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Per Curiam.
Defendant TWIGA Limited Partnership appeals by right the trial court’s order granting summary disposition to plaintiff Lakes of the North Association on plaintiff’s claim for past due association assessments. Plaintiff cross appeals, claiming that the trial court’s finding that the association assessment was not an “easement” pursuant to MCL 211.67b; MSA 7.112(2) was erroneous. We affirm.
The parties do not dispute the facts in this case. This case involves four residential lots in the Snow-crest Heights subdivision in Antrim County that are presently owned by defendant. The four lots are part of plaintiff’s development that is a platted residential area encompassing about 10,000 acres. The development, which is managed by plaintiff, contains 8,028 lots within a number of subdivisions and approximately 3,500 acres of common property.
In 1992, the state of Michigan became the owner of the four lots as a result of a 1991 tax sale. Pursuant to MCL 211.67; MSA 7.112, the trial court entered an order of judgment in favor of the state of Michigan on each parcel because the 1988 taxes were unpaid. The order directed the sale of each parcel unless the aggregate amount was paid before the sale. Because the taxes were not paid and the lots were not bid on, the lots were bid to the state. Pursuant to MCL 211.67a(l); MSA 7.112(1)(1), within sixty days of the sale, the state treasurer conveyed title by deed to each of the four lots to the state. Title became “absolute in the state” upon the expiration of the redemption period, and “all taxes, special assessments, which [were] charged against or [were] liens upon [the lots], and other liens and encumbrances, against [the lots] of whatever kind or nature, [were] cancelled . . . .” MCL 211.67; MSA 7.112. In 1994, defendant purchased the four lots from the state.
Before being purchased by the state in 1992, all the lots in the Snowcrest subdivision were owned by a single developer. In 1972, the developer executed and recorded a declaration of restrictive covenants with the county register of deeds affecting all the lots. The declaration of restrictive covenants provided for maintenance assessments to be paid by owners of the lots. The covenant provided:
The developer being the owner of all the properties hereby covenants and each subsequent owner by acceptance of a land contract and/or a deed therefor, whether or not it shall be expressed in any such deed or contract is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges; (2) special assessments for capital improvements, such assessments to be fixed, established, and collected from time to time as hereinafter provided. The annual and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which each assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due.
As set forth in the declaration of restrictive covenants, the purpose for the assessments was to “promot[e] the recreation, health, safety and welfare of the residents in the Properties and in particular for the improvement and maintenance of properties, services, and facilities devoted to this purpose and to the use and enjoyment of the Common Properties and improvements thereon and thereto . . . .” Specifically, the annual assessments are used to pay for the maintenance of the pool, parks, equipment, and general upkeep, management, and operation of the Lakes of the North area. The declaration of restrictive covenants also provided that if a lot owner failed to pay the assessments, a lien would be placed on the prop erty and plaintiff would have the right to bring legal action against the lot owner to collect the assessments, interest, penalty fees, and costs of collecting the assessment fees.
After defendant purchased the lots in 1994, plaintiff charged defendant the annual assessments for the years thereafter. However, defendant refused to pay the assessments because it believed that the lots were no longer subject to assessment because absolute title had vested in the state pursuant to the tax sale, and, accordingly, special assessments, liens, and encumbrances against the lots were canceled, including the declaration of restrictive covenants that contained the covenant to pay maintenance assessments. In 1998, plaintiff filed this action to foreclose its lien on the four lots for the unpaid assessments as provided in the declaration of restrictive covenants. Defendant counterclaimed and sought a declaratory judgment that it owned the four lots free and clear of any covenant to pay assessments to plaintiff because of the tax sale to the state of Michigan.
Thereafter, both parties moved for summary disposition. The trial court denied defendant’s motion for summary disposition, granted summary disposition in favor of plaintiff in accordance with MCR 2.116(I)(2), and entered a judgment of no cause of action in favor of plaintiff with respect to defendant’s entire counter-complaint. The trial court rejected defendant’s arguments and found that the restrictive covenant for payment of assessments was not an “encumbrance” pursuant to MCL 211.67; MSA 7.112, and, therefore, the restrictive covenant survived the tax sale. The trial court ordered defendant to pay assessments, penalties, interest, and attorney fees and costs to plaintiff.
Defendant asserts that the trial court erroneously concluded that a covenant to pay an association assessment is not an “encumbrance” within the meaning of MCL 211.67; MSA 7.112. We disagree. This Court reviews the trial court’s grant of summary disposition de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). Further, statutory interpretation is a question of law that is reviewed de novo on appeal. Oakland Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998).
MCL 211.67; MSA 7.112 sets forth a form decree that circuit courts must substantially adopt when ordering a tax sale on real estate. The form decree for sale states, in part:
It is further ordered, adjudged and decreed that title to each parcel of land ordered in this decree to be offered for sale, and which parcel of land is bid in at such sale to the state, shall become absolute in the state of Michigan on the expiration of the period of redemption from such sale, and all taxes, special assessments, which are charged against or are liens upon such parcel, and other liens and encumbrances, against such parcel of whatever kind or nature, shall be cancelled as of such date, unless any said parcel of land shall be redeemed as provided in section 74 of Act No. 206 of the Public Acts of 1893, as amended, or unless an appeal shall have been taken as provided in said act.
In accordance with MCL 211.67; MSA 7.112, the trial court entered an order in the present case, stating that
title to each parcel of land in this judgment [shall] be offered for sale, and those parcels which are bid to the state, shall become absolute in the State of Michigan unless redeemed as provided in Section 74 PA 206 of 1893, as amended. All taxes, special assessments and other liens and encumbrances shall be canceled as of that date unless an appeal has been made as provided in this Act.
Defendant argues that a declaration of restrictive covenants, including the covenant to pay an association assessment, is an “encumbrance” within the meaning of MCL 211.67; MSA 7.112, and, accordingly, any such restrictions and covenants previously recorded against the four subject lots were canceled when title became absolute in the state following a tax sale. The Legislature did not define “encumbrance” within chapter 211, the General Property Tax Act, nor could we find any Michigan cases interpreting the term “encumbrance” in the context of MCL 211.67; MSA 7.112.
Defendant urges this Court to construe the term “encumbrance” broadly by citing Madhavan v Sucher, 105 Mich App 284; 306 NW2d 481 (1981), which defined “encumbrance” as “anything which constitutes a burden upon the title, such as a right-of-way, a condition which may work a forfeiture of the estate, a right to take off timber, or a right of dower.” Id. at 288; see, also, Post v Campau, 42 Mich 90, 94-95; 3 NW 272 (1879). Although it is true that Michigan has expansively defined the term “encumbrance” as illustrated by Madhavan and Post, other Michigan cases have limited the scope of the term. For example, in Butcher v Burton Abstract & Title Co, 52 Mich App 98, 101; 216 NW2d 434 (1974), this Court stated: “Granting that the broadest definition of the word “encumbrance” might include prospective charges, the general rule is that a special assessment does not become an encumbrance until it has achieved lien status.” See, also, Municipal Investors Ass’n v City of Birmingham, 298 Mich 314, 328; 299 NW 90 (1941), aff’d 316 US 153; 62 S Ct 975; 86 L Ed 1341 (1942). Further, this Court has held that ad valorem taxes not yet due were not encumbrances within the meaning of a title insurance policy, which provided that the “Title Company will . . . defend the insured in all actions or proceedings founded on a claim of . . . incumbrance prior in date to this policy . . . .” Butcher, supra at 99, 101-102.
On the basis of the above cases, we conclude that, because reasonable minds could differ regarding the scope of the term “encumbrance” as used in MCL 211.67; MSA 7.112, the statute is ambiguous and judicial construction is appropriate. Adrian School Dist v Michigan Public School Employees’ Retirement System, 458 Mich 326, 332; 582 NW2d 767 (1998). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Id. When the language of the statute is of doubtful meaning, as in the present case, the Court must examine the object of the statute and apply a reasonable construction that best accomplishes the statute’s purpose. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). In the present case, the purpose for canceling past due taxes, assessments, and liens against foreclosed property is “to attract prospective buyers and ultimately restore the property to the tax rolls.” Wayne Co Chief Executive v Mayor of Detroit, 211 Mich App 243, 247; 535 NW2d 199 (1995).
Defendant asserts that land with a restrictive covenant would be more difficult to restore to the tax roll; consequently, a holding that such covenants survive a tax sale would defeat the object of the statute. We disagree. Restrictive covenants, especially those pertaining to residential use, enhance and preserve the value of real estate. Bellarmine Hills Ass’n v Residential Systems Co, 84 Mich App 554, 559; 269 NW2d 673 (1978). Preservation of property value will facilitate, not impede, the objective of the tax statute to restore the property to the tax rolls. Destruction of such covenants following a tax sale reduces the value of the property, and perhaps the other properties within the community, because landowners would no longer be able to preserve its planned character. Planned unit developments are a modem trend in residential living. Deed restrictions and covenants are vital to the existence and viability of such communities, and “if clearly established by proper instruments, are favored by definite public policy.” Oosterhouse v Brummel, 343 Mich 283, 287; 72 NW2d 6 (1955); see, also, City of Livonia v Dep’t of Social Services, 423 Mich 466, 525; 378 NW2d 402 (1985) (“ [restrictions for residence purposes are particularly favored by public policy and are valuable property rights”). Because public policy favors restrictions and covenants regarding residential use, we believe that the Legislature did not intend to cancel such restrictions and covenants in the event of a tax sale. We agree with the trial court in this case that the term “encumbrance” within the meaning of MCL 211.67; MSA 7.112 “applies to things that are actually presently existing against the title to the property.” The parties agree that a lien for past due assessments arising before a tax sale does not survive a tax sale. However, plaintiff is only attempting to collect assess mente due for the periods after defendant became the owner of the four lots.
Further, our conclusion that restrictive covenants, such as the one at issue in this case to pay association assessments, are not encumbrances within the meaning of MCL 211.67; MSA 7.112 is supported by the Legislature’s recent and broad amendments of the General Property Tax Act in 1999 PA 123. MCL 211.78k; MSA 7.124(11), which became effective on October 1, 1999, was drafted to replace MCL 211.67; MSA 7.112 (repealed effective December 31, 2003). MCL 211.78k(5)(b); MSA 7.124(H)(5)(b) states that “fee simple title to property foreclosed by the judgment will vest absolutely in the foreclosing governmental unit. . . .” Moreover, MCL 211.78k(5)(e); MSA 7.124(H)(5)(e) states that “all existing recorded and unrecorded interests in that property are extinguished, except a visible or recorded easement or right-of-way, private deed restrictions, restrictions imposed pursuant to the natural resources and environmental act ... , or other governmental interests.” (Emphasis added.) Restrictive covenants and covenants to pay association assessment are private deed restrictions, and as evidenced by MCL 211.78k(5)(e); MSA 7.124(H)(5)(e), the Legislature did not intend such covenants to be canceled by a tax sale. Accordingly, the trial court did not err in granting summary disposition to plaintiff after it properly concluded that a covenant to pay prospective association assessments is not an encumbrance within the meaning of MCL 211.67; MSA 7.112.
In light of our conclusion that plaintiff’s right to collect prospective assessment fees survives a tax sale, it is unnecessary for this Court to address whether a covenant to pay association assessment fees is an “easement” within the meaning of MCL 211.67b; MSA 7.112(2) and whether plaintiff stated a valid defense to defendant’s counterclaim.
We affirm. | [
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Murphy, P.J.
Plaintiff appeals from the order of the Court of Claims granting defendant’s request for dismissal pursuant to MCR 2.116(C)(10) and MCR 2.116(I)(2) of plaintiff’s challenge to a use tax assessment. We affirm.
Plaintiff provides oil and gas extraction services to owners and operators of oil and gas wells in mid-Michigan. One service that plaintiff provides is the removal of sediment that inhibits the flow of oil or gas in well tubing and piping. For the period of November 1978 through March 1982, plaintiff was assessed use taxes on equipment and vehicles that plaintiff purchased to perform this service. Plaintiff paid the assessed taxes, but protested to defendant that the equipment used in its oil and gas production services was exempt from taxation under the "industrial processing” exemption to the Use Tax Act, MCL 205.94(g); MSA 7.555(4)(g). Plaintiff therefore sought a refund of a portion of the use taxes from defendant in the amount of $67,655. Defendant denied plaintiff’s request for a refund and plaintiff filed its complaint in the Court of Claims, which subsequently dismissed the action pursuant to defendant’s request.
Plaintiff contends that the Court of Claims erred in holding that the industrial processing exemption of MCL 205.94(g); MSA 7.555(4)(g) does not apply to equipment and vehicles purchased by plaintiff for the purpose of cleaning and unclogging the wells of oil and gas producers. We conclude that the Court of Claims accurately interpreted the exemption provided by MCL 205.94(g); MSA 7.555(4)(g) at the time applicable to this case.
In Michigan, a four percent use tax is imposed upon the use, storage, or consumption of tangible personal property. MCL 205.93; MSA 7.555(3). At the time relevant to this case, MCL 205.94(g); MSA 7.555(4)(g) exempted from use taxation property sold to a person for use or consumption in industrial processing. Earlier cases construing this section broadly defined the term "industrial processing” for purposes of the exemption to permit any person to take advantage of the exemption if the person provided a service essential to the industrial process of a manufacturer or a producer. See Minnaert v Dep’t of Revenue, 366 Mich 117; 113 NW2d 868 (1962); Int’l Research & Development Corp v Dep’t of Revenue, 25 Mich App 8, 12-13; 181 NW2d 53 (1970). The amendment of this section by 1970 PA 15 more narrowly defined the term, however, to explicitly exclude "services performed upon property owned by others where the services do not transform, alter, or modify the property so as to place it in a different form, composition or character.” The amendment did not make an exception for those services that are "absolutely essential” to the industrial process of a manufacturer or producer.
Our goal when interpreting a statute is to discern and give effect to the intent of the Legislature. Great Lakes Sales, Inc v State Tax Comm, 194 Mich App 271, 275; 486 NW2d 367 (1992). We presume that the Legislature intended the meaning that it plainly expressed in the statute. Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744; 453 NW2d 301 (1990). We also presume that a change in a statutory phrase reflects a change in meaning. In re Childress Trust, 194 Mich App 319, 326; 486 NW2d 141 (1992). Further, if the meaning of the statutory language is clear, then judicial construction of the language is not necessary or permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). When amending the statutory language of section 4(g), the Legislature had the opportunity to follow the courts’ previous definition of "industrial processing” and did not do so, choosing instead to more narrowly define the term. We can only conclude that this was a conscious choice by the Legislature. Therefore, as the Court of Claims reasoned in its opinion, it is no longer pertinent that plaintiff can prove that its services are essential to the industrial process of its customers. Rather plaintiff must prove that its services transform, alter, or modify the property so as to place it in a different form, composition, or character.
Plaintiff, as the party asserting the right to a tax exemption, had the burden of proving entitlement to that exemption. Edison v Dep’t of Revenue, 362 Mich 158, 162; 106 NW2d 802 (1961); Tercheck v Dep’t of Treasury, 171 Mich App 508, 510; 431 NW2d 208 (1988). Tax exemption statutes are strictly construed in favor of the government. Great Lakes Sales, Inc, supra, 276. In this case, plaintiff failed to prove that the use of its equipment to clean and unclog oil wells is a service that transforms, alters, or modifies the property so as to place it in a different form, composition, or character.
With respect to the holding of the Court of Claims that the exemption does not apply to plaintiff’s vehicles, plaintiff, in its brief on appeal, clarifies that it did not allege before the Court of Claims that the mobile equipment being taxed was exempt merely because it was not licensed and titled for use on the public highways, but that the equipment was exempt by virtue of being used in industrial processing. As discussed above, however, plaintiff failed to prove that its equipment is used in industrial processing. We also find no merit to plaintiff’s equal protection challenge to the application of the exemption.
Affirmed.
Michael J. Kelly, J., concurred. | [
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Wahls, J.
Plaintiff originally filed this medical malpractice action in the Wayne Circuit Court. On defendant’s motion, the trial court, on the basis of a signed arbitration agreement form, ordered the case to arbitration. After an arbitration award in plaintiff’s favor, the trial court entered a judgment in the amount of $278,497.80 against defendant. Plaintiff now appeals as of right from the trial court’s decision to enforce the arbitration agreement and from the judgment entered on the arbitration award. Defendant cross appeals from the judgment. We reverse and remand for a trial.
Plaintiff argues that the trial court erred in enforcing an arbitration agreement between plaintiffs decedent and defendant. We agree. Because of the unique circumstances of this case, a detailed review of the facts is necessary.
On January 10, 1991, plaintiffs decedent, Deborah Phillips, had a preoperative meeting with her doctor, Saeed Saleh, regarding a hysterectomy. At that time, she signed an arbitration agreement form (“the January 10 form”), which required her to arbitrate any claims against defendant, its employees, and its independent staff doctors and consultants arising out of “this hospital stay.” Phillips was not admitted to the hospital on January 10, 1991, and there is nothing on the face of the form identifying what “hospital stay” it refers to. However, there was unrebutted evidence that Phillips and Dr. Saleh both understood the agreement to apply to the upcoming hospital stay relating to Phillips’ hysterectomy. On January 11, 1991, Phillips visited the hospital for preoperative tests, but she apparently was not “admitted” under the hospital’s definition of that term.
On January 14, 1991, Phillips was admitted to the hospital for her hysterectomy. At that time, she signed another arbitration agreement form (“the January 14 form”), which was essentially identical to the January 10 form. Phillips underwent the operation, but developed complications during her recovery and died on February 21, 1991, never having left the hospital. On March 7, 1991, plaintiff, Phillips’ sister, was appointed personal representative of her estate. In August or September of 1991, plaintiff’s counsel was provided with copies of Phillips’ medical records, which included a copy of the January 10 form, but appar ently did not include a copy of the January 14 form. Plaintiff filed the current suit in March 1993. During discovery, plaintiff was provided with a copy of the January 14 form. Plaintiff then attempted to revoke “any Arbitration Agreements signed by [Phillips] during her hospitalization at Grace Hospital of January 14, 1991.” The trial court found plaintiff’s revocation valid with respect to the January 14 form, but eventually held that plaintiff had never revoked the January 10 form, and ordered arbitration on that basis.
At the time of Phillips’ hospitalization, the medical malpractice arbitration act (MMAA), 1975 PA 140, MCL 600.5040 et seq.; MSA 27A.5040 et seq., governed the arbitration agreement in this case. The act provided, inter alia:
The agreement to arbitrate shall provide that the person receiving health care or treatment or his legal representative, but not the hospital, may revoke the agreement within 60 days after discharge from the hospital by notifying the hospital in writing. [MCL 600.5042(3); MSA 27A.5042(3).]
The statute did not define “discharge.” This presents an obvious problem in a case where the patient dies, because the patient is unable to exercise the right to revoke the agreement. Another panel of this Court addressed this situation in DiPonio v Henry Ford Hosp, 109 Mich App 243; 311 NW2d 754 (1981). The panel there stated:
A review of the statute clearly indicates that the 60-day revocation period is intended to provide a grace period in order to assure that there is an intentional relinquishment of the right to a trial in a court of law as well as to provide a limitation period in order to afford a reasonable time within which revocation must be made. Neither of these purposes are furthered by allowing the 60 days to run regardless of whether there is any individual with the legal capacity to make such legal determinations as in the instant case where the decedent died prior to his discharge. Thus, we reject the simplistic argument that decedent’s death is to be equated with discharge.
. .. [D]eath creates a disability which is not removed until a personal representative is appointed. Therefore, we conclude that the 60-day revocation period is tolled until a legal representative is appointed and vested with the authority to revoke or ratify the arbitration agreement. [Id. at 250-252.]
The panel in DiPonio also suggested that the sixty-day revocation period should be tolled until the personal representative discovers or should have discovered the existence of the arbitration agreement. Id. at 253.
Although we are not bound by the decision in DiPonio, we find its reasoning persuasive. In particular, we agree that the sixty-day revocation period after discharge was intended to give patients a grace period to ensure that their decision was intentional. Indeed, the fact that the grace period does not begin to run until discharge means that the patient is given the opportunity to reevaluate a decision to arbitrate in light of the patient’s treatment dining that particular hospital stay. A patient who dies in the hospital should not lose the right to revoke an arbitration agreement. The only way to give effect to a deceased patient’s right to revoke is to give the personal representative the same sixty-day grace period to which the patient would have been entitled had the patient lived. The difficulty comes in determining when the sixty-day period should begin to run.
The panel in DiPonio analogized the sixty-day grace period for revocation of arbitration agreements to the statute of limitation in a medical malpractice action. That panel then applied a “discovery” tolling provision similar to that found in MCL 600.5838(2); MSA 27A.5838(2) to the right to revoke an arbitration agreement. DiPonio, supra at 250-253. We believe that this analogy and application were essentially appropriate, and we adopt the analysis in DiPonio as our own.
Before we can apply the rule articulated in DiPonio to the current case, we must clarify the parties’ contractual status based on the two separate arbitration agreement forms at issue. The parties and the trial court treated the two different forms as two different agreements. However, a contract or agreement is not equivalent to the piece of paper it is written on. That is, the paper evidences the agreement, but the agreement exists separately from the piece of paper. Here, the two forms contain identical terms, involve the same parties, and, on the basis of the trial court’s findings of fact, apply to the exact same subject matter. Under these circumstances, it is clear that the parties had only one agreement, which was evidenced by two different, pieces of paper. Clearly, the right to revoke under MCL 600.5042(3); MSA 27A.5042(3) applies to the agreement itself, not the pieces of paper evidencing the agreement.
Applying DiPonio to this factual situation, the crucial question becomes: When did plaintiff discover, or when should she have discovered, the existence of the arbitration agreement? The trial court concluded that plaintiff should have discovered and revoked the arbitration agreement when her attorney saw the January 10 form in Phillips’ medical records. We disagree. Before plaintiff filed suit, the January 10 form was the only evidence she had of the arbitration agreement. We conclude that this evidence alone was insufficient to permit a finding that plaintiff should have discovered the arbitration agreement. There is no information on the face of the January 10 form regarding what hospital stay it applies to. The form simply says: “This agreement applies to my care during this hospital stay and/or emergency room visit.” Phillips was not admitted to the hospital on January 10, 1991. Where the form contains no other information and Phillips was neither in the hospital nor admitted to the hospital on the date it was signed, plaintiff had no way of knowing that the form constituted an agreement regarding Phillips’ hospital stay beginning on January 14, 1991. Clearly, a personal representative should not be required to guess which forms applied to the hospital stay at issue, nor should she be required to revoke all arbitration agreements in order to revoke the relevant one. Thus, the sixty-day period should not begin to run until the personal representative discovers or should have discovered that an applicable arbitration agreement existed.
In this case, plaintiff’s attorney testified that she reviewed Phillips’ medical records and determined that the January 10 form did not apply to the January 14, 1991, admission. Her reasoning involved the fact that there was no patient stamp on the form and the fact that the form was found among hospital paperwork regarding Phillips’ hospital visit on January 11, 1991. The trial court eventually concluded that the January 10, 1991, form did apply to the January 14, 1991, admission. However, this finding was based on information not available to plaintiff’s attorney before the current suit was filed, namely, the testimony of Dr. Saleh and other hospital personnel. The fact that plaintiff’s attorney eventually proved to be wrong in her conclusion regarding the January 10 form has no bearing on the question whether she should have discovered the existence of an arbitration agreement. On the basis of the information she had, we believe that plaintiff’s attorney’s conclusion was reasonable; until she heard Dr. Saleh’s testimony, she had no way of discovering that the January 10 form applied to the January 14 admission. Under these circumstances, it cannot be said that plaintiff “should have discovered” the existence of an applica ble arbitration agreement when her attorney saw the January 10 form.
We conclude that plaintiff’s attorney did not have sufficient information with which to discover the arbitration agreement until after the current suit was filed. As a previous panel of this Court has held, the filing of a lawsuit implicitly revokes an applicable arbitration agreement. DiPonio, supra at 252; Amwake v Mercy-Memorial Hosp, 92 Mich App 546, 552-553; 285 NW2d 369 (1979). Thus, revocation in this case was timely, and the trial court erred in ordering arbitration.
In light of our resolution of this issue, we need not address the additional issues raised by the parties on appeal and cross appeal. The trial court’s order sending this case to arbitration and the judgment entered on the arbitration award are reversed. This matter is remanded for a trial.
The mmaa was repealed by 1993 PA 78.
This is especially true where the patient’s death may be due to the hospital’s negligence.
MCL 600.5838(2); MSA 27A.5838(2) applies to malpractice claims and states, in part:
[A]n action involving a claim based on malpractice may be commenced at any time -within the applicable period prescribed [by statute], or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later.
To the extent that we are trying to put the personal representative in the same position as the patient, we recognize that the adoption of this “discovery” provision is a necessarily imperfect solution: A patient who signs an arbitration agreement form, and who does not die while in the hospital, is presumably aware of the agreement’s existence when discharged. The personal representative, on the other hand, does not necessarily have any independent knowledge of the agreement. Thus, where the personal representative should have discovered the existence of the agreement, but has not, the sixty-day period begins to run before the personal representative is actually aware of the agreement. However, we believe that a “discovers or should have discovered” rule strikes the appropriate balance between the legislative intent to allow a grace period for revocation and the legislative intent to provide a period of limitation. See DiPonio, supra at 250-251.
For example, at an evidentiary hearing defendant argued that plaintiff “never undertook to revoke this/orm.” (Emphasis added.)
We note that this result follows only where the parties, the terms, and the subject matter of the two forms are identical. If the parties on each form were different, two different agreements would exist. If the subject matter on the forms were different, as where the forms pertained to two different hospital stays, there would be two agreements. If the terms on the two forms were different, but the parties and subject matter were the same, there would be two agreements, but the second agreement would likely be considered a modification, or an implicit revocation, of the first.
The January 14 form, as well as two other arbitration forms found in Phillips’ medical file, had a patient stamp on their face that gave additional information. That information included, among other things, Phillips’ name, social security number, sex, date of birth, her physician’s name, and, most importantly, a date of admission.
There were a number of other arbitration agreement forms in Phillips’ medical records. One of those forms, dated October 7, 1987, contains no more information than the form dated January 10, 1991. The only significant difference between the forms is the date. Presumably, the form signed in 1987 applied to some earlier hospital stay, but, absent testimony from someone who was there when the form was signed, there is no way to know for sure. The existence of such a form highlights the fact that plaintiff’s attorney had to rely on the date of the form alone in determining which hospital stay it applied to.
Obviously, a patient who has had several hospital stays and who has entered into corresponding arbitration agreements may elect to revoke some of those agreements and enforce the others. For example, in reviewing Phillips’ medical records, we discovered five different arbitration forms. We see no reason why plaintiff should have been required to revoke all agreements corresponding to those forms.
This testimony involved the circumstances surrounding the signing of the form, and the hospital’s general policy regarding admissions.
For instance, Dr. Saleh could just as well have testified that Phillips’ preoperative tests on January 11 involved minor “out-patient surgery” to which the agreement was intended to apply. In addition, the agreement could have applied to a previous hospital stay. Harte v Sinai Hosp, 144 Mich App 659, 665; 375 NW2d 782 (1985), rejected in part on other grounds in Villarreal v Chun, 199 Mich App 120, 122; 501 NW2d 227 (1993). Thus, we are not persuaded by defendant’s argument that plaintiff should have known that the January 10 form applied to Phillips’ next admission. | [
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Per Curiam.
Defendant pleaded guilty of violating probation on his underlying conviction of attempted disarming of a police officer, MCL 750.92; MSA 28.287 and MCL 750.479b; MSA 28.747(2), and was sentenced to thirty to sixty months’ imprisonment. He appeals as of right. We affirm.
Defendant originally pleaded no contest to attempted disarming of a police officer, resisting and obstructing a police officer, MCL 750.479; MSA 28.747, and two counts of domestic violence, MCL 750.81a(2); MSA 28.276(1)(2). He was sentenced to concurrent terms of five years’ probation for the convictions of attempted disarming of a police officer and resisting and obstructing a police officer and ninety-three days in jail for the domestic violence convictions. One of the conditions of his probation was that the first year of probation was to be served in the county jail. He subsequently violated his probation by failing to report to the probation department, failing to report a change of address, and driving impaired.
In this appeal, defendant has presented us with an issue of first impression. Defendant argues that he should be discharged from the conviction of attempted disarming of a police officer because the attempt statute allows for only two alternative sentences, either up to five years in prison or up to one year in jail. Defendant, therefore, contends that a probationary sentence is not authorized and, because he served a year in jail, he has completed one of the alternative sentences allowed under the attempt statute. We disagree.
In construing a statute, our primary obligation is to determine and give effect to the intent of the Legislature. People v Burwick, 450 Mich 281, 287; 537 NW2d 813 (1995). A statute must be construed so as to give full effect to all of its provisions. Drouillard v Stroh Brewery Co, 449 Mich 293, 302; 536 NW2d 530 (1995). If the language of the statute is unambiguous, judicial construction is not required or permitted, and the courts must apply the statute as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995).
The penalty for disarming a police officer is a maximum of ten years’ imprisonment. MCL 750.479b(2); MSA 28.747(2)(2). Therefore, defendant’s attempt conviction results in the following statutory punishment:
If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year. [MCL 750.92(2); MSA 28.287(2).]
Under MCL 771.1(1); MSA 28.1131(1), the trial court has the discretion of imposing a term of probation for all felonies except murder, treason, criminal sexual conduct in the first or third degree, robbery while armed, and certain major controlled substance offenses. We note that the Legislature did not include the attempt statute in the list of felonies for which a defendant could not be given probation. Therefore, according to the unambiguous language of the probation statute, the Legislature evidenced an intent to include probation as another alternative sentence under the attempt statute. A sentence of probation is an alternative to confining a defendant in jail or prison and is granted as a matter of grace in lieu of incarceration. People v Johnson, 210 Mich App 630, 633; 534 NW2d 255 (1995). As a condition of probation, the trial court may order the defendant imprisoned in the county jail for not more than twelve months. MCL 771.3(2)(a); MSA 28.1133(2)(a).
In the present case, the trial court was faced with three, not two, alternative sentences under the attempt statute and the probation statute. It could have sentenced defendant to up to five years in prison, up to one year in jail, or a term of probation. It chose the last option. The one-year jail sentence served by defendant was a condition of probation and not the sentence imposed. The sentence imposed was five years’ probation. Because defendant served the one year in jail as a condition of probation and not as a sentence, he is not entitled to discharge.
Affirmed. | [
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Per Curiam.
This case returns to this Court after remand and represents the latest chapter in the continuing saga of the Elks’ attempts to prohibit female members. The underlying issues involve § 302 of the Civil Rights Act, MCL 37.2302; MSA 3.548(302), which prohibits the denial of access to, and enjoyment of, services provided by places of public accommodation and public service because of gender. This case also raises issues involving attorney fees.
In Docket No. 185598, defendant, the Elks, appeals as of right and plaintiff, Sharon Sehellenberg, cross appeals from the order of May 2, 1995, which ordered defendant to accept plaintiff as a member and afford to her full and equal enjoyment of the goods, services, privileges, and accommodations offered by the Elks to its members. We affirm.
In Docket No. 186646, defendant appeals as of right and plaintiff cross appeals from the order of May 25, 1995, which granted plaintiff’s renewed motion to determine the scope of recoverable attorney fees, and the order of June 20, 1995, which modified the May 25, 1995, order. These orders, after modification, provided that plaintiff was ninety percent successful on her appeal and ordered defendant to pay plaintiff’s reasonable attorney fees and costs in the amount of $25,714 for the period from December 14, 1989, until February 4, 1993, plus statutory interest, pursuant to MCL 600.6013; MSA 27A.6013, to run from March 3, 1993. We affirm.
In Docket No. 191951, defendant appeals as of right and plaintiff cross appeals from the order of December 22, 1995, for payment of attorney fees, which provided that (1) defendant shall pay plaintiff $26,424 for appellate attorney fees and costs for the period from February 5, 1993, until June 13, 1994, (2) plaintiffs award of appellate attorney fees incurred from February 5, 1993, until June 13, 1994, shall be reduced by ten percent, (3) defendant shall pay plaintiff a twenty-five percent enhancement on the appellate attorney fees incurred from February 5, 1993, until June 13, 1994, (4) defendant shall pay plaintiff $85,576 for postremand attorney fees and costs from June 14, 1994, until July 19, 1995, and (5) defendant shall pay interest on the entire award, from and after July 25, 1995, at a rate equal to the percentage rise in the consumer price index, all cities average, compounded annually, based upon the April-April indices. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
STATEMENT OF FACTS FOR DOCKET NO. 185598
The underlying facts pertinent to the issues raised in Docket No. 185598 are set forth in Schellenberg v Rochester Michigan Lodge No 2225, unpublished opinion per curiam of the Court of Appeals, decided March 9, 1993 (Docket Nos. 123738, 131716):
In 1988, plaintiff applied for membership in defendant organization. Her application was rejected because of her gender. Plaintiff instituted this action, claiming she was denied the full and equal enjoyment of the services of a place of public accommodation or public service on the basis of gender in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Defendant defended its actions, claiming that it was a private club exempt from the act. MCL 37.2303; MSA 3.548(303).
The case was submitted to the trial court for a judgment on stipulated facts pursuant to MCR 2.116(A). In a November 15, 1989, opinion and order, the trial court found defendant’s gender-based rejection of plaintiff’s application violative of the act. Defendant was ordered to reconsider plaintiff’s application without consideration of gender.
Defendant appealed. This Court found that defendant was subject to § 302 of the Civil Rights Act, MCL 37.2302; MSA 3.548(302), because it was a place of public accommodation and public service and lacked the selectivity necessary to be considered a private club exempt from the act. The Court affirmed the trial court’s determination that defendant was subject to article three of the act. Moreover, the Court concluded that defendant was not a private club exempt from the act pursuant to § 303. The trial court’s order that defendant reconsider plaintiff’s application without consideration of gender was affirmed.
The matter was remanded to the trial court. On June 13, 1994, seventy-one members of the Elks showed up to vote on plaintiff’s application for membership. Fifty-eight voted against membership for plaintiff and thirteen voted for plaintiff. The members also voted on seven male applicants that evening. All were voted in as new members.
On June 24, 1994, plaintiff requested equitable relief. She asked the trial court to order defendant to accept her as a member with full and equal enjoy ment of the services, facilities, privileges, and advantages of the club and that the Elks and its members be permanently enjoined from denying her the full and equal enjoyment of the club as long as she continued to pay her dues. Plaintiff also requested attorney fees under the Civil Rights Act and that defendant be held in contempt of court if it refused to comply with the order.
Defendant informed the court that immediately before the vote on June 13th, fifty-eight Elks members signed an affirmation/oath that they would not vote on the basis of gender. Defendant requested an evidentiary hearing. The court held that plaintiff had established a prima facie case and the burden shifted to defendant to establish a legitimate nondiscriminatory reason why its members denied membership to plaintiff.
Thirty-one of the Elks members who voted against plaintiff’s application testified at the evidentiary hearing. Following the testimony and arguments by the parties, in a written opinion entered on April 19, 1995, the court found in plaintiff’s favor. An order reflecting the court’s opinion was entered on May 2, 1995.
In its opinion, the court held that the evidence clearly established plaintiff’s prima facie case that she was treated differently from any man. The court noted that “[M]en who are otherwise qualified are admitted routinely, [but] [plaintiffs application was overwhelmingly rejected by men who did not know her.” The court further determined that defendant’s proffered legitimate reason for the denial of plaintiff’s membership, that plaintiff intended to use the club for business purposes, was a pretext.
Defendant appealed on May 5, 1995. This Court granted a stay of the order on June 12, 1995. Defendant raises several issues on appeal from the trial court’s opinion.
i
Defendant claims that the trial court violated Const 1963, art 2, § 4 when it required the Elks to reveal how its members voted. Defendant contends that the Michigan Constitution guarantees the secrecy of the ballot even with respect to a private institution. We disagree.
Although defendant referred to this issue at two hearings, it was never formally brought before the trial court as an issue on which the court should rule, and the trial court never rendered an opinion with regard to this question. An issue not addressed by the trial court is not preserved for appeal. Federated Publications, Inc v Michigan State Univ Bd of Trustees, 221 Mich App 103, 119; 561 NW2d 433 (1997). An exception to this rule applies when the issue involves constitutional rights. People v Grant, 445 Mich 535, 546-547; 520 NW2d 123 (1994). Accordingly, the Court may address this issue.
Questions of law are subject to review de novo. Bieszck v Avis Rent-A-Car System, Inc, 224 Mich App 295, 297; 568 NW2d 401 (1997). A new trial is appropriate when an error of law has occurred in the proceedings. Id.
Defendant relies on Belcher v Ann Arbor Mayor, 402 Mich 132, 134; 262 NW2d 1 (1978). In Belcher, the mayor won the mayoral election by one vote. The plaintiff alleged illegal votes were cast because twenty of the voters did not live within the city and therefore were unqualified to vote, even though properly registered. Id. at 133. It was discovered that seventeen voters had mistakenly been registered in Ann Arbor and had voted in good faith. The trial court permitted the plaintiff to ask each illegal voter for whom the voter had voted. Id. Two voters refused to answer on the ground that they had a legal right not to reveal for whom they had voted. They were held in contempt. This Court denied leave, and the Supreme Court granted the motion for immediate consideration. The Court held that “a citizen’s right to a secret ballot in all elections as guaranteed by Const 1963, art 2, § 4, cannot be so abrogated in the absence of a showing that the voter acted fraudulently.” (Emphasis added.) Id. at 134.
Defendant concedes that Belcher involved a political election, but argues that sound public policy dictates the same protection should apply in a secret ballot election in a private setting. We disagree.
This is an issue of first impression. We hold that Const 1963, art 2, § 4 does not protect the secrecy of the ballot at an election held in a nongovernmental organization. Const 1963, art 2, § 4, deals with governmental elections, not with private or organizational elections. Art 2, § 4, addresses the right of the Legislature to promulgate laws and define terms regarding governmental elections, establishing the qualifications of electors, the place and manner of elections, the time of elections, and other special provisions. Section 4 of article 2, upon which defendant relies, states:
The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in the constitution or in the constitu tion and laws of the United States. 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. No law shall be enacted which permits a candidate in any partisan primary or partisan election to have a ballot designation except when required for identification of candidates for the same office who had the same or similar surnames. (Emphasis added.)
This provision gives to the Legislature the responsibility to enact laws that preserve the secrecy of the ballot in governmental elections. It does not guarantee the secrecy of the ballot to a voter in a nongovernmental election.
We hold that the type of elections conducted by the Elks, which occur on a random basis whenever there are several applicants for membership and consist of placing black or white balls in boxes, is neither included by the Michigan Constitution among those elections the Legislature is empowered to regulate nor entitled to the protections expressed there. The Elks, in its membership elections, does not require its members to be registered voters, nor does it follow any of the state laws regarding voting. Voting on club membership cannot be compared with voting for government officials. The membership of an organization may determine to have private balloting and may implement a voting system that assures privacy within the organization, but the constitution does not require courts to honor that secrecy when there are allegations that the process promotes illegal discrimination. The Elks is not a governmental organization. It is a place of public accommodation. Its members have no constitutional right to refuse to disclose how they voted or why they voted against plaintiff.
n
Defendant claims that plaintiff did not prove that she would have been a member but for her sex because even if all the witnesses were lying, she still would not have received the required number of affirmative votes. Defendant presents a mathematical formula that it contends must be used to determine whether plaintiff would have received a sufficient number of affirmative votes.
Appellate courts review questions of law for error. People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991). Questions of law are subject to review de novo. Bieszck, supra at 297. A new trial is appropriate when an error of law has occurred in the proceedings. Id.
In its opinion, the trial court held, in pertinent part:
Counsel for both parties argued at length regarding the tallying of individual votes to determine whether the defendant discriminated against the plaintiff. There is no precedent for this kind of vote counting analysis advocated by either party. Plaintiff was not obligated to show that discrimination was the exclusive reason for denying her membership. Jenkins v American Red Cross, 141 Mich App 785, 794 [369 NW2d 223] (1985). Plaintiff may recover if sex discrimination played a significant role in the decision. Pomranky v Zack Co, 159 Mich App 338, 344 [405 NW2d 881] (1987). “Discrimination, whether based on race, religion, sex or age, cannot be tolerated in a free society regardless of whether the objective sought thereby could be partially justified but [sic] some other, legitimate reasons.” Id., citing Gallaway v Chrysler Corp, 105 Mich App 1, 6 [306 NW2d 368] (1981). Regardless of the number of tainted votes, plaintiff has shown that discrimination played a significant role in the decision to discriminate against her. (Emphasis added.)
This Court concludes that the trial court did not commit an error of law. In Clarke v K Mart Corp, 197 Mich App 541, 545; 495 NW2d 820 (1992), the Court explained the test to be used for an alleged violation of § 302 of the Civil Rights Act, which prohibits discrimination in a place of public accommodation:
We believe that the appropriate test is the same as that used under other sections of the Civil Eights Act. Plaintiff must first show either disparate treatment or intentional discrimination; if the plaintiff does so, defendant must establish a legitimate reason for its actions; if the defendant does so, plaintiff must then show that the reason proffered are [sic] mere pretext by showing that they lack credibility or that a discriminatory motive was a more likely reason for the action.
We find that the trial court did not err in finding there is no precedent for defendant’s proffered vote-counting analysis. Clarke established that the burden-shifting test used under other sections of the Civil Rights Act is appropriate under § 302. The fact that the discrimination in this case was evidenced by a vote of members of an organization is not sufficient reason to formulate a new test.
m
Defendant claims that plaintiff failed to establish a prima facie case of unlawful sex discrimination. We disagree. A prima facie case of intentional sex discrimination can be made by proving either intentional discrimination or disparate treatment. Reisman v Wayne State Univ Regents, 188 Mich App 526, 538; 470 NW2d 678 (1991).
A
In order to establish a prima facie case of intentional sex discrimination under § 302, a plaintiff must show that she was a member of a protected class, that she was discriminated against at a place of public accommodation, that the defendant was predisposed to discriminate against persons in the class, and that the defendant acted upon that disposition when the discrimination occurred. Clarke, supra; Coleman-Nichols v Tixon Corp, 203 Mich App 645, 651; 513 NW2d 441 (1994).
We find that plaintiff established a prima facie case of intentional sex discrimination. She is a member of a protected class, and the Elks has been deemed a place of public accommodation. Defendant is predisposed to discriminate against women by its rules and by-laws, which provide that no woman may be a member, and by the fact that it has never accepted a woman as a member. Defendant acted upon that predisposition when plaintiffs application was denied while at the same time seven male applicants were voted into membership.
B
In order to establish a prima facie case of sex discrimination under the disparate-treatment theory, a plaintiff must show that she was a member of a class deserving of protection under the statute, and that, for the same conduct, she was treated differently than a man. It is the plaintiffs burden to establish a prima face case of sex discrimination with evidence that is legally admissible and sufficient. Schultes v Naylor, 195 Mich App 640, 645; 491 NW2d 240 (1992).
We find that plaintiff established a prima facie case of disparate treatment. She is a member of a protected class, she lives in the required area for membership, she applied for membership along with seven males, she and the seven males were approved for membership by the examining committee, all the males were accepted as members, and plaintiff was overwhelmingly rejected.
The essence of a sex discrimination civil rights suit is that similarly situated people have been treated differently because of their sex. Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993). Defendant argues that plaintiff did not establish a prima facie case because she was not similarly situated. Defendant contends plaintiff was the only applicant who wanted to join for business reasons. However, the members’ belief about plaintiff’s motivation for wanting to join is not considered in the determination whether plaintiff established a prima facie case. That evidence is properly included in defendant’s proffered showing of its nondiscriminatory reason for the vote. Accordingly, we find that the trial court did not err in its determination that plaintiff had established a prima facie case of sex discrimination.
IV
Defendant claims that plaintiff did not prove by a preponderance of the evidence that the fact she was a woman was a “but for” or determining factor for the rejection of her application. Defendant relies on Matras v Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986), an age discrimination case. Its holding also applies in this case, Clarke, supra, but does not support defendant’s position. The Matras Court held:
In [a sex] discrimination case, the question thus becomes whether the plaintiff has presented evidence “ ‘which, when viewed in the light most favorable to the plaintiff, would permit a reasonable jury to find that [s]he was [rejected for membership] because of [her sex].’ ”...
A jury can find that the [rejection] was “because of [sex]” even if [sex] was not the sole factor. As accurately expressed in the Michigan Standard Jury Instruction, “[sex] does not have to be the only reason, or even the main reason, but it does have to be one of the reasons which made a difference in determining whether or not to [discriminate against] the plaintiff.” Another formulation would be that [sex] is a determining factor when the unlawful adverse action would not have occurred without [sex] discrimination. Alternative expressions of the determining factor concept are “but for causation” or “causation in fact.” [Id. at 682.]
Under this standard, we find that plaintiff proved by a preponderance of the evidence that her application was rejected because she was a woman. Even if plaintiffs gender was not the sole factor or even the main reason for defendant’s refusal to admit her as a member, the evidence clearly showed that it was “one of the reasons which made a difference” in determining whether to vote for or against her. Considering that the witnesses could give only a few examples out of hundreds of applications over their many years of membership where a “no” vote was cast, it is clear that new members were routinely voted in. The preponderance of the evidence demonstrated that the “unlawful adverse action” would not have occurred if plaintiff had been a male. Just as the other seven applicants, all males, who were not known to the witnesses, were voted in as new members, had plaintiff been a male she would have been voted in without question. Accordingly, we find that plaintiff has satis fied the “but for” test by a preponderance of the evidence.
v
Defendant claims that the trial court clearly erred in finding that defendant did not establish legitimate non-discriminatory reasons for rejecting plaintiff’s application for membership. Again, we disagree. This Court reviews the trial court’s factual findings for clear error. Webb v Smith (After Remand), 204 Mich App 564, 568; 516 NW2d 124 (1994). Findings of fact by the trial court may not be set aside unless clearly erroneous. In applying this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. MCR 2.613(C). A finding is clearly erroneous when, although there is evidence to support the finding, this Court is left with a definite and firm conviction that a mistake has been made. Berry v State Farm Automobile Ins Co, 219 Mich App 340, 345; 556 NW2d 207 (1996).
Defendant claims that it established several legitimate, nondiscriminatory reasons for rejecting plaintiff’s application. We have reviewed the record with respect to each of these proffered reasons. Even where it can be concluded that there was some grain of truth behind one or two of the allegations against plaintiff, we are not left with a definite and firm conviction that the trial court made a mistake when it found that plaintiff’s sex played a significant role in the decision to deny her application for membership.
The trial court found that defendant’s primary proffered reason for rejecting plaintiff’s application, that plaintiff intended to use the Elks for business pur poses, was “pretext for several reasons.” The court explained:
First, most of the witnesses had no clear recollection of where they acquired this information. Moreover, it is clear that this rule is not strictly enforced by the club given that it accepts paid business advertisements from its members, does business with its members and its members routinely do business with each other. Second, many of the witnesses who offered this reason also testified to their own gender bias, testifying that they would prefer no female members. Finally many of the witnesses simply did not appear credible when they testified about their fear that the club might be used to further plaintiff’s business as a realtor. These same witnesses appeared credible and comfortable with their testimony when they testified to their personal preferences regarding female membership.
We find that the trial court did not err in finding that the primary proffered reason for the vote against plaintiff was a pretext. The court did not specifically address the other proffered reasons because, regardless of the other reasons given, almost every witness stated that he voted against plaintiff because he believed she wanted to use the Elks for business purposes. The law does not require that every stated reason must be a pretext. The law requires that plaintiffs sex must have been a “determining factor” in that the adverse action would not have occurred without the sex discrimination. Sex does not have to be the only reason or even the main reason, but it must be one of the reasons that made a difference. Matras, supra.
As the trial court stated, plaintiff did not have to show that discrimination was the exclusive reason for denying her membership but merely that it played a significant role in the decision. The trial court found that male applicants are rarely given the significant scrutiny to which plaintiff was subjected. Plaintiff had been recommended for membership by the investigating committee. With very few exceptions over the years, all applications for membership have been approved by the members. The exceptions involved situations where the applicant was known personally to the voter as a criminal or troublemaker. All the witnesses testified that they usually did not know anything about an applicant, other than that he had been sponsored by a member and recommended by the investigating committee, the same as plaintiff. None of the witnesses knew plaintiff personally. Many of the witnesses testified that they wished the Elks to remain all male. Several witnesses testified that they believed if they voted in a woman member, they would lose their national charter. The court found that this evidence supported its conclusion that plaintiff was discriminated against because of her sex.
Upon review of the testimony of the thirty-one member witnesses who voted against plaintiff, and acknowledging that credibility is a matter for the trial court to determine, we conclude that the findings of the trial court were not clearly erroneous.
VI
Defendant claims the trial court erred because it improperly interfered with the internal membership decisions and procedures of the Elks. By forcing defendant to accept plaintiff as a member, defendant contends the court improperly interfered with its right to administrate its own internal affairs. Defendant contends that the trial court impermissibly rewrote the rule against soliciting business from fellow members, which is clearly prohibited by the Elks.
We find that this issue is without merit. The trial court determined that the Elks discriminated against plaintiff because of her sex, and ordered that it make her a member. The court did not change any rule or regulation of the organization. Plaintiff, along with receiving the “full and equal enjoyment of the goods, services, privileges and accommodations offered by the defendant to its members” will also be subject to the rules and regulations of the organization.
vn
Defendant moved to disqualify the trial judge on the basis of a newspaper article that portrayed the judge as a feminist. Defendant argues that, given the trial judge’s background and her comments on the record, she should have disqualified herself.
Absent actual personal bias or prejudice, a judge will not be disqualified. MCR 2.003(B)(1); Cain v Dep’t of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996). Opinions formed by a judge on the basis of facts introduced or events occurring during the course of the current proceedings, or of prior proceedings, do not constitute bias or partiality unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Id. at 496. Likewise, judicial remarks during the course of a trial that are “critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. at 497, n 30. Moreover, a party who challenges a judge on the basis of bias must overcome a heavy presumption of judicial impartiality. Id. at 497.
We reject defendant’s contention that the trial court was biased against defendant and breached its duty to remain impartial. Defendant has failed to demonstrate that the trial judge had a deep-seated favoritism or antagonism that would have made fair judgment impossible. The court’s remarks were within the bounds of “what imperfect men and women . . . sometimes display.” Id. at 497, n 30; Liteky v United States, 510 US 540, 555; 114 S Ct 1147; 127 L Ed 2d 474 (1994). Defendant has failed to overcome the heavy presumption of judicial impartiality. The trial court did not err in denying defendant’s mdtion for the court to recuse itself.
STATEMENT OF FACTS FOR DOCKET NOS. 186646 AND 191951
Docket Nos. 186646 and 191951 address issues regarding attorney fees. In this Court’s prior decision in this case, this Court affirmed the trial court’s award of $35,000 in attorney fees:
In this case the trial court awarded $35,000 in attorney fees finding plaintiff’s counsel was experienced in civil rights litigation; the case required significant skill and time, the case was difficult because it presented issues involving undeveloped areas of the law; civil and constitutional rights were involved and added to the value of the case even though plaintiff did not seek money damages; and that plaintiff’s counsel achieved everything her client was entitled to receive. Defendant objects to the award not on the grounds that the hourly rate applied by the court was excessive, but that the award reimburses time plaintiff’s counsel worked on unsuccessful claims. We disagree.
Plaintiff’s statement of legal services provided sufficient detail to allow the trial court to determine plaintiff’s counsel was not charging for time spent on distinctly separate unsuccessful claims. We do not believe work related to the tort claim was clearly distinct from that related to the discrimination claim. Hensley v Eckerhart, 461 US 424; 103 S Ct 1933; 76 L Ed 2d 40 (1983). We find no abuse of discretion in this award.
This Court vacated the trial court’s fifty percent fee enhancement, however, finding that the trial court erred in relying on plaintiff’s counsel’s risk of nonrecovery. This Court further noted that plaintiff failed to demonstrate any substantial difficulty in obtaining counsel and that counsel’s performance did not so far exceed client expectations and normal levels of competence to warrant the fee enhancement.
Regarding plaintiff’s request for appellate attorney fees, this Court held:
Finally, plaintiff seeks to recover attorney fees incurred defending this appeal. Such an award is proper under the act. MCL 37.2802; MSA 3.548(802); McLemore v Detroit Receiving Hosp, [196 Mich App 391; 493 NW2d 441 (1992).[We therefore remand to the trial court for determination and award of reasonable appellate attorney fees proportionate to plaintiff’s success on appeal. (Emphasis added.)
DOCKET NO. 186646
On May 10, 1995, plaintiff argued her renewed motion for appellate attorney fees. The period under consideration was from December 14, 1989, when the trial court stayed the order that required the Elks to process plaintiff’s application for membership, to June 13, 1994, when the Elks voted on plaintiff’s application. At issue were (1) how to interpret the Court of Appeals instruction to award “reasonable appellate attorney fees proportionate to plaintiff’s success on appeal” and (2) fee enhancement.
The trial court found that, under the law of the case doctrine, it was required to proportion the attorney fees. Finding that plaintiff was ninety percent successful on appeal, the court awarded the attorney fees with a ten percent discount. The court further awarded costs and statutory interest, pursuant to MCL 600.6013; MSA 27A.6013, from and after March 3, 1993. The order was entered on May 26, 1995. It was modified on June 20, 1995, after plaintiffs attorney realized that he made a mistake on the dates, to provide that the award included only those attorney fees and taxable costs incurred from December 14, 1989, until February 4, 1993.
DOCKET NO. 191951
There are two awards of attorney fees at issue in Docket No. 191951: (1) the appellate fees awarded from February 5, 1993, until June 13, 1994, and (2) the postremand, trial-level attorney fees incurred from June 14, 1994, through July 19, 1995.
The trial court ordered defendant to pay plaintiff $26,424 in appellate attorney fees and costs from February 5, 1993, until June 13, 1994, and $85,576 for attorney fees and costs incurred from June 14, 1994, until July 19, 1995. Plaintiff’s award of appellate attorney fees incurred from February 5, 1993, until June 13, 1994, was reduced by ten percent, but defendant was ordered to pay a twenty-five percent enhancement on the appellate attorney fees incurred from February 5, 1993, until June 13, 1994.
Finding that MCL 600.6013; MSA 27A.6013, as amended, did not apply in this case, the court ordered defendant to pay interest on the entire award, from and after July 25, 1995, at a rate equal to the percentage rise in the consumer price index, all cities average, compounded annually, based upon the April-April indices.
