, 2003.
The distinction between compliance with the financial responsibility act and compliance with the no-fault act was articulated in Citizens, supra at 228 and 230 n 3. As pointed out in Citizens, “[t]he no-fault act, as opposed to the financial responsibility act, is the most recent expression of this state’s public policy concerning motor vehicle liability insurance.” Id. at 232.
Auto-Owners’ reliance on Cohen v Auto Club Ins Ass’n, 463 Mich 525; 620 NW2d 840 (2001), is also misplaced. In Cohen, the dispute involved uninsured motorist coverage, which is not required by the no-fault act. Cohen, supra at 530-531. Coverage by vehicle owners for their permissive users, on the other hand, is among those coverages that “are the bedrock of the no-fault system and... are not subject to removal by policy language that conflicts with the statute.” See id. at 531.
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Fer CURIAM.
Respondent appeals as of right the Tax Tribunal’s order canceling an assessment against petitioner. This appeal is being considered concurrently with SMK, LLC v Dep’t of Treasury, 298 Mich App 302; 826 NW2d 186 (2012), in which the same issue is presented for our consideration. The sole issue before us is whether the Tax Tribunal had the jurisdiction to hear petitioner’s appeal of its tax assessment. We conclude that it did and affirm.
This Court’s review of a Tax Tribunal decision not relating to property tax valuation or allocation must include, at a minimum, whether the decision was authorized by law and, in cases in which a hearing was required, whether the decision was supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28. When the resolution of the matter involves statutory interpretation, review de novo is appropriate. AERC of Mich, LLC v Grand Rapids, 266 Mich App 717, 722; 702 NW2d 692 (2005). “The purpose of statutory interpretation is to discover and give effect to the Legislature’s intentions, and unambiguous statutory language should be enforced as written.” Walgreen Co v Macomb Twp, 280 Mich App 58, 62; 760 NW2d 594 (2008). “In interpreting a statute, this Court avoids a construction that would render any part of the statute surplusage or nugatory [and] the statute must be read as a whole [with] [individual words and phrases [being] read in the context of the entire legislative scheme.” Mich Props, LLC v Meridian Twp, 491 Mich 518, 528; 817 NW2d 548 (2012) (citations omitted).
In the instant case, an audit revealed that petitioner had understated its taxable sales. On the basis of the result of this audit, respondent confirmed that petitioner had understated its taxable sales and issued a final assessment against petitioner requiring it to pay unpaid sales taxes, penalties, and interest. Despite petitioner’s request for respondent to send copies of all letters and notices to petitioner’s representative, the final assessment was initially sent only to petitioner, on or about September 16, 2009. Petitioner’s representative did not receive the final assessment from respondent until July 20, 2010. Petitioner then filed its appeal in the Tax Tribunal on July 28, 2010. Rather than filing a response, respondent moved for summary disposition under MCR 2.116(C)(4), arguing that the Tax Tribunal did not have jurisdiction over the appeal because it had not been filed within 35 days of the final assessment. MCL 205.22(1).
The Tax Tribunal concluded that MCL 205.8 adds a parallel notice requirement whenever a taxpayer has filed a proper written request that copies of letters and notices be sent to a representative. The Tax Tribunal further concluded that because respondent did not initially send notice to the appointed representative of petitioner, the time for petitioner’s appeal did not begin to run until petitioner’s representative was notified. Thus, the Tax Tribunal determined that the appeal was timely and it had jurisdiction. After the Tax Tribunal concluded that the “source documents were well-maintained and adequate to allow the Tribunal to determine the proper sales tax due,” the burden was shifted to respondent to show that the amount paid was incorrect. Because respondent failed to satisfy that burden, the Tax Tribunal cancelled the final assessment against petitioner. The correctness of the amount paid is not at issue before us at this time.
The issue before us today is when the 35-day period under MCL 205.22(1) begins to run if the taxpayer has previously filed a written request with the Treasury to send copies of all letters and notices to the taxpayer’s representative. This case presents an issue of first impression because this Court has not previously con sidered the effect of MCL 205.8 on MCL 205.22 in a published opinion. Petitioner argues that the 35-day period begins to run only once a copy of the final assessment has been received by petitioner’s representative. We agree.
Under MCL 205.22(1), a taxpayer “may appeal the contested portion of [an] assessment, decision, or order to the tax tribunal within 35 days, or to the court of claims within 90 days after the assessment, decision, or order.” If an appeal is not initiated during these time frames, the assessment, decision, or order “is final and is not reviewable in any court by mandamus, appeal, or other method of direct or collateral attack.” MCL 205.22(4). The assessment in this case was based on the failure to pay taxes that respondent believed petitioner owed under the General Sales Tax Act, MCL 205.51 et seq. When imposing taxes under that act, respondent is required by MCL 205.59(1) to follow the provisions of the revenue collection act, MCL 205.1 et seq. Because the sections at issue — MCL 205.8, 205.22, and 205.28— are part of that act, the plain language of MCL 205.59(1) indicates that respondent is required to follow all these sections unless the provisions of the revenue collection act and the General Sales Tax Act conflict, in which event the provisions of the General Sales Tax Act apply.
MCL 205.28(1) provides, in relevant part:
The following conditions apply to all taxes administered under this act unless otherwise provided for in the specific tax statute:
(a) Notice, if required, shall be given either by personal service or by certified mail addressed to the last known address of the taxpayer. Service upon the department may be made in the same manner.”
And MCL 205.8 provides:
If a taxpayer files with the department a written request that copies of letters and notices regarding a dispute with that taxpayer be sent to the taxpayer’s official representative, the department shall send the official representative, at the address designated by the taxpayer in the written request, a copy of each letter or notice sent to that taxpayer. A taxpayer shall not designate more than 1 official representative under this section for a single dispute.
The Tax Tribunal held that MCL 205.8 provided a “more specific requirement” and that respondent was required to send all “letters and notices regarding a dispute with a taxpayer” to petitioner’s representative as long as petitioner had made a proper written request.
MCL 205.8 imposes an affirmative and mandatory duty on respondent to send “copies of letters and notices regarding a dispute” to taxpayers’ official representatives. See Granger v Naegele Advertising Cos, Inc, 46 Mich App 509, 512; 208 NW2d 575 (1973) (“ ‘Shall’ is equivalent to the word ‘must’.”). However, MCL 205.8 is not the kind of other “specific tax statute” contemplated by MCL 205.28(1). By its plain terms, MCL 205.28(1) applies to “this act,” of which MCL 205.8 is a part. The proper interpretation of the statute is that the reference in MCL 205.28(1) is to other discrete statutes that themselves impose a tax, such as the General Property Tax Act, MCL 211.1 et seq.; the Income Tax Act, MCL 206.1 et seq.; or the Use Tax Act, MCL 205.91 et seq. The Tax Tribunal’s interpretation of the statute would expand this reference to the entire set of Michigan tax statutes, rather than any particular notice requirements specific to each individual tax statute. Notably, the General Sales Tax Act, under which the taxes here were allegedly owed, does not have its own notice requirements. Nevertheless, as noted, the Tax Tribunal correctly held that MCL 205.8 was applicable and binding, and MCL 205.28 must be interpreted in parallel with MCL 205.8 whenever a taxpayer files a valid written notice designating an official representative.
Respondent argues that the Legislature would have specifically referred to MCL 205.28 in MCL 205.8 if it had intended to elevate the level of notice required. Respondent’s interpretation would require us to undermine the plain language of a statute on the basis of an impermissible guess at the Legislature’s intent. Statutory interpretation requires an holistic approach. Robinson v City of Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010). A provision that may seem ambiguous in isolation often is clarified by the remainder of the statutory scheme. Id. It is a tenet of statutory interpretation that “[conflicting provisions of a statute must be read together to produce an harmonious whole and to reconcile any inconsistencies wherever possible.” World Book, Inc v Dep’t of Treasury, 459 Mich 403, 416; 590 NW2d 293 (1999). In reading the provisions of MCL 205.8 and MCL 205.28(1) together, it is clear that these sections should be interpreted as imposing parallel notice requirements whenever a taxpayer has a valid written request on file for respondent to send copies to an official representative. This interpretation gives meaning to both statutory sections’ plain language and produces “an harmonious whole.” World Book, 459 Mich at 416. Thus, the 35-day period of MCL 205.22(1) does not begin to run until notice has been given under both MCL 205.8 and MCL 205.28(1).
Respondent finally argues that a final assessment is not a letter or notice, thus avoiding application of MCL 205.8 to these proceedings. “Notice” is defined as “[Ilegal notification required by law or agreement, or imparted by operation of law as a result of some fact[.]” Black’s Law Dictionary (9th ed). Respondent defines the final assessments as final bills for taxes due, but however respondent wishes to describe them, they nevertheless function as legal notifications to taxpayers that taxes are due. It was previously the practice of respondent to use the phrasing “notice of final assessment” when it issued assessments. Livingstone v Dep’t of Treasury, 434 Mich 771, 826; 456 NW2d 684 (1990) (opinion by LEVIN, J.); Stackpoole v Dep’t of Treasury, 194 Mich App 112, 114; 486 NW2d 322 (1992); Dow Chem Co v Dep’t of Treasury, 185 Mich App 458, 461-462; 462 NW2d 765 (1990). Furthermore, the plain language of MCL 205.28 uses the word “notice” to refer to final assessments. Thus, a final assessment is a “notice” for the purposes of interpreting MCL 205.8, and that statute imposes a duty on respondent to send a copy of that notice to a petitioner’s official representative.
Although respondent sent a letter dated April 21, 2010, to one of petitioner’s representatives that indicated a final assessment was issued on September 17, 2009, this letter only gave the representative notice of the issuance of the final assessment. The letter itself was not the final assessment, and the plain language of MCL 205.8 requires respondent to send “a copy of” the notice, i.e., the final assessment, not just notice of it. Or, put another way, notice of the notice is not itself the “notice” contemplated by statute. Thus, the letter did not satisfy the requirements under MCL 205.8.
We conclude that MCL 205.8 must be interpreted in tandem with MCL 205.28(1) as creating parallel notice requirements. If a taxpayer has filed a proper written notice that designates an official representative, then respondent must give notice to both the taxpayer and the taxpayer’s representative before the 35-day period under MCL 205.22(1) begins to run. Because petitioner filed its appeal within 35 days after its representative received notice from respondent, the Tax Tribunal had jurisdiction to hear petitioner’s appeal. Therefore, we affirm.
RONAYNE Krause, EJ., and Borrello and Riordan, JJ., concurred.
Although respondent implies that Altman Mgt Co v Dep’t of Treasury, unpublished opinion per curiam of the Court of Appeals, issued April 10, 2001 (Docket No. 216912), p 3, should be persuasive authority in determining the outcome of the instant case, the Tax Tribunal found in Altman that the petitioner had not filed a valid written request that copies of letters and notices be sent to an official representative. Thus, this Court did not consider whether respondent is required to give a copy of a final assessment to a taxpayer’s official representative if a request is on file, and Altman cannot be considered persuasive nor binding. See Grimm v Dep’t of Treasury, 291 Mich App 140, 149 n 4; 810 NW2d 65 (2010); MCR 7.215(C)(1). | [
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Eer CURIAM.
Defendant appeals as of right a judgment of divorce following a bench trial'. Because the trial court failed to address defendant’s request for attorney and expert fees pursuant to MCR 3.206(C)(2)(a), erred by determining as a matter of law that the value of a business cannot be used for purposes of both property division and spousal support, abused its discretion by imputing to defendant an income of $40,000 for the purpose of determining spousal support, appropriately imposed a restriction prohibiting defendant from competing with the business that the trial court awarded to plaintiff in the property distribution, and made findings regarding fault and whether defendant was responsible for the support of their adult son that were not clearly erroneous, we affirm in part, reverse in part, and remand for further proceedings.
I. ATTORNEY AND EXPERT FEES
Defendant first argues that the trial court erred when it failed to award her attorney and expert fees pursuant to MCR 3.206(C)(2)(a). “Generally, an issue is not properly preserved if it is not raised before, addressed, or decided by the circuit court or administrative tribunal” and need not be addressed if first raised on appeal. Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005) (emphasis added). We would have appreciated it if the trial court had ad dressed this issue, but because it was raised there and is now being pursued on appeal, it is preserved for our review. Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994).
We review a trial court’s decision whether to award attorney fees for an abuse of discretion, the trial court’s findings of fact for clear error, and any questions of law de novo. Myland v Myland, 290 Mich App 691, 701-702; 804 NW2d 124 (2010). However, “ ‘failure to exercise discretion when called on to do so constitutes an abdication and hence an abuse of discretion.’ ” Rieth v Keeler, 230 Mich App 346, 348; 583 NW2d 552 (1998), quoting People v Stafford, 434 Mich 125, 134 n 4; 450 NW2d 559 (1990).
MCR 3.206(C)(2)(a) provides:
A party who requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other party is able to pay ....
“This Court has interpreted this rule to require an award of attorney fees in a divorce action ‘only as necessary to enable a party to prosecute or defend a suit.’ ” Myland, 290 Mich App at 702, quoting Gates v Gates, 256 Mich App 420, 438; 664 NW2d 231 (2003). “[A] party sufficiently demonstrates an inability to pay attorney fees when that party’s yearly income is less than the amount owed in attorney fees.” Myland, 290 Mich App at 702.
The trial court’s failure to address defendant’s request for attorney and expert fees under MCR 3.206(C)(2)(a) in light of her multiple requests was an abuse of discretion. In Myland, 290 Mich App at 703, this Court held that the trial court erred as a matter of law by failing to consider “whether attorney fees were necessary for plaintiff to defend her suit, including whether, under the circumstances, plaintiff would have to invade the same spousal support assets she is relying on to live in order to pay her attorney fees and whether, under the specific circumstances, defendant has the ability to pay or contribute to plaintiffs fees.” The trial court in the instant case similarly erred. The court failed to address defendant’s request under MCR 3.206(C)(2)(a) by considering her ability to pay her fees relative to plaintiffs ability to pay. Moreover, defendant contends that her attorney fees alone total over $62,000, which is more than the amount of income that the trial court erroneously imputed to her. Thus, she sufficiently demonstrated her inability to pay. Myland, 290 Mich App at 702. We therefore remand this case to the trial court for the court to address and decide defendant’s request for attorney and expert fees under MCR 3.206(C)(2)(a).
II. SPOUSAL SUPPORT
Defendant next argues that the trial court erred by imputing to plaintiff a yearly income of $130,000 for the purpose of determining spousal support. It is within the trial court’s discretion to award spousal support, and we review a spousal support award for an abuse of discretion. Woodington v Shokoohi, 288 Mich App 352, 355; 792 NW2d 63 (2010); Berger v Berger, 277 Mich App 700, 726; 747 NW2d 336 (2008). We also review for an abuse of discretion a trial court’s decision whether to impute income to a party. Carlson v Carlson, 293 Mich App 203, 205; 809 NW2d 612 (2011). “An abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and principled outcomes.” Woodington, 288 Mich App at 355. “The object in awarding spousal support is to balance the incomes and needs of the parties so that neither will be impoverished; spousal support is to be based on what is just and reasonable under the circumstances of the case.” Berger, 277 Mich App at 726. We review for clear error the trial court’s factual findings regarding spousal support. Id. at 727. A finding is clearly erroneous if, after reviewing the entire record, we are left with the definite and firm conviction that a mistake was made. Woodington, 288 Mich App at 355. If the trial court’s findings are not clearly erroneous, we must determine whether the dispositional ruling was fair and equitable under the circumstances of the case. Berger, 277 Mich App at 727. We must affirm the trial court’s dispositional ruling unless we are convinced that it was inequitable. Id.
Defendant contends that the trial court erred by imputing to plaintiff a yearly income of $130,000 for the purpose of calculating spousal support instead of basing the calculation on plaintiffs $240,000 yearly salary from QPhotonics, LLC, a company that plaintiff formed in 2000 and at which he began working full time in 2004. Plaintiff, on the other hand, argues that the trial court’s decision to base spousal support on the lesser amount was appropriate to avoid a “double-dip” because the court awarded defendant one-half of the value of QPhotonics when it divided the parties’ marital assets.
“ ‘Double dipping’ — or ‘tapping the same dollars twice’ — refers to situations where a business or professional practice is valued by capitalizing its income, some or all of which is also treated as income for spousal support purposes.” Cunningham, “Double dipping” revisited: Food for thought, 27 Mich Fam L J, p 6 (January-1999).
When the main value of a business (such as a service business or professional practice) is goodwill derived from its ability to generate future income, the appraisal typically involves determining the reasonable compensation of the owner, that is, what the owner would earn working for someone else if he or she did not own the business. The extra income (sometimes called excess compensation) earned over and above that reasonable compensation represents the investment return of the business and is an important element in the value of the business. To the extent that a nonowner spouse shares in excess compensation that was rolled into the value of the business, some practitioners argue that this same income should be excluded from consideration in support calculations because to include it would amount to a double dip by awarding a share of that excess compensation as part of the property division, and then another share of the same income stream as part of a support award. [2 Kelly, Curtis & Roane, Michigan Family Law (7th ed) (ICLE, 2011), § 15.40, p 15-46.]
In this case, the trial court determined that the value of QPhotonics was $280,000. The court awarded the company to plaintiff and awarded defendant $140,000, or one-half of the value of the company. The trial court then addressed spousal support, stating, in relevant part:
[T]he critical issue for the Court is what income will be used by the parties in calculating support. The issue is whether — and the primary issue here is what the Court has deemed and has been referred to as the double-dip. The issue is whether the plaintiffs share of the business future profits, that being the value of the company, in this case, the $280,000, can be used for both division of the marital assets, as the Court has now just done, and for calculation of spousal support.
The Court has been cited to, has read and agrees with plaintiffs argument that the holding of the court in Heller v Heller [2008-Ohio-3296 (Ohio App, 2008) (Heller I)], a 2008 case, that that rationale, that awarding part of the same asset twice, results in an unequal property division. So, for purpose of the record, the Court in Heller determined this double-dipping in the context of spousal support and talks in part about - and distinguishes the issue of pensions, which I believe should be distinguished, but then goes on to talk about that the Heller case used the capitalization of earnings method, that which was used in this case, in determining the value of the S corporation, again, like QPhotonics, at issue in this case, which the court indicated effectively and appropriately kept the concepts of defendant’s salary and ownership profits separately.
I believe the court in Heller, which our Court of Appeals, for whatever reason, has, at least at this point, failed to undertake, clearly identifies what the issue is, and for purposes of fairness and being equitable, identifies that the determination of whether or not the valuation of the business is either for purpose of distribution of property or spousal support and not both. In this case, given that it’s been for business purpose, for the utilization of that amount, then, for purpose of spousal support, at least short-term, if not for the entirety of spousal support, would be unfair.
Therefore, this Court determines that the income of the plaintiff to be utilized for calculating spousal support purposes is $130,000.[ ]
This Court has previously addressed double-dipping in the context of pensions. In McCallister v McCallister, 205 Mich App 84; 517 NW2d 268 (1994), the trial court awarded the defendant wife a portion of the value of the plaintiff husband’s pension when it divided the couple’s marital assets. The court awarded the plaintiff the pension plan itself, free of any claim of interest by the defendant. Id. at 89 (REILLY, EJ., concurring). After the plaintiff retired and began collecting pension benefits, he sought to modify his spousal support obligation, arguing that it was improper to consider his retirement income, derived from the pension plan awarded to him in the divorce judgment, when determining his ability to pay spousal support. Id. at 86. This Court disagreed and determined that MCL 552.23 and MCL 552.28 require courts to consider “all the circumstances of the case” “and empower courts to award [spousal support] out of the property of the former spouse when circumstances warrant it.” Id. at 87-88; see also Stoltman v Stoltman, 170 Mich App 653, 658; 429 NW2d 220 (1988) (“[w]hether to terminate alimony upon the retirement of the party obligated to pay alimony when a pension has been awarded to the obligor should be decided on a case-by-case basis.”).
As discussed in McCallister, Michigan’s statute governing spousal support favors a case-by-case approach to determining spousal support. MCL 552.23(1) provides:
Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage who are committed to the care and custody of either party, the court may also award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reason able, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.
Thus, a trial court’s decision to award spousal support is discretionary and should reflect “what is ‘just and reasonable under the circumstances of the case.’ ” Myland, 290 Mich App at 695, quoting Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723 (2000). “[PJarties to a divorce action are entitled to individual consideration based on the law and facts applicable to their case . . . .” Myland, 290 Mich App at 697 (quotation marks and citation omitted). Spousal support does not follow a strict formula. Indeed, “given the statutory mandate of MCL 552.23 . . . there is no room for the application of any rigid and arbitrary formulas when determining the appropriate amount of spousal support. ...” Id. at 699-700. Accordingly, we decline to adopt a bright-line rule with respect to “excess” income and hold that courts must employ a case-by-case approach when determining whether “double-dipping” will achieve an outcome that is just and reasonable within the meaning of MCL 552.23U).
In this case, the trial court, relying on Heller I, determined that the value of a business may be used for the purpose of either property distribution or spousal support, but not both. For the reasons discussed, the trial court erred by applying a bright-line test and failing to consider the specific facts and circumstances of this case. Accordingly, we direct the trial court to redetermine spousal support on remand, including whether the equities in this case warrant utilizing the value of QPhotonics for purposes of both property division and spousal support.
Defendant also argues that the trial court’s spousal support award of $1,510 a month for four years was insufficient. Specifically, she contends that that amount was inappropriate considering that the parties were married for 2IV2 years, their income disparity was significant, she was responsible for supporting the parties’ adult son, and plaintiff was at fault for the breakdown of the marriage. In deciding whether to award spousal support, the trial court should consider several factors, including
“(1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity.” [Myland, 290 Mich App at 695, quoting Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003).]
“The trial court should make specific factual findings regarding the factors that are relevant to the particular case.” Korth v Korth, 256 Mich App 286, 289; 662 NW2d 111 (2003). The primary purpose of spousal support is to balance the parties’ incomes and needs so that neither party will be impoverished, and spousal support must be based on what is just and reasonable considering the circumstances of the case. Id.
The record supports the trial court’s factual findings regarding the spousal support factors. In particular, no evidence indicated that the parties’ adult son, Andrei, was unable to work because of mental and physical health issues, as defendant maintained. Although defendant observed Andrei walking with a cane on one occasion, no evidence was presented of any restriction on his ability to work. The trial court considered the conflicting testimony regarding Andrei, noted the differences in the testimony, and indicated how it reached its decision. The court’s determination that neither party was responsible for supporting Andrei was not clearly erroneous.
In addition, the trial court’s determination that the parties were equally at fault for the breakdown of the marriage was not clearly erroneous. The trial .court correctly noted that the fact that defendant obtained a personal protection order against plaintiff did not “automatically import a finding of domestic violence.” In fact, the trial court acknowledged that the first domestic violence charge against plaintiff was dismissed and plaintiff was acquitted of the second charge. Defendant also argues that plaintiff repeatedly moved the family from state to state and out of the country. As the trial court noted, however, even if defendant was not in favor of the moves, she nevertheless participated in them and remained in the marriage. The majority of defendant’s argument amounts to frustration that the trial court viewed and weighed the evidence differently than she did. That does not, however, make the court’s determinations erroneous. Because the record supports the trial court’s factual determination regarding fault, it was not clearly erroneous.
Defendant further argues that the trial court erred by imputing to her an income of $40,000 for the purpose of determining spousal support. There is no question that defendant has the education and skills to find employment. It is equally clear from the record, however, that she has a minimal employment history, with almost no work in the field of her degree. The trial court relied on the testimony of Robert Ancell, an expert witness offered by plaintiff, in determining the amount of income to impute to defendant. Ancell testified that he researched higher education job postings in the United States and discovered 102 job postings in defendant’s field of political science. Ancell further testified that a Villanova University job posting was seeking someone with special expertise in Russian affairs. The trial court relied heavily on Ancell’s testimony and opined that the Villanova job “appeared to be almost made for” defendant. The Villanova job posting, however, did not indicate a salary, and none of the “available” jobs about which Ancell testified was located in Michigan. In fact, no evidence was presented of a specific job for which defendant was qualified that paid at least $40,000 a year. Moreover, Ancell testified that a personal interview with defendant would be necessary to determine whether she was a suitable match for a particular job. Defendant denied that she would be able to earn $40,000 right away and testified that she might have to work part time or as an adjunct professor making $10,000 to $15,000 a year before she would be able to find full-time employment.
Given this evidence, the trial court’s determination that defendant was capable of earning $40,000 annually was purely speculative. Accordingly, the trial court abused its discretion by imputing to defendant an income of $40,000 for the purpose of determining spousal support. See Carlson, 293 Mich App at 205. Defendant argues that the trial court erred by imputing to her an income greater than $34,000, which is the amount that she argued in the trial court could properly be imputed to her. Because defendant admits that $34,000 is an appropriate amount of income to impute to her, we direct the trial court on remand to recalculate spousal support, imputing to defendant an income of $34,000.
III. NONCOMPETE RESTRICTION
Defendant next argues that the trial court erred by prohibiting her from competing with QPhotonics for a period of three years. The judgment of divorce provided:
RESTRAINING ORDER ON DEFENDANT’S ACTIONS FOR 3 YEARS
The Court orders that Defendant, Irina V Loutts, shall [be] restrained from the following actions or conduct for three years from the date of the entry of this Judgment, under penalties of contempt of Court for any violations:
(1) Defendant shall not communicate with QPhotonics, LLC’s employees or hire any of QPhotonics, LLC’s employees;
(2) Defendant shall not engage in or obtain a website that will sell the same or similar products as QPhotonics, LLC.[;]
(3) Defendant shall not communicate with QPhotonics, LLC’s Suppliers or Customers;
(4) Defendant shall not in anyway [sic] compete with QPhotonics, LLC. in regards to the following products / items:
Laser diodes; Superluminescent diodes; light emitting diodes; semiconductor optical amplifiers; Photodiodes; Laser Diode Controllers; Temperature controls for laser diodes; Laser diode mounts, wafers and / or chips.
Such Restraining Order shall be in all International Markets and not limited to the U.S.A. market.
Defendant argues that this prohibition contravenes the general public policy against the restraint of trade and is overbroad.
A court possesses inherent authority to enforce its own directives. A divorce case is equitable in nature, and a court of equity molds its relief according to the character of the case; once a court of equity acquires jurisdiction, it will do what is necessary to accord complete equity and to conclude the controversy. [Draggoo v Draggoo, 223 Mich App 415, 428; 566 NW2d 642 (1997) (quotation marks and citations omitted).]
“The goal in distributing marital assets in a divorce proceeding is to reach an equitable distribution of property in light of all the circumstances.” Gates, 256 Mich App at 423. Factors to consider when dividing marital property include “general principles of equity.” Sparks v Sparks, 440 Mich 141, 160; 485 NW2d 893 (1992). A trial court’s disposition in a divorce action must be “fair and just.” Id. at 150. We will not reverse a trial court’s dispositional ruling unless we are left with a firm conviction that the property division was inequitable. Gates, 256 Mich App at 423.
Under these facts, we would uphold the noncompete restriction on the sole basis that both parties requested it. It is unfair to harbor error and use it as an appellate parachute. Again because both parties made the request, to be awarded the same company and issue a noncompete restriction against the other spouse, we uphold the noncompete restriction in this case.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction. Neither party having prevailed in full, we decline to award costs pursuant to MCR 7.219.
RONAYNE Krause, EJ., and FORT Hood, J., concurred.
Although the trial court addressed the parties’ requests for attorney-fees and sanctions premised on the other party’s alleged wrongful conduct, the court did not address defendant’s request for attorney and expert fees pursuant to MCR 3.206(C)(2)(a).
As discussed later in this opinion, the trial court abused its discretion by imputing to defendant a yearly income of $40,000.
This figure is consistent with the testimony of plaintiffs expert, Gary Rogow, who testified that $130,000 is the fair market value of plaintiffs compensation.
Although the McCallister Court recited the correct language, it erroneously cited MCL 522.23 instead of MCL 552.23. McCallister, 205 Mich App at 87.
In addition, we note that the trial court’s reliance on Heller was misplaced. In a subsequent appeal in Heller, the appellate court stated that its determination that a double-dip was inequitable was based on the facts of that case alone and was not a determination that double-dipping is never permissible:
In the first appeal, there was no language in our decision to suggest that this court intended to promulgate a flat prohibition against double dipping applicable to every income-producing asset; rather, this court addressed the “double dip” issue only as it applies to the facts of this case. [Heller v Heller, 2010-0hio-6124, ¶ 8 (Ohio App, 2010) (Heller ID-]
Moreover, the Heller I court’s determination that double-dipping was inappropriate was based in part on the defendant’s argument that the double-dip resulted in a violation of an Ohio statute requiring that the division of marital property he “equal” or that the court make specific findings of fact supporting an unequal division of property. Heller 1,2008-Ohio-3296, ¶¶ 6-7. This requirement is not present in Michigan law.
We note that although the trial court awarded defendant spousal support retroactive to the court’s earlier temporary support order, defendant does not challenge the retroactivity of the award. | [
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Per Curiam.
In this first-party case under the no-fault act, MCL 500.3101 et seq., defendant appeals as of right an order denying its motion for summary disposition and granting plaintiffs counter-motion for summary disposition. Plaintiff cross-appeals, challenging the denial of an award of attorney fees. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
Plaintiff provided medical services to Maria Jimenez after she was injured in an automobile accident. Jimenez was driving an uninsured vehicle. Defendant, who was assigned the claim by the Assigned Claims Facility, maintained that Jimenez was an “owner” of the vehicle, and that plaintiff was therefore not entitled to recover for Jimenez’s medical expenses. See MCL 500.3113. MCL 500.3101(2)(h)(i) defines the term “owner” for purposes of the no-fault act to include “[a] person renting a motor vehicle or having the use thereof, under a lease or otherwise, for a period that is greater than 30 days.”
Taking facts discerned from interviews of Jimenez and Jose Gonzalez in the light most favorable to defendant, it was established that Gonzalez had title to the car and canceled the insurance; he was the father of Jimenez’s two children and may have lived with her; the car was kept at Jimenez’s residence; she used the vehicle, primarily for grocery shopping, approximately seven times over the course of about a month; she had to get permission and the keys from Gonzalez to use the vehicle, although permission may never have been denied; she fueled the car, but Gonzalez was otherwise responsible for maintenance; and he had stopped using the vehicle, as he had use of another. In granting summary disposition to plaintiff, the trial court determined that the permissive use and lack of keys precluded any finding of a right of ownership.
We review the ruling on the motion for summary disposition de novo. Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47, 48; 742 NW2d 622 (2007).
In Twichel v MIC Gen Ins Corp, 469 Mich 524; 676 NW2d 616 (2004), the decedent had purchased the uninsured vehicle five days before the accident, but had not paid for it in full or acquired title. However, the Twichel Court concluded that the decedent was an owner of the vehicle because, by virtue of the terms of the agreement with the seller, he had taken possession with the intent to use it for more than 30 days even though he had only used it for five days.
In Ardt v Titan Ins Co, 233 Mich App 685, 690-691; 593 NW2d 215 (1999), this Court stated:
[W]e hold that “having the use” of a motor vehicle for purposes of defining “owner,” MCL 500.3101(2)(g)(i); MSA 24.13101(2)(g)(i), means using the vehicle in ways that comport with concepts of ownership. The provision does not equate ownership with any and all uses for thirty days, but rather equates ownership with “having the use” of a vehicle for that period. Further, we observe that the phrase “having the use thereof” appears in tandem with references to renting or leasing. These indications imply that ownership follows from proprietary or possessory usage, as opposed to merely incidental usage under the direction or with the permission of another. [Emphasis added.]
In Ardt, the driver, who lived with his mother, was using his mother’s uninsured vehicle at the time of the accident. A witness said that the driver regularly used the car for more than 30 days, whereas his mother said he used it only a few times, usually for minor purposes like having it washed. The Ardt Court concluded that conflicting evidence of sporadic versus regular, unsupervised usage created a genuine issue of material fact for resolution at trial.
In Chop v Zielinski, 244 Mich App 677; 624 NW2d 539 (2001), the injured person and driver was the ex-wife of the titleholder. She believed, albeit mistakenly, that she was to be awarded the car in the divorce, kept the car at her apartment complex, and used it daily and exclusively for work and errands for at least six weeks. The Chop Court rejected her argument that she could not be the owner because she did not hold title and was merely a borrower. Citing Ardt, the Chop Court held that “[plaintiff’s use of the car in such a manner was possessory use that comports with the concepts of ownership.” Id. at 681.
Here, Jimenez did not “hav[e] the use” of the vehicle “for a period that is greater than 30 days.” There was no transfer of a right of use, but simply an agreement to periodically lend. The permission was not for a continuous 30 days, but sporadic. Similar to the vehicle in Chop, the car was kept at Jimenez’s residence. Moreover, she clearly had a significant relationship with Gonzalez such that permission to use the vehicle apparently was never denied. However, unlike the driver in Ardt, there was no evidence that Jimenez had “regular” use of the car. Also, contrary to the plaintiff in Chop, Jimenez did not believe that she had any right of ownership and she did not have unfettered use. She had to ask permission and had to be given the keys. While there are facts in common with Chop and Ardt, these facts, by themselves, do not establish ownership. The need for permission distinguishes this case from Chop and Twichel, and the lack of any evidence of regular use distinguishes this case from Ardt. Accordingly, the trial court did not err when it concluded that Jimenez was not an owner of Gonzalez’s vehicle.
Regarding attorney fees, MCL 500.3148(1) provides:
An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment. [Emphasis added.]
In Moore v Secura Ins, 482 Mich 507, 519; 759 NW2d 833 (2008), our Supreme Court stated that this statute did not permit “the recovery of attorney fees for actions in which a court awarded plaintiff benefits that were reasonably in dispute, or, stated slightly differently, benefits not yet overdue.” The Court concluded that “whether a claimant’s benefits qualify as overdue and whether an insurer unreasonably refused to pay or unreasonably delayed in making payment determine if a claimant’s attorney may receive attorney fees.” Id. at 511. The Supreme Court further determined that what constitutes reasonableness is a question of law that is reviewed de novo, but whether the defendant’s denial of benefits was reasonable under the particular facts of the case is a question of fact that is reviewed for clear error. Id. at 516. In addition, we review a trial court’s award of attorney fees and costs for an abuse of discretion. Id.
In denying attorney fees in this case, the trial court concluded that the initial denial of benefits was not unreasonable given some indicia of ownership, and that the question of statutory construction was legitimate. We find no clear error in this determination. Although we have concluded that Jimenez’s need for permission to use the vehicle and her sporadic use thereof contraindicated ownership, facts in Ardt and Chop gave rise to a justifiable contrary argument. Thus, the benefits were reasonably in dispute and therefore not overdue. Accordingly, the trial court properly declined to award attorney fees to plaintiff.
Affirmed. | [
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PER CURIAM.
A jury convicted defendant of burning a dwelling, MCL 750.72, and acquitted him of two counts of attempted murder, MCL 750.91, for setting fire to his parent’s home while they slept inside. The trial court sentenced defendant to a prison term of 10 to 20 years. Defendant appeals as of right, raising issues related only to his sentencing. We affirm.
I. PRIOR RECORD VARIABLE 6
Defendant argues that the trial court erred by assessing 10 points for prior record variable (PRY) 6, MCL 777.56. He contends that zero points should have been assessed for PRV 6. We disagree.
“This Court reviews a trial court’s scoring decision under the sentencing guidelines to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009) (quotation marks and citation omitted). “Scoring decisions for which there is any evidence in support will be upheld.” People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006). “To the extent that a scoring challenge involves a question of statutory interpretation, this Court reviews the issue de novo.” People v Johnson, 293 Mich App 79, 84; 808 NW2d 815 (2011).
“PRV 6 considers an offender’s relationship to the criminal justice system.” Id. The trial court is to assess 10 points against the defendant if, at the time of the sentencing offense, the offender is “on parole, probation, or delayed sentence status. . . .” MCL 777.56(l)(c). Zero points are to be assessed if the offender has no relationship to the criminal justice system. MCL 777.56(l)(e).
Defendant acknowledges that he was on probation at the time of the sentencing offense. He asserts, however, that he was on probation for a juvenile offense and that, because juvenile matters are not criminal in nature, he did not have a relationship to the criminal justice system. Defendant notes that proceedings involving juvenile offenders “[e]xcept as otherwise provided[ ] . . . are not criminal proceedings,” MCL 712A.1(2), and that juvenile delinquency proceedings are not adversarial or criminal in nature, In re Wilson, 113 Mich App 113, 121; 317 NW2d 309 (1982). However, “[a] juvenile adjudication clearly constitutes criminal activity because ‘it amounts to a violation of a criminal statute, even though that violation is not resolved in a “criminal proceeding.” ’ ” People v Harverson, 291 Mich App 171, 180; 804 NW2d 757 (2010), quoting People v Luckett, 485 Mich 1076, 1076-1077 (2010) (YOUNG, J., concurring). As this Court has noted, juvenile proceedings “are closely analogous to the adversary criminal process.” In re Carey, 241 Mich App 222, 227; 615 NW2d 742 (2000).
The phrase “criminal justice system” is not limited to adversarial criminal proceedings. Courts presume that the Legislature intended the plain meaning of the words it expressed. People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008). Black’s Law Dictionary (9th ed) defines “criminal-justice system” as
[t]he collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded. The system typically has three components: law enforcement (police, sheriffs, marshals), the judicial process (judges, prosecutors, defense lawyers) and corrections (prison officials, probation officers, and parole officers). [Emphasis added.]
A juvenile can be placed on probation. MCL 712A.18(l)(b). A juvenile can also be incarcerated for violating probation. MCL 771.7; MCL 712A.18i(9); MCL 712A.18i(10)(f). Juveniles on probation are involved with the corrections aspect of the criminal justice system. This Court has refused to “categorize a defendant as having no relationship with the criminal justice system when it is obvious that such a relationship exists.” Johnson, 293 Mich App at 88. Accordingly, defendant’s prior juvenile adjudications supported the trial court’s scoring of this variable.
II. DEPARTURE FROM THE SENTENCING GUIDELINES
Alternatively, defendant argues that the trial court failed to articulate substantial and compelling reasons to exceed the recommended guidelines range for his minimum sentence.
Under the legislative sentencing guidelines, defendant’s recommended minimum sentence range as a second-offense habitual offender was 57 to 95 months. However, it is well established that “[a] court may depart from the appropriate sentence range ... if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure.” MCL 769.34(3). In order to be substantial and compelling, the reasons on which the trial court relied “must be objective and verifiable.” People v Smith, 482 Mich 292, 299; 754 NW2d 284 (2008). “To be objective and verifiable, a reason must be based on actions or occurrences external to the minds of those involved in the decision, and must be capable of being confirmed.” People v Horn, 279 Mich App 31, 43 n 6; 755 NW2d 212 (2008). The reasons for departure must also “be of considerable worth in determining the length of the sentence and should keenly or irresistibly grab the court’s attention.” Smith, 482 Mich at 299. However, “[t]he trial court may not base a departure ‘on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record... that the characteristic has been given inadequate or disproportionate weight.’ ” Id. at 300, quoting MCL 769.34(3) (b). Moreover, “the statutory guidelines require more than an articulation of reasons for a departure; they require justification for the particular departure made.” Smith, 482 Mich at 303. Thus, “the trial court... must justify on the record both the departure and the extent of the departure.” Id. at 313.
If the trial court departs from the sentencing guidelines, this Court reviews for clear error whether a particular factor articulated by the trial court exists. People v Babcock, 469 Mich 247, 264; 666 NW2d 231 (2003). Atrial court’s determination that a factor is objective and verifiable presents a question of law that this Court reviews de novo. People v Uphaus (On Remand), 278 Mich App 174, 178; 748 NW2d 899 (2008). This Court reviews for an abuse of discretion the trial court’s conclusion that the factors provide substantial and compelling reasons to depart from the guidelines. Babcock, 469 Mich at 264-265. The trial court abuses its discretion when its result lies outside the range of principled outcomes. Id. at 269; Smith, 482 Mich at 300.