I. ATTORNEY PEES AND COSTS
Defendant contends that the trial court erred in finding that plaintiff was ninety percent successful on appeal. This Court remanded to the trial court “for determination and award of reasonable appellate attorney fees proportionate to plaintiffs success on appeal.” This Court did not instruct the trial court with regard to the procedure or method it should use to determine the proportionality of plaintiff’s success on appeal or cite any case law that the trial court could use as guidance. The trial court determined that it was required to proportion the attorney fee award on the basis of its finding that plaintiff was ninety percent successful.
Defendant presents two alternative formulas for an “award . . . proportionate to plaintiffs success on appeal.” Under its first formula, defendant argues that plaintiff would be fifty percent successful. Under its second formula, plaintiff would be seventy-five percent successful. Plaintiff asks the Court to follow federal law that provides that a prevailing party may recover the full amount of attorney fees, even when it did not prevail on every claim or issue. We reject both parties’ arguments.
Section 802 of the Civil Rights Act, MCL 37.2802; MSA 3.548(802), provides:
A court, in rendering a judgment in an action brought pursuant to this article, may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate. [Emphasis added.]
It has long been held in Michigan that attorney fees and costs must be “reasonable.” There has never been a requirement that a prevailing party must receive the total amount of attorney fees requested or incurred. We find an award of “attorney fees proportionate to plaintiffs success” is not “new law” in Michigan. There is no evidence that this Court, in its prior opinion in this case, intended to overrule longstanding precedent for the award of attorney fees or to prescribe a new method, procedure, or standard for the award of attorney fees. First, had this been the case, we believe that the Court would have provided some guidance and would have published the opinion. Second, there is precedent for awarding a proportionate amount, even though not usually stated in those terms.
In Wood v DAIIE, 413 Mich 573, 587-589; 321 NW2d 653 (1982), the Court held:
A determination that a party is entitled to attorney fees . . . does not decide the amount of the award, however. As to this question, we agree with the defendant that the controlling criterion is that the attorney fees be “reasonable.”
We adopt the guidelines for determining “reasonableness” set forth in Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973).
The Crawley panel noted that there is no precise formula for computing the reasonableness of an attorney’s fee, but said that factors to be considered are:
“(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. See generally 3 Michigan Law & Practice, Attorneys and Counselors, § 44, p 275, and Disciplinary Rule 2-106(B) of the Code of Professional Responsibility and Ethics. ”
See also Liddell v DAIIE, 102 Mich App 636, 652; 302 NW2d 260 (1981), which applied the Crawley factors to the no-fault insurance scheme. MCL 500.3148(1); MSA 24.13148(1).
While a trial court should consider the guidelines of Crawley, it is not limited to those factors in making its determination. Further, the trial court need not detail its findings as to each specific factor considered. The award will be upheld unless it appears upon appellate review that the trial court’s finding on the “reasonableness” issue was an abuse of discretion.
As noted earlier, the Court of Appeals has suggested that upon remand the trial court may choose to adjust the attorney fees in light of the decrease in the total judgment. [Emphasis added.]
On the basis of Wood, it is clear, first, that “results achieved” has been a factor to be considered in determining the “reasonableness” of an attorney fee award since at least 1973, when Crawley was released. Second, adopting the suggestions of this Court, the Wood Court stated that, upon remand, the trial court may choose to adjust the attorney fees “in light of the decrease in the total judgment(Emphasis added.) Although neither Crawley nor Wood stated the magic words, “proportionate to success,” it is clearly implied in the Crawley factors and in Wood’s adoption of this Court’s suggestion to adjust the attorney fees in light of the decrease in the total judgment. Accordingly, in its determination of what is “reasonable,” a trial court will consider the results achieved and has the discretion to “adjust” the award in proportion to [”in light of”] the results achieved [’’the decrease in the total judgment”].
The Court believes that the words “proportionate to plaintiff’s success on appeal” from the prior opinion in this case and “adjust the attorney fees in light of the decrease in the total judgment” from Wood lead to essentially the same result. This Court may have inadvertently misled the trial court by its use of the “proportionate” language, but it did not change any law or attempt to write new law in its instructions to the trial court. The trial court was still required to follow Wood and determine a reasonable attorney fee award in light of all the Crawley factors, including “success on appeal.” Accordingly, we find that the trial court erred in its conclusion that it was required to proportion the award of attorney fees pursuant to a mathematical formula related to the amount of success achieved on appeal. Nevertheless, a remand for recalculation of attorney fees is not required.
In Michigan, the amount of attorney fees awarded is within the discretion of the court. Howard v Canteen Corp, 192 Mich App 427, 437; 481 NW2d 718 (1992). We find, that despite the trial court’s error, its determination that plaintiff was entitled to ninety percent of requested attorney fees and costs was not an abuse of discretion.
For example, in Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 203; 390 NW2d 227 (1986), a case that arose out of the Civil Rights Act, this Court affirmed the trial court’s award of one-half the amount of the plaintiff’s attorney fees, after a consideration of the factors set forth in Wood.
In Collister v Sunshine Food Stores, Inc, 166 Mich App 272, 274-275; 419 NW2d 781 (1988), another Civil Rights Act case, the Court affirmed an award of $2,000 in attorney fees and $750 in costs, where the prevailing attorney had requested $15,456 in attorney fees and $1,156.89 in costs. The Court addressed the factors set forth in Wood, which the trial court had considered. After further analysis of the accomplishments and efforts of the prevailing attorney, the Court held:
In Hensley v Eckerhart, 461 US 424; 103 S Ct 1933; 76 L Ed 2d 40 (1983), the Supreme Court held that the degree of plaintiff’s success is a “crucial” factor in determining a proper award of attorney fees under 42 USC 1988. Although not binding, Michigan courts regard federal precedents in questions analogous to those present under the Michigan civil rights statutes as highly persuasive. Rogson v General Motors Corp, 137 Mich App 650, 653; 357 NW2d 919 (1984), rev’d on other grounds 427 Mich 505; 398 NW2d 368 (1986). In light of the limited success plaintiff achieved, the award was not an abuse of discretion. [Callister, at 275 (emphasis added).]
The fact that the trial court mistakenly concluded there had been a change in the law that required it to “proportion” the attorney fee award instead of addressing the Wood factors does not require reversal. This Court will not reverse a trial court’s decision if the right result is reached for the wrong reason. In re Powers, 208 Mich App 582, 591; 528 NW2d 799 (1995). Daily in the trial courts, attorneys are awarded “proportionate” amounts of their requested attorney fees on the basis of an analysis of the factors set forth in Wood. Here, the court determined that plaintiff should be awarded ninety percent of the requested amount because it found that plaintiff was ninety percent successful in her appeal. We conclude that the trial court did not abuse its discretion.
MCL 37.2802; MSA 3.548(802) clearly provides that, in a civil rights case, the costs of litigation may be awarded by the trial court, as well as reasonable attorney fees and witness fees. Thus, there is no merit to defendant’s claim that the court did not have statutory jurisdiction to award costs. Because this Court ordered the matter remanded to award attorney fees and costs, the issue whether plaintiff timely filed her bill of costs is also without merit.
H. INTEREST ON THE AWARD OF ATTORNEY FEES
In Docket No. 186646, by order entered May 25, 1995, the court awarded statutory interest, pursuant to MCL 600.6013; MSA 27A.6013, from and after March 3, 1993, the date the prior Court of Appeals opinion in this case was issued, on the attorney fees and costs awarded. In Docket No. 191951, by order entered December 22, 1995, the court, finding § 6013, as amended, did not apply, ordered defendant pay plaintiff interest on the entire award of attorney fees and costs, from and after July 25, 1995, at a rate equal to the percentage rise in the consumer price index, all cities average, compounded annually, based upon the April-April indices. Both parties appeal from the court’s award of interest.
A
Regarding the order entered on May 25, 1995, plaintiff requested and the trial court ordered that interest on the attorney fees should start to run from and after March 3, 1993, the date this Court awarded plaintiff the reasonable attorney fees. On appeal, defendant argues that the interest on the attorney fees should start to run from May 25, 1995, the date the trial court determined the amount of the appellate attorney fees to be awarded. Defendant contends that because there was no definite amount it could pay before that date, it should not be penalized for the delay.
Defendant did not argue this point before the trial court. As a general rule, issues that are not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances. People v Grant, 445 Mich 535, 546-547; 520 NW2d 123 (1994). Further, defendant has provided no legal support for its contention. This Court will not search for authority either to sustain or reject a party’s position. Where a party fails to cite any supporting legal authority for its position, the issue is effectively abandoned. Mallard v Hoffinger Industries, Inc, 210 Mich App 282, 286; 533 NW2d 1 (1995), vacated in part on other grounds, 451 Mich 884 (1996).
We find that the award of interest was reasonable. MCL 600.6013; MSA. 27A.6013 provides that interest shall be calculated from the date of filing the complaint. However, considering that the complaint was filed in 1988 and plaintiff did not request that interest start to run from the date of filing the complaint, we find that the trial court did not abuse its discretion. Howard v Canteen Corp, 192 Mich App 427, 437; 481 NW2d 718 (1992); MCL 37.2802; MSA 3.548(802).
B
In Docket No. 191951, the trial court held that MCL 600.6013; MSA 27A.6013 did not apply to the award of attorney fees. The trial court held that the judgments in this case ordered declaratory and injunctive relief and were not “money judgments.” We find that the trial court erred as a matter of law. We hold that an award of attorney fees and costs in a case that arises under the Civil Rights Act is a “money judgment.” Thus, interest on the award of attorney fees should have been computed pursuant to § 6013.
MCL 600.6013(1) and (6); MSA 27A.6013(1) and (6) provide:
(1) Interest shall be allowed on a money judgment recovered in a civil action ...
(6) . . . for complaints filed on or after January 1, 1987, interest on a money judgment recovered in a civil action shall be calculated at 6-month intervals from the date of filing the complaint at a rate of interest that is equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, pursuant to this section. Interest under this subsection shall be calculated on the entire amount of the money judgment, including attorney fees and other costs. However, the amount of interest attributable to that part of the money judgment from which attorney fees are paid shall be retained by the plaintiff, and not paid to the plaintiff’s attorney. [Emphasis added.]
The emphasized sections above reflect the 1993 amendments of this statute. 1993 PA 78. The 1993 amendments were effective on April 1, 1994. Section 4 1993 PA 78 provides, in pertinent part, that § 6013, “as amended by this amendatory act, do[es] not apply to cases filed before October 1, 1993.” Thus, the amended portion does not apply to this case, which was filed in 1988.
Before the 1993 amendments of § 6013(6), there was no provision that specifically indicated that interest would be calculated on attorney fees and costs. Subsection 1 of the statute merely provided that “interest shall be allowed on a money judgment recovered in a civil action.” (Emphasis added.)
The trial court relied on Marina Bay Condos v Schlegel, 167 Mich App 602, 609; 423 NW2d 284 (1988), a contract action, where the Court held that a “money judgment” is one that adjudges the payment of a sum of money as distinguished from directing an act to be done. In Marina Bay Condos, the trial court awarded the plaintiff money that had been paid into escrow and interest on that money, pursuant to § 6013. On appeal, the defendant argued that the plaintiff was not granted a judgment on which statutory interest could be awarded, but had only been permitted to keep the money that had been placed in escrow. This Court found the judgment entered for the plaintiff for the amount in escrow was a “money judgment.” Id. at 609.
Marina Bay Condos addressed an actual award of money to the plaintiff. It did not address an award of attorney fees under the Civil Rights Act. We find that the trial court’s reliance on Marina Bay Condos was misplaced.
The Civil Rights Act provides a unique treatment of attorney fee awards. Unlike other statutes and court rules that provide for an award of attorney fees as an element of costs, § 801(3) of the Civil Rights Act, MCL 37.2801(3); MSA 3.548(801)(3), specifically defines “damages” to include “reasonable attorney’s fees.” Under the Civil Rights Act, attorney fees are considered an element of damages and not an element of costs. Thus, an award of attorney fees that arises out of the Civil Rights Act is a “money judgment.” The rationale for this provision was provided in Seals v Henry Ford Hosp, 123 Mich App 329, 340; 333 NW2d 272 (1983), where the Court held:
We find that the Legislature could plausibly have believed that allowing plaintiffs in civil rights actions to recover attorney fees would encourage persons deprived of civil rights to seek legal redress of their grievances. The Legislature weis also justified in believing that allowing an award of fees to defendants in similar actions would discourage the bringing of actions under the Elliott-Larsen Act.
A plaintiff who prevailed in a civil rights action before the 1993 amendments of § 6013(6) was entitled to interest on attorney fees under that statute because the Civil Rights Act defines attorney fees as “damages.” The 1993 amendments clarify this and further provide that interest will also be applied to costs. The interest calculation in § 6013(6) in effect before the 1993 amendment applies to this judgment. Accordingly, we hold that in its order of December 22, 1995 (Docket No. 191951), interest on the attorney fees should have been awarded under § 6013(6). On remand, the court is to compute interest on the attorney fees awarded in its order of December 22, 1995, pursuant to the formula set forth in § 6013(6).
ffl. ENHANCEMENT
Both parties raise issues concerning the twenty-five percent enhancement on the appellate attorney fees incurred from February 5, 1993, through June 13, 1994, as provided in the order of December 22, 1995 (Docket No. 191951). The determination whether an enhancement is appropriate in each case is within the discretion of the trial court. Mitchell v Cole (After Remand), 196 Mich App 675, 680; 493 NW2d 427 (1992).
In the underlying case, the trial court awarded plaintiff a fifty percent fee enhancement. On appeal, this Court, in its prior opinion held in pertinent part:
However, we do find the court erred in awarding plaintiff a fifty percent fee enhancement. The triEil court believed the award appropriate because the case was an unusual civil rights case where counsel would not be compensated out of an award of damages and plaintiff’s counsel bore the risk of non-recovery. The court’s discretion to adjust the lodestar (the reasonable hourly rate times reasonable hours expended) which is presumed to be the reasonable attorney fee, is limited. Howard [v Canteen Corp, 192 Mich App 427; 481 NW2d 718 (1992)]. In Wilson [v General Motors Corp, 183 Mich App 21; 454 NW2d 405 (1990)], a panel of this Court, following United States Supreme Court precedent, found that absent extraordinary circumstances, an upper adjustment to the lodestar may not be based upon the risk of loss of nonpayment. Even more recently, the Supreme Court in City of Burlington v Dague, 505 US 557; 112 S Ct 2638; 120 L Ed 2d 449 (1992), has clarified its position and held an enhanced award of attorney fees may not be based on the risk of non-recovery. We therefore find the trial court’s reliance on plaintiffs counsel’s risk of non-recovery improper.
We also note that although we are not in agreement with that portion of the Howard opinion that permits enhancement in the “rare circumstances when the attorney’s work is so superior and outstanding that it far exceeds client expectations and normal levels of competence and in rare cases or extraordinary circumstances when it is necessary for attracting competent counsel”, we are bound by administrative order numbers 1990-6 and 1991-11 to follow it. Nonetheless, we find neither of these situations present in this case. Although plaintiff claimed the aclu refused her representation, she has failed to demonstrate any substantial difficulty in obtaining counsel. Additionally, although plaintiff’s counsel performed a fine job on plaintiff’s behalf, we are unprepared to say that her performance far exceeded client eocpectations and normal levels of competence. We therefore vacate that portion of the order awarding plaintiff enhanced fees in the amount of $17,500. [Emphasis added.]
In its opinion of July 25, 1995, the trial court ordered a twenty-five percent enhancement on the appellate attorney fee award. The court held:
The Court of Appeals found that enhancement was not proper because the plaintiff had failed to demonstrate that she would have faced any difficulty attracting competent counsel. Unpublished per curiam opinion, No.s [sic] 123738 and 131716, released March 9, 1993. . . .
In support of her motion plaintiff has now presented the affidavits of several attorneys stating that without the prospect of fee enhancement they would not have agreed to represent the plaintiff in this case. This court finds that the issues before the Court of Appeals were significant matters of first impression under Michigan law. Plaintiff has now met her burden of demonstrating that she would have faced substantial difficulty in obtaining counsel to represent her on these matters. This Court remains of the opinion that under the open ended Wood test, the need to attract competent counsel to handle significant cases of first impression should be considered in awarding a reasonable attorney fee. However, the issues before the appellate court were identical to the issues before this court and were fully briefed in this court. Since appellate counsel had the benefit of the fine briefs which were prepared for this court, this court concludes that a smaller enhancement on the appellate fees is proper. Accordingly, this Court will award a 25% fee enhancement as to the appellate attorney fees.
This Court further finds that the post-remand phase of these proceedings presented a simple factual determination, whether the decision to exclude the plaintiff was substantially motivated by gender discrimination. Although the post-remand proceedings were lengthy, they did not present significant issues of first impression or other circumstances requiring fee enhancement to attract competent counsel. Attorney fees will not be enhanced for post-remand proceedings. [Emphasis added.]
The court awarded appellate attorney fees and costs for the period from February 5, 1993, until June 13, 1994, during defendant’s appeal. The court also awarded attorney fees and costs for the period from June 14, 1994, through June 19, 1995, the postremand period. The court enhanced the appellate attorney fee award by twenty-five percent, but did not enhance the attorney fees for the postremand phase.
In Mitchell, supra at 680, the Court addressed the fee enhancement issue. The Court held, in pertinent part:
Under certain conditions, courts have recognized an upward or downward adjustment of attorney fees. Howard v Canteen Corp, 192 Mich App 427, 439; 481 NW2d 718 (1992). The burden of establishing the circumstances under which an enhancement is appropriate is on the fee applicant. Conclusory statements regarding the complexity of the case and significant results are not enough to justify enhancement. The determination whether an enhancement is appropriate in each case is within the discretion of the trial court. Pennsylvania v Delaware Valley Citizens’ Council for Clean Air, 483 US 711, 728; 107 S Ct 3078; 97 L Ed 2d 585 (1987). We have recently recognized that this discretion is limited and that an enhancement should be saved for those rare circumstances where an attorney’s work is so superior and outstanding that it exceeds the client’s expectations. Howard, supra at 439. In addition, where the enhancement is necessary to attract competent counsel, the court may apply a multiplier within reason. Id. at 439-440. [Emphasis added. Some citations omitted.]
The Court reversed the trial court’s enhancement. It held:
[I]t is clear that the trial court focused on the risky nature of this specific case, along with the novelty and complexity of the issues. Because these are inappropriate rea sons for enhancing a fee award, we reverse and remand for reconsideration of the issue. On remand, the trial court shall limit its consideration to factors that are permissible under the current state of the law. [Mitchell, at 682.]
We find this case presents extraordinary circumstances where enhancement is necessary for attracting competent counsel. On the basis of the affidavits submitted by plaintiff from attorneys whose practices focused on civil rights litigation, plaintiff proved that it would have been extremely difficult to attract competent counsel without the possibility of enhancement of the attorney fee. We conclude that a twenty-five percent enhancement of the appellate attorney fees is reasonable. Accordingly, we find that the trial court did not abuse its limited discretion in its award of a twenty-five percent enhancement of the appellate attorney fees.
IV. APPELLATE ATTORNEY FEES AND COSTS
Finally, plaintiff seeks to recover attorney fees incurred in defending this appeal and prosecuting its cross appeal. Such an award is proper under the act. MCL 37.2802; MSA 3.548(802); McLemore v Detroit Receiving Hosp, 196 Mich App 391, 402-403; 493 NW2d 441 (1992). On remand, the trial court will determine and award reasonable appellate attorney fees. Wood, supra.
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Corrigan, C.J.
This Court convened this special panel under Administrative Order No. 1996-4, now MCR 7.215(H)(3), to resolve the conflict between the prior vacated opinion in this case, In re Caldwell, 225 Mich App 801 (1997), and In re Halbert, 217 Mich App 607; 552 NW2d 528 (1996), regarding the interpretation of MCL 710.51(6); MSA 27.3178(555.51)(6). The original Caldwell panel, in compliance with Administrative Order No. 1996-4, now MCR 7.215(H)(1), followed this Court’s holding in Halbert that an incarcerated parent falls outside the scope of MCL 710.51(6); MSA 27.3178(555.51)(6). If not for the precedential effect of Halbert, the Caldwell panel would have remanded this matter to permit the probate court to exercise its discretion to admit evidence regarding the best interests of the child. We agree with the prior panel and hold that the statute applies to an incarcerated parent. We further conclude, however, that the trial court’s error in excluding evidence was harmless, and we therefore affirm.
Petitioner mother gave birth to the minor child during her marriage to respondent father. They separated in 1991, shortly before their son’s first birthday and five months before the conviction for which respondent remains incarcerated. Petitioner mother and respondent divorced in 1994. Petitioner mother remarried, and her husband eventually sought to adopt the minor child. Pursuant to that request, the probate court considered whether to terminate respondent’s parental rights under MCL 710.51(6); MSA 27.3178(555.61X6). The statute provides:
If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father who meets the conditions in [MCL 710.39(2); MSA 27.3178(555.39)(2)], and if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:
(a) The other parent, having the ability to support, or assist in supporting, the child has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.
(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substan tiaUy failed or neglected to do so for a period of 2 years or more before the filing of the petition.
The probate court terminated respondent’s parental rights under the statute after finding that respondent failed to satisfy the support and contact requirements. First, the court found that respondent had failed to comply substantially with the support order entered during the divorce, which the court later modified, reducing respondent’s obligation to $10 weekly. The court concluded that respondent’s present ability to comply with the support order was irrelevant because the statute would apply if respondent failed to comply substantially with the order for the statutory period. Moreover, the court noted that it determined that respondent had the ability to pay $10 weekly when it reduced his support obligation. Next, the court found that respondent had the ability to visit, contact, or communicate with his son, yet regularly and substantially failed to do so. The court determined that respondent did not satisfy the contact requirement because, at most, he had contacted his son seven times in two years.
The question presented is whether MCL 710.51(6); MSA 27.3178(555.51)(6) applies to an incarcerated parent. Before Halbert, courts sometimes looked to the two-year period immediately preceding the parent’s incarceration to determine whether statutory grounds for termination existed. See In re Colon, 144 Mich App 805, 812, 814; 377 NW2d 321 (1985). In Halbert, supra at 612, however, this Court held that the statutory period begins on the filing date and extends backward from that date for a period of two years or more. We agree with this portion of Halbert. Subsections a and b of the statute state that the parent must fail to satisfy the support and contact requirements “for a period of 2 years or more before the filing of the petition.” MCL 710.51(6); MSA 27.3178(555.51)(6). This clear and unambiguous statutory language provides that the court must determine whether statutory grounds for termination exist by looking at the two years immediately preceding the filing of the termination petition.
Although the determination that the probate court erred in applying the statute resolved the case, the Halbert Court nevertheless commented on the general applicability of the statute to incarcerated parents. The Halbert Court stated:
The primary purpose of MCL 710.51(6); MSA 27.3178(555.51)(6) is to allow a stepparent who provides the material and emotional support to a child that would be expected of the child’s legal parent to adopt the child of a noncustodial parent who has essentially abandoned the child and who has refused to, or is unavailable to, consent to the adoption. In re Colon, supra, pp 810-811. This purpose may be effectuated only where the noncustodial parent is situated in circumstances whereby that parent can earn a living and acquire the wherewithal to support a child, where the noncustodial parent has ignored or abandoned the natural obligations owed a child by a parent, and where the noncustodial parent has refused, or intentionally has become unavailable, to consent to the adoption. Respondent’s lengthy incarceration before the filing of the petitions for termination of his parental rights and for adoption — and, hence, his inability to earn a living and acquire the wherewithal to provide support for [the child] — take respondent outside the intended scope of MCL 710.51(6); MSA 27.3178(555.51)(6). [Halbert, supra at 615-616.]
We reject Halbert's conclusion regarding the application of MCL 710.51(6); MSA 27.3178(555.51)(6) because the statute does not contain an “incarcerated parent” exception. The Halbert Court erred in relying on the purpose behind the statute to carve an exception for an incarcerated parent. Where the statutory language is clear and unambiguous, this Court must apply it as written. Farrington v Total Petroleum, Inc, 442 Mich 201, 208; 501 NW2d 76 (1993). Under the clear language of MCL 710.51(6); MSA 27.3178(555.51)(6), no incarcerated parent exception exists. Moreover, as this case demonstrates, an incarcerated parent may still retain the ability to comply with the support and contact requirements of the statute. Accordingly, the statute applies to respondent.
Respondent next argues that the probate court clearly erred in finding that he had the ability to comply with the contact requirement of the statute, yet failed to do so. We disagree. This Court reviews the probate court’s findings of fact under the “clearly erroneous” standard. In re Hill, 221 Mich App 683, 691-692; 562 NW2d 254 (1997). A finding is clearly erroneous if, although evidence exists to support it, this Court is left with a definite and firm conviction that the lower court made a mistake. Id. at 692.
The record supports the probate court’s finding regarding the contact requirement. Even if respondent could not visit his son because of his incarceration, he could have complied with the statute by contacting or communicating with the child. Respondent admitted that he could make telephone calls and send letters from prison. Although respondent testified that petitioner mother did not provide him with her telephone number, he could have corresponded with his son by mail. Respondent admitted that he wrote to his son only on three occasions during the two years before petitioners filed the termination petition. Respondent, however, contends that he also contacted his son through his parents, who visited the child and sent the child gifts on his birthday and holidays. Even assuming these contacts could be considered respondent’s contacts for purposes of the statute, they would not satisfy the statute because they were infrequent. See In re Simon, 171 Mich App 443, 449; 431 NW2d 71 (1988); In re Martyn, 161 Mich App 474, 482; 411 NW2d 743 (1987). Accordingly, the probate court did not clearly err in finding that respondent regularly and substantially failed to visit, contact, or communicate with the child.
We likewise reject respondent’s argument that the probate court clearly erred in finding that he failed to comply with the support requirement of the statute because he did not have the ability to pay child support. Under MCL 710.51(6)(a); MSA 27.3178(555.51) (6)(a), the petitioner need not prove that the respondent had the ability to support the child where the court has previously entered a support order. The petitioner need only prove that the respondent has failed to comply substantially with the support order for the statutory period. Hill, supra at 692; Colon, supra at 808-812. In Colon, supra at 811-812, this Court noted that it would be redundant to require the petitioner to prove the respondent’s ability to pay as well as noncompliance with a support order because the court considers ability to pay in fashioning the support order. Here, respondent admitted that he did not pay child support even after the court modified the support order, reducing his obligation to $10 weekly. Accordingly, the probate court correctly found that respondent failed to comply substantially with the support order.
Further, the record reflects that respondent had the ability to assist in supporting his son. Respondent initially earned $50 monthly in a prison apprenticeship program, and thereafter earned $150 monthly by the time of the termination hearing. Although respondent testified that he could not send money outside the prison, he conceded that other prisoners with support obligations arranged for the prison to honor income-withholding orders. Respondent did not pursue this avenue of payment even after obtaining a reduction in his support obligation.
Respondent next contends that the probate court erred in excluding evidence regarding the best interests of the child. We agree, but conclude that the court’s error does not require reversal. This Court reviews the probate court’s evidentiary decision for an abuse of discretion. Hill, supra at 696. This Court, however, will not reverse on the basis of an evidentiary error unless the court’s ruling affected a party’s substantial rights. MCR 2.613(A); MRE 103(a); Williams v Coleman, 194 Mich App 606, 621; 488 NW2d 464 (1992).
The probate court excluded the evidence because it believed that evidence regarding the child’s best interests is irrelevant to a determination whether to terminate a parent’s rights under MCL 710.51(6); MSA 27.3178(555.51)(6). In Hill, supra at 696, however, this Court held that the probate court may consider evidence regarding the best interests of the child in deciding whether to terminate a parent’s rights under MCL 710.51(6); MSA 27.3178(555.51)(6) because the statute is permissive, not mandatory. Although this Court may remand a case for further consideration when, such as in this case, a lower court does not fully recognize the discretion it possesses, see Lorenz v Lorenz, 166 Mich App 58, 62; 419 NW2d 770 (1988); Janczyk v Davis, 125 Mich App 683, 693; 337 NW2d 272 (1983), we decline to do so here because the court’s error did not affect respondent’s substantial rights. Respondent began serving his sentence when his son was one year old. The child is now almost seven. Consistent with the probate court’s findings, the record reveals that respondent provided no support and seldom communicated with the child. Given the child’s age and the absence of a parent-child relationship, evidence regarding the child’s relationship with respondent’s parents would not have justified a decision not to terminate respondent’s rights.
Affirmed.
With our holding today, we do not suggest that termination of an incarcerated parent’s rights and adoption by a stepparent is always in a child’s best interest. The probate court’s decision to terminate an incarcerated parent’s rights and free the child for adoption by a stepparent turns on the particular facts of each case. Although sometimes difficult, an incarcerated parent is generally capable of satisfying the support and contact requirements of the statute. Even where the incarcerated parent did not comply with the support and contact requirements of the statute, the court may in some cases elect not to terminate the parent’s rights. Hill, supra at 696; Martyn, supra at 480. | [
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Kelly, PJ.
In Docket No. 197410, a wrongful death action, plaintiff, decedent Jean Marie Iovino’s husband and personal representative of her estate, appeals as of right the order of the Court of Claims granting summary disposition in favor of the State of Michigan, Department of Transportation (hereafter mdot) based on governmental immunity, pursuant to MCR 2.116(C)(7). In Docket No. 197418, also an action for wrongful death, plaintiff appeals as of right the order of the Oakland Circuit Court granting summary disposition for the Oakland County Board of County Road Commissioners on the basis of governmental immunity. We reverse in part and affirm in part.
On August 28, 1993, Jean Iovino was killed when the vehicle she was driving collided with a train owned by the Grand Trunk Railroad Company. The accident occurred on the Grand Trunk train crossing located at the point where Watkins Lake Road, an Oakland County roadway, widened to form an intersection with Dixie Highway, a state highway, in Waterford Township in Oakland County. Before the accident, Iovino was driving southeast on Dixie Highway. She turned right to travel south on Watkins Lake Road and almost immediately came upon the train as it entered the grade crossing.
Northbound Watkins Lake Road, a two-lane road, ends at Dixie Highway, which is a five-lane highway. The two roadways intersect at a seventy-degree angle. There is a traffic signal under the MDOT’s jurisdiction located at the intersection of Dixie Highway and Watkins Lake Road. A vehicle turning right onto Watkins Lake Road from southeast-bound Dixie Highway crosses the Grand Trunk railroad tracks before completing the turn. There are two railroad crossing light poles, or crossbucks, located on either side of the tracks, but there were no crossing gates in place when decedent’s accident occurred.
At the time of the decedent’s accident, when a train entered the crossing “circuitry,” the traffic signal on southeast-bound Dixie Highway was “preempted” and became a flashing yellow light, even if it originally had been red, thus allowing a driver in the right turn lane to turn onto Watkins Lake Road. Motorists traveling north on Watkins Lake Road toward Dixie Highway had the benefit of a flashing red light from the same traffic signal at the intersection when there was an oncoming train. Additionally, a traffic signal on Watkins Lake Road located just south of the crossing turned red to stop northbound traffic when a train approached the crossing, regardless of the light cycle that was in effect before the train crossed the circuitry.
Plaintiff filed wrongful death claims against the MOOT, the road commission, and the Grand Trunk Rail road. The MDOT filed a motion for summary disposition, claiming that, although it had jurisdiction over the intersection of Dixie Highway and Watkins Lake Road, it had no jurisdiction over the actual site of the accident. Rather, the mdot argued that the board of county road commissioners had exclusive jurisdiction over the place where the accident occurred and that, thus, the mdot enjoyed governmental immunity from the negligence suit stemming from the accident. The mdot also advanced that plaintiffs allegation that the intersection was unreasonably dangerous because it did not contain adequate signs or lights was barred by MCL 691.1402; MSA 3.996(102), which limits the state’s duty to maintain a highway reasonably safe for vehicular travel “only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, cross walks, or any other installation outside of the improved portion of the highway designed for vehicular travel.” The Court of Claims agreed that MCL 691.1402; MSA 3.996(102) shielded the mdot from liability, and thus granted its motion for summary disposition
i
Plaintiff first argues that the trial court erred in granting the mdot’s motion for summary disposition on the basis of governmental immunity because the mdot had an affirmative duty to maintain adequate traffic control devices or warning signs at the intersection of Dixie Highway and Watkins Lake Road. We agree.
In deciding a motion for summary disposition brought pursuant to MCR 2.116(C)(7), a court must consider all documentary evidence submitted by the parties. Terry v Detroit, 226 Mich App 418, 428; 573 NW2d 348 (1997). The court accepts all well-pleaded allegations as true and considers them in a light most favorable to the nonmoving party in determining whether the defendant is entitled to judgment as a matter of law. The plaintiff must allege facts giving rise to an exception to governmental immunity in order to defeat the motion for summary disposition. Id. We review the trial court’s grant of summary disposition de novo. Id. at 423.
Generally, governmental agencies enjoy a broad grant of immunity from tort liability in cases where the governmental agency is engaged in the exercise or discharge of a governmental function. MCL 691.1407(1); MSA 3.996(107)(1); Tryc v Michigan Veterans’ Facility, 451 Mich 129, 134; 545 NW2d 642 (1996). While maintenance of highways is one such governmental function, the so-called “highway exception” to governmental immunity, MCL 691.1402(1); MSA 3.996(102)(1), provides in pertinent part:
Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.
Thus, the governmental immunity act limits liability under the highway exception to the governmental agency having jurisdiction over the highway at the time of the injury. Markillie v Livingston Co Bd of Co Rd Comm’rs, 210 Mich App 16, 19; 532 NW2d 878 (1995). Only one governmental agency at a time may have jurisdiction over a highway; there is no concurrent jurisdiction. Id. at 20. The state has sole jurisdiction over intersections of state and county roadways. Id.
We find the case of Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996), to be particularly instructive in resolving the instant controversy. In Pick, the plaintiff’s automobile collided with another at an intersection that was not controlled by any traffic lights or signs. Apparently, an apple orchard located on private property near the road obstructed the vision of motorists using the intersection. Id. at 610-612. The plaintiff sued the Gratiot County Road Commission for negligence, alleging that, pursuant to MCL 691.1401 et seq.-, MSA 3.996(101) et seq., the county road commission had the statutory duties to design, maintain, and repair the intersection so that it was reasonably safe and fit for public travel, which included the duty to install adequate traffic control devices at the intersection. Id. at 611-612. The circuit court granted summary disposition for the road commission, reasoning that the road commission was not statutorily required to “ ‘go outside the roadway proper’ ” when acting pursuant to its duty to maintain and repair the roadway. Id. at 612. A panel of this Court affirmed the order granting summary disposition in favor of the defendant. This Court reasoned that the hazard created by the orchard did not give rise to a duty on the part of the road commission, because the orchard was located outside the improved portion of the roadway designed for vehicular travel. This Court went further to hold that because signs and traffic lights are located outside the portion of the highway designed for vehicular travel, the plaintiff could not predicate liability on the road commission’s failure to erect proper fights or warning signs. Id. at 613-614.
The Supreme Court reversed. The Court “expressly h[e]ld that a duty to provide adequate warning signs or traffic control devices at known points of hazard arises under the highway exception of the governmental tort liability act.” Id. at 619. The Court noted that the highway exception abrogated governmental immunity at “points of special danger to motorists,” id. (quoting Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 135; 523 NW2d 791 [1994]), which the Court defined
as any condition that directly affects vehicular travel on the improved portion of the roadway so that such travel is not reasonably safe. To be a point of hazard for purposes of the highway exception, the condition must be one that uniquely affects vehicular travel on the improved portion of the roadway, as opposed to a condition that generally affects the roadway and its surrounding environment.. .. [S]uch conditions need not be physically part of the roadbed itself. [Pick, supra at 623.]
The fact that the orchard was located outside the improved portion of the roadway designed for vehicular travel was not critical because
[vehicular travel does not take place solely on the two-dimensional length and width of the roadway; rather, it occurs in three-dimensional space, and necessarily implicates factors not physically within the improved portion of the roadway itself, factors that can be points of hazard to reasonably safe vehicular travel on the interconnected network of public roadways. [Id. at 622-623.]
Thus, Pick stands for the proposition that a governmental entity having jurisdiction over a roadway may be held liable for its failure to provide adequate traffic control devices or warning signs at points of special danger to motorists, even if the condition presenting a special hazard is not physically part of the roadway designed for vehicular travel.
While Pick did not involve an accident at a railroad crossing, we find that its reasoning supports our holding that governmental immunity does not bar plaintiffs negligence claim against the MDOT. In our view, the positioning and proximity of the railroad tracks to the intersection of Dixie Highway and Watkins Lake Road, which created an enormous hazard to motorists turning right from Dixie Highway onto Watkins Lake Road, posed a special danger to motorists using the intersection. A corresponding duty arose on the part of the mdot to erect adequate signs or traffic signals to ensure reasonable safety for traffic using the intersection.
However, the mdot argues that it fulfilled its duty to make the intersection reasonably safe by installing a light for southeast-bound traffic on Dixie Highway controlling right turns onto Watkins Lake Road. That light would begin flashing yellow whenever a train entered the grade crossing on Watkins Lake Road. Citing Wechsler v Wayne Co Rd Comm, 215 Mich App 579; 546 NW2d 690 (1996), the mdot argues that it cannot be held liable for its failure to make the intersection safer. The trial court agreed with this contention. We disagree. The hazards associated with intersections and railroad crossings are dramatically different.
In Wechsler, the plaintiffs decedent was killed when he turned left from Wick-Goddard Road onto Middlebelt Road. There was no left turn lane. Because traffic was heavy, the decedent had to negotiate his turn when the light was yellow. However, as he was turning, his vehicle collided with a van. Id. at 582-583. The plaintiff alleged that the intersection without a left turn lane was a “special hazard” and that the defendant road commission was negligent in failing to install a left turn signal. Id. at 584. This Court stated that ordinary intersections on flat terrain are not points of special hazard for which the duty to maintain highways in a condition reasonably safe and fit for public travel imports an obligation to install extraordinary traffic-control devices beyond common stop signs or stop lights. Id. at 595. Additionally, this Court held that if the existing highway was maintained so as to be reasonably safe, liability could not be predicated on a defendant’s failure to make it safer still. Id. at 594.
We believe that Wechsler is easily distinguishable from the present case. Wechsler did not involve an intersection that funneled turning traffic directly onto railroad tracks and into the path of an oncoming train. Moreover, plaintiff in this case is not simply arguing that the intersection could be made safer. Rather, plaintiff asserts that the flashing yellow lights placed by the mdot made the intersection and railroad crossing more dangerous by inviting motorists to proceed and turn right despite the presence of an oncoming train. An otherwise appropriate sign or signal must be positioned properly so as to relate adequately to the hazard it is designed to ameliorate. Id. at 590. Plaintiff has presented evidence to establish that the traffic signals at the intersection of Dixie Highway and Watkins Lake Road may not have been properly positioned or programmed to ameliorate the hazard of an oncoming train. Thus, we reject the mdot’s contention that plaintiff has merely alleged that it could have made the intersection safer. Instead, plaintiffs claim is that the intersection was not reasonably safe because the mdot failed to erect adequate signs or signals to warn of oncoming trains or otherwise prevent turning traffic from colliding with crossing locomotives.
Additionally, we must note that it was improper for the trial court to make the factual finding that the flashing yellow light positioned on Dixie Highway “does in fact confer more safety upon motorists” than the stop sign that was previously erected at the site. A trial court is not permitted to make factual findings in resolving a motion for summary disposition. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). Whether the mdot breached its duty to make the intersection of Dixie Highway and Watkins Lake Road reasonably safe for vehicular travel is a question for the jury to decide. Therefore, the trial court erred in determining that the flashing yellow light was adequate to render the intersection reasonably safe.
Further, we are not persuaded by the mdot’s argument that it cannot be held hable because the accident actually took place on Watkins Lake Road, where the train struck Mrs. Iovino’s car. Plaintiff has supplied this Court with several photographic exhibits that clearly depict the intersection where Mrs. Iovino’s accident occurred. There is no question that the mdot had jurisdiction over the intersection. Markillie, supra. The railroad tracks cross Watkins Lake Road at a point where the very tip of this roadway begins to widen into its intersection with Dixie Highway. A vehicle making a right turn from southeast-bound Dixie Highway comes upon the railroad tracks even before completing its turn. It is not at all apparent that Mrs. Iovino’s accident took place outside the intersection over which the mdot had jurisdiction. Moreover, the term “jurisdiction” as used in MCL 691.1402(1); MSA 3.996(102)(1) is synonymous with “control.” Markillie, supra at 22. The mdot concedes that it had previously ordered Grand Trunk to place railroad crossing gates at the grade crossing where the accident occurred. Clearly, then, the mdot actually exercised control over the area in question and must be perceived to have jurisdiction over this spot pursuant to the conception of jurisdiction as used in the statute.
We must also reject the mdot’s proposition that it cannot be held liable for failure to provide adequate traffic signals or warning signs at the intersection because these devices would amount to railroad warning devices and no public authority had ordered the mdot to erect such warning devices at this loca tion. MCL 257.668(2); MSA 9.2368(2), concerning the erection of railroad warning devices by public authorities, states, in pertinent part:
The state transportation department with respect to highways under its jurisdiction, the county road commissions, and local authorities with reference to highways under their jurisdiction, may designate certain grade crossings of railways by highways as yield crossings, and erect signs at the crossings notifying drivers of vehicles upon the highway to yield. . . . The erection of or failure to erect, replace, or maintain a stop or yield sign or other railroad warning device, unless such devices or signs were ordered by public authority, shall not be a basis for an action of negligence against the state transportation department, county road commissions, the railroads, or local authorities.
See Taylor v Lenawee Co Bd of Co Rd Comm’rs, 216 Mich App 435, 438-439; 549 NW2d 80 (1996). By enacting this statute, “the Legislature intended that no liability was to be premised upon the absence of warning devices at a railroad crossing absent an order by the proper authority to install devices and a failure to follow that order.” Turner v CSX Transportation, Inc, 198 Mich App 254, 257; 497 NW2d 571 (1993).
Before Mrs. Iovino’s accident, the MDOT ordered Grand Trunk to install railroad crossing gates at the Watkins Lake Road grade crossing. While the mdot claims that it cannot be held liable for its failure to provide some type of warning device at the intersection to alert drivers of the presence of crossing trains because a public authority had not ordered it to erect such warning devices, the mdot has not shown that a legitimate public body exists that could order it to take such action. Indeed, only the mdot can order the installation of active railroad warning devices, advance warning signs, and railroad crossbucks. Edington v Grand Trunk W R Co, 165 Mich App 163, 168, n 3; 418 NW2d 415 (1987). Here, the MDOT, the sole public body with the authority to order additional or improved railroad warning devices, recognized the need to oversee the safety of the intersection and, thus, ordered the installation of crossing gates. It thereafter failed to correct the traffic light situation existing on Dixie Highway that allowed traffic turning right from that highway to immediately cross the railroad tracks, with the attendant obvious danger that such a situation entailed. Under these unique circumstances, we find that the mdot’s order to Grand Trunk — its recognition that the intersection was not reasonably safe — and its subsequent failure to secure the safety of the intersection were sufficient to fulfill the order requirement of MCL 257.668(2); MSA 9.2368(2).
n
We affirm the trial court’s grant of summary disposition for the board of county road commissioners. It is not contested that the mdot ordered only Grand Trunk to make improvements at the accident site to increase traffic safety. The mdot forwarded a copy of the order to the board of county road commissioners, but did not require that public body to add railroad warning devices of any kind. Hence, pursuant to MCL 257.668(2); MSA 9.2368(2), plaintiff is precluded from bringing suit against the board of county road commissioners for its failure to place additional warning signals at the accident site. Taylor, supra at 439-440.
Reversed in part and affirmed in part.
Oakland Circuit Judge Rudy J. Nichols sat as the Court of Claims.
Grand Trunk settled the lawsuit plaintiff filed against it, and does not join in this appeal.
203 Mich App 138; 511 NW2d 694 (1993).
It is important to note that the mdot had replaced a stop sign at the intersection with the flashing yellow light. | [
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Per Curiam.
Plaintiff Gerald Stabley appeals as of right the trial court order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm.
The facts of this case are essentially undisputed. On May 20, 1995, plaintiff was rollerblading on a paved path in the Stoney Creek Metropolitan Park when the wheels of one of his Rollerblades became wedged in a large crack in the pavement, causing him to be thrown to the pavement. Plaintiff’s injuries included a fractured left humerus, a tom rotator cuff, and the loss of three teeth.
Photographic exhibits presented to the trial court show that the path is designated as a “Hike-Bike Trail.” The trail is 6.1 miles long. It meanders through the park, in some places running parallel to the road, in other locations running through the woods, and at some points crossing the road. The parties do not dispute that the place where plaintiff allegedly fell is in the wooded interior of the park.
On March 22, 1996, plaintiff commenced a negligence action against Stoney Creek Metropolitan Park and the Huron-Clinton Metropolitan Park Authority, seeking damages for his injuries. In addition, plaintiff’s wife sought to recover damages for loss of consortium. Plaintiff alleged that defendants negligently maintained the trail and that he was entitled to recover for his injuries pursuant to the highway exception to governmental immunity, MCL 691.1402; MSA 3.996(102).
Defendants moved for summary disposition under MCR 2.116(C)(7) on the ground that the highway exception did not apply because the trail is not a sidewalk on a highway within the meaning of MCL 691.1401(e); MSA 3.996(101)(e). The trial court concluded that the trail is not a sidewalk within the meaning of the statute and therefore granted defendants’ motion for summary disposition. Plaintiff appealed.
MCR 2.116(C)(7) provides that summary disposition is proper when a claim is barred because of immunity granted by law. When reviewing a motion for summary disposition granted pursuant to MCR 2.116(C)(7), this Court must accept as true the plaintiff’s well-pleaded allegations and construe them in a light most favorable to the plaintiff. The motion should not be granted unless no factual development could provide a basis for recovery. This Court reviews a summary disposition determination de novo as a question of law. MS Development, Inc v Auto Plaza of Woodhaven (After Remand), 220 Mich App 540, 545; 560 NW2d 62 (1996).
The highway exception is a narrowly drawn exception to the broad grant of immunity for governmental units. No action may be maintained under the highway exception unless it is clearly within the scope and meaning of the statute. Scheurman v Dep’t of Transportation, 434 Mich 619, 630; 456 NW2d 66 (1990). The highway exception provides in pertinent part:
Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury ... by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair, and in condition reasonably fit for travel, may recover the damages suffered by him or her from the governmental agency. [MCL 691.1402(1); MSA 3.996(102)(1).]
The term “highway” encompasses “every public highway, road, and street which is open for public travel and shall include . . . sidewalks ... on any highway.” MCL 691.1401(e); MSA 3.996(101)(e).
Statutory interpretation is a question of law subject to review de novo on appeal. Golf Concepts v Rochester Hills, 217 Mich App 21, 26; 550 NW2d 803 (1996). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). 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. Nat’l Center for Mfg Sciences, Inc v Ann Arbor, 221 Mich App 541, 545-546; 563 NW2d 65 (1997).
Plaintiff argues that the trial court erred in finding that the trail at issue was not a “sidewalk” within the meaning of the highway exception to governmental immunity. The word “sidewalk” is not defined in the statute. However, simply because a phrase is undefined does not render a statute ambiguous. Rather, undefined words are given meaning as understood in common language, taking into consideration the text and subject matter relative to which they are employed. Where a statute does not define one of its terms, it is customary to look to a dictionary for a definition. Marcelle v Taubman, 224 Mich App 215, 219; 568 NW2d 393 (1997).
According to Webster’s New World Dictionary, a “sidewalk” is “a path for pedestrians, usually paved, along the side of a street.” The American Heritage Dictionary: Second College Edition defines “sidewalk” as a “walk or raised path for pedestrians along the side of a road.” Random House Webster’s College Dictionary (1992) defines “sidewalk” as “a usu. paved walk at the side of a roadway.” In Black’s Law Dictionary (6th ed), “sidewalk” is defined as “[t]hat part of a public street or highway designed for the use of pedestrians.”
Furthermore, the Supreme Court has looked to definitions set forth in the Michigan Vehicle Code to ascertain the meaning of terms shared by the Michigan Vehicle Code and the governmental immunity statute. See Roy v Dep’t of Transportation, 428 Mich 330, 338-340; 408 NW2d 783 (1987). In the Michigan Vehicle Code, the term “sidewalk” is defined as “that portion of a street between the curb lines, or lateral lines of roadway, and the adjacent property lines intended for the use of pedestrians.” MCL 257.60; MSA 9.1860.
There are no published Michigan cases that expressly construe the phrase “sidewalks ... on any highway.” However, the highway exception has been applied where the injury was sustained on a sidewalk “adjacent” to or “along” a county road. See Listanski v Canton Twp, 452 Mich 678, 682; 551 NW2d 98 (1996). Moreover, in Campbell v Detroit, 51 Mich App 34, 35-36; 214 NW2d 337 (1973), this Court determined that a sidewalk alongside a street that had been closed for some time and was being removed for an urban renewal project was not a sidewalk “on any highway” because the street was not open for public travel, as required by the statutory definition of highway.
In light of the foregoing, we conclude that linking the word “sidewalk” with an adjacent road is in accord with the common and approved usage of the word. See USAA Ins Co v Houston General Ins Co, 220 Mich App 386, 391; 559 NW2d 98 (1996). Plaintiffs fall did not occur on the portion of the trail that runs adjacent to the roadway, but rather on the portion that runs through the wooded interior of the park. Because plaintiffs fall did not occur on a pedestrian way that ran alongside a public roadway, plaintiffs fall did not occur on a “sidewalk” within the meaning of MCL 691.1401(e); MSA 3.996(101)(e). Consequently, defendants are entitled to immunity.
Plaintiff contends that it is better policy to distribute the cost of injuries occurring on negligently maintained trails to the public that uses the parks, rather than leave individuals to bear the costs of such injuries. However, the Legislature has plainly limited the imposition of governmental liability to injuries occurring at specific locations. The Legislature chose not to impose liability for injuries sustained on all paved walkways, but rather used the specific term “sidewalk.” See MCL 691.1401(e); MSA 3.996(101)(e). This Court will not impose a policy-driven interpretation on the plain language of a statute when the Legislature has chosen among competing policy considerations. Verbison v Auto Club Ins Ass’n, 201 Mich App 635, 640; 506 NW2d 920 (1993).
Finally, plaintiff asserts that it is sufficient that portions of the 6.1-mile-long trail are on a highway. We disagree. Plaintiffs cause of action cannot be maintained because it is not clearly within the scope and meaning of the statute. See Scheurman, supra at 630. MCL 691.1402; MSA 3.996(102) does not offer protection to pedestrians and motorists without regard to location. Cf. Roy, supra at 341.
Affirmed.
Annie Stabley, Gerald Stabley’s wife, joins him as plaintiff. Because her loss of consortium claim is derivative and dependent on his claim, and to avoid confusion, we will refer only to plaintiff Gerald Stabley.
MCL 257.1 et seq.) MSA 9.1801 et seq.
The specific issue in Roy was whether a bicycle path that was detached from, but ran parallel to, a road came within the state’s duty, which was expressly limited under MCL 691.1402; MSA 3.996(102) to “the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.” Roy, supra at 333. The Supreme Court considered the similar treatment of pedestrians and bicyclists under the Michigan Vehicle Code in its analysis. Id. at 335-336. However, the Court’s finding that a bicycle path is an “installation outside of the improved portion of the highway designed for vehicular travel” ultimately turned on the fact that a bicycle was not a “vehicle” as defined in the Michigan Vehicle Code, MCL 257.79; MSA 9.1879, and the similarity of the Michigan Vehicle Code’s definition to the commonly understood meaning of the word “vehicular” in Webster’s Third New International Dictionary (1966). In the present case, the term at issue is “sidewalks.” Roy does not address this term, and the limitation in MCL 691.1402(1); MSA 3.966(102)(1) for the “improved portion of the highway” does not apply to defendants. However, while Roy is not on point, we nevertheless find its analysis instructive.
Pursuant to the general rules of statutory interpretation, a statute should not be interpreted so as to render any statutory language surplus-age or nugatory. Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 355; 564 NW2d 519 (1997). With regard to “sidewalks” in the definition of “highway” in MCL 691.1401(e); MSA 3.996(101)(e), it is arguable that the phrase “on any highway” is redundant because the word “sidewalk” itself is commonly understood to refer to a paved way for pedestrians on the side of a roadway. Nevertheless, the modifying phrase “on any highway” is relevant to other entities listed in MCL 691.1401(e); MSA 3.996(101)(e), such as bridges and culverts. In any case, while the phrase “on any highway” may be redundant with regard to “sidewalks,” the meaning of “sidewalks ... on any highway,” as indicated by the common usage of the language, supports the conclusion that only paved ways located adjacent to a public roadway come within the meaning of “sidewalks” as used in MCL 691.1401(e); MSA 3.996(101)(e).
Defendants assert in their brief on appeal that the main road in the park is not a “road . . . which is open for public travel.” See MCL 691.1401(e); MSA 3.996(101)(e). However, because the trial court’s decision was based upon the definition of “sidewalk,” we decline to address this issue. See Smit v State Farm Mut Automobile Ins Co, 207 Mich App 674, 685; 525 NW2d 528 (1994). | [
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W. J. Giovan, J.
Defendant was convicted by jury of assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He subsequently pleaded guilty to being an habitual offender, third offense. MCL 769.11; MSA 28.1083. He was sentenced to two years’ imprisonment on the felony-firearm conviction, to be immediately followed by concurrent sentences of fifteen to forty years on the assault and habitual offender convictions.
Defendant appealed as of right to this Court, raising numerous allegations of error. In an opinion dated March 1, 1996, we remanded this matter to the circuit court for an evidentiary hearing addressing defendant’s contention that the 180-day rule, MCL 780.131; MSA 28.969(1); MCR 6.004(D), had been violated and, in addition, to allow the circuit court to correct the judgment of sentence by vacating the sentence imposed for the offense underlying the habitual offender conviction. MCL 769.13; MSA 28.1085; People v Gren, 152 Mich App 20, 27; 391 NW2d 508 (1986). We did not retain jurisdiction.
Defendant moved for rehearing on the issue of retention of jurisdiction, and in an order dated June 12, 1996, we held the request in abeyance pending the outcome of the evidentiary hearing. The evidentiary hearing was held in the circuit court in October 1996, the court concluding that there had been no violation of the 180-day rule. Defendant then renewed his request for rehearing in this Court. We granted the motion and now address the substance of defendant’s appeal.
We agree with the circuit court that the prosecution carried its burden of demonstrating that there had been no violation of the 180-day rule. We reverse, however, on other grounds.
I. THE 180-DAY RULE
As set forth in MCL 780.131; MSA 28.969(1), an inmate of the Department of Corrections “shall be brought to trial within 180 days” after the prosecution is given notice of untried charges against the defendant. At the hearing on remand the parties stipulated that the defendant became a state prisoner for purposes of the 180-day rule on December 15, 1989, that the 180th day would have been June 13, 1990, and that trial began on June 19, 1990, the 186th day.
Consistent with the Supreme Court’s interpretation of the statute in People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959), MCR 6.004(D) requires only that the prosecutor must “make a good faith effort to bring a criminal charge to trial” within the applicable 180-day period. In the course of describing the intent of the statute the Hendershot Court said:
The statute does not require the action to be commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court’s retention of jurisdiction is met. [Id., 304]
To start with, we should not expect the people to have a formidable task to produce evidence of good-faith efforts toward trial within the 180-day period when the trial has in fact occurred on the 186th day. In any event, the evidentiary hearing held on remand established what the defendant had expressly denied at the hearing before trial, i.e., that on the original trial date of February 23, 1990, well within the 180-day period, defense counsel asked for and was granted a seven-day adjournment to complete preparation for trial. Ten days later, another charge pending against the defendant was tried from March 5 through March 7.
On remand the trial court correctly concluded that the seven-day period representing the adjournment granted to the defendant should not be charged against the prosecutor and that there was, accordingly, no violation of the 180-day statute. Hendershot, supra. Nor is the time consumed in trying the defendant’s other charge counted against the 180-day period. People v Hill, 402 Mich 272, 282-283; 262 NW2d 641 (1978).
The defendant contends that his request for an adjournment should be irrelevant because the record commands a conclusion that the prosecutor was not ready for trial on February 23, 1990. In support the defendant notes that on February 16, 1990 the prosecutor had filed a motion to be heard on February 23 to endorse two witnesses in addition to those already endorsed, that five of the seven witnesses called by the prosecution at trial were not endorsed until after February 23 because of mistake of the prosecutor, and that the prosecutor did not say on February 23 that he was ready for trial.
While we can suppose anything, there is something less than a certainty that the prosecutor would not have gone to trial on February 23 if the defendant had not requested an adjournment and had instead insisted on going to trial. One of the witnesses already endorsed on February 23 was the victim, whose account of the events was not materially contradicted at trial and whose testimony by itself would have supported the charges against the defendant. For all we know, the absence of any announcement by the prosecutor that he was prepared to go to trial is explained by his unwillingness to press an advantage against a defendant who has announced that he is not prepared to proceed to trial or, just as likely, by his recognition of the futility of attempting to do so. In any event, like the trial court, we decline to attribute greater weight to one of several possible hypotheses concerning a circumstance that never occurred than to the plain reality that the defendant requested an adjournment and the prosecutor did not. The trial court correctly determined that there was no violation of the 180-day rule.
n. DENIAL OF SPEEDY TRIAL
The defendant claims that he lost the opportunity to present a witness favorable to him because of a combination of unreasonable delay by the prosecutor in bringing the case to trial and the trial court’s refusal to grant the defendant a continuance until such time as the witness could be located. The prejudice claimed by the defendant is that the proposed witness, Robert Anderson, who had escaped from Maxey Boy’s Training School by the time of trial, would have testified that it was he, not the defendant, who shot at the victim.
This claim of error is made, of course, after the trial, at which the defendant readily admitted that he shot at the victim, his sole defense being that he had not intended to kill him. The defendant now makes the argument that if he had had the opportunity to call Anderson as a witness, his strategy at trial might have been different. Accordingly, the defendant bases the present claim of error on the premise that he was deprived of the opportunity to present perjury in the trial court. Besides being meritless, the argument goes beyond the limits of legitimate advocacy.
m. CHARACTER EVIDENCE
Consistent with MRE 609, the trial court ruled before trial that a 1987 conviction of the defendant for breaking and entering with intent to commit larceny could be used “for credibility purposes only” if the defendant should testify.
During cross-examination of the defendant the prosecutor inquired about the breaking and entering conviction and the following exchange occurred:
Prosecutor. You understood, did you not, sir, at the time that you broke into this home that was against the law, didn’t you?
Defense counsel: Objection, your Honor. Objection, your Honor, please. Your Honor, it’s irrelevant. It’s irrelevant.
The Court: I will sustain the objection to that last question. Prosecutor. If I could respond, your Honor. It goes to character, your Honor. It’s a clearly permissible form. I want to establish that this individual has no regard for the law. He knowingly broke and entered a home.
After the Court repeated that the objection was sustained, and after a few intervening questions, the prosecutor continued:
Q. So you committed this B & E anyway, even though you knew it was against the law, correct ?
A. Yes.
Q. And you want the jury here today to believe that even though you’ve been convicted of a prior larceny—
Defense counsel: Objection, your Honor, please.
The Court: Sustained.
During closing argument the prosecutor returned to his theme that the defendant’s prior conviction demonstrated disregard for the law:
I’m not even going to speculate about who was screaming, but the defendant was not happy, and again this defendant completely disregarded the law as he did in the breaking and entering, which I’ll get to in a moment. He disregarded the law.
I want to point out one other thing and that is impeachment. The reason I brought it up is this impeachment, his prior conviction is very consistent with this act. It’s an absolute disregard—
Defense counsel: Objection, your Honor. Can we approach the bench, please ?
After the jury was taken from the courtroom following final argument, defendant moved for a mistrial on the basis of repeated misuse of the prior conviction. The prosecutor responded that his approach had been proper:
Your Honor, it is my opinion, and I haven’t heard any authority from Mr. Cleary [defense counsel] to support his position, but it’s my opinion that I properly argued the prior conviction under 609 as it relates to truth, veracity as well as form of character. I utilized the same theme I started with in my opening. I relied on this act as well as attached to the other act, and I think it’s permissible as to a form of impeachment and a form of character.
The Court denied the motion for a mistrial without comment.
The behavior of the prosecutor in the cited instances demonstrated, at a minimum, a void of awareness of one of the most frequently invoked common-law evidentiary rules of exclusion, applicable in civil and criminal cases alike, embodied in the Michigan Rules of Evidence in MRE 404 (a) and reinforced in MRE 609, i.e., that evidence of character, even though relevant, is more prejudicial than proba tive as a matter of law if offered to prove that a person acted in conformity therewith on a given occasion. The rationale of the rule as it applies in criminal cases was explained by the Court in People v Allen, 429 Mich 558, 568-569; 420 NW2d 499 (1988):
A jury should not be allowed to consider the defendant’s guilt of the crime before it on the basis of evidence of his propensity for crime. Finding a person guilty of a crime is not a pleasant or easy assignment for a representative group of twelve people. It is much easier to conclude that a person is bad than that he did something bad. Hence the appetite for more knowledge of the defendant’s background and the slippery slope toward general “bad man” evidence.
This appetite presents three types of impropriety. First, that jurors may determine that although defendant’s guilt in the case before them is in doubt, he is a bad man and should therefore be punished. Second, the character evidence may lead the jury to lower the burden of proof against the defendant, since, even if the guilty verdict is incorrect, no “innocent” man will be forced to endure punishment. Third, the jury may determine that on the basis of his prior actions, the defendant has a propensity to commit crimes, and therefore he probably is guilty of the crime with which he is charged.
In the case at bar the prosecutor seemed to believe that he was entitled to use the defendant’s prior conviction for its forbidden purpose, and he was not deterred from that view in spite of several rulings by the trial judge. While we do not conclude that the prosecutor’s transgressions in this regard were intentional, see People v Dawson, 431 Mich 234; 427 NW2d 886 (1988), we believe that the repeated emphasis of defendant’s conviction for the expressly forbidden puipose cannot be regarded as harmless and that the defendant is therefore entitled to a new trial on the charges against him.
This inappropriate attack against character by the prosecutor was aggravated by the needless introduction into evidence of a police photograph of the defendant. People v Heller, 47 Mich App 408; 209 NW2d 439 (1973). The victim testified that while in the hospital he identified the defendant from a series of photographs, and, over objection, the court admitted into evidence a folder containing six photographs, including the defendant’s, on the basis that “identity is always an issue.”
It is true that the potential for prejudice might have been mitigated in this instance because of the earlier decision of the court to admit evidence of the defendant’s breaking and entering conviction for impeachment purposes. Here, however, neither the in-court nor the out-of-court identification of the defendant by the witness had been challenged; nor had the identifications of prior witnesses been attacked. Had the identification been challenged, moreover, there would have been ample opportunity to introduce the photo graphs on redirect examination or, if necessary, during rebuttal. In the utter absence of any issue of identification, the admission of defendant’s police photograph was gratuitous and not justified by the truism that identity is always an issue.
iv. hearsay
Because a retrial will be required, we address defendant’s claim that the trial court committed error by admitting hearsay evidence. We conclude that the questioned evidence involved no hearsay.
The proofs at trial showed that Christine Berry had lived with the defendant, Alphonzo Jones, for several months in mid-1989. On September 11 of that year, a woman later identified as Alicia Love, drove a white automobile into the driveway of the house where Ms. Berry was living, carrying the defendant as a passenger and playing loud music. Ms. Berry testified without objection that she heard the woman shouting at her over a loudspeaker to come outside so that she could “kick my butt.” The woman shouted vulgarities and profanities for five minutes. The hearsay objection was inteiposed to Ms. Berry’s testimony that the woman shouted: “Bitch come out, I’m gonna kick your ass. And Alphonzo don’t want you, Alphonzo don’t love you.”
Two neighbors emerged from their homes and, angered by the loud noise and the obscenities, shouted at Ms. Love and the defendant. The vehicle left the neighborhood and returned a short time later, eventually driving into the driveway of one of the neighbors, complainant John Reed. Mr. Reed approached the vehicle and exchanged angry words with Ms. Love and the defendant concerning their behavior. When challenged by the defendant regarding what he would do, Reed threatened to throw an apple at the automobile. The vehicle left the neighborhood and shortly thereafter a green automobile drove up to Mr. Reed’s residence. When defendant and another male emerged from the vehicle, Reed came out of his house and walked toward the defendant. After they exchanged more angry words, the defendant produced a handgun and discharged it into the ground. As Mr. Reed ran away, the defendant fired three shots at him, one of which struck Reed in the back. The defendant then fired two shots at Reed’s house and fled with the other male.
To start with, the first sentence of the declarant’s out-of-court speech (“Bitch, come out”) does not fit the first element of hearsay because it is not a “statement.”
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [MRE 801(c) (emphasis supplied).]
As used in the definition of hearsay, the term “statement” means an assertion:
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by the person as an assertion. [MRE 801(a).]
“Bitch, come out” contains no assertion. It is incapable of being true or false. It is a command, not an assertion, and cannot be hearsay because it doesn’t qualify as a “statement.”
The remainder of the challenged declaration consists of two sentences that are assertions. (“I’m gonna kick your ass. And Alphonzo don’t want you, Alphonzo don’t love you.”) Those statements were not offered, however, to prove the truth of the matters asserted by the declarant. They were not offered, for example, to prove that Ms. Love was going to assault Ms. Berry. By the time of trial it was known with certainty that she had not kicked her, and the statement could not have been offered for that purpose. Nor was the evidence offered to prove that Alphonzo didn’t love Ms. Berry, as it did not matter for the prosecutor’s purpose what might have been the particular source of the defendant’s anger toward Ms. Berry.
Ms. Love’s words were offered, rather, as an integral part of the series of events that led to the shooting of the victim, which events included Ms. Love’s verbal conduct — the more significant part — as well as any other part of her behavior. In this instance her assertions were a component of the threat she was making to Christine Berry, a threat being an act done with words that is admissible as nonhearsay. Gibson v Group Ins Co of Michigan, 142 Mich App 271, 277; 369 NW2d 484 (1985).
The defendant argues that the evidence is hearsay because the words of another tend to establish circumstantially his anger and, thus, his motive to kill. But if that is what the evidence shows, that is what evidence is supposed to do. Hearsay is not defined by whether the evidence is effective. The rules of evidence protect the defendant against hearsay, not the facts of life.
Indeed, in saying that his motive was shown circumstantially by showing Ms. Love’s state of mind, the defendant identifies one of the reasons why the evidence is not hearsay. As the court noted in State v Martin, 458 So 2d 454, 460-461 (La, 1984):
An out of court statement may also be offered to show the speaker’s state of mind. The statement may be a direct assertion of the speaker’s state of mind or it may indirectly tend to establish that the speaker had a particular state of mind. If the statement is a direct assertion of the speaker’s state of mind, then it is offered for the truth of the matter asserted but it usually falls within an exception to the hearsay rule for declarations of a then existing state of mind. See McCormick [Evidence (Cleary ed), § 249]; 6 Wigmore [Evidence (Chadboum rev), § 1790]; 4 Weinstein [Evidence, ¶ 801(c)[101] (1981)]; Federal Rule of Evidence 803(3). If the statement only indirectly tends to prove a certain state of mind then it is not hearsay because the truth of the assertion and the credibility of the declarant are not relied upon. Rather, the fact that the statement was made, regardless of its truth, is relevant to show the speaker’s knowledge, intent, or some other state of mind. State v Edwards, 420 So 2d 663, 671 (La, 1982); State v Sheppard, 371 So 2d 1135, 1142 (La, 1979); McCormick, supra, sections 249, 295; 6 Wigmore, supra, section 1790.
While the declarant was asserting that the defendant didn’t love Ms. Berry, the prosecutor was offering the evidence to prove something else, i.e., that the defendant was angry, and thus it was offered to prove something other than the truth of the matter asserted by the declarant, and the evidence was therefore not hearsay.
The concurring opinion of our colleague maintains that Ms. Love’s words should be considered hearsay because they contain an “implied assertion” that she was angry. This is the same contention made by the defendant — that the words were hearsay for being circumstantial evidence of state of mind — under a different name. Because the “implied assertion” theory is sometimes invoked to classify out-of-court behavior as hearsay by what we consider a “back-door” approach, we believe that it merits discussion.
While a number of decisions over the years have regarded “implied” assertions as hearsay, we believe that the theory had a questionable origin, that it has never achieved general recognition in decided cases, that it is expressly negated by the modem rules of evidence, and that it is contrary to Michigan precedent.
The use of the term “implied assertion” to denote hearsay has occurred in situations where out-of-court conduct of a person, sometimes verbal and sometimes nonverbal, is offered in evidence to demonstrate that person’s belief, from which the inference is offered that the belief is trae, when it was not the actor’s intent to communicate the matter to be proved in court. And so, to use a famous example, if the issue were the seaworthiness of a ship, evidence that the ship captain sailed away with his family aboard after making a thorough inspection of the ship would be considered hearsay as being the captain’s implied assertion that the ship was seaworthy.
All discussions of the issue begin with a famous and protracted early 19th century English case, Wright v Doe d Tatham, 7 Adolph & E 313; 112 Eng Rep 488 (Exch Ch, 1837), aff’d 5 Cl & F 670; 7 Eng Rep 559 (HL, 1838), in which the issue was the competence of a testator, John Marsden, to make a will. The contestants over the substantial assets of the estate were Wright, Marsden’s steward and the beneficiary of the will, and the eventual victor, Marsden’s heir-at-law, “Admiral” Tatham, as he was referred to in the reports. In support of the testator’s competence, the proponent had offered in evidence three letters written to the testator regarding everyday matters over a period, as tending to show that the correspondents wrote as they would to a person of ordinary intelligence. Against the contention that the letters were circumstantial evidence of Marsden’s competence, a majority of the judges held, in the end, that the letters amounted to the implied opinion of the writers that the addressee was competent and that those opinions were hearsay for not being under oath and subject to cross-examination.
A result that excluded three letters written without intent to communicate anything about Marsden’s competence must have seemed obnoxious to Wright’s counsel, who had argued that the letters were no less admissible than other evidence that had been received in the trial:
Many instances were given of the treatment which Mars-den received from Wright and from others. It was stated . . . that Marsden was treated as a child by his own menial servants; that, in his youth, he was called, in the village where he lived, “Silly Jack,” and “Silly Marsden,” and was never talked to “as a man that was capable as any thing, but as a child;” that a witness had seen boys shouting after him, “There goes crazy Marsden,” and throwing dirt at him, and had persuaded a person passing by to see him home; and that once, when Marsden passed the evening at a gentleman’s house . .. the elder persons of the family sat down to whist, and, Ellershaw mentioning that Marsden was unable to play, some children were sent for, and he was put to play with them at loo, at a side table, a man-servant supervising the game. [Wright, supra, 112 Eng Rep 490.]
Of all the opinions written in the last two levels of appellate review, only one, that of Lord Denham in the Court of Exchequer Chamber, made any attempt to explain why letters that expressed nothing overtly about competence should be excluded as hearsay, while at the same time it was permissible to receive other out-of-court speech that reeked of opinion:
The hardship of excluding these letters was powerfully urged, since it was said that letters of a contrary tendency might undoubtedly have been given in evidence, and that the jury were in fact much influenced by the manner in which the testator was treated by children pursuing him in the street like one deprived of reason. But the answer is, that letters of a contrary tendency, tendered under the same circumstances, have never, to our knowledge, been held admissible, nor could be, in our opinion received. So the insults offered to him as an idiot by boys, when he walked out, are not evidence as the acts of the boys: their treatment of him as such is nothing; but the manner in which he received that treatment falls within the scope of our rule, and may certainly furnish strong proofs in affirmance or refutation of the proposition under inquiry. [Id., 494.]
There should be some difficulty understanding how a jury that was considered so unsophisticated that they would be improperly influenced by three innocuous letters was not supposed to learn from this evidence that the boys had a low opinion of Marsden’s intellect. Nevertheless, if the only force of the evi dence lay in Marsden’s reactions to the taunts, the scores of pages of the reports of the case, including the opinion of Lord Denham himself, are inexplicably devoid of any reference to his reaction.
The holding of Wright v Doe d Tatham was not revisited in the House of Lords for more than 150 years, until it resurfaced in Regina v Kearley, [1992] 2 AC 228. In a prosecution for possession of drugs with intent to supply, the trial court had admitted evidence that, after the defendant’s arrest, a number of telephone calls were intercepted at his house, the callers asking for the defendant and requesting to be supplied drugs; and that a number of others called at the house personally with the same request. The conviction was upheld in the Court of Appeal. Over vigorous dissent and by a vote of three to two, the House of Lords reversed the conviction on the evidentiary issue, invoking Wright v Doe d Tatham. All the majority opinions stated that, even if it would be prudent to reevaluate the holding of Wright v Doe d Tatham, the House of Lords could not do so because of its decision a quarter century earlier in Myers v Director of Public Prosecutions, [1965] AC 1001, (also decided three to two) that no further judicial development of the law of hearsay was permissible and that any future correction should be left to a comprehensive review by Parliament:
I fully appreciate the cogency of the reasons advanced in favour of a limitation or exception to the operation of the hearsay rule which would allow the admission of implied assertions of the kind in question. But is it open to your Lordships to modify judicially the common law rule as expounded in Wright v Doe d Tatham, 7 Ad & E 313 in the same sense as it has been modified legislatively in the United States by the Federal Rules of Evidence? Such a modification would involve not only overruling Wright v Doe d Tatham but also departing, in reliance on the Practice Statement of 1966 (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234), from the precedents set by the decisions of this House in both Reg v Blastland [1986] AC 41 and Myers v Director of Public Prosecutions [1965] AC 1001.
H* ^
. . . However strong the temptation to legislate judicially in favour of what is seen as a “common sense” result and however tardy Parliament may appear to be in reforming an area of the law which is seen to be in need of radical reform, the uncertainty and confusion to which well intentioned attempts at judicial legislation can lead have been clearly demonstrated by recent decisions of your Lordships’ House. The operation of the hearsay rule in modem conditions is in many respects unsatisfactory. But Lord Reid’s warning that in this field of the law a judicial “policy of make do and mend is no longer adequate” is as true today as it was in 1964. However long overdue we may feel an overhaul of the hearsay rule in criminal cases to be, we should not be deluded into thinking that we can achieve it piecemeal. [Regina v Kearley, supra, 249-251 (opinion of Lord Bridge).]
Whatever the treatment was of the implied assertion theory in its country of origin, a smattering of early cases in the United States determined various forms of nonassertive conduct to constitute hearsay, though their rationale was not consistent. On the whole, the “implied assertion” doctrine received scant attention in decided cases, probably because of the lack of recognition of any arguable hearsay objection. See Falknor, The “Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky Mt L R 133, 135 (1961).
If the courts were generally ignoring Wright v Doe d Tatham and the nonassertive conduct issue, the legal scholars were not, as the subject was vigorously discussed in a series of articles spanning decades. Eventually, eminent writers recognized a fundamental difference in hearsay considerations between behavior that involves an intent to communicate a proposition and that which does not:
Yet there is a difference, which lies in this: in the first example the conduct was intended to convey thought, in the second it was not. When there is no intention to communicate to any one there is very much less chance that the act was done in order to deceive, and hence the third and fundamental danger in admitting hearsay does not here exist, or at least not so strongly. Furthermore, as a rule the fact believed in this latter class of cases is a simple one, and hence the first and second dangers are decreased. Accordingly, there appears to be a sound distinction between the cases, which may be formulated in the state ment that only conduct apparently intended to convey thought can come under the ban of the hearsay rale. [Seligman, An Exception to the Hearsay Rule, 26 Harv L R 146, 148-149 (1912).]
Falknor said essentially the same thing in a graphic way:
A man does not lie to himself. Put otherwise, if in doing what he does a man has no intention of asserting the existence or non-existence of a fact, it would appear that the trustworthiness of evidence of this conduct is the same whether he is an egregious liar or a paragon of veracity. Accordingly, the lack of opportunity for cross-examination in relation to this veracity or lack of it, would seem to be of no substantial importance. [Falknor, supra, 136.]
Eventually McCormick explained the rationale for excluding nonassertive conduct from the definition of hearsay altogether:
People do not, prior to raising their umbrellas, say to themselves in soliloquy form, “It is raining,” nor does the motorist go forward on the green light only after making an inward assertion, “The light is green.” The conduct offered in the one instance to prove it was raining and in the other that the light was green, involves no intent to communicate the act sought to be proved, and it was recognized long ago that purposeful deception is less likely in the absence of intent to communicate. True, the threshold question whether communication was in fact intended may on occasion present difficulty, yet the probabilities against intent are so great as to justify imposing the burden of establishing it upon the party urging the hearsay objection.
Even though the risks arising from purposeful deception may be slight or nonexistent in the absence of intent to communicate, the objection remains that the actor's perception and memory are untested by cross-examination for the possibility of honest mistake. However, in contrast to the risks from puiposeful deception those arising from the chance of honest mistake seem more sensibly to be factors useful in evaluating weight and credibility rather than grounds for exclusion. Moreover, the kind of situation involved is ordinarily such as either to minimize the likelihood of flaws of perception and memory or to present circumstances lending themselves to their evaluation. While the suggestion has been advanced that conduct evidence ought to be admitted only when the actor’s behavior has an element of significant reliance as an assurance of trustworthiness, a sufficient response here too is that the factor is one of evaluation, not a ground for exclusion. Undue complication ought to be avoided in. the interest of ease of the application. The same can be said with respect to the possibility that the conduct may be ambiguous so that the trier of fact will draw a wrong inference. Finally, a rule attaching the hearsay tag to the kind of conduct under consideration is bound to operate unevenly, since the possibility of a hearsay objection will more often than not simply be overlooked. [2 McCormick on Evidence (4th ed), § 250, pp 110-111. ]
More significantly for our purposes, the “implied assertion” theory was rejected with the adoption of the Federal Rules of Evidence and their state counterparts. As we have seen, a “statement,” the first element of hearsay, is defined as an oral or written assertion, or conduct intended as an assertion, a definition which by its own terms appears to leave no room for an “implied” assertion. If there be any doubt on the matter, we need only consult the original authors of the rule, the Advisory Committee on Rules of Evidence, to note that the concept of implied assertions was premeditatedly eliminated in the draft ing of the rule, as is disclosed by the advisory committee’s note concerning FRE 801(a):
Subdivision (a). The definition of “statement” assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.
It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of “statement.” Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv L Rev 177, 214, 217 (1948), and the elaboration in Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan L Rev 682 (1962). Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reli anee will bear heavily upon the weight to be given the evidence. Faiknor, The “Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky Mt L Rev 133 (1961). Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c).
When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions of fact. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand L Rev 741, 765-767 (1961).
For similar approaches, see Uniform Rule 62(1); California Evidence Code §§ 225, 1200; Kansas Code of Civil Procedure § 60-459(a); New Jersey Evidence Rule 62(1). [Emphasis supplied.]
The committee’s rationale recognizes that, of the two obstacles to truth that cross-examination is designed to expose, insincerity and mistake, the former is by far the more significant, as any courtroom observer can attest. The risk of mistake in perception, memory, or narration is so small by comparison that loss of the evidence is not warranted.
Accordingly, we should not be surprised that the vast majority of cases decided under the Federal Rules of Evidence and their state counterparts that have addressed the issue have rejected the “implied assertion” theory. In United States v Lewis, 902 F2d 1176, 1179 (CA 5, 1990), for example, the police seized beepers the defendants were carrying at the time of their arrest for drug trafficking, a witness tes tilled that he called the number displayed on an incoming call and that the voice responding asked, “Did you get the stuff?” When the officer answered affirmatively, the unidentified person asked, using the nickname of the other defendant, “Where is dog?” Against the argument that the caller’s words were hearsay because they impliedly asserted that the defendants were expecting to receive contraband, the court affirmed the admission of the evidence on the basis that the speech consisted of questions, not assertions, citing FRE 801(a) and the advisory committee’s note for the proposition that an assertion is an indispensable element of hearsay.
As Judge (now Justice) Clarence Thomas put it in United States v Long, 284 US App DC 405, 412-413; 905 F2d 1572 (1990), a case with facts like United States v Lewis, supra:
The caller’s words, thus, caimot be characterized as an “assertion,” even an implied one, unless the caller intended to make such an assertion. While Long’s criticism of a rigid dichotomy between express and implied assertions is not without merit, it misses the point that the crucial distinction under rule 801 is between intentional and unintentional messages, regardless of whether they are express or implied. It is difficult to imagine any question, or for that matter any act, that does not in some way convey an implicit message. One of the principal goals of the hearsay rule is to exclude declarations when their veracity cannot be tested through cross-examination. When a declarant does not intend to communicate anything, however, his sincerity is not in question and the need for cross-examination is sharply diminished. Thus, an unintentional message is presumptively more reliable. See United States v Groce, 682 F2d 1359, 1364 (CA 11, 1982); 4 J Weinstein & M Berger, Weinstein’s Evidence ¶ 801(a)[01] (1988). Evidence of unintended implicit assertions is “[a]dmittedly . . . untested with respect to the perception, memory, and narration (or their equivalents) of the actor,” but “these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds.” Fed R Evid 801 advisory committee note.
Other authorities that have declined to classify nonassertive conduct as hearsay include United States v Jackson, 88 F3d 845 (CA 10, 1996) (a telephone caller’s response to a page asks “Is this Kenny?” admissible as evidence that the defendant had been in possession of the pager); United States v Oguns, 921 F2d 442 (CA 2, 1990) (telephone caller asks for the defendant and asks “Have the apples arrived there?” admissible as evidence that the defendant was expecting narcotics); United States v Weeks, 919 F2d 248 (CA 5, 1990) (unidentified persons addressing the defendant as “Gato” was their nonassertive use of the name and therefore nonhearsay evidence that the defendant was Gato); United States v Lis, 120 F3d 28 ( CA 4, 1997) (error to exclude arithmetic calculations made by the defendant’s deceased husband offered to show that large sums of money were product of his embezzlement and not hers); United States v Perez, 658 F2d 654 (CA 9, 1981) (testimony that an accomplice referred to the defendant by name on the telephone while making arrangements for delivery of drugs admissible to show the defendant’s complicity); United States v Singer, 687 F2d 1135 (CA 8, 1982) (landlord’s envelope addressing a termination of tenancy notice to two persons not hearsay when offered to show that those persons lived together); United States v Groce, 682 F2d 1359 (CA 11, 1982) (pencil marks on a nautical chart fixing positions of a vessel admissible to show intended course of the vessel); United States v Short, 790 F2d 464 (CA 6, 1986) (child’s behavior showing precocious knowledge of sexual matters while playing with anatomically correct dolls not hearsay as an implied assertion that she was a victim; similarly, In re CL, 397 NW2d 81 [SD, 1986] , and In re the Dependency of Penelope B, 104 Wash 2d 643; 709 P2d 1185 [1985]); United States v Zenni, 492 F Supp 464 (ED Ky, 1980) (unidentified telephone callers directing the placing of bets on sports events admissible as nonhearsay evidence that the premises were used for illegal bookmaking); State v Carillo, 156 Ariz 120, 121; 750 P2d 878 (1987) (murder victim’s statement on the telephone while speaking to witness, “Hector, don’t do that now,” not hearsay to show that the defendant was in victim’s apartment); State v Collins, 76 Wash App 496; 886 P2d 243 (1995), review den 126 Wash 2d 1016 (1995) (telephone calls to premises occupied by the defendant seeking to make drug purchases admissible as circumstantial evidence that drugs were available from the defendant); Guerra v State, 897 P2d 447 (Wy, 1995) (daughter’s letter found in the defendant’s possession and requesting drugs from the defendant admissible on charge of delivery of controlled substances); United States v Giraldo, 822 F2d 205 (CA 2, 1987) , cert den 484 US 969; 108 S Ct 466; 98 L Ed 2d 405 (1987) (messages on the defendant’s answering machine ordering drugs admissible on charge of distributing cocaine); State v Esposito, 223 Conn 299; 613 A2d 242 (1992) (false exculpatory alibi of the defendant’s accomplice not hearsay when offered to show similarity to the defendant’s false alibi and thus their joint guilt and collusion); Bustamante v State, 557 NE2d 1313 (Ind, 1990) (letter from the defend ant’s wife requesting loan from her mother admissible to show circumstantially the defendant’s motive to commit arson for profit); Jim v Budd, 107 NM 489, 490; 760 P2d 782 (1987) (“[l]et the gates down against the chain,” a command, not an assertion, and therefore not hearsay); State v Carter, 72 Ohio St 3d 545; 651 NE2d 965 (1995) (inquiry by the defendant’s accomplice asking where a gun and ammunition could be obtained not hearsay as being a question and therefore not an assertion).
Not all cases have accepted the rule definition of hearsay. Two that have similarities are Lyle v Koehler, 720 F2d 426 (CA 6, 1983), and United States v Reynolds, 715 F2d 99 (CA 3, 1983). In the former case, Lyle, the appellant, and a nontestifying codefendant, Kemp, were tried jointly on charges of murder and robbery. Through Kemp’s sister, the prosecutor introduced into evidence letters that Kemp had written to two acquaintances, in both of which Kemp detailed false alibis for himself and Lyle that he directed the recipients to report for them. Over a dissent, the majority of the panel held that the letters impliedly asserted what the prosecutor sought to prove, i.e., the guilt of Lyle and Kemp, and that the letters were therefore hearsay and a denial of the Sixth Amendment right of confrontation.
In United States v Reynolds, Parran and Reynolds were jointly tried for conspiracy to defraud, and, over the hearsay objection of Parran, a witness testified that after Reynolds was arrested he said to Parran on approaching him, “I didn’t tell them anything about you.” Id., 100. Similarly, the panel found that conduct to be hearsay and its admission a denial of the right of confrontation.
While both the Lyle and Reynolds opinions referred to the rule definition of hearsay, neither discussed the definition of “statement” in FRE 801(a). Both opinions, moreover, placed significant reliance on views expressed in Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv L R 177 (1948), regarding implied assertions. Professor Morgan had modified his view, however, shortly thereafter:
It would be a boon to lawyers and litigants if hearsay were limited by the court to assertions, whether by words or substitutes for words .... It would exclude evidence of a declarant’s conduct offered to prove his state of mind and the facts creating that state of mind if the conduct did not consist of assertive words or symbols. [Morgan, Hearsay, 25 Miss L J 1, 8 (1953).]
The hearsay conclusions of the Lyle and Reynolds courts have been considered and rejected elsewhere. State v Esposito, supra; State v Collins, supra, respectively. In commenting about cases reaching conclusions opposite to Lyle and Reynolds, one observer said:
[C]ourts seem to have used the concepts of nonassertive conduct, and of assertive conduct offered to prove something other than the matter asserted, in a manner consistent with the Advisory Committee’s theory that sincerity dangers are lessened. The cases generally involve utterances classed as nonhearsay that raise no real insincerity dangers affecting the purpose for which they are being used. The persons who made the intercepted calls to bookmakers are very unlikely to have been consciously plotting to incriminate the bookmakers. It is unlikely that codefendants who made false statements exculpating their accomplices were hoping to incriminate their accomplices. The makers of secret records of drug dealing and gambling are unlikely to have manufactured them and left them on the premises so they later would be used to incriminate those on the premises. This sort of frame-up possibly could occur, just as someone might frame a defendant by planting drug paraphernalia on the premises. The need for cross-examination, however, is no greater than in the case of drug books than in the case of drug paraphernalia, when the only purpose of the evidence is to show the use of the premises. Nor, finally, are declarants who create documents that later are used as indirect evidence to show association or linkage likely to have done so for purpose of falsely showing association. The person carrying another’s name and phone number on a slip of paper in his or her pocket possibly might foresee that someone later could find the paper and infer that the person in possession knew the person named on the paper. The chance of this being done deliberately to create that false impression is trifling. [Park, “I Didn’t Tell Them About You”: Implied Assertions as Hearsay Under the Federal Rules of Evidence, 74 Minn L R 783, 786-787 (1990).]
After a review of the federal cases, Professor Park’s article concludes that they have reached fair results under the rule definition of hearsay and that anticipated hearsay dangers have not materialized.
The dissent in Lyle, supra, points out the additional difficulty presented by the majority’s conclusion that the letter requests for false alibis were hearsay because they were offered for something asserted by the prosecutor, i.e., the guilt of the defendants. The “matter asserted” in the definition of hearsay has always referred to the matter asserted by the out-of-court declarant, not the party offering the evidence. Indeed, if out-of-court statements were hearsay when offered to support an assertion of the proponent of the evidence, every such statement would be hearsay because all of them, if not irrelevant, are offered to prove something.
Although we are unaware of Michigan precedent that discusses the “implied assertion” theory by that name, a number of cases make clear that the theory has already been rejected, at least regarding nonassertive nonverbal conduct. Even before the effective date of the Michigan Rules of Evidence, a majority of participating justices said, in People v Stewart, 397 Mich 1, 9-10; 242 NW2d 760 (1976):
Acts or conduct not intended as assertive are not hearsay and therefore, they are admissible. It should be noted that nonassertive acts or conduct are not an exception to the hearsay rule — rather, they are not hearsay in the first place.
At least three decisions since then have identified conduct as nonhearsay for not fitting the definition of a “statement” under MRE 801(a) as an assertion. People v Gwinn, 111 Mich App 223; 314 NW2d 562 (1981) (rape victim’s emotional reaction to the defendant’s photograph); People v Davis, 139 Mich App 811; 363 NW2d 35 (1984) (child victim bursting into tears when interrogated about the defendant); People v Watts, 145 Mich App 760; 378 NW2d 787 (1985) (mother’s act of taking child to a psychologist not intended as an assertion that crimes were committed). While the cited instances involve nonverbal conduct, there is no reason for a different result in the case of nonassertive speech or when, as in the case at bar, the speech is assertive (“Alphonzo don’t want you”) but not offered for the truth of the assertion.
If we had the authority to engraft the “implied assertion” theory onto the definition of hearsay we would not do so. If we accept that Ms. Love was not intending to convey that the defendant was in the mood to commit assault, it seems an inordinate magnification of the remaining hearsay dangers to say that the factfinder cannot hear the evidence without cross-examining her regarding the opportunity to perceive, remember and articulate the attitude of the person sitting next to her in an automobile. If that is too obvious a case, it is also true that people do not ordinarily order drugs from places that do not sell them, place bets with persons who do not accept them, solicit perjured alibis on behalf of the guiltless, give secret reassurance to those they have never met, or, to be sure, write letters to those who cannot read them.
In any event, under the rule definition of hearsay, an “implied assertion” is a contradiction in terms and a euphemism for declining to apply the rules as they are written. The evidence challenged here was not hearsay, and neither can it be so classified by calling it an “implied” assertion.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Saad, J., concurred.
Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character evidence generally. Evidence of a person’s character or of a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: ....
MRE 609, which reinforces MRE 404(a) by restricting impeachment to evidence of crimes rationally related to truth-telling disposition, provides in pertinent part:
Impeachment by Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross examination, and
(1) the crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and
(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.
Another incident that we expect will not be repeated on retrial was the prosecutor’s suggestion during opening statement that the defendant should not hide behind the presumption of innocence. See Mostade v Engle, 507 F Supp 402 (ND Ohio, 1980). The defendant’s objection was promptly sustained and no additional relief was requested. The prosecutor thereafter acknowledged the appropriate burden, and the jury was properly instructed regarding the presumption of innocence.
The hearsay version by the declarant would have been, “Alphonzo Jones is angry.” If she had said that, the evidence would probably have been nevertheless admissible as a hearsay exception-, a present sense impression, MRE 803(1); or perhaps as an excited utterance as well, MRE 803(2), depending on the available foundation.
The example is one of several hypotheticals that the unsuccessful litigant in Wright v Doe d Tatham, 7 Adolph & E 313; 112 Eng Rep 488, 516 (Exch Ch, 1837), had proposed to the court as examples of nonhearsay conduct, the others being “the . . . conduct of the family or relations of a testator, taking . . . precautions in his absence as if he were a lunatic; his election, in his absence, to some high and responsible office; the conduct of a physician who permitted a will to be executed by a sick testator ... The opinion of Baron Parke in the Court of Exchequer Chamber labeled all the hypotheticals as hearsay.
We have not examined the common law preceding the Wright case. However, since none of the twenty-one opinions in the last two levels of appellate review cite a common-law precedent deciding whether nonassertive conduct is eligible to be hearsay, it is a fair inference that the issue was one of first impression.
There was a precedent, however, that the judges declined to apply. Several of the opinions noted that the letters would have been admissible in the ecclesiastical courts, where they would have been weighed by a judge, adding that a jury should not be trusted with the same evidence. See, e.g., opinion of Judge Bosanquet in the Enchequer Chamber, 112 Eng Rep 512:
Those Courts are constituted upon principles very different from those which regulate the Courts of Common Law. Where the Judges are authorised to deal both with the facts and the law, a much larger discretion with respect to the reception of evidence may not unreasonably be allowed than in Courts of Common Law, where the evidence, if received by the Judge, must necessarily be submitted entire to the jury. By the rules of evidence established in the Courts of Law, circumstances of great moral weight are often excluded, from which much assistance might in particular cases be afforded in coming to a just conclusion, but which are nevertheless withheld from the consideration of the jury upon general principles, lest they should produce an undue influence upon the minds of persons unaccustomed to consider the limitations and restrictions which legal views upon the subject would impose.
At an earlier stage of appeal, a four to three majority of the judges had opined informally that the letters were admissible, but that result was not precedential, because the appeal at that stage was resolved on another point. Wright, supra, 112 Eng Rep 489.
Throughout the earlier editions of a respected treatise on English evidence law, Phipson, the original author, maintained that Wright v Doe d Tatham had never been followed in England. In the 1976 edition, the new authors, while acknowledging that various instances of nonassertive conduct had been customarily received without hearsay implications, indicated that there had been no decision rejecting the Wright case. Phipson on Evidence (12th ed, 1976), § 633, p 271.
“I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal would reply ‘Then the law is an ass.’ ” Opinion of Lord Griffiths, Regina v Kearley, supra, 236-237.
See cases noted in the 1954 edition of McCormick, Evidence, § 229, pp 473-474. Ironically, one of the cases cited in footnote 15, In re Hine, 68 Conn 551; 37 A 384 (1897), excluded evidence that boys in the street made fun of a testatrix, while, as noted above, similar evidence had been admitted in Wright v Doe d Tatham. Cases that favored the admission of nonassertive conduct are also cited in § 229.
McCormick, The Borderland of Hearsay, 39 Yale L J 489, 495 (1930).
Many of the articles are cited in the footnotes in 5 Wigmore, Evidence (Chadboum rev), § 1362, pp 3-10, and 2 McCormick, Evidence (4th ed) § 250, pp 106-117.
This passage, which first appears in 1972 in McCormick, Evidence (2d ed), § 250, p 599, may therefore be the work of Professor Edward W. Cleary, the General Editor of the second and third editions. By then , Professor Cleary was serving as Reporter of the Advisory Committee on Rules of Evidence, discussed later in the opinion.
We recognize that out-of-court speech can constitute an assertion even if nonassertive in form. In State v Leonard, 243 NW2d 887, 889 (Iowa, 1976), the court held that an assault victim’s testimony about a warning given to him by a third party (“Stay away from Sharen”) was not hearsay, because it contained no assertion. While on its face the utterance was a command and, therefore, the kind of speech that does not ordinarily fit the rule definition of “statement,” as a warning it intends to convey that Sharen is a dangerous person. If offered to prove the truth of that assertion, we would regard the evidence as hearsay. (Whether or not State v Leonard reached the correct result, it represents another rejection of the implied assertion theory.)
Similarly, a question, not ordinarily an assertive form of speech, might contain a de facto assertion. In an example used in Bacigal, Implied Hearsay: Defusing the Battle Line between Pragmatism, and Theory, 11 Southern Ill U L J 1127, 1139 (1987), a prospective purchaser of drugs asks, “Is this pure heroin?”, to which the declarant responds with another question, “Do cops wear blue?” The context discloses that the response, while nonassertive in form, is clearly intended as an assertion.
Nor do we suggest that there cannot be other hearsay issues regarding nonassertive conduct. Suppose the declarant clearly did not have expertise that would ordinarily be required to testify about the inference desired: “The notary public told me, ‘Go get checked out for ulcerative colitis.’ ”
The Bacigal article is one of a number that continue the academic debate. Professor Bacigal criticizes the rule definition of hearsay for eliminating implied assertions from its scope. | [
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Per Curiam.
Defendant, a juvenile at the time of his offenses, was tried by a jury as an adult, convicted of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and sentenced to life imprisonment without parole for the first-degree murder conviction, fifteen to fifty years’ imprisonment for the assault with intent to commit murder conviction, and two years to be served consecutively for the felony-firearm conviction. Defendant appealed as of right. In People v Whitfield, 214 Mich App 348, 354-355; 543 NW2d 347 (1995), we found that defendant was denied effective assistance of counsel by his attorney’s failure to appeal the probate court’s decision to waive jurisdiction pursuant to MCL 712A.4(4); MSA 27.3178(598.4)(4). As a remedy, we remanded this matter to allow defendant to appeal in the circuit court the probate court’s waiver decision. We retained jurisdiction. The circuit court affirmed the probate court’s waiver decision, and we do likewise.
When the probate court decided to waive its jurisdiction over defendant, MCL 712A.4(4); MSA 27.3178(598.4)(4) required it to consider six factors, “giving each weight as appropriate to the circumstances.” These factors were:
(a) The prior record and character of the child, his or her physical and mental maturity, and his or her pattern of living.
(b) The seriousness of the offense.
(c) Whether the offense is part of a repetitive pattern of offenses which would lead to 1 of the following determinations:
(i) The child is not amenable to treatment.
(ii) That despite the child’s potential for treatment, the nature of the child’s delinquent behavior is likely to disrupt the rehabilitation of other children in the treatment program.
(d) Whether, despite the child’s potential for treatment, the nature of the child’s delinquent behavior is likely to render the child dangerous to the public if released at the age of 19 or 21.
(e) Whether the child is more likely to be rehabilitated by the services and facilities available in adult programs and procedures than in juvenile programs and procedures.
(f) Whether it is in the best interests of the public welfare and the protection of the public security that the child stand trial as an adult offender. [MCL 712A.4(4); MSA 27.3178C598.4X4). ]
We will affirm a probate court’s waiver decision whenever the court’s findings, based on substantial evidence and on thorough investigation, show either that the juvenile is not amenable to treatment, or, that despite his potential for treatment, the nature of his difficulty is likely to render him dangerous to the public if he were to be released at the age of nineteen or twenty-one, or to disrupt the rehabilitation of other children in the program before his release. People v Dunbar, 423 Mich 380, 387; 377 NW2d 262 (1985).
Defendant argues that the probate court’s findings regarding the statutory criteria were not supported by substantial evidence on the record. On review of the probate court’s findings regarding each criteria, we reach a different conclusion than defendant and determine that the probate court’s findings were supported by substantial evidence on the record. We affirm the probate court’s decision to waive jurisdiction.
Concerning the first statutory criterion, the probate court found that defendant had only one prior informal contact with the juvenile system, but that his school record contained numerous instances of misconduct that evidenced a highly combative, assaultive character. Defendant had been disciplined on several occasions for acts of violence committed against fellow students. The probate court further found that defendant appeared more mature than his chronological age, but was emotionally immature. Defendant exhibited a poor pattern of living by repeatedly absenting himself from his parents’ home for long periods without their permission and associating with negatively influential older persons. Further record evidence showed that defendant had committed a significant instance of misconduct at the juvenile home during his pretrial incarceration. We find ample evidence on the record to support the probate-court’s conclusions regarding the first waiver criterion, and we further agree with the probate court’s determination that its findings regarding the first statutory factor militated in favor of waiving jurisdiction.
Next, regarding the second factor, the probate court found that defendant had been charged with “some of the most severe charges under the criminal laws of the State of Michigan.” Defendant does not, and indeed cannot, argue with the accuracy of this finding. However, he advances that the probate court ultimately accorded this finding preemptive weight in reaching its decision to waive jurisdiction, which is not permissible. Dunbar, supra at 396. We do not agree that the probate court engaged in an improper weighing of the statutory criteria. It is clear from the entire record that the probate court arrived at its waiver decision after full consideration and weighing of the statutory criteria set forth in MCL 712A.4(4); MSA 27.3178(598.4)(4). The fact that the probate court may have accorded significant weight to the seriousness of defendant’s heinous offenses is not grounds for reversal, because it was directed to weigh the statutory factors “as appropriate to the circumstances.” We simply do not require the probate court to give a neutral gloss to defendant’s despicable acts where such neutrality was not required by the statute governing the waiver decision, and we further agree with the probate court that the seriousness of defendant’s offenses weighed heavily in favor of waiver.
With regard to the fourth statutory factor, the probate court found that despite defendant’s amenability to treatment, the nature of his delinquent behavior was likely to render him a danger to the public if he were released from juvenile detention at the ages of nineteen or twenty-one. Substantial record evidence supported this finding. Three witnesses associated with the juvenile justice system opined that, in light of his marked behavioral difficulties, defendant would not receive adequate treatment in a juvenile facility by the time of his inevitable departure and would therefore pose a threat to public safety on his release. We find no basis on which to disturb these findings and agree with the probate court’s conclusion that they favored waiver.
Next, the probate court found that the fifth statutory factor, which considers whether the juvenile would more likely be rehabilitated by the services and facilities available in adult programs than in juvenile programs, weighed in favor of waiver. Particularly, Jean Hoffman, the supervisor of Ingham County Social Services, testified that a juvenile of defendant’s age and behavioral disposition was not likely to be redeemed by the treatment method used in the juvenile system, especially because defendant would spend relatively little time in juvenile incarceration. The probate court’s findings regarding factor five were supported on the record.
Lastly, the probate court found that the best interests of the public welfare and security dictated that defendant stand trial as an adult. In light of the nature of defendant’s offenses, his past behavioral problems, his continuing antisocial behavior, and the near inevitable failure of his treatment in the juvenile system, there is simply no basis on which to refute this finding.
After thoroughly reviewing the probate court’s findings, we are not persuaded that its decision to waive jurisdiction over defendant was the product of mistake, an improper weighing of the statutory factors, or an erroneous view of the evidence presented at the waiver hearing. We. believe that waiver was appropriate under the circumstances, either because defend ant was not amenable to treatment in the juvenile system or, despite his amenability to some form of rehabilitation, the nature of his assaultive, violent behavior was likely to render him a danger to the public if he were to be released at the age of nineteen or twenty-one.
Affirmed.
Effective January 1, 1997, this statute was amended. 1996 PA 262. The new statute directs the probate court to consider six criteria when making its waiver decision, and requires the probate court to give “greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency than to the other criteria.” The new criteria are:
(a) The seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm or other dangerous weapon, and the impact on any victim.
(b) The culpability of the juvenile in committing the alleged offense, including, but not limited to, the level of the juvenile’s participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines.
(c) The juvenile’s prior record of delinquency including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior.
(d) The juvenile’s programming history, including, but not limited to, the juvenile’s past willingness to participate meaningfully in available programming.
(e) The adequacy of the punishment or programming available in the juvenile justice system.
(f) The dispositional options available for the juvenile. [MCL 712A.4(4); MSA 27.3178(598.4)(4).]
Defendant does not disagree with the probate court’s findings regarding the third criterion. | [
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North, J.
The plaintiffs are husband and wife and they seek by this suit to recover damages which they claim to have sustained incident to the purchase of an automobile from the defendant D. E. Meyer Company, a Michigan corporation. The declaration contains two special counts and also the common counts. In the first count it is alleged that various parts of the automobile were defective and that this constituted a breach of warranty for which the defendants were liable and that they were also liable because they neglected and failed to make necessary repairs on the automobile in accordance with their promise so to do. The second count alleges that the defendants defrauded and deceived the plaintiffs by delivering to them a used or second-hand automobile, representing it to be a new machine. The tender of the return of the property and a demand for the repayment of the purchase price are alleged and damages are sought because of the fraud charged. Issue was joined and trial by a jury had. At the conclusion, of the plaintiffs’ case, and for reasons hereinafter indicated, the court, on motion of the defendants, directed a verdict against the plaintiffs. They review by writ of error.
While the declaration charges the defendants jointly with the breach of contract and the alleged fraud, the undisputed proof discloses that the only connection which the Mercantile Acceptance Company had with this transaction was that it discounted and took over from the other defendant at or about the time of the sale the note and chattel mortgage which the plaintiffs gave back on the automobile purchased; and some 15 months later it took possession of plaintiffs.’ machine because of the nonpayment of several monthly installments then past due. There was no testimony whatever that tended to establish liability on the part of the Mercantile Acceptance Company on any possible theory covered by the declaration. It is difficult to understand why this defendant was joined in this action. The verdict of the jury was properly directed, in favor of this defendant.
A more complete statement of the facts is necessary to a full understanding of the case as submitted against the D. E. Meyer Company, hereinafter called the defendant. The machine purchased by the plaintiffs was delivered to them July 19, 1924. At that time they were planning to drive to Illinois in the near future. It may be fairly inferred from the record that they intended to use their newly-purchased car enough to have it “broken in” before starting on their trip. The defendant claims that upon learning of this the salesman called plaintiffs’ attention to a car that had been driven 400 or 500 miles by Mr. Meyer, and with full knowledge of its having been so driven the plaintiffs bought this machine for $1,658.56. In part payment the plaintiffs gave the defendant $152.88 and turned in a used touring car at $400, and later the first monthly payment of $92.60 was also made. As stated above, plaintiffs claim they believed they were buying a new car. Because of this deceit and fraud, as well as because of the various defects in the machine against which warranties were claimed, the plaintiffs, after offering to return the automobile, brought this action to recover the amount they had paid on the purchase price, or to recover the damages thus sustained by them.
On July 20, 1924, the day after the automobile' was delivered to them, the plaintiffs discovered from the mileage registered on the speedometer that it had been driven upwards of 400 miles before their purchase, and they also discovered a dent in one of the rear fenders. At plaintiffs’ request the defendant replaced the damaged fender. Plaintiffs claim the matter of the mileage on the car was discussed with the defendant, but that the latter induced them to keep the car by agreeing to put it in A-l condition. This part of the controversy becomes of little importance so far as it affects plaintiffs’ right to recover the purchase price paid, because the undisputed proofs show they continued to keep and use the car as their own for substantially 15 months, with the exception of three or four weeks, during which time the Mercantile Acceptance Company held possession of it under its chattel mortgage. Notwithstanding plaintiffs’ testimony is that they offered on three or four occasions to surrender the automobile to the defendant, and demanded return of the purchase price paid, the automobile in fact was never redelivered to the defendant nor was the tender of such delivery kept good. Instead, after plaintiffs had full knowledge of all the defects of which they now complain, they continued for over a year to keep and to use the machine as their own and during this time they drove it many hundred miles. Also during this period they success fully defended a replevin suit in justice’s court by which the Mercantile Acceptance Company sought to obtain possession of the car because of nonpayment of portions of the purchase price then past due. These facts distinguish this case from such casés as Kawecki v. Stuber-Stone Co., 218 Mich. 25, and others cited in appellants’ brief. Obviously, the plaintiffs cannot recover on the theory of rescission and surrender of the property purchased, because they have not restored to the vendor the thing purchased, nor have they kept good a tender of restoration. This is essential to rescission and recovery in an action at law. John D. Gruber Co. v. Smith, 195 Mich. 336; Linderman Machine Co. v. Shaw-Walker Co., 187 Mich. 28.
There is no testimony in the record and none was offered from which the jury could have ascertained the amount of damages sustained by the plaintiffs if they elected to retain the automobile and to sue for recovery of the amount of the loss they suffered because the machine delivered to them by the defendant was of less value than such a machine as they supposed they were buying. The defendant’s motion for a directed verdict was based upon the following reasons:
“(1) Evidence has not shown any rescission of the contract.
“(2) Because the attempted/rescission of the contract attempted to be shown in this case on the part of the plaintiffs was waived by continued use of the car as appears from the evidence produced herein by the plaintiffs.
“ (3) There has been no evidence of any alleged difference in the value of the car as actually delivered and what it would have been if plaintiffs’ claim is as represented.”
In view of our determination of the remaining question in this case, it must be held that the defendant’s motion was properly granted by the circuit judge.