In this case, the trial court articulated six primary reasons for its upward departure. The trial court found that defendant “deliberated this crime” and gave it “a great deal of thought” and that “the premeditated nature of that alone is not adequately considered by the guidelines.” The court found that defendant meant to terrorize his parents and that this fact was not adequately considered by the guidelines. The court further stated that defendant had numerous opportunities to do something about his parents’ safety, but that seemed to have been “a second thought in [his] mind.” The court also found that offense variable (OV) 3, MCL 777.33 (physical injury to victim), did not adequately account for the severity of the prolonged nature of the pain from the burns the victims suffered. The court further found that the victims’ psychological injuries exceeded the scope of OV 4, MCL 777.34 (psychological injury to victim), because the victims were defendant’s parents. Finally, the court noted reports from counselors regarding defendant’s “ ‘pervasive pattern of disregard for and violation of the rights of others and failure to conform to social norms’ ” along with his escalating aggression against his parents and concluded that his parents and the public deserved to be protected from him. The trial court based its reasons for departure on the facts elicited at trial as well as the facts contained in the presentence investigation report (PSIR). A trial court’s reason for departure is objective and verifiable when it relies on the PSIR or testimony on the record. See People v Gonzalez, 256 Mich App 212, 228-229; 663 NW2d 499 (2003). Defendant argues, however, that the legislative sentencing guidelines already took into account the trial court’s reasons for departure.
A. PLANNING AND DELIBERATION
The trial court’s first basis for departure was its finding that the guidelines did not account for the fact that defendant planned and deliberated the crime. Defendant argues that planning is part of committing arson and therefore cannot be a substantial and compelling factor. We disagree. Defendant joked with his friends earlier in the day about “taking his grandfather out.” Defendant attempted to get a friend to assist him in burning down the house. Defendant walked to the garage, obtained gasoline, and placed it in and around the house. An accelerant was also found underneath the bedroom windows. Defendant admitted his actions and explained that he was angry with his parents.
The prosecution and defendant both attempt to characterize defendant’s attempt to get help after starting the fire as a separate reason behind the trial court’s deviation from the guidelines, but the trial court considered defendant’s attempt to enlist assistance in the midst of discussing how defendant planned and thought about the crime. Defendant’s attempt to enlist assistance is a logical fact supporting the trial court’s conclusion that defendant planned and thought about the crime. The trial court properly considered defendant’s attempt to enlist aid in the context of considering defendant’s planning and deliberation. Accordingly, the trial court did not abuse its discretion when it found that defendant’s planning and deliberation constituted a substantial and compelling reason to depart from the guidelines. Defendant’s actions in planning and deliberating the arson were objective and verifiable.
B. TERRORIZING THE VICTIMS
The trial court’s second basis for departure was its finding that the sentencing guidelines did not adequately account for defendant’s intent to terrorize the victims. OV 7 addresses aggravated physical abuse. MCL 777.37(1). OV 7 should be scored when a person was placed in danger of injury or loss of life. MCL 777.37(2). A score of 50 points is warranted when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” MCL 777.37(l)(a). However, the trial court did not assess points under OV 7. OV 7 could have been scored to account for the victims’ fear and anxiety that resulted as a result of waking up to find their home on fire and their escape route blocked by fire, and the trial court did not satisfactorily explain why a score for that variable would have been inadequate to account for defendant’s conduct in this regard.
C. FAILURE TO ASSIST
The trial court’s third basis for departure was that defendant did nothing to assist the victims when the fire broke out. Whether defendant could have done more to assist the victims is not objective and verifiable. People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). The trial court stated that defendant “did have an opportunity to do something about [his] parents’ safety” but instead left, went to his friend’s house, and only attempted to call 911 after the house was “lighting up the night sky.” The trial court further stated that “panic or not, the very first thought that should have gone through your mind is to get your parents out of that home. And that seems to be a second thought in your mind.” What defendant was or should have been thinking and what other actions defendant could have taken to assist his parents are not occurrences external to the mind and are not capable of being confirmed. Therefore, the trial court should not have used this factor as a reason to depart upward from the sentencing guidelines.
D. INJURIES
The trial court’s fourth basis for departure was that the severity of the victims’ prolonged pain as a result of their injuries was not adequately taken into account by OV 3. The trial court may not base a departure on characteristics already considered by the guidelines unless it finds that the characteristics were given inadequate or disproportionate weight. MCL 769.34(3)(b); Smith, 482 Mich at 300. Repercussions from crimes that “are to be expected” do not usually constitute substantial and compelling reasons to depart from the sentencing guidelines. Smith, 482 Mich at 301-302. However, if the repercussions are a “wide deviation from the norm” they can be substantial and compelling reasons for departure. Id. at 302.
The trial recognized that OV 3 accounted for the victims’ injuries, but determined that in this case the guidelines afforded the injuries inadequate weight. MCL 777.33(l)(c) directs the trial court to assess 25 points for OV 3 if “[l]ife threatening or permanent incapacitating injury occurred to a victim.” The trial court noted that OV 3 had been scored in this case, but concluded that “the scoring was not adequate considering that these were burns, that the pain is prolonged,” and that the victims had not just suffered from the incapacitating nature of the injuries but “suffer[ed] the pain of the injuries that are exceedingly severe.”
The fact that the victims suffered extreme burns over much of their bodies is objective and verifiable and keenly grabs this Court’s attention. Defendant’s mother detailed her pain and injuries in her victim impact statement. The victims’ “massive” burns were established at trial. The victims testified about their injuries, some of which were still present at the time of trial. They testified that they were still on medication for the injuries and were still undergoing treatment. Further, it is common knowledge that severe burns produce serious, long-lasting pain. The existence of the victims’ unusually severe burn injuries was objective and verifiable, and the trial court did not abuse its discretion when it determined that the severity of those injuries was a substantial and compelling reason in support of its sentencing departure.
E. PSYCHOLOGICAL HAEM
The fifth basis for the trial court’s departure was that OV 4 did not adequately account for the victims’ psychological harm. OV 4 considers “psychological injury to a victim.” MCL 777.34(1). The instructions provide that 10 points are to be assessed “if the serious psychological injury may require professional treatment.” MCL 777.34(2). The trial court assessed 10 points for OV 4. However, the trial court concluded that the victims’ suffering was not adequately addressed by the guidelines. Beyond the trauma associated with the fire, defendant’s mother stated that she has had to endure her family members’ “horror of realizing that the pain was the result of the actions of family member [sic] that they loved and cared for.” She continued to feel “frightened, vulnerable, heart-broken, angry, confused, embarrassed, and sad most of the time.” She was not sure if her family would ever be the same and was “not even comfortable being with my other family members other than my husband.” At sentencing, she testified that she felt as if she had failed defendant. Although OV 4 accounts for psychological injuries suffered by victims, it does not adequately consider the ways in which an offense affects familial relationships, see People v Armstrong, 247 Mich App 423, 425-426; 636 NW2d 785 (2001), nor does it always account for the unique psychological injuries suffered by individual victims, see Smith, 482 Mich at 302. Under the circumstances of this case, the trial court did not err by finding that the guidelines did not adequately account for the psychological injuries suffered by the victims. Consequently, this was a substantial and compelling reason to depart upward from the guidelines.
E PUBLIC SAFETY
The trial court’s sixth basis for departing from the guidelines was that defendant had a propensity to reoffend and was therefore a threat to public safety. A court’s opinion or speculation about a defendant’s future dangerousness is not objective or verifiable. People v Cline, 276 Mich App 634, 651; 741 NW2d 563 (2007). But the trial court may base a sentencing departure on a defendant’s future dangerousness if objective and verifiable facts support the court’s conclusion, such as the defendant’s past failures to rehabilitate or demonstrated “obsessive or uncontrollable urges to commit certain offenses.” Horn, 279 Mich App at 45. Recurring and escalating acts of violence are objective and verifiable because they are external occurrences that can be confirmed. Id. at 46.
In this case, the trial court based its conclusions on objective and verifiable facts. The court noted that defendant had been “diagnosed with symptoms of oppositional defiant disorder” and had not benefitted from the various forms of counseling he had received from a young age. Defendant had threatened, stolen from, and damaged the property of his parents on “numerous occasions.” The trial court determined that defendant’s “escalation of violence” toward his parents was not adequately addressed by the sentencing guidelines. The trial court did not simply state that it thought defendant had a propensity to reoffend — it supported its conclusion with objective, verifiable, external determinations.
The trial court did not abuse its discretion when it determined that those facts were a substantial and compelling reason to depart upward from the sentencing guidelines. The court noted that a counseling report recommended that defendant receive counseling while in prison. The court concluded that defendant’s parents and the public needed protection from defendant for a significant period of time. The trial court did not abuse its discretion when it determined that defendant’s history of violence toward his parents and his inability to benefit from previous counseling justified an upward departure from the guidelines.
G. UPWARD DEPARTURE
Defendant is not entitled to resentencing because, even though the trial court erred in some respects, the court made it clear that it would have departed to the same degree even without those errors. When the trial court articulates several substantial and compelling reasons, if some of the reasons are valid and others are not, this Court must determine whether the trial court would have departed to the same degree on the basis of the valid reasons alone. See Babcock, 469 Mich at 273. If the trial court would have imposed the same sentence regardless of a misunderstanding of the law, this Court may affirm. People v Schaafsma, 267 Mich App 184, 186; 704 NW2d 115 (2005).
The trial court erred as a matter of law when it concluded that the guidelines did not account for the defendant’s actions in terrorizing the victims. The trial court also did not rely on an objective and verifiable factor when it determined that defendant should have done more to assist his parents to escape from the fire. However, the trial court’s upward departure was supported by other objective and verifiable factors that keenly grabbed the court’s attention, including the planning defendant engaged in, the extreme nature of the victims’ injuries, the victims’ unusual level of psychological trauma, defendant’s pattern of escalating violence toward the victims, and defendant’s inability to benefit from counseling. The trial court stated that it thought that any one of the reasons it articulated justified an upward departure. Given the court’s comments, we are satisfied that the court would have departed to the same degree on the basis of the valid reasons alone.
Affirmed.
Fitzgerald, EJ., and Meter and Boonstra, JJ., concurred.
Defendant’s legal parents are his biological grandfather and stepgrandmother, who adopted him as a child. This opinion refers to them simply as his parents throughout.
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Smith, J.
This is another case in which the aid of the chancellor is sought.in obtaining specific performance of an alleged oral contract to leave “everything” to the plaintiff, who is here named Burl Bet-terly. In spite of the alleged promise, when the will was read, it was found that the bulk of the estate had gone to others,"Burl receiving only a life estate in the farm. He thereupon brought his bill in chancery for specific performance of the alleged contract. In the Ingham county circuit court he prevailed.
Burl Betterly and his wife, Helen, were married in the year 1921. Helen was a second cousin of the alleged promisor, the then Mrs. Mary Clements. As a child she had often stayed with the Clements, and she felt that she was, among her brothers and sisters, possibly the favorite of the older couple. After Helen’s marriage a close relationship continued. She and her husband visited back and forth with the Clements. On one such occasion, in the winter of 1927-1928, Mr. and Mrs. Clements asked the young couple to move onto their farm and operate it. At this time- the - Clements had a tenant farmer but his time had about expired and “they were looking for someone to come on, some young person that could come to tlieir home or to their farm and stay and work it, and when they come to the place where they were needing help as they grew older, they would have someone to take care of them, come and stay there and care for them.” The substance of this proposal was repeated shortly afterwards. The Clements had gone to the Betterlys early in the day, Mrs. Clements wanting to give the Betterly’s 3-month-old baby, Dawn, her morning bath. (It was in Dawn’s bedroom, many years later, that Mrs. Clements was to die.) They stayed on for their noon meal and, as they were leaving, the subject was again broached. The Clements were looking forward, they said, to the Betterlys coming to the farm the “ ‘next year and staying there with us and working the farm and staying there as long as we live and caring for lis.’ ” At this time Mr. Betterly replied that he would “come there the next year.”
So, in fact, he did. At this time the Betterlys had made a substantial start in life. Burl was 29 years of age, with a wife and infant daughter. He had been farming for several years, both as tenant and as owner. He owned a 17-acre berry farm of his own, with house and garage. He had farm tools sufficient to work a farm, horses and cattle, and four or five hundred dollars in the bank. He was looking forward to the purchase of his own farm. The Clements, on the other hand, were no longer young. He was in his sixties and his wife slightly younger, 58 or 60. They owned a farm of 119 acres, and were childless. Their need has been described in their own words. The advantage to the Betterlys, if everything worked out, was not insubstantial. At any rate, the Betterlys moved to the Clements farm.
This case departs from the norm at this point. Usually, because of the very nature of these cases involving the family relationship, testimony comes only from the family itself. Here we have, from time to timé, the testimony of'neighbors. Snch we have at this point with respect to the circumstances under which the Betterlys moved to the Clements farm. Mr. Bert Mastic, whose farm was across the road, testified for plaintiff Betterly. He (Mastic) had had a conversation with Mrs. Clements about the time of the' move. She had been to the mailbox, and, being neighborly, had stopped and talked with him.
“Q. You tell us, as best you recall, what that conversation was between you and Mary Clements.
“A. Well, we passed the time of day and about the weather and such things as people will talk about, and then I brought the subject up about changing the renters. She said, ‘Yes, we’re' going to change renters.’
“Q. How did you happen to know that they were changing renters ?
“A. Because Burl was moving tools on there at that time. * * *
“A. And she says, ‘Yes, we are changing renters. John and I haven’t got any children, and we’re going to get things fixed up so we know where our property is going when we get, done with it,’ or words to that effect. I don’t know if that is exactly the way she said it or not.
“Q. All right. Did she say anything further in regard to what'she meant by that? * * * '
“A. She said that Burl is a nice young fellow and Helen is a nice young girl, and as I understand it, I think Helen and Mary were cousins. * * *■
“A. And she said, ‘We have made up our mind if we get them on the farm, that if they take care of the farm, take care of us as long as we lived, that they could have what we got when we got through with it.’ ”
Initially there seems to have been a period of adjustment, of trial, of mutual feeling-out. With a lifetime relationship involved this would seem neither unwise nor unusual. But that fall, after the corn' had been cut, and while plaintiff was setting up'his; corn shocks, he was approached by Mr. Clements. Mr. Betterly relates the conversation in these terms:
“John said to me, he said, after we had been visiting, .‘What do you think, Burl?’ I looked right at him, ‘What do you think? What do you mean, John?’ ‘Why,’ he said, ‘You know that we said that we would make it worth your while if you would come over and work this farm for us and take care of us.’ I said, ‘Yes,’ and he says, ‘Now, do you want to stay?’ I said, ‘Sure, I want to stay,’ Then he says, ‘We will go and have the papers fixed up for you.’ ”
Such, also, was the tenor of a dinner-table conversation between the 2 families at a subsequent date. Mrs. Betterly is testifying:
“As we sat around the dinner table after dinner, why John said to Burl, T have talked with you and have asked you if you were satisfied and would like to stay on,’ and Burl told him he was, and he said, ‘So, we have gone and fixed our papers • so when the last one is laid away, what is left that we have will be yours.’
“Q. Was there any further conversation? * * *
“A. Yes, Burl said, ‘Well, John, you have brothers and sisters? How about that?’ And John said, ‘My brothers have enough of their own, and they.have made like situations. They have made like agreements with the men on their farms,’ and Mary said, ‘People will say, you are here looking after their money, but what do we care? We have to have someone to care for us, and we can help you.’
“Q. Did Burl say anything, indicating any assent or refusal of this proposition?
“A. Yes, he said that he would stay and look after them as long as they lived. * .* *
“Q. Helen, you said that they said they would make it worth your while, is that right?
“A. Yes.
,: “Q. Did they give you any elaboration on that statement? ....
“A. Well, when John was talking to. Burl at the dinner table, he said there was, there would be, that they at that time had better than $20,000 besides the property that they owned.
• “Q. Did either of them say allying about the duration of this agreement? In other words, how long they expected you to take care of them?
“A. Yes, John said it might be 20 years but he said, ‘Even if it is, you will have more than you would if you farmed it for yourself when we are gone.’ ”
The relationship thus crystallized. It continued for many years. Plaintiff worked the farm, without help from- Clements. The bonds between the families were -close.' John Clements and the plaintiff went to “father and son” banquets together, ■ the -families went to .town together, to the fairs, and to church socials when the Ladies- Aid had. dinners. When John fell ill, finally, plaintiff and his wife gave what help they could. - Helen Betterly stayed with him for a week. ' “Burl stayed there nights and cared -for John nights a lot. The last week of his life he did every night.” Mr. Clements died in December, 1934.
Following Mr. Clements’ death the relationship of decedent and the Betterlys grew even closer. “She (Mrs. Clements) used to tell Dawn, — she would take hér over there and keep her with her, and she would pick her up in her arms and after John died she would pick her up and cry, and say, ‘You are all I have got now, you and your daddy.’ ” There can be no doubt, upon the record before us, not only from the verbal testimony adduced, but from the conduct of the parties, that Mrs. Clements, the widow, wished and agreed, for herself, to carry out the agreement previously existing. Thus the testimony of Dawn Betterly describes the substance of the agreement allegedly made under the circumstances described and here sued upon:
“I believe my first recollection is shortly after grandpa’s death. We were at her house. I was on her lap and she was sitting in her dining room in front of a south window where she kept a chair, and it was her chair as the leather chair had been grandpa’s. I remember her saying at that time, ‘Well, son, John is gone now and you are what I have left. The agreement that John and I made with you in regards to your looking after us and what we have then is to be yours, I want to renew that agreement with you and say that everything is as John wished. That my will shall be as John’s will was.’ ”
Plaintiff and his family were now called upon to render all manner of services for the widow: they ran errands for her, cared for her during illness, helped her with, her car, shoveled snow, from the drive, accompanied her to funerals, and on shopping trips, went with her to the doctor and to social affairs, carried water (“she had it [running water] all disconnected to go to Florida and she would never bother to have it connected up again”), and, in general, treated her as one of their own family. Many of these services were performed by plaintiff, others by his wife and even the children (who called her “grandma”), although it was usually the plaintiff who was called whenever she wanted something done. With the forgetfulness not unknown to older people she would occasionally misplace things (e.g., her house keys or car keys, or pocketbook) and call upon plaintiff, even at night, to assist her in finding what she. needed. There was in all of this no suggestion of payment, save once, subsequent to her remarriage in 1943. The incident is revealing in the light cast upon the relationship of the parties. Plaintiff had been called upon to help construct á hoghouse. When it was finished, Mary, asked him what.she'owed him, for the work. The record continues:
■ “They had been-talking, and finally grandma said to dad, to the effect that, ‘Well, what do I owe you for your work on the hoghouse V Dad said,- Well, Mary, I believe we have an agreement by 'Which I am to. do the work, I am to look after things on the place, .and our agreement is then that I will be paid after you are done with your property and with all of it, and therefore, you don’t owe me any money,’ and dad' said, ‘Is that .the agreement still standing?’ She said, ‘It certainly does. I- do not go bank on my word.’ * * * •
' “-A'. He said,- ‘Then I shall have my pay Inter on and you owe me nothing now.’ * * *'.....
“A. Well, there were many times .when ,sh,e would s’ay to the effect, Well, you-will.be better paid by and by.’- Dad would do something and she would say something- to the effect, ‘HoW much do I owe you,’ and dad would say, ‘You don’t owe me anything-,’ and she would say, ‘Much obliged until you are better paid.’ ”
(This, apparently, was a phrase often used, “Much obliged until you are better paid. You will have your pay by and by.”)
In the year 1943 the deceased married Earl Mead. (The appellants are his children, who were grown, and at no time lived with the elderly couple.) Mary was then in her seventies. During the balance of Mr. Mead’s life (he lived only 3 years after the marriage) the plaintiff was not called upon to do much for Mary as before, though the family relations remained cordial. Mr. Mead died, however, in the early part of 1946. The record is silent as to any succession by Mary as to any part of his estate and upon oral argument we were requested by appellants to strike from their brief a statement that Mary had succeeded to Mr. Mead’s estate. She again began to call upon plaintiff for aid, and, in addition^ availed herself, upon occasion, of the assistance of Mr. Orrel Henseleit (the husband of one' of Earl’ Mead’s daughters) and a long-time friend and relative by marriage, Mrs. Alma Fowler, in whose hónre, hear Ann Arbor, she stayed during one period after her discharge from the hospital in 1953, , ■ '
Possibly the most revealing incident of the.many in the record concerning the relationship of the parties, their agreement, and their mutual expectations therefrom, occurred shortly after the death- of Mr. Mead, at which time Mary was well advanced in years. A rumor had apparently reached the’Bétter-lys that she had, executed a will containing provisions at variance with their alleged agreement. According to the record a conference of some formality took place, not only Mr. and Mrs. Betterly attending, but their daughter Dawn, now a young lady-of..,some 20 years, as well as a neighboring farmer. .The, record continues:
“Q. Did any one go over there-with you?
“A. Yes, sir.
“Q, Who?
“A. Ralph Hayner.
“Q. Give us the names of all the people who were present.
“A. Burl Betterly, myself, Dawn Betterly, and Ronald Betterly, and Ralph Hayner and Mary Mead.
“Q. Now, when Burl got there, did he indicate to Mary in any way why he was there? * * *
“A. He said, ‘Mary, I understand you ' have changed your will, is that correct?’
“Q. And what did Mary say, if anything?
“A. She said, ‘Yes.’
“Q. Did she go any further? Did she give any further explanation?
“A. Burl said, ‘Mary, don’t we have an agreement pertaining to your will, to your property? I have stayed here for this property, taken care of you.’
“Q. What did she say ?
“A. She said, ‘yes, but what I work and earn I can do as I please with.’
“Q. Did Mary Mead work ?
“A. Some.
“Q. Dive the court an accurate idea of how much.
“A. Well, if there was somebody she knew were ill for a few weeks, she would go into their home, maybe, and be doing things for them, care for them until they were able to be around again.
“Q. Did she ever have a regular job such as working in a store, a factory, an office, or anything like that?
“A. No, sir.”
(The Ralph Hayner, above mentioned, was the neighboring farmer who was asked to join in the meeting. In his testimony, in speaking of the' above account of Helen Betterly, he said, “I don’t recall anything that would be any different.”)
Some 9 years after the death of her second husband, Mary herself died. During her last illness, and aftér her return from the hospital, Mrs. Betterly assumed her care. “I had to take care of her as a baby, clean her up as you would a baby.” Death finally came to her, in Dawn’s' bedroom in the Bet-terly’s lióme. It was they who called the funeral director, picked out the casket, made the funeral arrangements, and contacted the minister. Shortly afterwards the will was read. The bulk of the estate, consisting of about $38,000 in personal property, Mary had left to the children of her second husband, Mr. Mead. Burl was given a life estate in the farm he had worked for so many years, as well as the farm personalty. Burl states, that he “was shook up some” by this and invoked the aid of the chancellor with respect to the personal property left to the Mead children. (As noted, plaintiff had received a life interest in the farm by virtue of the will and through a, court-approved, pretrial, settlement with his children, had removed the real estate from controversy prior to trial.) Specific performance was decreed.
There is no necessity for our repeating the general principles applicable to this type of case. They were discussed by us, in Applebaum v. Wechsler, 350 Mich 636. As to the decree before us, it is attacked by appellants upon various theories: that the asserted contract is not certain in its essentials, that any agreement made relates to the farm realty and personalty only, that there are no such compelling equities as would justify the decreed specific performance, and, finally, that all of the testimony of Helen Betterly was incompetent under the so-called “dead man’s statute,” CL 1948, § 617.65 (Stat Ann § 27.914). We will discuss the statutory issue first.
The portions of the statute relied upon, material to the issue, are as follows:
“Sec. 65. When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true must have been equally within the knowledge of such deceased person.”
The appellants contend that Mrs. Betterly comes within the statutory bar upon 2 grounds; first, that she. has a direct pecuniary interest in the outcome, and second, that she was “in fact a joint and several party to the alleged agreement.” Her asserted pecuniary interest in the outcome is said to arise from the “enhancement of her husband’s estate resulting from the decree” in his favor. The interest required for disqualification under the statute, however, is a direct monetary interest in the subject matter of the litigation and its outcome. Thus (there being no tenancy by the cnrtesy in this jurisdiction) a husband may testify in support of his wife’s claim, Mayes v. Central Trust Co., 284 Mich 504, though not the wife for him (in view of her dower 'interest) where the litigation involves his claim to real estate, Laird v. Laird, 115 Mich 352. We examined the wife’s position under this statute in the case of Dunn v. Dunn’s Estate, 127 Mich 385, 386, wherein we said:
“Upon, the trial Anna E. Dunn, the wife of Charles Dunn, was allowed to testify. The principal question in the case is whether she.was a competent witness or not. The appellant claims that she was not a competent witness under the statute (CL 1897, § 10212). Counsel assert the case is controlled by Laird v. Laird, 115 Mich 352. We cannot agree with counsel in this contention. Laird v. Laird was:.a case where a bill was filed for the specific performance of an oral land contract. If a decree was rendered as prayed for in the bill, the wife would secure homestead and dower rights, of which- she could not be deprived except by her own voluntary act. For these reasons it was held she was a party in interest within both the letter and spirit of the law.”
The point does not merit extended discussion. There is, on the facts before us, no disqualification of the wife’s testimony under the statute because of direct pecuniary interest.
Nor does such disqualification arise under a theory of joint and several contract. The trial chancellor’s conclusion that “The agreement was with Burl Betterly personally and not with him and his wife, Helen Betterly,” finds ample support in the record and we are not persuaded that it is in error. We are looking, it will be observed, at an asserted ■ agreement made after the death of Mr. Clements, with his widow, for her care. The con versations before us dealing specifically ' with the agreement asserted refer, without significant exception, to an agreement between Burl and the deceased, not between Burl and Helen and deceased. Thus “I am to do the work, I am to loot after things on the place,” were the terms employed, and not disputed, at the time of the hoghouse incident above described. Whoever the parties to the agreement with Mr. Clements may have been some 20 years prior hereto (and we are not intimating that there was, even then, a round-robin agreement between the 2 husbands and the 2 wives), it is clear that the trial chancellor’s conclusion was correct that the agreement sued upon was made with Burl'Betterly, and that the rewards upon its completion, consisting of the entire estate, were to be his and his alone. (“I haven’t much longer here,” Mary had' said to Burl in her last illness, “and then as we said' before, everything is to be yours.”) Gf., respecting the estate, the dinner table conversation described heretofore with respect to making the move “worth your while”: Burl was told “he (John) said there was, there would be, that they at that time had better then $20,000 besides the property that', they owned.” The fact that Mrs. Betterly rendered services directly to the decedent is true also of the Bet-terly children, but this circumstance does not turn them all into contracting parties. The duty was Burl’s and the responsibilities were his, to be discharged either personally or through the aid of others, depending upon their nature.
AVhat we have before us is a series of acts extending over a long period of years, inexplicable upon any basis other than the agreement claimed. For a quarter of a century Burl Betterly remained on the farm, forsaking all other opportunities' for employment. Why? “Because I had an agreement with the Clements to'stay on their farm as.long.as they were alive.” This he did. But the agreement he respected,' the appellant Mead children tell ns, was -not specific in its terms. Just what this means is not clear. It was specific enough ■ to insure to “grandma” the rendition of services with a dedication unusual even in those hound hy ties of blood, and the return was specific enough (i.e“everything”) for the chancellor’s decree. The Mead children tell us also that the services so rendered were not of an exceptional character, but of a minor nature, having a “readily ascertainable market value” and “which could be procured from any employment agency.” Let them reread the facts: We seek a man who, first of all, can and will work a farm with thrift and care. But this is only a part of his duties. He must, with his wife, be available at any hour of the day or night, to render services, upon demand, to his employer, a lady well advanced in years. (For example, they must be willing to leave their home late at night and search until 2 o’clock in the morning for misplaced keys, if their employer is distraught and knows that somebody is “in that bedroom.”) The man we seek must be willing to live in, and ask his wife and children to share, a primitive home without inside toilet or running water, for 20 years. At the end of that time, the employment agency is authorized to inform him, he will be permitted to have (cold) running water piped into the house. He must be willing and able to keep himself, and his wife, and raise his children, and educate them, on less than a hundred dollars a month, cash income. Bond or security he will not enjoy. Assurance to him of the bargained-for return for his lifetime of work will rest upon the frailty of a human promise.
We will not, in our quest for this man, canvass, with the appellant children, the employment agencies to which they make ready reference. We will not search the market for the going price on solace and comfort. We will not scan the current quotations on devotion to duty. Lex nil facit frustra nil jubet frustra.
Affirmed. Costs to appellee.
Edwards, Voelker, and Black, JJ., concurred with Smith, J.
Dethmees, C. J., and Sharpe, Kelly, and Cabe, JJ., concurred in the result.
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FORT Hood, J.
Defendants, the entities and individuals charged with the administration, collection, and distribution of the State Employees’ Retirement System, appeal as of right the Court of Claims’ decision holding that MCL 38.35, the statute requiring a three percent employee compensation contribution to finance the Public Employee Retirement Health Care Funding Act, 2010 PA 77, MCL 38.2731 to 38.2747, is unconstitutional. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiffs addressed wage provisions during collective-bargaining negotiations with the state. Ultimately, the parties agreed to a collective-bargaining agreement (CBA) that provided that hourly wages would be frozen for the fiscal year 2008-2009, increased by one percent for fiscal year 2009-2010, and increased by three percent for fiscal year 2010-2011. The CBA was approved by the Civil Service Commission (CSC or the commission) and transmitted to then Governor Jennifer Granholm for incorporation into the state budget.
An attempt to reject the three percent wage increase included in the 2010-2011 budget failed in the Legislature. On February 23, 2010, House Concurrent Resolution (HCR) 42 was introduced that proposed rejection of an increase in rates of compensation as recommended by the CSC. There is no indication that the resolution was voted on by house members of the Legislature. On March 3, 2010, an attempt to reject the three percent wage increase was made in the Senate when Senate Concurrent Resolution (SCR) 35 was introduced. This SCR contained an acknowledgment of the constitutional authority of the CSC and the requirement that a vote of two-thirds of the members serving in each house was required to reject the commission’s approval of the wage increase. Despite the introduction of SCR 35 and numerous attempts to pass the resolution throughout March 2010, it did not garner a sufficient number of votes for passage. On March 24, 2010, HCR 48 was introduced. This HCR also contained an acknowledgment of the constitutional authority of the CSC and the requirement that a two-thirds vote of the members serving in each house was required to reject the increase. There is no indication that action was taken on this resolution.
Unable to obtain the two-thirds vote in each house to override the three percent compensation increase negotiated in the CBA and approved by the CSC, the Legislature enacted 2010 PA 185, MCL 38.35, and 2010 PA 77, MCL 38.2731 et seq. MCL 38.35 required a mandatory three percent contribution from the compensation of active employee members from November 1, 2010, through September 30, 2013, into the Public Employee Retirement Health Care Funding Act, MCL 38.2731 et seq. Plaintiffs filed suit in the Court of Claims to challenge the reduction from compensation by the enactment of MCL 38.35. Plaintiffs alleged that the reduction in compensation was in violation of both the Michigan Constitution and the United States Constitution and of contractual rights. Defendants countered that the regulation of the retirement system was within the province of the Legislature and that the Court of Claims lacked jurisdiction because the availability of the benefits at a later date presented a hypothetical question. The Court of Claims held that MCL 38.35 violated art 11, § 5 of the Michigan Consti tution, rejected the jurisdictional challenge, and did not address the remaining claims. Defendants appeal as of right.
II. JURISDICTION
A challenge to the jurisdiction of the Court of Claims presents a statutory question that is reviewed de novo as a question of law. Parkwood Ltd Dividend Housing Ass’n v State Housing Dev Auth, 468 Mich 763, 767; 664 NW2d 185 (2003). The Court of Claims has exclusive jurisdiction to hear and determine “all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies.” MCL 600.6419(1)(a); Parkwood, 468 Mich at 767. The Court of Claims also has concurrent jurisdiction over “any demand for equitable relief and any demand for a declaratory judgment when ancillary to a claim filed” pursuant to MCL 600.6419. MCL 600.6419a. The determination whether the Court of Claims possesses jurisdiction is governed by the actual nature of the claim, not how the parties phrase the request for relief or the characterization of the nature of the relief. Parkwood, 468 Mich at 770. “[T]he Court of Claims has exclusive jurisdiction over complaints based on contract or tort that seek solely declaratory relief against the state or any state agency.” Parkwood, 468 Mich at 775.
In the present case, defendants contend that the Court of Claims lacked jurisdiction to issue a declaratory judgment because the issue regarding the availability of benefits for current employees upon their retirement presents a hypothetical injury premised on a future contingent event. The power of state courts to pass upon the constitutionality of state statutes arises only when interested litigants require the use of judicial authority for protection against actual interference, not hypothetical threats. Golden v Zwickler, 394 US 103, 110; 89 S Ct 956; 22 L Ed 2d 113 (1969). Here, although defendants’ statement of the issue alleges a jurisdictional challenge, in fact, defendants effectively assert that there is no justiciable controversy because the availability of health benefits upon retirement for current employees is contingent on a future event. We disagree.
A condition precedent to invoke declaratory relief is the requirement that an actual controversy exist. Detroit v Michigan, 262 Mich App 542, 550; 686 NW2d 514 (2004). An actual controversy is present when a declaratory judgment is necessary to direct a plaintiffs future conduct in order to preserve his or her legal rights. Shavers v Attorney General, 402 Mich 554, 588; 267 NW2d 72 (1978). Although the actual-controversy requirement prevents a court from ruling on hypothetical questions, a court is not precluded from addressing issues before actual injuries or losses have developed. Id. at 589. Furthermore, “declaratory relief is designed to resolve questions . . . before the parties change their positions or expend money futilely.” Detroit, 262 Mich App at 551.
Although defendants characterize plaintiffs’ claims as seeking relief from a hypothetical event, plaintiffs allege a current confiscation of their compensation without adherence to the provisions of Const 1963, art 11, § 5 and in violation of their CBA and contractual rights. Specifically, irrespective of the future availability of retiree health benefits to current employees, plaintiffs challenge the reduction in wages from November 1, 2010, through September 30, 2013. In light of the present reduction in compensation, defendants’ jurisdictional challenge claiming that plaintiffs are raising a hypothetical scenario regarding events that may occur upon their retirement fails.
III. STANDARD OF REVIEW
The trial court’s decision regarding a motion for summary disposition is reviewed de novo with the evidence examined in the light most favorable to the nonmoving party. In re Egbert R Smith Trust, 480 Mich 19, 23-24; 745 NW2d 754 (2008). Issues involving statutory interpretation present questions of law that are reviewed de novo. Klooster v Charlevoix, 488 Mich 289, 295-296; 795 NW2d 578 (2011). “The primary goal of statutory interpretation is to give effect to the intent of the Legislature.” Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 76; 780 NW2d 753 (2010). To determine the legislative intent, the court must first examine the statute’s plain language. Klooster, 488 Mich at 296. If the language of the statute is clear and unambiguous, it is presumed that the Legislature intended the meaning plainly expressed in the statute. Briggs, 485 Mich at 76.
Cases involving questions of constitutional interpretation are reviewed de novo. Midland Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich 83, 89; 803 NW2d 674 (2011). When interpreting a constitutional provision, the primary goal is to determine the initial meaning of the provision to the ratifiers, the people, at the time of ratification. Nat’l Pride at Work, Inc v Governor, 481 Mich 56, 67; 748 NW2d 524 (2008). “[T]he primary objective of constitutional interpretation, not dissimilar to any other exercise injudicial interpretation, is to faithfully give meaning to the intent of those who enacted the law.” Id. To effectuate this intent, the appellate courts apply the plain meaning of the terms used in the constitution. Toll Northville Ltd v Northville Twp, 480 Mich 6, 11; 743 NW2d 902 (2008). When technical terms are employed, the meaning understood by those sophisticated in the law at the time of enactment will be given unless it is clear that some other meaning was intended. Id. To clarify the meaning of the constitutional provision, the court may examine the circumstances surrounding the adoption of the provision and the purpose sought to be achieved. Traverse City Sch Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). An interpretation resulting in a holding that the provision is constitutionally valid is preferred to one that finds the provision constitutionally invalid, and a construction that renders a clause inoperative should be rejected. Id. at 406. Constitutional convention debates are relevant, albeit not controlling. Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d 452 (2003). Every provision in our constitution must be interpreted in light of the document as a whole, and “no provision should be construed to nullify or impair another.” Id. “Statutes are presumed constitutional unless the unconstitutionality is clearly apparent.” Toll Northville Ltd, 480 Mich at 11. The court’s power to declare a law unconstitutional is exercised with extreme caution and is not exercised where serious doubt exists regarding the conflict. Dep’t of Transp v Tomkins, 481 Mich 184, 191; 749 NW2d 716 (2008).
IV THE CREATION OF THE CIVIL SERVICE COMMISSION
In October 1935, the Civil Service Study Commission, appointed by Governor Frank D. Fitzgerald, initiated a year-long study of state personnel practices to determine “ ‘the most important evils from which the state [was] suffering.’ ” Council No 11, AFSCME v Civil Serv Comm, 408 Mich 385, 397; 292 NW2d 442 (1980) (citation omitted). The result was a condemnation of the longstanding “spoils system” or “patronage system” where government jobs were filled with loyal party workers who were counted on, not to perform the work of the state, but rather to perform party or candidate work during election season. Id. at 397 n 10. As a result of the spoils system, state office buildings were nearly empty during political conventions. Id. Consequently, the regular work of the state was interrupted, and services and funds were at the disposal of political parties. Id. To remedy the spoils system, it was recommended that legislation establish a state civil service system. Id. at 397.
In response to the commission’s findings and recommendations and heightened public interest, the Legislature created 1937 PA 346, which was designed to eliminate the spoils system and prohibit participation in political activities during the hours of employment. Council No 11, 408 Mich at 398. In its next regular session, the Legislature adopted a group of bills designed to destroy the recently established Civil Service Commission. It created legislation that sharply curtailed the state classified civil service, diminished the authority of the director of the commission by repealing a provision vesting executive and administrative functions in the director, made the director an appointee of the commission to serve at its pleasure, reduced the CSC’s appropriation to require serious staff reductions and limited services, and provided increased employment preferences for veterans and former state employees. Id. at 399. The Legislature succeeded in “badly crippling” the newly created Civil Service Commission. Id. Specifically, in a two-year period, the number of “exempt” civil service positions climbed. The percentage of state employees serving in classified positions fell from 90.7 percent in January 1939 to 51.1 percent in March 1940. Id. at 400. Additionally, only the lowest-paying jobs were retained as classified positions. Id. In 1940, apparently unsatisfied with the political maneuvering and the dismantling of the Civil Service Commission, the people of Michigan “adopted a constitutional amendment establishing a constitutional state civil service system, superseding the 1939 legislation.” Id. at 401.
Before changes to the 1963 Constitution, the Civil Service Commission had “absolute authority to set compensation at any time during the course of a fiscal year without legislative oversight.” Mich Ass’n of Governmental Employees v Civil Serv Comm, 125 Mich App 180, 187; 336 NW2d 463 (1983). However, at the 1961 Constitutional Convention, delegates proposed a change to allow legislative oversight, commenting as follows:
“[T]his amendment would ... only affectf] increases in rates of compensation for classified personnel. Presently, the civil service commission has the absolute power to fix rates of compensation in any amount and at any time it desires, free from legislative control or accountability.
“This amendment would require several things. First of all, it would require that any proposed increases made by the civil service commission be submitted with the governor’s budget. Now, this has been the practice for the past 2 or 3 years. However, we are dealing primarily here in what I would consider statutory language. There is nothing in the present constitution to require the commission to continue the practice that they followed in the past few years, or to prevent them from reverting to the practice of declaring a pay raise at any time. This would make it crystal clear that any proposed increases in rates of compensation must be submitted with the governor’s budget.
“Then these rates or increased rates would take effect only at the beginning of the next fiscal year. In other words, if a proposed increase were submitted with the governor’s budget in January, it would not take effect until July 1 of that year. Also, the rates would take effect, upon the failure of the legislature, within 60 days after submission of this recommendation, to either reject, modify or reduce the amount recommended by the commission.
“The amendment gives the legislature this power to reject, modify or reduce increases in rates of compensation where there is a 2/3 vote of the members elected, if you will, in each house. In other words, in order to defeat a recommendation of the civil service commission as to pay raises, 2/3 of the senate would have to reject it, 2/3 of the house would have to reject, modify or reduce it.