Mrs. Victor claims that she furnished all of the cash- paid on this car, and that she was the owner of a half interest in the touring car which was traded in. It is urged in the plaintiffs’ brief that Mrs. Victor should have recovered against the defendant on the ground that she was a minor when they bought the machine and therefore she had a right to rescind her contract of purchase and to recover the amounts paid by her regardless of the failure to restore the property to the defendant. The purchase was made in July, 1924. This suit was started October 6,1924, and Mrs. Victor became 21 years of age April 26, 1926. On June 23, 1927, she. made a petition in this case for the appointment of a next friend, and such an order was entered. The trial began June 28, 1927, this plaintiff being then past 22 years of age. Should she be allowed to take advantage of her infancy? We think not and for the following reasons: There is no hint or claim whatever made in the declaration that Mrs. Victor claimed or asserted a right to rescind on the ground of infancy. Her counsel states in his brief that Mrs. Victor did not have a next friend appointed when suit was started “on account of her mistaken impression that she had attained the legal age prescribed by law.” By having a next friend appointed nearly 15 months after she became of age and proceeding to a conclusion with the trial of the suit already begun, and planted on other grounds, this plaintiff made an election that is binding upon her. Whatever there is in the declaration concerning rescission is based upon the ground of fraud and deceit and not upon the fact that Mrs. Victor was under age.
Another reason is that at the time this suit was started Mr. and Mrs. Victor had possession of the automobile which they had obtained from the defendant, and it was within their power to make restoration if they proposed to prosecute this suit upon the theory of a right to rescind. They did not surrender the auto mobile to the defendant and their course of conduct was entirely inconsistent with any intent to do so. This binds both plaintiffs, especially since Mrs. Victor elected to continue! the prosecution of this same suit months after she became of full age and at a time when she was legally competent to make a final and binding determination. Other questions are presented in the briefs, but the matters herein considered are conclusive of the outcome of the case. As above stated, the verdict was properly directed in favor of the defendants, and the judgment of the' lower court is affirmed, with costs to the appellees.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
Marguerite Dunnebacke, a resident of Wayne county, filed a bill in the Wayne circuit court, in chancery, on August 3, 1928, against the Detroit, Grand Haven & Milwaukee Railway Company, H. W. Nelson Company, and Frank F. Rogers, State highway commissioner. The material allegations are that she is owner of a contract interest in a lot in Birmingham Gardens subdivision in Troy township, Oakland county, which subdivision is residential property with rigid restrictions; that proceedings are being carried on by defendants to acquire and construct a right of way for the railroad for the purpose of complying with the contract provided for by Act No. 340, Pub. Acts 1927 ; that such right of way is being constructed through the subdivision; that if constructed she will be deprived of her reciprocal negative easements arising out of the building and other restrictions on the subdivisions which are property, are valuable, and have not been acquired, from her. She seeks injunctive relief only. On filing the bill a temporary restraining order was issued by Judge Merriam together with an order to show cause returnable August 14th. Other bills of similar purport were filed, followed by similar orders.
On August 9th, counsel for the plaintiffs in the respective cases, together with a representative of the attorney general’s department, were called together by Judge Merriam for the purpose of seeing if the matter could be “ironed out.” No motions to dismiss the bills were filed, no motions to vacate the restraining orders were filed. There was much discussion, but no results. No further order was entered by Judge Merriam. The petition in this case was then filed for a writ of prohibition, prohibiting Judge Merriam from further proceeding in the cases. Answer has been filed herein and hearing had.
Before taking time to consider the important questions involved in this litigation, we should determine whether they are properly before us. It is insisted by the attorney general that the bills filed in the Wayne circuit may not be maintained because they are pro ceedings in rem and should be brought in Oakland county where the property is situated. It is insisted by the attorneys for the landowners that these actions are in personam and may be maintained in the county where the parties reside. Upon a motion to dismiss, filed in the court below, this question may be there decided, and, upon appeal to this court from such decision, we may finally dispose of it. Manifestly, that court has the power, the jurisdiction, to decide the question. The cases there pending are injunction cases pure and simple, they belong to the class, of cases that court has jurisdiction to hear and dispose of. The writ of prohibition is an extraordinary writ and should not and will not be granted where the petitioner has an adequate remedy by some other proceedings. In People v. Wayne Circuit Court, 11 Mich. 393 (83 Am. Dec. 754), it was held (quoting from the syllabus):
“The writ of prohibition can not be issued to restrain any action of inferior courts which can be reviewed by any of the ordinary methods.”
And in Hudson v. Judge of Superior Court, 42 Mich. 239, it was held (likewise . quoting from the syllabus) :
“A writ of prohibition is a common-law preventive against the encroachment, excess or improper assumption of jurisdiction, and can only be resorted to in clear cases and where other remedies are ineffectual. It may lie at the suit of one or more parties on either sidé to restrain the action of the court so far as it exceeds its jurisdiction and thereby affects the petitioner; but it is a discretionary writ and will not be granted unless it appears that the petitioner has vainly applied for relief to the court against which he wishes it to issue.”
These cases have been constantly followed by later decisions of this court; among them see Nichols v. Judge of Superior Court, 130 Mich. 187; Gorman v. Calhoun Circuit Judge, 140 Mich. 230; Port Huron Savings Bank v. St. Clair Circuit Judge, 147 Mich. 551; Triangle Land Co. v. Auditor General, 172 Mich. 289; Consumers Power Co. v. Iosco Circuit Judge, 210 Mich. 572.
The petition will be dismissed. As the questions involved are of public importance, no costs will be allowed.
North, Wiest, McDonald, and Potter, JJ., concurred. Fead, C. J., and Clark and Sharpe, JJ., did not sit. | [
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Potter, J.
The bill of complaint herein is filed to set aside a contract of settlement and to specifically perform land contracts. Defendant became interested in the prospective development at Marysville, where was located the factory of the Wills-Ste. Claire Motor Car Company. Henry R. Maurer was his personal attorney. At the request of defendant, Maurer took title to the property in his own name. Subsequently it was transferred by him to a corporation. Maurer was a defendant herein, but the suit was dismissed as to him and proceeded against defendant alone. The property which was acquired in the name of Mr. Maurer was subdivided and lots sold. Plaintiff paid approximately $5,500 for six lots. The contract provided the property should be improved. It was not Improved. Defendant lost his interest in the subdivision. The plat was vacated. Plaintiff bought the lots for speculation. He visited them. He did not worry about the lots not being worth anything. When it was apparent the lots were worthless, plaintiff desired to recoup his losses, and made a contract with defendant as follows:
“Memorandum of agreement, made and entered into by and between Vosile Grigoros of Detroit, Michigan, hereinafter referred to as the first party, and Morris Friedberg of the same place, and hereinafter referred to as second party. Witnesseth:
“Whereas, first party entered into a contract to purchase from H. R. Maurer and the Range Road Land Company, a Michigan corporation, certain parcels of land located in the township of.................... St. Clair county, Michigan, described as lots numbered twenty-five (25), twenty-six (26), twenty-seven (27), twenty-eight (28), one hundred sixty (160) and one hundred sixty-one (161), all inclusive, of Range Road Subdivision, and desires to dispose of his interest in said property to the second part.
“Therefore, it is agreed as follows:
“The first party, in consideration of the agreement of the second party as hereinafter provided, has trans ferred, assigned and conveyed and does hereby transfer, assign and convey to second party all of first party’s right, title and interest in and to the land above described, together with all the rights and privileges accruing to him under any contracts for the purchase of said lands heretofore entered into by first party with H. R. Maurer or the Range Road Land Company.
“The second party, in consideration of the assignment, transfer and conveyance by first party of all his right, title and interest in and to said lands as aforesaid hereby agrees to pay to said first party, the sum of eighteen hundred ($1,800) dollars in the following manner: The sum of one hundred ($100) dollars upon the signing of this agreement and the remaining seventeen hundred ($1,700) dollars in monthly installments of not less than one hundred ($100) dollars payable on the 28th day of each month, all of said payments to be made by second party to first party at the business office of second party, 1256 Griswold street, Detroit, Michigan.
“In witness whereof, the said parties have hereunto subscribed their names this 28th day of July, A. D. 1926.
“Vosile Grigoros.
“In the presence of:
“Henry R. Maurer.
“August 28th, $100.00.”
This settlement is sought to be set aside for fraud. Plaintiff, defendant, and Maurer, who prepared the contract of settlement, testified in relation to it. Plaintiff said he visited defendant. He testified:
“He didn’t offer me any money on my second visit. I did not ask him for it. After Mr. Friedberg said he would give me $1,800 I went home and I returned two or three days later. I was thinking over whether I should take the $1,800 and decided to return and get it.”
Defendant testified:
“The plaintiff told me he would like to get $2,500. I told the plaintiff I was willing to pay him some money on the basis of $100 a month and I would give him $1,500. I told the plaintiff to think it over and let me know as to what he wanted. He came back and asked for $2,000. We finally compromised on $1,800. I told him that I would pay the $1,800 as satisfactory to him at the rate of $100 a month.”
Mr. Maurer said:
“My recollection is that this agreement was prepared at the request of Morris Friedberg in my office and signed by Mr. Grigoros in my presence. * * * I don’t believe any money was paid when I read the agreement to him. My recollection is that some one else was with him at the time. He took the agreement with him and went to see Morris Friedberg.”
We think plaintiff has not shown this contract of settlement was fraudulently made by defendant after plaintiff had knowledge the land purchased was comparatively worthless.
The decree is affirmed, with costs.
Fead, C. J., and North, Fellows,' Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Potter, J.
Plaintiff, a Michigan corporation, filed its bill of complaint and later its amended bill of complaint against Charles F. Brown, John W. Thompson, Henry Thompson, J. R. McKinney, Nettie McKinney and Jeanette McKinney. The amended bill of complaint alleges that plaintiff was organized for the purpose of owning, conducting, and operating a general real estate business and dealing in and owning subdivisions, buildings, and lands of all descriptions; that defendant Charles F. Brown was one of its directors and vice-president, and an agent and employee of plaintiff in its business, having full access to all its records and possessed of full knowledge of its equities, undertakings, and obligations; that defendant John W. Thompson was an employee and agent in and about the business of plaintiff, having access to the records and dealings of plaintiff, and an oppor tunity to become familiar with its transactions; that ' defendant Henry Thompson was a brother of John W. Thompson and a client of plaintiff, and through his dealings with plaintiff was possessed of full knowledge of the relationship and authority of defendants Brown and Thompson; that defendants McKinney were the owners of certain real estate; that plaintiff obtained, through its employees, an option on 92 acres of land belonging to the McKinneys for $700 an acre; that defendants Charles F. Brown and John W. Thompson, for the purpose of defrauding plaintiff after it obtained its option, procured a land contract from the defendants McKinney for the purchase of the land substantially in accordance with the terms of the option of plaintiff, and the taking of said contract by defendants Charles F. Brown and John W. Thompson was contrary to the rights and against the interests of plaintiff. The bill, by appropriate language, charges this was a breach of the trust arising out of the fiduciary relation which existed between the defendants Brown and Thompson, and plaintiff, and the bill of complaint asks that defendants be restrained from selling, assigning, incumbering, or disposing of the premises; the contract executed between Charles F. Brown and John W. Thompson and the McKinneys held and decreed to have been taken and received by them in trust for the benefit of plaintiff; and they required to assign, quitclaim, and transfer the interests acquired by them from the McKinneys to plaintiff; and that in case the defendants Brown and Thompson fail to do so the decree of the court may stand in lieu of such assignment. The case was tried in the circuit court for the county of Oakland, Honorable Fred S. Lamb presiding. A decree for plaintiffs was entered and defendants appeal.
The learned chancellor before whom the case was heard filed a written opinion stating and disposing of the issues herein as follows:
“Defendants J. R. McKinney and Jeanette McKinney are the owners of the record title to the lands in dispute in this suit; defendants Charles F. Brown and John W. Thompson were, during the period involved in the case, associated with the Heiden Realty Company, as agents or employees; Joseph P. Carolan is the assignee of the land contract, covering the lands here in controversy, and who now claims to be the owner of such contract interest; and Henry S. Thompson, a brother of John W. Thompson, is made a defendant, but disclaims any interest in the subject-matter of this litigation.
“In the spring of 1922, Charles F. Brown became associated with the Heiden Realty Company as a stockholder, was later elected as a director and continued to hold the position until his resignation, which terminated his relations with the company December 31, 1924. He took a very active part in the conduct of the company’s affairs, attended practically all of the meetings of the board of directors and at all times manifested a keen and growing interest in its business. During a large portion of the time that he was a director, he was also vice-president of the company, and was such during the year 1924.
“July 11,1924, at a meeting of the board of directors of the company, the various activities of the organization were divided into departments, among which wras one known as the acreage department. By action of the board of directors, Charles F. Brown was chosen as head of this department. He at once assumed the responsibility of the position and continued to act in that capacity, until his relations with the company ceased, December 31, 1924. During this time he had in his employ and working under him George Zahn and John W. Thompson, one of the defendants hereto.
“On the 2d day of October, 1924, the aforesaid George Zahn, who had been assigned to list acreage for the department, received from J. R. McKinney and his ■wife an option in the name of the Heiden Realty Company, covering the 92 acres of land described in the bill of complaint. This he turned into the acreage department by turning the same over to Charles F. Brown. This option was good and in force until noon, on the 2d day of November, 1924. The acreage as covered by this option was considered by Brown and his associates in the acreage department as an unusually attractive buy and was the subject of considerable discussion in and around the office of the department.
“Later in the month of October, 1924, but prior to‘ the 27th thereof, Brown, through an introduction by Zahn, got in touch with Mr. J. R. McKinney, and the result of this conference with Mr. McKinney was an arrangement of more satisfactory terms for the acreage in question than those contained in the option above referred to. While still acting as either officers, agents or employees of the Heiden Realty Company, without reporting it to the Heiden Realty Company, and without its knowledge or consent, Charles F. Brown, John W. Thompson, and George Zahn undertook to arrange among themselves the formation of a syndicate to handle these lands, and they or some of them were to become members of such syndicate.
“At a meeting of the directors of the company, held on the 24th day of October, 1924, Brown reported that he was trying to get control of these and other lands in the same locality. Considerable discussion followed and the result was that he was directed to use his best efforts to get these lands for the company.
“October 27, 1924, while the original option had yet several days to run, Brown went to the McKinney farm and obtained from McKinney and his wife a preliminary sales agreement, running to Charles F. Brown, on a deposit of $500, which Brown then paid out of his own or borrowed money as an evidence of good faith, and was to apply on the down payment of $5,000, in case the agreement ripened into a land contract, for which land contract the preliminary agreement provided.
“At the meeting of the directors of the company, on the 8th day of November, 1924, without reporting to the board the fact that he had secured a preliminary sales agreement, running to himself, from Mr. McKinney and his wife, and covering these same lands, Brown advised that the McKinney acreage be syndicated and the commission and the profit be prorated among the departments of the company. Discussion was had but no action was taken.
“The board of directors held a meeting nearly every week following the meeting of November 8th, at which Brown was present. At no time was there any action taken giving the company’s consent to the activities of Brown and Thompson, looking to a syndicate to take these lands, neither was any action taken to indicate that the company had decided not to continue to get these lands for its own purposes. At a meeting of December 20, 1924, at which Brown was present, he was given specific instructions to obtain these lands for the company, if possible. Notwithstanding such instructions, the record discloses that Brown, John W. Thompson, and Henry S. Thompson, as sole stockholders, as of December 20, 1924, signed articles of association of the Thompson-Brown Corporation, to which the activities concerning these lands were turned over, through the activities of Brown while a director and an officer of the Heiden Realty Company.
“Some time in the month of December, 1924, the directors of the company had issued a call for the unpaid subscriptions of Joseph P. Carolan and Charles F. Brown. Brown, on his own motion, had Joseph P. Carolan released from any further payment on his subscription. While Carolan had been a member of the company, it had done considerable business for him along various lines. For the most part this business had been attended to by Brown himself. Carolan had, therefore, every facility for knowing and did know Brown’s position with the Heiden Realty Company and was apprised of the duty he then owed to the company and the obligation under which he was working.
“At a meeting of the board of directors, held on the 31st day of December, 1924, at which Brown was present, a discussion arose as to how Brown was progressing with the matter of getting the McKinney property lined up for the company. Brown then reported that two of those interested in the so-called syndicate were out of the city and he had not seen them, and he would report later. As his resignation took effect December 31, 1924, no further report was ever made by him to the company.
“So far as this record discloses, no syndicate to take over the McKinney lands was ever actually formed, except, possibly, in the fertile imagination of Charles F. Brown, no money was paid to anyone by any member of the proposed syndicate, nor was any interest in the option or in the sales agreement transferred to anyone purporting to be a member of the syndicate, nor was any such transfer attempted. As a fact, there was no time from the 27th day of October, 1924, until the 6th day of January, 1925, that Charles F. Brown could not have turned these lands over to the Heiden Realty Company, had he been so disposed. If at any time either John W. Thompson or Miss Maurer had any interest in the preliminary sales agreement of October 27, 1924, held by Brown in his own name, as member or members of a proposed syndicate, the record is absolutely silent and barren of any evidence of a release thereof, making it possible for Charles F. Brown to take the land contract in his own name and right, on the 5th day of January, 1925; and if the syndicate was to consist of Carolan and Miss Maurer, why was the land contract assigned absolutely to John P. Carolan, on January 6, 1925? The syndicate was a myth, except as a subject of talk and as a cover to what was actually taking place.
“During the year 1924, while a stockholder in, a director and vice-president of, and for several months thereof the head of the acreage department of the Heiden Realty Company, Charles F. Brown was the agent, confidential adviser and economic manager of Joseph P. Carolan, with general power to act and to' use his own judgment as to what to do and how to do it. During the fall of 1924 he had several thousands of dollars of Cardan’s money to invest, which he had used and invested as occasion required. He had also borrowed some money from Miss Maurer, for which he gave his note. It was a part of the money of both of these parties that was used in making the payment of $4,500 to Mr. McKinney, January 5, 1925, although the actual check, as certified by the bank, was the check of Henry S. Thompson.
“Before, and at the time of the assignment of the land contract to him, on January 6, 1925, Joseph P. Carolan knew that Brown was a director and the vice-president of the Heiden Realty Company, or had been up to five days before, and that Brown and the Heiden Realty Company were having trouble over the McKinney lands. He admits that he knew it and the correspondence shows it.
“It is admitted and the record shows that- neither Charles F. Brown, John W. Thompson, nor Henry S. Thompson has or claims any interest in these lands at this time. Joseph P. Carolan claims the entire interest therein under and by virtue of his land contract. It is admitted by Carolan that $2,000 of Miss Maurer’s money is a part of what has been credited to Carolan on this contract, although she has nothing to show to that effect and is not made a party to this suit.
“The interest of J. R. McKinney and Jeanette McKinney herein extends no farther than to have it decided to whom they are to look, in the future, for the payments on the contract and the fulfilment of the conditions therein contained, and with whom to deal, when all the conditions of the land contract have been carried out in accordance with its terms. In this connection it may not be out of place to add that no possible culpability can attach to these defendants under the facts in this case. They had a right to assume, and undoubtedly did assume, when approached by Brown as coming from the Heiden Realty Company, that all he was attempting to do was in furtherance of the deal already pending for and with the company. Their good faith is not in the least in question in this case.
“It must be conceded, I think, that the relationship of principal and agent existed between the Heiden Realty Company and Charles F. Brown for and during the year 1924. That, while sustaining that confidential relation with his principal, Charles F. Brown was bound under the law to the utmost good faith and loyalty there can be no ground for serious dispute. Ilis actions as disclosed by the record manifest a most flagrant violation of the essential elements of that relationship, amounting to, if not actual fraud in fact, to constructive fraud to the loss and injury of his principal, making the application of the doctrine of constructive trusts imperative.
“Under this record, the preliminary sales agreement, taken by Charles F. Brown, in his own name, on October 27, 1924, and the land contract, covering these same lands, issued to him in pursuance of the terms of that instrument, under date of January 5, 1925, must be held, under the law, to belong to the Heiden Realty Company and impressed with a trust in its behalf while in the hands of Charles F. Brown, or his assigns with notice.
“To the contention of the defendants that Joseph P. Carolan stands in the position of a purchaser for value without notice I cannot subscribe. He knew of the relation which Brown occupied as to the Heiden Realty Company and was actually aware, before and at the time he received the assignment of the land contract, that the Heiden Realty Company were in dispute over this property. He had ample notice to put him on inquiry, and in accepting the assignment of the contract and making payments thereon, he must be held to have assumed all the risk. But, assuming that Carolan had received no actual notice, Brown, who was then and had been for some time the general agent, confidential adviser and investor of Cardan's money, with or without consultation and in the exercise of his own judgment, had notice of what Brown himself was doing, and notice to Brown, under such circumstances, must be held to be notice to Carolan. It follows that the trust impressed upon the preliminary sales agreement and the land contract in the hands of Charles F. Brown will follow assignment thereof into the hands of Joseph P. Carolan.”
We concur in the opinion of the trial court and the decree herein is affirmed, with costs.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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Fead, C. J.
These cases involve the same parties, identical facts and issues, although different premises, and are considered together. Other phases of them have been before this court and are reported in 240 Mich. 646 and 654.
’ Plaintiff Union Trust Company, as trustee, became purchaser of the premises at bar on sales made August 18, 1926, under decrees in mortgage foreclosure actions, in chancery. The statutory period of redemption expired February 18, 1927. By decrees of this court, filed December 16, 1927, the sales were ordered to stand confirmed as of March 28, 1927. The Detroit Trust Company, as trustee in bankruptcy for the mortgagor, had possession of the premises and collected the rents until December 17, 1927. On December 20, 1927, plaintiffs filed motions in the circu-it court, in chancery, for an accounting from the Detroit Trust Company, as such trustee, of the rents from and after February 18, 1927. The court made orders requiring defendant to file accounts of rents collected or accruing after March 28th, and made orders denying the motion as to rents after February 18th, except as provided in the orders relating to the rents after March 28th. All parties have appealed.
Although challenged, counsel for plaintiffs have not cited an authority which holds that, in a proceeding initiated in the original foreclosure suit after the purchaser at the foreclosure sale has taken possession, accounting can be ordered for rents collected by the mortgagor after the title of the purchaser becomes absolute. In this State, the jurisdiction of equity in proceedings for the foreclosure, of mortgages is governed by statute. Johnson v. Shepard, 35 Mich. 115; Kelly v. Gaukler, 164 Mich. 519; Kollen v. Sooy, 172 Mich. 214.
The statutes (3 Comp. Laws 1915, §§ 12676-12692) make no provision for proceedings subsequent to a valid decree, sale, confirmation, and expiration of the period of redemption, except to put the purchaser in possession of the premises.
The court had no jurisdiction in the foreclosure suits to determine liability for the rents. The orders requiring accounting by defendant will be set aside. The orders denying such accounting will be affirméd. Defendant will recover costs.
North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
Edwin Sanders, John Miller, and Fred W. Sanders are engaged in business in Detroit as co-partners under the name of Fred Sanders. On the evening of December 5, 1923, the left front wheel of a truck owned by the partnership ran over plaintiff’s legs, resulting in a somewhat serious injury to him, to recover for which he brought this action against Fred Sanders personally. At the conclusion of plaintiff's proofs, the trial court directed a verdict for defendant, for the reason that he was not individually liable in damages to the plaintiff. Plaintiff seeks review of the judgment entered thereon by writ of error.
1. Defendant’s Personal Liability. Under the common law the members of a partnership firm are jointly and severally liable for the tortious act of one of the partners, or of an agent or servant of the partnership, if committed in the course of his employment. 30 Cyc. p. 536; 20 R. C. L. p. 914; Baldwin on Personal Injuries (2d Ed.), 34; Rowley, Modern Law of Partnership, 1120, 1121; Roberts v. Johnson, 58 N. Y. 613; Sunlin v. Skutt, 133 Mich. 208.
Counsel for the defendant, however, insist that this rule is abrogated by the provisions of our uniform partnership act (Act No. 72, Pub. Acts 1917 [Comp. Laws Supp. 1922, § 7966]). Sections 13, 14, and 15 are relied on:
“SECTION 13. (Partnership Bound by Partner’s Wrongful Act.) Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
“Sec. 14. (Partnership Bound by Partner’s Breach of Trust.) The partnership is bound to make good the loss:
“(a) Where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it and
“(b) Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.
“Sec. 15. (Nature of Partner’s Liability.) All partners/are liable:
“(a) jointly and severally for everything chargeable to the partnership under sections thirteen and fourteen;
“(b) jointly for all other debts and obligations of the partnership but any partner may enter into a separate obligation to perform a partnership contract.”
Under (a) of section 15 the partners are jointly and severally liable “for everything chargeable to the partnership under sections thirteen and fourteen.” Under (b) of this section they are liable “jointly for all other debts and obligations of the partnership.” Counsel for the defendant contend that the claim here made joy plaintiff is a debt or obligation within the meaning of these words as here used. Clearly, it is not a debt owing by the defendant personally, or by the members of the firm. Lockhart v. Van Alstyne, 31 Mich. 76 (18 Am. Rep. 156); Morrow v. Murphy, 120 Mich. 204; Barney v. Insurance Exchange, 240 Mich. 199.
Is it an obligation? While an obligation rests upon every person to perform the duties imposed on him by law, we are impressed that as here used it refers to such obligations as arise out of the contractual relation which exists among partners. In the Lockhart Case, it was said:
“A debt is that which one person is bound to pay to another, either presently or at some future period; something which may be the subject of a suit as a debt, and not something ’to which the party may be entitled as damages in consequence of a failure to perform a duty or keep an engagement.”
We have here a disputed claim, unliquidated, not arising out of contract; one which the defendant was under no legal obligation to pay until his liability had become fixed by a judgment rendered against him. When sued upon, it was not a debt or obligation of the partnership within the meaning of these terms as used in this section. These words have a well-recognized meaning in matters arising out of contract, but are rarely, if ever, used when speaking of a claim arising out of a tort or wrongful act. The statute but restates the holding of this court that “the liability of partners on a firm obligation is joint, not several.” Stewart v. Terwilliger, 177 Mich. 313 (Ann. Cas. 1915C, 808). Whether under section 18 the partnership must indemnify the defendant in respect of any payment he may be required to make arising out of such claim is not before us for decision.
2. Negligence of the Driver. Plaintiff testified that, when crossing Griswold street in Detroit at its intersection with Grand River avenue, he saw a truck standing near the curb about 12 or 15 feet distant; that, when near the street railway track, he was run into and knocked down by a man going in the opposite direction, and that, after he fell, the truck started up and ran over and injured one of his legs. On cross-examination he testified that, after passing the truck, he did not again observe it until it was upon him. On re-examination he again testified that it was standing at the curb when he fell. While testimony elicited on cross-examination must be treated as evidence given on the part of the party calling the witness (Wilson v. Wagar, 26 Mich. 452), it must all be considered in determining the fact in dispute. Perkins v. Holser, 213 Mich. 579. When so considered, the testimony of plaintiff presented a question of fact. Where was the truck at the time plaintiff fell upon the crossing? Goonen v. Railroad Co., 218 Mich. 502, and cases cited; Robertson v. Budzier, 229 Mich. 619; Steinberg v. Lumber & Wrecking Co., 238 Mich. 181.
The judgment is reversed and set aside and a new trial ordered, with costs to plaintiff.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. North, J., did not sit. | [
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McDonald, J.
This suit was brought to recover damages for personal injuries received in an automobile accident. The defendant reviews by writ of error a verdict and judgment for the plaintiff. The plaintiff is the defendant’s daughter. With her brothers, Thayer Hepinstall and Ralph Hepinstall, and others, she lived in her parents’ home in the city of Saginaw, Michigan. The defendant owned an automobile. On the evening of the accident, the plaintiff and other members of the family were invited to attend a church fair at Bay City. Thayer and Ralph received permission from the defendant to drive her automobile. The plaintiff claims that she did not desire to go with the party but was urged to do so by her brothers and her mother. On the way home from Bay City, it is claimed that Ralph who was driving the car drove so recklessly that it left the road and turned over in the ditch. The plaintiff was pinned under the car. Her back was broken and she suffered other serious injuries as a result of which she is permanently paralyzed from the waist down.
At the close of the plaintiff’s case and again at the close of all the proof, the defendant moved for a directed verdict on various grounds, the principal one of which was that, at the time of the accident, the plaintiff and the driver were engaged in a joint enterprise and that therefore his negligence was imputable to her. The motion was denied and the question was submitted to the jury. After verdict, the court refused to- enter judgment for the defendant non obstante veredicto, and also denied a motion for a new trial.
Aside from error alleged in the exclusion of certain testimony, the only question involved is whether the court erred in refusing to hold as a matter of law that the plaintiff and her brother, Ralph, who was driving the car at the time of the accident, were engaged in a joint enterprise. It is conceded that if they were so engaged the plaintiff is chargeable with the driver’s negligence and cannot recover in this action.
To constitute a joint enterprise between a passenger and the driver of an automobile within the meaning of the law of negligence, there must be such a community of interest in its operation as to give each an equal right of control. There must be a common responsibility for its negligent operation, and there can be no common responsibility unless there is a common right of control. It must be held that the driver is acting as the agent of the other members of the enterprise. The rule of joint enterprise in negligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger. Being parties to' the same enterprise, they are assumed to have common control and possession of the machine. Otherwise, each could not be charged with the negligence of the other. It is not necessary to review the cases in which this question is considered. The subject is discussed and many cases áre cited in the annotation to Keiswetter v. Rubenstein, 48 A. L. R. 1049 (235 Mich. 36).
In the instant case, the plaintiff claims that at the time of the accident she was riding as a mere guest of the owner and driver of the car; that the control and possession of the car had been intrusted to her brothers by the defendant; that Thayer drove going to Bay City, and Ralph drove going home; that she had no control over the car or over the driver, and that, just before the accident, she remonstrated with Ralph as to the speed, and vainly endeavored to persuade him to reduce it.
The defendant claims that the plaintiff with her brothers, Ralph and Thayer, were in- equal control of the car; that it had been loaned to the three of them equally for a common purpose, viz., driving to Bay City to attend a church fair. Whether the car was' loaned to the three of them or to the two boys only was important as bearing on the plaintiff’s equal right of control. It was a disputed question and was controlling of the claim of joint enterprise. It was therefore for the jury. In submitting it, the court correctly instructed the jury as to the applicable law. No complaint is made of his charge. He did not err in refusing to direct a verdict for the defendant.
Following the accident, an agent of the insurance company secured sworn statements from Ralph Hepinstall, Thayer Hepinstall, and Helen White, who also was an occupant of the car. In making proof of her case, the plaintiff did not call Ralph Hepinstall or Helen White. They were later called and sworn on behalf of the defendant. To impeach their testimony, the defendant offered in evidence their prior sworn statements. The court refused to receive them. In this there was no error. A party will not be permitted to impeach his own witness by showing prior contradictory statements.
Thayer Hepinstall was a witness for the plaintiff. He testified as to the manner and cause of the accident. It was proper for the defendant to show that he had made prior contradictory statements. She sought to do so by offering Ralph’s affidavit, to which was attached a sworn statement by Thayer,* to the effect that he had read Ralph’s affidavit and knew “the facts therein stated to be true;” and that “he was driving carefully at the time, and the car was in ordinarily good condition, and no objection was made to his driving, and the accident was due solely to the condition of the road.”
The court excluded Ralph’s affidavit but permitted to be read in evidence the balance of the statement made by Thayer. The court erred, but we are of the opinion that the error was without prejudice to the defendant, for the reason that the portion received substantially included all that was contained in Ralph’s affidavit.
No other question presented merits discussion.
The judgment is affirmed, with costs to the plaintiff.
Fead, C. J., and North, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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Sharpe, J.
Plaintiff seeks to enforce a lien for work done and materials furnished in the construction of a building of which the defendant Berke was the contractor and the defendant Elson the owner. It omitted to serve upon the owner the notice required by section 14796, 3 Comp. Laws 1915. The original contractor, however, filed statement under oath, giving the name of the plaintiff as a subcontractor and the amount due it. It was held in Smalley v. Ashland Brown-Stone Co., 114 Mich. 104, that the notice thus given to the owner was sufficient to support the claim of lien. See, also, Blitz v. Fields, 115 Mich. 675.
In a statement filed on September 3,1924, the amount due plaintiff was stated to be $1,550. In a later one, filed on October 21, 1924, the amount due plaintiff was said to be $550. In this statement, made under oath, the contractor avers that he “owes no money for labor upon or material for the building of said fiat other than the sums above set forth.” The trial court held that plaintiff’s claim was restricted to that amount, and gave it a decree therefor. In this- he was clearly right.
The defendant Elson, however, insists that the decree should be reversed, for another reason. Plaintiff’s statement of lien was filed in the office of the register of deeds on May 8, 1925. To entitle it to consideration, it must appear that the last of the material was furnished or labor performed within 60 days prior thereto (§ 14800). The defendant Elson testified that the building was- completed ih November, 1924; that he moved in the following month; that after moving in he did not discover any need of additional work in connection with the tiling which plaintiff had installed, and did not know that any was. performed.. Martin Petlock, an employee of plaintiff, testified that he was sent to. the -building on March 12; 1925, to complete some unfinished.work; that he could not finish it then “because other work ahead of ours wasn’t completed;” that he went back on April 9th and completed the job; that “the reason I couldn’t finish it before was that the electric heaters weren’t wired, and I couldn’t close the iron box up with the tile.” On cross-examination he testified that when he was at the building in March “a lady living there called up Mr. Berke about the tile. She had to call Mr. Berke to find out when they were going to connect those heaters. * * * I said I completed what I could around over the tub, around the radiator pipes, and I couldn’t complete around the heaters because the heaters weren’t connected, and I came back there during the week of April 9th and put in two hours’ worth of labor then, and I was sent there by the Netting Company to complete the job.” This testimony was in no way contradicted by either Berke or Mrs. Elson. Berke testified that the job was “practically completed” in the fall of 1924, but that he did “know that there was something done at a later date to make it complete.” Under this testimony, coupled with positive proof that Petlock promptly turned in cards showing the time spent by him in work upon the job in March and April, we cannot but find that the last day’s work was performed less than 60 days before the statement of lien was filed.
The contract price with certain extras amounted to $1;941.35. On January 5, 1925, Berke gave his note to plaintiff for that amount, due in 30 days. This note was renewed for 30 days on February 4, 1925, for $1,500; Berke having paid the balance thereof. The renewal' note has not been paid.
Counsel for the defendant Elson insists that the acceptance of these notes by plaintiff extinguished the lien. Blakeley v. Moshier, 94 Mich. 299. The note in that case did not mature until after the time for filing the lien had expired. Those here given matured before that time. It is not claimed, that there was any understanding that the right to a lien was waived by the acceptance of the notes. The rule seems well established that the acceptance of a note, which will mature before the time limited for filing the statement of lien has expired, will not constitute a waiver of the lien, unless there be an express understanding to the contrary. 40 C. J. p. 318; 18, R. C. L. p. 969; Knowlton v. Gibbons, 210 Mich. 547.
The decree is affirmed. As both parties have appealed, no costs will be allowed.
Fead, C. J., and North, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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SERVITTO, J.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendant Allstate Insurance Company. Because Michigan does not yet recognize as a valid cause of action spoliation of evidence that interferes with a prospective civil action against a third party, we affirm.
Plaintiff initiated this action after a fire broke out in his family’s rented apartment, causing the death of his wife, Lillian Teel, and extensive damage to the apartment. Allstate, the liability insurer for the property pursuant to a policy issued to defendant Doris Meredith, the owner/landlord of the apartment, sent a representative to the apartment, without notice to or the presence of plaintiff, to inspect the apartment. Apparently, during the inspection, the investigator altered the scene and removed certain items from the apartment, thereby allegedly spoiling evidence concerning the origin and cause of the fire and affecting plaintiffs ability to bring, or succeed in, litigation relating to the fire. In his complaint, plaintiff alleged that defendant Meredith breached her duty to maintain safe premises. Plaintiff also alleged that defendant Allstate failed to, among other things, notify plaintiff of its intended inspection of the premises as required by statute, properly document and preserve the fire scene and the evidence, and avoid spoliation of the evidence. Allstate moved for summary disposition pursuant to MCR 2.116(C)(8), and the trial court granted the motion, ruling, in part, that Michigan does not recognize spoliation of evidence as a valid cause of action.
On appeal, plaintiff asserts that the trial court erred by granting summary disposition because the complaint presented sufficient allegations to establish a claim of intentional or negligent spoliation of evidence that interferes with a civil action against, a third-party and that Michigan should recognize the same as an actionable tort. We disagree.
This Court reviews de novo a trial court’s decision regarding a motion for summary disposition pursuant to MCR 2.116(C)(8). Kisiel v Holz, 272 Mich App 168, 170; 725 NW2d 67 (2006). Where summary disposition is sought pursuant to MCR 2.116(C)(8), “the motion tests whether the complaint states a claim as a matter of law, and the motion should be granted if no factual development could possibly justify recovery.” Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). When reviewing such a motion, “all well-pleaded allegations are accepted as true, and construed most favorably to the nonmoving party.” Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992).
In arguing that the trial court erred, plaintiff cites Panich v Iron Wood Products Corp, 179 Mich App 136; 445 NW2d 795 (1989). Panich (which is not binding precedent pursuant to MCR 7.215, because it was decided before November 1, 1990) held that a cause of action arising out of the alleged spoliation of evidence, under the facts before it, was not recognized in Michigan. Plaintiff asserts that the factual circumstances in this case, however, warrant the recognition of such a cause of action.
The function of this Court is to correct errors. Burns v Detroit (On Remand), 253 Mich App 608, 615; 660 NW2d 85 (2002). As stated above, MCR 2.116(C)(8) provides that summary disposition is appropriate where a party fails to state a claim for which relief can be granted. Here, no error occurred where the lower court granted summary disposition after plaintiffs complaint alleged a cause of action that has not been recognized in Michigan. Although plaintiff now invites this Court to legally recognize the cause of action and to reverse and remand, we decline to do so.
As Justice WEAVER has stated in a concurring opinion, “[t]he legislative power includes the power to create new legal rights. And, where the Legislature chooses, it may exercise its discretion to create and define new causes of action.” Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 668-669; 684 NW2d 800 (2004). See, also, Phillips v Mirac, Inc, 470 Mich 415; 685 NW2d 174 (2004). While it is true that this Court may determine as a matter of law whether a duty is owed, our Supreme Court has also noted that in certain instances it is preferable for a duty to be statutorily declared. Harts v Farmers Ins Exch, 461 Mich 1, 12; 597 NW2d 47 (1999). We believe that this is one of those instances.
There are certainly considerations that would support the recognition of an independent tort claim for spoliation of evidence. There is no doubt, for instance, that the preservation of evidence is a compelling policy consideration and that the destruction of crucial evidence may undermine the fairness of an underlying lawsuit and the justice sought to be achieved. However, there are also countervailing policy considerations that weigh against the adoption of a tort for spoliation of evidence.
The traditional response to the problem of evidence spoliation frames the alleged wrong as an evidentiary concept, not as a separate cause of action. The proposed cause of action carries with it many potential concerns and effects, resulting in more complications than clarifications. For example, the scope of a duty to preserve evidence would need to be defined. It would be unreasonable to impose a boundless scope of duty to preserve evidence, particularly where the spoiler of evidence is a third party, i.e., not a party alleged to have committed the wrong that serves as the basis for the underlying or potential litigation. The extent and the amount of damages in a spoliation case are also highly speculative, because it is impossible to know what the destroyed evidence would have shown, and there is no way to determine whether a plaintiff would have had a significant possibility of success in the potential civil action if the evidence were available. It would prove difficult for a trier of fact to meaningfully assess what role the missing evidence would have played in the determination of the underlying action and, if the evidence would not actually have helped to establish a plaintiffs case, an award of damages for its destruction would work as a windfall to the plaintiff.
The Legislature would have the resources and tools needed to investigate the consequences of the proposed cause of action and to study the long-term effects of the cause of action in the jurisdictions that have recognized it. We leave it to the Legislature to do so, should it choose. Because plaintiff has not established that the lower court committed error, and because the Legislature is the body best suited to creating new causes of action, plaintiff is not entitled to relief.
Contrary to the dissent’s assertions, by permitting this case to proceed, we would not simply be recognizing the existence of a legal “duty” on the part of the insurance industry, but we would be creating a new cause of action in this state, which would necessarily require us to define which parties may bring a cause of action and within what time limits, how a plaintiff may establish a prima facie case, and what remedies would be available. Not only is the Legislature in a superior position to gather information regarding the propriety of such changes in the law, public policy dictates against our creation of an entirely new cause of action where the Michigan Legislature has taken upon itself to comprehensively regulate the insurance industry. Indeed, our insurance statutes contain more than 1,000 sections, showing a clear intent by the Legislature to define the parameters and regulate the conduct of those conducting business in this arena as well as the rights and remedies available to the public. See Harts, 461 Mich at 11-12. To that end, we are mindful of our Supreme Court’s observations in Henry v Dow Chem Co, 473 Mich 63, 88-89; 701 NW2d 684 (2005):
Although the caution engendered by our difficulty in identifying, much less weighing, the potential costs and benefits of a decision in plaintiffs’ favor is an important factor militating against recognizing plaintiffs’ proposed cause of action, there is a stronger prudential principle at work here: the judiciary’s obligation to exercise caution and to defer to the Legislature when called upon to make a new and potentially societally dislocating change to the common law.
Ours, after all, is a government founded on the principle of separation of powers. In certain instances, the principle of separation of powers is an affirmative constitutional bar on policy-making of this Court. In other cases, however, the separation of powers considerations may operate as a prudential bar to judicial policy-making in the common-law arena. This is so when we are asked to modify the common law in a way that may lead to dramatic reallocation of societal benefits and burdens. [Emphasis in original.]
Were we persuaded to ignore the Legislature’s pervasive role in this area of law and feel inclined to create a new cause of action, prudence would counsel against it because such a significant departure from Michigan law should only come from our Supreme Court, not an intermediate appellate court. See Dahlman v Oakland Univ, 172 Mich App 502, 507; 432 NW2d 304 (1988).
Moreover, if we were to adopt the reasoning of the dissent and recognize an independent cause of action for spoliation of evidence as merely a remedy for a violation of the already-established right to the preservation of evidence, we would nevertheless decline to find such remedy appropriate under the specific facts and circumstances before us. First, there are remedies available to a party claiming prejudice resulting from the loss or destruction of evidence. When a party destroys or loses material evidence, whether intentionally or unintentionally, and the other party is unfairly prejudiced because it is unable to challenge or respond to the evidence, a trial court has the inherent authority to sanction the culpable party to preserve the fairness and integrity of the judicial system. Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997). There is also a general rule that if a party intentionally destroys evidence that is relevant to a case, a presumption arises that the evidence would have been adverse to that party’s case. Ward v Consolidated Rail Corp, 472 Mich 77, 84; 693 NW2d 366 (2005).
We acknowledge that there is a distinction between the destruction of evidence by a party to the underlying litigation and spoliation of evidence by a third party in that not all the litigation-related remedies for spoliation are applicable to third parties. However, as aptly observed in Dowdle Butane Gas Co, Inc v Moore, 831 So 2d 1124, 1132 (Miss, 2002):
The victim of third party spoliation, however, is not entirely helpless. Some discovery sanctions are available to punish third party spoliation, including monetary and contempt sanctions against persons who flout the discovery process by suppressing or destroying evidence. A criminal sanction remains available under Penal Code section 135, as are disciplinary sanctions against attorneys who may be involved in spoliation. As we have pointed out, the victim of third party spoliation may deflect the impact of the spoliation on his or her case by demonstrating why the spoliated evidence is missing. It also may be possible to establish a connection between the spoliator and a party to the litigation sufficient to invoke the sanctions applicable to spoliation by a party. We do not believe that the distinction between the sanctions available to victims of first party and third party spoliation should lead us to employ the burdensome and inaccurate instrument of derivative tort litigation in the case of third party spoliation. We observe that to the extent a duty to preserve evidence is imposed by statute or regulation upon the third party, the Legislature or the regulatory body that has imposed this duty generally will possess the authority to devise an effective sanction for violations of that duty. To the extent third parties may have a contractual obligation to preserve evidence, contract remedies, including agreed-upon liquidated damages, may be available for breach of the contractual duty. Criminal sanctions, of course, also remain available.
Where, as here, a plaintiff has not alleged or demonstrated a complete lack of an available remedy for the spoliation of evidence by a third party, we decline to announce an as-yet unrecognized cause of action as the single appropriate remedy.
In addition, very few states recognize spoliation of evidence as an independent tort, and those that do have not only faced considerable disapproval, but have varied among themselves in the parameters and application of such a tort. Notably, the state generally acknowledged as providing the origin of a distinct cause of action for the tort of spoliation of evidence, California (in Smith v Superior Court of Los Angeles Co, 151 Cal App 3d 491; 198 Cal Rptr 829 [1984]), has recently moved away from its prior holding. In Cedars-Sinai Medical Ctr v Superior Court of Los Angeles Co, 18 Cal 4th 1, 17-18; 74 Cal Rptr 2d 248; 954 P2d 511 (1998), the California Supreme Court expressly disapproved of Smith and held that “there is no tort remedy for the intentional spoliation of evidence by a party to the cause of action to which the spoliated evidence is relevant, in cases in which, as here, the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action.”
More recently, in Temple Community Hosp v Superior Court of Los Angeles, 20 Cal 4th 464; 84 Cal Rptr 2d 852; 976 P2d 223 (1999), the California Supreme Court held that no tort cause of action will lie for intentional third-party spoliation of evidence. In reaching its decision, the court opined:
[T]he burdens and costs of recognizing a tort remedy for third party spoliation are considerable — perhaps even greater than in the case of first party spoliation. The same burdens identified in Cedars-Sinai exist, namely, jury confusion and the potential for abuse in bringing the action and for inaccurate and arbitrary verdicts, magnified by the potential for punitive damages, as well as the obvious burden to the judicial system, litigants, and witnesses, inherent in derivative litigation. Beyond these burdens, in the case of third party spoliation additional burdens arise from the circumstance that the class of potential plaintiffs and defendants is greatly expanded. As noted, both parties in the underlying litigation may be injured by a third party’s single act of destruction of evidence, thereby giving rise to two claims with potentially inconsistent or duplicative verdicts.... In addition, although spoliation claims between parties have an inherently limited number of potential defendants, if spoliation by nonparties were actionable in tort, the cast of potential defendants would be much larger. We believe the broad threat of potential liability, including that for punitive damages, might well cause numerous persons and enterprises to undertake wasteful and unnecessary record and evidence retention practices. [Id. at 476 (citation omitted; emphasis in original).]
Given that the majority of states recognizing a cause of action for spoliation of evidence generally relied heavily on California’s now disapproved-of Smith v Superior Court case, the strength and longevity of the other states’ opinions are in question. Moreover, while we are certainly not bound by out-of-state decisions, we do find the rationale employed in Temple compelling.
In any event, the states recognizing such a cause of action appear to base their recognition on a few key, interrelated factors: exclusive possession of the evidence by the person or company that ultimately destroys the evidence; knowledge of a potential lawsuit involving the evidence; and a specific duty to preserve the evidence. For example, in Boyd v Travelers Ins Co, 166 Ill 2d 188, 191; 652 NE2d 267 (1995), Tommie Boyd filed a claim for workers’ compensation benefits against his employer and his employer’s workers’ compensation insurer for injuries he received when a portable heater Boyd owned exploded while he was working inside his employer’s van. Employees of the workers’ compensation insurer took possession of the heater and transported it to the insurer’s office for the express purpose of investigating Boyd’s workers’ compensation claim. Subsequently, when Boyd asked that the heater be returned to him, the insurer was unable to locate it. The Illinois Supreme Court held that because the insurer’s employees knew that the heater was evidence relevant to future litigation, the insurer assumed a duty to preserve the heater. Because it failed to do so, an action for negligent spoliation could be stated under existing Illinois negligence law. Id. at 195.
In Thompson v Owensby, 704 NE2d 134, 136 (Ind App, 1998), a dog broke free from the cable restraining it in its owners’ yard and attacked a child, causing her serious injuries. The child’s parents sought compensation from the dog’s owners and the dog’s owners’ landlord. The landlords’ insurer investigated the plaintiffs’ claim and, in doing so, took possession of the cable. The insurer promptly lost the cable, before anyone had the opportunity to inspect it. The Indiana Court of Appeals noted:
A liability carrier like the Insurance Company can rationally be held to understand that once a claim is filed, there is a possibility of litigation concerning the underlying injuries. The Insurance Company’s knowledge and investigation of the Thompsons’ claims and its possession of what would be a key item of evidence in the event litigation ensued created a relationship between the Company and the Thompsons that weighs in favor of recognizing a cognizable duty to maintain evidence.
. . . Further, the foreseeability of the harm in losing evidence can be inferred from the allegation that the Company’s investigator took possession of the cable: if an insurance carrier’s investigator deems certain evidence important enough to be collected, it is foreseeable that loss of the evidence would interfere with a claimant’s ability to prove the underlying claim. [Id. at 137-138.]
See, also, the Alabama case of Smith v Atkinson, 771 So 2d 429 (Ala, 2000).
Here, assuming that Allstate was aware of a potential lawsuit at the time it inspected plaintiffs apartment, it did not have exclusive possession of the fan or lamp that plaintiff alleges may have caused the fire. It should be noted that before Allstate’s investigation of the scene, the Detroit Fire Department’s arson section and the Michigan State Police investigated and prepared reports concerning the fire. The arson section’s investigative report concluded that the fire originated within a leather loveseat in the living room of the apartment. However, the cause of the fire was listed as “undetermined” by both the Detroit Fire Department and the Michigan State Police. Approximately one week after the fire, the fire investigator hired by Allstate performed his inspection. The Allstate investigator never removed the fan or the lamp from the apartment and only removed two smoke detectors, some fire debris, and a carpet sample. The investigator did not believe that either the fan or the lamp had been a source of igniting the loveseat. Allstate maintains that the items collected by the investigator have been preserved, although plaintiff has never requested to see them. Where Allstate was at least the third entity to inspect the apartment and at no time removed or otherwise took possession of the items plaintiff now alleges may have caused the fire, it seems unreasonable to hold Allstate liable for the spoliation of such items. Furthermore, there is no allegation that plaintiffs representatives were barred from the premises. While we recognize that a tragedy had just occurred in the Teel family, it appears that someone on behalf of the family could have had equal access to the apartment to inspect and preserve any potential evidence.
With regard to a cognizable duty to preserve evidence, as previously discussed, we believe that identifying the existence and parameters of such a duty is best left to our Legislature. Other states have recognized a duty to preserve evidence where there has been a voluntary undertaking to preserve the evidence or a promise to maintain the evidence (see, e.g., Smith v Atkinson) or where special circumstances surrounding the relationship of a potential plaintiff with a holder of evidence exist. While plaintiff contends that a special relationship between Allstate and plaintiff was created by virtue of Allstate’s undertaking to investigate the scene, plaintiffs reliance on Thompson to support this conclusion is misplaced. Instrumental in the Thompson court’s determination that the insurer had a duty to preserve evidence was the fact that the insurer took exclusive possession of the potential evidence.
Plaintiff has not articulated any basis for imposing a specific duty on Allstate to preserve or maintain the evidence. There is no alleged statutory duty, no alleged promise by Allstate to maintain it, and no special relationship existing that would warrant the imposition of a duty on Allstate to preserve evidence. Absent an articulable, legally recognized duty, there can be no cause of action for the alleged tort of spoliation of evidence.
Finally, this case is similar to American Nat’l Prop and Cas Co v Wilmoth, 893 NE2d 1068, 1069 (Ind App, 2008). In that case, a fire broke out in a home that a family, consisting of the parents and their two children, rented from Robert and Betty Bowers. Tragically, the two children and one of the parents died as a result of the fire. While fighting the fire, firefighters threw a couch and other items onto the front yard, where they remained for approximately six weeks. The fire department concluded that the fire was accidental and was caused by an electrical space heater, and the Bowerses eventually discarded the items. The surviving parent’s later-retained experts, however, believed that the fire started because of electrical arcing from an air conditioner power cord “in the area of the sofa.” The parent brought an action against the landlords’ insurer, alleging that it permitted spoliation of evidence concerning the origin of the fire (specifically the couch), which evidence might have been needed in an action against the Bowerses. Noting that the duty to preserve evidence has limits, the American Nat’l court recognized that the insurer never had possession, much less exclusive possession, of the couch and that when the Bowerses disposed of the couch, the fire department had determined that the fire was an accident caused by an electrical space heater. The Indiana Court of Appeals ultimately held that the insurer was entitled to summary disposition of the parent’s claim “because it owed no duty to [the parents]. Its contractual relationship was with its insured, [the] Bowers [es]; it never had exclusive possession of the couch ...Id. at 1071. We find the above reasoning sound.
Affirmed.
SAAD, C.J., concurred.
The dissent mistakenly conflates the ordinary job of a common-law judge to decide whether there is a legal “duty” in the first instance in a garden variety tort case with the much different question before us: whether the state of Michigan should create an entirely new cause of action in an arena, insurance, that is comprehensively regulated by the Legislature.
Plaintiff does not assert that Allstate actually took possession of any specific item of potential evidentiary value and then destroyed it or lost it. Instead, the crux of his complaint is that Allstate, by undertaking the inspection of the premises, assumed control and should have prevented anyone else (including the owner) from entering the apartment, taking possession of any items in the apartment, or renovating or repairing the apartment.
As pointed out in the dissent, Ricky Teel “was medically not competent.” | [
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BANDSTRA, EJ.
Defendant, American Federation of State, County, and Municipal Employees (AFSCME) Local 369, appeals as of right the trial court’s order granting summary disposition to plaintiff, city of Ann Arbor, in this action arising from a dispute over the scope of an arbitration award. We reverse and remand for the entry of an order granting summary disposition in favor of defendant.
At issue here is the meaning of language in a so-called “me too” provision of a collective bargaining agreement (CBA) entered into by the parties for the three-year period from July 1, 1998, to June 30, 2001. This “me too” provision provides that
[i]f another bargaining unit receives an increase higher than the settlement with AFSCME, such increase will also be granted to AFSCME for this contract period as a “me too” on wages. If gained by Police or Fire bargaining units, a “me too” [sic] retroactivity on wages for retirees.
The parties did not reach agreement on a successor contract as of the CBA’s June 30, 2001, expiration date. By virtue of “ground rules” mutually agreed to by the parties on April 21,2001, the CBA was to remain in effect until a successor contract was ratified by both parties. Before the parties reached agreement on a successor contract, defendant filed its grievance, alleging that plaintiff violated the “me too” provision of the CBA by refusing to give defendant’s members wage increases provided to members of another bargaining unit.
The parties executed a successor collective bargaining agreement, which was ratified by plaintiff on October 7,2002. Defendant ratified the agreement sometime between August 21, 2002, and October 7, 2002. Thus, pursuant to the “ground rules,” the CBA remained in effect until October 7, 2002.
Defendant’s grievance remained unresolved through the process outlined in the CBA, and on March 25,2002, defendant demanded arbitration. Ultimately, the arbitrator determined that defendant was entitled to the “me too” increase it sought, concluding that “the longevity/wage structure increases received by the [other bargaining unit] shall be awarded to AFSCME for the contract period from July 1, 1998, to June 3[0], 2001, and as extended by the parties.”
Following the issuance of the arbitrator’s opinion, plaintiff granted the “me too” increases to defendant, limited to the period from July 1, 1998, to June 30, 2001. Plaintiff asserted that the arbitration award did not include the period during which the CBA was extended pursuant to the mutually agreed to “ground rules” pending completion of a successor agreement, because that period was not part of the “contract period” within the meaning of the CBA’s “me too” provision. Plaintiff argued that the phrase “and as extended by the parties” in the arbitration award meant only that the awarded “me too” increases would continue if, but only if, the parties agreed to extend the “me too” benefit by including it in the successor agreement. Defendant disagreed, asserting that the arbitrator’s language “and as extended by the parties” referred to and encompassed the parties’ mutual agreement, set forth in the “ground rules,” to extend the CBA until such time as a successor agreement was ratified by both parties and that the increases thus extended until October 7,2002. Unable to resolve their disagreement, the parties ultimately agreed to return to the arbitrator to seek clarification of the award.
Following a hearing on this issue and the submission of posthearing briefs, on April 24, 2007, the arbitrator issued a second opinion and award clarifying that “ ‘[a]s extended by the parties’ means until ratification by the parties on October 7, 2002. The ground rules mutually adopted on April 24, 2001, stated that the agreement is to remain in effect until both parties ratify the successor contract.” The arbitrator reasoned that, by mutual agreement of the parties, “[t]he employees continued to be paid under the terms and conditions of the 1998-2001 contract until the new contract was ratified. This means that the ‘me-too’ wage increases continued to be part of the 1998-2001 agreement until it was officially superceded.”
On May 16, 2007, 21 days after the arbitrator clarified his award, plaintiff filed a complaint to vacate a portion of arbitrator’s award. It asserted that the arbitrator exceeded his authority under the CBA by awarding defendant the “me too” increases for the period from June 30, 2001, until October 7, 2002.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(7). Defendant relied on a decision issued by the United States Court of Appeals for the Sixth Circuit, Badon v Gen Motors Corp, 679 F2d 93 (CA 6, 1982), a case filed under § 301 of the Labor Management Relations Act, 29 USC 185, to argue that the Michigan limitations period for an action to vacate a labor arbitration award is six months. Thus, defendant argued that plaintiffs complaint should be dismissed as untimely because it was filed more than six months after the arbitrator issued his October 28, 2005, award granting defendant’s grievance.
Plaintiff initially acknowledged that a six-month limitations period generally applies to such claims, but argued that the limitations period should be equitably tolled given the unusual circumstances presented here, including the necessity of seeking clarification of the award from the arbitrator, that much of the delay in returning to the arbitrator was caused by defendant, and that plaintiff filed its complaint less than one month after the arbitrator issued his second opinion clarifying the phrase “and as extended by the parties.” Later, in a reply to defendant’s motion, plaintiff denied that Michigan imposes a six-month limitations period on claims to vacate an arbitration award, asserting for the first time that such actions are subject to the six-year residual statute of limitations set forth in MCL 600.5813.
The trial court agreed and denied defendant’s motion for summary disposition. The trial court ruled that the residual six-year limitations period set forth in MCL 600.5813 applied to plaintiffs claim to vacate a portion of the arbitration award and that even if a six-month limitations period applied, it would be equitably tolled considering the circumstances presented.
Plaintiff likewise moved for summary disposition, asserting that the arbitrator exceeded his authority by extending the “me too” benefits until October 7, 2002, because he did so relying on the “ground rules” (which extended the CBA pending ratification of a successor agreement) and not by interpreting language contained in the CBA. Defendant opposed the motion, asserting that the arbitrator was acting within his authority when he interpreted the “contract period” as including the parties’ mutually agreed extension of the CBA until such time as the successor agreement was ratified. At the conclusion of oral argument, the trial court granted plaintiffs motion. It concluded that the arbitrator exceeded his authority by relying on the “ground rules,” and not solely on the CBA, to determine that the “contract period” for purposes of the “me too” increases concluded on October 7, 2002.
Defendant first argues on appeal that the trial court erred in determining that actions to vacate an arbitration award are governed by a six-year limitations period. We disagree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998); Rice v Auto Club Ins Ass’n, 252 Mich App 25, 30; 651 NW2d 188 (2002). The question regarding the applicable limitations period presents a question of law that this Court also reviews de novo. Detroit v 19675 Hasse, 258 Mich App 438, 444; 671 NW2d 150 (2003); City of Novi v Woodson, 251 Mich App 614, 621; 651 NW2d 448 (2002).
The parties agree, correctly, that there is no statute or court rule setting forth a limitations period specifically for actions seeking to vacate labor arbitration awards arising from collective bargaining agreements. Although arbitration is addressed in both statutory provisions and court rules, there is no limitations period plainly applicable to actions relating to labor arbitration awards.
The Legislature has declared, in § 1 of the labor mediation act, that it is “the public policy of this state that the best interests of the people of the state are served by the prevention or prompt settlement of labor disputes ....” MCL 423.1. In furtherance of this policy, the Legislature has provided:
(1) Any labor dispute, other than a representation question, may lawfully be submitted to voluntary arbitration in the manner provided in this section.. ..
(2) (a) When a labor dispute involves the meaning or interpretation of an existing collective agreement between an employer and a labor organization and the collective agreement provides for the use of a designated arbitrator to decide disputes thereunder, or provides the method for selection of arbitrator or arbitrators, the provisions of that agreement shall be binding upon the parties, and shall be complied with unless the parties agree to submit the dispute to some other arbitration procedure.
(4) An award rendered in a proceeding hereunder shall be enforceable at law or in equity as the agreement of the parties. [MCL 423.9d.]
However, the labor mediation act does not contain any limitations period for actions to enforce, vacate, or modify arbitration awards. MCR 3.602 establishes limitations periods for filing a complaint to vacate an arbitration award (21 days), a motion to vacate an award (91 days), or a complaint to correct or modify an arbitration award (21 days). MCR 3.602(J) and (K). However, that rule only governs statutory arbitration conducted under chapter 50 of the Revised Judicature Act (RJA), MCL 600.5001 to 600.5035. MCR 3.602(A). The pertinent provisions of the RJA specifically except collective bargaining agreements from that chapter. MCL 600.5001(3). Thus, the limitations periods set forth in MCR 3.602 do not apply to awards such as that at issue here.
In the absence of a specifically applicable limitations period, defendant urges that a six-month period is mandated by the Sixth Circuit’s decision in Badon, supra. Alternatively, plaintiff asserts that, in the absence of any specifically applicable limitations period, this action is governed by the six-year residual limitations period set forth in MCL 600.5813.
At issue in Badon was the proper limitations period for a Michigan employee’s “hybrid” action, brought under § 301 of the Labor Management Relations Act, 29 USC 141 et seq. (hereafter LMRA), against his former employer for breach of contract and against his union for unfair representation. The Sixth Circuit observed that the United States Supreme Court had instructed federal courts to “apply the most analogous state statute to section 301 suits as a matter of federal law” and that “the most appropriate [limitations] statute was that pertaining to the vacation of arbitration awards.” Badon, supra at 95-96, citing Int’l Union, UAW v Hoosier Cardinal Corp, 383 US 696, 704-705; 86 S Ct 1107; 16 L Ed 2d 192 (1966), and United Parcel Service v Mitchell, 451 US 56, 62; 101 S Ct 1559; 67 L Ed 2d 732 (1981).
Having decided that it was to apply the Michigan limitations period for actions to vacate arbitration awards, the court next attempted to ascertain Michigan law on this issue. It began by noting that the limitations period relating to arbitration awards set forth in the Michigan Court Rules applied only to statutory arbitration under the RJA, which explicitly excludes from its operation “ ‘collective contracts between employers and employees or associations of employees in respect to terms or conditions of employment.’ ” Badon, supra at 98, quoting MCL 600.5001(3). The Badon court then explained:
By excluding labor disputes from statutory arbitration, Michigan has relegated labor arbitration to the realm of the common law. Appellants have not directed us to, nor have we found, any authority limiting the time in which labor arbitration awards may be vacated in Michigan. [The plaintiff] has, however, cited several cases which he claims employ Michigan’s residual six-year personal action statute. [MCL 600.5813], Unfortunately none of the cases cited is apposite....
In summary, we are left without guidance by the state of Michigan with respect to the time period within which actions to vacate labor arbitration awards must be brought. We must therefore decide this federal question on the strength of our own reasoning. That process leads us to conclude that the most appropriate statute of limitations under these circumstances is the six-month period found at section 10(b) of the National Labor Relations Act, 29 U.S.C. § 106(b). Although that period specifically governs unfair labor charges brought before the National Labor Relations Board, the policy behind that time period applies with equal force when similar charges are brought to a federal court under section 301 of the [LMRA], [Badon, supra at 99.]
The Badon court commented that the six-month limitations period presented “ ‘the proper balance between the national interests in [a] stable bargaining relationship and finality of private settlements, and an employee’s interest in setting aside what he views as an unjust settlement under the collective-bargaining system.’ ” Id., quoting Mitchell, supra at 70.
This Court applied Badon in Romero v Paragon Steel Div, Portec, Inc (On Remand), 129 Mich App 566, 572-573; 341 NW2d 546 (1983). In Romero, on remand from our Supreme Court for reconsideration in light of Badon, this Court, quoting extensively from Badon and adopting its reasoning, determined that a six-month limitations period applied to bar the plaintiffs claims against his employer for wrongful discharge brought under § 301 of the LMRA. This Court also determined that a teacher’s claim against his union alleging breach of the duty of fair representation was barred by a six-month limitations period, “[l]ikewise [finding] the result reached... [in] Badon to be sound.” Ray v Org of School Administrators & Supervisors, Local 28, 141 Mich App 708, 711; 367 NW2d 438 (1985). Similarly, this Court applied Badon to again bar as untimely an action by an employee against her union and its agent, alleging that the union failed to file a timely grievance for arbitration on her behalf following termination of her employment. Ogletree v Local 79, Service Employees Int’l Union, 141 Mich App 738, 739-740, 743; 368 NW2d 882 (1985).
Next, this Court mentioned Badon in Meadows v Detroit, 164 Mich App 418, 434-435; 418 NW2d 100 (1987). That case involved an action by a former police officer against his employer alleging wrongful discharge (among other claims) and against his union for breach of the duty of fair representation. In that context, this Court explained:
When a duty of fair representation claim is asserted by itself or in combination with a claim of wrongful discharge, this Court has held that a six-month period of limitations applies. Romero [supra at 572-573]; Ray [supra]; Ogletree [supra at 745]. The adoption of such a brief limitations period is based on the following sound policy rationale:
“Where the parties have contracted to settle claims among themselves, their final decisions should not be exposed to collateral attack for long periods but should become final rather quickly. See UMW v Barnes & Tucker Co, 561 F2d 1093, 1096 (CA 3, 1977) (‘It is not arbitration per se that federal policy favors, but rather final adjustment of differences by a means selected by the parties.’)!.] Otherwise, the internal system will be just another step into a lengthy process of litigation rather than an efficient and unitary method of disposing of the high volume of grievances generated under any large scale employment contract.” [Romero, supra, p 569, quoting Badon [supra]. See also DelCostello v Int’l Brotherhood of Teamsters, 462 US 151; 103 S Ct 2281; 76 L Ed 2d 476 (1983).] [Meadows, supra at 434-435.]
Of note to the instant appeal, neither Badon nor any of the aforementioned cases actually involved actions to vacate, modify, or enforce arbitration awards. Rather, Badon and its Michigan progeny applied a six-month limitations period to claims that a union had breached its duty of fair representation, whether brought alone or in conjunction with claims against the employer for wrongful termination or other improper employment action. Meadows, supra.
The limitations period applicable to an action to enforce an arbitration award was at issue in Walkerville Ed Ass’n v Walkerville Rural Communities School, 165 Mich App 341, 345; 418 NW2d 459 (1987). This Court noted that Michigan law does not specify a limitations period for enforcing a labor arbitration award arising from private-sector collective bargaining agreements, or from public-sector agreements where the challenged employer action was not submitted to the Michigan Employment Relations Commission (MERC). Faced with this, this Court affirmed a trial court’s decision extending by analogy the six-month limitations period found in § 16(a) of the public employment relations act (PERA), MCL 423.216(a), to the plaintiffs claim seeking enforcement of an arbitration award not meeting the conditions of that act. After noting that neither MCR 3.602(1) nor MCL 423.216(a) applied to the case before it, this Court reasoned:
An arbitration proceeding, being based on an agreement, is contractual in nature. The difficulty in this case arises because of MCL 423.9d ... , which, while allowing public labor disputes to be resolved by arbitration, does not specify a limitation period for enforcing the arbitration award. Rather, the award rendered “shall be enforceable at law or in equity as the agreement of the parties.” MCL 423.9d(4).... This requirement suggests that an arbitration award in the public sector should be subject to the six-year limitation period for contracts contained in the Revised Judicature Act, MCL 600.5807(8).... This limitation period, although perhaps applicable under strict rules of statutory construction, appears to be an unduly lengthy period for enforcing an arbitration award. This is particularly so when viewed with the statutory declaration that the best interests of the people of this state are served by the prompt settlement of labor disputes. MCL 423.1.... Similar policy considerations, under federal labor law, along with a consideration of the competing interests affected by the limitation period, have led federal courts to adopt the six-month limitation period contained in § 10(b) of the National Labor Relations Act, 29 USC 160(b), for arbitration purposes.
We conclude that the trial court did not err in adopting the six-month limitation period. A six-month period is part of PERA; it effectuates the state’s express policy in favor of the prompt resolution of labor disputes in the public sector. Adoption of the six-month limitation period also contributes to statute of limitation uniformity. [Walkerville, supra at 345 (some citations omitted).]
Subsequently, however, our Supreme Court refused to apply this Court’s decision in Walkerville, holding that PERA’s six-month limitations period could not be applied by analogy and that actions to enforce arbitration awards are instead governed by the six-year limitations period for breach of contract actions and, where specific performance or other equitable relief is sought, are also subject to the equitable doctrine of laches. Rowry v Univ of Michigan, 441 Mich 1, 9-11; 490 NW2d 305 (1992). Stated differently, the Court explained that “a plaintiff ordinarily has six years to seek enforcement of an arbitration award[,]” although “in certain cases this time period may be substantially diminished if a plaintiffs arbitration award grants equitable relief and a delay in its enforcement is shown to prejudice the defendant in a way that evokes laches to bar the plaintiffs claim.” Id. at 11-12.
We find particularly noteworthy Justice Griffin’s “ ‘reluctant’ ” concurrence in Rowry, “expressing] . . . concern that application of a limitation period of six years, rather than six months, will seriously undermine state and federal policies favoring the prompt resolution of labor disputes” and urging the Legislature “to address this issue and to provide a more appropriate period of limitation in keeping with its stated policy of encouraging expeditious resolution of labor disputes.” Id. at 12, 17. More specifically, Justice GRIFFIN (joined by Justice BOYLE) reasoned as follows:
In its analysis, the majority concludes that the six-year period generally applicable to contract actions is the appropriate limitation period to apply to this plaintiffs action to “enforce” a labor arbitration award. However, this case involves more than a simple breach of contract or a straightforward refusal to comply with an arbitration award. Plaintiffs cause of action arises out of a collective bargaining agreement between his union and his employer. The agreement establishes a grievance procedure designed to effect the prompt resolution of disputes. Such a procedure is in keeping with a state policy that discourages long delays in the resolution of labor disputes.
When it adopted the labor mediation act, our Legislature stated:
“It is hereby declared as the public policy of this state that the best interests of the people of the state are served by the prevention or prompt settlement of labor disputes ....” [MCL 423.1....]
This act encourages use of arbitration in the settlement of disputes by providing that an agreement to arbitrate “shall be binding upon the parties,” and stating that the arbitration award “shall be enforceable at law or in equity as the agreement of the parties.”
Concern at the state level for rapid resolution of labor disputes is consistent with established policy at the federal level. In DelCostello [supra], the United States Supreme Court rejected the application of an extended state contract limitation period in an action arising from a collective bargaining agreement that provided for grievance resolution through arbitration. The Court explained:
“This system, with its heavy emphasis on grievance, arbitration, and the “law of the shop,” could easily become unworkable if a decision which has given “meaning and content” to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as [three] years later.’ ” [462 US 169, quoting (Mitchell, supra at 64).]
Recognizing the importance of stable relationships in the workplace and the need for finality in a collectively bar gained grievance procedure, the Court elected to apply the six-month limitation period of § 10(b) of the Labor-Management Relations Act, 29 USC 160(b), “a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here ... DelCostello, 462 US 169.
In Samples v Ryder Truck Lines, Inc, 755 F2d 881, 888 (CA 11, 1985), the United States Court of Appeals for the Eleventh Circuit applied the DelCostello rationale to an employee’s action to enforce a labor arbitration award. The court found Georgia’s six-year contract limitation period inapplicable because “a grievance arising during the term of a collective bargaining agreement bears little likeness to a common law breach of contract claim.” Similarly, in Int’l Ass’n of Machinists v Allied Products Corp, 786 F2d 1561, 1564 (CA 11, 1986), the Eleventh Circuit applied the six-month limitation period to a union’s action to compel arbitration, explaining that Alabama’s six-year limitation period for contract actions “contravenes the federal policy of the prompt resolution of labor disputes.”
As I see it, the same rationale counsels against application of a six-year contract limitation period in the instant case.... Surely, if a policy of prompt resolution of labor disputes is to have meaning, a relatively short limitation period should govern resort to the courts after exhaustion of a grievance procedure.
Although the Legislature has taken pains to declare that it is the public policy of this state to encourage prompt resolution of labor disputes, unfortunately, it has failed to provide suitable statutes of limitations for the implementation of that policy.
I agree with the reasoning set forth in Walkerville [supra] and I would adopt it in this case if the Legislature had not provided a residual or “catch-all” statute of limitations requiring:
“All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes.” [MCL 600.5813 .. ..]
It is at least arguable that MCL 600.5807(8)... [the period of limitations for contract actions applied by the majority] does not apply in this case because that subsection establishes a limitation period for “actions to recover damages or sums due for breach of contract,” whereas this plaintiff primarily seeks reinstatement to his position as a bus driver. However, because I conclude that the residual statute is applicable in any event, I am compelled to agree that plaintiff’s claim is governed by a six-year limitation period.
Rather than allow a wide disparity to develop in the treatment of similar claims presented by public and private employees, I urge the Legislature to address this issue and to provide a more appropriate period of limitation in keeping with its stated policy of encouraging expeditious resolution of labor disputes. [Rowry, supra at 12-17.]
In her concurrence, Justice RILEY agreed with the majority that the six-year period of limitations for contract actions was applicable to the plaintiff’s attempt to enforce his arbitration award. She reasoned that
[a]s the majority has recognized, the only reference in the labor mediation act, MCL 423.1 et seq...., which applies to the enforcement of arbitration awards is § 9d(4), which provides:
“An award rendered in a proceeding hereunder shall be enforceable at law or in equity as the agreement of the parties.” [MCL 423.9d(4)....]
Two factors contribute to the conclusion that the six-year provision for breach of contract must apply here. First, as the majority recognized, the Legislature did not provide for an express time frame to enforce arbitration awards in the labor mediation act itself. Therefore, we are left with the belief that the Legislature intended for us to apply the existing six-year period of limitation for breach of contract actions to govern this issue. Second, we have held that “[a]n arbitrator’s jurisdiction and authority to resolve a particular dispute concerning the appropriate interpretation of a collective bargaining agreement derives exclusively from the contractual agreement of the parties ....” Given that an arbitrator is bound by the terms of the collective bargaining agreement, there is nothing that would have precluded the parties from establishing a time limitation shorter than six years.
Because neither the labor mediation act nor the collective bargaining agreement (nor the arbitration award itself) provides a statute of limitation to enforce an arbitration award, the six-year period of limitation for breach of contract must apply. [Rowry, supra at 18-19 (some citations omitted).]
Justice Riley joined in Justice Griffin’s “call to the Legislature to address this issue and provide a more appropriate period of limitation in keeping with its stated policy of encouraging expeditious resolution of labor disputes.” Id. at 18 n 1.
Despite the urgings of Justices GRIFFIN, BOYLE, and RILEY, however, the Legislature has taken no action in the nearly 17 years since Rowry was decided to provide a specific statute of limitations for the enforcement, or for actions seeking the vacation, of labor arbitration awards. Thus, this Court is left to construe its own earlier decisions (applying a six-month limitations period to actions against a union for unfair representation or actions brought under § 301 of the LMRA) and our Supreme Court’s decision in Rowry (imposing a six-year limitations period on actions to enforce an arbitration award) to determine the applicable limitations period for actions, such as the instant action, that seek to vacate an arbitration award arising from a collective bargaining agreement. In this context, we conclude, albeit reluctantly, that actions to vacate arbitration awards are subject to a six-year limitations period.
We find that actions to vacate arbitration awards are more akin to actions to enforce arbitration awards than to actions for unfair representation. In Rowry, our Supreme Court held that the enforcement of an arbi tration award is subject to the six-year hmitations period for breach of contract because “arbitration is a matter of contract. It is the agreement that dictates the authority of the arbitrators and the disputes to be resolved through arbitration.” Rowry, supra at 10. Certainly, the same logic is equally apphcable in the context of an action to vacate an arbitration award. Thus, we must reject defendant’s suggestion that we should limit Rowry’s apphcation to enforcement, not vacation, actions. We have no authority to impose such a hmitation when nothing in Rowry would even vaguely suggest it.
Considering the Supreme Court’s analysis in Rowry and the lack of legislative action thereafter, defendant can offer no compelling substantive legal basis to support the apphcation of a six-month hmitations period here. Thus, here, as in Rowry, despite the Legislature’s “declared- ... pubhc policy of this state” favoring “prompt settlement of labor disputes,” MCL 423.1, this Court is compelled to conclude that plaintiffs action to vacate a portion of the arbitration award is subject to the six-year hmitations period for contract actions (considering that such awards are “enforceable at law or in equity as the agreement of the parties” under MCL 423.9d[4], as suggested by Rowry) or to the six-year residual “catch-all” hmitations period set forth in MCL 600.5813 (as suggested by Justice GRIFFIN in his concurrence in Rowry) for “[a]h other personal actions” to which specific hmitations periods are not apphcable.
Defendant next argues that the trial court erred by granting plaintiffs motion for summary disposition, because the arbitrator’s award constituted an arguable construction of the terms of the CBA and was within his authority. We agree.
This Court reviews de novo a trial court’s decision to enforce, vacate, or modify an arbitration award. Bayati v Bayati, 264 Mich App 595, 597-598; 691 NW2d 812 (2004); Saveski v Tiseo Architects, Inc, 261 Mich App 553, 554; 682 NW2d 542 (2004); Tokar v Albery, 258 Mich App 350, 352; 671 NW2d 139 (2003). Judicial review of an arbitrator’s decision is narrowly circumscribed. Police Officers Ass’n of Michigan v Manistee Co, 250 Mich App 339, 343; 645 NW2d 713 (2002). A court may not review an arbitrator’s factual findings or decision on the merits. Id. Likewise, a reviewing court cannot engage in contract interpretation, which is an issue for the arbitrator to determine. Konal v Forlini, 235 Mich App 69, 74; 596 NW2d 630 (1999). Nor may a court substitute its judgment for that of the arbitrator. Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 497; 475 NW2d 704 (1991). “[Hjence [courts] are reluctant to vacate or modify an award when the arbitration agreement does not expressly limit the arbitrators’ power in some way.” Id. The inquiry for the reviewing court is merely whether the award was beyond the contractual authority of the arbitrator. Police Officers Ass’n of Michigan, supra at 343. If, in granting the award, the arbitrator did not disregard the terms of his or her employment and the scope of his or her authority as expressly circumscribed in the contract, “ ‘judicial review effectively ceases.’ ” Id., quoting Lincoln Park v Lincoln Park Police Officers Ass’n, 176 Mich App 1, 4; 438 NW2d 875 (1989). Thus, “ ‘as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,’ ” a court may not overturn the decision even if convinced that the arbitrator committed a serious error. Michigan Ass’n of Police v City of Pontiac, 177 Mich App 752, 760; 442 NW2d 773 (1989), quoting United Paperworkers Int’l Union, AFL-CIO v Misco, Inc, 484 US 29, 38; 108 S Ct 364; 98 L Ed 2d 286 (1987).
As discussed earlier, the issue for arbitration was whether certain provisions of. plaintiffs bargaining agreement with another bargaining unit triggered the “me too” clause in the CBA, which, as previously noted, provides:
If another bargaining unit receives an increase higher than the settlement with AFSCME, such increase will also be granted to AFSCME for this contract period as a “me too” on wages. If gained by Police or Fire bargaining units, a “me too” [sic] retroactivity on wages for retirees.
At issue here is the arbitrator’s interpretation of the phrase “for this contract period” as used in this provision. “[T]his contract period” is not defined in the CBA. However, two provisions address the termination and duration of the agreement:
55. TERMINATION AND MODIFICATION
This Contract shall continue in full force and effect until 11:59 p.m. on June 30, 2001. If either party desires to modify or change this contract, it shall follow the procedure for negotiations as set forth in the paragraph entitled “Duration of Contract”.
56. DURATION OF CONTRACT
This Contract shall become effective as of its date of execution, and shall remain in full force and effect until 11:59 p.m., June 30, 2001, and from year to year thereafter unless either party hereto serves written notice upon the other at least ninety (90) calendar days prior to the expiration date of any subsequent automatic renewal period of its intention to amend, modify or termination [sic] this contract.
The parties did not reach agreement on a successor contract as of the CBA’s June 30, 2001, expiration date. It is not clear whether either party, or which of them, complied with paragraph 56 of the CBA by serving written notice on the other party of an intent to amend, modify, or terminate the CBA. What is clear is that, on April 24, 2001, the parties executed a written document, titled “Ground Rules for Negotiations,” which specifically provided that the CBA was to “remain in effect” until a successor contract was ratified by both parties. The arbitrator, having been presented with the “ground rules” during the hearings, determined that the “me too” provision’s phrase “for this contract period” included the period during which the parties agreed that the CBA would “remain in effect.” The arbitrator reasoned that, by virtue of the mutually agreed “ground rules,” “[t]he employees continued to be paid under the terms and conditions of the 1998-2001 contract until the new contract was ratified.” Accordingly, the arbitrator further reasoned that the “me too” wage increase provision also continued to be part of the 1998-2001 agreement until it was officially superseded by ratification of the successor agreement.
The trial court ruled, as argued by plaintiff, that because the arbitrator relied on the “ground rules” to determine the duration of the phrase “for this contract period,” and because those benefits were not extended in the successor contract, the arbitrator acted outside his authority by awarding “me too” benefits for the period from July 1, 2001, to October 7, 2002. Considering the limited scope of judicial review and that the arbitrator certainly was “ ‘arguably construing or applying’ ” the contractual language “for this contract period” having considered the evidence presented, Michigan Ass’n of Police, supra at 760, quoting Misco, Inc, supra at 38, we conclude that the trial court erred by granting plaintiffs motion for summary disposition to vacate this portion of the arbitrator’s award.
The CBA provides that “[a]n arbitrator shall have no power to add to, subtract from or modify any of the terms of this contract. . . .” Contrary to plaintiffs assertion, considering the parties’ written agreement that the contract would remain in effect during negotiations, the arbitrator cannot be said to have added to, subtracted from, or modified the CBA in issuing his award. Rather, being required to determine the duration of “this contract period,” the arbitrator merely gave effect to the parties’ own mutual agreement that the CBA would remain the operative agreement between the parties during the negotiation period. The CBA clearly contemplated that the parties might extend its operation by mutual agreement. Thus, giving effect to such an extension, even if achieved other than as contemplated in the CBA, does not contradict or offend the CBA in any way.
Certainly, there is no dispute that both parties operated under the CBA until October 7, 2002. As noted by the arbitrator, plaintiffs employees/defendant’s members were paid under, and remained subject to all the provisions of, the CBA until that date. The arbitrator reasoned that if the contract’s termination date was extended and the contract remained in effect after June 30, 2001, then the “me too” provision would also continue to be in effect during that contract period. On this basis, finding that the parties did in fact extend the termination date of the CBA, the arbitrator concluded that defendant’s members were entitled to “me too” benefits for the entire operative contract period, from July 1, 1998, to October 7, 2002. We find no basis to conclude that the arbitrator acted beyond the material terms of the contract from which his authority was derived, Saveski, supra at 554, or that he was doing anything other than “ ‘arguably construing or applying the contract,’ ” Michigan Ass’n of Police, supra at 760, quoting Misco, Inc, supra at 38, in reaching this conclusion. Further, under the circumstances presented here, the determination of the duration of “this contract period” was a factual finding to be made by the arbitrator, and the arbitrator’s factual findings are not subject to judicial review. Police Officers Ass’n of Michigan, supra at 343.
There being no basis for the trial court to modify the arbitrator’s award, it was defendant, and not plaintiff, who was entitled to summary disposition. We reverse and remand for the entry of an order granting summary disposition in favor of defendant. We do not retain jurisdiction. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
The purpose of this provision was to induce defendant to enter into a contract with plaintiff before bargaining was complete with all other units, without being concerned about whether plaintiff would then grant higher increases to those bargaining units with which it subsequently reached agreement.
Having concluded that plaintiffs claim is governed by a six-year hmitations period, we need not address plaintiffs argument that any six-month hmitations period was equitably tolled under the unique circumstances of this case.
In reaching this conclusion, we observe that any consideration of whether “me too” benefits were included in the successor agreement is wholly irrelevant to the determination of the duration of “this contract period.”
In this context, we note that plaintiff apparently did not object to the arbitrator’s receipt of the “ground rules” at the hearings and that plaintiff participated in returning to the arbitrator to seek clarification of the award, knowing that defendant asserted that the award encompassed the mutually agreed extension of the CBA during the negotiation period. | [
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SERVITTO, J.
Defendant Michigan Department of Transportation appeals as of right the circuit court’s order denying its motion for summary disposition. Because the fascia of the bridge is a part of the improved portion of the highway designed for vehicular travel, we affirm.
Plaintiff was injured when a chunk of concrete fell from the fascia of an overpass (the Cass Avenue Bridge) and crashed through his windshield as he drove on 1-75 below Cass Avenue. Although Cass is a city-owned street, defendant has contractually agreed to maintain and repair all of its bridge’s structure; the city maintains only the Cass Avenue roadway surface. The parties stipulated that defendant had exclusive control and jurisdiction over the bridge and to the dismissal of the city and the county defendants. Defendant then moved for summary disposition pursuant to MCR 2.116(C)(7), asserting that plaintiffs claims were barred by governmental immunity. According to defendant, the highway exception to governmental immunity, MCL 691.1402, only imposes liability for failing to maintain and repair the improved portion of the highway designed for vehicular travel, and the fascia of the bridge is not a part of that improved portion. The circuit court denied the motion, opining that a bridge, which is included in the definition of “highway,” for which defendant is liable for repairing and maintaining, includes the fascia in its superstructure and is therefore part of the improved and traveled portion of the highway.
We review de novo a trial court’s decision on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The applicability of the highway exception to governmental immunity is a question of law subject to de novo consideration on appeal. Stevenson v Detroit, 264 Mich App 37, 40-41; 689 NW2d 239 (2004).
A governmental agency is generally immune from tort liability “if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407. However, statutory exceptions to governmental immunity do exist and include what is commonly called “the highway exception.” The purpose of this exception is to enhance the safety of travel on public highways. Chaney v Dep’t of Transportation, 447 Mich 145, 154; 523 NW2d 762 (1994). MCL 691.1402(1) articulates the highway exception:
[E]ach governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.... The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel....
“Highway” is defined in MCL 691.1401(e) as “a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles.” The highway exception to immunity is narrowly construed. Grimes v Dep’t of Transportation, 475 Mich 72, 78; 715 NW2d 275 (2006).
A governmental agency must have jurisdiction over a highway for it to be hable under the highway exception for breaching its duty to maintain a highway in reasonable repair. Carr v City of Lansing, 259 Mich App 376, 381; 674 NW2d 168 (2003). In Markillie v Livingston Co Bd of Rd Comm’rs, 210 Mich App 16, 22; 532 NW2d 878 (1995), this Court held that the word “jurisdiction” in MCL 691.1402(1) “is synonymous with ‘control.’ ” In this case, defendant has exclusive control over the maintenance and repair of the structure, except for the very surface of Cass Avenue, and the parties do not dispute that defendant has control and jurisdiction over the bridge itself. The only question before this Court is whether the crumbling fascia of the structure constitutes a defect in the highway for which the state is liable.
According to defendant, the highway exception permits a claim in avoidance of governmental immunity only when the defect causing injury or damage arose from a condition in the improved portion of the highway designed for vehicular travel. Defendant contends that the fascia is not a part of the bridge deck and thus not a part of the driving surface, such that the highway exception is inapplicable. We disagree.
In Grimes, supra at 91, the Court held that “only the travel lanes of a highway are subject to the duty of repair and maintenance specified in MCL 691.1402(1).” Accordingly, it held that the shoulder of the road is outside the scope of the state’s duty to repair and maintain the highway. Id. In Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 162; 615 NW2d 702 (2000), our Supreme Court opined on the liability of the state and counties with respect to highway conditions: “if the condition is not located in the actual roadbed designed for vehicular travel, the narrowly drawn highway exception is inapplicable ... .” Id. at 180. Conversely, “[t]he state and county road commissions’ duty, under the highway exception, is ... implicated upon their failure to repair or maintain the actual physical structure of the roadbed surface, paved or unpaved, designed for vehicular travel, which in turn proximately causes injury or damage.” Id. at 183.
Of note, the Nawrocki Court indicated that “if the condition proximately causing injury or property damage is located in the improved portion of the highway designed for vehicular travel, not otherwise expressly excluded, the state or county road commissions’ statutory duty under the highway exception is implicated.” Id. at 171. The definition of “highway” in MCL 691.1401(e) includes bridges, the bridge at issue was designed for vehicular travel, and bridges are not expressly excluded in the explanation in MCL 691.1402(1) of those areas to which the duty of the state and the county road commissions to repair and maintain highways extends. The only areas specifically excluded from the duty to repair and maintain are “sidewalks, trail-ways, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.” MCL 691.1402(1).
More importantly, in Nawrocki, our Supreme Court recognized the highway exception in connection with the “improved portion of the highway,” not just a road’s surface, with the “actual physical structure of the roadbed surface.” Nawrocki, supra at 183. The word “structure” suggests not just the surface area or top layer of construction materials, but to “[sjomething made up of a number of parts that are held or put together in a particular way.” American Heritage Dictionary (4th ed). The Supreme Court’s use of “roadbed surface,” instead of “road surface,” in stating the rule, implicates not just a road’s two-dimensional surface that actually comes into contact with traffic, but also its construction components found underneath the surface.
Such an interpretation is supported by the testimony of Paul Dlugopolski, a bridge inspector for the Michigan Department of Transportation. Mr. Dlugopolski testified that the deck of a bridge is the part of a bridge that cars drive over. Mr. Dlugopolski testified that the deck is the part of the bridge on top of beams that cars travel on and includes the bottom, top, and sides. He testified that the deck fascia is the concrete side of the bridge. Mr. Dlugopolski testified that the top of the deck is where the tires meet the deck, and the bottom is the underside of the deck. He testified that you cannot have a top without the bottom and that the deck is the traveled roadway. From this testimony, it appears that the deck of a roadway is comprised of a top, a bottom, and sides. If the sides are a part of the deck, and the deck is identified as the traveled portion of the roadway, then the sides are a part of the traveled roadway.
The fact is, a road is not a two dimensional surface comprised of only length and width. Logically, then, the maintenance of the improved portion of the highway includes the maintenance of the sides and underside of the highway. If the sides and underside are allowed to deteriorate, the highway is just as subject to collapse or other dangers, as it would be if the surface were allowed to deteriorate (perhaps even more so). To hold that the “improved portion of the highway” consists only of a road surface that the tires touch would not only be inconsistent with Nawrocki, it would also be contrary to the purpose of MCL 691.1402, which is to enhance the safety of travel on public highways. Chaney, supra.
We find that, under Nawrocki, the state is subject to liability in this case. Pieces of the bridge structure (which were part of the improved portion of the roadway, designed for vehicular travel) falling onto the highway below, created an unsafe condition on the traveled portion of the roadbed actually designed for vehicular travel. This defect rendered the improved portion of 1-75, below the Cass Avenue bridge, unfit for public travel.
Affirmed.
Meter, J., concurred. | [
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PER CURIAM.
In this personal injury action, we must decide whether § 5(d) of the Equine Activity Liability Act (EALA), MCL 691.1661 et seq., prescribes a general claim of ordinary negligence. The trial court granted summary disposition for defendant, ruling that § 3 of the EALA barred plaintiffs suit because her injuries arose from an “inherent risk of equine activity.” We agree and affirm. In doing so, we hold that § 5(d) does not create a general negligence claim, but rather permits a negligence claim when it necessarily involves something other than inherently risky equine activity.
I. BACKGROUND
Plaintiff and defendant were neighbors in Columbia-ville, Michigan. On 8 to 10 occasions in 2003 or 2004, defendant invited plaintiff over to his property to exercise a few of the horses. During these times, plaintiff would fetch the horse and groom and saddle it before riding it. On one occasion, plaintiff rode one of defendant’s horses without defendant’s permission. Typically, plaintiff would ride Slim or Motown, a “100 percent broke horse.” Plaintiff had previously owned her own horse in the 1960s and a pony with her sister when she was little. Plaintiff does not exercise horses for anyone else.
In May 2004, plaintiff went to defendant’s property with her sister, Theresa, and her son, Matthew. Allegedly, defendant invited plaintiff to his arena to ride Whiskey, a horse that he owned. Defendant knew that Whiskey was “green broke,” meaning that he was not responsive to cues from the rider and only the most experienced riders should handle him. Defendant de nies that he invited plaintiff to his property and contends that plaintiff arrived at his property uninvited asking to ride Whiskey. When plaintiff arrived on defendant’s property, she went to defendant’s arena, where defendant was allegedly attempting to tie a lead rope onto Whiskey by enticing him with a bucket of feed. Defendant claims that once he had clipped the lead rope to Whiskey’s halter, he asked plaintiff to hold the lead while he went to fetch a saddle and other tack. Defendant did not tie Whiskey to crossties before handing the lead rope to plaintiff.
When defendant returned with the saddle, plaintiff was still holding onto Whiskey’s lead rope, as well as his halter, with her right hand. Plaintiff continued to hold onto Whiskey in this way while defendant attempted to saddle Whiskey. As defendant was doing so, Whiskey reared up on his hind legs and plaintiff, whose hand was caught in the halter, was pulled up into the air. Plaintiff fell to the ground, sustaining injuries to her shoulder and arm. As a result, plaintiff was not able to return to work for several months and her physical abilities have since been limited.
A lawsuit resulted from these events. Plaintiffs complaint claimed that defendant was “negligent” because he
failed to properly secure the horse’s head before saddling the horse; and, by failing in his duty to avoid alarming the horse, and by failing to lift the saddle up to the horse’s back and instead made a high arching throw of the saddle which caused the horse to “spook,” and then rear-up ....
During discovery, it became clear that defendant’s version of events leading to plaintiffs injuries differed from plaintiffs version. In his deposition testimony, defendant denied that he ever brought Whiskey into the arena or that he went to fetch a saddle. According to defendant, plaintiff asked to ride Whiskey, but he said she could not and they went out to the pasture to see Whiskey anyway. Defendant testified that he never surrendered control of Whiskey’s lead rope, but that plaintiff reached up and grabbed Whiskey’s halter, at which point the horse reared and plaintiff was pulled up into the air.
The deposition testimony of Theresa and Matthew, however, corroborated plaintiffs version of events. According to Theresa, defendant was “adamant about [plaintiff] riding that horse.” Theresa further testified that defendant had plaintiff hold Whiskey’s halter and lead rope while he went to get the saddle. When defendant attempted to “thr[o]w” the saddle on Whiskey, the horse reared and plaintiff was pulled into the air. Matthew stated that defendant asked plaintiff whether she wanted to ride Whiskey. Matthew testified that after catching Whiskey, defendant had plaintiff hold Whiskey’s lead rope while he retrieved the saddle. Matthew stated that defendant then “threw” the saddle onto Whiskey and the horse reared, consequently injuring plaintiff.
Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that § 3 of the EALA, MCL 691.1663, barred plaintiffs claim. In response, plaintiff contended that she had produced evidence supporting her claim under two of the statutory exceptions to the immunity granted by the EALA: § 5(b) and (d), MCL 691.1665(b) and (d). The trial court agreed with defendant, ruling that plaintiffs claim was barred by the EALA. The trial court stated:
The statute recognizes that an equine may behave in a way that will result in injury and that equines may have unpredictable reactions to diverse circumstances, precisely one of the guiding motivations of the limited liability for equine professionals. Because there is no evidence indicating that Whiskey’s behavior... represented anything other than unpredictable action to a person or unfamiliar object[,] [pjursuant to the statute, Plaintiffs argument in this case is without merit....
This appeal followed.
II. STANDARDS OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 6; 614 NW2d 169 (2000). Summary disposition under MCR 2.116(0(10) 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. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When reviewing such a motion, we consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted, as well as any legitimate inferences, in the light most favorable to the nonmoving party. Amerisure Ins Co v Plumb, 282 Mich App 417, 423; 766 NW2d 878 (2009). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, supra at 183.
Our review is also de novo to the extent that we address questions of statutory interpretation. Cole, supra at 7. When interpreting a statute our primary purpose is to ascertain and give effect to the Legislature’s intent. Amburgey v Sauder, 238 Mich App 228, 232; 605 NW2d 84 (1999). Our first clue to determining the Legislature’s intent is the words used. USAA Ins Co v Houston Gen Ins Co, 220 Mich App 386, 389; 559 NW2d 98 (1996). “The Legislature is presumed to have meant the meaning of the language it plainly ex pressed.” City of Warren v Detroit, 261 Mich App 165, 169; 680 NW2d 57 (2004). When looking to the language used, we should assume that every word has some meaning and should avoid a construction that would render a provision nugatory or surplusage. Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992). If the language is clear and unambiguous, then judicial construction is neither necessary nor permitted. People v Shakur, 280 Mich App 203, 209; 760 NW2d 272 (2008). In addition, to the extent that the applicable statutes relate to the same subject matter or share a common purpose, we read them in pari materia and read them together as one law. People v Harper, 479 Mich 599, 621; 739 NW2d 523 (2007). “The object of the in pari materia rule is to effectuate the legislative purpose as found in harmonious statutes.” Walters v Leech, 279 Mich App 707, 710; 761 NW2d 143 (2008). “If two statutes lend themselves to a construction that avoids conflict, that construction should control.” In re Project Cost & Special Assessment Roll for Chappel Dam, 282 Mich App 142, 148; 762 NW2d 192 (2009).
II. SUMMARY DISPOSITION
Plaintiff argues that the trial court’s ruling was legally erroneous, that summary disposition should have been denied because plaintiff sufficiently pleaded a claim of negligence, and that defendant’s failure to post warning signs should eliminate any limitation on his liability. We disagree.
A. EQUINE ACTIVITY IMMUNITY
Plaintiff first contends that the trial court mischaracterized the EALA as granting “blanket immunity” to defendants defined in the act. In plaintiffs view, § 5 of the EALA, MCL 691.1665, permits certain types of negligence claims, including a general claim of negligence, to be brought against defendants defined in the act. Although we agree that the EALA does not create blanket immunity, plaintiffs assertion that the trial court misinterpreted the EALA is factually inaccurate.
As this Court has previously noted, the purpose of the EALA is to “curb litigation [against the equine industry] and the correlative rising costs of liability insurance, and to stem the exodus of public stable operators from the [equine] industry.” Amburgey, supra at 246. Consistently with this purpose, the “EALA proscribes liability only for injuries resulting from an ‘inherent risk of equine activity’. ...” Id. at 236. Specifically, § 3 of the EALA, MCL 691.1663, provides:
Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or the death of a participant or property damage resulting from an inherent risk of an equine activity. Except as otherwise provided in section 5, a participant or participant’s representative shall not make a claim for, or recover, civil damages from an equine activity sponsor, an equine professional, or another person for injury to or the death of the participant or property damage resulting from an inherent risk of an equine activity. [Emphasis added.]
The EALA defines “inherent risk of an equine activity” as “a danger or condition that is an integral part of an equine activity,” such as an equine’s propensity to behave in certain ways and react in unpredictable ways “to things.” MCL 691.1662(f). However, § 5 provides certain exceptions to the limitation on liability created in § 3:
Section 3 does not prevent or limit the liability of an equine activity sponsor, equine professional, or another person if the equine activity sponsor, equine professional, or other person does any of the following:
(a) Provides equipment or tack and knows or should know that the equipment or tack is faulty, and the equipment or tack is faulty to the extent that it is a proximate cause of the injury, death, or damage.
(b) Provides an equine and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to determine the ability of the participant to safely manage the particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably sufficient detail.
(c) Owns, leases, rents, has authorized use of, or otherwise is in lawful possession and control of land or facilities on which the participant sustained injury because of a dangerous latent condition of the land or facilities that is known to the equine activity sponsor, equine professional, or other person and for which warning signs are not conspicuously posted.
(d) Commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage. [MCL 691.1665.]
Given these provisions, it is plainly obvious that the EALA does not create blanket immunity. SeeAmburgey, supra at 233 (construing § 5 as granting “immunity” to qualifying defendants). And, the trial court recognized this fact when it stated that the EALA merely “limits [the] liability of equine activity sponsors and equine professionals.” Thus, given the trial court’s acknowledgment that the EALA creates a limitation on liability, we cannot conclude that the trial court legally erred in the manner that plaintiff contends.
Plaintiffs more compelling argument is that § 5(d) permits a general negligence claim irrespective of EALA’s limitation on liability. But again, we disagree. As already noted, § 5 delineates a list of exceptions to the qualified immunity granted to certain defendants under § 3. Section 5(d) provides that liability will attach if the defen dant “[c]ommits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage.” MCL 691.1665(d). Reading this subdivision in conjunction with subdivisions a, b, and c, as well as § 3 (which limits liability), leads us to the conclusion that the Legislature did not intend § 5(d) to prescribe a general or ordinary negligence claim. All of the conduct described in subdivisions a, b, and c of § 5. falls outside the definition of “inherent risk of equine activity,” which activity is the only activity for which the EALA precludes liability. MCL 691.1663; see Amburgey, supra at 233. As previously noted, the phrase “inherent risk of equine activity” is defined as risks integral to equine activity. MCL 691.1662(f). “Equine activity” includes, but is not limited to, riding a horse belonging to another, boarding a horse and its normal daily care, as well as teaching or training activities. MCL 691.1662(c). The instances enumerated in § 5 in which liability attaches are necessarily outside this definition because they involve human error not integral to engaging in an equine activity, such as failure to inspect tack, MCL 691.1665(a), failure to inquire into a participant’s level of ability to manage the horse, MCL 691.1665(b), and failure to warn of dangerous latent conditions in the land, MCL 691.1665(c). Reading the EALA as a whole in pari materia, it only makes sense if § 5(d) also includes other negligent activity that is not within the gamut of “inherent[ly] risk[y]... equine activity.” MCL 691.1662(f). To do otherwise, as plaintiff suggests, would be to permit a general negligence claim under § 5(d), which would consequently render § 3 nugatory, as it would destroy the limited liability for qualifying defendants created under that section. This result would completely eviscerate the purpose for which the Legislature enacted the EALA. We decline to adopt such an interpretation. Altman, supra at 635. Accordingly, we hold that § 5(d) does not create a general negligence claim, but rather permits a negligence claim to arise that involves something other than “inherent[ly] risk[y]... equine activity.” MCL 691.1662(f).
B. NEGLIGENCE UNDER THE EALA
Plaintiff next argues that she sufficiently supported a claim of negligence pursuant to the EALA. Plaintiff asserts that defendant knew that Whiskey was not suitable for a social guest to ride and that Whiskey presented a high risk of harm, but permitted plaintiff to engage with the horse anyway and, as a result, plaintiff was injured. Plaintiff contends that defendant is not immune from liability on the basis of these facts and § 5(b) and (d). We cannot agree that summary disposition was improper. In light of our discussion interpreting the meaning of § 5(d), we first address plaintiffs claim under that provision.
i. MCL 691.1665(d)
As we have already indicated, liability will attach under § 5(d) if the defendant “[cjommits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage” only if that act or omission involves something other than inherently risky equine activity. MCL 691.1665(d). We note at the outset that plaintiff has pleaded nothing more than an ordinary negligence claim. In order to state a claim that avoids the immunity provision of the EALA, a plaintiff must allege specific facts in his or her complaint under one of the exceptions enumerated under § 5. Plaintiffs complaint, however, makes no specific mention of § 5(d) and only alleges that defendant was negligent. Plaintiffs claim under § 5(d) fails as a matter of law on this basis. See MCR 2.116(C)(8).
Assuming that plaintiff had sufficiently pleaded a § 5(d) negligence claim under the EALA, it is our opinion after a review of the evidence that plaintiff has failed to establish that her injury resulted from activity beyond that of engaging in an inherently risky equine activity as that section requires. See MCL 691.1663; MCL 691.1665. As already stated, the EALA defines “inherent risk of an equine activity” as “a danger or condition that is an integral part of an equine activity,” such as a propensity to behave in certain ways and an equine’s unpredictable reaction “to things.” MCL 691.1662(f). To “engage in an equine activity” under the EALA means
riding, training, driving, breeding, being a passenger upon, or providing or assisting in veterinary treatment of an equine, whether mounted or unmounted. Engage in an equine activity includes visiting, touring, or utilizing an equine facility as part of an organized event or activity including the breeding of equines, or assisting a participant or show management. Engage in equine activity does not include spectating at an equine activity, unless the spectator places himself or herself in an unauthorized area and in immediate proximity to the equine activity. [MCL 691.1662(a) (emphasis added).]
And, “equine activity” means, but is not limited to:
(ii) Equine training or teaching activities.
(Hi) Boarding equines, including their normal daily care.
(v) Riding ... an equine belonging to another .... [MCL 691.1662(c).]
Viewing the evidence in the light most favorable to plaintiff, it is plain that plaintiff was engaged in inherently risky equine activity. Defendant invited plaintiff to his property so that she could ride Whiskey. Although plaintiff did not mount or ride Whiskey, she held Whiskey’s halter and lead rope while defendant at tempted to saddle the horse. When defendant hoisted the saddle into the air, the horse got spooked and reared up on its hind legs, resulting in an injury to plaintiff. This is exactly the type of risk that is integral to any equine activity. MCL 691.1662(f). In other words, Whiskey had an “unpredictable] . . . reaction” to defendant’s attempt to saddle him, MCL 691.1662(f)(ii), while plaintiff was engaging in an equine activity, MCL 691.1662(a) and (c). Plaintiff has failed to support a negligence claim that meets the requirements of § 5(d), i.e., some type of negligence involving something other than “inherentfly] risk[y] . . . equine activity.” MCL 691.1662(f).
ü. MCL 691.1665(b)
Plaintiff also argues that she sufficiently supported a claim for negligence pursuant to § 5(b), MCL 691.1665(b), which permits liability if a person
[p]rovides an equine and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to determine the ability of the participant to safely manage the particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably sufficient detail.
Plaintiffs contention is without merit.
We first note that plaintiff never pleaded in her complaint that defendant should be liable under this provision. Nor did plaintiff ever move to amend her complaint to state a theory of liability under § 5(b). Again, on this basis alone, plaintiffs claim fails as a matter of law. See MCR 2.116(C)(8). Once more, we stress that in order to state a claim that avoids the immunity provision of the EALA, a plaintiff must allege specific facts in his or her complaint under one of the exceptions enumerated under § 5. This mandate is imperative. Plaintiffs failure to do so in this matter is fatal to her claim.
Even if we were to consider plaintiffs claim, it would nonetheless be unsuccessful. The only evidence plaintiff produced relevant to this provision is her deposition testimony. In her deposition, plaintiff testified that on numerous occasions she requested that she be allowed to ride Whiskey. However, defendant refused permission unless he was present. This evidence tends to show that defendant was aware of both Whiskey’s and plaintiffs abilities. Plaintiff failed to plead or otherwise establish through discovery how this was either unreasonable or imprudent, as required by § 5(b).
Plaintiff also attempts to rely on a letter from Timothy Wright in support of her § 5(b) claim. We cannot consider this so-called “expert” testimony. Mr. Wright was never qualified as an expert and he was never deposed. See MRE 702. The sole attempt to qualify him as an expert is a mere statement in a letter, which is not notarized and is not an affidavit, that he has a “lifelong affiliation with the horse industry.” See id.-, MCR 2.116(G)(6). Moreover, the letter is not accompanied by a curriculum vitae, which could have shed further light on his qualifications to offer expert testimony. Nothing in the contents of the letter constitute anything more than conclusory allegations, which are insufficient to create an issue of material fact to avoid summary disposition. Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993).
Plaintiffs failure to produce supportive evidence through discovery in support of her claims under § 5(b) and (d) is fatal to her claim. MCR 2.116(0(10). Accordingly, we conclude that the trial court correctly granted summary disposition for defendant because plaintiffs injury resulted from an inherent risk of an equine activity and plaintiff did not prove otherwise.
C. WARNING SIGNS
Plaintiff further asserts that the trial court erred by failing to consider her argument that summary disposition is precluded because defendant did not post warning signs, as required under the EALA. According to plaintiff, because defendant failed to post signs consistent with § 6, MCL 691.1666, he should not be able to avail himself of the limitations on his liability and the jury should have been instructed on plaintiffs theory of liability based on § 5(b) and (d). We disagree.
Section 6 provides:
(1) An equine professional shall post and maintain signs that contain the warning notice set forth in subsection (3). The signs shall be placed in a clearly visible location in close proximity to the equine activity. The warning notice shall appear on the sign in conspicuous letters no less than 1 inch in height.
(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).
(3) A sign or contract described in this section shall contain substantially the following warning notice:
WARNING
Under the Michigan equine activity liability act, an equine professional is not liable for an injury to or the death of a participant in an equine activity resulting from an inherent risk of the equine activity. [MCL 691.1666.]