“Additionally, the amendment would prohibit the legislature from reducing rates of compensation in effect at the time of the submission of the commission’s recommendations to the legislature. In other words, the legislature would not be given the authority, even with a 2/3 vote, of going below those rates of compensation which are in effect at the time of a proposed increase.
“Now, it is sincerely believed that this proposed amendment is not a drastic one; it is not a radical one, but it is offered for the following reasons:
“It is believed that no governmental unit should be free from the time tested and proven checks and balances inherent in our constitutional form of government. Since the civil service commissioners are appointed for 8 year terms, they truly are not accountable to the governor, particularly a governor of short duration. Although the legislature presently has the power to fix the total appropriation within a given agency, it has no method of controlling abuses in a salary classification which could occur in the future. In recognition of the fact that commissioners are but mere human beings and, as such, subject to error, it is felt that they should be accountable to the people for their actions, and this ... is accomplished through giving the legislature a veto power. Now, for those who favor retention of this power by the civil service commission — in other words, the right to fix compensation — it should be pointed out that civil service retains the initiating power to raise rates under the proposed language. Also, as a practical proposition, the requirement of a 2/3 vote of both houses to reject, modify or reduce the commission’s recommendation means that the veto power could not be exercised readily, and would undoubtedly be exercised only in the event of a real abuse by the commission.” 1 Record of the Constitutional Convention of 1961, p 652. [Mich Ass’n of Governmental Employees, 125 Mich App at 187-189.]
Consequently, although the prior version of the constitutional article creating the Civil Service Commission contained no provision regarding legislative oversight, Const 1908, art 6, § 22 (adopted in 1940), the amendment expressly allowed legislative action over CSC determinations by a two-thirds vote of the members serving in each house. Const 1963, art 11, § 5.
Currently, the Civil Service Commission is authorized by Const 1963, art 11, § 5, which provides, in relevant part:
The classified state civil service shall consist of all positions in the state service except those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the [L]egislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and within each principal department, when requested by the department head, two other exempt positions, one of which shall be policy-making. The civil service commission may exempt three additional positions of a policy-making nature within each principal department.
The civil service commission shall be non-salaried and shall consist of four persons, not more than two of whom shall be members of the same political party, appointed by the governor for terms of eight years, no two of which shall expire in the same year.
The administration of the commission’s powers shall be vested in a state personnel director who shall be a member of the classified service and who shall be responsible to and selected by the commission after open competitive examination.
The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service.
No person shall be appointed to or promoted in the classified service who has not been certified by the commission as qualified for such appointment or promotion.
No appointments, promotions, demotions or removals in the classified service shall be made for religious, racial or partisan considerations.
Increases in rates of compensation authorized by the commission may be effective only at the start of a fiscal year and shall require prior notice to the governor, who shall transmit such increases to the [LJegislature as part of his budget. The [LJegislature may, by a majority vote of the members elected to and serving in each house, waive the notice and permit increases in rates of compensation to be effective at a time other than the start of a fiscal year. Within 60 calendar days following such transmission, the [LJegislature may, by a two-thirds vote of the members elected to and serving in each house, reject or reduce increases in rates of compensation authorized by the commission. Any reduction ordered by the [LJegislature shall apply uniformly to all classes of employees affected by the increases and shall not adjust pay differentials already established by the civil service commission. The [LJegislature may not reduce rates of compensation below those in effect at the time of the transmission of increases authorized by the commission.
The civil service commission shall recommend to the governor and to the [LJegislature rates of compensation for all appointed positions within the executive department not a part of the classified service.
The Civil Service Commission is an administrative agency established by the Michigan Constitution. Const 1963, art 11, § 5; Viculin v Dep’t of Civil Serv, 386 Mich 375, 385; 192 NW2d 449 (1971); Womack-Scott v Dep’t of Corrections, 246 Mich App 70, 79; 630 NW2d 650 (2001). Pursuant to the constitutional amendment, the Civil Service Commission is vested with plenary powers in its “sphere of authority.” Plec v Liquor Control Comm, 322 Mich 691, 694; 34 NW2d 524 (1948). That is, the Civil Service Commission has absolute power in its field. Hanlon v Civil Serv Comm, 253 Mich App 710, 718; 660 NW2d 74 (2002). “Because the CSC’s power and authority is derived from the constitution, its valid exercise of that power cannot be taken away by the Legislature.” Id. at 717. “The CSC regulates the terms and conditions of employment in the classified service and has plenary and absolute authority in that respect.” Womack-Scott, 246 Mich App at 79. The Legislature and the appellate courts have no right to amend or change a provision contained in the state constitution. Pillon v Attorney General, 345 Mich 536, 547; 77 NW2d 257 (1956). Consequently, when a statute contravenes the provisions of the state constitution it is unconstitutional and void. Id.
V THE CIVIL SERVICE COMMISSION’S EXERCISE OF ITS AUTHORITY
The extent of the Civil Service Commission’s authority has been addressed by the courts of this state. In Council No 11, 408 Mich at 392, one of the individual plaintiffs, an employee in the state classified civil service, filed nominating petitions to become a candidate for political office. As a result of the filing, he was discharged for violating the commission rule ordering a flat ban on off-duty as well as on-duty political activity by all state classified civil service employees. Id. at 392-393. However, the Legislature “is empowered to enact laws to promote and regulate political campaigns and candidacies.” Id. at 395. Consequently, the Legislature took the unusual step of enacting 1976 PA 169, which gave employees in the state’s classified civil service the “right to engage in partisan political activity, serve as convention delegates and run for elective office while on mandatory leave of absence.” Id. at 395. The Civil Service Commission asserted that the statute permitting certain types of political activity was unconstitutional because it conflicted with the commission’s rulemaking authority and the commission’s exclusive jurisdiction over civil service employees as derived from Const 1963, art 11, § 5. Id. at 395-396.
The Supreme Court rejected the commission’s challenge to the constitutionality of 1976 PA 169, and allowed off-duty political activity by civil service employees. The Court held that the plain language of the provision creating the Civil Service Commission contained no such language forbidding off-duty political activity that did not interfere with job performance. Id. at 405-407. The Court held that the Civil Service Commission’s sphere of authority did not extend to off-duty behavior unrelated to job performance. Id. at 408-409. Therefore, a valid exercise of legislative authority applicable to state classified civil service employees was permissible provided that it did not interfere with the constitutional authority of the Civil Service Commission. Id. at 409. Consequently, legislation must be examined within the context of the authority delegated to the CSC in the Michigan Constitution.
The Michigan Constitution empowers the Civil Service Commission to exercise authority over the compensation of classified civil service employees. In Crider v Michigan, 110 Mich App 702, 707; 313 NW2d 367 (1981), the state initiated a voluntary-layoff program to address severe financial circumstances. When the voluntary-layoff program failed to sufficiently reduce payroll costs, a task force formed by the Governor recommended six one-day layoffs for certain state employees that would not result in the reduction of their hourly pay rate or fringe benefits. Id. To facilitate this proposal, one of the defendants, the Civil Service Commission, temporarily modified its rules regarding notice to allow for emergency situations that required immediate action. Id. at 707-709. The plaintiffs challenged the layoffs, asserting that the layoffs violated Const 1963, art 11, § 5, because the layoffs impermissibly reduced the salary of state officers. Crider, 110 Mich App at 722. This Court disagreed, holding:
Defendants concede that the Governor did not receive the approval of the appropriating committees of the House and the Senate for the salary reductions apparent in the layoff program. They further admit that the Governor does not have the authority to either personally order the layoff of state classified employees or to reduce appropriations for their salaries. Defendants contend, however, that the CSC does have authority to order or request departments to lay off classified state employees under Const 1963, art 11, § 5.
This latter constitutional provision confers upon the CSC plenary power to “fix rates of compensation for all classes of positions * * * and regulate all conditions of employment in the classified service”. The CSC’s constitutional authority to regulate the conditions of employment in classified civil service is independent from and not limited by the provisions of Const 1963, art 5, § 20. Accord ingly, if the CSC’s implementation of the layoff plan was permissible under art 11, § 5, it is not necessary for us to consider the effect of the failure of the Governor to comply with the conditions of art 5, § 20 of the Michigan Constitution. This follows by virtue of the fact that it is the Civil Service Commission, and not the Legislature, that is given “supreme power” over civil service employees under art 11, § 5. Welfare Employees Union v Civil Service Comm, 28 Mich App 343; 184 NW2d 247 (1970).
Our review of the record convinces us that the one-day layoff program instituted by the CSC was within the authority delegated to that agency under art 11, § 5. The effect of the layoff program is to reduce the actual number of hours worked in certain pay periods by classified state employees. The number of hours in a pay period is a condition of employment that is subject to the constitutional supremacy of the CSC. Welfare Employees Union v Civil Service Comm, supra. Nothing in the Michigan Constitution or in the rules and regulations of the CSC requires classified state employees to work any particular number of hours in a pay period or requires that they receive compensation for a specified number of hours during any fiscal year.
Because Const 1963, art 11, § 5 vests in the CSC exclusive authority to establish the conditions of employment for public employees and because neither plaintiffs nor the amicus curiae have cited any other constitutional provisions that the CSC may have violated in reducing the number of hours worked by plaintiffs, there is no merit to the contention that the one-day layoff program violates the constitution of this state. [Crider, 110 Mich App at 723-725.]
Additionally, in Mich Ass ’n of Governmental Employees, 125 Mich App at 183-185, the commission ratified two collective-bargaining agreements that included a five-percent wage increase and vision-care benefits for certain employees. The agreements for the wage increase and the vision-care benefits were transmitted to the Legislature. The Legislature passed a resolution rejecting the wage increase, but the resolution was contingent on the employees’ unions’ agreeing to modify the collective-bargaining agreements to eliminate the provisions for the wage increase. When the Office of the State Employer was unable to negotiate the concessions with the unions, the resolution became null and void. Consequently, the State Employer, at the behest of the Governor, asked the CSC to rescind the five-percent wage increase. The commission acted to rescind the wage increase and vision benefits applicable to two-thirds of the state classified civil service employees. Id. at 185.
The plaintiffs challenged the CSC’s authority to rescind the authorized wage increase after it had been considered by the Legislature. Id. at 186. On appeal, the commission’s rejection of the wage increase and vision benefits was upheld. “It is this Court’s opinion that the commission had the authority to rescind and defer the proposed increase even after it was considered by the Legislature.” Id. at 187. Const 1963, art 11, § 5, ¶ 7 allows the Legislature to have narrowly drawn veto power over increases in state wages. Mich Ass’n of Governmental Employees, 125 Mich App at 189. This provision of the Michigan Constitution does not foreclose “later action by the commission to rescind an authorized increase which has not been vetoed by the Legislature.” Id. The Legislature’s inability to veto an increase by a two-thirds vote of the members serving in each house does not mandate that salaries be maintained at that level in light of the authority over compensation that is granted to the Commission. Id. Consequently, the CSC exercised its sphere of authority to reduce compensation to classified civil service em ployees when the Legislature failed to act or was unable to garner sufficient support of its members to act within the parameters for adjustments to compensation in accordance with the Michigan Constitution.
VI. MCL 38.35
In 1943, the Legislature established a savings fund for employees that required deductions for contribution to the fund. The statute, MCL 38.35, provided, in relevant part:
Beginning July 1, 1943, each state employe who is a member of the retirement system shall contribute 5 per centum of that part of his compensation earnable, not in excess of $3,600.00 per annum, to the employes’ savings fund; compensation earnable, as herein used, shall mean salary or wages received during a payroll period for personal services plus such allowance for maintenance as may be recognized by the maintenance compensation schedules of the civil service commission. [1943 PA 240.]
The statutory provision following MCL 38.35 in 1943 PA 240, MCL 38.36, expressly stated that the deduction was agreed to between the Legislature and the members. MCL 38.36 provided:
Members agree to deductions. The deductions from the compensation of members, provided for in section 37 [sic] of this act, shall be made notwithstanding that the minimum compensation provided for by law for any member shall be reduced thereby. Every member shall be deemed to consent and agree to the deductions made and provided for in this act and shall receipt in full for his salary or compensation, and payment less said deductions shall be a full and complete discharge and acquittance of all claims and demands whatsoever for the services rendered by such person during the period covered by such payment, except as to benefits provided for under this act. [1943 PA 240.]
MCL 38.35 was amended in 1955 (1955 PA 237) to require, in relevant part, as follows:
Each member shall, to the date the members of the retirement system become covered under the federal social security old-age and survivors’ insurance program on account of their state employment, contribute 5% of the first $4,800.00 of his annual compensation to the employees’ savings fund. From and after the said date upon which members of the retirement system become covered under the said old-age and survivors’ insurance program, each member shall contribute to the employees’ savings fund 3% of the first $4,200.00 of his annual compensation plus 5% of his annual compensation in excess of $4,200.00.
MCL 38.36 was modified by 1955 PA 237 to provide that the payroll deduction to the employees’ savings fund was presumably consented to by the members:
The deductions from the compensation of members, provided for in section 35 of this act, shall be made notwithstanding that the minimum compensation provided for by law for any member shall be reduced thereby. Every member shall be deemed to consent and agree to the deductions made and provided for in this act, and payment less said deductions shall be a full and complete discharge and acquittance of all claims and demands whatsoever for the services rendered by such person during the period covered by such payment, except as to benefits provided for under this act. [1955 PA 237.]
MCL 38.35 and MCL 38.36 were repealed by 1974 PA 216. However, effective September 30, 2010, the Legislature enacted 2010 PA 185, which added a new MCL 38.35, the statute at issue in this case, to implement member and participant contribution to health-care-financing accounts, stating in subsection (1) of § 35:
Except as otherwise provided in this section, beginning with the first pay date after November 1, 2010 and ending September 30, 2013, each member and each qualified participant shall contribute an amount equal to 3.0% of the member’s or qualified participant’s compensation to the appropriate funding account established under the public employee retirement health care funding act, 2010 PA 77, MCL 38.2731 to 38.2747. The member and qualified participant contributions shall be deducted by the employer and remitted as employer contributions to the funding account in a manner that the state budget office and the retirement system shall determine. The state budget office and the retirement system shall determine a method of deducting the contributions provided for in this section from the compensation of each member and qualified participant for each payroll and each payroll period. [MCL 38.35(1).]
Notably absent from this legislation is MCL 38.36, now repealed, the companion provision to prior versions of MCL 38.35 that expressly stated that the deduction was the subject of an agreement among members to consent to the deduction and to preclude litigation premised on the deduction.
With regard to the present version of MCL 38.35, plaintiffs contend that the enactment of 2010 PA 185 violates Const 1963, art 11, § 5. We agree and hold that MCL 38.35 contravenes the provisions of Const 1963, art 11, § 5 and, therefore, it is unconstitutional and void. Pillon, 345 Mich at 547.
A review of the record reveals that plaintiffs, unions and their members, negotiated a CBA wage provision that culminated in a three percent wage increase for fiscal year 2010-2011. The commission’s sphere of authority, Plec, 322 Mich at 694, includes determinations of rates of compensation for all positions in the classified service:
The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service. [Const 1963, art 11, § 5, ¶ 4.]
Although the commission has plenary authority over the rates of compensation, a system of checks and balances was established with the Legislature in the Michigan Constitution of 1963. Mich Ass’n of Governmental Employees, 125 Mich App at 187-189. Specifically, an increase in the rate of compensation authorized by the commission may be rejected or reduced by the Legislature “by a two-thirds vote of the members elected to and serving in each house” provided the vote occurs within 60 calendar days of the transmitted increase. Const 1963, art 11, § 5, ¶ 7; Mich Ass’n of Governmental Employees, 125 Mich App at 187. “The [Legislature may not reduce rates of compensation below those in effect at the time of the transmission of increases authorized by the commission.” Const 1963, art 11, § 5, ¶ 7. The Civil Service Commission has the sole authority to fix rates of compensation. Const 1963, art 11, § 5, ¶ 4. The term “compensation” is defined as “something given or received for services, debt, loss, injury, etc.” Random House Webster’s College Dictionary (2001), p 271. By enacting 2010 PA 185 and adding the current version of MCL 38.35, the Legislature acted to reduce the compensation of classified civil servants by three percent without an accompanying agreement with the unions or the CSC. The sole authority to fix rates of compensation of classified civil servants is vested with the CSC. Womack-Scott, 246 Mich App at 79.
When interpreting a constitutional provision, the primary objective is to determine the initial meaning of the provision to the ratifiers, or the people, at the time of ratification. Nat’l Pride, 481 Mich at 67. To effectuate this intent, the plain meaning of the terms used in the constitution are examined and applied. Toll Northville Ltd, 480 Mich at 11. To clarify the meaning of this provision, we may examine the circumstances surrounding its adoption and its purpose. Traverse City Sch Dist, 384 Mich at 405. Every provision of the constitution must be interpreted in light of the document as a whole, and no provision should be construed to nullify or impair another. Lapeer Co Clerk, 469 Mich at 156.
The Separation of Powers Clause of the Michigan Constitution states:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [Const 1963, art 3, § 2.]
“The Constitution of the State of Michigan is not a grant of power to the [Legislature, but is a limitation upon its powers.” In re Brewster Street Housing Site, 291 Mich 313, 333; 289 NW 493 (1939). The plain language of Const 1963, art 11, § 5, ¶ 7 shows the intent that the rate of compensation is established by the CSC. Although the Legislature may exercise oversight over the CSC, it must act within 60 days of the commission’s action and must do so by a two-thirds vote of the members serving in each house. Const 1963, art 11, § 5, ¶ 7.
In the present case, the Legislature attempted to eliminate the three percent wage increase for the fiscal year 2010-2011 but did not succeed. However, the Legislature faced a budget deficit and determined that it would balance the budget by reducing the “compensation” of state employees, as defendants readily admitted in their brief on appeal:
In the fall of 2010, the Legislature was faced with the acute problem of balancing the State’s budget for the fiscal year beginning October 1, 2010. As a result the Legislature enacted MCL 38.35, which requires members and qualified participants in MSERS to contribute 3% of their compensation to the Trust created by MCL 38.2731, et seq in return for receiving health care for retirees, former qualified recipients, and their respective dependants. It was anticipated that MCL 38.35 would generate about $75 million annually to help balance the budget, though the total cost of health care for recipients for the year beginning October 1, 2010 will be approximately $500 million. [Defendants’ Brief on Appeal, p 6.]
Pursuant to Const 1963, art 3, § 2 and Const 1963, art 11, § 5 the Legislature did not have the authority to act to eliminate the three percent wage rate increase by enacting MCL 38.35 to remedy a budget deficit. The process for overriding the commission is expressly set forth in the Michigan Constitution, and when the Legislature failed to successfully invoke that process, it enacted MCL 38.35 to exercise authority over compensation, which is within the sphere of authority of the commission. Plec, 322 Mich at 694.
Moreover, caselaw reflects a record of cooperation between the branches of government to abide by the separation of powers as set forth in the Michigan Constitution. Specifically, when a voluntary layoff program failed to achieve the costs savings necessary to correct an increasing budget deficit, the commission, at the request of another branch of government, temporarily suspended its rules to allow for a program of six one-day layoffs. Crider, 110 Mich App at 723-725. This Court upheld the commission’s actions, determining that the commission had the exclusive authority to establish the conditions of employment for public employees. Id. at 725. Additionally, in Mich Ass’n of Governmental Employees, 125 Mich App at 183-185, the commission, at the behest of the State Employer, rescinded a five-percent wage increase and the addition of vision benefits for some state classified employees. This Court ruled that the commission had the authority to rescind and defer the proposed increase even after it was considered by the Legislature. Id. at 187. In the present case, there is no evidence that a process of negotiation was even attempted between the commission and the Legislature to achieve cost savings.
Defendants contend that the Legislature acted appropriately because MCL 38.35 merely represents a deduction similar to deductions for health insurance and taxes. However, deductions for health insurance are, to some extent, controlled by the civil service employee. That is, the employee decides whether to accept this benefit of employment and the type of plan from those available, thereby controlling the amount of the deduction. Taxes imposed by the federal government and the state government are standard rates that apply on the basis of income levels. In the present case, civil service employees were not given the option of participating in the retiree health care funding act.
Moreover, there is no correlation between the three percent reduction in compensation for individual civil service employees and the contribution into the system. That is, there is no escrow of the individual’s contribution into a fund for that individual. Plaintiffs contend, and defendants do not dispute, that the vast majority of the three percent compensation reduction is being utilized to fund benefits for current retirees, and is not being reserved for current employees. Curiously, unlike the prior statutory versions of MCL 38.35 that set aside the reduction in compensation into a savings fund in perpetuity, the present version of MCL 38.35 has a sunset provision of nearly three years. Defendants do not dispute plaintiffs’ assertion that the nearly three-year period of the deduction from compensation of MCL 38.35 will raise $225 million or the amount necessary to fill a budgetary gap. Indeed, defendants present no explanation for the sunset provision.
Defendants also submit that the prior versions of the retirement act, repealed in 1974, existed without constitutional challenge. However, the fact that a constitutional challenge did not occur is not dispositive. As noted in the context of taxation issues, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.” Walz v City of New York Tax Comm, 397 US 664, 678; 90 S Ct 1409; 25 L Ed 2d 697 (1970). The fact that the prior versions of MCL 38.35 were not the subject of a constitutional challenge does not render them constitutional. Walz, 397 US at 678. Furthermore, the prior versions of the savings fund retirement deduction contained an express provision holding that employees had agreed to the reduction in wages, see MCL 38.36 repealed in 1974. The current version of the retirement act, MCL 38.35, contains no similar provision, and there was no negotiated agreement with classified civil service employees.
Defendants also contend that the will of the people must be examined with regard to the passage of MCL 38.35 and that the people would approve of state workers’ being responsible for retirement costs. The people did not vote on and ratify the terms and conditions of MCL 38.35. Rather, the will of the people was expressed in Const 1963, art 11, § 5. There, the people ratified a system of checks and balances where the CSC has plenary authority over classified civil servants with a process in place for legislative override. The people expect that that the system of checks and balances will be respected, and a review of Michigan caselaw reveals that the CSC and the executive branch have dealt cooperatively to address employee compensation in times of economic hardship. The people can and should expect shared sacrifice; however, it cannot come at the expense of constitutional nullification, and the Legislature cannot expect to balance the budget on the backs of state workers.
Const 1963, art 11, § 5 provides that the rates of compensation for all employees in the classified service are fixed by the commission. It further sets forth the process for a legislative override of any wage increase submitted to the Governor by legislative vote of two-thirds of the members serving in each house. In the present case, the Legislature did not achieve its goal of preventing the wage increase in accordance with the constitutional provisions. Therefore, it enacted MCL 38.35 to fill a budget deficit. When a statute contravenes the provisions of the Michigan Constitution, it is unconstitutional and void. Pillon, 345 Mich at 547. Accordingly, the trial court did not err by granting plaintiffs’ motion for summary disposition and denying defendants’ motion for summary disposition.
Affirmed.
BECKERING, EJ., and STEPHENS, J., concurred with Fort Hood, j.
Plaintiffs are unions that are parties to a collective-bargaining agreement with the state and individual members of the unions.
There were four separate actions filed in the Court of Claims, and the actions were consolidated in the lower court, although the order stated that each case would keep its separate identity and the parties in one action would not become parties in the other actions. The Court of Appeals consolidated the appeals.
At oral argument, defendants asserted that the Legislature enacted the retirement system and has maintained authority over the system for the last 40 years. Therefore, defendants alleged that plaintiffs seek to invalidate the retirement system as a whole. On the contrary, any decision regarding MCL 38.35 is not an assault on the collective retirement system. Rather, the litigation is limited to addressing the validity of the process of removing three percent of employee compensation and directing it to retiree health care without regard to Const 1963, art 11, §5.
Defendants also rely on the fact that the three percent deduction applies to all employees. We only decide actual controversies, Shavers, 402 Mich at 589, and the application of MCL 38.35 to other employees is not at issue in this appeal. Defendants’ argument that the Legislature was acting for the benefit of the public health and welfare does not excuse the failure to comply with the Michigan Constitution. | [
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Black, J.
The question in this case is whether the chancellor was right in decreeing in favor of plaintiffs a permanent easement, for vehicular or “driveway” purposes (and incidental pedestrian use), over (a) the west 4.09 feet of premises owned by defendants Mingus and Cliff and (b) the east 5.91 feet of adjacent premises owned by defendant Garber Buick of Bay City.
Three separately-owned parcels of realty are contentiously involved. These parcels, situated in close proximity to Bay City’s business district, are designated throughout the record as “309 Adams,” “311 Adams” and “311 Tenth.” Each parcel for many years has been utilized for residence purposes and each of the houses standing thereon is quite old. Plaintiff Anna Rumrell is record owner of 309 Adams. Plaintiff Virgil O’Dell is executory purchaser, from plaintiff Anna Rumrell, of 309 Adams. Plaintiffs John E. and Anna Rumrell are owners of 311 Adams. 309 Adams and 311 Adams make up the dominant estates as adjudged below. Defendants Mingus and Cliff are owners of 311 Tenth. 311 Tenth, plus the mentioned adjacent premises owned by defendant Garber Buick, make up the servient estate as adjudged in the chancellor’s decree. Defendants Mingus and Cliff have appealed from such decree. Defendant Garber Buick has not.
Sketched exhibit 1 in the case (appearing at margin) is a helpful map of the respective parcels. Scrutiny thereof discloses — the north half of the platted alley having long since been duly vacated — that the claimed dominant owners and their predecessors have had no means of vehicular ingress and egress, from the rear of their lots to a public street, other than by the way as claimed by them.
Fir-st: "Was the easement as decreed. created by grant? The chancellor found affirmative answer in an ambiguously-worded deed of 3.09 Adams, made in 1921 by the then owners (Josephus and Rachael Martin) of all 3 of these residence parcels. We agree with the chancellor in such regard, yet are inclined to view that the presently summarized additional conveyances in the respective chains of title should be considered, with the mentioned conveyance of 1921, as providing forceful support of that which was decreed below. Turning first to the deed of 1921: By such deed Mr. and Mrs. Martin conveyed 309 Adams street “Reserving a right of driveway over and upon the west 16 feet of said piece of land for the benefit and use of the owners of lots 4, 5 and 6, Block 107.” Cloudy and uncertain meaning of this language of reservation and creation becomes apparent when one attempts to apply it to the physical situation then and now existent. This brings us to such additional conveyances, 4 in number.
1. Earlier, and in 1869, one Mary Jane McCormick acquired title to substantially all of the respective premises identified now as 309 Adams, 311 Adams, and 311 Tenth. The deed contained this language: “together with the right-of-way through an alley to be located on those parts of lots 4, 5 and 6 not herein before described, such alley to be 16 feet wide.”
2. In 1889 Mary J. Bassett (formerly said Mary Jane McCormick) conveyed into the chain of title the premises so acquired by her in 1869. The deed contained the same language of conveyance of a “right-of-way” as quoted from the mentioned deed of 1869.
3. In 1924 the State Bank of Linwood (grantee of the grantee named in the mentioned deed of 1921) conveyed 309 Adams into the chain of title. This deed contained the same language — “reserving a right of driveway”— as quoted from the mentioned deed of 1921 (Curiously, in this deed, the word probably intended to be “owners” is spelled “annuns”).
4. An additional deed, made of 309 Adams in 1936, contained the same language, “reserving a right of driveway,” as contained in the deed of 1924.
The task of a judge, when in the midst of opposing* demands he is called upon to apply as well as interpret the written equivocacy of those who have long since passed beyond, proceeds at risk of mistake. And, when an obscure writing of the past is to be held as having created, preserved, or destroyed, what at the time were visibly utilized rights in land, the chances of error become greater when the interpreter confines his appraisal to the writing* itself. He should, whenever the testimonial record so connects with the time of writing that he may safely do so, place himself in the position of the deceased grantor or grantors and, standing there,, examine together and as one the writing and the physical characteristics of that which the writing* was intended to affect. Since the record before us is complete and free from doubt in such regard, we turn on bid of this valued doctrine to the year 1921 for that view of the realty, and the available utility thereof, common grantors Josephus F. and Rachael Martin had as they contemplated sale of 309 Adams.
Mr. Martin had an automobile “from 1909 to 1925 or so” which he kept in a barn “on the rear of 311 Adams street.” He drove to and from the barn and into Tenth street using “a driveway west of 311. Tenth street.” The houses theretofore built at 309 Adams, 311 Adams and 311 Tenth, and the then encroachment of the Newkirk barn on the platted alley (see appendix), prevented ingress and egress from the Martins’ said barn to a public way, other than by following substantially tbe “alley” previous grantors had apparently created and perpetuated by recorded deeds. What purpose, then, can we impute to Mr. and Mrs. Martin when they conveyed 309 Adams — in 1921 — with reservation of the quoted '“right of driveway”? That the reservation be limited to use of the west 16 feet of 309 Adams? We ■say “no” since a “yes” answer would leave us in the unbelievable position of having' ascribed to the Martins intention of establishing or reserving a “right of driveway,” from the doorway of their backyard barn to the backyard of a neighboring narrow lot, all in a space measuring 16 feet by 35 feet with no outlet therefrom. We prefer to look at the conveyances of 1921 in the light of previous conveyances and the proven need for continued use by Mr. and Mrs. Martin of a way south to Tenth street from their barn. So viewed we find that the Martins intended to and did effectively create — if indeed their predecessors had not previously done so — an easement extending south along and upon the west end of the platted lots, from the rear of 311 Adams to 'Tenth street, “for the benefit and use of the owners of lots 4, 5 and 6, Block 107.”
Second: It is said that defendants Mingus and Cliff (their acquisition of 311 Tenth occurred in .1952) were good-faith purchasers and that they are entitled to protection of the recording laws. The trouble with this contention is that the mentioned ■deeds of 1869, 1889, 1921, 1924 and 1936 — granting that inept and contradictory language was employed, as to the “right of driveway,” by the scrivener or scriveners of the last 3 — did give notice of record that certain grantors in the chain of title had created •certain easement rights for the apparent benefit of the owners (or “annuns”) of platted lots 4, 5 and 6. 311 Tenth is a part of said lots 5 and 6. The situation ■so far as notice is concerned fairly called for in quiry — prior to purchase — of respective owners or possessors of other parcels lying within the 3 platted lots. Instead, defendants Mingus and Cliff purchased absent such inquiry and in legal reliance on covenants of warranty contained in the deed by which they claim. They had a right to do this, of course, yet pursuit of such course leaves them with remedy on such covenants rather than right to extinguish that which once existed of record and — as equity holds — still survives. In such connection we note from the record that defendants Mingus and Cliff have given to their grantors due notice to defend the present suit.
Affirmed. Costs to plaintiffs against defendants Mingus and Cliff.
Dethmers, C. J., and Sharpe, Smith, Edwards, Voelker, Kelly, and Carr, JJ., concurred.
APPENDIX
(Connected portion of chancellor’s opinion.)
“In 1901, Josephus Martin was the owner of the east 92 feet of Lots 4, 5 and 6; there were 3 houses on this land: 311 Tenth street (the Martin home and not involved in this litigation), 309 Adams (O’Dell property) which was immediately north of and adjacent to the Martin home, 311 Adams (Rum-rell property) which was immediately north of and adjacent to O’Dell property. There was a barn on the rear of 311 Adams, used by Martin, and there was a drive over the westerly part of lots 4, 5 and 6 leading from Tenth street to this barn. Part of this drive was probably part of the platted alley, but due to the encroachment of the Newkirk barn into the alley near Tenth street, the opening into Tenth street was somewhat to the east of the platted alley. Sometime after 1901, Martin built 311 Tenth street (Mingus and Cliff property) as a tenant house. In 1921, Martin ■sold 309 Adams reserving a right of driveway over the west 16 feet thereof for the ‘benefit and use of lots 4, 5 and 6,’ the property he retained. The only possible purpose for this reservation was for maintaining the use of the driveway then existing between Tenth street and the barn at the rear of 311 Adams. This created an easement of way over 309 Adams •appurtenant to lots 4, 5 and 6. In 1923, Martin sold 311 Adams and in 1925, a double cement block garage was erected thereon about on the site of the oíd barn. This garage was reached from Tenth street by using the same drive Martin used to his barn, •and this drive was used frequently from 1925 to 1952 by owners and occupants of the 309 and 311 Adams property, and by renters of the garage at the rear of 311 Adams, and by delivery trucks. These facts strengthen the conclusion that, the easement appurtenant created by the reservation above referred to was intended as such by Martin and that it passed with conveyance of part of the dominant •estate, vis.: 311 Adams. The easement of way over 309 Adams is meaningless without access to Tenth street, and the use of the way by Martin and others after its reservation in 1921 as well as the existence of the way for many years prior to 1921 leads this court to conclude that Martin intended a way to be reserved over lots 4, 5 and 6 for the benefit of all of said lots.”
To this opinion we have attached, in the form of an appendix, the decisive portion of the chancellor’s finding of facts and conclusion from the deed of 1921. We approve and adopt such finding and conclusion. | [
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O’Hara, J.
(dissenting). Gordon Piercefield, plaintiff here, was injured when the barrel of a shotgun, fired by his brother, exploded. Fragments of metal became imbedded in his brain. The shell fired was manufactured by the defendant, Remington Arms Co., Inc. Defendant Schaberg-Dietrich Hardware Company is the wholesaler, alleged to have sold the shell in question to defendant Scheidt’s Hardware. Norman Piercefield, plaintiff’s brother, claims to have purchased the shell from defendant retailer Scheidt. It is conceded that plaintiff was neither a purchaser nor a user of the shell. No claim is made that plaintiff’s cause of action, as alleged, derives from any relationship between him and his brother. For the purpose of decision, plaintiff and the purchaser-user are strangers. In the idiom of products liability law, plaintiff is an “innocent bystander,” or a “mere bystander,” dependent upon who employs the term. There is no legal distinction.
In consequence of his injury which occurred on November 26, 1957, plaintiff by 2-count declaration, filed November 10, I960, asserted liability against all defendants. In the first count labeled “Negligence” he claims violation of duty of care in manufacture, failure to inspect, failure to warn, and foreseeability of the consequences of the alleged lack of care. In count 2, labeled “Implied Warranty,” plaintiff charges the shell was not suitable for its intended use and that plaintiff was entitled to rely upon and did rely upon the implied warranty of fitness and suitability which attended the manufacture, distribution, and sale of the product.
Responsively, defendants denied some of these allegations. Affirmatively, as to the negligence count, they asserted contributory negligence of a third party for which defendant was not responsible; and as to the warranty count claimed that plaintiff, being neither a purchaser nor a user, was entitled to the benefit of no warranty, express or implied. As to the warranty count, defendants also pleaded affirmatively that if any warranty did extend to plaintiff, he was not entitled thereto by reason of his failure to comply with the notice requirements of the uniform sales act, PA 1913, No 100, § 49 (CL 1948, §440.49 [Stat Ann § 19.289]). These affirmative defenses were duly controverted and defendants thereafter moved in the alternative to dismiss or to strike, and for judgment on the pleadings. Briefs were submitted, oral argument heard, and on December 7, 1962, the trial court granted the motion to dismiss “count two, the implied warranty count” as to all defendants. Plaintiff appealed. There is a discrepancy between the wording of the order dismissing count two and the very clear and unequiv ocal statement of the trial judge in Ms ruling on the motion from the bench:
“It seems clear to me that our Supreme Court has from time to time, to-wit, in the case of Mansoni and Spence extended the rule to a consumer, to a remote buyer, to a user, and if they want to extend it further I think that is up to them. I think that it is up to this court to follow the law as it is now, and at the present time I don’t know of any Michigan case that we can point to that would permit this court to say that a bystander is entitled to proceed on the theory of an implied warranty.
“For that reason, I will so hold. * * *
“Mr.Mossner: Thank you, Your Honor. You are not ruling, then, on the notice, Your Honor?
“The Court: No. I don’t think it is necessary to rule on the question of notice.
“Mr. Mossner: Well, I just thought that perhaps if we get clarification on this phase of it we may get clarification on the whole thing.”
The order contains the following wording:
“That plaintiff failed to give timely notice of the alleged breaches of warranties to the defendants herein as required by CL 1948, § 440.49 [Stat Ann §19.289], being uniform sales act, §49, and that there was no implied warranty by the defendants herein running to the benefit of this plaintiff, a mere third party bystander.” (Emphasis supplied.)
This contradiction does not ease our task in delineating issues on review. We are of course bound by the court’s order. It is axiomatic that courts speak through their orders and decrees, not through colloquy between judge and counsel. Intended or not, the issue of adequacy of notice by reason of the wording of the order is before us. We suggest strongly, care by court and counsel both in the preparation and approval of orders to the end that such apparent contradiction does not reoccur.
We have then before us 2 questions. First, was plaintiff entitled to the benefit of the implied warranty of fitness that attended the manufacture, distribution, and sale of the involved shell? Second, if he were so entitled (a) is notice of the alleged breach a condition precedent to his maintenance of his action? (b) if such notice be requisite, was a letter from plaintiff’s counsel to defendant Remington Arms Co., Inc., sufficient compliance with the notice requirement as to it.
We examine question one. Plaintiff, as earlier noted, did not purchase or in any manner use the claimed defective shell. We are not therefore, as defendants urge strongly, concerned with a question of privity of contract. If plaintiff, as a bystander outside the chain of sale or use, be entitled to recover in warranty, it would be a logical abortion to require of him privity to someone in the “distributive chain.” To what end? We removed that requirement in the case of a purchaser, however remote, in Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120. We do not have before us the question of a nonbuying consumer of a food product manufactured and sold for human consumption as was presented and decided in Manzoni v. Detroit Coca-Cola Bottling Company, 363 Mich 235. As defendants put it bluntly in their brief, the proposition is simply this:
“If we start from what appellees considered the incorrect assumption that all injured persons are entitled to recover from a manufacturer who puts the product in the market, merely because of the injury, then this ends the matter and the court can, and should, say so, in one crystal-clear paragraph, unencumbered with sophistries or other unnecessary explanations.”
With equal candor, appellees state further:
“Prior to Spence and Mansoni, an injured plaintiff could hardly expect to recover at all from a manufacturer. See such Michigan cases as Pesavento v. E. I. duPont deNemours & Co. (1927), 240 Mich 434; and Pickens v. Crowley-Milner & Co. (1932), 258 Mich 102. This inability to recover goes as far back as Mr. Winterbottom’s problem in 1842, commented upon in annotation, 74 ALR2d 1111, at page 1131:
“ 'It is frequently stated that it is a “general rule” that a manufacturer or seller of a product alleged to have caused injury cannot be held liable therefor, on the ground of negligence, to one with whom he is not in privity of contract. At the foundation of this “general rule” as to the nonliability of a manufacturer to a remote vendee or ultimate consumer of the manufactured product is the English decision in a case which does not involve the liability of a manufacturer or seller, but of a contractor. The case is, of course, Winterbottom v. Wright (1842), 10 Mees & W 109 (152 Eng Rep 402).’
“At page 1134 it is said:
“ 'Lying at the core of complaints respecting the privity rule of Winterbottom v. Wright is, unquestionably, its unworkability in modern times, that is, its inherent inability to assure fundamental justice in contemporary litigation involving product-caused injury.’ ”
It seems to us that in the never-ending process of adjusting settled rules of law to changing conditions in society the courts have taken seven-league-boot strides toward equalizing the positions of injured plaintiffs, manufacturers, distributors, and retailers. Within the “distributive chain” the relative positions have not only been equalized, as was long overdue, but the advantage, if any now exists, has shifted to the injured plaintiff. In Michigan he may proceed in warranty or tort (despite some rather paradoxical language in Spence). In warranty, courts responded to the “ ‘ever-growing pressure for protection of the consumer, coupled with a realization that liability would not unduly inhibit the enterprise of manufacturers and that they were well placed both, to profit from its lessons and to distribute its burdens.’ ” Manzoni, supra, p 241, and footnote sources 13.