Again, because plaintiff failed to plead a violation of this provision in her complaint, her claim fails as a matter of law. See MCR 2.116(C)(8). But even if we consider her argument, it is plain that § 6 does not apply to defendant. Under § 6(1), an “equine professional” is required to post a warning sign for visitors. An “equine professional” is defined in the EALA as a person engaged in an activity for compensation. MCL 691.1662(e). Our review of the record reveals that defendant was not engaged in an equine activity for compensation and he is not an equine professional. The requirement to post a warning sign does not apply to him. We note in passing that even if this provision did apply to defendant, it would in no way eliminate the restrictions on liability set forth in § 3. Plaintiffs argument suggesting otherwise reads additional requirements into the statute that the Legislature did not include. In re Wayne Co Prosecutor, 232 Mich App 482, 486; 591 NW2d 359 (1998).
IV CONSTITUTIONAL CLAIM
Lastly, plaintiff argues for the first time on appeal that the EALA violates the Title-Object Clause of the Michigan Constitution, Const 1963, art 4, § 24, which states, in part, “No law shall embrace more than one object, which shall be expressed in its title.” Plaintiffs argument depends on her contention that the EALA functions to eliminate all liability, or grant blanket immunity to defendants, which is not encompassed in the act’s title. The result, plaintiff contends, is a violation of the clause because the contents of the act exceed its title. On the contrary, we have already determined that the EALA does not grant blanket immunity, as discussed above. Accordingly, the assertions upon which plaintiff bases her argument are inaccurate and there is no merit to her argument. Thus, we decline to grant relief on this basis.
Affirmed.
Defendant and Ms former wife were married in 1990. They owned and boarded four or five horses at their property. Before the marriage, defendant never had any dealings with horses, never had any traimng with horses, and never engaged in riding competitions. Defendant and his wife divorced in 2003. The horses were left with defendant.
Plaintiff did not plead a violation of § 6 in her complaint, but raised the issue in her answer to defendant’s motion for summary disposition. The trial court, however, did not consider the argument. As such, plaintiffs claim is not properly preserved. However, “where the lower court record provides the necessary facts, appellate consideration of an issue raised before, but not decided by, the trial court is not precluded.” Hines v Volkswagen of America, Inc, 265 Mich App 432, 443-444; 695 NW2d 84 (2005). We consider plaintiffs argument because the facts necessary for its resolution are apparent on the record. | [
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AFTER REMAND
Before: WHITBECK, RJ., and SAWYER and HOEKSTRA, JJ.
SAWYER, J.
This matter is again before us following a remand to the trial court to determine the factual basis for the amount of court costs imposed. As part of defendant’s sentence, the trial court ordered the payment of $1,000 in court costs. Defendant’s sole issue on appeal was a challenge to those costs, arguing that the trial court had failed to establish a factual basis for the amount of costs imposed. We affirmed the trial court’s authority to impose court costs, concluding that the trial court could impose a generally reasonable amount of court costs and that those costs need not be individually calculated to reflect the costs involved in a particular case. We were not, however, persuaded that the trial court had established an adequate basis to use the $1,000 figure. We remanded the matter to the trial court to establish the reasonableness of the amount imposed. We emphasized that the amount of costs was not to be particularized in an individual case, but the court was to “factually establish the reasonable costs figure for felony cases in the Berrien Circuit Court, while affording defendant the opportunity to challenge that determination.”
On remand, the trial court conducted the hearing as directed and received evidence of the cost of processing a felony case in the Berrien Circuit Court. After considering the financial data submitted by the county, the trial court determined that the average cost of handling a felony case was, conservatively, $2,237.55 a case and, potentially, cases could cost as much as $4,846 each. Therefore, the trial court concluded that, because even the most conservative estimate of the cost of processing a felony far exceeded the $1,000 amount of costs imposed, there was “a reasonable relationship between the costs imposed and the actual costs incurred by the trial court.”
Defendant’s argument in the trial court against the trial court’s determination appears primarily to have been a continued objection to the trial court’s failure to assess costs on the basis of the actual expenditure of time and money in a particular case. Defendant, in particular, argued for recognition of the distinction between the time invested in resolving a case by a plea and the time invested in conducting a trial, or, for that matter, between the time involved in a one-day trial and that involved in a three-day trial. But, as the trial court observed in its opinion, defendant was repeating an argument that we had already rejected in our earlier opinion: that the costs imposed have to be particularized to the case before the court. As we thought we had made clear in our original opinion, a trial court may impose costs “without the necessity of separately calculating the costs involved in the particular case” and that is true whether a case is quickly resolved by a plea or at the conclusion of a lengthy trial.
Indeed, we would be hesitant to uphold an approach that would take into account whether the case was resolved by a plea or by a trial. If we embraced defendant’s argument that costs should be less in a case resolved by a plea that only took “25 minutes of court time” rather than by a trial, there would be a realistic concern that we would be penalizing a defendant for going to trial rather than pleading guilty. That is, a system where greater costs were imposed on a defendant who went to trial rather than plead guilty or nolo contendere would create a financial incentive for a defendant to plead rather than face the possibility of even greater court costs being imposed for exercising his or her constitutional right to a trial.
In any event, we are satisfied that the trial court complied with our directives on remand and did establish a sufficient factual basis to conclude that $1,000 in court costs under MCL 769.1k(l)(b)(ii) is a reasonable amount in a felony case conducted in the Berrien Circuit Court.
Affirmed.
WHITBECK, EJ., and HOEKSTRA, J., concurred with Sawyer, J.
People v Sanders, 296 Mich App 710, 715; 825 NW2d 87 (2012).
Id.
Id. at 716.
Id. at 714.
Id. at 715. | [
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DAVIS, J.
Respondent, Grand Haven Charter Township Zoning Board of Appeals (the Board), appeals by leave granted the trial court’s order reversing the Board’s denial of petitioners’ application for a nonuse variance. We reverse.
Fetitioners seek to construct a single-family residence on a lot in Grand Haven Charter Township (the Township). The Township zoning ordinance at issue requires a 50-foot setback. The lot is zoned R-l residential, is 2.46 acres in size, and is 525 feet wide and 189.25 feet deep. However, it is located in a “critical dune zone” and only a portion of it is actually buildable. Fetitioners commissioned architectural plans for which they ob tained the approval of the Michigan Department of Environmental Quality (MDEQ). Those plans included an attached, two-stall garage that would encroach onto the 50-foot setback area by 9.5 feet. Petitioners applied for a variance from the zoning setback requirement. Petitioners’ application stated that the encroachment was necessary because the critical dunes in the rear lot area forced part of the structure to be moved closer to the property line.
Section 26.05 of the Township zoning ordinance provides standards for use by the Board in determining whether an applicant’s variance should be granted. The section states:
1. Except as otherwise provided, to authorize a non-use or dimensional variances from the strict applications of the provisions of this Ordinance, the Zoning Board of Appeals shall apply the following standards and shall make an affirmative finding as to each of the matters set forth in each of such standards:
A. That there are exceptional or extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same zoning classification... .
B. That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity, provided that possible increased financial return shall not of itself, be deemed sufficient to warrant a variance.
C. That authorization of such variance will not be of substantial detriment to adjacent property, and will not materially impair the intent and purpose of this Ordinance or the public health, safety, and general welfare of the community.
D. That the condition or situation of the specific piece of property or the intended use of said property for which the variance is sought, is not of so general or recurrent a nature as to make reasonably practical the formulation of a general regulation for such condition or situation, a part of this Ordinance.
The parties agree that petitioners’ application satisfied the third and fourth standards in this section, and those standards are not at issue in this appeal. Petitioners claimed that the first two standards were met because exceptional and extraordinary circumstances were present on the lot at issue because of the protected sand dunes and the need for a special MDEQ permit. Further, petitioners claimed that the variance was necessary to preserve the enjoyment of a substantial property right (use of a two-car garage) that others in the zoning area enjoyed.
Patrick B. Waterman, Grand Haven Township Director of Community Development, wrote a memorandum to the Board recommending approval of petitioners’ request for a variance. At the Board meeting to address the variance request, several residents expressed objections to the proposed variance. Petitioners stated that, if the Board rejected the variance, they would have to wait for another MDEQ approval and obtain a new architectural design. The Board reached its decision as described in the minutes:
After much deliberation, the board determined that although there were in fact unique circumstances applicable to this property (i.e. the excessive dune slopes in the rear yard and the MDEQ building restrictions), they felt that the owner had alternate design options which would enable him to construct a new home and attached garage without the need for a variance. Specifically, it was determined that there appeared to be adequate room to construct a side-loading garage, which would eliminate the front yard encroachment. The alternate design options were available to the owner because the lot was exceptionally wide when compared to a typical R1 lot, which eliminated the probability of any side yard encroachments. It was on this basis that the hoard believed the request failed to meet the four variance standards. [Emphasis in original.]
Specifically, the Board voted that petitioners had failed to meet standards 1 and 2 of the zoning ordinance set forth above. However, in the trial court, respondent conceded that its sole basis for ultimately denying the variance application was that petitioners could change their proposed design to relocate the garage so that a variance was unnecessary. It appears from the minutes that respondent found the first standard to be met.
On appeal to the circuit court, petitioners argued that changing their plans would require significant additional expense and delay. Furthermore, petitioners argued that the Board’s decision amounted to the imposition of a fifth standard with no support in any law: that no alternative design existed that would not require the variance. Petitioners also pointed out other instances of variance applications being granted with no consideration of the possibility of alternative designs, and they argued that this amounted to an abuse of discretion because standards were not being applied uniformly. Respondent did not dispute that petitioners had a substantial property right to a two-stall garage on property zoned as residential, but argued that petitioners did not have a right to any particular, specific design or location thereof.
The circuit court reversed the Board’s decision from the bench and held:
The evaluation whether these factors were met for purposes of determining whether there exists a practical difficulty in complying with the zoning ordinance does appear to add a requirement by the zoning board to evaluate alternate possibilities or other suitable locations for the portion of the home that extended into the front yard setback. That’s not a [proper] consideration in the cases that involve these issues. [Emphasis added.]
The circuit court continued:
In this case, the zoning board appeared to specifically rely upon the fact that there was a wider building envelope and that the applicant could go back and redesign the house and resubmit the redesign for MDEQ approval and build within the existing envelope without violating any setback requirements. However, the result of the zoning board’s decision here to require potentially a resurvey, redesign by an architect, resubmission to MDEQ with the cost associated with each stage of that process and the delay required by each stage of that process does impose practical difficulties. [Emphasis added.]
The circuit court also held that the Board had not reasonably exercised its discretion because it had applied the zoning ordinance unequally to similarly situated variance applicants.
This Court reviews de novo the circuit court’s decision in an appeal from a zoning board, “while giving great deference to the trial court and zoning board’s findings.” Norman Corp v City of East Tawas, 263 Mich App 194, 198; 687 NW2d 861 (2004). When reviewing a zoning board’s denial of a variance “this Court must review the record and . . . [the board’s decision] ... to determine whether it (1) comports with the law, (2) was the product of proper procedure, (3) was supported by competent, material, and substantial evidence on the record, and (4) was a proper exercise of reasonable discretion.” Id. at 202, citing MCL 125.585(11) (now repealed and replaced by MCL 125.3606[1]). “The interpretation of a zoning ordinance presents a question of law subject to review de novo.” Brandon Charter Twp v Tippett, 241 Mich App 417, 427; 616 NW2d 243 (2000). Constitutional questions involving equal protection claims are reviewed de novo by this Court. See Houdek v Centerville Twp, 276 Mich App 568, 573; 741 NW2d 587 (2007).
As we alluded to earlier, we reject respondent’s argument that its denial was based in part on the first standard, that the petitioners’ case did not present exceptional or extraordinary circumstances. The minutes of the Board meeting and respondent’s own concessions contradict such an argument. We conclude that the Board’s decision to deny the variance request was based on a finding that petitioners could enjoy their right to a home with a two-stall garage on their property without obtaining a variance. We decline to consider any argument by respondent that petitioners’ hardship is self-inflicted because, although one Board member did discuss that likelihood, the minutes reflect that self-imposed hardship was not a basis for its denial of the variance. The sole issue is whether, under the circumstances, the 9.5-foot setback “variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district.”
Significantly, petitioners did not refute the Board’s finding that petitioners’ property would accommodate an MDEQ-approved home with a two-stall garage without needing the variance. The evidence indicates that doing so would require additional expense, delay, and hassle; furthermore, doing so would result in a less-preferable design. Pursuant to respondent’s own admissions, the Board would be required to issue the requested variance if petitioners could prove that it would be impossible without the variance to construct an MDEQ-approved home with a two-car garage. But on the record before us, it appears that doing so would indeed be possible.
We are unpersuaded that this inquiry imposes an additional requirement: something can only be necessary to achieving a goal if there is no realistic or practical alternative way to achieve that goal. Resolution of this matter depends on whether a “substantial property right” includes construction of a particular design. We conclude that it does not.
“[U]nless explicitly defined in a statute, ‘every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used.’ ” Yudashkin v Holden, 247 Mich App 642, 650; 637 NW2d 257 (2001) (citation omitted). The term “substantial property right” is undefined in the ordinance, and it has not been defined in this context by Michigan caselaw. Because undefined terms must be given their plain and ordinary meanings, it is proper to consult a dictionary to define terms. Robinson v Ford Motor Co, 277 Mich App 146, 152; 744 NW2d 363 (2007). Black’s Law Dictionary (8th ed) defines “property” as “[t]he right to possess, use, and enjoy a determinate thing (... a tract of land ...); “property right” is defined as “[a] right to specific property, whether tangible or intangible;” and “right” is defined in relevant part as “[s]omething that is due to a person ... [a] power, privilege, or immunity secured to a person by law.” Random House Webster’s College Dictionary (1997) defines “substantial” in relevant part as “of real worth, value, or effect.” Applying these definitions, “substantial property right” is reasonably defined in plain, ordinary language as the right or privilege to possess, use, and enjoy the aspects of one’s land that are of considerable value and importance.
Because this analysis remains somewhat nebulous, we find that judicial construction of the phrase “substantial properly right” is necessary to resolve the ambiguity. See People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). Several cases in Michigan have discussed what constitutes a “substantial property right” in other contexts. In Forster v City of Pontiac, 56 Mich App 415, 417, 420; 224 NW2d 325 (1974), this Court found that property owners were deprived of a “substantial right,” warranting eminent domain proceedings, when the city vacated an alley that abutted the property owners’ business, explaining that “the vacation of said alley prevents plaintiffs from ingress or egress to the rear portion of their said property and that the vacation of said alley by defendant... caused a material diminution in the value of plaintiffs’ property.” Id. at 421 (quotation marks omitted). In Indian Village Ass’n v Barton, 312 Mich 541, 549; 20 NW2d 304 (1945), our Supreme Court, quoting Allen v Detroit, 167 Mich 464, 469; 133 NW 317 (1911), held that restrictive covenants “upon the use of property by reason of a general plan... [constitute] ‘a substantial property right which the owners can maintain and enforce.’ ” Our Supreme Court in Allen explained:
Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and a property right of value, which cannot be taken for the public use without due process of law and compensation therefor; the validity of such restriction not being affected by the character of the parties in interest. [Allen, 167 Mich at 473.]
In addition to covenants and restrictions, our Supreme Court has stated that the right to exclude others from one’s property is an “essential” protected property right. Woodland v Michigan Citizens Lobby, 423 Mich 188, 247; 378 NW2d 337 (1985), citing Kaiser Aetna v United States, 444 US 164, 179-180; 100 S Ct 383; 62 L Ed 2d 332 (1979).
In a case outside this jurisdiction, the Wisconsin Supreme Court cited Allen, 167 Mich at 473, in holding riparian rights reserved by an agreement constitute substantial property rights. Bino v City of Hurley, 273 Wis 10, 19-21; 76 NW2d 571(1956). In another case outside this jurisdiction, the Tennessee Supreme Court described disputes over “boundaries, plats and surveys” as affecting “very substantial” property rights. Chapdelaine v Tennessee State Bd of Examiners for Land Surveyors, 541 SW2d 786, 788 (Tenn, 1976). Substantial property rights, in sum, have included the right to use the property without loss of value, the right to access the properly, restrictive covenants or building restrictions that run with the land, rights of exclusion, riparian rights, and boundaries, plats, and surveys. All of the above examples involve fundamental rights attendant to the use of the land.
The phrase “substantial property rights” is used in the context of land use regulation in this case. Yudashkin, 247 Mich App at 650. A local governmental entity in Michigan has authority to regulate land use pursuant to the police power reserved to the states and delegated to local governments by the Legislature. See Detroit Edison Co v Richmond Twp, 150 Mich App 40, 47-49; 388 NW2d 296 (1986); Sun Communities v Leroy Twp, 241 Mich App 665, 669; 617 NW2d 42 (2000); MCL 125.3101 et seq. This authority is extensive, and a regulation will generally surpass constitutional muster if there is a reasonable governmental interest being advanced that is not purely arbitrary, capricious, or unfounded. See Houdek, 276 Mich App at 582. See also Burt Twp v Dept of Natural Resources, 459 Mich 659; 593 NW2d 534 (1999) (noting that, under the former township enabling legislation, municipalities had extensive authority to regulate the use and development of land). This Court has held that protecting aesthetic value is a legitimate governmental purpose. Norman Corp, 263 Mich App at 201, citing Gackler Land Co, Inc v Yankee Springs Twp, 427 Mich 562, 572; 398 NW2d 393 (1986). The language of the current zoning enabling act illustrates this broad authority and authorizes local governments to establish requirements for things such as maximum or minimum square footage, setback, height, and the like. See MCL 125.3201.
Thus, fundamental uses or rights attendant to the land are statutorily subject to regulation. Our Supreme Court has stated that local ordinances ordinarily take full advantage of the broad authority granted by enabling legislation “[t]o accommodate changing needs and expectations, zoning ordinances typically are worded so as to confer broad discretion on zoning boards . .. .” Macenas v Village of Michiana, 433 Mich 380, 389; 446 NW2d 102 (1989). The broad authority of a local government to regulate land use through zoning suggests that the phrase “substantial property right” should be construed narrowly. See Norman Corp, 263 Mich App at 201; Houdek, supra; Burt Twp, supra, Macenas, 433 Mich at 389. It should include the right to possess, use, and enjoy the valuable and important aspects of one’s land, but subject to land use regulations that advance legitimate governmental interests.
In sum, we conclude that the phrase “substantial property right,” as used in the ordinance, encompasses the right to build a garage on property regulated for residential use, but does not encompass the right to build according to a preferred design.
The right to build according to one’s preferred design is unlike the “substantial property right” recognized by this Court in Forster, supra. The right of ingress and egress to one’s property is a substantial right in that it was necessary for access to and use of the property itself, whereas a preferred design does not deny access, use, or the ability to construct a residence in compliance with the zoning requirements. In addition, in contrast to Forster, where restricted ingress and egress caused a diminution in value, here the inability to build a preferred design would not result in a similar decline in value because a residential structure and garage can still be built in compliance with the ordinance. Similarly, the right to build to a preferred design is unlike the substantial property right to enforce restrictive covenants as recognized in Indian Village, 312 Mich at 549, and Allen, supra. Unlike a restrictive covenant, the right to a particular design is not similar to an easement; it does not run with the land. See Allen, 167 Mich at 473. Furthermore, the right to a preferred design is dissimilar to the right to exclude others from one’s property, which is an essential part of land ownership. Woodland, supra; Kaiser Aetna, 444 US at 179-180. Finally, the right to build to a preferred design is unlike riparian rights, which allow for reasonable use of a natural resource, and the right to accurate surveys and boundaries, which are essential to the determination of the extent of land to which a person holds legal title. Bino, 273 Wis at 19-21; Chapdelaine, 541 SW2d at 788.
We conclude that the right to a preferred design is not a “substantial property right”; therefore, it was proper for the Board to consider whether petitioners had alternative designs available that negated the need for the variance. In other words, it was appropriate to consider whether petitioners’ substantial property right in building a garage could be honored without granting the variance.
However, petitioners further argue that the Board applied the zoning ordinance in a discriminatory manner, because it granted setback variances to other property owners in similar situations. Resolution of this issue requires an analysis of whether petitioners showed on the record that they were treated differently than similarly situated variance applicants. See Great Lakes Society v Georgetown Charter Township, 281 Mich App 396, 427; 761 NW2d 371 (2008). Under the federal and Michigan constitutions, similarly situated persons must be treated equally. Neal v Oakwood Hosp Corp, 226 Mich App 701, 716-717; 575 NW2d 68 (1997). In a zoning context, “the first question has to be whether [the variance applicant] demonstrated on the record that it was treated differently from some similarly situated [applicant].” Great Lakes Society, 281 Mich App at 427, citing Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App 315, 336-337; 675 NW2d 271 (2003), vacated 480 Mich 1143 (2008), reaffirmed in part 280 Mich App 449 (2008). “However, unless the dissimilar treatment alleged impinges on the exercise of a fundamental right or targets such protected classifications as those based on race or gender, the challenged regulatory scheme will survive equal protection analysis if it is rationally related to a legitimate governmental interest.” Dowerk v Oxford Charter Twp, 233 Mich App 62, 73; 592 NW2d 724 (1998). “[T]he party raising the equal protection challenge has the burden of proving that the challenged law is arbitrary and thus irrational.” Id., citing Neal, 226 Mich App at 719.
We do not find evidence in the record from which we can conclude that petitioners were treated irrationally and differently from other similarly situated residents who had been granted a nonuse variance. The only stipulated example was another resident who, it appears, had an unusually narrow lot and was seeking to construct a new shed to replace an old shed that had been nonconforming and where a concrete pad and electricity were already in place at the location of the old shed, and there was some indication that the shed really could not be put elsewhere without reducing its size. We do not find sufficient similarity in the situations. In other cases petitioners discussed in the circuit court, we likewise do not find sufficient similarities. One of them involved a lot burdened by a drainage easement and the available alternative design apparently would have necessitated a smaller, rather than a relocated, garage. Another involved “severely limited” buildable area and no suggestion that alternative designs would be available. The third involved a residence that already encroached onto a setback and, again, nothing to indicate that an alternative to the proposed deck addition might have been available. In any event, even if petitioners were treated differently than similarly situated applicants, petitioners have not shown that the Board’s consideration of alternative designs when implementing the zoning ordinance is arbitrary and does not advance a legitimate governmental interest grounded in the “ordinary concerns for health, safety, and welfare” and therefore not “rationally related to a legitimate governmental interest.” Dowerk, 233 Mich App 73.
In sum, we find that the Board’s decision to deny petitioners’ application for the 9.5 foot setback variance on the ground that the variance was not “necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district” comported with the law, was procedurally proper, was supported by the evidence, and was not irrational.
Reversed.
Mr. Waterman’s title is not apparent from the lower court record, but his title is mentioned in both petitioners’ and respondent’s briefs on appeal. | [
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Dethmers, C. J.
Plaintiff brought replevin for possession of goods alleged in his declaration to be of the value of $345. Defendant’s answer denied the allegation. From judgment for defendant, plaintiff took an appeal here as of right without leave granted. The record contains no certification by the trial judge that the controversy involves more than $500 as provided in Court Rule No 60, § 1(d) (1945). Defendant has filed no motion to dismiss or brief nor in any way appeared in this Court on this appeal. Under the circumstances we will dismiss on our own motion. Miller v. Johnson, 201 Mich 535. Applicable and adopted as dispositive of this case is the following from Seeley v. Baptist Ministers’ Aid Society, 302 Mich 199:
“No application for leave to appeal having been filed, and no leave having been granted, the appeal is dismissed.
“However, we have examined the records and briefs and are convinced that, if plaintiffs’ appeal were considered on its merits, they could not succeed.
“The defendant not having filed motion for such dismissal, no costs will be allowed.”
Sharpe, Smith, Edwards, Voelker, Kelly, Carr, and Black, JJ., concurred | [
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Sharpe, J.
This cause arises as the result of a claimed overpayment to defendant company of $9,-465 under a contract providing for the installation of an underground fuel network for plaintiff company. The essential facts are not in dispute.
In the fall of 1949, plaintiff company issued to contractors and materialmen requests for quotations for labor and materials to install underground network of storage tanks for gasoline and other fluids required in assembly plant operation. Defendant company made a bid for such work in the amount of $99,318. The bid was accepted by plaintiff and a purchase order was issued in September, 1949.
During the course of the work the parties entered into several alteration agreements whereby the original contract was modified. The revised contract price was $109,018.21. This amount was paid by plaintiff. The price should have been $99,553.21, which resulted in an overpayment of $9,465. Exhibit 13 furnished by defendant was an offer that was accepted by plaintiff for a revision of the contract'and reads in part as follows:
“November 5, 1949
“Oldsmobile Division General Motors Corporation Lansing 21, Michigan
“Attn : Mr. Fred A. Wiles
“Re: ' Bulletin No. 1 — Olds Job #0-49-238
“Gentlemen:
“In answer to your recent letter of November 4, 1949, we are pleased to submit the following revised quotation as requested in the subject bulletin:
“Item #1 — (Revise item #10 of original job #0-49-238.)
“As per original quotation (Item #10) ......................... $1,126
“Less: Credit for 2 Neptune meters 529
Balance: $597
“Add: Additional labor and material cost for installing 2 propor-tioner meters ................. 287
Total: $884
“Item #2 — (Revise item #12 of original job #0-49-238.)
“As per original quotation (Item #12) ......................... $2,531
“Less: Credit for proportioner meters ....................... 1,315
Balance: $1,216
“(No additional labor and material charge on this item.)
“Page No. 2 November 5, 1949
“Item #3 — (Revise item #13 of original job #0-49-238.)
“As per original quotation (Item #13) ......................... $3,098
“Less: Credit for 4 Neptune meters 1,058
Balance: ' $2,040
“Add: Additional labor and material cost for installing propor-tioner meters.................. 2,926
Total: $4,966
“Item #4 — -(Revise item #14 of original job #0-49-238.)
“As per original quotation (Item #14) ......................... $1,391
“Less: Credit for 2 Neptune meters......................... 529-
B alance: $862
“Add: Additional labor and material cost for installing 2 plo-portioner meters .............. 264
Total: $1,126
“Item #5 — (Revise item #15 of original job #0-49-238.)
“As per original quotation (Item #15) ......................... $1,319
“Less: Credit for Lincoln meters 657
Balance: $662
“(No additional labor and material charge on this item.)
“We wish to advise that the above quoted prices include the installation of (Proportioner meters furnished by Oldsmobile) sufficient meters to dispense the quantities required and specified in your original ¡request for quotation.
“Tours very truly
“Enterprise Heat and Power • Company, Inc.
“R. E. Johnson, Engr.”
An analysis of this revised offer clearly shows a reduction from the original contract price in the amount of $611.
Exhibit 33 reads as follows:
“Analysis of Enterprise Heat & Power Quotation November 5, 1949, covering contract revisions specified in Bulletin No. 1 — Job No. 0-49-238
Item Contract Credit Number Amount to Olds Added Net Revised Charge Credit Contract to Olds to Olds Amount
1 (10) .. $1,126 $529 $287 $242 $884
2 (12) .. 2,531 1,315 None 1,315 1,218
3 (13) .. 3,098 1,058 2,926 1,868 4,966
4 (14) .. 1,391 529 264 265 1,126
5 (15) ..•• 1,319 657 None 657 662
Totals .. $9,465 $4,088 $3,477 $611 $8,854”
“(*Additional charge ' on original.)” Olds, appeared in red
This exhibit clearly shows that plaintiff company was entitled to a credit of $611 and that the revised contract amount was $8,854 instead of $9,465.
The cause came on for trial, and at its conclusion the court entered judgment in favor of plaintiff in the sum of $9,465 with interest.
Defendant appeals and urges that they submitted a bid to plaintiff for the installation of certain underground fuel network; that such bid was investigated by plaintiff’s officers, and that it is now too late to claim a mutual mistake. Defendant also urges that when money has been paid with full knowledge of the facts, it cannot be recovered on the ground that the payment was made under a misapprehension of the legal rights of the person paying.
In coming to our conclusion in this cause we have in mind that there was no fraud involved and that both parties had ample opportunity to examine exhibit 13 prior to the making and acceptance of the overpayment. The general rule relative to the right to recover money paid through a mistake of fact is well stated in Smith v. Rubel, 140 Or 422, 426, 427 (13 P2d 1078, 87 ALR 644), where it was said:
“As a general rule, a payment made under a mistake of fact which induces the belief that the other party is entitled to receive the payment when, in fact, the sum is neither legally nor morally due to him, may be recovered, provided-the payment has not caused such a change in the position of the payee that it would be unjust to require the refund. Security Savings & Trust Co. v. King, 69 Or 228 (138 P 465); Scott v. Ford, 52 Or 288 (97 P 99); Thorsen v. Hooper, 50 Or 497 (93 P 361); Scott v. Ford, 45 Or 531 (78 P 742, 80 P 899, 68 LRA 469); 48 CJ, Payment, § 318, p 759. The right to the refund is based upon a promise to return which the law implies, irrespective of any actual promise, and even against the refusal of the wrongful party to make it. Hibbs v. First National Bank of Alexandria, 133 Va 94 (112 SE 669, 25 ALR 120). The payer’s failure to exercise ordinary care to avoid mistakes will not defeat his right to recovery in the absence of a change of condition upon the part of the payee. It is sometimes said that neglect to bar recovery must consist of intentional failure to investigate. Security Savings & Trust Co. v. King, supra; Scott v. Ford, and 21 RCL, Payment, § 196, p 167. An error of fact is established when it appears that some fact which the payer supposed existed really did not exist. Scott v. Ford, supra."
Michigan has generally followed this rule. In Walker v. Conant, 65 Mich 194, 197, 198, we said:
“The rule is general that money paid under a mistake of material facts may be recovered back, although there was negligence on the part of the person making the payment; but this rule is subject to the qualification that the payment cannot be recalled when the situation of the party receiving the money has been changed in consequence of the payment,' and it would be inequitable to allow a recovery.”
In Pingree v. Mutual Gas Co., 107 Mich 156, 159, 160, we said:
“Payments made by reason of a mistake or ignorance of a material fact are regarded as involuntarily made. Ignorance of a fact may be equivalent to a mistake of fact.”
In State Savings Bank of Ann Arbor v. Buhl, 129 Mich 193, 197 (56 LRA 944), we said:
“While it may be difficult to find a case on all fours with this, it may be said the courts almost unanimously now bold that, although the mistake of facts is caused by the negligence of one party, that party is not precluded thereby from availing himself of the mistake if the other party can be relieved of any prejudice caused thereby.”
See, also, Couper v. Metropolitan Life Insurance Co., 250 Mich 540.
In the case at bar exhibit 13 was a contract between the parties. An examination of this exhibit clearly shows that plaintiff was entitled to a refund of $611. Instead of receiving this amount plaintiff paid the sum of $8,854. A mutual mistake was made in paying and receiving this amount. No consideration was received by plaintiff in making the overpayment. Under such circumstances plaintiff is entitled to a judgment. We are in accord with the finding of the trial court in the following from the opinion' of the court:
“The court finds from the facts that there was a net overpayment of $9,465, and that the overpayment was a direct outcome of a mutual mistake. Both parties bad available to them the detailed price change analysis submitted by defendant pursuant to Bulletin No 1. Tbe totaling of tbe' figures tberieiri set forth and tbe application of said revised figures to tbe original contract price would bavé' reVealed tbe over-all net reduction to be tbe amount involved in tbis action. . Tbe fact tbat neither party arrived at an accurate price revision cannot detract .from tbe ultimate result of overpayment due to mutual mistake. Tbe mutual mistake was one of an existing fact and one which was material to the entire transaction. It went to tbe essence of' tbe object in view and was not merely incidental.” • ; ■ .
. Tbe judgment is affirmed, with costs.
Dethmers, C. J., and Smith, Edwards, -Voelker, Kelly, Carr, and Black, JJ., concurred.. | [
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Sharpe, J.
(for affirmance). Defendant Norwood H. Beier and others, together with the Michigan employment security commission, appeal from a judgment of the circuit court of Ingham county denying Norwood H. Beier and others benefits under the Michigan employment security act.
Certain facts are undisputed and are as follows: During the year 1953 plaintiff corporation operated' a plant in Richmond, Michigan, and employed between 150 and 200 employees in the manufacture of die castings and brass objects. On August 31, 1953, the defendants, now claimants for unemployment benefits, were employed in a buffing room approximately 25 feet wide by 85 feet long. This room was equipped with 10 buffing jacks, 3 rotary automatic buffing machines and a straight line unit. The buffing room is responsible for polishing objects, and this is accomplished by placing the object against a revolving wheel. This wheel removes particles from-the object and brings it to a high polish and luster. As a result of this process, abrasive particles, lint. and dust are thrown from the wheel. The. buffing room had an exhaust system. Each of the 2 wheels of the huffing jack was partially enclosed by a hood. From each hood a 4-inch diameter, pipe led up to and connected with a 24-inch diameter pipe running into the buffing room. At the end of this 24-inch pipe there is a paddle-type fan which created suction to draw particles from the buffing wheels into and through the exhaust system.
On Friday, August 28, 1953, a fire occurred in the electrical system of the exhaust unit and the employees were required to go home because it was not operating properly. The following day the machine was repaired. However, by inadvertence, certain wires were crossed, causing the paddle wheel to revolve in the opposite direction.
On Monday, August 31, 1953, the day shift buffing employees started work at 7 a.m., but were sent home after working 2 hours in order to permit cleaning of the blowers. The afternoon shift reported to work in the buffing room at their normal starting time of 3:30 p.m. The day was hot and muggy. Shortly after work started a dispute arose as to the condition of the blower. The president of the corporation made an investigation and concluded that the machines were working properly and ordered the men to continue work. The men informed the corporation that they would not work unless the blowers were repaired. The men left the plant after working approximately 2 hours. Prior to leaving the plant, the men were informed that their leaving would be construed as quitting their jobs. The following day, September 1st, the blowers were repaired after the day shift left, and when the afternoon shift employees reported for work on September 1st they were informed that their cards had been pulled and they were considered as having quit their employment.
On October 19,1953, a notice of determination was mailed holding that claimants were not discharged for misconduct with their work on August 31, 1953, and that they were not disqualified under section 29 of the act. An appeal was made to the referee who found in favor of claimants, holding that claimants did not leave their work voluntarily without good cause. The employer appealed to the appeal board. The appeal board adopted the findings of the referee.
The employer then appealed to the circuit court of Ingham county. The trial court entered an order denying claimants unemployment compensation. In an opinion the trial court stated:
“This court has reviewed the rather lengthy record and is of the opinion that the majority opinion of the appeal board is contrary to the great weight of the evidence. The record clearly indicates that the employees voluntarily left their work because of the fact that they only wanted to work for 2 hours, the same as was done by the morning shift. The testimony of Mr. Harsch, the union president, clearly shows that the employees did not intend to work more than the 2-hour period. It was somewhat oyer an hour after they started work when they started complaining that the blower system was not operating normally. The record shows that even though the fan was not turning in its usual direction it was still operating efficiently and there was enough suction to carry away the dust, lint, et cetera. The record shows that the day shift worked full 8 hours on September 1st, and that the blower system was operating efficiently during that period, and that no changes had been made in the system from the time the claimants walked out on August 31st.
“The record indicates that the claimants did not want to work longer than 2 hours, as was done by the morning shift, and used the blower system as their excuse for not working over the 2-hour period.”
Claimants appeal and urge:
“That the lower court erred in fact and in law in reversing the decision of the appeal board of the Michigan employment security commission that the defendants and appellants were entitled to receive benefits without disqualification under the provisions of section 29(1) (b) of the Michigan employment security act, said judgment of the lower court being contrary to the great weight of the evidence and erroneous in law.
“That the lower court erred in failing to remand the proceedings to the appeal board for the purpose of taking further testimony from Dr. "William Fred-ericks, a recognized expert in the industrial hygiene field, concerning the condition of the ventilation system claimed by appellants to have been the cause of the cessation of work by claimants.”
Additional facts helpful to decision are as follows. Plaintiff’s blower system had a rated capacity of 13,500 cubic feet of air per minute, which was 50% in excess of the 9,000-cubic-foot capacity required by law. (CL 1948, § 408.80 [Stat Ann § 17.39].) It is undisputed that a paddle-wheel type fan will pull or displace the air no matter which way it rotates. Lloyd Utter, the expert witness produced by appellant, testified:
“The paddle-wheel type of a fan will pull the air rotating either way. It would reduce something between 10 and 50% depending on how much it has to buck the contour of the system. * * * Reversing it would not affect it. * * * I will state, if it is a straight pipe, it doesn’t make any difference which way the fan blows.”
The statutory provisions involved in the case at bar are as follows :
“(1) An individual shall he disqualified for benefits: (a) For the duration of his unemployment in all cases where the individual has: (1) Left his work voluntarily without good cause attributable to the employer or employing unit, or (2) has been discharged for misconduct connected with his work or ior intoxication while at work.” (Section 29 of Michigan employment security act, CLS 1952, § 421.29 [Stat Ann 1953 Cum Supp § 17.531].)
“The findings of fact made by the appeal board acting'within its powers if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive, but the circuit court of the county, in which the claimant resides or in which the employer’s principal place of business in Michigan is located, if no claimant is a party to the case, or the circuit court for the county of Ingham shall have power to review-questions of fact and law on the record made before the referee and the appeal board involved in any such final decision, but said court may reverse' such decision of said appeal board upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence: Provided, That application is made within 15 days after mailing of a copy of such decision, by certiorari or by any other method permissible under the rules and practices of the circuit courts of this State.” (Section 38 of Michigan employment security act [CLS 1956, § 421.38, Stat Ann 1955 Cum Supp § 17.540]. )
The issue in the instant case is one of fact and may be stated as follows: Did the claimants have a bona fide reason for quitting work because of the condition of the blower system?
In coming to a decision in this case we have in mind that the burden of proving eligibility to benefits rests on the claimants. See Cassar v. Employment Security Comm., 343 Mich 380. In support of their claims, claimants offered the following testimony ^
Harry P. Harsch, president of Local 1125, testified in behalf of -claimants as follows :
. “Sometime after I began working that afternoon, after 3:30 p.m., the steward in the department called something to my attention. The steward, Jose Munis, came to me at my machine and told me that the men in the department were refusing to work without the blower working. The blower was not working properly. The motor was running, but no draft. After this was called to my attention, I did not take this matter up with Mr. Hicks or Mr. Morley until every man in the department came up to me and asked me to see Mr. Morley. After they had done that, I went to the office and talked to Mr. Morley.
“I told Mr. Morley that the fellows were not going to work without the blower, and Mr. Morley told me that the blowers were working. He said he just had it repaired, and I asked him to come out in the plant. He did. He came out in the plant, and he walked up to my machine, I believe, and put his hand there, but he didn’t say anything to me whether it was working, or whether it wasn’t. From there Mr. Morley went down to the water tank, and Mr. Hicks was called at that time, and they claimed at that time that the water was too high in it, that they would have to drain it off. * . * *
“We made those tests to see how much these blowers were pulling. Ordinarily when the blower works properly, the air on your face, and your hands and arms are clear from lint, and abrasives that you use on machines; but on this day the abrasives and lint would pile on your arm a quarter of an inch thick, and it being a hot day, you would breathe it, and it would tickle on your face. That is the only test we tried. I was working on chrome, and my arms are not white, and they were snow white from the stainless steel I was using. I am a polisher and buffer, and I was polishing that day, and the material wouldn’t pile on your arms if the blowers worked properly, because it sucks into the blower.” '
Lloyd Utter testified in behalf of claimants:
“I have heard the testimony regarding the operation of the blower system by Mr. Morley and Mr. Hicks, and others here as to operation, and in par ticular that part dealing with the reversing of a fan. As to what happens in that kind of a case,, the ventilation engineer, on inspecting the ventilating system which is apparently being questioned, the first thing he would check to see whether or not the fan was operating in the right direction. Paddle-wheel fan, it is true, that it should move the same amount of air as if you had a straight run. However, in design of the ventilation system, if it doesn’t follow the flow, it would lose resistance from 10 to better than 50%.”
Norwood H. Beier testified in behalf of claimants:
“I got an unusual amount of dirt and lint on me that day from the wheel, more so than on other days. It just laid on me; nothing would draw it away from the machine. It was worse on that day than the previous days. I have been a buffer or polisher since April, 1951. On this afternnon of August 31st, I wanted the blower fixed at that time. I took this matter up with Mr. Harsch, and in taking it up with him, I was asking that it be fixed.”
In behalf of the corporation the following evidence was presented:
Charles E. Morley, president of Knight-Morley Corporation, testified in substance that on Friday, August 28th, the corporation determined through selection of the seniority list which of the employees would be employed on Saturday to clean the blowing unit. It was the corporation’s normal procedure to clean the blower system on Saturdays. Both the day and afternoon shifts refused to come in on Saturday to clean the blower system. On this, same Friday afternoon a fire started in the switch box of the blower system and the switch burned out. Repair could not be effected immediately and the entire buffing room was sent home. The switch box was repaired the next day, Saturday.
On Monday, August 31st, the day shift reported for work. It was the corporation’s opinion that the blower system was working correctly and in the manner it had always worked. Under the contract between the company and the union, if people were brought into the plant it was necessary that they be given 2 hours of work or 2 hours of pay in lieu thereof. The entire department worked for approximately 2 hours, at which time the corporation sent the majority of the department home, retaining those with the highest seniority to clean the blower that had not been cleaned on Saturday. No complaints were made during this 2-hour period regarding the operation of the machines or the blower.
About a half hour before the afternoon shift came in on August 31, 1953, Harry Harsch, president of Local 1125, UAW-CIO, and an employee on the afternoon shift in the buffing department, learned that the morning shift had been sent home after 2 hours’ work, and believing this was because of the heat he requested Morley to also send the afternoon shift home at the end of 2 hours. Morley advised Harsch that the morning shift had not been sent home because of the heat, but were sent home because the blower system needed cleaning. Morley would not give the men permission to leave because their production was needed.
The afternoon shift on August 31st came in at its regular time at 3:30 and started to work in the polishing and buffing department. They worked approximately 2 hours when Harry Harsch reported to Morley that the blower system was not working-properly and asked Morley to investigate the situation. Morley went into the plant and determined that the blower system was working in the same manner it had always worked. He tested the machines by blowing cigar smoke into the machines to see whether or not the smoke would be taken up, and it was taken up. He testified that this indicated that there was suction and that the system was running in the same manner it had always run.
After the men had walked out, Morley took various particles normally run in the plant, including a mirror shell made out of brass that was fairly heavy, and placed them near the blower and they were taken up into the blower. After the walkout the employees cards were pulled and their employment terminated for walking out in violation of the no-strike, no-walkout provision of the labor contract entered into by the union and the corporation.
Morley further testified that the blower system was installed sometime in 1946 with a rated capacity of 13,500 cubic feet of air a minute, which is 50% more than is required by law (CL 1948, § 408.80 [Stat Ann § 17.39] ); that the rated capacity on August 31st was not determined; that prior to August 31st the blower had been inspected by the department of labor and industry; that there was no disturbance of any kind in respect to the same blowers and machines the week before the walkout; that reversing of wires on the fan took place at the end of the day shift on September 1, 1953, and there was very little noticeable difference in the functioning of the fan; that the day shift on September 1st worked all day without apparent discomfort.
Wilford Hicks, afternoon superintendent for ICnight-Morley Corporation, testified in substance that the first time that he heard about the walkout was a few minutes before 5 o’clock on August 31st when the men complained that the blower wasn’t working right. Hicks tested the machine with the cigarette he was smoking and the smoke went up the flue. He testified that he also tested the machine with some dirt and the machine dragged it out of his hand. He indicated to the men that the machines, in his opinion, were working properly. After the .walkout Hicks made a second test, testing more than 1 machine, including the far one which had the least suction. He testified that the suction was drawing the lint and dust efficiently, and in his opinion working properly so that the machines should not have been an annoyance or a hazard to the workmen.
Herbert Hebei, general plant superintendent for Knight-Morley Corporation, testified in substance: That on Saturday, August 29th, he was unable to get any employees to clean the blower system and the work was done Monday morning, August 31st. On August 31st the day shift worked until 9 o’clock, when he dismissed the majority of the employees, keeping about 3 employees to clean up the blower in the buffing room. He was not present when the afternoon shift walked out, and there was no grievance presented to him prior to the time they left. After the afternoon shift walked out he had the maintenance foreman check the equipment. The maintenance foreman held a mirror shell under the blower “and it sucked it out of his hand into the blower, and into the water.”
In our opinion the evidence shows that claimants produced 2 witnesses, Harsch and Beier, who testified that their hands and arms were covered by an unusual amount of dirt and lint just prior to their walking out on the job. As opposed to this evidence, there is the testimony of Morley and Utter that reversing the fan will pull the air rotating either way. Morley testified that the blower system had an excess capacity of 50%, and that on the day in question there was no more dust and lint than usual. There is evidence that before the 3:30 shift started there was a demand made on Morley that the men be sent home after 2 hours of work to equalize their work time with that of the morning shift because it was an excessively hot day.
Under section 38 of the Michigan employment security act (CLS 1956, § 421.38 [Stat Ann 1955 Cum, Supp § 17.540] ) the trial court has the power to review questions of fact and law, but may reverse the appeal board on questions of fact if it finds that the decision of the appeal board is contrary to the great weight of the evidence. There was evidence presented to the trial court that the claimants voluntarily left their work because they only wanted to work for 2 hours, the same as the morning shift. We are of the opinion that the great weight of the evidence is against the findings of the appeal board and that the trial court was correct in so holding.
Plaintiff urges that the dispute was a matter that was- subject to the grievance provisions of the contract and that the contract was violated when claimants walked out in direct violation of the no-strike, no-work-stoppage clause. It appears that the labor agreement between plaintiff corporation and Local No. 1125, International Union, United Automobile Aircraft, and Agricultural Implement Workers of America, UAW-CIO, contains the following:
“8. (a) Step 1. A grievance of an employee, or group of employees, shall be taken up by the employee, or group of employees, with the group steward and then, together, with the departmental foreman. If a satisfactory settlement, cannot be arrived at with the foreman, the grievance shall be then referred by the steward to :
“1. The chief steward, if the grievance originates on a shift where there is no committeeman.
“2. A committeeman, if the grievance originates ■on a shift where a committeeman is working.
“(b) Step 2. The chief steward or a committeeman (whichever the case may be), accompanied by the steward, shall attempt to work out a solution with the foreman. If no satisfactory settlement results the chief steward (or committeeman) may then reduce the grievance to writing.
“(c) Step 3. The grievance written or oral shall then be referred by the union to the group commit teeman, who shall then take the grievance up with the plant superintendent for discussion and possible settlement, and the position of the superintendent shall, within 24 hours, be written on the grievance form if presented in writing.
“(d) Step 4. If, as a result of step 3, the grievance remains unsettled the plant shop committee shall then further process the grievance in writing in a meeting with plant management, as hereafter provided for, who will give its answer in writing within 5 days thereafter.
“(e) Step 5. If the grievance remains unsettled, the union and the company may present it to an arbitrator mutually agreed upon by the company and the union, if no arbitrator is agreed upon, then an arbitration panel consisting of 3 members; 1 member to be chosen by the company and 1 member to be chosen by the union. These 2 members shall choose the third member. The decision of the arbitration panel shall be final and binding on both parties and the cost of the third member shall be borne equally by the company and the union. The arbitration panel may not add to or subtract from the term of this agreement.”
Since the above case was decided in the circuit court, we have handed down our decision in Cortez v. Ford Motor Company, 349 Mich 108. That ease involved a dispute of approximately 108 women who claimed that they were laid- off from work at Ford Motor Company’s Dearborn stamping plant; that male employees of lesser seniority were retained in employment in that unit during the period of their layoffs; that they filed grievances with the union concerning their layoffs, but the union refused to process such grievances in violation of the seniority and grievance provisions of the UAW-CIO Ford Motor Company contract. A part of the answer filed to plaintiffs’ declaration was that plaintiffs failed to make use of the grievance procedure set up by the contract. Plaintiffs’ declaration was dismissed on motion and upon appeal we affirmed the action taken by the trial judge. In that case we stated (pp 112, 113, 126, 127):
“Since the development of collective bargaining agreements as a method of bringing order out of the chaos of industrial disputes, a good deal of case law dealing with seniority has developed. These cases universally hold that seniority rights, being generally the creation of the union-management contracts wherein they are described, may be enforced only in accordance with the terms of such contracts. Ryan v. New York Central R. Co., 267 Mich 202; Hartley v. Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, 283 Mich 201; Zdero v. Briggs Manfg. Co., 338 Mich 549; Emmons v. Grand International Brotherhood of Locomotive Engineers, 340 Mich 368; Elder v. New York Central R. Co. (CCA), 152 F2d 361.
“The cases likewise illustrate a notable reluctance on the part of the courts to assume the role of umpire in industrial disputes, particularly when adequate machinery exists within the industry for such purpose. Emmons v. Grand International Brotherhood of Locomotive Engineers, supra; Slocum v. Delaware, Lackawanna & Western R. Co., 339 US 239 (70 S Ct 577, 94 L ed 795). * * *
“Plaintiffs had access, under the contract, to the steps in the grievance procedure through presentation of their grievance to the company, foreman. There is no allegation that this was done. The circuit judge was correct in dismissing the declaration in its assumpsit count, in the following words:
“ ‘Our Supreme Court, in the case of Leadon v. Detroit Lumber Company, 340 Mich 74, has stated that such failure is fatal to a claim in assumpsit. In denying Leadon’s claim, the Supreme Court said (p 78) :
“ ‘ “If plaintiff is relying upon rights arising out of the. contract between the local union, of which he was á member, and the employer, it is enough to say that he never pursued the remedies afforded him under that contract. See Hartley v. Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, 283 Mich 201; Mayo v. Great Lakes Greyhound Lines, 333 Mich 205; Zdero v. Briggs Manufacturing Co., 338 Mich 549.” ’
“ ‘Hence, this court must hold that such failure on the part of the plaintiffs herein is fatal to their claim in assumpsit in this court.’ ”
We have outlined that part of the contract relating to the manner of instituting and settlement of grievances. It is an admitted fact that such steps were not taken.
In Cassar v. Employment Security Comm., 343 Mich 380, we held that employees working under a labor contract containing a grievance procedure and no-strike clause are guilty of misconduct in connection with their work in walking out in breach of their contract, and are disqualified for unemployment compensation benefits under section 29 of the act.
The judgment is affirmed, with costs to plaintiff.
Dethmers, C. J., and Kelly, and Carr, JJ., concurred with Shares, J.
Smith, J.
(for reversal.) We have a simple fact question. The principal issue before us is whether we should approve the findings of the triers of the facts with respect to this fact question.
We have the power, it is true, but not the right, to make complete nonsense out of the administrative process. In a simpler day all fact-finding and adjudicating powers were in the courts. It is true no longer. The complexities of our society, its mechanization, its great concentrations of power and of people, together with certain inadequacies of the judicial process, have resulted in what is known as the administrative process. However well-equipped the courts may be to settle private controversies upon matters brought to them, they are ill-equipped to carry out a legislative policy on a day-to-day basis, even if constitutionally able. A part of that process involves, at times, the making of factual determinations.
Our problem involves such administrative process. It relates to unemployment compensation. The law is a new one, designed to cope with a social evil, administered by a commission vested with broad powers. “The State,” as Mr. Justice Holmes said in speaking of a tax board (Chicago, B. & Q. R. Co. v. Babcock, 204 US 585, 598 [27 S Ct 326, 51 L ed 636] ), “has confided those rights to its (i.e., the board’s) protection and has trusted to its honor and capacity as it confides the protection of other social relations to the courts of law.” We of the courts are given the right to review the employment security commission’s decisions, but the right is carefully circumscribed. The statute tells us in so many words that the courts shall not reverse the decision of the appeal board of this commission on a question of fact unless the finding is contrary to the “great weight of the evidence.” It behooves us, who are so zealous in keeping others within constitutional limits, to exercise the utmost in judicial self-restraint, lest our unreviewable actions tarnish the splendor of our oft-repeated avowals of constitutional deference. We say these things because they are of the essence of this case.
Mr. Justice Sharpe apparently agrees with us that this case involves simply an issue of fact. He puts it in this way: “The issue in the instant ease is one of fact and may be stated as follows: Did the claimants have a bona fide reason for quitting work because of the condition of the blower system?” He would, however, affirm the circuit court’s reversal of the appeal board on this fact issue, the determination of which involves a weighing of the credibility of the testimony of various witnesses. It is our opinion that what the circuit court actually did was to substitute its judgment for that of the appeal board. This it cannot do.
The problem presented, the adjustment of the role of the judiciary and the administrative tribunal in the administration of law, is one of far-reaching importance. As we observed at the outset, the administrative tribunal is a product of today’s complex society. Government today must apportion and control •competing rights heyond the ken of Lord Coke: broadcasting and air transportation, the production and use of electricity, gas, and atomic energy, the creation and the operation of vast industrial complexes, and, with all of the above, the tremendous social and human problems attendant thereon. It is an attempted solution of one of the latter with which we are here concerned.
The reasons for the withdrawals from the courts of these problems we need not vex. Thoughtful students foretold, years ago, the coming administrative expansion. Mr. Elihu Root, President of the American Bar Association (41 Am Bar Asso Rep, pp 355, 368, 369) thus addressed its membership nearly a half-century ago:
“There is one special field of law development which has manifestly become inevitable. We are entering upon the creation of a body of administrative law quite different in its machinery, its remedies, and its necessary safeguards from the old methods of regulation by specific statutes enforced by the courts. As any community passes from simple to complex conditions the only way in which government can deal with the increased burdens thrown upon it is by the delegation of power to be exercised in detail by subordinate agents, subject to the control of general directions prescribed by superior authority.'- The necessities of our situation have already led to an extensive employment of that method. * * * There will be no withdrawal from these experiments. We shall go on; we shall expand them, whether we approve theoretically or not, because such agencies furnish protection to rights and obstacles to. wrongdoing which under our new social and industrial conditions cannot be practically accomplished by the old and simple procedure of legislatures and courts as in the last generation.”
The difficulties foreseen were realized in abundant measure. Many lawyers and judges, trained in the common law, were hesitant, or reluctant, to carry out the legislative mandate respecting the administrative process, unable to move forward as our people desired. It was a former chief justice of the United States, Harlan Stone, who in an address delivered as a part of the Harvard tercentenary celebration (50 Har L Rev, 4, 16-18), well described, out of an abundance of experience, the reception accorded the administrative process in many courts and by many members • of the bench and bar:
“Perhaps the most striking change in the common law of this ■ country, certainly in recent times, has been the rise of a system of administrative law, dispensed in the first instance through authority delegated to boards and commissions composed of nonjudicial officers. The reception by the profession and the courts of these new administrative agencies has exhibited an interesting parallel to their attitude toward other forms of external change. These agencies soon became a matter of concern, not alone because of their novelty and statutory origin, but because they were brought into the law as a means of law enforcement and as the instruments for providing, to a limited extent, remedies for its violation, of which the courts had possessed a virtual monopoly.
“Under the civil law the rise of a system of administrative law, independently of the courts, came as a welcome formulation of principles for the guidance of official action, where no control had existed before. To the common law the use of these administrative agencies came as an encroachment upon the established doctrine of the supremacy of the courts over official action. It was the substitution of new methods of control, often crude and imperfect in their beginnings, for the controls traditionally exercised by courts — -a substitution made necessary, not by want of an applicable law, but because the ever-expanding activities of government in dealing with the complexities of modern life had made indispensable the adoption of procedures more expeditious and better guided by specialized experience than any which the courts had provided. * * *
“Addresses before bar associations 20 years ago, discussing the rise of new administrative agencies, are reminiscent of the distrust of equity displayed by the common-law judges led by Coke, and of their resistance to its expansion. We still get the reverberations of these eárly fulminations in renewed alarms at our growing administrative bureaucracy and the new despotism of boards and commissions. So far as these nostalgic yearnings for an era that has passed would encourage us to stay the tide of a needed reform, they are destined-to share the fate of the obstacles which Coke and his colleagues sought to place in the way of the extension of the beneficent sway of equity. These warnings should be turned to account, not in futile resistance to the inevitable, or in efforts to restrict to needlessly narrow limits activities which administrative officers can perform better than the courts, but as inspiration to the performance of the creative service which the bar and courts are privileged to render in bringing into our law the undoubted advantages of the new agencies as efficient working implements of government, surrounded, at the same time, with every needful guarantee against abuse.
“Fortunately, the theories, firmly established in this country, of due process and of the supremacy of law over official action, afford that protection of individual right and justice which is the ideal of the ■common law. The time has come for a more ready recognition that the procedures worked out by administrative bodies have realized this ideal largely without the coercive intervention of courts, and that they have set up standards for the appraisal of the specialized experience with which they are concerned which courts could have formulated, if at all, only more tardily and with far greater difficulty.”
Ancient dogma of the common law, valid enough in their origins and as originally applied, have been wrenched out of context and employed to defeat the purpose of the new legislation and its administration by the agencies created for that purpose. Thus, our Court has more than once stated that the workmen’s •compensation acts, being “in derogation of the common law, must be strictly construed” (Smith v. Wilson Foundry & Machine Co., 296 Mich 484, 487). Chief Justice Stone continues (p 18) :
“We need to be reminded, too, that in the construction of statutes establishing administrative agencies and defining their powers there is little scope for the .ancient shibboleth that a statute in derogation of the common law must be strictly construed, or for placing an emphasis on their particulars which will defeat their obvious purpose. Legislatures create administrative agencies with the desire and expectation that they will perform efficiently the tasks committed to them. That, at least, is one of the contemplated social advantages to be weighed in resolving ■doubtful construction. It is an aim so obvious as to make unavoidable the conclusion that the function which courts are called upon to perform, in carrying into operation such administrative schemes, is constructive, not destructive, to make administrative agencies, wherever reasonably possible, effective in struments for law enforcement, and not to destroy them.”
It is against this background of pressing need, legislative solution, and hesitant judicial reception that we turn to the precise issue confronting us. As we pointed out, we are here concerned with a relatively simple factual determination. In respect of such the legislative mandates are clear enough, not only in our own statutes, but in the nationwide administrative pattern generally: It is the business of the agency to ascertain the facts. (The statutes vary somewhat in language. To what degree, if at all, the statutory variations in phraseology actually vary the area in which the agency’s determinations are conclusive is a matter on which the courts are not agreed. See Dean Stason’s article, “Substantial Evidence in Administrative Law,” 89 Ú of Pa L Rev 1026.) In the statute before us the applicable provision is that “The findings of fact made by the appeal board acting within its powers, if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive” and “said court [circuit court for the county of Ingham] may reverse such decision of said appeal board upon a question of fact only if it finds said decision of the appeal board is contrary to the great weight of the evidence.” Michigan employment security act, PA 1936 (Ex Sess), No 1, § 38, as amended (CLS 1956, § 421.38 [Stat Ann 1955 Cum Supp § 17.540] ).
We start from the premise that it is our duty to accept this statute as expressing the will of our people and to give it complete effect. It is not our function, nor that of one of our subordinate courts, to substitute our judgment on the facts for that of the fact-finding tribunal, or to usurp the function that the legislature has vested in the agency. We have not been free from such usurpation in the past (Hazel Park Racing Association, Inc., v. Racing Commissioner, 343 Mich 1) and it should not continue. Mr. Justice Cardozo addressed himself to this practice in words we would do well to ponder (Federal Trade Commission v. Algoma Lumber Company, 291 US 67, 73 [54 S Ct 315, 78 L ed 655] ).
“ ‘The findings of the commission as to facts, if supported by testimony, shall be conclusive.’ 15 USC, § 45. The court of appeals, though professing adherence to this mandate, honored it, we think, with lip service only. In form the court determined that the finding of unfair competition had no support whatever. In fact what the court did was to make its own appraisal of the testimony, picking and choosing for itself among uncertain and conflicting inferences. Statute and decision (Federal Trade Comm. v. Pacific States Paper Trade Assn., 273 US 52, 61, 63 [47 S Ct 255, 71 L ed 534] ) forbid that exercise of power.”
It is clear, then, that when the legislature provided that the circuit court might reverse the decision of the appeal board only if it found such ■decision to be “contrary to the great weight of the evidence,” what it told us (and the board) was that the board’s finding should be almost conclusive. How ■conclusive? It is clear, at the one extreme, that we need not accept blindly the factual conclusions of ■an agency (any more than we do those of a jury). It is equally clear, at the other extreme, that we do not grant a trial de novo in this or the circuit court, a process which would combine the dual faults of imposing a maximum load on the courts with a minimum degree of responsibility in the commission. The legislature has drawn the line between these 2 extremes for us in the words “great weight” but such words (Stason, supra) have no more intrinsic content than other famous legal doublets such as the ■“reasonable man,” “due process,” or “contributory negligence.” They require interpretation, which, in turn, will sometimes require a consideration of what we in the courts term “expert” testimony {e.g., how broad is the channel necessary for television?), or an ascertainment of factual matters relating to jurisdiction or standards, as w.ell as the technically less complex determinations of the credibility of the witnesses appearing before the commission. The case before us, it will be observed, requires merely that there be resolved one of the simplest possible issues of fact. (Did the employees leave their work because of the asserted faulty condition of the blowers?) It comprehends no more than the credibility of certain witnesses. Thus we may leave to future cases, as they arise, the enunciation of criteria for distinguishing the so-called question of law from questions of fact in the more complex situations (Davis, Administrative Law, ch 20), to the degree that such is possible, and the factors involved in their resolution.
What, then, is our scope of review, as to this agency, under the “great weight of the evidence” criterion? We may be aided by a consideration of our appellate duties with respect to our review of actions at law. The analogy is not precise {e.g., in administrative law we deal not with the findings of untrained jurors but with those of trained personnel operating in highly specialized areas) but it will be helpful. In the area of appellate review of lower-court actions and suits, our restrictions are fairly well established. Thus, although in a nonjury law action we look for a preponderance of the evidence (see discussion of Black, J., in Schneider v. Pomer-ville, 348 Mich 49) in a jury case, upon review, “The fact that we would reach a different conclusion than did the jury is not controlling. We should set aside a verdict, and only set one aside, when it is against the overwhelming weight of the evidence.” McConnell v. Elliot, 242 Mich 145, 147. If such words as overwhelming weight, great weight, and clear weight have approximately the same content we would he justified in saying that we should not reverse the finding of the administrative tribunal on an issue of fact unless we would set aside a jury verdict under similar circumstances. It is a matter of interest that Dean Stason, in his article “Substantial Evidence in Administrative Law,” supra, 1038, proposes the following with respect to the term “substantial evidence”:
“The term ‘substantial evidence’ should be construed to confer finality upon an administrative decision on the facts when, upon an examination of the entire record, the evidence, including the inferences therefrom, is found to be such that a reasonable man, acting reasonably, might have reached the decision; but, on the other hand, if a reasonable man, acting reasonably, could not have reached the decision from the evidence and its inferences then the decision is not supported by substantial evidence and it should be set aside. In effect, this is the prevailing rule in jury trials relative to the direction of verdicts, and is also the prevailing rule applied by appellate courts in setting aside jury verdicts because contrary to the evidence.”
(See, also, Stone, J., in National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 US 292, 300 [59 S Ct 501, 83 L ed 660]:
“Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. ‘It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ Consolidated Edison Co. v. National Labor Relations Board, 305 US 197, 229 (59 S Ct 206, 83 L ed 126), and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. See Baltimore & Ohio R. Co. v. Groeger, 266 US 521, 524 [45 S Ct 169, 69 L ed 419]; Gunning v. Cooley, 281 US 90, 94 [50 S Ct 231, 74 L ed 720]; Appalachian Electric Power Co. v. National Labor Relations Board [CCA], 93 F2d 985, 989.”)
We conclude that under the statute here before us ■our scope of review is no broader than that exercised by us in setting aside a jury’s verdict, our latitude no greater. It may, indeed, due to the differing considerations of skill, policy, and function of the fact-finding tribunals in the governmental process, be far narrower. The precise scope, however, we need not on these facts further explore, for it is ■clear that even under the test applied to review of a jury’s function we would not tamper with the factual determination made.
It is not necessary that we cite and recite the contradictory evidence adduced before the referee and before the appeal board. We do not propose to weigh the credibility of witness Harsch against witness Morley or of witness Hicks against witness Beier. We do not propose to comment upon either the sufficiency or the actual results of the “cigar •smoke” test employed by the president of the corporation to ascertain whether or not the blowers were working properly when he received the complaint of the men. He says the smoke went up. An employee says it did not. If it did, does that establish that the same suction would have removed particles of abrasives ? Again an argument. We do not propose to dwell in detail upon the fact that, after the men had left their work, allegedly because of the inefficiency of the blowers, the wires to the fan were found reversed so that it was running backwards. Does this make any difference in a paddle-wheel fan? Another argument.
The resolution of such fact controversies is not our function nor is it that of the Ingham court. The answer to them lies in the value of human observa tions, of dialogue face to face, of the averted gaze or the hesitant answer as contrasted with the forthright and confident reply. Certain we are only of this: Even were we gifted with the insight to read behind the printed page, to divine in these chambers the currents and cross-currents of feeling and emotion obvious to all in the courtroom, thus to scour away the dross and see exposed the stark issue of truth or falsity from a witness’ words — even, as we say, were we so gifted, we would not be here permitted to exercise those great gifts. The determination of the credibility of a witness, under the statute, lies with the trier of the facts. We are not he.
If anything at all is clear upon this ample record with its sharply contested issues of fact it is this: A jury’s findings that the employees left their work because the blower system had broken down and was not removing the abrasives, dust, and lint from the air could not be set aside .by us as against the great weight of the evidence. It is equally obvious that the decision of the appeal board is entitled, under the clear wording of the statute, to at least as much deference. That settles the matter, so far as the courts are concerned, if we are going to conform to the statute.
The plaintiff corporation asserts an alternative ground for disqualification of the claimants, that they “were discharged on August 31, 1953, for misconduct connected with their work and were therefore disqualified within the meaning of section 29(1) (a) (2) of the act.” This theory is apparently accepted by Mr. Justice Sharpe upon the authority of Cassar v. Employment Security Commission, 343 Mich 380. The Cassar Case, however, is not here controlling. The issue there presented was whether we would apply to a labor dispute the section of the employment security act specifically dealing with labor disputes (section 29 [1] [b] of CL 1948 and CLS 1952, § 421.1 et seq. [Stat Ann 1950 Rev and Stat Ann 1953 Cum Supp § 17.501 et seq.]) or the section (section 29 [1] [a] [2]) dealing with a workman’s misconduct or intoxication. The majority of the Court chose to apply the latter section. This, the dissenting .opinion urged, was error, unjustified under, any rational theory of statutory construction, since it refused to apply to a labor dispute the very section of the statute specifically dealing with labor disputes. And in favor of what section? In favor of a section of the act dealing with misconduct and intoxication, in order to apply which section we first had to enter upon a moral judgment as to the rightness or the wrongness of the strike, a judgment we had theretofore resolutely declined to exercise with respect to the payment of unemployment compensation.
“This Court need not characterize the ‘fault’ in the strike. Unemployment compensation does not depend upon the .merits of a labor dispute.” Intertown Corporation v. Unemployment Compensation Commission, 328 Mich 363, 366.
For further observation on the Cassar Case see dissent therein, 343 Mich at page 383.
The Cassar Case, however, does not control decision in the case before us because of significant factual differences. Here the working conditions in the plant at the time the men left were such that the air was “foggy” and the men covered “with lint and abrasives and dirt.” If we are to accept the holding of the finders of fact (concerning which we need at this point say no more) we must conclude that this situation was due to the faulty conditions of the blowers. The cessation of work under such circumstances could not reasonably be characterized, in the words of the majority opinion in the Cassar Case, as evincing (p 405) “a disregard of standards of behavior which the employer has a right to expect of his employee.” Rather, the contrary. Under such conditions there was no time for filing written grievances. The claimants were confronted with an abnormal condition of immediate concern to anyone having a reasonable regard for his own health. The referee (without the aid of the Cassar opinion) refused to find misconduct under such circumstances, the appeal board affirmed the referee, and we are in full accord therewith. In applying the law to the acts of men under what seem to them hazardous conditions we would do well to ash ourselves, with Cicero, whether justice is founded upon nature, or upon theory.
Reversed and remanded for reinstatement of the order of the appeal board. Costs to appellants.
Edwards, Voelker, and Black, JJ., concurred with Smith, J.
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SHAPIRO, J.
Respondents-appellants employ members of the charging party-appellee labor unions. Pursuant to their respective collective-bargaining agreements (CBAs), respondents provide pension benefits to their employees. The CBAs provide the employees with various pension plan options, including one in which payments terminate at the death of the employee (straight-life pension) and another in which pension benefits continue until the death of both the employee and his or her spouse (joint- and-survivor pension or optional benefits plan). Since 1982, a particular mortality table was used to calculate the joint-and-survivor-pension monthly benefit. In 2006, respondents adopted a different mortality table for calculating those benefits, thereby reducing the monthly pension benefit paid under the joint-and-survivor plan. The charging parties filed a claim with the Michigan Employment Relations Commission (MERC), asserting that respondents committed an unfair labor practice (ULE) by lowering pension benefits without bargaining on the issue as required by the public employment relations act (FERA), MCL 423.201 et seq. The MERC agreed that respondents’ unilateral actions constituted a ULR ordered respondents to bargain on the issue, and held that until an agreement is reached, the joint-and-survivor pension benefits must be calculated under the mortality table adopted in 1982. We affirm.
I. UNDERLYING FACTS
The Macomb County Employees’ Retirement System Ordinance (the retirement ordinance) provides pension benefits for employees who are members of the system. Before 1982, calculation of optional joint-and-survivor pension benefits included consideration of the gender of the retiree because the average lifespans of women and men differed. In 1978, the United States Supreme Court held that the usage of separate tables constituted unlawful gender discrimination. Los Angeles Dept of Water & Power v Manhart, 435 US 702; 98 S Ct 1370; 55 L Ed 2d 657 (1978). The Michigan Attorney General then issued an opinion that public pension systems must adopt gender-neutral mortality tables. OAG, 1981-1982, No 5846, p 29 (January 22, 1981) (“[Adoption of a sexually-neutral retirement table by the [county] would comport with federal and state law.”).
In 1982, in response to this change in the law, the Macomb County Retirement Commission asked its actuary, Gabriel, Roeder and Smith (GRS), to study the effect on the retirement system if it adopted a single mortality table for all future retirees based on a blending of male and female mortality tables into one gender-neutral, or unisex, table. GRS’s report explained that doing so would result in a range of outcomes. To the degree that the blend was weighted toward male mortality rates, the result would be “substantially lower benefits than at present for women electing a joint and survivor benefit[.]” To the degree that the blend was weighted toward female rates, it would result in an increase in costs because it would increase benefits to male retirees greater than the reduction in benefits to female retirees. The report went on to note that the only way to “make sure that no participant will receive a lesser benefit than under present procedures” was to adopt a gender-neutral table with a 100% female/0% male blend of mortality rates. The report outlined the specific additional costs to the system using this and several other blends of the male and female mortality tables and offered them as options to the retirement commission. Though cognizant of the increase in overall costs to the retirement system, the retirement commission adopted the 100% female/0% male mortality blend as its gender-neutral mortality table.
The 1982 GRS report also noted that the retirement ordinance required that the optional joint-and-survivor benefit be “the actuarial equivalent” of the standard straight-life benefit. Accordingly, the report recommended adopting a specific rule to govern the meaning of actuarial equivalence in the context of optional benefits. The report recommended adoption of a rule stating that “for purposes of determining amounts of optional benefits, the actuarial equivalent will be based upon a stipulated interest rate and unisex mortality table.” Section 15 of the retirement ordinance was thereafter amended to read:
The Retirement Commission shall from time to time adopt such mortality and other tables of experience, and a rate or rates of regular interest, as are necessary in the Retirement System on an actuarial basis. For purposes of determining actuarial equivalent Retirement Allowances, the Retirement Commission is currently using a 7V2% interest rate and a blending of male and female rates based on the 1971 group annuity mortality table projected to 1984 with ages set back 2 years .... [Emphasis added.]
The retirement commission continued to use the same mortality table for 24 years. However, in 2006, in response to another study conducted by GRS, the retirement commission adopted a new gender-neutral mortality table, effective July 1, 2007, which, among other things, changed the assumed ratio of retirees selecting the joint-and-survivor plan from 100% female/0% male to 60% male/40% female. This had the result of lowering the monthly retirement benefit for those under the joint-and-survivor pension. The charging parties demanded bargaining over the change. Respondents rejected the demand, and the charging parties filed ULP charges with the MERC asserting a violation of respondents’ duty under § 10(l)(e) of PERA, MCL 423.210(l)(e), to bargain over benefits.
Although the hearing referee and the MERC reached different rulings, they agreed on two preliminary questions. First, that under PERA, respondents have a duty to bargain over the method by which the joint-and-survivor pension benefits are determined. Second, they agreed that this duty to bargain was not eliminated by the fact that the pension plan is administered by an independent board.
The hearing referee and the MERC disagreed about whether the CBAs fully covered the issue of retirement-benefit calculations so as to satisfy the respondents’ duty to bargain. The hearing referee found that this did because the CBAs incorporated § 26 of the ordinance, which describes the optional joint-and-survivor benefits as “actuarially equivalent” to the straight-life benefits. The hearing referee found that the term “actuarially equivalent” represented a bargained benefit and that, although the meaning of the term “actuarially equivalent” as used by the parties was ambiguous, respondents’ unilateral change in the benefits paid under the optional joint-and-survivor plan did not give rise to a ULP
The MERC concluded that because the term “actuarially equivalent,” as used in the CBAs, was ambiguous, the CBAs did not “contain the entirety of the parties’ agreements with respect to pension benefits.” It went on to conclude that the 24-year practice of using the 100 percent female mortality table constituted a “tacit agreement that the practice would continue.” It found, therefore, that the unilateral change in the mortality tables used to calculate benefits constituted a ULE
II. STANDARD OF REVIEW
The MERC’s findings of fact are conclusive if supported by competent, material, and substantial evidence on the record considered as a whole. MCL 423.216(e); Const 1963, art 6, § 28; Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Mich Transp Auth, 437 Mich 441, 450; 473 NW2d 249 (1991). Indeed, appellate review of those findings must be undertaken with sensitivity because of the administrative expertise of the MERC. Amalgamated Transit, 437 Mich at 450; Gogebic Community College Mich Ed Support Personnel Ass’n v Gogebic Community College, 246 Mich App 342; 348-349; 632 NW2d 517 (2001). The MERC’s legal rulings, however, are not accorded the same deference as its factual findings. “Legal rulings of an administrative agency are set aside if they are in violation of the constitution or a statute, or affected by a substantial and material error of law.” Amalgamated Transit Union, 437 Mich at 450. Of course, whether an error of law has occurred and, if so, whether it is substantial and material are legal questions subject to review de novo. Mich Ed Ass’n v Christian Bros Institute of Mich, 267 Mich App 660, 663; 706 NW2d 423 (2005). Also subject to review de novo are issues of statutory interpretation, Kent Co Deputy Sheriffs Ass’n v Kent Co Sheriff, 463 Mich 353, 357 n 8; 616 NW2d 677 (2000), as well as whether contract language is ambiguous and the meaning of unambiguous contract language, Port Huron Ed Ass’n v Port Huron Area Sch Dist, 452 Mich 309, 323; 550 NW2d 228 (1996).
III. ANALYSIS
In this appeal, we must determine whether respondents violated their duty to bargain when they adopted new mortality tables to calculate joint-and-survivor benefits under the CBAs that had the result of reducing the monthly benefits paid under the joint-and-survivor plan. A public employer commits an unfair labor practice if it refuses to bargain in good faith regarding a mandatory subject of collective bargaining or takes unilateral action on the subject absent an impasse in the negotiations. MCL 423.210(1)(e); Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 54-55; 214 NW2d 803 (1974). A public employer also “commits an unfair labor practice if, before bargaining, it unilaterally alters or modifies a term or condition of employment, unless the employer has fulfilled its statutory obligation or has been freed from it.” Port Huron, 452 Mich at 317.
A. MANDATORY BARGAINING
Under § 15 of PERA, MCL 423.215(1), a public employer has a duty to bargain in good faith over subjects found within the scope of the phrase “wages, hours, and other terms and conditions of employment.” See Detroit Police Officers Ass’n, 391 Mich at 54. The duty to bargain in good faith also extends to officers and agents of public employers. MCL 423.210(1).
Respondents assert that they have no duty to bargain over actuarial assumptions because actuarial assumptions are the sole fiduciary responsibility of the retirement commission. Although actuarial assumptions used to determine whether the retirement system is receiving sufficient contributions to maintain adequate funding may not be a subject of bargaining, Bd of Trustees of the Policemen and Firemen Retirement Sys of Detroit v Detroit, 270 Mich App 74, 82-85; 714 NW2d 658 (2006), the purpose of those assumptions is wholly different from those used to calculate joint-and-survivor pension benefits, which, as the hearing referee concluded, are subject to mandatory bargaining:
[T]he mortality table at issue here, although an “actuarial assumption,” is used to calculate the benefits received by retirees from the system. While Respondents’ contributions are affected by the choice of the mortality table used for this purpose, they are also affected by the methods used to calculate final average compensation. In general, if benefits rise, so must Respondents’ contributions. I find that like the methods used to calculate final average compensation, the mortality table used to calculate joint and survivor pension benefits is a matter properly within Respondents’ control and is a mandatory subject of bargaining under PERA.
It is well settled that “ ‘[a]n employer is responsible for its bargaining obligations regardless of whatever actions are taken by an independent pension board.’ ” Detroit Police Officers Ass’n v Detroit, 212 Mich App 383, 390; 538 NW2d 37 (1995), aff'd 452 Mich 339 (1996) (citation omitted). Moreover, “[i]t is improper for an employer to remove a subject of mandatory bargaining from the scope of PERA by assigning its management to a body insulated from PERA.” Detroit Police Officers Ass’n, 212 Mich App at 389. Our Supreme Court explained that the basis for this principle originates from the supremacy of state law over local ordinances:
The enactment of an ordinance, however, despite its validity and compelling purpose, cannot remove the duty to bargain under PERA if the subject of the ordinance concerns the “wages, hours or other terms and conditions of employment” of public employees. If the [relevant] ordinance were to be read to remove a mandatory subject of bargaining from the scope of collective bargaining negotiations, the ordinance would be in direct conflict with state law and consequently invalid. Therefore, if. .. [the subject of the ordinance] is a mandatory subject of bargaining, a city ordinance cannot foreclose collective bargaining on the subject. [Detroit Police Officers Ass’n, 391 Mich at 58 (citations omitted).]
Retirement or pension benefits and methods of calculating them are mandatory subjects of collective bargaining. Id. at 63-64; Lieutenants & Sergeants Ass’n v City of Riverview, 111 Mich App 158, 161; 314 NW2d 463 (1981). Accordingly, the existence of an ordinance that grants the retirement commission the authority to adopt the actuarial assumptions used to calculate retirement benefits does not foreclose collective bargaining on the issue, and respondents’ lack of control over the retirement commission cannot excuse avoiding mandatory bargaining under PERA. Moreover, respondent Macomb County has the authority to amend the ordinance to comply with any term of a bargained agreement and, as just noted, whatever the ordinance may provide, it cannot foreclose statutorily mandated collective bargaining. With regard to the other respondents, we note the ordinance already provides that union members’ retirement benefits are controlled by the terms of the members’ pertinent CBA. Macomb County Employees’ Retirement System Ordinance, § 53b.
Accordingly, we hold, as did the hearing referee and the MERC, that the actuarial assumptions used to calculate the optional forms of benefit payments under the terms of the CBAs are subject to mandatory bargaining under PERA.
B. WHETHER THE CBAs ARE AMBIGUOUS IN THE USE OF THE TERM “ACTUARIAL EQUIVALENCE”
Whether the term “actuarial equivalence” is ambiguous or unambiguous determines the standard by which the past actions of the parties may be seen to establish a term or condition of employment. If the term is ambiguous, then a “tacit agreement” that “past practice will continue” renders that practice a term or condition of employment that cannot be unilaterally altered. If the term is unambiguous, then a past practice may constitute a term or condition of employment only if it “is so widely acknowledged and mutually accepted that it amends the contract,” i.e., that “the parties had a meeting of the minds with respect to the new terms or conditions so that there was an agreement to modify the contract.” Port Huron, 452 Mich at 312.
The MERC found that because the retirement ordinance does not provide a definition of “actuarial equivalence,” the term is ambiguous. It further found that the past practice of the use of the 100% female/0% male table had become a term or condition of employment under Port Huron and therefore could not be unilaterally altered. We agree with the MERC’s conclusion that the term “actuarial equivalence” is ambiguous. We also conclude that its findings regarding the past practice were supported by competent, material and substantial evidence. Amalgamated Transit Union, 437 Mich at 450.
The only expert testimony in the record regarding actuarial equivalence was provided by a witness for the charging parties. The expert testified that as long as the same assumptions are used for everyone, they are actuarially equivalent, irrespective of whether the benefits themselves are equal in value:
Q. So that if I’m 62 and I retire and [someone else] is 65 and he retires, if we live to our life expectancy, we should get the exact or close as can be calculated the same amount of pension benefits from the social security system, right?
A. That’s the goal, correct.
Q. And that goal is known as actuarial equivalence, isn’t it?
A. I’m not sure. I don’t think so.
Q. ... Is it your understanding that [the GRS report is] saying, look, if you want the surviving spouse options to be the actuarial equivalent of the single life, here’s what we do.
A. Well, I’m not entirely sure what they mean by actuarially equivalent because they are by plan definition actuarially equivalent.
Q. But the value—
A. The value is different than-I’m sorry. Go ahead.
Q. Correct. We talked about that social security example. The value of the benefits were different, right?
A. Yes.
Q. Those were actuarially equivalent?
A. Right.
A. Well, by plan definition actuarial equivalence is using a set of factors, they are equivalent. The plan, when they value these particular benefits, there’s a greater value to somebody who elects a life option — I’m sorry, a joint and survivor option than a life benefit.
A.... Individually they’re using factors that are neutral and by definition they’re actuarially equivalent because that’s what they have to be.
A. Well, in terms of valuating a life benefit and a joint and survivorship, you can have a stipulated set of factors that you use in a mortality interest rate and to equate one form to another using those assumptions, they will be equal, in other words, they will be actuarially equivalent based on those assumptions. Like for example, they use the 71 female with a two-year set back. Every option using those tables is equivalent to every other option.
Q. And even though they’re not going to end up being equal?
A. Well, now we’re talking about how do we value these benefits.
Q. Yes.
A. The value of those benefits will not be equal because you’re using a different set of assumptions to value these benefits.
Q. That’s what I’m getting at. There’s a difference between being of equal value and being actuarially equivalent?
A. Right. I mean actuarially equivalent is usually a term used in a plan document to set the optional forms to another optional form. The valuation of those optional forms is a different matter, whole different assumption set. They don’t have to be different. In most cases they are not the same. They’re always different.
Q. In most cases the actual valuation is going to be different than what you came up with to be actuarially equivalent to start with?
A. Right.
Q. To be actuarially equivalent is really a matter of choosing what factors that you decide will make it actuarially equivalent, is that right?
A. Right.
Q. Valuation would be I wait and see how long you live. I see how many dollars. I pay it off. I multiply the years times the dollars or times the month and that’s a value and they may not be the same for the same people at all?
A. They may not be the same.
Q. They may be different for male and female?
A. Right.
Q. So let me guess. You could end up having benefits having different values and still be perfectly actuarially equivalent and plans run that way every day and have for the last 25 years of your experience?
A. Yes. [Emphasis added.]
It is abundantly clear from this expert testimony that the MERC had substantial evidence from which to conclude that the term “actuarial equivalence” as used in this case did not unambiguously mean “equal in value.”
C. PAST PRACTICE
The MERC concluded that the parties had engaged in a past practice of accepting a 100% female/0% male mortality table for calculation of the optional joint-and-survivor pension and that this practice constituted a “tacit agreement” with respect to the application of the term “actuarial equivalence” as used in the contract that cannot be unilaterally altered. We agree with this conclusion.
We further conclude that, even if “actuarial equivalence” had the unambiguous meaning of “equal in value,” the parties’ practices over the subsequent 24 years would have constituted a modification of the contract that could not be unilaterally altered.
[T]he unambiguous contract language controls unless the past practice is so widely acknowledged and mutually accepted that it amends the contract. The party seeking to supplant the contract language must show the parties had a meeting of the minds with respect to the new terms or conditions so that there was an agreement to modify the contract. [Port Huron, 452 Mich at 312.]
The record contains the GRS report entitled “Study Regarding Unisex Mortality Tables,” which was presented to the retirement commission on July 26, 1982. The report included discussions regarding the effect of various actions the commission might take and included sample male-female blended morality tables labeled U1 (90% male/10% female), U2 (75% male/25% female), U3 (50% male/50% female), and U4 (0% male/100% female). The added costs of these options to the retirement system as a percentage of payroll were estimated as follows: U1 (0.01 percent); U2 (0.19 percent); U3 (0.47 percent); U4 (1.01 percent). The retirement commission adopted the U4 (100 percent female) mortality table for determining optional joint-and-survivor benefits under the retirement ordinance. The retirement commission continued using the 100 percent female mortality table until 2006.
Respondents claim that the adoption of the 100 percent female table “unknowingly” created unequal payments and that “it took a team of actuaries to discover the overpayments in 2006.” However, this is not borne out by the record. The initial GRS study that resulted in the adoption of the 100 percent female table specifically indicated that there would be an increased cost to the system. In fact, the 100 percent female table created the highest effect on costs of the four options. In spite of that, the retirement commission elected to adopt that table. Further, as conceded by Macomb County’s finance director, whatever “inequality” was occurring in 2006 had been occurring over the past 24 years. Moreover, the record indicates that GRS performed an experience study in 1993 to review the actuarial assumptions the system was using to calculate benefits and did not recommend any changes to the system.
In any event, § 15 of the retirement ordinance was amended shortly after the adoption of the 100 percent female mortality table to read: “For purposes of determining actuarial equivalent Retirement Allowances, the Retirement Commission is currently using a lxk% interest rate and a blending of male and female rates based on the 1971 group annuity mortality table projected to 1984 with ages set back two years.” This amendment was clearly adopted to set the optional joint-and-survivor benefits at values that were not strictly “equal in value” to those provided in the straight-life benefit. The original GRS plan expressly stated:
COMMENT C: The Retirement System Ordinance provides that an optional benefit will be “the actuarial equivalent” of the standard benefit. The Retirement Commission could adopt a rule stating that for purposes of determining amounts of optional benefits, the actuarial equivalent will be based upon a stipulated interest rate and unisex mortality table. This could eliminate the need for an ordinance change.
Indeed, GRS’s 1982 report went on to provide: “[A] unisex approach subsidizes optional elections for men. If, in recognition of this, more men elect joint and survivor benefits than in the past, cost to the system will be greater than is shown.” Thus, the initial GRS study both recognized and explicitly informed the county that adoption of any of the unisex tables could result in optional joint-and-survivor benefits that were not equal in value to those of the straight-life benefits. Rather, every unisex table would, to some degree, create an approach that resulted in greater benefits for men making one of the optional elections. The report went further, suggesting that the retirement commission adopt language designed to circumvent the equivalence requirement by providing an open-ended formulaic definition for “actuarial equivalent” that would be based on an interest rate and unisex mortality table.
Consequently, assuming respondents’ definition of “actuarially equivalent” is correct and unambiguous, the retirement commission’s selection of the 100 percent female table, in conjunction with respondents’ adoption of the suggested language and the continued use of the 100 percent female table for 24 years, even after actuarial review in 1993, represented a “definite, certain, and intentional” modification of the actuarial equivalent requirement that was “unequivocal.” See Port Huron, 452 Mich at 329. The acceptance of this provision is clear from the language in the controlling CBAs, which provide that retirement benefits are to be continued “as presently constituted,” i.e., in accordance with the 100% female/0% male mortality table.
The evidence presented showed that, despite respondents’ claim that the clear terms of the CBAs required that the joint-and-survivor pension be “equal in value” to the straight-life pension, for 24 years — from adoption until 2006 — the parties continuously used the 100 percent female mortality table without regard to whether it would create equal-in-value pensions. Accordingly, even were respondents correct that the term “actuarial equivalence” as used by the parties was unambiguous, we would still find for the charging parties because the usage of the 100 percent female mortality table was “so widely acknowledged and mutually accepted that it creat[ed] an amendment to the contract.” Port Huron, 452 Mich at 329.
IV CONCLUSION
In sum, we agree with the MERC that the term “actuarial equivalence” is ambiguous and that a past practice of accepting a 100% female/0% male mortality table constituted a tacit agreement by the parties that that table would continue to be used. We further conclude that, even if “actuarial equivalence” had the unambiguous meaning of “equal in value,” there was sufficient evidence of a meeting of the minds that the 100% female/0% male table was accepted for calculating pension benefits in lieu of any “equal in value” requirement that the table could not be unilaterally changed. Accordingly, we agree with the MERC that “Respondents violated their duty to bargain when, without bargaining, they changed the method used to calculate joint and survivor benefits under the parties’ collective bargaining agreements.”
Affirmed.
Fitzgerald, J., concurred with Shapiro, J.
This includes employees who are not represented by the unions.
The opinion also included a discussion of “actuarially equivalent,” although in a different context than at issue here, but noted that the term was undefined.
This would also result in slightly higher benefits being paid to men than had been paid to that date.
The hearing referee apparently concluded that this ambiguity in contract language could be resolved through grievance arbitration and that, therefore, a unilateral change in optional retirement benefits did not give rise to a ULE However, even if the hearing referee was correct that the matter could give rise to a grievance, this would not eliminate the presence of a ULP under PERA. In Bay City Sch Dist v Bay City Ed Ass’n, Inc, 425 Mich 426, 436-437; 390 NW2d 159 (1986), our Supreme Court held that “[w]here a controversy gives rise to both contractual and statutory claims .. ., grievants have been allowed to pursue different avenues of relief in different fora.” If contractual and statutory claims arise out of the same controversy, parallel proceedings are permitted. Id. at 437-440.
The hearing referee did not address whether the use of a particular mortality table for 24 years represented a past practice rising to the level of a term or condition of employment.
The dissent agrees with us that employers cannot avoid their duty to bargain over actuarial assumptions that govern pension-benefit amounts and that the assumptions in this case must therefore be subject to bargaining. Curiously, despite its explicit rejection of respondent’s view that the duty to bargain does not apply, the dissent also observes that respondent’s position “has merit.” However, other than a brief discussion of the terms “trustee” and “agent,” the dissent fails to explain what it finds meritorious in the argument. Indeed, the distinction between the terms “trustee” and “agent” is fully consistent with the notion that the retirement commission, as a trustee, may act to secure and manage reserves in order to ensure the county’s ability to pay the benefits, the amount of which is exclusively a matter for bargaining between the county and its employees.
As for the dissent’s concern regarding MCL 46.12a(l)(b), we note that the language cited by the dissent requires that pension or retirement benefits be granted “according to a uniform scale for all persons in the same general class or classification.” It is clear that a uniform scale is being used here. Each retiree is receiving benefits under the same 100% female/0% male table. The dissent is concerned that the amounts of benefits ultimately received are equal, but that is entirely different from whether a uniform scale is used to calculate the benefits. A nonuniform scale would, for example, require that the benefits received by men he calculated using a different mortality table than for those received by women. It was precisely to adopt a uniform scale that the 100% female/0% male table was adopted for all employees, even though separate scales for male and female retirees likely resulted in greater consistency in the actual dollar amount of benefits received by each retiree.
The dissent ignores the testimony and documentary evidence of the parties’ use of the term “actuarial equivalence” and instead elects to impose its own definition using a dictionary to define the term despite the fact that the term “actuarial equivalence” cannot be found in the cited dictionary. Although undefined contract terms are generally interpreted in accordance with their “commonly used meaning,” Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 113-114; 595 NW2d 832 (1999), courts are not to resort to a lay dictionary for specialized terms of art, particularly in technical fields in which professionals obtain advanced degrees, see People v Thompson, 477 Mich 146, 151-152; 730 NW2d 708 (2007). For example, we give tax terms their specialized meanings. Prod Credit Ass’n of Lansing v Dep’t of Treasury, 404 Mich 301, 312; 273 NW2d 10 (1978) (stating that “terms of art” should be interpreted "in accordance with the experience and understanding of those who would be expected to use and interpret the act”). Similarly, we routinely accept testimony about the meaning of medical and engineering terms of art.
Ignoring this rule, the dissent attempts to craft a definition by breaking the term into component parts, finding definitions for each word, and then rejoining them. The absurdity of attempting this with a technical term is evident when one considers medical terms such as “gall bladder.” The dictionary defines “gall” as “[bjitterness of feeling; rancor” and “[ojutrageous insolence,” and defines “bladder” as “[a]ny of various distensible membranous sacs ... found in most animals and that serve as receptacles for fluid or gas.” The American Heritage Dictionary of the English Language (2001). Adopting the dissent’s approach to defining terms of art, the legally binding definition of “gall bladder” would be “a distensible membranous sac found in animals that serves as a receptacle for bitterness of feeling, rancor, and outrageous insolence.”
The dissent concludes that the MERC’s decision is not supported by competent, material and substantial evidence. However, we reiterate that this Court must be extremely deferential when reviewing the MERC’s factual findings. “ ‘Review of factual findings of the commission must be undertaken with sensitivity, and due deference must be accorded to administrative expertise. Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency’s choice between two reasonably differing views of the evidence.’ ” St Clair Intermediate Sch Dist v Intermediate Ed Ass’n/MEA, 458 Mich 540, 553; 581 NW2d 707 (1998) (citation omitted).
The report stated that it would be reasonable to expect that using a merged gender table would result in “substantially lower benefits than at present for women electing a joint and survivor benefit, and slightly higher benefits than at present for men.” On the other hand, the report stated that using all female factors for future retirees would “make sure that no participant will receive a lesser benefit than under present procedures.” However, this option “would necessarily entail a cost for the plan since men electing optional forms of payment would be subject to a smaller reduction in benefits than required on an actuarial basis.” Thus, the record evidence is that the retirement commission selected the 100 percent female table, even though it resulted in the highest costs to the system, because it left the female benefits the same and increased the male benefits, as opposed to adopting some other merged table, which would have left male benefits the same or better, but reduced female benefits. This suggests that the selection was made without regard to cost or whether the options were equal in value, but was instead based on how the adopted table would affect those receiving the benefits.
The dissent contends that the parties’ knowledge that the benefits were unequal was insufficient to amend the parties’ agreement, citing Port Huron, 452 Mich at 332. We agree. That is why we have relied not simply on their knowledge, but their actions to find evidence of an unequivocal modification. We also note that in Port Huron, the Court held that there was no evidence that the district had intentionally taken actions contrary to the agreements; rather, they happened by happenstances or oversight. Id. at 332 n 22. Such is clearly not the case here, where there is no happenstance or oversight, but deliberate acceptance based on a clear understanding of the implications. We reject the dissent’s conclusion that the GRS reports cannot establish respondents’ intent because it was respondents that incorporated language identical to that from the GRS report in the ordinance establishing the adoption of the 100 percent female table. Ironically, the dissent asserts that the 1982 GRS report cannot establish respondents’ intent in the same footnote that it acknowledges respondents’ amendment of the retirement ordinance in accordance with the report’s recommendation. The amendment is necessarily tied to the report. Accordingly, it is appropriate to use it in determining their intent. In any event, the dissent fails to provide or cite any facts in the record that are inconsistent with the MERC’s findings.
The dissent alludes to the fact that not permitting the retirement commission to change the actuarial tables used to calculate the retirement benefits could potentially destabilize the retirement funds. However, there is no evidence in the record to support such an assertion, nor has the commission concluded that additional funding is either necessary or unavailable. Thus, the dissent’s expression of concern about the financial stability of the retirement system appears to be intended to inflame rather than clarify. Moreover, our conclusion that the parties had a past practice of using the 100 percent female table does not prevent the parties from selecting a new table. It merely requires that they do so at the bargaining table rather than by a unilateral change.
Finally, the dissent’s claim that the use of a gender-neutral table based on a 100 percent female assumption results in inequities constitutes a criticism of using a gender-neutral table at all. Any gender-neutral table will invariably result in some difference in payments given that women in fact do generally live longer than men and that this reality cannot, by definition, be reflected in a gender-neutral table. Moreover, the dissent’s assertion that the commission “did not accept a sex-blended mortality table until 2006” is simply wrong. A100 percent female table is still a sex-blended mortality table; the blending just assumes zero percent men. What makes it a sex-blended table is that the same assumptions are used for everyone, as opposed to having different tables to calculate benefits for men and women.
In light of our conclusion, we do not address the charging parties’ claim that respondents had a separate duty to bargain over the effects of implementing the new mortality table. | [
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T. M. Kavanagh, C. J.
On February 15, 1961, Sandra Prentkiewicz, a minor, instituted suit in the circuit court for the county of Muskegon, by her next friend, to recover for damages sustained while riding as a passenger in an automobile owned by defendant Josephine M. Karp and operated by defendant Marlene Parks. A companion case was also instituted by the parents of the minor to recover for medical expenses and the same was consolidated with the minor’s case on trial.
Plaintiff sought recovery under the statute on the theory of gross negligence on the part of Marlene Parks, driver of the vehicle on the day of the accident, June 26,1959. The following facts are material to the decision in this case:
Josephine Karp, owner of the car here involved, allowed her son Michael Karp, who was home from the service, the use and control of her car. He, together with two other boys and two girls, plaintiff Sandra Prentkiewicz and defendant Marlene Parks, gathered at Sandra’s home. Some beer was consumed and they decided to get some more. Two of the boys did not have a driver’s license. Marlene and Sandra were instructed by Michael to take the other two boys to get the beer, as they appeared to be the only ones who would be able to buy it; all were under the age of 21. Both girls argued over who was to drive. Plaintiff Sandra drove to a store in Muskegon, where the boys purchased a case of beer and put it in the trunk of the car. Marlene Parks insisted on driving back. She had previously driven Michael’s car, although she did not have a driver’s license, and claimed to have been experienced in driving this car, once driving it for 20 miles at speeds up to 115 miles per hour.
. After leaving the store where they purchased the beer, Marlene accelerated the car to 40 or 45 miles per hour on Getty street in the city of Muskegon and to approximately 60 miles per hour on Marquette street. She was asked to slow down by plaintiff, and did so. As the car approached Sheridan drive she made a stop and the car ahead started fast and threw some gravel and stones against the car defendant was driving. At this point Marlene made a remark which was testified to as calling the driver an “idiot.” She was disturbed and excited about the actions of the driver of the car ahead, who had squealed his wheels as he pulled away from the stop. She stated she wanted to make or hear her own wheels squeal; that she liked to hear car wheels squeal; and wondered whether she could make them squeal on the turn she was about to make. She rounded the corner very fast, hit some gravel, ran off to the right side of the road, then all over the road, crashing off a telephone pole, knocking down a speed sign, and then ran off the road and collided with a tree, wrapping the car around the tree and severely injuring plaintiff, who was a passenger in the front seat with her. Defendant Marlene Parks claims not to remember anything after starting to make the turn.
Defendants claim Marlene was an inexperienced driver, and froze, panicked, and pressed her foot on the accelerator rather than the brake. Defendants also claim it was 282 feet from the center of the intersection of Marquette and Sheridan to the point of impact; and that the car after it left the road continued on a straight line to the tree which it struck, and that defendant driver could have turned to the right or left just a few feet and missed the tree, but because of her inexperience she continued to depress the accelerator rather than the brake, so that the car was propelled ahead instead of being stopped.
Defendants contend that as a matter of law defendant driver Parks was not gnilty of gross negligence in her driving and that the injuries suffered by plaintiff were not the proximate result of any wilful or wanton misconduct on the part of defendant driver, and that plaintiff assumed the risk when she rode with an untrained and inexperienced driver.
On the other hand, plaintiff contends there were facts from which the jury might have found gross negligence under the circumstances, and the trial court so found and submitted the question to the jury. The jury returned a verdict in plaintiff’s favor.
Defendants moved for a judgment non obstante veredicto, which was denied by the trial court without opinion. Defendants appeal from the denial of the motion and the judgment.
Defendants claim the facts in this case do not constitute gross negligence as defined by this Court on the basis that there was no persistency, no continuation which would lead an ordinary person to believe that harm would result and that the claimed gross negligence all happened within a period of 3 or 4 seconds so that no warning was available to the driver.
Defendants further contend that if there was any gross negligence in the way in which the driver turned the corner, such had come to rest as the driver still had an opportunity to stop the car had she removed her foot from the accelerator and depressed the brake, or had she turned the steering wheel to the left; that the accident and injuries were not the proximate result of the manner in which the car turned, but the result of the inexperience and lack of proper training of the driver; that under the circumstances the plaintiff assumed the risk for her safe journey and as such should not be entitled to recovery.
The principal question we consider is whether or not defendant Marlene Parks, driver of the car, was guilty of acts which were sufficient to submit the question of gross negligence to the jury.
We have repeatedly held that on appeal from denial of motion for judgment non obstante veredicto, this Court reviews the facts in a light most favorable to the plaintiff. See Anderson v. Gene Deming Motor Sales, Inc., 371 Mich 223; Tacie v. White Motor Co., 368 Mich 521.
The testimony elicited from the witnesses in this case regarding the state of mind of the driver, the speed of the vehicle, the manner in which it was operated, her previous operation of the same car, the demand of a passenger that she slow up, together with other facts brought out, in their totality might well lead reasonable minds to differ as to whether the defendant driver in this case was guilty of gross negligence and whether such negligence was a proximate cause of plaintiff’s injuries.
Applicable to the instant controversy is Justice Talbot Smith’s statement in Stevens v. Stevens, 355 Mich 363, 371, regarding liability under the guest statute:
“It is normally imposed not alone because a host driver violates warnings, not alone because he speeds, not alone because he is inattentive to traffic or the rules of the road. It is imposed because the conduct, usually made up of the sum total of these factors, manifests a high degree of danger, a manifest probability that harm will result therefrom, and an utter disregard of the probable consequences.”
In Turner v. Cotham, 361 Mich 198, this Court held the state of mind of the driver is obviously involved in every action in which a guest passenger alleges gross negligence and that such matter is necessarily a matter of inference from the facts in each case. See, also, Tien v. Barkel, 351 Mich 276, where this Court held that the doubtful case in each instance-calls for jury instructions and jury verdict rather than a verdict by direction of the court.
In this ease the trial court correctly submitted the question of gross negligence to the jury, since reasonable minds could differ as to whether, from the totality of facts, defendant Marlene Parks was guilty of acts constituting gross negligence and whether such acts were a proximate cause of the accident.
Defendant’s contention that plaintiff, as a matter of law, should be barred from recovery because she assumed the risk, when she permitted Marlene to drive, is no longer tenable. See Felgner v. Anderson, 375 Mich 23.
Based on a review of the entire record, we conclude that the trial court was not in error in refusing to direct a verdict for the defendants and in denying defendants’ motions for judgment non obstante veredicto.
The judgment is affirmed. Plaintiffs shall have costs.
Black, Souris, O’Hara, and Adams, JJ., concurred with T. M. Kavanagh, C. J.
Dethmers, Kelly, and Smith, JJ., concurred in result.
CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101). | [
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Dethmers, J.
This is a malpractice suit brought by Joseph D. Kamienieeki as next friend for his 4-year-old daughter, Christine M. Kamienieeki, through and by his attorney, Earl T. Prosser, on February 15, 1961. The attorney filed a declaration on March 15, 1961. On March 25, 1961, defendants filed their answer. On November 8, 1962, the court filed a summary of the results of a pretrial conference. Although no reference is made therein to the matter of appointment of a next friend for plaintiff, the attorney for plaintiff says that he then learned that, through inadvertence, no petition for appointment of a next friend or guardian had been filed and moved, on the ground that the court was, therefore, without jurisdiction, for a nonsuit. That motion was denied. On January 11, 1963, this Court denied plaintiff’s application for a writ of mandamus to restrain the trial court from going to trial for the reason just stated. At time of pretrial, the court said it would appoint one John L. Potter, an attorney, as plaintiff’s next friend. On the date set for trial, January 21, 1963, plaintiff’s attorney informed the court that the child’s parents had told him not to proceed with the trial. This was apparently due to the court’s having denied a motion to add new parties defendant, which also appears to account for plaintiff’s motion for nonsuit, which was denied. The court then asked the father, who had instituted this suit and was named as next friend in the declaration and who was then present in court, whether he wished to act as next friend and he answered that he did not. The court then stated that he was appointing attorney John L. Potter, present in court, next friend, as he had announced at pretrial that he would do. This occurred before the trial commenced. At the conclusion of the trial, 3 days later, on January 24, 1963, an order was presented to and signed by the judge and entered, appointing Potter next friend, nunc pro tunc, as of January 21, 1963, when the trial had commenced.
Under GCR 1963, 504.1(1), plaintiff may dismiss his action without order of the court or stipulation only if done before defendant has filed an answer. Such was the requirement of Court Rule No 38 of the old rules, construed in Pear v. Graham, 258 Mich 161. It was there held that the rule covered both plaintiff’s motion to dismiss and application for nonsuit, and that denial thereof, under circumstances similar to those at bar, was not an abuse of discretion. Denial of plaintiff’s motion for nonsuit, made after defendants’ answer had been filed in the instant case, was not error.
The court’s making and entry, after trial, of the written nunc pro tunc order appointing next friend was not error inasmuch as the judge had orally made the identical order, in open court, before trial. Freeman v. Wayne Probate Judge, 230 Mich 455.
The validity of the proceedings and jurisdiction of the court in the premises is not defeated by the fact that a next friend had not been appointed at an earlier stage in the proceedings. Kees v. Maxim, 99 Mich 493.
We hold, accordingly, that there was no reversible error committed in connection with the matter of appointment of next friend nor in proceeding to trial as done here.
The second statement of questions involved in this appeal in plaintiff’s brief, reads as follows:
“Is it reversible error for a trial court to exercise undue interference and severe attitude towards plaintiff’s counsel which hindered attorney-client relationship, resulting in plaintiff’s refusing to return to court and impeding proper presentation of the cause by plaintiff’s counsel.”
In the brief’s statement of facts it appears that some controversy arose between the.court and plaintiff’s counsel as to whether the court had jurisdiction and could proceed to trial under the situation relating to next friend, as above outlined, and as to whether counsel was the attorney for plaintiff, which he then disclaimed, or could withdraw from the case, inasmuch as he had no arrangement with the next friend appointed by the court. The court ordered the trial to proceed and counsel to act as plaintiff’s attorney, and indicated that counsel was coming close to contempt of court. We think counsel’s attempt to play horse with the court after starting a case for plaintiff and then pretending, after denial of his motion for nonsuit, that he had no client and no case in court, bordered on just exactly that. In bis brief, under tbe heading of argument of the last above stated question, the following appears:
“Plaintiff appellants believe that they have accurately set forth in this brief under Statement of Facts the events which took place between the trial court and plaintiff’s counsel. However, we do not believe that recounting these events or discussion of case law in relation to same, would serve any precedential purpose, nor would any benefit accrue to the bench, bar, or the public in the reviewing the evidence and law upon this subject, as the transcript of evidence in the brief appendix of what transpired in the trial court, speaks for itself.”
We agree that neither bench, nor bar, nor the public would be benefited, nor would any precedential purpose be served by a setting forth or discussion of the colloquy between court and counsel in this connection. Suffice it to say that after examination of the record in this nonjury case and of plaintiff’s claims of error in that regard, we find no reversible error.
The judgment for defendants is affirmed, with costs to them.
T. M. Kavanagh, C. J., and Kelly, Souris, Smith, O’Hara, and Adams, JJ., concurred with Deth-MERS, J.
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Voelker, J.
(for affirmance). On December 22, 1948, Peter Van Dorpel a 65-year-old widower with out dependents was working at the job he had followed for upwards of 5 years: painting steel beams and angle irons for his employer. When painting heavy steel beams it was the practice to rest a number of beams on steel shophorses, attaching the one being painted to an overhead electric chain hoist, which from time to time could be operated for ease in maneuvering or turning the beam on which a man was working. On the day in question, as one of the beams was being turned on the chain hoist, the chain broke and the beam fell, striking the right leg of Peter Van Dorpel and forcing another beam against his right hand, with which he painted. ,
In the accident the right leg was badly crushed and the 4 fingers of the right hand were dismembered at the palm. During subsequent hospitalization it was deemed necessary on January 18, 1949, to amputate the leg above the knee. In due course Mr. Van Dor-pel was paid compensation on the basis of specific losses of members of the body in accordance with the schedules as they then existed, namely, for the loss of 4 fingers and a leg. At the expiration of this period the payments were stopped and Mr. Van Dor-pel applied for further compensation. In an awárd dated May 10, 1955, the hearing officer found that the claimant “has a further total disability above and beyond the specific losses suffered in the, accidental personal injury” of December 22, 1948,' and further compensation was ordered.