Appellees argue to us that as yet no State has extended the warranty theory of recovery to bystanders, and at the same time repudiated the notice requirements generally required precedently to recover thereunder. Appellants urge not only that we should extend the warranty theory of recovery without privity to bystanders, but that “enlightened jurisdictions” should not require notice because plaintiff-bystander is not a “buyer” and hence the provisions of the uniform sales act should not apply. They contend that in any event as to defendant Remington, notice was in fact timely given. That pur State, nor any other State, has not yet held as appellant urges should be held is not per se valid basis for our not so doing now. "We do not aspire to regain the dubious distinction we enjoyed as the last State to discard imputed negligence in the case of blameless automobile guest passengers in actions against third-party wrongdoers. Nor do we care to become, without a clearly demonstrated need, judicial pioneers ordaining new theories for recovery merely because regrettable injury has occurred.
With the availability to him of tort recovery upon proper proof, we do not turn plaintiff away without remedy. His negligence action impends. As evi deuce of negligence becomes recognized as an inference to be drawn by the trier of the facts from the total evidentiary and testimonial complex, his problem of proof is lessened. Whether to call this principle by its sonorous Latin birth-name res ipsa loquitur, or to do as we did years past in Hertzler v. Manshum, 228 Mich 416, at p 421, say “The poisoned flour speaks for itself; unexplained it evidences negligence,” seems inconsequential.
We are not unmindful that under our adversary system this proof of negligence, or lack thereof, rests as often upon the skill of the advocate as upon any absolutes of fact. But thus it is, and thus it will remain until society decrees otherwise. Meanwhile, the judiciary can only continue to adjust within the system, the rights of the parties by affirming, reversing, overruling, modifying, reconciling, and distinguishing precedents and principles, vulnerable always to the critics’ cry of “finding legal loopholes”, “judicially legislating”, and chained by blind devotion to stare decisis.
In the case at bar, we are not convinced we should extend our doctrine of warranty recovery to bystanders outside the “distributive chain.” This for reason that whatever the refinements of historic origins, similarities and distinctions between tort and warranty may be (see 64 Columbia L Rev p 916 [1964])—forms of action and varying requirements of proof and differing times for limitations of actions are matters, not just of form but of the substance of a jurisprudence. They are not immutable to be sure, but neither are they to be relegated to the classification into which Yirgil cast the fair sex “semper varium et mutabile.” An action for breach of warranty, whether or not “sounding” in tort, is still essentially a contract action. To recover there under a plaintiff lias to have some relationship to the contract of sale, and the nse which implicitly follows thereafter.
For the reasons hereinbefore set out, the order of the trial judge dismissing “Count Two (implied warranty)” as to plaintiff bystander should he affirmed. In so holding, we do not reach the questions of the necessity for, nor the sufficiency of, the alleged notice to appellee Remington Arms Co., Inc.
Appellees should tax costs.
Kelly, J., concurred in result.
Black, J.
This suit for personal injuries was commenced in 1960. The factual conclusions declared upon by plaintiff are summarized in Justice O’Hara’s opinion. Upon like motions filed by the defendant manufacturer, wholesaler, and the retailer, the trial court ordered stricken the second count of plaintiff’s declaration. The stricken count is headed “Implied Warranty.” Plaintiff has appealed and presents two questions:
“Did the trial court err in holding that plaintiff could not sue the defendants (the manufacturer, wholesaler, and retailer of certain allegedly defective shotgun shells) on the theory of breach of implied warranty, because there was no privity of contract?
“Was the plaintiff required to give notice to the defendants of the breach of warranty?”
First: This question arises under and is due for determination according to the standards of the common or bench law. In event the Court’s answer to such question is affirmative, the result will be that of affirming a common-law remedy for tortious wrong bottomed upon breach of a legally implied, rather than a contractually created, warranty of fitness. This must be so since it is agreed that the-' plaintiff, a so-called bystander, did not at any time stand in a position of legal privity with any defendant.
To open ensuing discussion, I am obliged to record disagreement with Justice O’Hara’s statement that “the proposition is simply this”:
“If we start from what appellees considered the. incorrect assumption that all injured persons are entitled to recover from a manufacturer who puts the product in the market, merely because of the injury, then this ends the matter and the court can, and should, say so, in one crystal-clear paragraph, unencumbered with sophistries or other unnecessary explanations.”
A more accurate statement of “the proposition” is that something more than injury must be shown in instances such as this plaintiff has pleaded, that is to say, he must allege and prove (a) the defect of manufacture upon which he relies, and (b) injury or damage caused by or resulting from such defect. As said so well in Picker X-Ray Corp. v. General Motors Corp. (Mun App DC, 1962), 185 A2d 919, 922:
“There seems to be some confusion in understanding the nature of implied warranty liability. In the first place, concepts of negligence and fault, as defined by negligence standards, have no place in warranty recovery cases. Proof of negligence is unnecessary to liability for breach of implied warranty and the lack of it is immaterial to defense thereof. Since the warranty is implied, either in fact or in law, no express representations or agreements by the manufacturer are needed. Implied warranty recovery is based upon two factors: (a) The product or article in question has been transferred from the manufacturer’s possession while in a ‘defective’ state, more specifically, the product fails either to he ‘reasonably fit for the particular purpose intended’ or of ‘merchantable quality,’ as these two terms, separate but often overlapping, are defined by the law; and (b) as a result of being ‘defective,’ the product causes personal injury or property damage.”
This case, like several others submitted early last year, has remained under discordant consideration since April 10, 1964. We are favored with excellent briefs by both groups of counsel. In and from them the Court has found and dutifully examined no end of arrayed and opposing authorities and textwritten views. The orally argued and briefed presentations, and the ensuing exercise in research, have been both helpful and informative. Yet they do but lead to verdict that the stated question has already been foreclosed — for the affirmative — by our own decisions.
At first, finding myself unable to agree with Justice O’Hara, a lengthy opinion standing for reversal was thought to be in due order. Such a draft was prepared, in rough form. It included a lengthy review of what has transpired judicially since Justice Cardozo wrote, 34 years ago, his oft-quoted epigram concerning the “citadel of privity.” Upon second thought, though, it has come to mind that the profession is familiar enough with the myriad of words textualists and judges have written for and against liability without privity, and that what is needed of this Court, here and now, is a definite rule and a definite result, written simply with references which appeal to us as both trendful and best reasoned.
Agreeing as all of our recent decisions do with the developing weight of authority, the essence of which ia that the manufacturer is best able to control dangers arising from defects of manufacture, I would say definitely that Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120; Manzoni v. Detroit Coca-Cola Bottling Co., 363 Mich 235; Barefield v. LaSalle Coca-Cola Bottling Co., 370 Mich 1, and Hill v. Harbor Steel & Supply Corp., 374 Mich 194, have put an end in Michigan to the defense of no privity, certainly so far as concerns an innocent bystander injured as this plaintiff pleads, and that a person thus injured should have a right of action against the manufacturer on the theory of breach of warranty as well as upon the theory of negligence. Some quibbler may allege that this is liability without fault. It is not. As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.
Take the recent case of Henningsen v. Bloomfield Motors, Inc., 32 NJ 358 (161 A2d 69, 75 ALR2d 1) as an example of reason for the rule. Would anyone, having read the court’s exhaustive opinion, expect a result reasoned differently had, say, the plaintiff been a pedestrian who, when the Henningsen car “veered sharply to the right and crashed into a highway sign and a brick wall,” suffered crushed legs as the car struck the wall? Take’ Spence' as another example, and assume that the plaintiff there had been a bystander or visitor injured by a crumbling and buckling of some wall of the cottage which had been built of the defective blocks. Would our result have been different? See Justice Voelicer’s discussion of the probable deterioration of the blocks and the likelihood of their endangering the structure itself in the future (p 126). Take Hill v. Harbor Steel. Would we have denied recovery — on the same theory — to the personal representative of, say, a municipal inspector or buyer of scrap, then lawfully in the yard and killed by the same explosion?
The fact is that Michigan, for abundantly worthy reasons, has eliminated lack of privity as a defense to actions as' at bar, and that when the factual position of the suing plaintiff is so far causally removed as to render the defect a remote cause of his injury or damage, a case not now before us will come to consideration. It is enough to say, as the court did in Henningsen (32 NJ 415, 161 A2d 101, 75 ALR2d 37), that it is now not necessary to establish “the outside limits- of the warranty protection.”
Second: My answer to the quoted second question is foreshadowed by what appears above. The ques tion refers, of course, to the notice requirement of section 49 of the uniform sales act (CL 1948, § 440.49 [Stat Ann 1959 Bev § 19.289] ). For the same reasons as were made to appear in Greenman v. Yuba Power Products, Inc., 59 Cal 2d 57, 60-62 (27 Cal Rptr 697, 699-701, 377 P2d 897, 899-901), I would hold that the giving of notice under said section 49 is not a prerequisite to institution and maintenance of this plaintiff's suit. Said section 49 deals with the rights of the parties to a contract of sale. It does not require that notice must be given of breach of a warranty that arises by legal implication distinct from a contract of sale. “Such warranties are not imposed by the sales act, but are the product of common-law decisions that have recognized them in a variety of situations.” (Greenman, at 61 [27 Cal Rptr 699, 377 P2d 899]).
A thoughtful thesis, written in 1962 by George E. Bushnell, Jr., of the Detroit Bar (“Practical Aspects of Defending Products Liability Cases,” 11 Defense Law Journal 99), is built from a text of “Recognition of the Inevitable.” Having considered Henning sen, Spence, and Mansoni, along with other like authorities, Mr. Bushnell concludes as I would conclude (p 101):
“The duty of impliedly warranting the quality and fitness of the product has become a duty imposed by law. In effect, the warranty runs with the chattel. Since the duty is not imposed by the terms of the contractual relationship, the requirement of notice under the uniform sales act has, in the better view if not in the majority view, been dissipated.”
The article ends with a sound bit of advice (p 112):
“What has been proposed here is, obviously, no panacea or sop to potential defendants. What has been proposed contemplates brute hard, expensive preparation and trial. I submit and I urge, there is no other way to defend a product liability action. The alternative is liability without fault!”
I would reverse and remand for entry of order denying the aforesaid motions to strike. Plaintiff should have costs.
T. M. Kavanagh, C. J., and Souris, Smith, and Adams, JJ., concurred with Black, J.
Dethmers, J., did not sit.
A summons issued October 4, 1960.
In effect and applicable to this action, PA 1913, No 100, the uniform sales aet, repealed in its entirety by PA 1962, No 174, uniform commercial code, effective January 1, 1964. Substance of PA 1913, No 100, § 49, appears in PA 1962, No 174, § 2607 (CL 1948, § 440.2607 [Stat Ann 1964 Rev § 19.2607]).
Manzoni v. Detroit Coca-Cola Bottling Co., 363 Mich 235.
Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120.
Bricker v. Green, 313 Mich 218 (163 ALR 697).
See Virgil’s Aeneid, Book 4.—Reporter.
“The assault upon the eitadel of privity is proceeding in these days apace. How far the inroads shall extend is now a favorite subject of juridical discussion.” Ultramares Corp. v. Touche, 255 NY 170, 180 (174 NE 441, 445, 74 ALR 1139, 1145).
A growing number of courts and legal writers look upon Spence as a leading case. That is evident upon perusal of the mass of material counsel have called to our attention. Professor Jaeger, formerly director of graduate research, Georgetown University Law Center and author of the current edition of Williston on Contracts, writes of Spence (16 Butgers Law Beview, “Warranties of Merchantability and Fitness for Use: Beeent Developments,” 493, 551) :
“Cases holding the manufacturer, packer or processor liable, for breach of warranty, even in the absence of privity, definitely reflect the modern trend and probably the weight of authority. But going far beyond these are the cases where the only injury is to the purse, and no personal injury or illness is experienced. Conspicuously leading among these is Spence v. Three Rivers Builders & Masonry Supply, Inc. The subject matter of the contract was a building material described as 'cinder blocks/ which had been purchased by a builder for use in the construction of a home for the plaintiff who was clearly not in privity of contract with the defendant manufacturer. In a masterful opinion the eourt examines the pros and cons of privity, reviewing all of the pertinent precedents, and easts its lot with the more enlightened group of jurisdictions which consider privity a waning concept.”
For those interested in pursuing the subject exhaustively to date, reference is made to Jaeger, “Privity of Warranty: Has the Tocsin Sounded?”, 1 Duquesne Law Beview, Spring 1963, 1-142; Jaeger, “Product Liability: the Constructive Warranty,” 39 Notre Dame Lawyer 501-556 (1964) ; “Strict Products Liability and the Bystander,” 64 Columbia Law Beview, 916-937 (1964); also 2 Harper & James, Torts, p 1572,
Now embodied in the uniform commercial eode, PA 1962, No 174, § 2607 (CL 1948, § 440.2607, Stat Ann 1964 Rev § 19.2607).—Reporter. | [
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Gleicher, J.
The Michigan Parole Board (the Board) granted Raymond Harold Haeger parole after he had served approximately 17 years of a 15- to 30-year sentence. The Alpena County Prosecutor objected to Haeger’s release and sought leave in the circuit court to appeal the Board’s parole decision. The circuit court ruled that the Board had abused its discretion by granting parole despite that Haeger’s probability for parole had actually declined since the Board’s last consideration. Accordingly, the circuit court reversed the Board’s decision.
We affirm the circuit court’s reversal of the Board’s decision but on different grounds. The Board failed to comply with certain regulatory provisions before reaching its parole decision. Specifically, Mich Admin Code, R 791.7715(5)(b) mandates that a prisoner with “a history of. . . [pjredatory or assaultive sexual offenses” undergo a “psychological or psychiatric evaluation before the release decision is made . . . .” There is no record indication that Haeger received such an evaluation after 1993. It is also unclear whether the Board considered Haeger’s “[development of a suitable and realistic parole plan,” as required by Mich Admin Code, R 791.7715(2)(c)(iii), because Haeger’s transition accountability plan (TAP) does not appear in the record. We are further concerned that Parole Board Member Charles Brown based his decision, in part, on Haeger’s completion of additional sexual offender therapy (SOT) in 2009 despite that no documentation of that therapy exists in Haeger’s file. In addition, “holes” in the record that the Board failed to remedy persist even after the circuit court ordered the Board to supplement Haeger’s file. Because the Board violated its regulatory duty to defer its decision until Haeger received a psychological evaluation and its duty to consider Haeger’s development of a parole plan, and because the Board’s failure to adequately and timely comply with the circuit court’s remand order resulted in an incomplete record, we affirm the circuit court’s decision to reverse the Board’s grant of parole to Haeger.
I. THE PAROLE PROCESS IN MICHIGAN
The Parole Board, consisting of 10 members, is located within the Michigan Department of Corrections (DOC). MCL 791.231a(1). Prisoners come under the Board’s jurisdiction after serving their minimum sentence, adjusted for any good time or disciplinary credits. MCL 791.233(1)(b) through (d); MCL 791.234(1) through (5). For each potential parolee, a DOC staff member must evaluate the prisoner, ensure the completeness of the prisoner’s file, and prepare a summary “Parole Eligibility Report” (PER) to advise the Board. See In re Parole of Elias, 294 Mich App 507, 511; 811 NW2d 541 (2011), citing DOC Policy Directive 06.05.103, p l, and MCL 791.235(7). Board staff members use this compiled information to score the prisoner’s parole guidelines. DOC Policy Directive 06.05.100, ¶ D, p 1.
“Statutorily mandated parole guidelines form the backbone of the parole-decision process.” Elias, 294 Mich App at 511. The guidelines “ ‘attempt to quantify’ ” various factors relevant to the parole decision in order “ ‘to inject more objectivity and uniformity into’ ” the parole process. Id., quoting In re Parole of Johnson, 219 Mich App 595, 599; 556 NW2d 899 (1996). The Legislature directed the DOC to refine the statutory guidelines by developing more detailed regulations. MCL 791.233e(l). “Pursuant to this legislative mandate, the DOC promulgated regulations outlining certain factors for the Board to consider when making a parole decision[.]” Elias, 294 Mich App at 513. The Board must determine “whether parole is in the best interests of society and public safety” considering the prisoner’s past and current criminal behavior, “[institutional adjustment,” “[r]eadiness for release,” “personal history and growth,” and “physical and mental health.” Mich Admin Code, R 791.7715(2). Moreover, when a prisoner has a history of “predatory or assaultive sexual offenses,” the prisoner must undergo a “psychological or psychiatric evaluation before the release decision is made . .. .” Mich Admin Code, R 791.7715(5).
The DOC regulations further direct the Board to consider “all relevant facts and circumstances, including the prisoner’s probability of parole as determined by the parole guidelines ...Mich Admin Code, R 791.7715(1). The guidelines, in turn, require that scoring be based on the prisoner’s time served as well as the “aggravating and mitigating circumstances” of the sentencing offense, the “prisoner’s prior criminal record,” the number of major misconducts committed by the prisoner within the preceding one- and five-year periods, the prisoner’s score on “risk screening scales,” the prisoner’s age, the prisoner’s performance in recommended institutional programs, and “[t]he prisoner’s mental health” status. Mich Admin Code, R 791.7716(3). The guideline factors are separated into eight sections, each with a list of subfactors to be scored and instructions on the point value to be assigned. Elias, 294 Mich App at 517, citing DOC Policy Directive 06.05.100, Attachment A, pp 1-9. The aggregated score is “ ‘used to fix a probability of parole determination for each individual on the basis of a guidelines schedule. Prisoners are categorized under the guidelines as having a high, average, or low probability of parole.’ ” Elias, 294 Mich App at 518, quoting Johnson, 219 Mich App at 599.
A prisoner being considered for parole may also undergo an informal and nonadversarial “interview conducted by one or more Board members assigned to the prisoner’s panel.” Elias, 294 Mich App at 518, citing DOC Policy Directive 06.05.104, ¶ R, p 4. Following the parole interview, a “Case Summary Report” is generally created for the Board’s review. See Elias, 294 Mich App at 519.
As described in Elias, the DOC recently implemented the Michigan Prisoner ReEntry Initiative (MPRI), which is “designed to promote public safety and reduce the likelihood of parolee recidivism” and to “ ‘improve [] decision making at critical decision points,’ such as when the Board is considering whether to release a prisoner from incarceration on parole.” Id., quoting DOC Policy Directive 03.02.100, ¶ C p 1. Under the MPRI, the DOC and the Board are now required to prepare and consider additional reports, in particular the transition accountability plan TAP. The TAP “succinctly describe [s] . . . exactly what is expected for offender success.” The MPRI Model: Policy Statements and Recommendations, Michigan Prisoner ReEntry Initiative, January 2006, p 5. A DOC staff member “must formulate a TAP with each prisoner, mostly to assist the prisoner’s reentry into society, but also to assist the Board in rendering its parole decision.” Elias, 294 Mich App at 519-520. The TAP analyzes the prisoner’s risk factors, sets goals to decrease those risks, and establishes a plan for the prisoner to reach his or her goals. Id. Under the MPRI, the Board is also now required to conduct a “correctional offender management profiling for alternative sanctions” (COMPAS) evaluation. The COMPAS program
is a comprehensive risk and needs assessment system, which takes into account both static information (such as the prisoner’s past criminal offenses) and dynamic data (such as the prisoner’s evolving attitudes and mental condition).. ..
[A] case manager considers various characteristics of the offender and the offense and inputs scores into the
COMPAS computer software program. The software generates a score ranking the offender’s statistical likelihood of violence, recidivism, success on parole, and other factors. [Id. at 520-521.]
Although “matters of parole lie solely within the broad discretion of the [Board],” Jones v Dep’t of Corrections, 468 Mich 646, 652; 664 NW2d 717 (2003); see also Hopkins v Parole Bd, 237 Mich App 629, 637; 604 NW2d 686 (1999); MCL 791.234(11), that discretion is clearly restricted by legislative limitations. “In addition to creating the framework shaping the regulatory parole guidelines,” Elias, 294 Mich App at 522, the Legislature dictates that “ ‘[a] prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner’s mental and social attitude, that the prisoner will not become a menace to society or to the public safety,’ ” Johnson, 219 Mich App at 598, quoting MCL 791.233(1)(a). Moreover, “[o]nce the Board has rendered its decision, it must issue in writing ‘a sufficient explanation for its decision’ to allow ‘meaningful appellate review,’ Glover v Parole Bd, 460 Mich 511, 519, 523; 596 NW2d 598 (1999), and to inform the prisoner of ‘specific recommendations for corrective action’ if necessary ‘to facilitate release,’ MCL 791.235(12).” Elias, 294 Mich App at 522-523.
II. PRIOR AND CURRENT PAROLE CONSIDERATIONS
With this framework in mind, we now consider the history of Haeger’s imprisonment and the progression of his parole reviews. In 1992, Haeger pleaded nolo contendere to breaking and entering an occupied dwelling with the intent to commit a felony inside, MCL 750.110a(2)(b), and first-degree criminal sexual con duct committed during a felony, MCL 750.520b(l)(c). Haeger was sentenced to concurrent terms of 15 to 30 years’ imprisonment for each offense. Haeger’s convictions arose from the forcible rape of his cousin in the early morning hours of February 2,1992. After consuming a large amount of alcohol at an Alpena bar, Haeger began driving toward his home in Hillman. At approximately 3:00 a.m., Haeger passed the home of his cousin and decided to stop. Haeger later told police that he had used a pair of his girlfriend’s underwear to mask his face. He then entered his cousin’s home by removing a basement window. Once inside, Haeger went into the kitchen and took a seven-inch knife from a drawer. Haeger made a noise, waking his cousin, who had fallen asleep on the couch in the adjacent living room. The victim entered the kitchen and found a masked man holding a knife crouched down next to the refrigerator. Haeger, armed with the knife, lunged at the victim and the two struggled. Ultimately, Haeger pinned the victim facedown on the ground and forcibly penetrated her vagina with his penis. When Haeger left, he threatened to return and kill the victim if she told anyone what had happened. The victim later told police that she recognized the voice of her assailant as belonging to Haeger. Haeger admitted to his parents in front of police officers that he had broken into the victim’s home and raped her. The officers then transported Haeger to the Alpena Police Department, where he gave tape-recorded and written statements describing the offense in great detail.
Upon Haeger’s imprisonment, the DOC referred him for a psychological evaluation. On October 6, 1992, the evaluating psychologist noted that Haeger “was polite and cooperative, admitting to guilt of instant offense.” After conducting various diagnostic tests, the psychologist noted that Haeger’s evaluation “reflects an imma ture, impulsive, alcohol abusive young male with a self-centered attitude” who “seems to have had a deep feeling of psychosexual inadequacy coupled with alcohol abuse that infringed on his judgment.”
In preparation for Haeger’s appeal of his convictions, appellate defense counsel procured another psychological evaluation of his client. On April 9, 1993, Dr. Michael Abramsky submitted a report opining that Haeger should have received a much shorter sentence for his offense. Abramsky described Haeger as “a rather shy, seclusive [sic] young man[.]” Haeger told Abram-sky that he had “blacked out” and did not remember attacking his cousin. Haeger accused the police of feeding him the details of the crime. Abramsky completed a “Hare Psychopathy Check List,” which “measures tendencies towards chronic criminality.” From that test, Abramsky noted “a gross absence of psychopathic indicators.” Specifically, Abramsky noted that Haeger “show[ed] no histoiy of pathological lying... [or] of being callous or having a lack of empathy.” Moreover, Haeger’s “behavior has always been well controlled and there is no histoiy of a loss of behavioral control.” Based on the Hare evaluation, Abramsky believed Haeger had “a low probability” of recidivism and “chronic criminality.”
Abramsky also evaluated Haeger under the Minnesota Multiphasic Personality Inventory (MMPI), which Abramsky concluded did not show a patter[n] compatible with psychopathic deviance.” Rather, Haeger’s scores revealed an individual with “learning disabilities and attention deficit disorder.” Abramsky administered a Rorschach test to measure Haeger’s “more unconscious processes” and determined that Haeger did not appear unusually aggressive or preoccupied with sex.
Haeger was admitted into a sexual offender therapy (SOT) program in 2000. In order to be admitted into the program, Haeger had to “[a]ccept[] responsibility for his sex crime” and “[r]ecognize[] he has a problem and needs to change.” Haeger was prematurely discharged from SOT on December 14, 2000, when he was transferred to a lower security facility. However, he completed the “Relapse Prevention” portion of the therapy. The treating psychologist indicated that Haeger’s overall progress was rated 7 on a 10-point scale, indicating “good” performance. Haeger needed a score of 9 to be considered as having achieved the goals of therapy. Haeger scored 7 points for each of the following therapeutic goals:
a. Develop a clear understanding of his responsibility for setting up and committing his sex offense.
b. Examine his offense cycle, deviancy, thinking, beliefs, feelings, self-concept and behavior that led to his sexual offense.
c. Develop and demonstrate victim empathy.
d. To honestly self-disclose to the group about his deviant sexual behavior.
e. Examine his sexuality, morals, values, social and sexual relationship.
f. Develop a practical relapse prevention plan.
g. Learn self-control skills to shut down his deviant arousal pattern.
The treating psychologist concluded that Haeger “has made a positive effort to examine himself in a reflective manner. He has achieved a good understanding of his responsibility in the offense, offense cycle, victim em pathy, has self-disclosed, developed a plan to prevent relapse and seems better able to shut down deviant arousal pattern.”
Haeger began working in the prison’s food service department in 2001. Haeger’s supervisors consistently gave him excellent reviews. Haeger was even commended for voluntarily transferring to a higher security, neighboring facility so he could continue to work while the lower security facility’s kitchen was being remodeled.
Because of good-time credits, Haeger first became eligible for parole in 2004, after serving approximately 12 years of his original 15-year minimum sentence. In preparation for the Board’s first parole review, a DOC staff member prepared a PER. Consistently with regulatory requirements, Haeger’s 2004 PER noted that he had no major misconduct tickets, “interact[ed] well with staff and peers,” and “presented] no management problems.” The report further indicated that Haeger “received above average work evaluations” and was on a waiting list to attend a job-seeking-skills class. Haeger participated in Alcoholics Anonymous from 1992 through 1994 and completed a “Substance Abuse Phase II” program in 2002. The PER noted that Haeger had completed SOT on December 14, 2000. Overall, Haeger had “completed all. . . recommended programs” and “at least fe of all program reports [were] above average.”
Using Haeger’s file and PER, the Board then calculated Haeger’s parole guidelines score. Under the parole guidelines, a prisoner is assigned positive or negative points for variables in eight categories. These points are aggregated to reach a “Final Parole Guidelines Score” that determines whether a prisoner’s probability of parole is high, average, or low. See DOC Policy Directive 06.05.100, Attachment A. At that time, Haeger received a final score of +6 points, placing him in the “high probability of parole” category. The PER, parole guidelines, and Haeger’s prison file were then sent to a three-member panel of the Board to render a parole decision. The Board determined that there were substantial and compelling reasons to deviate from the parole guidelines and deny parole: “During interview [Haeger] failed to convince [the Board] that he has gained significant insight into the cause of his deviant behavior. [Haeger] stated that he was young and immature and unwilling to deal with stress and blew up.” The Board recommended that Haeger continue to earn “positive work reports” and program reports as well as “good block or staff reports.” The Board further recommended that Haeger “provide additional demonstration of positive prison behavior.”
The Board again denied Haeger parole on July 13, 2005. Haeger continued to score +6 points on the parole guidelines, but the panel noted that Haeger “has not demonstrated enough insight into his crime, [Haeger] showed little or no empathy for the victim, which indicates that [Haeger] has not gainfed] enough knowledge about his deviant behavior which was a brutal rape on his victim.” The Board limited its recommended corrective actions to earning positive program reports and providing “additional demonstration of positive prison behavior.”
On June 27, 2006, the Board denied Haeger parole a third time. Haeger’s parole-guideline score had increased to +7 points because he was assigned an additional point for his age variable. Moreover, the PER prepared for the Board’s review indicated that Haeger had an above average work record while imprisoned and received excellent reports from the cellblock guards. As its substantial and compelling reasons for denying parole, the panel noted the following: “[Haeger] minimizes his behavior based on his being drunk. This was a very deliberate, planned rape. [Haeger] laid in hidding [sic]. Used a mask. The [victim] was his cousin. He presents a belief that his victim is fine and didn’t suffer any injury. No insight or remorse.” The Board recommended that Haeger “demonstrate responsible behavior by earning positive” program reports and “by avoiding” misconduct citations. The Board further recommended that Haeger participate in DOC-sanctioned activities, “enter into or continually involve [him]self in substance abuse programming,” and “identify and develop community resources to address special needs identified through group therapy.”
On June 21, 2008, the DOC conducted a COMPAS risk assessment of Haeger. That assessment indicated that Haeger was a low risk for violence, recidivism, and future substance abuse and could likely secure employment, maintain housing, and manage his finances once released. On the COMPAS Cognitive Behavioral/Psychological scale, Haeger scored 2 points, indicating that he was unlikely to “blam[e] others, mak[e] excuses or mini mize[e] the seriousness of [his] offense” and was also “unlikely to lead a high risk lifestyle or make impulsive decisions.” However, the narrative statement accompanying this scale, which concludes that Haeger has a “likely criminal personality,” was inconsistent with the assigned score. We now know that this inconsistency resulted from a computer software error. In its motion for reconsideration following the circuit court’s reversal of the Board’s 2009 grant of parole, the Board finally presented an affidavit from a DOC Department Specialist, Teresa Chandler. Chandler reviewed Haeger’s COMPAS report and noted that the criminal personality scale is not a factor in considering the cognitive behavioral scale and was erroneously included on the report.
The Board denied parole a fourth time on August 4, 2008. The panel indicated, “In spite of the completion of recommended [SOT], [Haeger] lacks the necessary insight into his deviant behavior. [Haeger] is still considered a risk to the general public safety.” At that time, the Board continued Haeger’s sentence for a 24-month period before reconsidering parole. The Board again recommended that Haeger “demonstrate responsible behavior by earning positive” program reports and “good block or staff reports of conduct” and “by avoiding . . . misconduct citations.” The Board also continued to recommend that Haeger “enter into or continually involve [him]self in substance abuse programming.”
On November 5, 2008, Haeger committed his first and only major misconduct while imprisoned. Haeger pleaded guilty at an administrative hearing of possessing dangerous contraband. Specifically, guards found within Haeger’s cell various metal objects, which Haeger claimed to use for “fix[ing] electronic devices.” As a result of this misconduct, Haeger was temporarily placed in a higher security level and forfeited 90 days of good-time credit.
On February 11, 2009, Haeger was evaluated under the Vermont Assessment of Sex Offender Risk (VASOR) scale.
The [VASOR] is a risk assessment scale for adult male sex offenders age 18 and older. It was originally designed to assist probation and parole officers in making placement and supervision decisions. Because the VASOR does not provide a comprehensive survey of all factors relevant to sexual offending, it is best used as a decision aid along with professional judgement [sic] and other appropriate tools. Although reliability and validity studies are encouraging, it still should be considered an experimental instrument.
The VASOR is composed of two scales, a 13-item reoffense risk scale and a 6-item violence scale. The reoffense risk scale is designed for assessing the likelihood of sexual recidivism. The violence scale is designed for assessing the nature of an individual’s violence history and offense severity. The interaction of these variables, reoffense risk and violence, are considered important factors for determining an individual’s overall risk level.
The scoring process ideally should include an interview with the individual, in addition to carefully reviewing correctional case file information.
Scores on the two VASOR scales are plotted on a scoring grid where their intersection falls into one of three risk categories; low, moderate, or high. These risk categories can be used to inform placement and supervision decisions. Offenders who score in the “low” range (i.e., low reoffense risk score and low violence score) are generally considered appropriate for community supervision and treatment. Offenders who score in the “moderate” range may or may not be considered appropriate for community placement. Offenders who score in the “high” range (i.e., high reoffense risk score and/or high violence score) are generally considered inappropriate for community supervision and treatment. For public protection purposes, incarceration is generally recommended for offenders who score in the “high” range. [McGrath & Hoke, Vermont Assessment of Sex Offender Risk Manual (Research ed, 2001), p 1 (citations omitted). ][ ]
Notably, VASOR is “designed to be scored easily by probation and parole officers and correctional caseworkers.” Id. at 2. A psychologist need not perform a prisoner’s evaluation under this test.
On the VASOR reoffense-risk scale, Haeger received 10 points for the use of a potentially deadly weapon, 5 points for committing a sexual offense against an acquaintance, 5 points because his alcohol abuse had caused serious life disruptions and 3 points because his “drug” use had caused some legal and social problems. With a total reoffense-risk score of 23 points, Haeger was considered a low risk for reoffense. On the “violence scale,” Haeger received a score of 30 points for the use of a potentially deadly weapon during the commission of a sexual assault, 10 points for committing penile-vaginal penetration, and 10 points for causing injury not requiring formal medical treatment. With a total “violence score” of 50 points, Haeger was placed in the high “violence level.” Considered together, Haeger was given a high overall risk classification on the VASOR assessment.
On April 6, 2009, the DOC prepared an updated PER for the Board’s consideration, which included Haeger’s 2008 major misconduct conviction. The PER indicated that Haeger’s security level had been increased from Level I to Level II as a result. The PER described Haeger’s work performance as adequate but no longer included a commentary on his performance. The PER noted that Haeger completed technical career counseling in 2008, substance abuse counseling in 2002, Alcoholics Anonymous in 1994, and SOT in 2000.
On April 21, 2009, the DOC prepared an “Offender Supervision Summary Report” and scored Haeger’s parole guidelines. The summary report noted that Haeger posed a “middle to potential high” assaultive risk and a low risk for property crimes. The DOC scored Haeger’s parole guidelines as a long-term offender. Haeger received a weighted score of -1 point for his active sentence variables and +1 point for prior criminal record variables. While Haeger had previously received favorable scores on the institutional conduct variables, his 2008 major misconduct reduced this section score to zero points. The DOC noted that Haeger’s placement in the risk categories for assaultive and property crimes required a score of +1 point for the statistical risk variables. Haeger received a score of +2 points on the age scale, reflecting that Haeger was less likely to engage in further criminal activity given his more mature age. Haeger had received at least one adequate report and no inadequate reports from recommended prison programs, which also equated with a score of +2 points. Because Haeger had committed a sexual assault, he was given -5 points under the mental-health variables. Because of his recent major misconduct, Haeger’s overall parole-guideline score was reduced to zero points, placing him, for the first time, in the “average probability of parole” category.
On June 26, 2009, two members of the Board panel voted to grant Haeger parole, citing Haeger’s acceptance of responsibility for his past offenses, “satisfactory block reports,” adequate involvement in work assignments, completion of vocational counseling, completion of substance abuse programming, and maintenance of family and community support while in prison. The Board noted, however, that Haeger’s parole was “contingent upon the successful completion of MPRI InReach Phase.”
We presume that the Board’s reference to the “In-Reach Phase” means completion of “in-reach programming [provided] to prisoners eligible for parole.” DOC Policy Directive 03.02.101, ¶ A. In order to receive “in-reach programming,” a prisoner must be transferred to a facility that provides such services. Id., ¶ E. Haeger is currently housed in the Cooper Street Correctional Facility and was previously housed in the Pugsley and Ryan Correctional Facilities, which are all designated MPRI “in-reach facilities.” Id., Attachment A. The record does not identify the type of services provided to Haeger. However, a September 30, 2009 “referral” indicates that Haeger had completed “programming.”
III. CIRCUIT COURT REVIEW OF THE PAROLE BOARD’S DECISION
The Alpena County Prosecutor appealed the Board’s grant of parole in the circuit court. The circuit court initially determined that the Board had not provided sufficient information regarding its decision to grant parole and, therefore, the court was unable to adequately review the Board’s decision. On September 1, 2009, the court remanded the matter to the Board “for reconsideration and, if necessary, a more complete explanation of why it is convinced Mr. Haeger ‘will not become a menace to society or to the public safety.’ ” The Board contends that it reconsidered the grant of parole and simply reaffirmed its decision. Accordingly, the Board issued a new decision ordering Haeger’s release on parole. The Board did not provide any additional support for its decision at that time.
The prosecution renewed its application for leave to appeal, noting the lack of positive record evidence since the 2008 parole denial. On January 25, 2010, the Board finally provided the court with affidavits from the panel members explaining their decision to grant parole to Haeger. Charles Brown stated that he interviewed Haeger in May 2009, and he felt that “Haeger demonstrated insight, empathy, and responsibility for the crime he was involved in.” Haeger admitted to Brown “that he raped his cousin after breaking into her home” and indicated that he “wanted to show [he] was a man.” Brown further stated that “Haeger made it clear that he had learned his triggers by attending [SOT], and was blunt, honest, and candid about what he did, including acknowledgement that he had threatened to kill the victim.” Brown indicated that he reviewed the COMPAS and VASOR assessments, which described Haeger as a low risk to sexually reoffend. Brown noted that Haeger “was also required to attend additional [SOT] before parole was finalized. He completed this program successfully on September 30, 2009. ” Brown acknowledged that Haeger had committed a major misconduct in 2008. Ultimately, Brown argued that Haeger would be paroled with many special conditions in addition to the standard protocol and, after considering the seriousness of Haeger’s offense, Brown determined that Haeger had “made a positive change.”
Miguel Berrios stated that he reviewed the reports from all DOC-recommended programs and specifically noted that Haeger had completed SOT with positive reports. Berrios also reviewed the COMPAS and VASOR assessments, which showed Haeger to be a low risk for sexually reoffending. Berrios described Haeger’s general institutional conduct as good with the exception of the 2008 misconduct. Berrios indicated that he had not personally interviewed Haeger, but had reviewed the information from the interview with Brown. Berrios felt that Haeger had lowered his chances of reoffending and being a risk to society and had “made good progress toward re-entering society.”
Ultimately, the circuit court reversed the Board’s decision to grant parole to Haeger. The court provided the following justification for its decision:
[A]s noted by the Parole Board in its brief, “[t]he common theme for the denials appears to be the member’s [sic] belief that the prisoner failed to show proper insight concerning his crime.” Indeed, in spite of somewhat favorable evaluations used by the [DOC], this was typically the overriding factor in the Parole Board’s decision not to grant parole. Their denials repeated, over and over, his lack of “significant insight into the cause of his deviant behavior” and rationalization that he had been “young and immature ... and blew up”; he “showed little or no empathy for the victim”; “minimizes his behavior based on his being drunk” and went so far as to suggest that the victim “is fine and didn’t suffer any injury,” reflecting an absence of “insight or remorse”; and generally “lacks the necessary insight into his deviant behavior.” Yet even as Mr. Haeger’s major contraband violation reduced his probability of parole from “high” to “average,” the Parole Board suddenly changes its mind, on the basis of no reasons in the record, and decides that Mr. Haeger’s past history of deflecting responsibility for his actions is cured and that he now accepts responsibility for his behavior.
To the extent that there are any reasons in the record at all since Mr. Haeger was most recently denied parole, they tend not to reflect well on Mr. Haeger. A COMPAS evaluation of Mr. Haeger, dated June 6, 2008, is generally positive but eviscerates its own credibility with the total disconnect between its evaluation of his Behavioral/Psychological condition (“likely absence of blaming others, making excuses or minimizing the seriousness of the offense... unlikely to lead a high risk lifestyle or make impulsive decisions”) and the accompanying “statement,” which says that Mr. Haeger has “a likely criminal personality which may include impulsiviiy, risk-taking, restlessness/boredom, absence of guilt (callousness), selfishness and narcissism, interpersonal dominance, anger and hostility, and a tendency to exploit others.” Additionally, Mr. Haeger was scored on the VASOR system, dated February 11, 2009, which graded him at a “high” risk level. Yet, with only these evaluations of Mr. Haeger as further developments of his parole eligibility, the Parole Board departed from four prior denials of parole (including its own timeline, which had scheduled a 24-month interim before reconsidering Mr. Haeger’s parole status) to suddenly grant him parole.
To be sure, Mr. Haeger has filed an extremely well-argued brief in defense of being granted parole, and the Court does not wish to trivialize his efforts at that or rehabilitation. The issue here, however, is the acceptability of the Parole Board’s actions. While Mr. Haeger may or may not have come to accept his own responsibility for what happened in 1992, there is no evidence in the record that he has. The Parole Board has consistently denied him parole on this basis, and then suddenly decides he has satisfied their standards, without any evidence of gradual improvement or the other gradations in their observations of his behavior that would be consistent with such a change of heart. Indeed, to the extent that there is anything in the record that would induce the Parole Board to change its mind, it is the extremely troubling COMPAS evaluation and the unflattering VASOR score. Ignoring these tests, or cherry-picking only the most favorable elements of them in order to rationalize what the Parole Board had previously considered to be overwhelming evi dence against granting parole, is an arbitrary act which abuses the discretion vested in the Parole Board to make principled decisions. [Citations omitted.]
Following the court’s decision, the Board and Haeger both moved for reconsideration. At that time, the Board finally supplied the court with Teresa Chandler’s affidavit regarding the computer software error on Haeger’s COMPAS report. The court denied the motions for reconsideration and, as a result, Haeger remains in prison.
IV STANDARD OF REVIEW
Judicial review of the Board’s decision to grant parole is limited to the abuse-of-discretion standard. Wayne Co Prosecutor v Parole Bd, 210 Mich App 148, 153; 532 NW2d 899 (1995). Either the prosecutor or the victim of an offense may appeal in the circuit court when the Board grants a prisoner parole. MCL 791.234(11); Morales v Parole Bd, 260 Mich App 29, 35; 676 NW2d 221 (2003). Under MCR 7.104(D)(5) the challenging party has the burden to show either that the Board’s decision was “a clear abuse of discretion” or was “in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation.” An abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Importantly, a reviewing court may not substitute its judgment for that of the Board. Morales, 260 Mich App at 48. [Elias, 294 Mich App at 538-539.]
V HAEGER’S CONSTITUTIONAL CHALLENGES LACK MERIT
Haeger contends that the circuit court ordered the Board to deny him parole and thereby violated the separation-of-powers doctrine. We disagree with Haeger’s interpretation of the court’s order.
MCR 7.104(D)(8) governs the conduct of the Board after a circuit court “reverse[s] or remand[s]” a parole decision as follows:
If a decision of the parole board is reversed or remanded, the board shall review the matter and take action consistent with the circuit court’s decision within 28 days. If the circuit court order requires the board to undertake further review of the file or to reevaluate its prior decision, the board shall provide the parties with an opportunity to be heard.
This Court extensively described the separation of powers between the judiciary and the Board, which is an arm of the executive branch, and the interplay of the court rule in Hopkins, 237 Mich App at 642:
MCR 7.104(D)(8) contemplates that a Parole Board decision whether to grant parole may be reversed or the matter may be remanded. In reversing a Parole Board decision, the circuit court simply undoes it; to “reverse” means
“[t]o overthrow, vacate, set aside, make void, annul, repeal, or revoke; as, to reverse a judgment, sentence or decree of a lower court by an appellate court, or to change to the contrary or to a former condition. To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error.” [Black’s Law Dictionary]
In remanding a decision to the Parole Board, the circuit court does not specifically overrule it, but simply returns it to the Parole Board for some further consideration or activity. To “remand” is
“[t]o send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some other further action.” [Id.]
Consistently with the definitions of “reverse” and “remand,” Hopkins held that MCR 7.104(D)(5) allows the circuit court to
review the Parole Board’s decision to ensure that the board complied with the constitution, the statutory provisions, and applicable administrative rules, and, if so, that the board did not otherwise commit a clear abuse of discretion. As MCR 7.104(D)(8) contemplates, the court may reverse the Parole Board’s decision or order further action consistent with the applicable constitutional, statutory, and administrative provisions. While the court may order that the Parole Board conform its conduct to the applicable provisions, no applicable provision authorizes the court to order that the Parole Board release a prisoner on parole. [Hopkins, 237 Mich App at 645-646.]
In this case, the circuit court did not order the Board to deny Haeger parole. Rather, the court held that the Board’s decision was inconsistent with the objective factors outlined in the statutes and regulations and the record facts. The circuit court declined to simply “remand” the decision to the Board under MCR 7.105(D)(7), which provides:
On timely motion by a party, or on the court’s own motion, the court may remand the matter to the parole board for an explanation of its decision. The parole board shall hear and decide the matter within 28 days of the date of the order, unless the board determines that an adjournment is necessary to obtain evidence or that there is other good cause for an adjournment.
The court had already remanded pursuant to subrule (D)(7) on September 1, 2009, and the Board failed to adequately explain its decision. Accordingly, the court proceeded under subrule (D)(8) and reversed the Board’s decision. The Board must now “review the matter and take action consistent with the circuit court’s decision,” MCR 7.104(D)(8), by “conform[ing] its conduct” to “the applicable constitutional, statutory, and administrative provisions,” Hopkins, 237 Mich App at 646.
We also reject Haeger’s contention that he was denied due process of law because the circuit court deprived him of his right to parole without providing an adequate opportunity to be heard. Haeger argues that once the Board decides to grant parole, the prisoner has a vested liberty interest, regardless of whether the prisoner remains in prison pending release. Haeger further contends that he was unable to respond to the prosecutor’s application for leave to appeal in the circuit court and that the court was required to conduct a hearing rather than decide the issue on the briefs.
Haeger’s argument is fatally flawed. “A prisoner enjoys no constitutional or inherent right to be conditionally released from a validly imposed sentence.” Jones, 468 Mich at 651; see also Morales, 260 Mich App at 48, and Greenholtz v Inmates of Nebraska Penal & Correctional Complex, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979). If parole is granted and the prisoner is actually released from prison on parolee status, that parolee gains an interest in continued liberty. Although the parolee is still under the supervision of the DOC, he or she “can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life.” Morrissey v Brewer, 408 US 471, 482; 92 S Ct 2593; 33 L Ed 2d 484 (1972). Therefore, when a parolee commits a parole violation leading to revocation of his parole, the parolee has a due-process right to “notice and the opportunity to be heard.” Jones, 468 Mich at 652.
However, a potential parolee who remains in prison has no liberty to protect. As noted by the United States Supreme Court, “parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires.” Greenholtz, 442 US at 9. A prisoner awaiting release on parole remains “confined and thus subject to all of the necessary restraints that inhere in a prison.” Id. The “mere hope that the benefit” of parole “will be obtained” is too general and uncertain and, therefore, “is not protected by due process.” Id. at 11.
In any event, Haeger received notice and had an opportunity to be heard before the circuit court reviewed the prosecutor’s application for leave to appeal the Board’s decision. The prosecutor notified Haeger of his intent to appeal the Board’s decision. Haeger then moved to dismiss the prosecutor’s application for leave to appeal on September 11, 2009. The circuit court granted the prosecutor’s application on November 3, 2009, and scheduled a hearing for November 25, 2009. Once the circuit court granted the application for leave to appeal, Haeger filed two separate briefs supporting the Board’s decision to grant him parole. The circuit court ultimately canceled the November 25 hearing and proceeded on the briefs alone as no party had requested argument pursuant to MCR 7.101(K), which states that, in an appeal to the circuit court, “[a] party who has filed a timely brief is entitled to oral argument by writing ‘ORAL ARGUMENT REQUESTED’ in boldface type on the title page of the party’s brief.” Haeger never objected to the court’s order and failed to raise this complaint in his motion for reconsideration filed after the circuit court’s opinion. We will not fault the circuit court for failing to provide an aggrieved party with a formal hearing when that party never requested one.
VI. THE PAROLE BOARD DID NOT CONFORM ITS CONDUCT TO THE STATUTES AND REGULATIONS
Although we disagree with the reasoning employed by the circuit court, we agree with its decision to reverse the Board’s grant of parole to Haeger. MCR 7.105(D)(5)(a) provides that a prosecutor appealing a Board decision has the burden to show that the decision was entered “in violation of... a statute, an administrative rule, or a written agency regulation . . . .” From the record before this Court, it appears that the Board violated its duty to “consider [] all relevant facts and circumstances,” Mich Admin Code, R 791.7715(1), “in determining whether parole is in the best interests of society and public safety,” Mich Admin Code, R 791.7715(2).
Mich Admin Code, R 791.7715(2)(c)(iii) provides that the Board may consider a prisoner’s “readiness for release” as evinced by his or her “[development of a suitable and realistic parole plan.” Since as early as 2005, the DOC has used TAPs to assist prisoners in reaching this goal. According to an October 2005 DOC report, all state correctional facilities were scheduled to be involved in the MPRI model by September 2007. And as noted, the development of TAPs is “the lynch pin” of the MPRI model. In the 2008 appropriations act for the DOC, 2008 PA 245, § 403(8), the Legislature made the DOC’s 2009 appropriation contingent on the imposition of a TAP requirement, stating that the DOC “shall ensure that each prisoner develops a [TAP] at intake in order to successfully reenter the community after release from prison. Each prisoner’s [TAP] shall be reviewed at least once each year to assure adequate progress.” Although the DOC did not formally require that TAPs be prepared with potential parolees until March 2010, it is apparent that these reports were already in widespread use by then. However, it appears from the record before us that the DOC did not develop a TAP with Haeger to outline his transition into society.
More importantly, the Board violated the mandate of Mich Admin Code, R 791.7715(5) by making its parole decision in the absence of evidence that Haeger had participated in a psychological or psychiatric evaluation. The regulation provides that a prisoner with a history of predatory or assaultive sexual offenses must undergo such an evaluation before the Board may render a parole decision. Mich Admin Code, R 791.7715(5)(b). Haeger underwent psychological evaluations in 1992, when he entered the prison system, and in 1993, in preparation for appealing his convictions and sentences. Nothing in the record indicates that Haeger has been psychologically evaluated in the last 18 years. The information in the historical evaluations is of little relevance in determining “whether parole is in the best interests of society and public safety” as Rule 791.7715(2) requires.
Similarly, Parole Board Member Brown indicated in his affidavit that Haeger completed additional SOT in 2009 while receiving in-reach services. However, we have located no record description of any services provided to Haeger during the in-reach program. The record is also devoid of information regarding Haeger’s performance in those programs. Neither this Court nor the circuit court can properly review a Board decision on the basis of an obviously incomplete record. Regardless of fault for the omissions, Haeger’s file lacks case summary reports produced following Board interviews, any reports produced following in-reach services, or any TAP that may have been developed with Haeger. These gaps in the record support a single conclusion: that the Board granted Haeger parole in violation of controlling administrative rules and agency regulations.
Absent a complete record and an updated psychological evaluation, we cannot discern whether the Parole Board committed a clear abuse of discretion by granting parole. Accordingly, the circuit court erred by reversing the Board’s decision on that ground. We note that the circuit court did attempt to fill the holes in the record, but the Board was less than forthcoming and expedient in providing the necessary information for the court’s review. In any event, we will briefly address certain errors in the circuit court’s analysis of the Board’s actions to prevent any future error.
First, the circuit court correctly noted the internal inconsistency in the COMPAS report. The Board exacerbated the error by failing to remedy or explain the inconsistency until its motion for reconsideration of the court’s order of reversal. We do not find the presence of conflicting information in the report to be dispositive. In other contexts, this Court has repeatedly determined that there is no abuse of discretion when a court or a fact-finder faced with conflicting information makes a reasonable and principled decision regarding which side to believe. See, e.g., People v Wybrecht, 222 Mich App 160, 173; 564 NW2d 903 (1997) (“[A] sentence is not invalid because probation agents and a defendant’s psychologists use undisputed facts to draw conflicting conclusions about the defendant’s character.”). The current Board panel read the conflicting statements regarding Haeger’s psychological and behavioral health. A member of the current panel also interviewed Haeger and reached his own conclusion regarding Haeger’s mentality. The Board chose to believe the COMPAS statement that Haeger did not have criminal ideations, that statement is supported by record evidence, and the Board did not abuse its discretion in granting parole based on that evidence.
Similarly, we reject the circuit court’s disregard for the current panel’s decision simply because it conflicted with the decisions of previous Parole Board panels. Each and every parole panel faces some conflicting information in making its decision. Each panel member has the discretion to consider the evidence and make a reasonable choice regarding which version of the evidence to believe. It is not an abuse of discretion for two fact-finders to reach different conclusions from the complex and potentially conflicting information within a prisoner’s record.
We further reject the circuit court’s dismissal of the Board’s analysis of various assessment scales. The COMPAS and VASOR assessments and the parole guidelines all include static and dynamic factors. Haeger cannot change the circumstances of his past offense, and those variables will consistently reduce his overall scores on risk assessments. Haeger may improve his parole outlook, however, by engaging in services toward rehabilitation. Giving the various static and dynamic factors similar weight allows the Board to effectuate both the punitive and rehabilitative features of the corrections system. As our Supreme Court noted in People v Schultz, 435 Mich 517, 531-532; 460 NW2d 505 (1990),
[flour factors may be taken into consideration to determine the appropriateness of a sentence: rehabilitation, deterrence, the protection of society, and punishment....
.. . [T]he ultimate goal of sentencing in this state is not to exact vengeance, but to protect society through just and certain punishment reasonably calculated to rehabilitate and thereby “ ‘convert bad citizens into good citizens ....’” [Citations omitted.]
Accordingly, we disagree with the circuit court’s conclusion that the Board “cherry-picked” the most favorable aspects of Haeger’s COMPAS and VASOR assessments. Rather, the Board recognized that Haeger’s overall VASOR rating was heavily affected by the circumstances of the sentencing offense. Based on that observation, the Board gave special consideration to Haeger’s low risk of recidivism found on both assessments. The Board’s seemingly weighted consideration of Haeger’s VASOR score is supported by commentary regarding this scale. While incarceration is generally recommended for a prisoner scored as a high risk on the VASOR scale, official sources acknowledge that “the violence risk scale [as it was previously designated] was not designed to nor does it predict sexual or other types of reoffense risk particularly well. . . ,” The scale has been renamed “Violence Scale” to reflect that “its primary purpose is to quantify the severity of an individual’s violence history rather than the likelihood of violent recidivism.”
Ultimately, while the Board properly considered the evidence that was placed before it, it did not have a complete record on which to base the parole decision. The Board violated its regulatory duty to defer its parole decision until Haeger submitted to a psychological or psychiatric evaluation. And the Board or the DOC, or both, failed to maintain careful records documenting Haeger’s participation in services and completion of steps necessary for parole. Accordingly, we agree with the circuit court’s decision to reverse the Board’s grant of parole. This conclusion is not fatal to Haeger’s chances for parole. Rather, the Board must now ensure that it considers all necessary information in rendering its parole decision and adequately and accurately documents these steps in the record. After a thorough review as required by statute, regulation, and DOC policy directive, the Board may use its discretion to either grant or deny parole to Haeger.
Affirmed.
Markey, P.J., and Saad, J., concurred with Gleicher, J.
This Court originally denied Haeger’s delayed application for leave to appeal, People v Haeger, unpublished order of the Court of Appeals, entered July 26, 2010 (Docket No. 297099), but the Supreme Court remanded for review as on leave granted, People v Haeger, 488 Mich 1033 (2011).
DOC policy directives are available at <http://www.michigan.gov/ corrections/0,1607,7-119-1441_44369 — ,00.html> (accessed September 8, 2011).
The parole-guideline factors are quoted in full in Elias, 294 Mich App at 515-517.
There are no case summary reports in the file submitted to this Court.
As noted, there is no TAP in the file submitted to this Court.
This document is available at <http://www.michigan.gov/documents/ THE_MPRI_MODEL_1005_140262_7.pdf> (accessed September 8, 2011).
The MMPI tests “configurations of personality traits in normal persons and. .. the personality patterns occurring in various types of mental illness.” Random. House Dictionary of the English Language: Second Edition Unabridged (1987).
A score greater than +3 points corresponds to a high probability of parole, between -13 and +3 is an average probability, and less than -13 is low. See DOC Policy Directive 06.05.100, Attachment A, p 10. Haeger was assessed -1 point for each of his active sentence variables, which reflected his use of a weapon, “threat of force” or injury, “violence or cruelty beyond that necessary to commit” the offense, and commission of a sexual offense. Haeger was assessed +1 point on his prior criminal record variables, +8 points on his institutional conduct variables, and -5 points on his mental health variables, reflecting that he had committed a sexual assault stemming from a “compulsive, deviant, or psychotic mental state.” See Mich Admin Code, R 791.7716(3)(g)(ii). Haeger received +1 point each for his age, statistical risk, and programming variables.
See Elias, 294 Mich App at 522, citing MCL 791.233e(6) and Mich Admin Code, R 791.7716(5).
This manual is available at <http://www.csom.org/puhs/VASOR.pdf> (accessed September 8, 2011).
There is no indication in the record that Haeger ever abused any substance other than alcohol.
Nothing in the record supports this assertion.
MCR 7.104(D)(5) states:
The burden shall be on the appellant to prove that the decision of the parole board was
(a) in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation that is exempted from promulgation pursuant to MCL 24.207, or
(b) a clear abuse of discretion.
In the circuit court, Haeger asserted that his right to due process had been violated by the prosecutor’s failure to notify him of his right to respond to the application for leave as required by MCR 7.104(D) (2)(c)(iii)(A). However, the prosecutor did notify Haeger of his rights on the required form on August 1, 2009.
The MPRI Statewide Implementation Plan: A Three-Step Approach, October 2005, available at <http://www.michigan.gov/documents/ 3-_Statewide_Implementation_Plan_140266_7.pdf> (accessed September 8, 2011).
The MPRI Model: Statements and Recommendations, p 5.
DOC Policy Directive 03.02.101, ¶ I, p 2, provides, in relation to a prisoner receiving MPRI in-reach services, that a TAP “shall be developed or updated for the prisoner, as appropriate, to identify programming and other tasks and activities that the prisoner is expected to complete in order to reduce his/her identified risks, including any specifically identified by the Parole and Commutation Board.”
McGrath & Hoke, p 1.
Id. at 6.
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HOEKSTRA, J.
In this case involving the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., defendant appeals by leave granted the trial court’s order denying his motion to dismiss a charge of manufacturing marijuana, MCL 333.7401(2)(d)(iii). Under the MMMA, a registered primary caregiver is allowed to possess 12 marijuana plants for each registered qualifying patient the primary caregiver is connected to through the Michigan Department of Community Health’s (MDCH) registration process. Because defendant possessed marijuana plants that were being grown and cultivated for registered qualifying patients that were not connected to him through the MDCH’s registration process, defendant was not entitled to immunity under § 4(b) of the MMMA, MCL 333.26424(b). In addition, because defendant did not comply with the requirements of § 4(b), defendant is not entitled to assert the § 8 affirmative defense of medical purpose, MCL 333.26428. For these reasons, we affirm the trial court’s order denying defendant’s motion to dismiss.
I. FACTS AND PROCEDURAL HISTORY
On September 15, 2010, the Grand Rapids police, acting under a search warrant, seized 88 marijuana plants that were in three grow booths in Unit 15E of the building at 470 Market Avenue. Unit 15E was leased to defendant. The police also discovered five ounces of usable marijuana, fertilizer, soil, a water-osmosis system, grow lights, and security cameras. In addition, the police found photocopies of defendant’s primary caregiver cards for two patients, letters from the MDCH approving defendant’s status as a primary caregiver, and an expired card for a third patient who had desig nated defendant as his primary caregiver. The police also found MDCH paperwork showing that defendant’s brother, Eric Bylsma, was a registered primary caregiver.
Defendant was charged with manufacturing marijuana, MCL 333.7401(2)(d)(iii), subject to an enhanced sentence under MCL 333.7413(2). Defendant moved to dismiss the charge under § 4 of the MMMA. He asserted that, as the registered primary caregiver of two qualifying patients, he was allowed to possess 24 marijuana plants, and he claimed that the remainder of the 88 plants seized by the police belonged to other primary caregivers and qualifying patients. Defendant argued that the MMMA permits primary caregivers and qualifying patients to share a common grow area for their marijuana plants, as long as the plants are grown in a secured area. In addition, defendant “reserve [d] his right to raise the Affirmative Defense under Section 8 of the MMMA” at trial. The trial court held a two-day evidentiary hearing on defendant’s motion to dismiss.
Defendant testified that, on September 15, 2010, he was the registered primary caregiver for two qualifying patients. He had leased Unit 15E to grow marijuana. According to defendant, Unit 15E was “exactly what [he] needed”; it had a large steel door and a lock on the front of the building, so that Unit 15E was “double locked.” It was a “secured, safe location.” Defendant built three grow booths, each with a latch, in Unit 15E to grow marijuana plants. Defendant testified that 24 of the 88 marijuana plants seized on September 15, 2010, belonged to him and were being grown for his two qualifying patients. The remaining plants belonged to other primary caregivers or qualifying patients, most of whom defendant had offered to assist in growing and cultivating the plants. According to defendant, it was “pretty obvious” which plants belonged to which caregivers and patients because the plants were of different strains and each plant had a tag.
The other primary caregivers and qualifying patients that had marijuana plants growing in Unit 15E also testified at the evidentiary hearing. Each presented a registry identification card from the MDCH.
James Wagner testified that he was a registered qualifying patient, who was serving as his own caregiver. However, defendant had agreed to assist Wagner by providing him with 12 “start-up plants.” After the 12 marijuana plants had roots, defendant would give them to Wagner and Wagner would continue to grow them for his medication. The 12 plants were being kept in Unit 15E. Wagner had never been to Unit 15E.
Nathaniel Dixon testified that he was a registered primary caregiver for one qualifying patient. He was in the process of building his own grow room, but until the room was completed, he was growing 12 marijuana plants for his patient in Unit 15E. Because Dixon knew little about how to grow marijuana plants, defendant was training him. Dixon had been to Unit 15E four or five times to care for his plants. Dixon did not know which grow booth contained his plants, but he would be able to recognize his pots.
Shannon VanderZee testified that he was a registered primary caregiver for three patients. He attempted to grow marijuana plants in his basement. When his attempts were unsuccessful, he consulted with defendant. Defendant took 12 “cuttings and clones,” as well as some fresh cuttings, from VanderZee, with the intent to fix the plants. Once the marijuana plants were rooted, defendant was to return them to VanderZee. VanderZee had never been to Unit 15E, but he believed that the 12 plants defendant had taken from his basement belonged to him.
Lawrence Huck testified that he was a registered qualifying patient and a registered primary caregiver. Defendant was serving as Huck’s primary caregiver. Huck had attempted to grow marijuana plants, but was unsuccessful. Huck took four plants to defendant for assistance. He left the plants with defendant at Unit 15E, where defendant cared for the plants while teaching Huck how to do so. Huck visited Unit 15E three or four times.
Eric Bylsma testified that he was a registered qualifying patient and a registered primary caregiver for one qualifying patient. Twenty-four of the seized plants belonged to him; 12 were for him as a patient, and 12 were for the patient for whom he served as primary caregiver. Eric did not know which grow booth contained his marijuana plants because he had not been to Unit 15E for a couple of days and the plants got moved around depending on which light they needed to be under. He testified that he could identify his plants by looking at them.
The trial court denied defendant’s motion to dismiss. According to the trial court, the MMMA contains the strict requirement “that each set of 12 plants permitted under the MMMA to meet the medical needs of a specific individual be kept in an enclosed, locked facility that can only be accessed by one person.” Because the evidence demonstrated that Unit 15E was secured by a single lock, that several primary caregivers and qualifying patients used Unit 15E to grow marijuana plants, and that defendant had access to marijuana plants designated for qualifying patients to whom he was not linked through the MDCH’s registration system, the trial court held that defendant had failed to comply with the strict requirements of the MMMA. Thus, the trial court held that defendant was not entitled to invoke the immunity provided by § 4 of the MMMA or to assert the affirmative defense contained in § 8.
II. ANALYSIS
On appeal, defendant argues that the trial court read into the MMMA a requirement not contained within the plain language of the MMMA when it held that each set of 12 marijuana plants permitted under the MMMA for the medical needs of a specific qualifying patient must be kept in a separate enclosed, locked facility that can only be accessed by one individual. According to defendant, nothing in the language of the MMMA prohibits primary caregivers and qualifying patients from utilizing the same enclosed, locked facility to grow and cultivate marijuana plants.
A. STANDARDS OF REVIEW
We review a trial court’s decision on a motion to dismiss charges for an abuse of discretion. People v Kevorkian, 248 Mich App 373, 383; 639 NW2d 291 (2001). However, we review de novo the trial court’s interpretation of the MMMA. Michigan v McQueen, 293 Mich App 644, 653; 811 NW2d 513 (2011). The MMMA was enacted as a result of an initiative adopted by the voters in the November 2008 election. Id. at 658.
“The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters.” Welch Foods, Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995). We presume that the meaning as plainly expressed in the statute is what was intended. Id. This Court must avoid a construction that would render any part of a statute surplusage or nugatory, and “we must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme.” People v Williams, 268 Mich App 416, 425; 707 NW2d 624 (2005). [People v Redden, 290 Mich App 65, 76-77; 799 NW2d 184 (2010) (alteration omitted).]
B. THE MMMA
Under the Public Health Code (PHC), MCL 333.1101 et seq., it is illegal for a person to possess, use, manufacture, create, or deliver marijuana. McQueen, 293 Mich App at 658; see also MCL 333.7401(2)(d); MCL 333.7403(2)(d); MCL 333.7404(2)(d). Pursuant to § 7(a) of the MMMA, the “medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions” of the MMMA. MCL 333.26427(a). Nonetheless, the MMMA operates under the framework established by the PHC, McQueen, 293 Mich App at 658, because the MMMA did not repeal any drug laws, Redden, 290 Mich App at 92 (O’Connell, P.J., concurring). Rather, the MMMA sets forth very limited circumstances under which those involved with the use of marijuana may avoid criminal liability. People v King, 291 Mich App 503, 509; 804 NW2d 911 (2011).
1. SECTION 4 IMMUNITY
The MMMA provides a registration system for “qualifying patients” and “primary caregivers.” See MCL 333.26426. When applying for a “registry identi fication card” with the MDCH, a qualifying patient must indicate whether the patient will have a primary caregiver and, if so, must designate “whether the qualifying patient or primary caregiver will be allowed under state law to possess marihuana plants for the qualifying patient’s medical use.” MCL 333.26426(a)(5) and (6). If the MDCH approves the qualifying patient’s application, it must issue a registry identification card to the patient and, if the patient has designated a primary caregiver, it must also issue a registry identification card to the primary caregiver. MCL 333.26426(a) and (d). However, a qualifying patient may have no more than one primary caregiver, and a primary caregiver may assist no more than five qualifying patients. MCL 333.26426(d).
Section 4 of the MMMA provides immunity from arrest and prosecution to qualifying patients and primary caregivers who have been issued and possess a registry identification card. MCL 333.26424(a) and (b); McQueen, 293 Mich App at 660-661. Specifically, § 4 provides, in pertinent part:
(a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.
(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the [MDCH’s] registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the [MDCH’s] registration process; and
(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable roots.
In addition, there is a presumption that a qualifying patient or a primary caregiver is engaged in the medical use of marijuana in accordance with the provisions of the MMMA if the qualifying patient or the primary caregiver (1) possesses a registry identification card and (2) possesses an amount of marijuana that does not exceed the amount allowed under the MMMA. MCL 333.26424(d).
Here, on September 15, 2010, defendant was the registered primary caregiver for two qualifying patients. Therefore, defendant was immune from “arrest, prosecution, or penalty in any manner,” provided, in part, that he did not possess more than 24 marijuana plants. MCL 333.26424(b). The Court in McQueen, 293 Mich App at 654, explained the concept of possession:
The term “possession,” when used in regard to controlled substances, “signifies dominion or right of control over the drug with knowledge of its presence and character.” People v Nunez, 242 Mich App 610, 615; 619 NW2d 550 (2000) (quotation marks and citation omitted). Possession may be actual or constructive, and may be joint or exclusive. People v McKinney, 258 Mich App 157, 166; 670 NW2d 254 (2003). “The essential issue is whether the defendant exercised dominion or control over the substance.” Id. A person can possess a controlled substance and not be the owner of the substance. People v Wolfe, 440 Mich 508, 520; 489 NW2d 748 (1992).
In this case, the police seized 88 marijuana plants from Unit 15E. Defendant does not dispute that he was in possession of all these plants. Indeed, the evidence produced at the evidentiary hearing established that defendant did, in fact, posses the marijuana plants. Defendant admitted that he leased Unit 15E for the purpose of growing marijuana plants, and he was at Unit 15E five to seven days a week. The 88 plants were distributed among three grow booths, and although the grow booths were latched, defendant testified that they were not locked. There was no evidence that defendant was denied access to any of the marijuana plants. Under the circumstances, defendant clearly possessed all 88 marijuana plants. He knew of the presence and character of the plants and he exercised dominion and control over them.
But, despite being in possession of more marijuana plants than permitted under the MMMA, defendant claims that he is entitled to immunity under § 4(b) because only 24 of the 88 plants were for his qualifying patients and nothing in the MMMA prohibited him from letting other registered primary caregivers and registered qualifying patients utilize Unit 15E to grow and cultivate marijuana plants. We disagree.
The MMMA permits the possession and cultivation of 12 marijuana plants by a registered qualifying patient for whose treatment of a debilitating medical condition the marijuana plants are grown and cultivated or by the patient’s registered primary caregiver. Under § 4(a), a qualifying patient, who has been issued and possesses a registry identification card, is immune from arrest and prosecution for the medical use of marijuana provided, in part, that the qualifying patient does not possess more than 12 marijuana plants and “has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient[.]” MCL 333.26424(a). Similarly, under § 4(b), a primary caregiver, who has been issued and possesses a registry identification card, is immune from arrest and prosecution “for assisting a qualifying patient to whom he or she is connected through the [MDCH’s] registration process with the medical use of marihuana” provided, in part, that the primary caregiver does not possess more than 12 marijuana plants “for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient[.]” MCL 333.26424(b)(2).
Because §§ 4(a) and 4(b) only allow either the registered qualifying patient or the qualifying patient’s registered primary caregiver to possess 12 marijuana plants, we conclude that the plain language of §§ 4(a) and 4(b) unambiguously provides that only one person may possess 12 marijuana plants for the registered qualifying patient’s medical use of marijuana. That person is either the registered qualifying patient himself or herself, if the qualifying patient has not specified that a primary caregiver be allowed to cultivate his or her marijuana plants, or the qualifying patient’s registered primary caregiver, if the qualifying patient has specified that a primary caregiver be allowed to cultivate his or her marijuana plants.
That only one person — either the registered qualifying patient or the qualifying patient’s registered primary caregiver — is allowed to possess marijuana plants for the patient’s medical use of marijuana is also reflected in § 6 of the MMMA, MCL 333.26426, which governs registry identification cards. In an application for a registry identification card, a qualifying patient must submit the “[n]ame, address, and date of birth of the qualifying patient’s primary caregiver, if any[.]” MCL 333.26426(a)(5). If the qualifying patient has designated a primary caregiver, the patient must also designate on the application “whether the qualifying patient or primary caregiver will be allowed under state law to possess marihuana plants for the qualifying patient’s medical use.” MCL 333.26426(a)(6) (emphasis added). See also MCL 333.26426(e)(6), which states that registry identification cards shall contain “[a] clear designation showing whether the primary caregiver or the qualifying patient will be allowed under state law to possess the marihuana plants for the qualifying patient’s medical use, which shall be determined based solely on the qualifying patient’s preference” (emphasis added). “The word ‘or’ is a disjunctive term. It indicates a choice between two alternatives.” McQueen, 293 Mich App at 671 (citations omitted). Accordingly, under the plain language of § 6, the registered qualifying patient or the qualifying patient’s registered primary caregiver,, but not both, may possess marijuana plants for the patient’s medical use of marijuana.
Further, we reject defendant’s reliance on the fact that the MMMA is silent regarding whether registered qualifying patients and registered primary caregivers may utilize the same enclosed, locked facility to grow and cultivate marijuana plants. Because the MMMA did not repeal any drug laws, Redden, 290 Mich App at 92 (O’Connell, P.J., concurring), any possession of marijuana that does not fall within the “narrowly tailored protections” of the MMMA, King, 291 Mich App at 509, remains illegal under the PHC. Here, defendant was in possession of the 88 marijuana plants that were seized from Unit 15E. But, the MMMA only authorized him to possess 12 marijuana plants for each registered qualifying patient that he was connected to through the MDCH’s registration process, provided that the qualifying patient designated him to be allowed to cultivate the plants. Defendant was not authorized to possess the marijuana plants that were being grown and cultivated for registered qualifying patients that he was not connected to through the MDCH’s registration process; those marijuana plants could only be possessed by the registered qualifying patient for whose treatment they were grown or the qualifying patient’s registered primary caregiver.
Consequently, defendant’s possession of all 88 marijuana plants seized from Unit 15E was not permitted by the MMMA. Defendant, therefore, is not entitled to the presumption of § 4(d) that he was engaged in the medical use of marijuana or to the immunity granted in § 4(b) to primary caregivers who have been issued and possess a registry identification card. We do not address the trial court’s holding that the MMMA requires a registered primary caregiver to keep each of his or her qualifying patients’ 12 marijuana plants in a separate enclosed, locked facility. That issue is not before us on the facts of the present case, and we express no opinion on that issue. Nonetheless, because we agree with the trial court that defendant did not comply with the provisions of the MMMA, albeit for a different reason, we affirm the trial court’s holding that defendant is not entitled to invoke the immunity of § 4(b). People v Lyon, 227 Mich App 599, 612-613; 577 NW2d 124 (1998).
2. SECTION 8 AFFIRMATIVE DEFENSE
Section 8 of the MMMA provides an affirmative defense of “medical purpose” that a patient and a patient’s primary caregiver may assert in any prosecution involving marijuana. MCL 333.26428. MCL 333.26428(a) provides:
Except as provided in section 7, a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:
(1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;
(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition. [Emphasis added.]
In King, 291 Mich App at 505-506, the defendant, who was a registered qualifying patient, was growing marijuana plants in a chain-link dog kennel and an unlocked living room closet. He was charged with two counts of manufacturing marihuana. The defendant asserted the § 8 affirmative defense and moved to dismiss the charges. On appeal, this Court held that neither the dog kennel nor the unlocked closet was an enclosed, locked facility. Id. at 512-514. The Court further held that because the defendant had not complied with the growing requirements of § 4, the defendant was not entitled to assert the § 8 affirmative defense. Id. at 510. It stated:
In Redden, this Court held that the statute permits an unregistered patient to assert the affirmative defense under § 8 if he or she meets the requirements of § 8. Redden, 290 Mich App at 81, 85. We hold that § 8 permits a “registered qualifying patient” to raise an affirmative defense under § 8, just as an unregistered defendant may under Redden. We further hold that the express reference to § 7 and the statement in § 7(a) that medical use of marijuana must he carried out in accordance with the provisions of the MMMA require defendant to comply with the provisions of § 4 concerning growing marijuana. And in any case, § 4 applies to defendant because he grew marijuana under a claim that he is a qualifying patient in possession of a registry identification card. We hold that because defendant did not comply with § 4, he also failed to meet the requirements of § 8 and, therefore, he is not entitled to the affirmative defense in § 8 and is not entitled to dismissal of the charges. [Id. at 509-510 (emphasis added).]
Because defendant possessed more than 12 marijuana plants for each qualifying patient that he was connected to through the MDCH’s registration process, defendant failed to comply with the requirements of § 4(b). Having failed to comply with the requirements of § 4(b), defendant is not entitled to the § 8 affirmative defense. King, 291 Mich App at 510. Because we agree with the trial court that defendant did not comply with the requirements of § 4(b), albeit for a different reason, we affirm the trial court’s holding that defendant is not entitled to assert the § 8 affirmative defense. Lyon, 227 Mich App at 612-613.
III. CONCLUSION
We affirm the trial court’s order denying defendant’s motion to dismiss thé charge of manufacturing marijuana. Because defendant possessed marijuana that was being grown for the treatment of debilitating conditions of qualifying patients that were not connected to him through the MDCH’s registration process, defendant is not entitled to immunity under § 4(b) of the MMMA. In addition, because defendant failed to comply with the requirements of § 4(b), he is not entitled to assert the § 8 affirmative defense.
Affirmed.
GLEICHER, P.J., and STEPHENS, J., concurred with HOEKSTRA, J.
Although the statutory provisions at issue refer to “marihuana,” by convention this Court uses the more common spelling “marijuana” in its opinions.
The “medical use” of marijuana is defined as “the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.” MCL 333.26423(e).
A “qualifying patient” is “a person who has been diagnosed by a physician as having a debilitating medical condition.” MCL 333.26423(h). A “primary caregiver” is “a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has never been convicted of a felony involving illegal drugs.” MCL 333.26423(g).
A “registry identification card” is “a document issued by the [MDCH] that identifies a person as a registered qualifying patient or registered primary caregiver.” MCL 333.26423(i).
The MMMA requires that marijuana plants be grown in an “enclosed, locked facility,” MCL 333.26424(a) and (b)(2), defined as “a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient,” MCL 333.26423(c). The prosecutor does not dispute that Unit 15E was an “enclosed, locked facility.” | [
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Souris, J.
Defendants were convicted of possession of part of a deer in violation of CLS 1956, § 312.9 (Stat Ann 1958 Bev § 13.1338), a misdemeanor. Their motion, made before trial and preserved for review, to suppress evidence essential to their conviction on the ground that it had been obtained by an illegal search and seizure in violation of their constitutional rights, was denied. They appeal, claiming the trial court erred in denying their motion to suppress.
One evening in September of 1960, after nightfall, State Police Troopers Schwab and Bighter were proceeding by patrol car to a point west of the village of Daggett in Menominee county to investigate a report that occupants of a car were shining deer in a field and that a shot had been heard. The report was made at the troopers’ police post by a local justice of the peace. As the officers drove through Daggett, they observed defendants’ car and another car traveling just ahead of the patrol car. A short distance beyond the village limits the officers saw defendants’ car turn off onto a side road and thence into a nearby farmyard where the officers said they knew it had no right to be and where its headlights were extinguished. A few hundred feet beyond the side road onto which defendants had turned, the officers came upon the other car which they had earlier observed in the village. It had stopped alongside the highway and 2 of its occupants were opening its hood as the officers stopped their patrol car and walked up to them. The occupants of the car advised the officers their car was not operating properly and, in response to inquiry by Schwab or Righter, denied they were shining deer in the area. Upon the officers’ request, they voluntarily opened the car’s trunk so that it could be examined. Finding nothing, the officers returned to their patrol car.
They then noticed that the headlights of defendants’ car in the, farmyard had been turned on again and that defendants were returning to the highway. The officers pulled off the highway and as defendánts’ car drove by noticed that it did not have a light illuminating its license plate, in violation of the motor vehicle code. They thereupon re-entered the highway, pulled up along the left side of defendants’ car from the rear and signaled defendants to stop by turning on the patrol car’s oscillating roof light, hood light, and spotlight and by sounding its horn. When defendants failed to respond to their signals, the troopers swung in behind defendants’ car and flashed their spotlight into the rear window of defendants’ car as a signal to stop. The spotlight revealed to the officers 2 of the defendants bending forward and moving their shoulders and arms in what seemed to them to be an effort to stuff an object under the front seat on which all the occupants were sitting. The defendants’ car then stopped and the patrol car stopped behind it.
Trooper Righter, who had been driving the police car, alighted and approached defendants’ car from its left side; his partner, Trooper Schwab, approached it from its right side. Their patrol car’s headlights were shining into the rear of defendants’ car and both troopers carried flashlights which they shined into the interior of the car. As Schwab approached the defendants, he noticed what looked to him to be blood spots and smears on the shoulders and backs of tbe white sweat shirts'of the 2 passengers nearest him and he thereupon ordered them out of the car.
As the 2 passengers got out of the car, Trooper Bighter, standing alongside the car on the driver’s side, observed in the beams of his flashlight a leg of a deer partially protruding from under the front seat. He ordered the driver out of the car, led him around the car to its right side where Schwab and the other defendants were standing, reached through the open passenger door and extracted a hind quarter of a deer. It is the hind quarter of a deer defendants sought unsuccessfully to have suppressed from evidence on the ground its seizure was illegal.
We need not be diverted in this case by effort to determine whether defendants had been arrested prior to search of their car. Such inquiry perhaps would be appropriate if the only justification for seizure of the deer hind quarter was that it was discovered during a search without a warrant made incidental to a prior valid arrest. People v. Harper, 365 Mich 494. It would be absurd to suggest in this case that this search and seizure was made only incidental to defendants’ arrest for violation of the motor vehicle code. Such a suggestion in this case would require us to disregard significant events which occurred before, during and after the time defendants- were chased by the officers and finally stopped.
Aside from those cases in which legality of seizure of evidence depends' solely upon the reasonableness of a -search without a warrant made incidental to a valid arrest, a prior valid arrest is not essential to a police officer’s right to search and seize. Like most State and Federal courts, we háve previously held that the validity of a search and seizure made without a warrant does not depend upon a prior valid arrest. People v. Kamhout, 227 Mich 172; People v. Bringardner, 233 Mich 449; People v. Dungey, 235 Mich 144; People v. Alicki, 321 Mich 701. See, also, Carroll v. United States (1925), 267 US 132, 158 (45 S Ct 280, 69 L ed 543, 39 ALR 790), and annotation at 89 ALR2d 715, “Lawfulness of nonconsensual search and seizure without warrant, prior to arrest.”
While it is not necessary, therefore, to determine whether or not defendants were formally arrested before the leg of deer was seized, the fact that they had violated the motor vehicle code (without regard to the officers’ possible right to stop defendants otherwise) is of some significance to the extent it required, the officers in the proper exercise of their duty to stop defendants’ car. The officers’ right to do so is not questioned; nor can such right be doubted. Having done so, they put themselves in relation to defendants and their car in a place they had a right to be and from such vantage point Trooper Righter observed the commission of a misdemeanor by the defendants in his presence. We may note, parenthetically, that defendants make no claim, such as was made in People v. Roache, 237 Mich 215; People v. Anders (1959), 167 Cal App2d 65 (333 P2d 854); Johnson v. State (1950), 92 Okla Cr 63 (220 P2d 469), that the officers stopped them for a motor vehicle code violation merely as a pretext to afford the officers an opportunity to search defendants or their car. The only evidence received on the motion to suppress was the officers’ testimony and from that the trial judge was entitled to find, as he did, that defendants were stopped legally for a traffic violation.
Having lawfully stopped the defendants, the legal propriety of the subsequent search and seizure of the leg of deer (and its admissibility in evidence, People v. Marxhausen, 204 Mich 559 [3 ALR 1505]) depends upon the information the officers then pos sessed and subsequently learned immediately before its seizure (People v. Harper, 365 Mich 494) for it is that information by which they, and we, must determine whether they had a right to search and seize without a warrant and to what extent that right properly could be exercised. In some cases (United States v. Lefkowitz [1932], 285 US 452, 463-467 [52 S Ct 420, 76 L ed 877, 82 ALR 775] ; Go-Bart Importing Company v. United States [1931], 282 US 344, 356-358 [51 S Ct 153, 75 L ed 374]; People v. Taylor, 341 Mich 570, 576 [wherein the Court carefully noted that the officers searched “no more of the premises than what was within the immediate view and control of the defendant”]) it is necessary to determine not only whether there was any right to search and seize without a warrant but also whether the scope of the search and seizure actually made transgressed the prohibition against “unreasonable searches and seizures” contained in the Federal Constitution’s Fourth Amendment and our (1908) State Constitution’s art 2, § 10. In this case, however, we need concern ourselves only with determination of the officers’ right to search defendants’ car and to seize the evidence of crime it contained, considering the very limited scope of the search and seizure actually made.
Trooper Eighter’s first observation of the deer leg protruding from underneath the front seat of defendants’ car was not a search as that term normally is defined in search and seizure cases. Many authorities have so held, only some of which need be noted. People v. Kamhout, 227 Mich 172, and cases cited at 187; Haerr v. United States (CCA 5, 1957), 240 F2d 533; and Petteway v. United States (CCA 4, 1958), 261 F2d 53. See, also, People v. Martin (1955), 45 Cal2d 755 (290 P2d 855), where California’s supreme court held that looking through a window of a building does not constitute an un reasonable search, citing State v. Hawkins (1951), 362 Mo 152 (240 SW2d 688); People v. Exum (1943), 382 Ill 204 (47 NE2d 56); United States v. Lee (1927), 274 US 559 (47 S Ct 746, 71 L ed 1202), among other cases. The deer leg Trooper Righter saw in defendants’ illegal possession was then observable by him, in the words of the Court’s opinion in Kamhout, supra, at 188, “from the exercise of his own senses.” However, defendants claim that Righter could not have observed their illegal possession of the deer leg from his vantage point on the left side of the car but for Trooper Schwab’s prior illegal removal of 2 of the defendants from the right side of the front seat. Their claim that Schwab’s conduct was illegal does not stand analysis.
When Schwab approached the defendants’ car from the right, he observed the blood-spattered appearance of 2 of the defendants and, at that moment, without any more information than he had, he was fully justified in ordering them out of the car, as he did, for the purpose of searching them. The reasonableness of such conduct is established in this case not alone by Schwab’s observation of defendants’ bloody clothing, but also by the defendants’ brief detour into the farmyard, their delay in responding to the police officers’ signals to stop their car, and the furtive actions of the blood-spattered defendants during the chase from which actions Schwab believed they were concealing something underneath the front seat of the car. All this considered, Schwab had probable cause for believing defendants had committed a felony or were in the process of committing a felony and, therefore, he was entitled to arrest defendants even without a warrant, and, either before or after formal arrest, he was entitled to search them. People v. Dungey, 235 Mich 144; People v. Bringardner, 233 Mich 449.
Trooper Schwab having lawfully asserted this right of search by ordering the 2 defendants sitting on the right side of the seat to get out of the car, Trooper Righter was entitled to observe by “exercise of his own senses” whatever thereby was disclosed. People v. Alicki, 321 Mich 701. What was disclosed was defendants in the act of committing a misdemeanor in Righter’s presence by their possession, of the leg of a deer in violation of CLS 1956, §312.9 (Stat Ann 1958-Rev §13.1338). He was then entitled not only to arrest defendants without a warrant for commission of a misdemeanor in his presence, CL 1948, § 764.15 (Stat Ann 1954 Rev § 28.874), but he was also entitled, before or after formal arrest, to search defendants and their car and to seize the evidence of their crime. People v. Alicki, supra. It should not be implied from what has been said that search and seizure without a warrant may be made merely on probable cause to believe a misdemeanor is being committed. In this case Trooper Righter had actual knowledge, not just probable cause to believe, that a misdemeanor was in fact being committed in his presence.
We acknowledge the assistance of briefs as amici curiae filed by the attorney general and the civil liberties and criminal jurisprudence committees of the State Bar of Michigan at the Court’s request.
On the record made before the trial court, it cannot be said that the trial judge erred in denying defendants’ motion to suppress and in convicting defendants. His order must, therefore, be affirmed.
Kelly, Black, Kavanagh, and Smith, JJ., concurred with Souris, J.
Carr, C. J., and Dethmers, J., concurred in result.
O’Hara, J., did not sit.
See CLS 1956, § 312.10, subcl (e), as then amended by PA 1957, No 207 (Stat Ann 1958 Rev § 13.1339) and CLS 1956, § 314.19, as amended by PA 1959, No 74 (Stat Ann 19G1 Cum Supp § 13.1368).— Repobteb.
CLS 1956, § 257.686 (Stat Ana 1960 Bev- § 9.2386).—Reporter. | [
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Kelly, J.
(for affirmance). Plaintiff was injured as he slipped and fell on the floor of defendant’s drug store. At the close of plaintiff’s proofs the court granted defendant’s motion for a directed verdict because plaintiff had failed to prove defendant was negligent and, also, because plaintiff had failed to prove lie was free from contributory negligence. Plaintiff appeals.
Defendant’s drug store is located at the southeast corner of Woodward avenue and Congress street, in the city of Detroit, fronting on Woodward and •extending approximately, 70 feet to the east along ■Congress. There is an entrance on Woodward avenue and, also, an entrance on Congress street. A lunch counter extended along the north wall, running from the Woodward avenue entrance to the 'Congress street entrance. Counter and display racks were placed in the center of the store and an aisle extended from the front to the back on both the north and south sides of the store.
Shortly after 8:30 a.m. on July 1, 1952, plaintiff •entered the store through the Woodward avenue entrance and proceeded by way of the south aisle to the rear of the store; made a purchase at the drug •counter, and then proceeded down the north aisle to •exit through the same door by which he entered.
. Plaintiff testified that as he neared the front door he noticed a porter mopping the floor, with a bucket in the center of the aisle; that noticing same he paused momentarily and then stepped over the bucket. His testimony as to the events that followed is:
“Q. What did you do then?
“A. Took another step, very small.
“Q. You are indicating about a 6-inch step; is that what you did?
“A. Yes, probably. Then I saw an awful lot of water on the floor.
“Q. At this point now you are about a foot and a half from the bucket and you are about a foot and a half from the porter, is that right?
“A. Yes.
“Q. Now where did you see this water?
“A. The part of the area almost to the fountain and the porter was very wet, sloppy.
“Q. In other words, the area immediately in front of yon then was very wet, it was an area of sloppy water ?
“A. Yes, and on a tile floor.
“Q. And you saw that?
“A. Yes.
“Q. Then what did you do?
“A. Then I took — I felt I only had a few feet to go to the door, and I had taken my third or fourth step, and my left foot come from under me, and that was the last thing I remember until I came to in the Receiving Hospital.
“Q. In other words, when you took that fourth step, that was a step into the water that you saw?
“A. That was.
“Q. Is that correct?
“A. Yes, sir. Of course, I was only a few feet from the entrance to the door.”
Plaintiff does not claim, or prove, that defendant used an unusual or improper method of mopping the floor, or that the porter’s action in handling the mop in any way caused plaintiff’s injuries, or that a soap, or slippery substance of such a nature, was used to create an unusual or unexpected hazard.
There is no merit to plaintiff’s claim that defendant should have mopped the floor before the store opened. Plaintiff’s claim that defendant should have placed a sign or warning that the floor was being mopped is answered by plaintiff’s testimony that he was well aware of that fact.
The lower court did not err in holding that plaintiff failed to prove defendant was negligent.
The only comment necessary in regard to the question of contributory negligence is to direct attention to Jones v. Michigan Racing Association, 346 Mich 648, 654, wherein it was held:
“Similarly here, plaintiff is gnilty of the same neglect he charges to defendant. If defendant was guilty of negligence in ignoring the existence of a' condition of which it knew or should have known and which it should have foreseen would he dangerous to invitees, then plaintiff, who should have seen, as he did, and been aware, as he was, of its existence and' have known, as he said he did, that it was dangerous,, was equally guilty of contributory negligence for having ignored it and acting, as did plaintiff in Shorkey (Shorkey v. Great Atlantic & Pacific Tea Co., 259 Mich 450), in disregard of that danger.”
Judgment affirmed.
Dethmers, C. J., and Sharpe and Carr, JJ., concurred with Kelly, J. | [
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Kelly, J.
The traffic and ordinance division of the recorder’s court for the city of Detroit quashed an information charging defendant with negligent homicide by a motor vehicle upon a privately-owned parking lot maintained by the Chrysler Corporation, on East Warren avenue, in Detroit.
The attorney general of the State and the prosecuting attorney of Wayne county appeal, contending that the court erred in finding that prosecutions for negligent homicide under CL 1948, § 750.324 are limited to offenses upon the public highways and that the court’s jurisdiction is restricted by CL 1948, § 725.18 to offenses upon the public highways. The statute (PA 1931, No 328, as amended) provides:
“Sec. 324. Any person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wil-fully or wantonly, shall cause the death of another, shall be guilty of a misdemeanor, punishable by imprisonment in the State prison not more than 2 years or by a fine of not more than $2,000, or by both such fine and imprisonment.” CL 1948, § 750.324 (Stat Ann 1954 Rev § 28.556).
“Sec. 325. * * * The crime of negligent homicide shall be deemed to be included within every crime of manslaughter charged to have been committed in the operation of any vehicle, and in any case where a defendant is charged with manslaughter committed in the operation of any vehicle, if the jury shall find the defendant not guilty of the crime of manslaughter such jury may in its discretion render a verdict of guilty of negligent homicide.” CL 1948, § 750.325 (Stat Ann 1954 Rev § 28.557).
“Sec. 326. * * * In any prosecution under the 2 next preceding sections, whether the defendant was driving at an immoderate rate of speed shall not depend upon the rate of speed fixed by law for operating such vehicle.” CL 1948, § 750.326 (Stat Ann 1954 Rev § 28.558).
CL 1948, § 725.18 (Stat Ann § 27.3958), above referred to, provides in part:
“The judges of the municipal court — traffic and ordinance division hereinbefore constituted shall have original and exclusive jurisdiction of all prosecutions and .proceedings in behalf of the people of this State for all crimes, felonies, misdemeanors and offenses committed within the corporate limits of any municipality adopting this act and arising under the Michigan motor vehicle law and all other State laws relating to traffic on the public highways of this State, including the crime of negligent homicide and the crimes of manslaughter and involuntary manslaughter committed in the operation of any motor vehicle, except in cases cognizable by justices of the peace and as to all such cases their said jurisdiction shall be concurrent.”
Neither in the briefs nor in the oral argument is any challenge made to the following statement in ap-pellee’s brief:
“It is undisputed by the people that for the past 35 years, during which time this law (CL 1948, § 750.- 324 [Stat Ann 1954 Rev § 28.556]) has been in force in this State, no prosecutions have been attempted under it anywhere in Michigan for homicides on private property, even though requests for such action have been made to various prosecutors in the State. Up until the present action, prosecutors have always taken the position that unless the negligence causing the homicide was sufficiently gross to come within the definition of manslaughter, it was not actionable under the negligent homicide section, because this section applied only to homicides committed upon the public highways by the operation of motor vehicles by persons guilty of violation of some section of the motor vehicle code, which code applies only to the operation of motor vehicles upon public highways.”
The lower court called attention to PA 1949, No 300, § 601 (CLS 1956, § 257.601, Stat Ann 1952 Rev § 9.2301), which provides:
“The provisions of this chapter relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except where a different place is specifically referred to in a given section,”
and concluded that this section delimited prosecutions for negligent homicide by motor vehicles under CL 1948, § 750.324 (Stat Ann 1954 Rev § 28.556).
Appellants contend that PA 1949, No 300, is exclusively a traffic regulatory act and has “neither explicit nor implicit application to violations of the penal code, within whose confines are found the description and proscription of negligent homicide.”
The act upon which appellants rely does not contain the words “on a public highway,” but does contain words “operation of any vehicle.” The only definition that is helpful to determine who the legislature referred to as an “operator” and what convey- anee should be construed as a “vehicle” are found in CLS 1956, §§ 257.36, 257.79. Those definitions are:
“ ‘Operator’ means every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway.” CLS 1956, § 257.36 (Stat Ann 1952 Rev § 9.1836).
“ ‘Vehicle’ means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.” CLS 1956, § 257.79 (Stat Ann 1952 Rev § 9.1879).
In 1931 the attorney general of this State held that the negligent homicide law was confined to the public highways and did not extend to private property, as is evidenced by the following:
“Section 324 [PA 1931, No 328] contains the words ‘at an immoderate rate of speed or in a careless, reckless or negligent manner.’ Section 326 contains the words ‘whether the defendant was driving at an immoderate rate of speed shall not depend upon the rate of speed fixed by law for operating such vehicle.’ The above words quoted from the statutes, I maintain have reference to those vehicles which, according to common understanding, are driven by someone subject to certain rules and laws limiting their speed and controlling their operation. The only vehicles which are limited in speed and operation by State law, generally speaking, are those using the public highways and streets.” Opinions of the Attorney General, 1930-1932, pp 380, 383.
All prosecutions in this State from 1931 have proceeded on the theory that the statute in issue applied to the use of public highways and streets. No action has been taken by the legislature to include in said law provisions making it applicable to parking lots, except the acts of the legislature in 1956 amending the motor vehicle code so that the provisions requiring an operator involved in an accident resulting in injury and death to stop at the scene of the accident (PA 1956, No 22 [CLS 1956, § 257.617, Stat Ann 1957 Cum Supp § 9.2317]) and prohibiting the operation of a motor vehicle by an intoxicated person (PA 1956, No 34 [CLS 1956, § 257.625, Stat Ann 1957 Cum Supp § 9.2325]) now apply to the operation of a motor vehicle upon private property open to travel by the general public.
We agree with the interpretation of the statute as made by the traffic and ordinance division of the recorder’s court of the city of Detroit that resulted in the quashing of the information.
Order affirmed.
Dethmers, C. J., and Sharpe, Smith, Edwards, Voelker, Carr, and Black, JJ., concurred. | [
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Smith, J.
This case involves an alleged attempt to obstruct justice. The facts are simple. The defendant, William Coleman, had been charged with a violation of the small loan act, CL 1948, § 493.1 (Stat Ann 1957 Rev § 23.667), and his trial date set. One William Jordan had been subpoenaed as a witness for the people. Jordan was married, but his wife was ignorant of the fact that he had been “running .around” (the expression is his) with a young woman. The ignorance of the wife, however, was not shared by defendant Coleman. Apparently Coleman was, as the saying goes, nobody’s fool, for the fact that a prospective witness against him had been “running ■around” invested the witness, in Coleman’s opinion, with a peculiar vulnerability. This he had both the wit to appreciate and the ingenuity to utilize.
On the evening of September 15,1955, one Charles Goldsborough came to defendant Coleman to make a payment. After some conversation irrelevant hereto Coleman asked his caller whether or not he knew Jordan. We continue in Goldsborough’s words:
“I imagine I told him I had seen him around, but I mean I didn’t know him. I didn’t know him good.
“And then he asked me if I would go around and talk to him, and I said, ‘I don’t know, I will go around and see him.’ And then he told me what, actually what he wanted me to see him about, that he was— liad the knowledge that this Mr. Jordan had run around with some Jefferson girl that lived on Cedar street, that Mr. Coleman was aware that he run around with this woman, and that if I would tall!: to Mr. Jordan and ask him if he didn’t show up at the trial his wife wouln’t find out that she was running with him.
“Q. That she was running around with who?
“A. That this Jefferson girl was running around with Mr. Jordan.
“Q. And what did you say, if anything, to that?
“A. Well, then he said there was 2 or 3 other witnesses that had something to do with this case. And so I said, Well, write the names down. I don’t know them.’ And he wrote their names down for me on a slip of paper, and the address of Mr. Jordan. I think the addresses of the other ones, too.
“I have seen people’s exhibit 1 before. I saw it at 1452 Sanford street upstairs on the back porch. I got it from Mr. Coleman. He wrote them addresses on that paper for me. * * *
“Q. What appears on the face of that document?
“A. William H. Jordan, 2421 B Elwood street. That is in the Heights. And Richard Jordan and Terry Ford at 2425 Manz street. And then there’s Thomas J. — it looks like Fisher, but it’s supposed to be Fikes.
“On the reverse side it says the Jefferson girl at corner of Walton and Cedar street. Those names and addresses were written there by Mr. Coleman. This was after supper in the evening. It was not dark when I left Coleman’s, it was just the latter part of the evening. It hadn’t been dark when I left the porch.”
Goldsborough started on his errand. Difficulties in locating Jordan, however, ensued. The numbers on Elwood street had been changed. Goldsborough made inquiries at the Rainbow Cafe but no satisfactory answer was obtained. He then proceeded in his car “up to the Heights” and decided to consult a telephone directory.
We will interrupt the chronological statement to make some inquiries at this point. Why was Golds-borough thus driving the streets searching for witness Jordan? Was he seeking to pay a social call on this man he did not know? Or was he carrying Coleman’s threat, calculated to persuade Jordan from testifying? If the latter, were steps then and there being taken under Coleman’s directions {i.e., was Coleman attempting, by means of an agent) to aid in the administration of justice? Or to obstruct it? Are these steps consistent with any purpose other than evil? Goldsborough continues.
“I went to the desk at the Muskegon Heights police department and just asked for the phone book. I laid the piece of paper — they have a little glass shelf there, I put it on there, and Mr.- — -and Detective Sovacool was looking at the numbers. And then he asked me what I was doing with it. And I said, ‘I have to look up this — ’ * * *
“Mr. Sovacool said that he had been over to see them same addresses that same day. And I just told him I was looking to see if he had a phone to find his address. And finally he called me in the office, in the back office, and he said — he started telling me about he served subpoenas on them, and finally he got out of me, or I told him what I was going over there for.”
With this knowledge of what was afoot, Detective Sovacool called the prosecuting attorney and the chief of police. We continue in the words of the witness, omitting reference to objection overruled:
“So, anyway, Mr. Sovacool said, ‘Well, I am going to call Mr. Cavanaugh.’ And he called Mr. Cavan-augh, and Mr. Cavanaugh asked to talk to me on the phone. And he asked me what it was about, and I told him.
“And then Mr. Bell was called, and he came np there, and then I was told to go over there and perform the service. And Mr. Sovacool was along when I went over to Mr. Jordan’s house. I had my own automobile. I had driven down to Coleman’s in my car. Nobody was with me. I drove from Coleman’s out to the Rainbow. I drove from the Rainbow over to the police station.
“Q. Did you drive your vehicle, then, back to Jordan’s place?
“A. I did.
“Sovacool was in the back seat of the car. There was no one else besides me and Sovacool in the car. We went to Jordan’s place.
“I went to the front door, and I hollered if Mr. Willie Jordan was there. And some woman hollered ‘Yes.’ And he came to the door, and I asked him if I could tall?: to him. And he said, ‘Yes’, And I said, ‘Could I talk to you out by the car?’ And he said, ‘Sure.’
“And he was about 3 feet from the car, and I would say, and the back window was rolled down, and I told Mr. Jordan — (Objection omitted).
“I related to Mr. Jordan just what Mr. Coleman advised me to do in regards to him showing up at his trial, in regards to Mr. Jordan running around with this Jefferson girl.
“Q. You say you told him what Coleman told you. What did you tell him ?
“A. I told him that Mr. Coleman asked me to come over and talk to him. And I asked him if he knew a Jefferson girl, and he said, ‘Yes.’ And so I told him my name, and I told him I didn’t know him and he didn’t know me, and that if he was not to show up at the trial he would not get in any trouble with his wife.
“So Mr. Jordan said well, he would show up at the trial, anyway, regardless of the fact. Then he said he would tell his wife about that, about this girl. And I said, ‘All right.’ And I got in the car and drove away.”
(Notwithstanding the threat made, Jordan did appear at the trial and testified against Coleman.) Returning to the case before us; it proceeded to trial in due course before a jury in the circuit court. Verdict of guilty was returned by the jury and the case is here upon leave granted.
The defendant urges upon us that up to the time G-oldsborough entered the police station none of the acts recited constituted an attempt by Coleman to obstruct justice, but only preparations for such an attempt. And, further, that to constitute such an attempt “required actual contact with Jordan and a transmission of the message to him in a manner calculated to actually deter him from testifying.”
It must be borne in mind that the offense with which defendant is charged is obstruction of justice by “attempting” to dissuade (by threats and coercion) a witness from testifying. The offense is not peculiar to our modern society (See Regina v. Loughran [Ir 1839], 1 Craw & Dix 79: “ ‘It would be better for you to bring your sheet and coffin, than to prosecute my brother Paddy.’ ”; Rex v. Lawley [1731], 2 Strange 904 [93 Eng Rep 930]) and its applicable principles are well settled. The crime is committed when the effort is made to thwart or impede the administration of justice. The evil lies in attempt as well as its success. As we said in People v. Boyd, 174 Mich 321, 325, 326 (prosecution for obstructing the administration of justice):
“The question in the instant case is not the guilt or innocence of the respondent in the main case, nor the sufficiency of the information or the jurisdiction of the court, but whether the respondent is guilty of obstructing or interfering with the administration of justice. In an examination of the authorities we find none in conflict with the authority above cited. In one of the earliest authorities, where the exact question was before the supreme court of the State of Vermont (in 1847), that court said:
“ ‘Much' of the argument at the bar has been expended upon supposed irregularities in the original proceedings against Gfoodale & Poor, and insuffi-ciencies in the indictment against them prepared and laid before the grand jury. That indictment is not recited, and need not be in the present; it is not, consequently, before us. In offenses of this kind guilt or innocence does not depend upon the guilt or innocence of the original party, against whom the witness may be subpoenaed, or recognized, to appear ; nor upon the sufficiency or insufficiency of the original indictment. To thwart or obstruct the due administration of justice by violence, bribery, threats, or other unlawful means, whether in preventing the attendance of witnesses, jurymen, or other officers of court, is a highhanded offense, which strikes at the vitals of judicial proceedings, and subjects to severe animadversion in every well-ordered community. The attempt to commit such an act, it is well settled, is itself a substantive offense, punishable by the common law.
“ ‘In this instance, the attempt was unsuccessful; the witness, Warren, attended court and testified before the grand jury, as he had bound himself by recognizance to do. Moreover, the parties against whom he appeared must be taken to have been innocent of the crime imputed to them; and, in addition to this, the indictment against them, if in the description of the offense it followed the complaint filed [preferred ] before the magistrate, I am inclined to think was fatally defective. Still, all these circumstances are entirely consistent with the respondent’s guilt. Since the case of State v. Keyes (1836), 8 Vt 57 (30 Am Dec 450), it is quite unnecessary to pursue this subject at any length.’ State v. Carpenter, 20 Vt 9, 12.
“See, also, 3 Bishop’s New Criminal Procedure (2d ed), § 897; 2 Wharton’s Criminal Law (11th ed), § 1597. See, also, State v. Holt, 84 Me 509 (24 A 951); Commonwealth v. Berry, 141 Ky 477 (133 SW 212, 33 LRA NS 976, Ann Cas 1912C, 516), and notes.”
But just as the crime charged does not require acts beyond an attempt, it is equally true that an attempt must in fact be made, i.e., that whatever is done go beyond acts merely of preparation. As to the difference between “mere” acts of preparation and those amounting to attempts, “The Law,” as Holmes well said (The Common Law, p 68), “does not punish every act which is done with the intent to bring about a crime.” The purchase of a fountain pen intended for forgery would doubtless be deemed merely an act of preparation. Likewise, even the purchase of a hunting rifle, secretly intended for the murder of the neighbor, though equally useful for the hunting of deer. Not so, however, the placing of a bomb so connected that it would explode when the occupant of the house turned on his radio. Commonwealth v. Kocher, 162 Pa Super 605 (60 A2d 385). An important difference between the acts is this: In the former cases, the acts of the defendant have never gone beyond acts of an ambiguous nature. The purchase of the hunting rifle or fountain pen (without more) is as consistent with good as with evil. Not so the placing of the bomb, although in each case the ultimate result is not yet accomplished. The supreme court of California held thus on the point before us (People v. Miller, 2 Cal2d 527, 530-532 [42 P2d 308, 98 ALR 913]):
“Mere intention to commit a specified crime does not amount to an attempt. (People v. Stiles, 75 Cal 570 [17 P 693].) Preparation alone is not sufficient. ‘Something more is required than mere menaces, preparation or planning.’ (30 CJ, p 13.) ‘The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. * * * Therefore, the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.’ (8 ECL, pp 278, 279.) ‘There must be at least some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.’ (1 Wharton’s Criminal Law [12th ed], p 280.) * * * “We are mindful of the fact that language appearing in Stokes v. State, 92 Miss 415, 428 (46 So 627, 21 LRA NS 898), that ‘whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt,’ has received approval. (People v. Lanzit, 70 Cal App 498, 507, 508 [233 P 816]; 8 RCL, p 279; 13 RCL, p 798.) The statement, however, that slight acts in ftirtherance of the design will be sufficient is not in conflict with the usual statements of the tests applied to aid in drawing the line at the point where preparation leaves off and execution has commenced. It still presupposes some direct act or movement in execution of the design, as distinguished from mere preparation which leaves the intended assailant only in the condition to commence the first direct act toward consummation of his design. The reason for requiring evidence of a direct act, however slight, toward consummation of the intended crime, is, as pointed out by the author in Wharton’s Criminal Law, that in the majority of cases up to that time the conduct of the defendant, consisting merely of acts of preparation, has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act, or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains no one can say with certainty what the intent of the defendant is. As stated in United States v. Ford (DC NC), 34 F 26, 27, ‘the intention of the actor can alone be clearly ascertained by the movements which he had made to complete his design.’ ”
A thoughtful test for the resolution of the equivocal act has been phrased by Turner in his article, “Attempts to Commit Crimes” in 5 Cambridge LJ, 230, 237, 238, in these words:
“If the acts of the accused, taken by themselves, are unambiguous, and cannot, in reason, be regarded as pointing to any other end than the commission of the specific crime in question, then they constitute a sufficient actus reus. In other words, his acts must be unequivocally referable to the commission of the specific crime. They must, as the late Sir John Salmond said, ‘speak for themselves.’ If the example may be permitted, it is as though a cinemato-graph film, which had so far depicted merely the accused person’s acts without stating what was his intention, had been suddenly stopped, and the audience were asked to say to what end those acts were directed. If there is only one reasonable answer to this question then the accused has done what amounts to an ‘attempt’ to attain that end. If there is more than one reasonably possible answer, then the accused has not yet done enough.”
Likewise, in People v. Youngs, 122 Mich 292, 293 (47 LRA 108), we held as follows:
“To constitute an attempt, at the common law, something more than an intention or purpose to commit crime is necessary. As was said by Field, C.J., in People v. Murray, 14 Cal 159:
“ ‘Between preparation for the attempt and the attempt itself, there is a wide difference. The prep aration consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.’
“In Regina v. Taylor, 1 Fost & Fin 511, 512, the chief baron said:
“ ‘The act, to constitute a criminal attempt, must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner under such circumstances that he has the power of carrying his intention into execution. If 2 persons were to agree to commit a felony, and 1 of them were, in execution of his share in the transaction, to purchase an instrument to be used in the course of the felonious act, that would be a sufficient overt act in an indictment for conspiracy, but not in an indictment of this nature.’ ”
Tested by the requirements hereinabove suggested the attempt of defendant Coleman to obstruct justice is clear. "Whatever planning he had had to do, whatever scheme he had devised, the period of thought and reflection was over and the time for action in furtherance thereof had arrived. Goldsborough was sounded out. He proved acquiescent. He was then instructed to carry Coleman’s threat and, in fact, was furnished with a written memorandum by Coleman in order that there be no slip or miscarriage through error in person or address. Is there anything equivocal in Coleman’s acts hereinabove described? Is there any reasonable construction thereof save that they were directed towards the coercion of witness Jordan to refrain from testifying? If so, it has not been suggested to us and we cannot perceive it. Certainly when Coleman’s agent, armed with the written memorandum, and charged with the threat and the means and the willingness to deliver it, left Coleman’s presence the latter had made an attempt to impede justice and we need not speculate what acts short thereof or in addition thereto would also have sufficed. Not only have we passed the planning stage hut we have likewise passed the point of solicitation involved in McDade v. People, 29 Mich 49, relied upon by appellant.
The appellant likewise urges upon us that “the law does not punish evil intent unaccompanied by some overt act going directly toward the consummation of a crime.” But what, here, is the crime? It is the attempt to dissuade, which may be accomplished by words as well as physical act of violence. That'words themselves may be overt acts under some circumstances, in fact overt acts sufficient to constitute crimes, is well settled. See People v. Ruthenberg, 229 Mich 315; State v. Terrill, 87 Kan 745 (125 P 65). The Louisiana court (Armstrong v. Vicksburg, Shreveport & Pacific R. Co., 46 La Ann 1448, 1463 [16 So 468]) put the law in these terms:
“It is a mistake, however, to suppose that in order to constitute force it is always necessary that actual active physical force be applied, or that to constitute ‘threats’ violent language be employed. Any conduct, in the connection we are now dealing with the word, which would place the officer executing the process of the court in bodily fear or terror is ‘that force’ contemplated by the law, while ‘threats’ may be communicated by signs or by actions as fully and thoroughly as by word of mouth.”
As we pointed out in People v. Boyd, supra (see, also, 3 Gillespie, Michigan Criminal Law and Procedure [2d ed], § 1968), the substantive offense, punishable at common law, is the mere attempt to persuade a witness not to testify. The law does not require that the attempt be successful or even that it be such as would be the most promising. Attempts may vary in means or vigor, and success may well depend upon a. host of factors, such as the violence with which the threat is delivered, or its accompaniment by force or show thereof. Witnesses, moreover, vary in courage. A threat that would he brushed aside by one of the utmost resolution might well cause one of weaker will to hesitate or falter. Yet the court’s search for truth cannot be restricted to the bold and courageous. It must comprehend all kinds and conditions of men. We do not weigh in delicate scales the force exerted or the terror inspired. Enough for us that an attempt is made. If successful, the court’s function has been defeated by private aggression. If unsuccessful the orderly processes of society have been challenged, the intimidation of the citizen sought, and effort made to substitute the fear of violence or disgrace for the fairness of due process. The attempt itself is a criminal act. That it was not successful makes it no less reprehensible, no less criminal, no less punishable.
Under the view we have taken of the case it is not material to our decision whether Groldsborough spoke his piece to Jordan as an agent of Coleman or of the police (though the jury was fully instructed on this point) and, hence, those cases involving the conduct or motives of a feigned accomplice (People v. Collins, 53 Cal 185; People v. McCord, 76 Mich 200, 205, “one of the most disgraceful instances of criminal contrivance to induce a man to commit a crime in order to get him convicted that has ever been before us;” State v. Neely, 90 Mont 199 [300 P 561]), and situations similar in principle, are not in point. When Coleman set in motion forces over which he no longer retained control and which would have produced their intended result of deterrence of the witness save for the interposition of elements beyond the power of his will he had made his attempt. In deference to zeal of counsel we will point out that even had Coleman made no attempt prior to Golds-borough’s delivery of the threat to Jordan, it would not be material whether the message was delivered in a menacing or a jesting manner, although there is no evidence of the latter. An attempt can equally well (as far as the instigator’s criminality is concerned) be made through the agency of an innocent child, a dolt or a maniac, or, indeed, the public mails (e.g., People v. Botkin, 132 Cal 231 [64 P 286, 84 Am St Rep 39], sending poisoned candy through the mails with the intention of killing the recipient). So far as the manner of delivery is concerned, the failure of an agent carrying a threat to deliver it in such a manner as properly to cow the recipient and bend him to the principal’s will may be cause for reproach of the agent by his principal but we do not fret ourselves over this breach of trust.
Appellant also alleges error in the charge given. Under the law applicable and upon reading the charge as a whole, we are not persuaded that there was error therein. The charge given, in fact, went beyond that to which he was entitled, but he is in no position to complain thereof.
Affirmed.
Dethmers, C. J., and Sharpe, Edwards, Voelker, Kelly, Carr, and Black, JJ., concurred.
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Adams, J.
(dissenting). This is a mandamus action. Plaintiff seeks the return of personal property seized in his apartment by the Detroit police. The trial judge denied the writ.
On February 26,1963, about 4:30 a.m., a cab driver reported to the police department. He stated he was approached by a man about 25 years of age. •He drove the man to an alley where the passenger got out, returning shortly with a new white sidewall tire and wheel. He directed the driver to plaintiff’s residence, and took the tire and wheel to the rear door of plaintiff’s upstairs flat. The man suggested to the driver that, if he wished to “make a buck,” he should meet him every night.
The same morning, at about 7:40, officers received a complaint that a new white sidewall tire and wheel had been stolen. The theft took place within the same block where the cab driver had earlier reported picking up the man with the tire. The Detroit police went immediately to plaintiff’s residence. How they gained entrance is in conflict. The officers claim they were admitted voluntarily by a roomer. Wideman, the roomer, testified:
“Q. Just a moment, let’s go back. You say you opened the door and were going out?
“A. That is right.
“Q. And there were two policemen?
“A. At the door.
“Q. What did they do, if anything?
“A. Pushed me back in the house, told me to sit down. * * *
“Q. What, if anything, happened after you sat down?
“A. They went in the kitchen and opened the back door and two more police officers went in.”
The officers saw a new white sidewall tire and wheel in the kitchen near the rear entrance of the flat. They testified they asked the roomer where they could find plaintiff and that the roomer could give no information. They searched the premises and testified they did so with the intention of arresting the plaintiff. In the process they broke into a padlocked bedroom. The roomer testified as follows:
“A. They said Whose room is that?’ I said ‘That is the landlord room.’
“Q. Just a moment. Repeat that, please. After that, what happened?
“A. They said ‘Whose room is that?’ ‘That is the landlord room.’ They said, why do we keep it locked. I said ‘I don’t know why he keep it locked’. Then he took his foot two times and kicked it open.
“Q. Kicked the door open ?
“A. Yes, kicked it open.”
While the officers may have begun their - search with the purpose of finding plaintiff, the actions of this four-man police detail and the events which transpired later indicate that this was not their purpose as they proceeded.
Wideman, the roomer, further testified:
“Q. How long were they in the house all together?
“A. They was in the house all together I would say about, at least an hour, anyway, because they went in another room. * * *
“Q. Did they take the property that they had taken out of Mr. Dawkins’ room, out of the house?
“A. Yes. * * *
“Q. How did they get it out of the house? * * *
“A. Carried it out the door. They had two cars out there in the back.
“Q. Carried it out the back door?
“A. Yes. They made me help load it.”
On direct examination Dawkins testified that he was not home at the time of the search and seizure. Upon cross-examination he was questioned with regard to 10 arrests and convictions beginning May 27, 1949, and running through December 22, 1962, most of which were for engaging in an illegal occupation and at least some of which he admitted.
Plaintiff’s testimony concerning his possession of the property was evasive. On cross-examination he could not or would not identify any of the persons from whom he had received various items. He admitted that he took some in pawn and loaned money on them and that on previous occasions he had sold whiskey without a license.
It is evident from this background and from the nature of the articles seized that the police, in going to plaintiff’s apartment, were diverted from their purported original purpose of finding the plaintiff to what became a search and seizure operation. It should be further noted that the taxi driver was not produced at the hearing of this matter to connect the attempted arrest of plaintiff with the person who had ridden in the cab. However, it will be recalled that the man in the cab was described as being about 25 years old. There is no description of plaintiff in the record, but he testified:
“The Court: And what about the Colt revolver?
“A. I have had that for about 35 years. I can imagine it has been registered in the department for about, since 1930, something, I don’t know what year, 1936 or 1937.”
Plaintiff’s stated ownership of a revolver for 35 years and a police record going back to 1949 would indicate a man considerably older than 25 years.
Plaintiff contends he is entitled to the constitutional protection of article 1, § 11, of the Constitution of 1963, the pertinent portion of which reads:
“The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures.”
Plaintiff contends also that under the clear authority of Weeks v. United States, 232 US 383 (34 S Ct 341, 58 L ed 652, LRA 1915B 834), and Mapp v. Ohio, 367 US 643 (81 S Ct 1684, 6 L ed 2d 1081, 84 ALR2d 933), he is entitled to the return of the property taken in violation of the above constitutional guaranty and its Federal counterpart. In People v. Marxhausen, 204 Mich 559, 573 (3 ALR 1505), this Court, referring to liquor illegally seized, said:
“Where it is made to appear before the trial that articles have been taken from the possession of the defendant in violation of his constitutional rights and by unlawful search and seizure and without any search warrant at all, that it then becomes the duty of the trial court to order the return to the defendant of the articles thus unlawfully taken.”
. Defendant contends that an officer can arrest a person when a felony has been committed and the officer has reasonable cause to believe that such person committed it. Chapter 4, § 15, code of criminal procedure (CL 1948, § 764.15 [Stat Ann 1954 Eev § 28.874]). The difficulty with that proposition here is that there is no testimony to link the person in the cab with the plaintiff and, as we have seen, there is evidence to establish such person was not the plaintiff.
Defendant nest contends that an officer may break open an inner or outer door of a building in order to make an arrest. Chapter 4, § 21, code of criminal procedure (CL 1948, § 764.21 [Stat Ann 1954 Rev § 28.880]). The question, however, in view of all that transpired, is whether the activities of the police were for the purpose of making an arrest. The record before us does not support such a conclusion.
Finally, defendant says that every search and seizure made without a warrant is not unreasonable and that the Constitution prohibits only unreasonable searches and seizures.
In 47 Am Jur, Searches and Seizures, § 19, 1964 Cum Supp, p 67, it is stated:
“The United States Supreme Court decisions which are concerned with the question of the legality of the search of premises as incident to a valid arrest do not lend themselves to easy summarization : the court itself has acknowledged that ‘the several cases on this subject in this Court cannot be satisfactorily reconciled.’ At the same time, there are certain principles which appear relatively well settled. Thus it is clear that a search of premises without a warrant, made in connection with a lawful arrest, is not by its nature an unlawful search, nor is it by its nature lawful: the right to make such a search is a strictly limited one; only a reasonable search is permissible, and the bounds of reasonableness are overstepped when (1) the premises searched are separated from the place where the arrest was made; or (2) the search is a ‘general’ and ‘exploratory’ one; or (3) the search has as its purpose the seizure of things to be used purely as evidence (as distinguished from the fruits of the crime —such as stolen property — and the means by which it was committed); or (4) a tremendous quantity of property is seized (the seizure of the entire contents of a house being barred).” (Emphasis supplied.)
Upon oral argument before this Court, the attorney for defendant with commendable candor ad mitted that the real nature of the operation by the police department was confiscation of property thought to be used in illegal activities. Defendant attempts to justify this confiscation because PA 1917, No 273 (CL 1948, § 446.201 et seq. [Stat Ann 1964 Rev § 19.581 et seq.~\), provides for the licensing and regulation of pawnbrokers and CL 1948, § 436.42 (Stat Arm 1957 Rev §18.1013), denies a property right in liquor kept contrary to law. Plaintiff was not being proceeded against under either of these statutes.
As was said in People v. Marxhausen, supra, p 563:
“It ought not to be necessary to recall the fact that it is of the essence of a free government that the individual shall be secure in his person, his home and his property from unlawful invasion, from unlawful search, from unlawful seizure. The writing of these provisions into the Federal Constitution, into every constitution of every State in the Union was not an idle ceremony. With a clearness of vision our forefathers provided for a lawful search and seizure, one supported by oath or affirmation, describing the place to be searched and the person or things to be seized; and in the same section safeguarded the rights of the individual by inhibiting unreasonable and unlawful search. They provided an orderly manner for search and seizure and prohibited all others.”
It is evident the police concluded a more effective way of dealing with plaintiff’s activities than arresting him was to confiscate his capital. Such a search and seizure operation that results in confiscating property and placing the burden on a citizen to secure its return cannot be condoned. This proceeding cannot be turned into an inquisition of plaintiff in which, to effect the return of property in his possession, he is deprived of the presumption of innocence and compelled to testify against himself. For the actions of the police to be upheld, they must proceed by due process of law and not by specious or colorable authority.
“An arrest may not be used as a pretext to search for evidence.” United States v. Lefkowitz, 285 US 452, 467 (52 S Ct 420, 76 L ed 877, 82 ALR 775).
To this we would add, an arrest may not be used as a pretext to confiscate.
It is suggested that plaintiff has not chosen the correct writ and should now be dismissed for failure to bring an action in replevin. Even if the assumption were valid, it still would not affect this appeal. This Court has repudiated the medieval practice of attaching consequences to a litigant’s choice of a writ. If two writs would produce identical records upon a determinative issue the failure to choose the correct writ is the tj^pe of error which does “not affect the substantial rights of the parties”, and should be disregarded. CLS 1961, § 600.2301 (Stat Ann 1962 Eev §27A.2301). See, also, GCE 1963, 529.1. The seizure of the personal property involved here would not be any less unreasonable if we were making the decision based on an appeal taken from a different writ.
The cause should be reversed and remanded for entry of an order in accordance with this opinion. Costs to appellant.
T. M. Kavanagh, C. J., and Souris, J., concurred with Adams, J.
O’Hara, J.
A man’s home is his castle safe indeed from what is constitutionally designated “unreasonable searches and seizures.” No one, dedicated by his elected entrustment to the guardianship of this cornerstone. of individual liberty, can acquiesce in the most minuscule chip therefrom. The cornerstone, be it remembered, is not safety from searches and seizures — only from unreasonable searches and seizures.
In this case my esteemed colleague has itemized the contents of the castle here involved (see his footnote 1). It may perhaps be said that the contents were atypical and bordered on the bizarre for a dwelling place, which of course is the subject of the constitutional protection. Abiding this, however, appellant did live there and thus, I suppose, is entitled to claim the constitutional privilege for it and himself. Perhaps, with the dangers said to be extant in our largest metropolis, it is not uncommon to stock one’s home, arsenal like, with shotguns, rifles and revolvers. In the Upper Peninsula few homes are without firearms of a sort, albeit not usually quite so many as were cached here. Too perhaps, it is the practice in the urban areas to file the serial numbers off portable typewriters and to do one’s own piano tuning. Be gustibus non est disputandum.
It has not been established in this case, as I read the record, however, that it is within the accepted social mores in Detroit to remove the tires from one’s car and have them delivered to one’s castle by taxi. Of course, it is not illegal to keep spare parts for one’s motor vehicle in the home. No untoward inference should be drawn from the fact that appellant kept handy in his flat 12 extra tires and wheels of varying sizes. However, it is suggested by the record that the theft of tires and wheels is not unknown in the concerned area.
In the castle too, as is often the case, certain incidents of social entertaining were present in generous amount. I would not be recorded as favoring judicial limitation on that amount. This should always remain a question of personal judgment— and capacity.
Appellant, apparently a careful fellow, also insured against being caught short away from his castle by carrying in his car, searched, it is conceded with his consent, 39 fifths of spiritus frumenti. Against mechanical failure he likewise carried electric pliers, various wrenches, and 3 spare hub caps. The items in his car, my Brother says, were a “byproduct of the search of his home.” On the same authority he cites for this conclusion, I dissent therefrom.
But, will say the careful constitutionalist, what has all this to do with an illegal search and an illegal seizure? Surely, the fruits of an illegal search and seizure cannot retroact to justify them. I agree.
Was the search and accompanying seizure legal, irrespective of its fruit ? I would hold unequivocally it was. The searching officers had the following information when they made the search: At 7:40 a.m., Donald Dombey reported to the Detroit police that between 11:30 p.m. of the previous night and 7:30 a.m. the following morning, the spare tire was stolen from his convertible. The theft was accomplished by cutting the top of the car. At 4:45 a.m. the same day, John Grant, an identified known taxi driver, reported to the police that he drove a fare to an alley where the fare left the cab and returned with a tire and wheel. The cabbie was then directed to drive his fare to 5740 Beechwood, where the fare took the tire and wheel up the rear stairs to the upper flat of the building. The fare told the cabbie that if he wanted to make a buck, he, the driver, should meet him, the fare, every night. Crucial to my conclusion is this undisputed testimony of the investigating officer:
“Q. Were you possessed of this information when you went to James Dawkins’ home on February 26th?
“A. Yes, sir, this information was assigned—
“Q. As the investigating officer, did you have a complaint from a Mr. Dombey, Donald Dombey?
. .“A. Mr. Dombey’s complaint was assigned to me at the same time as this information from the cab driver was assigned to me by my lieutenant.” (Emphasis supplied.)
Now then, the officer knew that at an early hour in the morning, a tire retrieved from an indeterminate place in an alley was delivered to an upstairs flat at a specific address. He knew that the same night a tire and wheel had been stolen in the same vicinity. He went there immediately after receiving the interlocking information of theft and presumptive illegal disposition. Can it seriously be contended that the officer did not have probable cause to believe that an offense of some degree had been committed by a person unknown to him at the place where the tire had been taken upstairs? Was it his duty to wait until he could go before a magistrate, obtain a warrant and then make his search? Must the police wait until a miscreant lias ample time to secrete or dispose of presumptively stolen goods to seek it out? Whatever his motive in going to the described premises might have been, in my view he had a right to entry, forcible or not, for the reason that he had reasonable ground to believe an offense was being committed therein. In People v. Hagadorn, 255 Mich 121, at p 124, we said:
“The facts necessary to be shown to uphold a search without a warrant must be strong enough to support the issuance of a search warrant.”
Assuming the constitutional question here were controlling (which I do not think is the case) I find no constitutional violation to have been shown. Can it be said the officer here did not at the time of search have facts necessary to support the issuance of a warrant?
In addition to the foregoing, it should be added, that there was a clear-cut issue of fact before Judge Wise, whose determination thereof we do not reverse unless against the great weight of the evidence. The issue was whether the search here was not entirely with the consent of the apparent custodian of the premises. It is not suggested he was a trespasser or otherwise there against the will of the tenant. He testified he was living there. The officers testified they were, in effect, admitted to the premises. I know of no rule of law which requires a trial judge to disregard police testimony, nor to accord it any less credibility than that of another witness.
Be this all as it may, what this case really involves is the denial by a trial judge of an application for a writ of mandamus. Appellant, ably represented, chose this remedy to recover possession of the involved property. Appellant in his brief argues to us: “
“The record indicates that the items taken from petitioner belong to petitioner.”
If this be the ground to support issuance of mandamus to compel its return, it may be supposed appellant would have to establish his title, or at least his possessory right thereto. The circuit court held a hearing. Petitioner’s testimony on this point is characterized by my Brother as “evasive.” I accede to this euphemism and quote excerpts:
“Q. Mr. Dawkins, continuing your testimony of last week, let me ask you if you have any knowledge, or do you know that the police took from your home a United States Royal tire and wheel, size 800 by 14?
“A. I know they taken some tires.
“Q. Taken one out of your kitchen, do you know about that tire?
“A. It is possible. I don’t recall about that now.
“Q. "Would you say, if there was a tire in your kitchen the morning of February 26th when the police entered there, that it was your tire and wheel?
“A. I can’t recall a tire being in the kitchen.
“Q. Well, it was in your house?
“A. Well, it is possible but I can’t recall offhand right now.
“Q. And you think if it was in your house, in your kitchen, it would have been your tire and wheel?
“A. Well, it would either be mine or be left in my possession, more or less.” (Emphasis supplied.)
The best that could be said for this testimony is that by it petitioner established his title or possessory right to the tire — more or less.
Further:
“The Court: You don’t know the names of any people that left this merchandise with you?
“A. I know the people when I see them.'
“The Court: Then you have really been loaning money on this merchandise, too, have you?
“A. I wouldn’t say loaned money.
“The Court: Well, you have been giving them money on the merchandise, and if they gave you something for keeping it for them you would take it, and if they didn’t give you anything you wouldn’t charge them?
“A. That is right.”
If we mandamus Judge Wise to compel him to accept this type of testimony to establish petitioner’s title or right to possession, we have in verity said mandamus is no longer a discretionary writ, but a writ of right to a petitioner on application.
I seem to recall an action known as replevin. It is of ancient lineage. 19 MLP, Replevin, § 1, pp 490, 491, and § 4, p 500:
“Replevin is the statutory remedy of one desiring to obtain possession of goods or chattels which he claims are his. * * * The action is founded on an unlawful detention whether or not there was an unlawful taking. * * * The right to maintain replevin has been denied where the defendant [plaintiff?] has no legal title to the property sought, or fails to show any right to immediate possession thereof.”
If the Detroit police department unlawfully took, or was unlawfully detaining petitioner’s property, a tailor-made statutory remedy to recover it was available to him.
I would affirm the trial judge, with costs to the appellee.
Dethmers and Black, JJ., concurred with O’Hara, J.
Kelly and Smith, JJ., concurred in result.
The following items were seized: 12 pints booze; 48 pints assorted whiskies; 1 Magnavox AM-PM portable radio; 2 black sample eases “Presto Pride” pans; 1 paper bag containing plugs, ammunition; 1 Remington noiseless typewriter, serial number filed off; 1 leather tool bag containing piano tuning tools; 1 wooden box with miscellaneous personal papers; 1 Weller soldering kit; 1 Marlin, 30-30, and ease; 1 Mossberg, 22-calibre and ease; 1 Remington automatic shotgun; 1 380-Colt automatic and holster; 1 Phileo portable TV; 1 Kingston vacuum cleaner; 1 J. C. Higgins, 12-gauge shotgun; 1 Nitro, 12-gauge shotgun; 12 tires and wheels.
Later the officers, with the consent of plaintiff, searched his car at the time of plaintiff’s arrest and seized these additional items: 22 fifths Nature Boy wine; 5 fifths Silver Satin wine; 12 fifths Italian Swiss Colony wine; I whitewall Goodyear tire; 3 Ford chrome hub caps; 1 Philco portable turntable for phonograph; 1 pair Magna-Vu Deluxe binoculars; 12 twelve-oz. bottles Carling’s Blaek Label beer; 1 electric pliers; 3 open-end wrenches; 1 socket wrench head; and 4 mutuel account sheets. Since the goods seized from the plaintiff’s automobile were a byproduct of the search of his home, albeit one with consent, they must be considered as a part of the original search.
See, GCE 1963, 757; CLS 1961, § 600.2920 (Stat Ann 1962 Eev § 27A.2920).
Mandamus lias generally been accepted by this Court in this type of aetion without comment. Bitonli v. Wayne County Auditors, 311 Mich 322; Martucci v. Detroit Police Commissioner, 322 Mich 270. For specific approval of mandamus in this type of proceeding, see Taylor v. Isabella Circuit Judge, 209 Mich 97, 101, 102; Robinson v. Inches, 220 Mich 490, 492.
Mandamus, like replevin, is a legal action. 55 CJS, Mandamus, § 2(b), p 17. Pursuant to GCE 1963, 714.2(3), the defendant answered the complaint as he would in “an ordinary civil aetion.” Pleadings under a writ of replevin would also conform to this standard. GCE 1963, 110.3. But even if we ignore these similarities, the fact remains that the reasonableness of the seizure would have been equally relevant to a replevin action as it was to a suit in mandamus. CLS 1961, § 600.2920(1) (Stat Ann 1962 Eev § 27A.2920[1]).
Also, a half case of beer, a beverage not to my liking but relished, I am told, by many.
The action is now known as “Claim and Delivery” but its substance is unchanged. (GCR 1963, 757).
Now called claim and delivery, see PA 1961, No 236 (CLS 1961, § 600.2920 [Stat Ann 1962 Rev § 27A.2920]).—Reporter. | [
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Shepherd, J.
Defendant, Christopher Michael Pigula, appeals as of right from a July 1, 1991, order denying his motion for the return of fingerprints, an arrest card, and photographs that were generated in connection with his arrest on charges of first- and second-degree criminal sexual conduct (esc) against a minor, MCL 750.520b; MSA 28.788(2) and MCL 750.520c; MSA 28.788(3). Those charges were dismissed before the defendant filed his motion. However, we disagree with defendant’s position that he is entitled to have his arrest records returned.
The applicable statute, MCL 28.243; MSA 4.463, at the time of defendant’s motion provided in relevant part as follows:
(4) [I]f a person arrested for having committed a felony or a misdemeanor is released without a charge made against him or her, the official taking or holding the person’s fingerprints, arrest card, and description shall immediately return this information to the person without the necessity of a request. If this information is not returned, the person shall have the absolute right to demand and receive its return at any time after the person’s release and without need to petition for court action.
(9) The provisions of this section requiring the return of the fingerprints, arrest card, and description shall not apply in the following cases:
(a) The person arrested was charged with the commission or attempted commission ... of a crime with or against a child under 16 years of age or the crime of criminal sexual conduct in any degree, rape, sodomy, gross indecency, indecent liberties, or child abusive commercial activities.
(b) The person arrested has a prior conviction other than a misdemeanor traffic offense, unless a judge of a court of record, except the probate court, by express order entered on the record, orders the return.
First, defendant argues that the statutory language allows the return of arrest records following the dismissal of a esc case upon court order. However, in support of this proposition, defendant cites a former version of MCL 28.243; MSA 4.463, which, from December 22, 1978, to June 1, 1987, provided in relevant part as follows:
(6) The provisions of this section requiring the return of the fingerprints, arrest card, and description shall not apply in any of the following instances unless a judge of a court of record, except the probate court, by express order entered of record, orders the return:
(a) Where the person arrested has a prior conviction, except a misdemeanor traffic offense.
(b) Where the person arrested was charged with the commission or attempted commission, with or against a child under 16 years of age, or the crime of criminal sexual conduct in any degree, rape, sodomy, gross indecency, or indecent liberties.
We note significant differences between the language used in the former and current versions of the relevant statute.
Reviewing the clear language of the current statute, Police Officers Ass’n of Michigan v Lake Co, 183 Mich App 558, 563; 455 NW2d 375 (1990), the statute does not require the automatic return of arrest records upon the dismissal of charges where the arrest was for a charge of esc. Further, because there is no longer a provision allowing for a court order for the return of arrest records concerning esc offenders, see subparagraph 9(a), but there is such a provision under subparagraph 9(b) concerning repeat offenders, we must take that as an indication of the Legislature’s intent that there be no right to the return of arrest records with regard to a dismissed esc charge. We will presume that the change in the statutory phrase reflects a change in meaning. In re Childress Trust, 194 Mich App 319, 326; 486 NW2d 141 (1992).
In addition, our interpretation is supported by the common grammatical rule of construction that a modifying clause will be construed to modify only the last antecedent unless something in the subject matter or dominant purpose requires a different interpretation. Rios v Dep’t of State Police, 188 Mich App 166, 169; 469 NW2d 71 (1991). We can discern nothing from the subject matter or dominant purpose that would require a different interpretation. Thus, the phrase "unless a judge of a court of record, except the probate court, by express order entered on the record, orders the return” found in subparagraph 9(b) only applies to that subparagraph concerning repeat offenders, and does not also relate to subparagraph 9(a) concerning esc offenders. We also note that the two subparagraphs are separated by a period at the end of subparagraph 9(a), rather than some type of conjunctive punctuation. Thus, defendant’s argument that he is entitled to a court order to ensure the return of his arrest records is not supported by the language of the current statute.
Next, defendant argues that the circuit court had discretion via ancillary jurisdiction to order the return of the arrest records and that the Legislature cannot limit the circuit court’s authority to do so. However, MCL 28.243(9); MSA 4.463(9) does not restrict the circuit court’s authority, but, rather, restricts the authority of police officials concerning the return of arrest records in certain types of cases. The circuit courts continue to have jurisdiction to enforce MCL 28.243(9); MSA 4.463(9) as we have interpreted it. Thus, this issue is also without merit.
Finally, defendant argues that MCL 28.243(9); MSA 4.463(9) violates his right to privacy. However, the Michigan and United States Supreme Courts have held that there is no right of privacy with regard to arrest records where the arrest was made properly. Miller v Gillespie, 196 Mich 423, 428; 163 NW 22 (1917); Paul v Davis, 424 US 693, 713; 96 S Ct 1155; 47 L Ed 2d 405 (1976).
We affirm the ruling of the trial court. | [
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Per Curiam.
In 1969, the Federal Power Commission, now Federal Energy Regulatory Commission (ferc), granted defendants a license to construct and operate a hydroelectric plant on the shore of Lake Michigan, pursuant to the Federal Power Act (fpa), 16 USC 791a, et seq. On July 1, 1970, the State of Michigan executed a fifty year lease with defendants for ninety-eight acres of Lake Michigan bottom lands to accommodate construction of the plant. The hydroelectric plant commenced operation in 1973. On the basis of defendants’ own studies, the federal courts have recognized that a "substantial number” of fish are killed and discharged into Lake Michigan as a result of the plant’s operation. (See footnote 1.)
On September 3, 1986, plaintiff commenced the instant suit. Plaintiff alleged that defendants had violated the terms of the federal license and the lease with the State of Michigan. Plaintiff further alleged that defendants had unlawfully destroyed fish resources of the State of Michigan and had maintained a public nuisance by discharging fish parts into Lake Michigan. Plaintiff sought compensation for the fish destroyed by the plant. Plaintiff also sought to have the lease declared void for defendants’ alleged violations of law. In an order entered on November 8, 1990, the court granted defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8), finding that plaintiff’s claims were preempted by the fpa. Plaintiff now appeals as of right. We affirm in part, reverse in part, and remand for further proceedings. We do not retain jurisdiction.
i
The first issue is whether plaintiffs state-law claims for damages were preempted by the fpa.
We initially note that plaintiff properly pleaded a cause of action for negligent destruction of state property or for conversion. See Attorney General v Hermes, 127 Mich App 777; 339 NW2d 545 (1983). Because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources. Id.
State law may be preempted by federal law in three ways: (1) Congress may expressly do so through statutory language; (2) the state law may regulate conduct in a field that Congress intended for the federal government to exclusively occupy; or (3) the state law may conflict with federal law. English v General Electric Co, 496 US 72, 78-79; 110 S Ct 2270; 110 L Ed 2d 65 (1990). The presumption is that powers historically belonging to the states are not preempted by federal legislation unless that is the clear and manifest purpose of Congress. Puerto Rico Dep’t of Consumer Affairs v Isla Petroleum Corp, 485 US 495; 108 S Ct 1350; 99 L Ed 2d 582 (1988).
The trial court found plaintiffs damage claim for destruction of fish resources was preempted because it was not the type of action that § 27 of the fpa, 16 USC 821, preserved from preemption. That section reads as follows:
Nothing contained in this chapter shall be con strued as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.
However, § 10 of the fpa, 16 USC 803(c), preserves the right to bring an action for damages, reading in pertinent part:
Each licensee hereunder shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed under the license, and in no event shall the United States be liable therefor.
Thus, the question is whether § 821 limits the actions that can be brought under § 803(c). We find that it does not.
In South Carolina Public Service Authority v Federal Energy Regulatory Comm, 271 US App DC 95; 850 F2d 788 (1988), the court held that Congress did not grant the ferc the authority to encroach upon state tort law, and held that the liability of the commission’s licensees for damages caused by their projects is a matter left by Congress to state law. In Public Utility Dist No 1 of Pend Oreille Co v Seattle, 382 F2d 666 (CA 9, 1967), cert den 396 US 803 (1969), the court noted that "it is § 10(c) [16 USC 803(c)] of the Act which requires compensation for the taking of state-created property rights, and § 27 [16 USC 821] serves simply to bring water rights clearly within the scope of § 10(c) [16 USC 801(c)].” Seattle, supra at 670, n 6.
We conclude that § 10 of the fpa expressly al lows an owner of property damaged by a federal licensee to recover for all damages incurred, including those expressly saved by § 27, subject to the limitations of state tort laws.
Accordingly, we hold that plaintiffs state-law claim against defendants for negligent destruction or conversion of the fish destroyed by the Ludington hydroelectric plant has not been preempted by the fpa.
ii
The second issue raised by plaintiff is whether the claims under the lease between the state and Consumers Power have been preempted by the FPA.
Before the plant was constructed, the parties entered into a lease whereby defendants had the exclusive use of the Lake Michigan bottom lands for the construction and operation of the plant. Plaintiff alleged in counts n and m of the complaint that defendants had breached certain covenants contained in the lease, and plaintiff asked that the lease be declared void.
The parties have not presented any part of the fpa that expressly prohibits a lessor from bringing a declaratory action with regard to its lease with a federal licensee. Nor have we found any authority for the proposition that Congress intended the fpa to exclusively occupy the field regarding a licensee’s contractual relationships. Accordingly, plaintiffs claims are preempted only if the law of Michigan regarding leases conflicts with the fpa. English v General Electric Co, 496 US 72; 110 S Ct 2270; 110 L Ed 2d 65 (1990).
If a state court were to find that defendants had breached the lease terms and declared the lease void, the state, as lessor, could either allow the plant to operate under a month-to-month tenancy or bring summary proceedings to evict defendants under MCL 600.5701 et seq.; MSA 27A.5701 et seq.
A state law conflicts with federal law when it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” English, supra at 79.
Plaintiff has conceded that the fpa prevents him from enjoining defendants’ operation of the plant. Evicting defendants while the defendants have a valid license from the Federal Power Commission to operate the plant would accomplish the same purpose. We conclude the declaratory relief requested by the plaintiff, that the lease be declared void, would conflict with the fpa. Thus, the court did not err in granting defendants’ summary disposition with regard to plaintiff’s lease claims. We are not holding that no action under the lease can be brought in state court, only that the plaintiff cannot bring an action asking that the lease be declared void.
hi
Finally, plaintiff argues that the trial court erred in finding that his claims for damages would be limited to those damages incurred no more than three years before the institution of this action. Plaintiff argues defendants should be es-topped from asserting the statute of limitations.
Defendants raised the three-year statute of limitations, MCL 600.5805(8); MSA 27A.5805(8), to plaintiff’s claim for damages (see issue i). Plaintiff countered by claiming that defendants were es- topped from raising the statute of limitations because they made representations to plaintiff that they would correct the fish-kill problem and would compensate the state for its losses.
There is no question that a defendant may, by its conduct, be estopped from asserting a statute of limitations as a defense. Lothian v Detroit, 414 Mich 160; 324 NW2d 9 (1982). However, as the court found, there was nothing to show that defendants had either concealed the cause of action, misrepresented the length of the statute of limitations, or induced the plaintiff into not bringing the action at an earlier time. Robinson v Associated Truck Lines, Inc, 135 Mich App 571; 355 NW2d 282 (1984). A review of the record convinces us that there was insufficient evidence to support plaintiffs claim of estoppel. The court did not err in granting summary disposition on this ground.
Affirmed in part, reversed in part, and remanded.
For a detailed explanation of the plant and its operation see Nat’l Wildlife Federation v Consumers Power Co, 862 F2d 580 (CA 6, 1988), and Nat’l Wildlife Federation v Consumers Power Co, 657 F Supp 989 (WD Mich, 1987).
We note that we see no such impediment to allowing plaintiffs to obtain a prospective declaration voiding the lease upon (1) the expiration of the current license, (2) the revocation or annulment of the current license, or (3) the abandonment of the project by Consumers, whichever of the three occurs first. | [
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O’Connell, P.J.
In this case, a jury convicted defendant of twelve counts of first-degree criminal sexual conduct (esc i), MCL 750.520b(l); MSA 28.788(2)(1), and one count of kidnapping, MCL 750.349; MSA 28.581. The trial court sentenced defendant to fifteen to thirty years’ imprisonment, with credit for 2,799 days served, for kidnapping and to the same sentence for each esc I count. On appeal as of right, defendant contends that the evidence adduced at trial was insufficient to support his conviction under MCL 750.520b(l)(f); MSA 28.788(2)(l)(f) (the “personal injury” variety of CSC I), and that his CSC I and kidnapping convictions cannot withstand double jeopardy analysis. Defendant further argues that his extradition to Michigan from Canada violated a treaty between the United States and Canada, as well as his right to a speedy trial. We affirm, but remand to the trial court with instructions to amend the judgment of sentence.
i
Complainant testified at trial that she met defendant in April 1989 and that a relationship thereafter ensued. She understood that defendant developed property, promoted a rock band, and produced movies. According to complainant, she ended the relationship in September 1989, but defendant persistently attempted to remain in touch with her. Complainant agreed to meet him in a restaurant on October 5, 1989. At that meeting, complainant told defendant that she did not want to pursue the relationship further.
Complainant testified that defendant was initially calm and polite that night, but that after dinner, in the restaurant parking lot, defendant pulled her out of her car and shoved her into his own. Defendant insisted on continuing the conversation and began driving, over her objections. When complainant struggled, defendant pulled over, tied her hands, then continued to drive. According to complainant, she continued to struggle, and defendant continued to subdue and constrain her until they reached a motel in Port Huron. Defendant told her that he was taking her to see some of his Mafia friends.
Complainant testified that at the motel, over her further objections and resistance, defendant had sexual intercourse with her while her hands were tied. According to complainant, she tried to leave the room, but defendant restrained her, bound her ankles with neckties, and tied her wrist to his own. The following morning defendant announced that he was going to have sex with her again. When she resisted, he repeatedly struck her with an open hand and then forced her to have intercourse. Afterward, the two argued furiously, and defendant responded by strangling her with a necktie for a minute or two. Defendant again forced her to endure sexual intercourse. Complainant observed that defendant seemed to derive heightened pleasure from her resistance.
Early in the afternoon, defendant tied complainant’s hands and placed her back in his vehicle. Defendant later untied her and allowed her to eat some pizza, at which time he informed her that he would take her to see some Mafia members, with whom she would remain until she agreed to marry him. Complainant testified that she then tried to leave the vehicle, but that defendant tied her up again and put her in the back seat. Defendant also punched her leg and slapped her face. He continued to drive around town until approximately 5:00 P.M., when he pulled behind a building, penetrated her digitally, and then pushed her legs apart and performed cunnilingus.
Afterward, defendant drove to another motel in Port Huron and obtained a room. Once inside, defendant told complainant that if she “behaved,” he would take her home in the morning. Complainant reported that defendant then asked her to perform oral sex on him, which she did, believing her freedom depended on it. Afterward, defendant informed complainant that if she became pregnant with his child, he would terminate the pregnancy by punching her in the abdomen. In the course of this discussion, defendant became angry and forced complainant into a sauna that was in the room and turned it to its highest setting. He knew that she was claustrophobic. Defendant became frustrated when the sauna failed to function properly, so he pulled her out, threw her onto the bed, and then forced her to have intercourse.
Complainant testified that defendant informed her that he was going to arrange for the Mafia to pick up and kill a member of her family. He later took her to a restaurant, but admonished her not to cause trouble. According to complainant, the two brought the food back to the room, whereupon complainant discovered a steak knife in the package and tried to attack defendant with it, but defendant overpowered her.
The morning of the next day, October 7, defendant again tied complainant up and forced her to have intercourse. Defendant learned later in the day that complainant’s father had asked the police to search for her. Defendant then insisted that complainant make a call to quell the investigation. Defendant threatened to direct a Mafia member to kill her son, so complainant called defendant’s mother and encouraged her to telephone complainant’s father and pass on an innocent explanation concerning her whereabouts.
Afterward, defendant put complainant in his vehicle, spent some time driving around, and then informed her that because of the possibility of a missing person investigation in the United States, he had made arrangements to have Mafia members pick her up in Canada. He ordered her to drive across the border because he lacked a valid driver’s license. Under the pressure of threats to her son’s life, complainant drove across the border without incident.
Complainant testified that she remained with defendant in Canada from that afternoon until she escaped on October 12. During this time, they remained in Canada and stayed in a different motel every night. Defendant continuously forced her to engage in sexual intercourse with him. She recounted finally leaving the motel by herself early in the morning of October 12. Complainant explained that defendant told her that Mafia members were going to kill her within a few days, and that he removed her jewelry to make her body difficult to identify. She was able to free herself while defendant slept. She left the motel in defendant’s vehicle and called the police, and also her family, from a nearby track stop.
A Canadian court tried and convicted defendant in connection with the events occurring in Canada, and defendant served a sentence of at least five years in a Canadian prison. On the expiration of defendant’s Canadian sentence, the Oakland County prosecutor secured defendant’s extradition for trial in Michigan.
n
Defendant first argues that, given his conviction and sentence in Canada, his subsequent prosecution in Oakland County violated the Treaty of Extradition between the United States of America and Canada, 27 UST 983; TIAS 8237, as well as the double jeopardy prohibition of Const 1963, art 1, § 15. We first address defendant’s contention that his subsequent prosecution in Michigan violated the extradition treaty. An interpretation of language contained in a treaty involves a question of law. Piamba Cortes v American Airlines, Inc, 177 F3d 1272, 1280 (CA 11, 1999); Cook v United States, 86 F3d 1095, 1097 (Fed Cir, 1996); Wickman v Vinco Corp, 288 F2d 310, 312 (CA 6, 1961). We review questions of law de novo. People v Melotik, 221 Mich App 190, 198; 561 NW2d 453 (1997).
The fourth article of the treaty, in relevant part, provides:
(1) Extradition shall not be granted in any of the following circumstances:
(i) When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested state for the offense for which his extradition is requested.
Defendant contends that the Oakland County prosecutor violated this provision when he sought defendant’s extradition from Canada for trial on the CSC I and kidnapping charges.
Under US Const, art VI, cl 2, a treaty entered into under the authority of the United States is the “the supreme Law of the Land” to which “the Judges in every State shall be bound . As the United States Supreme Court has noted, the “treaties of the United States are as much a part of the law of every State as its own local laws and Constitution.” Hauenstein v Lynham, 100 US 483, 490; 25 L Ed 628 (1879). Therefore, the courts of this state must take judicial notice of any treaties of the United States and enforce the rights granted therein in an appropriate proceeding. United States v Rauscher, 119 US 407, 419; 7 S Ct 234; 30 L Ed 425 (1886).
However, a Michigan court was not the proper forum for defendant to vindicate any rights granted to him in the treaty. Article 4 provides that extradition “shall not be granted” where, as here, the requesting state seeks the surrender of a person who was previously tried and punished in the requested state “for the offense for which his extradition is requested.” 27 UST 983, art 4(l)(i) (emphasis added). This language implies that a defendant should seek to preserve the defendant’s rights under Article 4 in an appropriate tribunal of the requested country (the country that would do the granting), rather than the requesting country (as would be the case if the treaty stated that “extradition shall not be sought”). As such, the treaty imposed a limitation on the requested state, rather than the requesting state.
Article 8 of the treaty further supports our conclusion where it states that “the determination that extradition should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use all remedies and recourses provided by such law” (emphasis added). According to this language, a determination whether the Oakland County prosecutor sought to extradite defendant for the same offenses for which the Ontario court tried and convicted him was a matter of Canadian law. Further, a Canadian court would have been in a far better position to rule on issues arising under Canadian law than would a court of our state. Therefore, we conclude that defendant’s right to resist extradition was a matter for a Canadian tribunal, rather than one of our state, to resolve.
m
We next turn to defendant’s contention that his prosecution in Michigan, after his trial and conviction in Canada, violated the double jeopardy prohibition of the Michigan Constitution. We review double jeopardy questions de novo. People v Walker, 234 Mich App 299, 302; 593 NW2d 673 (1999). The Double Jeopardy Clauses of the federal and state constitutions prohibit a criminal defendant from being placed twice in jeopardy for a single offense. United States v Jorn, 400 US 470, 479; 91 S Ct 547; 27 L Ed 2d 543 (1971); People v Burks, 220 Mich App 253, 256; 559 NW2d 357 (1996).
Our review of the record indicates that the Oakland County prosecutor’s charges of kidnapping and CSC I corresponded to the events that occurred in Michigan exclusively. Similarly, defendant’s Ontario trial and conviction involved only the acts that defendant committed in the town of Milton, Ontario. Crown counsel charged defendant with counts of unlawful confinement, sexual assault, choking complainant to enable Mm to commit sexual assault, uttering a death tMeat, and unlawful possession of complamant’s jewelry. Consequently, the Oakland County prosecutor did not seek to extradite defendant for the same offenses for wMch the Ontario court convicted and sentenced him, with one possible exception.
OMy the Ontario conviction of uMawful confinement and the MicMgan conviction of kidnapping raise double jeopardy concerns. M a multiple-prosecution case where one or more of the two offenses do not contain a specific criminal intent as an element, to determine whether the two convictions were for the same “offense,” we look to whether they arose out of the same criminal episode or transaction and violated laws that sought to prevent a similar type of harm. Crampton v 54-A Dist Judge, 397 Mich 489, 502; 245 NW2d 28 (1976); People v Hunt (After Remand), 214 Mich App 313, 315-316; 542 NW2d 609 (1995). In this case, defendant’s act of confining complainant against her will was continuous ttiroughout the relevant period, and both statutes sought to prevent a similar harm (uMawful confinement). In lieu of engaging in a detailed review of Canadian law, we assume, but do not decide, that they were the same offense for purposes of our MicMgan double jeopardy analysis.
Our state constitution affords broader protection against double jeopardy than does the federal constitution. People v Harrington, 194 Mich App 424, 428; 487 NW2d 479 (1992). In the context of prosecutions involving separate sovereigns, Michigan courts interpret Const 1963, art 1, § 15 to prohibit “a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different.” People v Cooper, 398 Mich 450, 461; 247 NW2d 866 (1976). See also People v Childers, 459 Mich 216, 219; 587 NW2d 17 (1998). The factors bearing on the question include an analysis of whether the respective maximum penalties are greatly disparate, and whether “some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and whether the differences in the statutes are merely jurisdictional or are more substantive.” Cooper, supra at 461.
The Michigan kidnapping statute provides as follows:
Any person who wilfully, maliciously and without lawful authority shall forcibly or secretly confine or imprison any other person within this state against his will, or shall forcibly carry or send such person out of this state, or shall forcibly seize or confine, or shall inveigle or kidnap any other person with intent to extort money or other valuable thing thereby or with intent either to cause such person to be secretly confined or imprisoned in this state against his will, or in any way held to service against his will, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years.
Every offense mentioned in this section may be tried either in the county in which the same may have been committed or in any county in or through which the person so seized, taken, inveigled, kidnaped or whose services shall be sold or transferred, shall have been taken, confined, held, carried or brought; and upon the trial of any such offense, the consent thereto of the person, so taken, inveigled, kidnaped or confined, shall not be a defense, unless it shall be made satisfactorily to appear to the jury that such consent was not obtained by fraud nor extorted by duress or by threats. [MCL 750.349; MSA 28.581.]
The relevant Canadian legislation reads, in pertinent part, as follows:
Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ESC 279(2)(l)(a)-(b).]
The Michigan kidnapping statute sets forth several theories to support a conviction of kidnapping. People v Wesley, 421 Mich 375, 383-384; 365 NW2d 692 (1984). The Oakland County prosecutor alleged forcible confinement, malicious intent, and asportation within the state. Thus, defendant’s Michigan conviction required both malicious intent and asportation. See Wesley, supra at 385-386. Neither of these elements appear in the Canadian statute. The statutes also differ in that they provide widely disparate maximum penalties. The Michigan kidnapping statute authorizes life imprisonment, whereas the Canadian unlawful-confinement statute provides for a maximum of ten years.
Further, the additional elements involved with the Michigan kidnapping statute address a substantive, not merely jurisdictional, difference from the Canadian unlawful-confinement statute. We also note that the Canadian authorities prosecuted defendant under the Canadian unlawful-confinement statute, not the kidnapping statute that precedes it, RSC 279(1). That the Canadian authorities eschewed the latter, which much more closely resembled the Michigan kidnapping statute, reflects a determination to vindicate Canadian interests exclusively, and to defer the prosecution for kidnapping to the jurisdiction in which the kidnapping began. Defendant’s subsequent prosecution for kidnapping, therefore, did not violate the double jeopardy prohibition of the Michigan Constitution.
IV
We next address defendant’s assertion that the prosecutor failed to produce sufficient evidence to satisfy the “personal injury” element of MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), which establishes that an actor is guilty of CSC I if “ [t]he actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration.” Personal injury for purposes of this legislation includes bodily injury or mental anguish, and physical injuries for this purpose need not be permanent or substantial. People v Himmelein, 177 Mich App 365, 376-377; 442 NW2d 667 (1989). To prove mental anguish, “the prosecution is required to produce evidence from which a rational trier of fact could conclude, beyond a reasonable doubt, that the victim experienced extreme or excruciating pain, distress, or suffering of the mind.” People v Petrella, 424 Mich 221, 259; 380 NW2d 11 (1985). In reviewing this issue, we must view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999).
Defendant cites People v Payne, 90 Mich App 713; 282 NW2d 456 (1979), for the proposition that an injury that supports one instance of CSC I cannot support additional counts stemming from subsequent penetrations. In Payne, this Court ruled that where a beating supported an initial act of CSC I, that beating could not satisfy the personal injury element, for purposes of CSC I, of subsequent forcible penetrations. Id. at 718. Payne is not binding on this panel. See MCR 7.215(H)(1).
In People v Martinez, 190 Mich App 442, 445; 476 NW2d 641 (1991), however, this Court held that an initial assault may by itself satisfy the personal injury element of several penetrations occurring within ten minutes of the assault, where “there was no indication of the defendant’s intention to discontinue the attack during the entire episode.” See also People v Hunt, 170 Mich App 1, 8; 427 NW2d 907 (1988) (“The beating visited upon the complainant immediately prior to the series of sexual penetrations is sufficient to supply the element of personal injury with respect to each of the subsequent penetrations so as to sup port multiple convictions under MCL 750.520b(l)(f); MSA 28.788(2)(l)(f).” [emphasis added].)
This case presents us with the question whether any of the alleged penetrations were not simultaneously accompanied by personal injury, and, if so, whether those penetrations occurred under circumstances that nonetheless connected them with personal iryury that occurred earlier in the coruse of the victim’s ordeal. The prosecution introduced photographs indicating that complainant suffered cuts and bruises, but we cannot determine from the trial record which injuries were attributable to the events in Michigan, and which occurred in Canada. We must therefore examine complainant’s testimony regarding each incident.
Complainant testified that before the first alleged penetration, defendant stated that he was going to deliver her to his Mafia connections in New York, and that complainant believed him. Complainant also reported that defendant tied her hands so tightly that her fingers went numb. Defendant then forced her legs apart to achieve vaginal penetration. This evidence was sufficient to support a finding that complainant was subjected to both personal injury and mental anguish in connection with the first penetration.
With respect to the second penetration, complainant testified that defendant overcame her resistance by repeatedly striking her with an open hand, and again forcing her legs apart and penetrating her vaginally. The open-hand slaps supported a finding of physical injury. See People v Kraai, 92 Mich App 398, 402-403; 285 NW2d 309 (1979).
Before the third penetration, defendant wrapped a necktie around complainant’s throat that prevented her from breathing. When defendant stopped strangling her, he again forced her to endure sexual intercourse. The degree of strangulation that complainant reported supports a finding that she suffered bodily injury. See Kraai, supra at 402-403. Further, complainant felt that defendant derived amusement from overpowering her, which also supported a finding that she suffered humiliation, or suffering of the mind.
We also conclude that the evidence was sufficient to support a finding that complainant was subjected to personal injury in connection with the fourth penetration. Complainant testified that after the third penetration, defendant continued his threat to turn her over to the Mafia and that he hurt her when he struck her on the leg with his fist and slapped her in the face at least twice. Defendant then drove her in his car and parked it behind a building, where he penetrated her digitally and performed cunnilingus on her. The events leading up to this sex act supported a finding of both bodily harm and mental anguish.
Complainant testified that before the fifth penetration, defendant left her tied up and strapped to his vehicle while he registered for a motel room. Once in the room, defendant told her that if she “behaved,” he would take her home the next morning. Complainant reported that, after about twenty minutes in the room, defendant then asked her to perform oral sex on him, which she did. Complainant emphasized that she did so because she thought she was bargaining for her freedom. Defendant thus reduced complainant to the role of a beggar. In our view, a rational trier of fact could conclude that defendant’s conditioning complainant’s freedom, if not her life, on her performing a sexual act caused her distress and suffering of the mind sufficient to satisfy the personal injury element. Further, our reading of Hunt and Martinez, supra, indicates that we need not consider an act of penetration in isolation. With respect to this fifth penetration, we cannot ignore that this act occurred against a backdrop of ongoing physical violence and psychological torment.
According to complainant, the events preceding the sixth penetration included arguing and defendant’s repeated threat to leave complainant a captive of the Mafia, threatening her with a raised fist, and trapping her in a small sauna bath for fifteen to twenty minutes despite knowing that she was claustrophobic. Afterward, defendant pulled her out of the sauna, threw her onto the bed, and forced her to have intercourse. At the very least, complainant’s suffering of the Mafia threat, and being forced to confront her claustrophobia for a quarter hour, was evidence of mental anguish, and hence personal injury.
v
The prosecutor alleged that defendant committed six acts of sexual penetration, charged him with six counts of CSC I, and set forth alternative theories to support each: MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) (sexual penetration occurring during the commission of a felony) and MCL 750.520b(l)(f); MSA 28.788(2)(l)(f) (actor uses force or coercion to accomplish the sexual penetration and the victim suffers physical injury). Notwithstanding the fact that the prosecutor alleged only six acts of sexual penetra tion, the jury convicted defendant of twelve counts of CSC i. Defendant asserts that the twelve convictions constituted multiple punishments for the same offense in violation of double jeopardy, US Const, Am V; Const 1963, art 1, § 15. We agree.
The double jeopardy prohibition includes subjecting a defendant to multiple punishments for a single offense. Witte v United States, 515 US 389, 395-396; 115 S Ct 2199; 132 L Ed 2d 351 (1995); People v Wilson, 454 Mich 421, 427; 563 NW2d 44 (1997). In this case, the jury convicted defendant twice for each instance of sexual penetration.
In People v Bigelow, 229 Mich App 218; 581 NW2d 744 (1998), this Court concluded that separate convictions and sentences for both premeditated murder and felony murder, both of which arose from a single instance of criminal conduct, violated the rule against double jeopardy. Id. at 220. The Court remedied the double jeopardy problem by directing the lower court to amend the judgment of sentence to reflect a single conviction and a single sentence for a crime that was supported by two separate theories. Id. at 221-222. We likewise remand this case to the trial court so that it may amend the judgment of sentence specifically to reflect that two alternate theories supported each of the six counts of esc I. Accordingly, we further direct the trial court to vacate six of defendant’s twelve sentences for CSC I.
VI
Defendant’s final argument is that the prosecution deprived him of his right to a speedy trial in not securing defendant’s extradition until after he served his sentence in Canada. From what we are able to ascertain from the record, the United States initiated extradition procedures in 1989, but the Oakland County prosecutor did not finally arrange for defendant’s extradition until April 1996, after defendant served his Canadian sentence.
A criminal defendant has a constitutional and statutory right to a speedy trial. US Const, Ams VI and XTV; Const 1963, art 1, § 20; MCL 768.1; MSA 28.1024. See also MCR 6.004(A). “In determining whether a defendant has been denied a speedy trial, four factors must be balanced: (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) prejudice to the defendant from the delay.” People v Levandoski, 237 Mich App 612, 620, n 4; 603 NW2d 831 (1999), citing Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972). Speedy trial claims raise constitutional issues that we review de novo. People v Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999).
In this case, the delay between the events underlying defendant’s conviction and his extradition was approximately seven years. We consider the length of this delay substantial. The reasons for the delay, however, mitigate our concerns about its length. The court below noted that the Ontario court ordered that defendant’s surrender occur only after defendant’s full parole or release from imprisonment.
Article 7 of the extradition treaty provides as follows:
When the person whose extradition is requested is being proceeded against or is serving a sentence in the territory of the requested State for an offense other than that for which extradition has been requested, his surrender may be deferred until the conclusion of the proceedings and the full execution of any punishment he may be or may have been awarded.
In dicta contained in People v Donaldson, 103 Mich App 42, 46; 302 NW2d 592 (1981), this Court remarked that the treaty does not require Canada to consent to a defendant’s extradition until after the completion of any validly imposed Canadian sentence. The treaty involved in the present case, however, did not apply in Donaldson because the underlying facts in the case occurred before the effective date of the treaty. This Court therefore engaged in an interpretation of both a Canadian statute and the predecessor to the treaty at issue in this case, the Webster-Ashburton Treaty of 1984, 8 Stat 572; TS 119, as supplemented by the Convention of 1889 between thé United States and Great Britain, 26 Stat 1508; TS 139. The Canadian statute, made applicable under the terms of the Webster-Ashburton treaty, mandated that a Canadian jurisdiction not surrender a person for extradition until after the person was acquitted or his sentence expired. Donaldson, supra at 47. This Court stated:
Under these circumstances, we are not inclined to hold that the prosecutor was obligated to seek extradition of defendant before expiration of his Canadian sentence. There was no failure to afford a speedy trial in this case, where the prosecutor moved for a trial promptly after the return of defendant to Michigan. [Id.]
In this case, the Ontario authorities availed themselves of their discretion under Article 7 of the treaty not to surrender defendant until after defendant’s full parole or release from imprisonment in Canada. The Oakland County prosecutor secured defendant’s extradition after his release in 1996. In our view, the instant case is indistinguishable from Donaldson. We are mindful that Michigan prefers the speedy administration of justice. However, the interests of justice do not militate in favor of Michigan’s taking steps to truncate or otherwise interfere with a Canadian court’s execution of its own criminal sentence. Further, defendant does not contend that the delay prejudiced his ability to put on a defense or deprived him of any civil liberties. We conclude that the prosecution did not deprive defendant of his right to a speedy trial.
Finally, defendant raises the 180-day rule of MCL 780.131; MSA 28.969(1), and MCR 6.004(A) and (D). The statutory version of the rule concerns “an untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility in this state . . . .” MCL 780.131(1); MSA 28.969(1)(1) (emphasis added). Clearly defendant’s incarceration in Canada does not implicate this legislation. Turning to the court rule, MCR 6.004(A) states only the general principle that both parties in criminal actions are entitled to a “speedy resolution of all matters before the court,” and subrule (D)(1) states that the prosecutor must make a “good faith effort to bring a criminal charge to trial within 180 days . . . .” Subrules (D)(1)(a) and (b), however, establish that the rule applies to persons incarcerated in a “state prison” or detained in a “local facility.” The court rule thus also has no application to a prisoner serving a sentence in a foreign country.
Affirmed but remanded for amendment of the judgment of sentence. We do not retain jurisdiction.
Whitbeck, J., concurred.
Kelly, J., concurred in the result only.
Defendant does not rely on the federal constitution, apparently because the United States Supreme Court opinions embrace the “dual sovereignty” doctrine. Under this doctrine, successive state and federal prosecutions for the same offense do not violate the Double Jeopardy Clause of the Fifth Amendment of the federal constitution. Heath v Alabama, 474 US 82, 88; 106 S Ct 433; 88 L Ed 2d 387 (1985); Abbate v United States, 359 US 187, 195-196; 79 S Ct 666; 3 L Ed 2d 729 (1959); Bartkus v Illinois, 359 US 121, 136-138; 79 S Ct 676; 3 L Ed 2d 684 (1959). A number of federal courts have extended this doctrine to federal prosecutions following foreign convictions. See, e.g., United States v McRary, 616 F2d 181, 185 (CA 5, 1980); United States v Richardson, 580 F2d 946, 947 (CA 9, 1978); United States v Galanis, 429 F Supp 1215, 1226 (D Conn, 1977).
MCR 7.215(H)(1) only requires us to follow the rule of law established in a published opinion issued on or after November 1, 1990.
Defendant asserts that he served his full sentence, instead of being paroled, in part because he declined to take advantage of rehabilitative services for fear that his participation would create evidence that might be used against him in Michigan. However, rehabilitative services in prison are a privilege, not the prisoner’s right. See People v Malmquist, 155 Mich App 521, 525-526; 400 NW2d 317 (1986). As concerns defendant’s Canadian incarceration, he made a strategic decision not to avail himself of the privilege of sex-offender services. That defendant, by engaging in a course of criminal behavior that involved Canada as well as Michigan, placed himself in a position where he felt it best not to talk candidly about his crimes while incarcerated in Canada, simply does not persuade us to find that he suffered prejudice attributable to this state.
In the course of his argument, defendant asserts that the Interstate Agreement on Detainers (iad), MCL 780.601 et seq.; MSA 4.147(1) et seq., provides that prisoners are protected against unreasonable delays. Defendant does not assert, let alone explain, that the agreement applies to Canada A party may not merely state a position and then leave it to this Court to discover and rationalize the basis for the claim. In re Hamlet (After Remand), 225 Mich App 505, 521; 571 NW2d 750 (1997); In re Toler, 193 Mich App 474, 477; 484 NW2d 672 (1992). Similarly, “[a] party may not leave it to this Court to search for authority to sustain or reject its position.” In re Keifer, 159 Mich App 288, 294; 406 NW2d 217 (1987). Further, defendant did not state a claim under the iad as a question raised on appeal, thus waiving it for appellate consideration. Meagher v McNeely & Lincoln, Inc, 212 Mich App 154, 156; 536 NW2d 851 (1995). See also MCR 7.212(C)(5). We therefore decline to consider the issue.
Defendant similarly points to Article 4(l)(ii) of the extradition treaty with Canada, which provides that extradition will not be granted “[w]hen the prosecution for the offense has become barred by lapse of time according to the laws of the requesting State.” However, defendant does not allege that the period of limitation had run for the Michigan offenses. Defendant also did not include the treaty question in his statement of the issue. We decline to address this question as well. Moreover, as we stated earlier in this opinion, defendant should have raised this issue in a Canadian tribunal. | [
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Per Curiam.
Defendant was convicted, following a jury trial, of assault with intent to commit murder, MCL 750.83; MSA 28.278. Defendant was sentenced to twelve to twenty years’ imprisonment, and he appeals as of right. We affirm.
The victim, John Webster, received a telephone call from a woman named “Jackie” who was interested in purchasing his car. The victim and his friend, Eric Valla, met Jackie and allowed her to test drive the car. Jackie agreed to buy the car, but indicated that she needed to obtain additional funds from a friend in a bar. Jackie drove the car to the bar, parked the car in the alley behind it, and entered the bar.
Two men were in the alley hitting a baseball with an aluminum bat. Defendant was carrying the baseball bat and approached the car. There were “For Sale” signs on the car. Defendant asked Webster about the car and got in the driver’s seat. Defendant got out of the vehicle, and Webster got out of the passenger’s side and proceeded to enter the driver’s side. As he entered the car, defendant struck him in the legs with the bat. Defendant proceeded to beat Webster with the bat. The second man, who had been playing ball with defendant, proceeded to beat Webster with a walking stick or cane. After being threatened by the second man, Valla ran to call for help. There were homes located behind the bar. Two neighbors, Timothy Webb and Dana Arnett, saw the two men beating Webster. The day after the assault, police officer Richard Lucas received an anonymous tip that defendant had committed the offense. Officer Lucas went to the home of defendant’s mother and obtained a picture of defendant. Defendant was apprehended approximately one year later in Texas. Before trial, defense counsel took issue with the ability of the eyewitnesses to identify defendant. At trial, Webster, Webb, and Arnett identified defendant as the perpetrator of the assault although they acknowledged that his appearance had changed since the time of the offense.
Defendant first argues that the trial court denied his rights of confrontation and a fair trial by allowing police testimony regarding receipt of an anonymous telephone call identifying defendant as the perpetrator of the assault. We agree that the admission of this evidence was erroneous, but hold that the error was harmless. In People v Wilkins, 408 Mich 69, 72-73; 288 NW2d 583 (1980), police were able to charge the defendant with carrying a concealed weapon through the use of an informant’s tip. Police officers began to conduct surveillance as a result of the tip and began to follow the defendant as he drove his car. The police attempted to stop the car, but the defendant refused to pull over and threw a shiny object out of the car. The police retrieved the object, an automatic pistol. At trial, the police testified that the anonymous tip identified the defendant, his clothing, his car, and his location. The prosecution asserted that the substance of the information provided by the anonymous tip was admissible because it was not offered for the truth of the matter asserted. Rather, the evidence was offered to establish the reason that the police took subsequent action. Our Supreme Court explained that, even if such testimony was offered for a purpose other than its truth, it must also be determined what the testimony tends to establish and whether that evidence is probative of a material issue in dispute. The Court concluded that admission of the testimony was improper, even if marginally relevant under MRE 401, because the evidence was not limited to its proper scope as required by MRE 105. Wilkins, supra at 73. The Court also held that the prejudicial effect far outweighed the probative value when the jury was provided with testimony regarding the content of a statement of an unsworn informant, the unsworn informant was not produced at trial, and the statement was the only evidence to identify the defendant as the perpetrator of the offense.
In the present case, we agree that the admission of the information contained within the anonymous tip should have been limited to explain why police met with defendant’s mother. MRE 105. However, we cannot conclude that the prejudicial effect of the substance of the informant’s tip far outweighed its probative value. MRE 403. Unlike the Wilkins decision, the evidence presented in this case was not limited to statements given to police by unknown witnesses who were never produced in court. Rather, three witnesses were able to identify defendant as the assail ant, and a waitress from the bar placed defendant at the scene. Admission of the evidence does not require reversal, People v Lewis, 168 Mich App 255, 266-267; 423 NW2d 637 (1988), especially where the erroneous admission of the testimony was not outcome determinative. People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999); People v Murray, 234 Mich App 46, 63-64; 593 NW2d 690 (1999).
Defendant next argues that he was denied a fair trial on the basis of the trial court’s failure to allow a live lineup. We disagree. The decision to grant the defendant’s motion for a lineup lies within the trial court’s discretion. People v Gwinn, 111 Mich App 223, 249; 314 NW2d 562 (1981). A decision constitutes an abuse of discretion when it is so grossly violative of fact and logic that it evidences perversity of will, defiance of judgment, and the exercise of passion or bias. People v Gadomski, 232 Mich App 24, 33; 592 NW2d 75 (1998). A right to a lineup arises when eyewitness identification has been shown to be a material issue and when there is a reasonable likelihood of mistaken identification that a lineup would tend to resolve. Gwinn, supra. In the present case, eyewitness identification was a material issue; however, a lineup would not have resolved any “mistaken identification.” While defendant takes issue with the identification of Webb and Amette, who witnessed the crime from a distance of thirty to fifty feet, Webster sat in the vehicle with defendant before the assault and clearly identified defendant as his assailant. Accordingly, the trial court did not abuse its discretion in denying the motion for a lineup.
Defendant next argues that the trial court erred in allowing witness Webb to identify defendant at trial because there was no independent basis for an in-court identification when Webb was tainted by the examination of a single photograph of defendant. We disagree. The trial court’s decision to admit identification evidence is reviewed for clear error. People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). In People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998), our Supreme Court held that improper suggestion in photographic identification procedures may arise when the witness is shown only one person or a group of people in which one person is singled out in some way. In the present case, the procedure itself was suggestive in that Webb was shown only one photograph of defendant. However, Officer Lucas testified that he was unable to locate a “mug shot” photograph of defendant and the only photograph he obtained was that of defendant on a boat. Accordingly, any photographic lineup would also have been impermissibly suggestive in that it would have singled out defendant shown on a boat. However, when a pretrial identification has been improperly conducted, an independent basis for any in-court identification must be established. Id. at 114-115. In the present case, Webb testified that there was an independent basis for his identification because he could not recall ever being shown a photograph of defendant by police. Rather, Webb testified that the distance, daylight, and duration surrounding the circumstances of the assault was sufficient to allow him to identify defendant, who had in Webb’s opinion, attempted to alter his appearance at the time of trial. People v Kachar, 400 Mich 78, 83; 252 NW2d 807 (1977). Accordingly, we cannot conclude that the trial court’s decision to admit identification evidence was clearly erroneous. Kurylczyk, supra.
Defendant next argues that he was denied a fair trial when the prosecutor denigrated the presumption of innocence and right to trial. We disagree. When reviewing allegations of prosecutorial misconduct, we examine the alleged misconduct in context to determine whether it denied the defendant a fair and impartial trial. People v Reid, 233 Mich App 457, 466; 592 NW2d 767 (1999). In the present case, there was no objection to the alleged improper statement. Review of unpreserved allegations of prosecutorial misconduct is foreclosed unless no curative instruction could have removed any undue prejudice to defendant or manifest injustice would result from failure to review the alleged misconduct. Id. Defendant’s contention, that the prosecutor led the jury to equate defendant with an obviously guilty person, is without merit. The prosecutor was merely questioning prospective jurors regarding their knowledge of the presumption of innocence and the right to trial.
Defendant next argues that he was denied due process of law at sentencing when the trial court refused to respond to challenges to inaccurate information contained in the presentence investigation report (psir) and refused to disclose letters addressed to the court by the victim and his family members. We disagree. Defendant has the right to the use of accurate information at sentencing, and a court must respond to allegations of inaccuracies. People v Daniels, 192 Mich App 658, 675; 482 NW2d 176 (1992). However, when the alleged inaccuracies would have no determinative effect on the sentence, the court’s failure to respond may be considered harmless error. Id. In the present case, defendant challenged the information contained in the PSIR that stated that defendant was unemployed when, in fact, he was employed as a part-time truckchiver. This alleged inaccuracy has no effect on the sentence imposed, and any failure to respond was harmless error. Defendant also asserted that the PSIR incorrectly identified a prior conviction as a felony when defendant was only convicted of a misdemeanor offense. We are not required to rescore the variables for prior record to determine if they were correctly applied unless the resulting sentence was disproportionate. People v Raby, 456 Mich 487, 498; 572 NW2d 644 (1998). Defendant does not question the proportionality of his sentence. In any event, the scoring of the prior conviction was included in PRV 10 as ten points. Assuming that defendant was only convicted of a misdemeanor offense, the removal of the ten points has no effect on the scoring of the guidelines. We are convinced, after reviewing the trial court’s reasons for the sentence imposed, that a remand on this issue would be a waste of judicial resources.
Finally, with regard to the sentencing issue, defendant contends that he was entitled to examine the letters submitted to the court by the victim and the victim’s family. Defendant concedes that there is no Michigan authority on point, but relies on United States v Hayes, 171 F3d 389 (CA 6, 1999). In Hayes, it appeared that the court had relied on victims’ letters where the sentence imposed was the maximum allowed and the effect of the letters was prominent in the trial court’s explanation of the sentence. The Hayes court held that the error, while unpreserved, required reversal where the trial court relied on ex parte communications in sentencing, but failed to provide notice and the contents of the communications to the defendant. In the present case, the trial court merely acknowledged that it had received letters from the victim and the victim’s family regarding the effect that the injuries had on the victim. There was no issue of defendant being unable to respond to ex parte communications. The trial court noted that the information was relevant for purposes of scoring Offense Variable 13, addressing psychological injury to the victim, with five points. Contrary to defense counsel's assertion, the trial court did not ask defendant to respond to the content of the letters, but, rather, asked defense counsel to respond to the scoring of this variable. Also contrary to defense counsel’s assertion, the content of the letter in dispute was disclosed. The prosecutor stated that Webster’s father had written a letter addressing the psychiatric treatment his son received and the medications that he had to take as a result of the attack. In any event, Webster appeared at sentencing and gave an oral statement acknowledging the psychological effect of the beating, which had required treatment at a psychiatric hospital. Furthermore, his medical records evi dencing the brutality of the attack and its effect were admitted at trial. Thus, the content of the disputed letter was cumulative to evidence that was presented at trial and to the oral statement by Webster at sentencing. Accordingly, the concerns expressed in Hayes, that the defendant would be unable to respond to ex parte communications, were simply not present in this case.
We also note that the Hayes court erroneously classified the letters received from victims as evidence. Hayes, supra at 393. We are confident that trial judges of this state are able to separate the evidence at trial from the subjective requests of victims or their family members as stated in letters submitted to the court. Additionally, our Legislature has determined the contents of the psir and has given victims the discretion to determine whether their victim impact statements may be included in the PSIR at the request of the victim. MCL 771.14(2)(b); MSA 28.1144(2)(b), MCL 780.764; MSA 28.1287(764). Any requirement to the contrary should be mandated by the Legislature.* *
Lastly, defendant argues that the cumulative effect of errors requires reversal. As discussed above, any errors or arguable errors were of little consequence at defendant’s trial. People v Cooper, 236 Mich App 643, 659-660; 601 NW2d 409 (1999). Thus, reversal of defendant’s conviction is not warranted on the basis of cumulative error.
Affirmed.
After affording defendant his right of allocution, the court gave the prosecutor the opportunity to address the court. The prosecutor asked whether the trial court had received a letter from Webster’s father. At that time, the trial court acknowledged receipt of the father’s letter as weE as a letter from an aunt. The trial court did not delineate the contents of these letters or indicate that the letters had any bearing on the sentencing determination. After Webster spoke regarding his psychiatric condition, the prosecutor stated that the information regarding his psychiatric hospitalization was included in the letter written by Webster’s father. At that time, the trial court addressed the psychological effect as it appEed to the guideline variables. While defendant refers to the prejudice of “letters,” there appears to be only one letter that arguably had any bearing at sentencing. Accordingly, we wiE address the specifics of that letter only.
The Hayes holding also cited two underlying federal decisions, United States v Burger, 964 F2d 1065 (CA 10, 1992), and United States v Curran, 926 F2d 59 (CA 1, 1991). In Curran, the defendant, a stockbroker, pleaded guilty of a scheme to defraud friends and clients. Before sentencing, the district court received numerous letters from victims and third parties, including the defendant’s family members. The letters were not made a part of the psir, but the district court delivered the letters to the probation officer, unbeknownst to the defendant. In sentencing the defendant, the district court referenced one of the letters and sentenced the defendant to a more severe sentence than the government recommended. Curran, supra at 60-61. Likewise in Burger, the defendant pleaded guilty of conspiracy and misuse of a line of credit. The district court received two ex parte letters from the Chairman of the fdic and another letter from the fdic. The defendant argued that the district court had to be recused because of the consideration of ex parte letters. The appellate court declined to order recusal of the district court. However, the matter was remanded because the probation department had relied solely on the letters for determining the amount of restitution. Burger, supra at 1072. The Hayes court adopted those decisions, but failed to state whether the defendant had been convicted following a jury trial or a guilty plea. In cases where the defendant pleads guilty, the danger exists that the sentencing court may rely on subjective letters in determining the appropriate sentence. However, we are confident that limitations on the sentencing court’s discretion, which include the four goals of sentencing, the principle of proportionality, and the application of sentencing guidelines coupled with the sentencing court’s knowledge that the letters are subjective opinions by the victims seeking to have the convicted punished for the harm incurred, are sufficient protections to ensure that a defendant is not sentenced in response to emotional pleas by victims. See People v Steele, 173 Mich App 502, 504; 434 NW2d 175 (1988).
While the concurring opinion concludes that there would be no harm as a result of the disclosure of letters, it appears that procedural complications will arise from the lack of regulation of the process. The sentencing court may have to hold a “presentencing” hearing or conference in order to effectuate an exchange of letters received by the court, the prosecutor, the defense attorney, and the probation officer. A deadline for receipt and exchange may have to occur when the defendant’s crime or crimes have caused harm to a substantial number of victims or invokes public outcry. Perhaps, this type of hearing could be avoided by ordering that all interested parties submit letters to the probation department before sentencing, and the probation department could incorporate the letters into the psir, a process that was ordered in Hayes, supra. However, we note that the psir follows the defendant to prison, MCL 771.14(8); MSA 28.1144(8), and may have ramifications for purposes of security classification and may be considered by parole officials at the appropriate time. To avoid any consequence as a result of letters submitted with the psir, even when the sentencing court acknowledges that the letters will not be given consideration, the defendant will seek to have letters stricken from the psir. See People v Grove, 455 Mich 439, 477; 566 NW2d 547 (1997). We also note that after receipt of the letters, the next issue becomes what measures the defendant may take to refute the content of letters. For example, in the present case, the victim’s father submitted a letter regarding the effect that the beating had on the victim. Would defendant be entitled to call his father to the stand for sworn testimony regarding the victim’s pre- and post-beating state? Alternatively, would defendant be entitled to call an expert to refute the claim that the victim’s beating caused a head injury that will affect the victim? The logical consequence of receipt of letters would be requests for evidentiary hearings to refute the allegations contained therein. Simply put, we cannot and will not impose administrative requirements that will burden sentencing courts. Defendant’s request for receipt of letters should be directed to the Legislature. | [
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Per Curiam.
Petitioner appeals from an order of the circuit court affirming the decision and conclusion of respondent’s hearing officer that respondent had acted within the scope of the rules and regulations concerning petitioner’s request for benefits from respondent. We reverse.
Respondent is a statewide agency within the Department of Education whose responsibilities include implementation of Title I of the Rehabilitation Act of 1973, 29 USC 701 et seq. Petitioner is an eligible recipient of vocational rehabilitation services under the act. Respondent had determined that petitioner could maximize his employability by pursuing postsecondary educational opportunities at Northern Michigan University. Accordingly, respondent prepared an Individualized Written Rehabilitation Program Plan, as required by 29 USC 721(9) and 722, for petitioner in 1987 and later amended it in 1988. The plan listed petitioner’s objective as acquiring work skills as an outdoor recreation specialist by receiving training at nmu. Petitioner’s attendance at nmu was to commence in August 1988 and extend through May 1991.
At issue here is a dispute concerning the amount of benefits respondent paid to petitioner, particularly with respect to an award of $600 in assistance for the fall 1990 semester, and its further decision not to grant any assistance for the winter 1991 semester. On appeal, petitioner raises a number of arguments, one of which is dispositive.
Petitioner argues that respondent’s action was based upon a policy that was not properly promulgated as a rule and that had to be properly promulgated as a rule in order to be applied to petitioner. We agree. At issue is what is known as Item 5510 in the Casework Operations Manual, which in essence imposes means testing for the payment of benefits to a recipient under the program, particularly with respect to requiring that a recipient apply for all financial aid for which the recipient is eligible through the educational institution the recipient is attending. Benefits paid by respondent are to be determined in light of the financial aid received by the recipient from the institution. Item 5510 also requires a recipient to apply for student loans in connection with obtaining benefits under the rehabilitation program.
It is undisputed that need may be considered by the state in administering the program to deter mine eligibility for benefits, but the state is not required to consider need. Rather, the federal regulations implementing the act authorize, but do not require, states to impose needs testing to determine benefits, provided that those policies are in writing and are uniformly applied. See 34 CFR 361.47. Respondent argues that it was not obligated to implement its needs test through a formal rule-making process. We disagree.
A "rule” includes any policy of general applicability that implements or applies law enforced or administered by an agency or that prescribes the organization, procedure, or practice of the agency. MCL 24.207; MSA 3.560(107). Respondent argues that Item 5510 comes within the provisions of MCL 24.2070); MSA 3.560(107)0), which excludes from the definition of a rule a decision by an agency to exercise or not exercise a permissive statutory power. We disagree.
Under 34 CFR 361.47, the decision to employ a needs test in determining eligibility for benefits is a permissive power. To that extent, we would agree with respondent that it need not promulgate a rule merely to make the decision whether to employ a needs test or not. However, at issue is not merely respondent’s decision to employ a needs test, but also the nature of the test itself. We conclude that it was necessary for respondent to promulgate a rule to establish the elements of the needs test employed.
First, while the decision to employ a needs test is discretionary under 34 CFR 361.47, the adoption of written policies implementing that test is not. 34 CFR 361.47(a)(2) requires that a state that chooses to employ a needs test must maintain written policies covering the determination of financial need. Accordingly, where a needs test is employed, the policies implementing that test are mandatory and, therefore, do not come within the exercise of discretionary statutory authority so as to remove the matter from the definition of a "rule” under the Administrative Procedures Act.
Moreover, even in the absence of the requirement under the federal regulation to maintain written policies, we believe that the elements of the needs test itself constitute a rule under MCL 24.207; MSA 3.560(107). It does not constitute the decision to exercise discretionary statutory authority under subsection j, rather it is an agency policy of general applicability implementing a law enforced or administered by the agency where the agency has chosen to implement a needs test. That is, while the agency’s decision to employ a needs test represents the discretionary exercise of statutory authority exempt from the definition of a rule under subsection j, the test itself, which is developed by the agency, is not exempt from the definition of a rule and, therefore, must be promulgated as a rule in compliance with the Administrative Procedures Act.
Accordingly, for the above reasons, we conclude that while respondent is free to adopt the needs test, the test it adopts must be promulgated as a rule under the provisions of the Administrative Procedures Act. This respondent has failed to do.
In light of our disposition of the above issue, we need not address the remaining issues.
Reversed and remanded to the hearing officer for further proceedings consistent with this opinion. We do not retain jurisdiction. Petitioner may tax costs._
For a general discussion of the need to promulgate rules, see Judge Shepherd’s dissent in Pyke v Dep’t of Social Services, 182 Mich App 619, 633-636; 453 NW2d 274 (1990). Judge Shepherd’s dissent was adopted by the majority in Palozolo v Dep’t of Social Services, 189 Mich App 530; 473 NW2d 765 (1991). | [
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Taylor, P.J.
Plaintiff appeals from a judgment in defendant’s favor following a jury trial. Defendant cross appeals, challenging the trial court’s order denying defendant attorney fees. We affirm.
This case arises from an automobile accident that occurred when Robert Eckstein, now deceased, turned left in front of plaintiff’s oncoming vehicle. Plaintiff filed this action alleging that Mr. Eckstein was negligent and that she suffered physical injury as a result of his negligence. Mr. Eckstein committed suicide after the accident for reasons apparently unrelated to the accident. Mr. Eckstein’s estate was substituted as the defendant.
Before the trial, the case was submitted to mediation. Plaintiff accepted the mediation evaluation of $15,000; defendant rejected it. Defendant then made an offer of judgment of $2,500 pursuant to MCR 2.405. Plaintiff responded with a counteroffer of $15,000. The matter proceeded to trial. At the conclusion of the trial, the jury found that Mr. Eckstein was not negligent, and the trial court entered a judgment in favor of defendant. Defendant requested attorney fees pursuant to MCR 2.405(D), which the trial court denied.
Plaintiff contends that the trial court erred in permitting the decedent’s wife, Donna Eckstein, a passenger in the vehicle being driven by Mr. Eckstein, to testify about the speed of plaintiff’s car at the time of the accident. Mrs. Eckstein testified at trial that, although she saw plaintiff’s car for only one second, she believed that plaintiff’s car was traveling at a speed of at least fifty miles an hour. We will not disturb the trial court’s decision to admit evidence unless the court abused its discretion. Williams v Coleman, 194 Mich App 606, 620; 488 NW2d 464 (1992). When reviewing a trial court’s decision to admit evidence, we do not assess the weight and value of the evidence, but only determine whether the evidence was the kind properly before the jury. Schanz v New Hampshire Ins Co, 165 Mich App 395, 405; 418 NW2d 478 (1988). With respect to testimony regarding the speed of a vehicle, the admissibility of this testimony is not contingent upon specific times and distances, and the testimony should be admitted where the jury is made aware of the witness’ opportunity to observe. Sells v Monroe Co, 158 Mich App 637, 646-647; 405 NW2d 387 (1987); Hicks v Bacon, 26 Mich App 487, 494; 182 NW2d 620 (1970). The jury was made aware of the circumstances surrounding Mrs. Eckstein’s observation, namely, that Mrs. Eckstein saw plaintiffs car for only one second. The testimony was therefore properly admitted and the weight to be given the testimony was appropriately left for the jury to determine. Sells, supra; Hicks, supra.
Plaintiff next contends that the trial court improperly instructed the jury that the decedent was presumed to have exercised due care. Plaintiff argues that, although this instruction, SJI2d 10.08, applies where a defendant is deceased and thus cannot testify, Mr. Eckstein essentially testified at trial because his deposition was read to the jury. We agree.
SJI2d 10.08 provides:
Because [name of decedent] has died and cannot testify, you may infer that [he/she] exercised ordinary care for [his/her] safety (and for the safety of others) at and before the time of the occurrence. However, you should weigh all the evidence in determining whether the decedent exercised due care.
The historical background of this instruction is that in the early days of the contributory negligence era, a plaintiff was required to demonstrate not only that the defendant’s negligence was the proximate cause of the plaintiffs injury, but also that the plaintiff had acted with due care. Because of the due-care requirement, if a plaintiff was deceased, it was difficult, and often impossible, to demonstrate that the plaintiffs conduct had met the due-care standard. Given the problem of meeting this element of the plaintiffs proofs, dismissal of the plaintiff’s claims in this circumstance would have been required. To avoid this inequity, SJI2d 10.08, instructing the jury to infer that the deceased plaintiff had exercised due care, was adopted. Johnson v White, 430 Mich 47, 58-61; 420 NW2d 87 (1988).
As the law of contributory negligence developed, plaintiffs no longer had the peculiar burden of affirmatively proving their own nonculpability, yet the instruction continued to be used and its applicability was expanded to include both parties rather than just the plaintiff. See, for example, DAIIE v Powe, 348 Mich 548, 550-551; 83 NW2d 292 (1957); Booth v Bond, 354 Mich 561; 93 NW2d 161 (1958). The rationale was that our courts desired to level the playing field where one party, because of death, did not and could not testify. Support for this view also may be found in the use notes following SJI2d 10.08. Also added as a refinement was the limitation that the party who would utilize the instruction had to have died as a result of the incident giving rise to the suit. Potts v Shepard Marine Construction Co, 151 Mich App 19, 27; 391 NW2d 357 (1986).
In light of the modern reasons for the use of the instruction, the adoption of comparative negli gence in Michigan did not seem to necessitate altering the scope of SJI2d 10.08. Our Supreme Court seemed to see it that way because it recently declined to take the opportunity to discourage the use of the instruction in these circumstances when deciding Johnson v White, supra.
With this background in mind, we see no reason to expand the scope of the instruction to cover either those who die for reasons independent of the incident, or for those parties who were deposed before their demise. In this case, because Mr. Eckstein died for reasons unrelated to the accident and his deposition was taken before the trial, there can be no justification for giving the instruction and it should not have been presented to the jury.
Although the instruction was inapplicable in this case and should not have been given, the fact that it was given does not constitute error warranting reversal in this case. Plaintiff offered evidence sufficient to rebut the presumption that the decedent was not negligent, thus the jury was free to believe that plaintiff’s version of the accident was the accurate version. Nevertheless, the jury did not find for plaintiff. The instructional error was harmless, and the verdict is not inconsistent with substantial justice and so should be sustained. Wiegerink v Mitts & Merrill, 182 Mich App 546, 548; 452 NW2d 872 (1990).
On cross appeal, defendant contends that the trial court abused its discretion in declining to award attorney fees as part of the actual costs to which defendant was entitled under the rule regarding offers of judgment, MCR 2.405(D). We disagree.
It is undisputed that defendant made an offer of settlement in the amount of $2,500; plaintiff made a counteroffer of $15,000. Defendant, of course, did not accept, so the matter was tried. The trial court exercised its discretion in deciding that an award of attorney fees to defendant would not be in the "interest of justice” pursuant to MCR 2.405(D)(3). We conclude that there was no abuse of discretion given the facts of this case. Jack Loeks Theatres, Inc v Kentwood, 189 Mich App 603, 617-618; 474 NW2d 140 (1991), modified on other grounds 439 Mich 968 (1992).
Affirmed.
Sawyer, J., concurred.
With the amendment of former Court Rule No 23, § 3a (1945), effective June 1, 1958 (see 352 Mich xiv [1958]), plaintiffs were no longer required to prove their own due care. Rather, the burden of proving contributory negligence was shifted to the defendant. Mack v Precast Industries, Inc, 369 Mich 439, 454, n 4; 120 NW2d 225 (1963) (Black, J.).
Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). | [
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Per Curiam.
In these consolidated cases, defendants appeal by leave granted from the trial court’s order denying their motions for partial summary disposition of plaintiffs claims of nuisance and trespass. Defendants contend that the trial court erred in finding that there was a dispute of fact concerning whether defendants were liable under either of these two theories of recovery. We agree.
According to the record, plaintiff purchased from the defendants an industrial solvent to use in its manufacturing process. Waste water from this process was discharged into the surrounding environment and resulted in the contamination of plaintiffs property. Plaintiff filed suit against the defendants, alleging, in part, that by manufacturing and selling the industrial solvent, the defendants created a nuisance on plaintiff’s property and also committed a trespass.
Defendants moved for partial summary disposition, arguing that they had no control over the industrial solvent after it was sold, never owned the property upon which plaintiff operated its manufacturing and waste disposal activities, and never owned any of plaintiffs stock. Consequently, defendants claimed they were not liable under the theories advanced by plaintiff. Plaintiff responded that liability could be established because the defendants participated in the creation of the nuisance by failing to warn their customers that the industrial solvent was resistant to biodegradation.
In denying defendants’ motions for partial summary disposition, the trial court decided that if "they knew of the toxic condition of the chemical, the chemical company should be held responsible for conditions the chemical has created.”
We have no quarrel with the trial court when it comes to the potential responsibility of "the chemical company.” Where we differ is in the theories of recovery available to the plaintiff. Generally, nuisance liability may be imposed where (1) the defendant has created the nuisance, (2) the defendant owned or controlled the property from which the nuisance arose, or (3) the defendant employed another to do work that he knew was likely to create a nuisance. Radloff v Michigan, 116 Mich App 745, 758; 323 NW2d 541 (1982).
If a commercial transaction is involved, control of the nuisance at the time of injury is required. Detroit Bd of Ed v Celotex (On Remand), 196 Mich App 694, 712; 493 NW2d 513 (1992). Because a seller in a commercial transaction relinquishes ownership and control of its products when they are sold, it lacks the legal right to abate whatever hazards its products may pose. Id. In such a setting, the purchaser’s proper remedies are products liability actions for negligence or breach of warranty. Id. at 712-713.
In this case, the trial court erred in denying defendants’ motions for the summary disposition of plaintiffs claims of nuisance and trespass. Plaintiffs nuisance claim cannot be sustained because there is no evidence that the defendants controlled the nuisance at the time of injury. With regard to the trespass claim, trespass is an invasion of the plaintiffs interest in land. Prosser & Keeton, Torts (5th ed), § 87, p 622. And every unauthorized entry upon the private property of another constitutes a trespass. Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916). Plaintiffs trespass claim cannot be sustained because there is no evidence of any unauthorized entry onto its land.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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