Prom this award the defendant company and its insurer sought review, and on April 13, 1956, a divided appeal board affirmed the award, modifying-it to provide that compensation should not exceed 750 weeks from the date of injury. Prom this decision the defendants applied to this Court for leave to appeal, which was granted. Por convenience hereafter the 2 corporate appellants will be referred to in the third person singular.
The material facts as to the injury and extent of disability are not in dispute. The thumb was not involved and there were no other injuries or complications. Healing recovery from the amputation was normal. There was medical and other testimony that the claimant had lost the industrial use of his hand and had difficulty in walking, dressing and feeding himself. No question is presented as to whether or not Peter Yan Dorpel is in fact totally and permanently disabled from any further industrial employment. All are agreed that he is. The sole question for our determination is the narrow legal one of whether or not recovery for specific losses under part 2, § 10 of the act operates as a legal bar to any additional recovery under section 9.
Since its enactment in this State in 1912, section 9 of part 2 of the workmen’s compensation act has provided for compensation for total incapacity and section 10 has provided for compensation for partial incapacity and also for enumerated specific losses of members of the body, certain enumerated combined losses also there being declared to result in total disability. Despite occasional amendments to both sections, the basic design of each has remained substantially unchanged.
At the time of this accident the applicable portion of section 9, after stating the weekly payments for total incapacity for work, read as follows:
“And in no case shall the period covered by such compensation be greater than 500 weeks from the date of the injury, nor shall the total amount of all compensation exceed $10,500.00, except for permanent and total disability, when the compensation shall be paid for 750 weeks from the date of the injury.”
Likewise section. 10 :
“In cases included by the following schedule, the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specifiéd therein, to-wit
There then follows the list of specific losses of members of the body coming within the schedule for which payment must be made for a specified number of weeks depending upon the particular member or members lost. In December, 1948, this schedule provided for a total of 100 weeks for the loss of the first, second, third and fourth fingers, and further provided for 200 weeks for the loss of a leg.
It is the contention of the appellant that the payment of compensation for the scheduled number of weeks provided by section 10 for the specific loss of 4 fingers of the right hand and the loss of the right leg acts as a permanent legal bar and limitation to the allowance of any further or other compensation -whatever to the claimant, regardless of his condition or state of recovery or inability to work at the end of that time. In other words appellant claims that these provisions of section 10 set both the maximum as well as the minimum of compensation payments allowable and that in no event may a claimant later seek recovery for total disability for such injuries and losses under section 9.
In support of his position he cites as bearing on this point 5 cases. They are: Limron v. Blair (1914), 181 Mich 76 (5 NCCA 866); Curtis v. Hayes Wheel Company (1920), 211 Mich 260; Addison v. W. E. Wood Co. (1919), 207 Mich 319; Stackhouse v. General Motors Corp. (1939), 290 Mich 249; and Clements v. Chrysler Corporation (1948), 321 Mich 558.
In his brief and argument appellee attempts to distinguish appellant’s cases; he also hints but does not quite bring himself to say that some of them are bad law; and he further attempts to differ his situation from that of the Curtis Case by urging that here we have multiple grave cumulative losses from a common accident, amounting in fact to admitted total disability, whereas there there was but the loss of a single member. He also claims that he is entitled to recover total disability under section 10 for the combined loss of a hand and leg, a proposition anticipated, argued and denied by the appellant.
Of the cases cited by appellant we believe the Curtis Case, decided in 1920, is the one most squarely in point. There the applicant suffered an injury to his leg necessitating amputation between 4 and 5 inches below the knee joint. Agreed compensation was paid for the specific loss of a foot for the total number of weeks then provided. Following this the applicant filed a petition for further compensation, alleging nonrecovery and continued incapacity to work. After a hearing the board found that the total incapacity to work existed and made an award accordingly.
In vacating that portion of the award allowing’ compensation beyond the number of weeks then allowed for specific loss under section 10, this Court there said (p 264) :
“This leads to a careful consideration of the several provisions of sections 9 and 10, part 2 of the act. * * * Section 9 provides for compensation in cases where the incapacity for work is total. Applicant is entitled to recover under it until the time when his foot was amputated. Thereafter his claim comes under the provisions of section 10 which specifically allows ‘For the loss of a foot, 60% of average weekly wages during 125 weeks.’ As soon as the amputation was performed, he became disabled by the loss of his foot. He suffered no other injury than that which resulted in the amputation. As the act provides specific compensation for the loss of a foot, we are of the opinion that all liability of defendants ceased when payment was made for the full term of 125 weeks. These specific items of compensation fixed by the act must control when no other disability than such as results from the removal of the member ■exists. To hold otherwise would, so far as the employer is concerned, render this provision nugatory and of no effect. Should the employee recover from the effects of the amputation in a few weeks and be able to resume his employment, the payments secured to him on account thereof are in no way affected but continue during the term fixed. To hold that when his recovery is not fully completed at the expiration of the stated term he may present a claim for further compensation under section 9, would give him an advantage not contemplated in the act.” (Italics ours.)
At the outset we must record the fact that the Court which signed the unanimous opinion in the Curtis Case had already done much to promulgate a broad and liberal interpretation of the workmen’s compensation act and continued to make many notable contributions in that direction after the Curtis Case was decided. Both fairness and candor demand that this be freely acknowledged. But few courts are infallible, especially when they are construing comparatively new legislation; and sometimes the full implications of a given interpretation of a statute can best be appraised only by living with it. Judges are no less fallible than other men and no originality is claimed when we suggest that sometimes in this area, as in other areas of life, experience is often the best teacher. In the light of this ac knowledgment and these observations, then, we shall proceed to appraise the Curtis Case.
After 37 years we now make bold to ask: a contrary rule gives the luckless amputee an “advantage” over whom? Did the Curtis Case mean to announce some sort of rule of “turn-about-is-fair-play” in that since, fortunately, many injured workmen do recover and are able to return to work before the minimum number of weeks allowed for specific loss runs out that therefore those who do not should cheerfully accept their fate in order to roughly balance out a presumed inequity? Or did it mean to suggest that amputees possess some mysterious “advantage” over those unfortunate injured workmen who are denied the heady distinction and presumed aesthetic delight inherent in a neatly-executed surgical amputation? And in what way would a different rule have rendered section 10 “nugatory”? In what way would a different rule have given an unrecovered or disabled amputee an “advantage” over his brother workers who were hardy enough or fortunate enough to recover and return to work at the time or even before their minimum number of weeks had run out? How can any workman who cannot work ever possess any “advantage” over one who can?
These are some of the questions which we are afraid were not hinted at, much less grappled with, in the Curtis Case. Rather is it not true that under such a rule as there declared all the advantage lies instead with those injured workmen who are stubborn or better advised or lucky enough to refuse or escape amputation? Rather did not the Curtis Case itself, however unwittingly, in one swoop “amputate” an important area of the act and render it “nugatory”?
There is more to be said. We mean to cast no aspersion on a dedicated and hard-working medical profession when we suggest that such a rule does little or nothing to discourage employers and their insurers from favoring a prognosis of early amputa-, tion. It also cannot help but compel some surgeons’ to at times feel not unlike reluctant commercial sculptors. That way, too, long and expensive therapy to save injured members may thus be avoided.1 And, as we have suggested, the rule of the Curtis Case tends likewise to encourage stubborn, brave— or well-advised — injured workmen to grin and bear it, and to cling at almost any cost in pain and suffer-1 ing to their injured members for economic rather than medical reasons. None of this is healthy or. good for anyone concerned, least of all for the injured employee. Thus Peter Van Dorpel in this case would have been economically better off if he would have grinned and borne it and, in his state of shock and confusion, refused or managed to avoid amputation of his crushed leg — just as, under the “hand” decisions of this Court, he would have been economically better off if the fateful steel girder which bore his name had struck his hand a few inches higher. Under the Curtis Case, too, he would have been better off if he had received in addition a slight concussion or strain or wrench or blow — or else dreamed one up; something, anything, to take the curse off his singular misfortune in merely neatly losing a leg and 4 fingers of his working hand, slick and clean, and then daring to come in and swear that that was all.
We can conceive of many situations in which the workman who receives injuries resulting in specific .losses aggregating less than a statutory finding of total disability may in fact be totally disabled. Thus the piccolo player or tailor or night club pianist or anyone else who must normally use all his fingers may be forever out of business over the loss of a few of the wrong'fingers (and yet fall far short of the statutory combination of declared total disability) . Again that same individual may instead lose both legs (thus gaining total statutory disability)' and actually be able at an early date to go on with his usual work unperturbed. Now we do not mean to quarrel with the notion of statutorily declared minimums up to total disability, which has much to commend it; rather we seek to demonstrate that the only fair and sensible rule in cases of nonrecovery or inability to work following specific loss of members that may fall short of declared total disability is, as in all other cases, to inquire into the facts in each case: can the injured workman in fact continue to work and earn wages in the employment at which he was engaged when injured? (See Levanen v. Seneca Copper Corporation, 227 Mich 592, 601.)
As we have already noted, plaintiff not only seeks to distinguish the Curtis Case on its facts but to offer a rather novel distinction between that case and those — such as this one — where there are multiple specific losses resulting from a common accident. To such lengths has the Curtis Case driven imaginative and zealous counsel. We admire plaintiff’s resource and appreciate his ingenuity, but we refuse to grasp at this shyly-proffered legal straw. In our view the ultimate question in this case and in all situations akin to this one is not — and never should be — whether the injured workman suffered one or a dozen specific losses. In our view the sole question in all of these cases should be: after the passage of the number of weeks allowed for the specific loss or losses falling short of declared total disability, can the injured workman go back to work? If he can — and 'fortunately he usually does — then well and good; if he cannot, and if there are competent proofs to support his claim of continuing disability, then his compensation should be continued. It is as simple as that, and we do not hesitate to brush aside those decided cases which hold or appear to hold to the contrary, including at long last the unfortunate Curtis Case.
Such a construction as was made in the Curtis Case is to import into the act a rigidity and disregard for the common experience of mankind and the endless variety of jobs that men must perform to earn a living which we cannot believe the members of the legislature ever intended. We cannot believe that by section 10 a legislative body sitting in Lansing meant so cavalierly and irrevocably to separate the wounded industrial sheep from the goats; to appear to say so surely that the loss of so many inches or pounds of human flesh, and gristle and bone shall entitle one man to one thing and no more, regardless of his condition and ability to work at the end of that time, and that the loss of so many other inches or pounds would entitle the next man to a finding of so many more weeks up to total disability, regardless of his original and subsequent condition and ability to work. Did the legislature mean to be lavishly liberal on the one hand and deliberately niggardly on the other? Or rather did it not there intend to consult broad industrial experience and lay down an irreducible minimum number of weeks allowable for certain common specific losses — thus removing the issue from costly and delaying litigation at a time when the workman was most helpless and his need the greatest — leaving the question of further disability and compensation to be determined on proofs made at a hearing in an orderly manner (in which the healed workman could be present and intelligently participate) in the light of his recovery or lack of it, having due regard for the nature and extent of the injuries, the then capacities and general condition of the workman, and the kind of a job he had before his injury? It is our educated guess that it meant the latter..
“The usual statute provides for both total disability and specific loss * * * without expressly saying- that either shall be exclusive,” Larson says beginning on page 45 of volume 2 of his work on workmen’s compensation. “It could therefore be argued that, since the act must be given a liberal construction,” he continues, “destruction of the more favorable remedy should not be read into the act by implication in a case where claimant is able to prove a case coming under either heading. * * * To refuse total disability benefits in such a case * * * has the effect of ruling out the inability-to-get-work element in a listed group of injuries which just happen to take the form of a neatly classifiable loss of a member. * * * Logically there is no reason to make the distinction [whether total disability exists] turn on the physical extension of effects beyond the lost member. * * * The above reasoning- was followed in Cox v. Black Diamond Coal Mining Company (E D Tenn), 93 E Supp 685, which disposed of the issue as.a straightforward matter of statutory construction, there being 2 parallel benefits provided for uncomplicated loss * * * and the rule of liberal construction requiring that claimant be allowed the more favorable.”
In his conclusion the appellant argues forcefully and at length that legislative silence and inaction for 37 years after the Curtis Case amounts to a tacit recognition of its soundness by which we must irrevocably be bound. Now this beguiling doctrine of legislative assent by silence possesses a certain undeniable logic and charm. Nor are we oblivious to the flattery implicit therein; double flattery, in fact; flattery both to the profound learning and wisdom of the particular supreme court which has spoken, and flattery to a presumably alert and eagerly responsive
State legislature. One pictures the legislators of our various States periodically clamoring and elbowing each other in their zeal to get at the pearls of wisdom embalmed in the latest decisions and advance sheets of their respective supreme courts- — and thenceforth indicating their unbounded approval by a vast and permanent silence.
Yet there are several dark shadows in this picture. For one, it suggests a legislative passion for reading and heeding the decisions of our supreme courts which we suspect may be scarcely borne out by the facts. For another, pushed too far such a doctrine suggests the interesting proposition that it is the legislatures which have now become the ultimate courts of last resort in our various States; that if they delay long enough to correct our errors those errors thus become both respectable and immutably frozen; and, finally, the larger and more dismal corollary that if enough people persist long enough in ignoring an injustice it thereby becomes just. We reject as both un-Christian and legally unsound the hopeless doctrine that this Court is shackled and helpless to redeem itself from its own original sin, however or by whomever long condoned.
Courts throughout the land have long split over this doctrine of legislative acquiescence by silence. The usual arguments for recognizing it are that it gives stability and sureness to the law; that “rights” thus acquired can thus only be disturbed at regular and predictable intervals by but one branch of the government, the legislative; and, finally, that to disregard the doctrine amounts to judicial legislating. Now we recognize that a court should not lightly overrule an interpretation of a statute that has been the law for 37 years, but we also see little justice or utility in continuing to give stability or sureness to an unfortunate rule of law; nor do we understand that employers or their insurance carriers have gained any vested “rights” in the interpretation of this statute; nor do we think that the reinterpretation of a statute in the light of long experience with an unfortunate interpretation constitutes judicial legislating.
This case involves an interpretation of a statute which is silent on the precise issue involved. This Court 37 years ago decided what it thought the correct interpretation should he. We happen to disagree with that old interpretation and wish to make a new interpretation, for the reasons herein stated. It is suggested that we should not do this because, whether the original interpretation was right or wrong, inaction by the legislature since it was handed down constitutes a sort of informal post-enactment declaration of legislative assent thereto possessing the binding effect of law; and that any new and variant interpretation here and now would on that account constitute “judicial legislation.”
To our mind the doctrine implicit in this kind of reasoning constitutes a surrender of the judicial function to a legislative body. In the final analysis the objection may fairly be stated thus: Our Court interprets a statute; whether right or wrong our decision henceforth becomes judicially immutable and we are powerless to change it; there is only 1 way it can be changed; if we are wrong we must wait for the legislature to tell us so; if by its long silence and inaction the legislature does not speak out and tell us we are wrong then it has perforce by the same token told us we are right; in any case this Court-is forever fettered and powerless to reinterpret the statute in question. "We have instead delegated that function to the legislature. This curious doctrine can be boiled down even more: right or wrong in the Curtis Case, we are helpless to change it.
Such a doctrine is to squarely place the legislature in the position of a super supreme court. Wo also consider it an abdication of judicial responsibility. We reject such a doctrine flatly along with the sort of mechanistic thinking that can arrive at such an ironic impassé. This doctrine has irreverently been called the “one shot” theory of legislative interpretation. We ourselves brand it a Rip-Yan-Winkle doctrine of judicial stagnation and inertia. We happen strongly to disagree with it and in this we are not alone.
Mr. Justice Smith has had occasion to advert to this doctrine of legislative acquiescence by silence in his recent brilliant opinion in the Sheppard Case (Sheppard v. Michigan National Bank, 348 Mich 577 at 599, 600). We can best let him speak for himself with his characteristic eloquence and scholarship, thus:
“In shortest terms, bluntly put, the argument is that silence gives consent. It is suggested that we accord this catch phrase the dignity of a legal axiom. In its profundities, its cogency, its symmetry and its expression of fundamental truth, we are to find the answer to a complex question of statutory construction affecting the lives of thousands and our whole industrial economy. There is not a shred of justification therefor under these circumstances. Silence at best is ambiguous. Even in the law of evidence more than mere silence must be shown to impress upon the trier that silence was the equivalent of consent. See 4 Wigmore on Evidence (3d ed 1940), p 70; Lenhoff’s Comments, Cases and Materials on Legislation, 816. It was Mr. Justice Rutledge, concurring in Cleveland v. United States, 329 US 14 (67 S Ct 13, 91 L ed 12), who put the matter in its proper setting (pp 22-24) :
“ ‘Notwithstanding recent tendency, the idea cannot always be accepted that congress, by remaining silent and taking no affirmative action in repudiation, gives approval to judicial misconstruction of its en- aetments. See Girouard v. United States, 328 US 61, 69 (68 S Ct 826, 90 L ed 1084). It is perhaps too late now to deny that, legislatively speaking as in ordinary life, silence in some instances may give consent. But it would be going even farther beyond reason and common experience to maintain, as there are signs we may be by way of doing, that in legislation any more than in other affairs silence or non-action always is acquiescence equivalent to action.
“ ‘There are vast differences between legislating-by doing nothing and legislating by positive enactment, both in the processes by which the will of congress is derived and stated and in the clarity and certainty of the expression of its will. And there are many reasons, other than to indicate approval of what the courts have done, why congress may fail to take affirmative action to repudiate their misconstruction of its duly-adopted laws. Among them may be the sheer pressure of other and more important business. See Moore v. Cleveland R. Co. (CCA), 108 F2d 656, 660. At times political considerations may work to forbid taking corrective action. And in such cases, as well as others, there may be a strong and proper tendency to trust to the courts to correct their own errors, see Girouard v. United States, supra, at 69, as they ought to do when experience has confirmed or demonstrated the errors’ existence.’ ”
In Bricker v. Green, 313 Mich 218 (163 ALR 697) (wherein this Court unanimously abandoned the old doctrine of imputed negligence), we quoted approvingly and at considerable length from Mr. Justice Cardozo on this broad general subject of a court overruling its prior decisions. We are aware that he was not then speaking on our precise point of legislative acquiescence, but his remarks are peculiarly apt to our present problem, and we can see no basic difference between a court overruling its former case law and overruling its former interpretation of a statute. Bad law no less ceases to be bad law, however the accident of its birth. We shall here content ourselves by taking just a portion from that long quotation (p 234) :
“But I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment.”
Justice Cardozo then in turn quotes approvingly from a Connecticut case, there cited:
“ ‘That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the legislature.’ ”
Justice Cardozo then concludes:
“If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.”
In Arrow Builders Supply Corp. v. Iltidson Terrace Apartments, Inc. (1954), 15 NJ 418, 426 (105 A2d 387), Mr. Justice Jacobs had this to say about the doctrine of legislative acquiescence by silence, an opinion in which, incidentally, he was joined by Chief Justice Vanderbilt and by Mr. Justice Brennan, presently of the United States supreme court:
“We are satisfied that the construction of section 3 in the Hegeman-Harris Case unduly restricted the legislative objectives; indeed, the brief of the respondent in the instant matter takes no position to the contrary. Instead it confines itself to the argument that since the decision in H eg eman-H arris was rendered over 30 years ago and no explicit legislative action has been taken to nullify it, this court should now reaffirm it as the law of the State. * * * Its contention rests entirely on the concomitant principles of stare decisis and legislative acquiescence in the judicial interpretation of statutes. To the extent that these principles afford measures of stability and predictability in our legal system they are of great social value. They undoubtedly dictate the view that adherence to precedent ‘should be the rule and not the exception.’ Cardozo, The Nature of the Judicial Process, p 149 (1921). But they are not absolutes and under cogent circumstances they must give way to overriding considerations which recognize that the purpose of our legal system is to serve justly the needs of present day society and, to that end, judges remain free to re-examine earlier determinations and correct judicial errors whether they be their own or those of their predecessors. In a lecture delivered before the Association of the Bar of the City of New York, Justice Douglas had occasion to collect the significant number of cases in which the United States supreme court has expressly overruled precedents; included were 5 recent instances which involved the discarding of earlier statutory interpretations. See Douglas, Stare Decisis 20 (1949). Similarly, this court has, on several ocea- sions within the past 5 years, been called upon to overrule earlier decisions, some of which embodied erroneous statutory interpretations. [Citing many cases.]”
The court then refers to and quotes from a 1950 New Jersey case, there cited as follows (p 427):
“It is urged on us that the construction put on the statute by the O’Connor Case became a part of the statute which we may not change, that power residing solely in the legislature. However this rule of legislative acquiescence in the well-settled interpretation of a statute is but one of several principles that may guide a court in arriving at the true meaning of a legislative act. It is no more than an aid in statutory construction and it is merely one factor in the total effort to give meaning to the language of the statute. Moreover, it has been held that ‘one decision construing an act does not approach the dignity of a well-settled interpretation,’ United States v. Raynor (1938), 302 US 540, 552 (58 S Ct 353, 358, 82 L ed 413, 420). The doctrine here contended for is not uniformly controlling; it must not be permitted to fetter the courts in their search for light. The principle of stare decisis which lies behind the doctrine is entitled to respect, but it must not blind us to realities; it is not an idol to be worshipped in following either a judicial precedent or an antecedent statutory construction.”
Finally we refer but briefly to the already historic recent decision in Brown v. Board of Education of Topeka, 347 US 483 (74 S Ct 686, 98 L ed 873, 38 ALR2d 1180) (the school desegregation case) wherein the United States supreme court held that the “separate but equal” doctrine long ago adopted in Plessy v. Ferguson, 163 US 537 (16 S Ct 1138, 41 L ed 256) no longer had any place in the field of public education (p 495). Between those 2 decisions the Constitution had not changed. Nothing had changed but the hearts and minds of men.
A little sense of proportion and realism in this area might not be amiss. The plain fact is that courts of last resort everywhere constantly engage in a form of “judicial legislating” when they are confronted — as they so often are — by statutory or other provisions of ambiguous or uncertain meaning. Such judicial interpretations often in effect add words to a statute. Must we act at our peril that we might possibly be wrong? Some judges solemnly declare that we must. Yet far from being the doctrine of humility and keeping our places that they would have it appear, is not this essentially to preach the gospel of judicial infallibility? Scarcely a term of this Court passes that all of us are not obliged to interpret unclear statutes. Occasionally we must reinterpret them. It is one of our primary functions ; that’s what we are here for. It is only when a judge ignores or flies in the face of a positive and unambiguous statutory enactment that he may justly be accused of judicial legislating, in the bad sense. That is not our case.
No living man can possibly measure the amount of poverty and pain and human indignity suffered by Michigan workmen and their families because of the unfortunate Curtis Case. It has lain across the jugular vein of workmen’s compensation' far too long. Rather than attempt to distinguish that case —as we are aware we might — we prefer to sweep away the last vestiges of the Curtis Case and at long last align Michigan squarely behind the more modern and liberal decisions which refuse to limit workmen’s compensation benefits to the scheduled allowance. We believe it is time for the Curtis Case to go.
In the final analysis we have here — as Larson has pointed out — a situation where the legislature has not clearly expressed its intent. It is - unfortunate that the highest court in one of the greatest industrial States in the nation should 37 years ago have adopted a narrow construction of that unexpressed intent. We have long conceived the workmen’s compensation acts to be one of the great pioneer landmarks in humanitarian social legislation in the Anglo-American world. In the bold sweeping away of ancient legal cobwebs and in the grandeur of its concepts and declared purposes these acts were almost as revolutionary, in their way, as was the surging Industrial Revolution itself that preceded their inevitable birth. These acts set the pace and led the way for much salutary social legislation that followed. It is not too much to say that they charted' a whole brave new legal world.
In our view it should go almost without saying that as new interpretative issues should arise judicially under these acts all fair and reasonable doubts should be resolved in favor of upholding the basic purposes of the legislation, in this case compensating in some measure the broken and injured workman who cannot work.
Our respect for our predecessors who sat here during the initial interpretative years of our workmen’s compensation act is enhanced rather than diminished by the convictions here expressed. Were they yet here, men of such stamp undoubtedly would be among the first to renounce “a doctrine of disability of self-correction” (“This Court, unlike the House of Lords, has from the beginning rejected a doctrine of disability at self-correction.” Helvering v. Hallock, 309 US 106, 121 [60 S Ct 444, 84 L ed 604, 125 ALR 1368].) and the first to announce their willingness to consider a contention that they may have possibly erred on an earlier occasion. Indeed, Mr. Justice Nelson Sharpe, writer of the opinion in the Curtis Case, did not hesitate to join in an historic and far-reaching reversal of that which he had twice attested in earlier years. (Compare Kavanaugh v. Rabior, 222 Mich 68; and Kavanaugh v. Baird, 241 Mich 240 with Hilt v. Weber, 252 Mich 198 [71 ALR 1238].) If the present situation calls for a declaration of fealty to the great works of these men, we hereby declare it — along with the prayer that our errors in future years may be as few as theirs.
In view of our decision we shall not consider the interesting companion question whether recovery might have been had here under section 10 for the combined loss of a leg and a hand. The award of the appeal board is affirmed, with costs. The appellant should of course have credit for compensation already paid.
Smith, Edwards and Black, JJ., concurred with Voelker, J.
Sharpe, J.
(for reversal). It is conceded that plaintiff’s injury arose out of and in the course of his employment, and as a result of this injury plaintiff suffered a loss of the 4 fingers of his right hand and the loss of his right leg by amputation just above the knee. It does not appear that plaintiff has suffered any conditions beyond the specific losses suffered in the accidental personal injury on December 22,1948.
It appears that defendant insurance company paid plaintiff compensation of 100 weeks for the loss of his 4 fingers and 200 weeks for the loss of his right leg, as is provided in part 2, § 10 of the workmen’s compensation act, the amount of $6,300 for the specific losses sustained. At the conclusion of the 300-week period plaintiff appealed for further compensation, which was granted April 13, 1956, and provided that compensation should not exceed 750 weeks from the date of injury.
Upon leave being granted, defendants’ appeal and urge that plaintiff having been paid for specific losses under CL 1948, § 412.10 (Stat Ann 1947 Cum Supp § 17.160) of the act, he is not entitled to further compensation as is provided under CL 1948, §412.9 (Stat Ann 1947 Cum Supp §17.159). It should be noted that part 2, § 9 of the act, provides for compensation for total incapacity, while section 10 provides for enumerated specific losses of members of the body. The precise legal question in the case at bar was before this Court in Curtis v. Hayes Wheel Co., 211 Mich 260. In that case plaintiff suffered an industrial injury, necessitating the amputation of his left foot 4 or 5 inches below the knee. He was paid compensation for the specific loss as was provided in section 10 then in effect. He sought additional compensation, claiming total incapacity under section 9 of the act. We there said (pp 264, 265):
“This leads to a careful consideration of the several provisions of sections 9 and 10, part 2, of the act (CL 1915, § § 5439, 5440, as amended by PA 1919, No 64). Section 9 provides for compensation in cases where the incapacity for work is total. Applicant is entitled to recover under it until the time when his foot was amputated. Thereafter his claim comes under the provisions of section 10 which specifically allows ‘For the loss of a foot, 60% of average weekly wages during 125 weeks.’ As soon as the amputation was performed, he became disabled by the loss of his foot. He suffered no other injury than that which resulted in the amputation. As the act provides specific compensation for the loss of a foot/we are of the opinion that all liability of defendants ceased when payment was made for the full term of 125 toeelcs. These specific items of compensation fixed by the act must control when no other disability than such as results from the removal of the member exists. To hold otherwise would, so far as the employer is concerned, render this provision nugatory and of no effect. Should the employee recover from the effects of the amputation in a few weeks and he able to resume his employment, the payments secured to him on account thereof are in no way affected but continue during the term fixed. To hold that when his recovery is not fully completed at the expiration of the stated term he may present a claim for further compensation under section 9, would give him an advantage not contemplated in the act. As before stated, the applicant is entitled to recover for total disability up to the time when his foot was removed and, there being no claim of disablement other than that incident to such removal, payment for 125 weeks thereafter. * * *
“Insofar as it seemed possible, the act makes the allowance certain. The degree and duration of the disability and the weekly earnings of the injured party must be determined as matters of fact by the board. When the disability is due to the lack of a member, the act relieves the board of determining its extent and specifically fixes the period for which compensation shall be paid. Should the injured party be unable to resume his employment at the expiration of such period, he is but in the same condition as one who has received an allowance for total disability, after the maximum amount provided therefor has been paid.
“The conclusion reached is but that stated by Mr. Justice Steere in Addison v. W. E. Wood Co., 207 Mich 319. We might have contented ourselves with a reference to that decision, but the question here presented was not therein directly involved. The case of Limron v. Blair, 181 Mich 76 (5 NCCA 866), relied on by counsel for applicant, is distinguished in the Addison Case. If it can be said to state a rule of construction at variance with the views herein expressed, it is to that extent overruled.” (Emphasis supplied.)
See, also, Stackhouse v. General Motors Corp., 290 Mich 249; Clements v. Chrysler Corp., 321 Mich 558.
Mr. Justice Voelker admits that the Curtis Case must be overruled if plaintiff is to receive compensation under section 9 of the act. I shall not attempt to answer the reasoning used by Mr. Justice Voel-ker, except to say that it is a desire to give plaintiff double compensation contrary to the statute. It has been 37 years since the Curtis Case was decided. We must assume that the legislature was and is aware of that decision, yet no action has been taken since by the legislature to amend the compensation law to give effect to what Justice Voelker is attempting to do in this case. We must conclude that the legislature is satisfied with our interpretation of the statute as outlined in the Curtis Case.
There are 3 departments of government in Michigan — the executive, the legislative, and the judicial. It is an accepted principle of law that no department of government should encroach upon the duties and responsibilities of another department. It is the duty of the legislature to enact such laws as it deems, best for the people of this State. It is the duty of the judicial branch of the government to interpret the laws enacted by the legislature. We should not attempt judicial legislation.
I conclude this opinion by staling that if plaintiff is to recover in this case he must point out with reasonable certainty the law that gives him a valid claim. It cannot be done in the case at bar. Moreover, if the law needs changing, then such action should be taken by the legislature.
The award should be vacated, with costs.
Dethmers, C. J., and Kelly and Carr, JJ., concurred with Sharpe, J.
See OL 1948, §412.9 (Stat Ann 1947 Cum Supp §17.159).— Keporter.
See CL 1948, §412.10 (Stat Ana 1947 Cum Supp §17.160).— Reporter.
2 Larson, Workmen’s Compensation Law, § 58.20, pp 45, 46.— Reporter.
The Nature of the Judicial Process, pp 142, 150.—Reporter.
Dwy v. Connecticut Co., 89 Conn 74, 99 (92 A 883, LRA1915E, 800, Ann Cas 1918D, 270).—Reporter.
George A. Mills Co. v. Hegeman-Sarris Co., 94 NJ Eq 802 (125 A 127).—Reporter.
Pennsylvania-Leading Seashore Lines v. Board of Public Utility Com’rs, 5 NJ 114 (74 A2d 265).—Reporter.
O’Connor v. Board of Public Utility Com’rs, 129 NJL 263 (29 A2d 390).—Reporter. | [
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Dethmers, J.
Plaintiff brought this suit for himself and 84 others similarly situated, as a class action. They had been milk route operators, employ ees, respectively, of several different Detroit milk distributors, and members of a dairy workers union. A collective bargaining agreement was entered into between the distributors and the union. It provided for a pension plan agreement to be financed by employer contributions of $10 per month for each employee. The pension plan was drafted, it was approved by the union and the commissioner of internal revenue and became operative. Under the plan, the pension fund was placed in control of a pension fund committee, defendant herein, -which had the authority and responsibility of administering the pension program in accord with the terms of the plan. The employers made the contributions as required, for some length of time, in amounts ranging from $320 to $1,010 per covered employee included in the class here involved. Plaintiff alleges that the agreement for employer contributions to the fund was in lieu of a pay raise. The plan provided that plaintiff and all other employees similarly situated would be entitled to share in the fruits and benefits of the pension plan.
After the plan had been in operation for some time plaintiff and the others whom he here represents purchased from their employers the milk routes they had been operating and, as plaintiff says in his brief, changed from employee status to entrepreneur status. Their former employers then ceased making contributions to the pension fund in their behalf. Article 5, § 4, of the pension plan provided, inter alia, as follows:
“Except as provided in article 6, § 2, an individual’s participation in the plan shall terminate and he shall forfeit all service credited to him in the event—
“(a) He quits or is discharged from employment with a participating company and is not rehired by any participating company within 90 days from and after the date he quit or 180 days from and after the date he was discharged.”
After plaintiff and those he represents had purchased their routes, because they then were told by defendant committee that they no longer were employees and, hence, could not become eligible for pensions or other benefits under the plan, they demanded from defendant committee payment to them of the past contributions made to the fund by their employers on their account. Upon refusal, this suit was brought to recover the amount of those contributions.
Defendant moved for summary judgment on the ground that the action was founded upon a written document, namely, the pension plan, and that under its provisions plaintiff had no cause of action such as here asserted. The motion was supported by affidavits, incorporating a copy of the pension plan as an exhibit. The court granted the motion. In its opinion the court stated, inter alia, that plaintiff had terminated his employment voluntarily and that to grant plaintiff and the others the relief sought might jeopardize the actuarial soundness of the plan. The main reason assigned in its opinion, however, for granting defendant’s motion was that there is no provision in the plan supporting plaintiff’s claim in this case. The court quoted from the plan, article 10, § 2, the following:
“The trust fund shall be used to pay benefits as provided in the plan pursuant to authorization by the pension fund committee. No part of the principal or income of the fund shall, in any event, be used for, or diverted to, purposes other than those provided in the plan.”
Plaintiff appeals from the summary judgment for defendant.
Plaintiff first contends that a summary judgment ■ was improper because two statements in the court’s opinion amounted to determination of questions of fact on which plaintiff was entitled to decision after ■ trial on the facts. These two are, as above indicated, that plaintiff and the others quit their employment voluntarily and that allowing them to ■ recover in this case would undermine the actuarial ■soundness of the pension fund. Whether these ■ factual questions be disputed or not, decision there■of would not be decisive of plaintiff’s right to recover. The statements of the court thereon, in its opinion, were completely immaterial and, accordingly, the fact that the answers to those questions might be in dispute did not require a trial, if, as is the ease here, on the undisputed facts, the pleadings and the agreement on which suit is brought, defendant was entitled, as a matter of law, to judgment in its favor. There was, therefore, no error in disposing of the case by summary judgment.
Plaintiff says in his brief, correctly we think, that “the appellant and his compeers are no longer participating employees”; also, that their status has changed from that of employee to that of entrepreneur. We think this plainly brings into operation the above quoted language of article 5, § 4(a), of the pension plan to the effect that plaintiff’s participation in the plan has terminated because he quit his employment and has not been rehired. That means that he cannot share in the pension benefits ’provided for in the plan. There is no provision 'therein for dividing up the fund or a portion thereof "among employees who cease being employees. As the lower court observed, the above quoted language of article 10, § 2, of the plan prohibits use of the pension fund for the purpose here sought by plaintiff.
. Plaintiff says that purchase of routes by a large ¿number of operators and their consequent departure from the ranks of employees was not contemplated when the plan was adopted, and that, accordingly, retention in the fund of the contributions made for them would work an unjust enrichment of the fund at their expense. While the language of the plan evidences no contemplation of such occurrence, neither does it indicate the contrary. As far as contemplations are concerned, article 5, § 4(a), reveals that it was anticipated that there would be some terminations of employee status, for whatever reason, the reasons therefor being left unspecified, apparently because they were considered immaterial. As the trial court said:
“However, in the instant case a reading of the plan does not indicate that the parties ever intended that the plaintiff and persons in his class should have a vested interest in the fund if they should cease under the terms of the plan to become employees.”
Enrichment of the fund strictly in accord with the terms of the plan, and because of occurrences (quits) referred to and covered by its language, cannot be termed unjust enrichment.
Defendant refers to George v. Haber, 343 Mich 218. While, as the trial court noted, it is not on all fours with this case because of differences in the language of the respective pension plans, there is in the opinion of this Court in that case language pertinent here, as follows (pp 227-229):
“Appellants, under the express terms providing for the creation of the trust fund, have no right or interest in such fund. Rather they, like other employees of the company, were beneficiaries only to the extent of the pension or disability benefits to which they might become entitled. * * *
“Under the factual situation presented here the trial court properly denied the relief sought by plaintiffs. Equity may grant relief when necessary to protect the carrying out of the purposes of a trust or to prevent the destruction of, or injury to, trust funds, in the event that altered circumstances create an exigency justifying intervention. Such is not the situation in the case at bar. Plaintiffs are not asking for the protection of the trust fund but, rather, seek the termination of the trust and the distribution of the moneys remaining in the fund in a manner not consistent with the plan and purpose of the parties to the agreements. Such purpose may he accomplished in the manner provided therefor. The Court may not rewrite the contracts here involved.”
Affirmed. Costs to defendant.
Kelly, Souris, Smith, O’Hara, and Adams, JJ., concurred with Dethmers, J.
T. M. Kavanagh, C. J., and Black, J., concurred in result.
See GCR 1963, 117.—Reporter. | [
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Black, J.
Louvenia Johnson and her daughter, Gladys Minnis, owned a home situated on St. Aubin in Detroit. The separate two-car garage on the premises was equipped with old fashioned folding doors. Mrs. Johnson desired to have them replaced with a modern overhead door she could handle. In September of 1958 she purchased such a door from defendant Montgomery, Ward & Co. The door had been supplied to Ward by defendant Fenestra, Inc., and was furnished by the latter for installation on the job. Mrs. Johnson did not know of Fenestra’s part in the transaction until after the date of plaintiff’s injuries. She was told at the time of purchase that “ a man would be out to install it.” By the contract of purchase Ward agreed, for the total consideration of $275.47, as follows:
“We are to supply and instal one 16-foot Strand Steel receding garage door after reworking opening.”
Defendant McQuillan independently contracted with, or was hired by, defendant Fenestra to install the door at the Johnson-Minnis residence. Fenestra, according to the proof, agreed to supply all door parts. McQuillan, according to the proof, agreed to supply all necessary lumber for “working” or “reworking” the garage door opening. McQuillan installed the new door sometime during the month of its purchase. Mrs. Johnson testified that the door worked properly thereafter, and that no trouble with it developed until, some 3 or 4 months next following the installation, the accident occurred which gave rise to this suit. She testified further that the “lip” of the left “rail” or “track,” which carried the door to and supported its “up” position, was bent at the time of installation. She testified that she noticed such bending and called it to defendant McQuillan’s attention. On direct examination she testified:
“Q. To whom was it that you mentioned the matter of the bent rail?
“A. I mentioned it to Mr. McQuillan.
“Q. Himself?
“A. Yes.
“Q. Did Mr. McQuillan say anything to you?
“A. He said just it was okay, there was nothing wrong with it.
’ “Q. On which, railing was that? The one of the railings on the left side of the garage or the one on the right side, as yon faced the big door?
“A. There was one on the left side as you face the alley on the big door.”
On cross-examination she testified:
“Q. Can you describe this bend in the rail for us please ?
“A. It was just the bottom lip of the rail that had the bend in it.”
The plaintiff, a granddaughter of Mrs. Johnson, was 17 years of age on January 30,1959. That day, on request of the grandmother, she attempted to close the door immediately after the grandmother had driven her car into the garage. The door fell on plaintiff, inflicting injuries and damages assessed by the jury at the sum of $15,000.
Plaintiff sued Ward, Fenestra, and McQuillan generally on the theory of actionable negligence and of breach of a legally implied warranty of fitness. Her end position is that Ward by such implied warranty of fitness and breach thereof became liable to her for personal injuries sustained; that Fenestra by supplying defective material and instructions to Mc-Quillan, and McQuillan by defective workmanship, contributed together in causing the door to fall, and that all three defendants became jointly and severally liable for the injuries she sustained when the door fell. The jury agreed with plaintiff and returned a general verdict in amount as above, upon which verdict judgment was entered against the three defendants. They appeal separately.
The proof fully justified the jury’s finding that Fenestra and McQuillan were separately guilty of negligence and that their separate acts of negligence contributed causally to the fall of the door. The jury had a right to find that Fenestra delivered on the job an overhead door, the rail of which was bent at a point on the lip in snch manner as to permit the wheels carrying the door to “run off the track” at an overhead point. As for McQuillan, and quite aside from the proof tending to show that he did not install the door properly after having “reworked” the existing door opening, the jury could find and apparently did that he disregarded Mrs. Johnson’s reference to the bent rail and that he went ahead with assurance to her that “it was okay, there was nothing wrong with it.” All this was sufficient to justify the jury’s verdict as against Fenestra and McQuillan, and to justify the trial judge’s instructions on the issue of liability as charged against them.
We have tested the trial judge’s charge to the jury in array with Fenestra’s allegation that the judge erred “in failing to instruct the jury as to the nonliability of the defendant Fenestra for the acts of an independent contractor and in refusing to give defendant Fenestra’s request to charge No 15 or the equivalent thereof.”
During oral argument counsel for Fenestra conceded frankly that his request No 15 was not a “complete” statement of the law and that the trial judge did not err in refusing to grant same. He did claim that the judge was under affirmative duty to charge the jury as to the law applicable to Fenestra’s “independent contractor” defense of immunity from liability for the acts of McQuillan. Whether the judge was under such affirmative duty need not be discussed (see Sakorraphos v. Eastman Kodak Stores, Inc., 367 Mich 96). The judge’s affirmative duty was that of charging the jury only as to the presented question of negligenec of Fenestra, in delivering an allegedly defective door on the job, and as to the question of causation if the jury found such negligence on the part of Fenestra. The judge did so charge, properly. We find no error here.
The important specifications of error submitted by defendant Ward have recently been considered and found wanting in Piercefield v. Remington Arms Company, Inc., 375 Mich 85, and in one of the recent authorities cited therein, Henningsen v. Bloomfield Motors, Inc., 32 NJ 358 (161 A2d 69, 75 ALR2d 1). Ward’s defenses of no privity, disclaimer of liability, and that an express warranty eliminates a legally implied warranty of fitness, were not, Piercefield and Henningsen considered, available to it. The trial judge therefore did not err in refusing to grant Ward’s requests to charge Nos 4 and 7 as listed at the margin.
See what was said in Henningsen of such a disclaimer of liability and of contention that an express warranty eliminates any warranty of fitness which might be implied by law. We agree with the reasoning of the New Jersey supreme court in such regard. Such reasoning appears in the opinion under the heading (p 385) “The effect of the disclaimer and limitation of liability clauses on the implied warranty of merchantability.”
Aside from the above it is important to stress a procedural difference between Piercefield and this case of Browne. In Piercefield two purposely restricted questions of law came up via granted uniform motions to strike made by all defendants. All such, defendants, joining in one brief, relied here solely upon such questions (validity of the defenses of no privity and absence of notice under section 49 of the uniform sales act; CL 1948, § 440.49 [Stat Ann § 19.289] ).
Whether Piercefield can make out a case, under the second count of his declaration, as against one or all of the defendants sued by him, and whether any one or more of such defendants is possessed of a defense (other than of no privity and failure of section 49 notice) has not as yet been determined. Here the defendants Fenestra and McQuillan have been found, upon trial t.o a jury of disputed facts, guilty of actionable negligence. The same jury has found defendant Ward responsible to plaintiff for breach of an implied warranty of fitness. Piercefield—with Eenningsen above—decided, so far at least as concerns the case at bar, only that present defendant Ward was not entitled to rely upon its defenses of no privity, disclaimer of liability, and elimination of implied warranty by express warranty.
To conclude: Defendant McQuillan’s allegation, that the jury’s verdict was excessive, has not been overlooked. An examination of all portions of the record to which counsel have directed our attention tends to sustain rather than unfound the trial judge’s conclusion that the verdict as to amount was factually supported. There was medical testimony, which the jury had a right to believe, that the results of plaintiff’s injuries will persist for an indefinite time. The medical testimony to which we refer was of this purport:
“Q. Now, doctor, do you have an opinion, based on reasonable medical certainty, as to whether the condition that you found on September 27, 1962 would be likely to continue into the future?
“A. Yes, I believe that in view of the fact that this girl has had this trouble for almost four years now, it certainly would he expected that this condition would persist for an indefinite time into the future. At the time I saw her on the first occasion I thought she would have trouble for some time, and this has been confirmed by her recent examination this year.
“Q. Is there any way of telling now, doctor, as to how long this girl is likely to have back trouble ?
“A. I could not say definitely. All I can say is I am sure she will continue to have the trouble for a long time into the future.”
No other question requires discussion. Judgment affirmed. Costs to plaintiff.
T. M. Kavanagh, C. J., and Kelly, Souris, Smith, O’Hara, and Adams, JJ., concurred with Black, J.
Dethmers, J., concurred in result.
Fenestra’s request No. 15 reads:
“15. I charge you that if you find that defendant McQuillan is an independent contractor, not subject to the control and supervision of the performance of the work, by defendant Fenestra, then your verdict must be no cause of aetion in favor of defendant Fenestra.”
“4. That it was lawful for Montgomery Ward & Co., Inc., the seller of the door at retail, to limit its liability by contract so far as concerns the express warranty of Montgomery Ward & Co., Inc., and to provide by contract that there was no implied warranty.”
“7. Lillia Browne, the plaintiff in this case, cannot bring an action for breach of contract when she was not a party to the contract.”
See footnote 2, 375 Mich 89.—Reporter. | [
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Soueis, J.
Appellant steamship company is a Wisconsin corporation carrying passengers, automobiles, and other freight across Lake Michigan between the ports of Milwaukee, Wisconsin, and Muskegon, Michigan. In 1941, upon its own application, it was admitted to do intrastate business within Michigan. From 1952 through 1959, it filed the annual reports required by law to be filed with the corporation and securities commission by every domestic and foreign profit corporation granted the privilege of doing such business within this State. Section 4 of' PA 1921, No 85, as amended (CLS 1956, § 450.304 [Stat Ann 1959 Cum Supp § 21.205]). This appeal from the corporation tax appeal board concerns the-amount due the State during those years (except 1955) as appellant’s annual franchise fee payable at the time of filing its annual reports.
Appellant does not claim that the State seeks to-impose a tax upon it, a foreign corporation, for the-privilege of conducting its interstate business in Michigan. Nor does the State claim in this case-that it could do so lawfully. Instead, appellant voluntarily applied for admission to do business locally within this State and was granted that privilege. While appellant concedes the State may chárge it the statutory minimum fee of $10 annually for the local privilege granted notwithstanding its professed failure to date to exercise the granted privilege, it denies the State’s right to charge it a privilege fee based upon any formula which takes into account any of the appellant’s interstate business. Appellant and the State spend- considerable-effort in arguing whether appellant’s activities in Michigan constitute exercise of its local privilege.. Were this a case in which the State sought to compel appellant to qualify for admission and to pay a privilege fee therefor on the ground that its activities in Michigan constituted local business, we would be-required to resolve the parties’ argument. However, this is not such a case. Appellant does not deny that it is liable for some fee for its voluntarily acquired privilege, whether exercised or not. The only-question is its amount and the answer to that question does not depend upon whether or to what extent appellant engages in what may be called purely local, business.
Michigan’s annual franchise fees are imposed alike upon domestic corporations and foreign corporations admitted to do business within the State. Corporations, both domestic and foreign, not maintaining a regular place of business outside this State, other than a statutory office, paid, during the period here in controversy, an annual privilege fee of 4 mills upon each dollar of their entire paid-up capital and surplus. Except for certain classes of carriers, of which appellant is one, other corporations are required to pay annual franchise fees measured by that proportion of their paid-up capital and surplus attributable to Michigan in accordance with an apportionment formula known as the Massachusetts formula. The annual franchise fees of motor carriers of property and all carriers by water, such as appellant, whether domestic corporations or foreign corporations admitted to do business in Michigan, are measured by the apportionment formula set forth in the margin. This formula provides for the allocation of a portion of the carrier’s paid-up capital and surplus to Michigan, and thereby subject to Michigan’s 4-mill franchise fee rate, in proportion to the ratio which the carrier’s total tonnages of revenue passengers and cargo received or dis charged within Michigan bears to its total tonnages received and discharged everywhere.
It is appellant’s claim that inasmuch as it engaged solely in interstate commerce in Michigan, the annual franchise fee claimed from it by the State, determined in accordance with the statutory formula which takes into account appellant’s interstate tonnages, constituted a direct burden by the State on interstate commerce in contravention of the commerce clause of the Federal Constitution, Art 1, § 8. Relying upon Gartland Steamship Company v. Corporation & Securities Commission, 339 Mich 661, and Panhandle Eastern Pipe Line Company v. Corporation & Securities Commission, 346 Mich 50, appellant argues that none of its interstate passenger and cargo tonnages should have been considered in computing the apportionment factor to be applied to its paid-up capital and surplus for determining what portion thereof was subject to the 4-mill franchise fee rate. Since appellant’s entire business in Michigan, according to its view, was in interstate commerce, it contends that none of its tonnage properly could be taken into account and that the apportionment factor under such circumstances should have been zero. That result, of course, would have relieved appellant of all liability under the statutory formula (although appellant concedes liability for the annual $10 minimum fee required by CLS 1956, § 450.304 [Stat Ann 1959 Cum Supp § 21.205]). In support of its contention that inclusion of its interstate tonnage in application of the statutory apportionment formula results in a direct burden by the State upon interstate commerce forbidden by the commerce clause, appellant cites Spector Motor Service, Inc., v. O’Connor, 340 US 602 (71 S Ct 508, 95 L ed 573); Cooney v. Mountain States Telephone & Telegraph Co., 294 US 384 (55 S Ct 477, 79 L ed 934); and Ozark Pipe Line Corporation v. Monier, 266 US 555 (45 S Ct 184, 69 L ed 439), among many others.
Michigan’s corporate franchise fee is not an ad valorem tax on property, nor is it an income tax, a gross receipts tax nor a sales tax. Keeping in mind what Michigan’s franchise fee is not, it may be conceded that the State may not otherwise impose a charge upon appellant for the privilege of doing an interstate business in Michigan. For this proposition of law Spector, Cooney, and Ozark, supra, relied upon by appellant, are only a few of the authorities that may be cited. See Duluth, S. S. & A. R. Co. v. Corporation & Securities Commission, 353 Mich 636, at p 655 (appeal dismissed and certiorari denied, 359 US 310 [79 S Ct 876, 3 L ed 2d 831]). But these authorities are inapposite to determination of the validity of the privilege fee sought to be charged to this appellant.
As we have noted before, it is a fee imposed by the State, upon domestic as well as foreign corporations, for the privilege of exercising corporate franchises ivithin this State. Union Steam Pump Sales Co. v. Secretary of State, 216 Mich 261; Detroit International Bridge Co. v. Corporation Tax Appeal Board of Michigan, 287 US 295 (53 S Ct 137, 77 L ed 314); Cleveland-Cliffs Iron Co. v. Corporation & Securities Commission, 351 Mich 652, and Duluth, supra. The fee charged is for the privilege granted, as the legislature itself has stated, “irrespective of whether any such corporation chooses to actually exercise such privilege during any taxable period.” CLS 1956, § 450.304 (Stat Ann 1959 Cum Supp § 21.205). See Holland Hitch Company v. State of Michigan, 318 Mich 474, 479.
It is not the privilege to do interstate business in Michigan for which appellant applied to the State and for the grant of which the State seeks to charge it an annual fee. Its right to engage in such interstate business in Michigan is not subject to the State’s grant or denial. Appellant sought, and was granted, the privilege to do intrastate business in Michigan. Whether or not appellant actually exercised its corporate franchises in Michigan in the conduct of intrastate business, it was granted the privilege to do so, upon its own application, and, so, must pay. As Mr. Justice Edwards pointed out in Duluth, 353 Mich. 636, at p 657, the United States supreme court has frequently upheld such State privilege or franchise fees levied upon the right to do intrastate business as not offensive to the commerce clause. St. Louis-San Francisco R. Co. v. Middlekamp, 256 US 226 (41 S Ct 489, 65 L ed 905); Hump Hairpin Manfg. Co. v. Emmerson, 258 US 290 (42 S Ct 305, 66 L ed 622); International Shoe Co. v. Shartel, 279 US 429 (49 S Ct 380, 73 L ed 781); Ford Motor Co. v. Beauchamp, 308 US 331 (60 S Ct 273, 84 L ed 304); International Harvester Co. v. Evatt, 329 US 416 (67 S Ct 444, 91 L ed 390); Interstate Oil Pipe Line Co. v. Stone, 337 US 662 (69 S Ct 1264, 93 L ed 1613). The only meritorious issue before us is whether Michigan may determine the amount of such privilege fee by reference to appellant’s total business transacted in Michigan which, for our purposes we may assume, as appellant claims, was solely interstate in character, or whether it may he charged a franchise fee in excess of the $10 minimum fee provided by the statute only when it actually conducts intrastate business in Michigan and then by reference only to such intrastate business.
The Gartland Case, 339 Mich 661, seemingly supports appellant’s contention that interstate business must be excluded from consideration in determining the apportionment formula used in computing the franchise fee. Panhandle, 346 Mich 50, likewise seemingly supports appellant’s contention. In the Duluth Case, 353 Mich 636, however, this Court severely limited the opinions in Gartland and Panhandle and, realistically considered, overruled their holdings to the extent that they could be construed to mean what appellant claims for them here. Our majority in Duluth expressly held, Gartland and Panhandle notwithstanding, “that there is no constitutional barrier to the use of an interstate-commerce factor in the allocation formula for determining the portion of paid-up capital and surplus allocable to Michigan for computation of a franchise tax for the right to carry on intrastate business in Michigan where, as here, there is no showing that such formula reaches an unreasonable or discriminatory result.” 353 Mich 636, at p 665.
The United States supreme court expressed the principle affirmatively in Spector Motor Service, Inc., v. O’Connor, 340 US 602, 609, 610 (71 S Ct 508, 95 L ed 573), as it relates to a taxpayer engaged in both intrastate and interstate commerce:
“A State may tax the privilege of carrying on intrastate business and, within reasonable limits, may compute the amount of the charge by applying the tax rate to a fair proportion of the taxpayer’s business done within the State, including both interstate and intrastate.”
In Cleveland-Cliffs Iron Company v. Corporation & Securities Commission, 351 Mich 652, the taxpayer challenged not the apportionment formula utilized in determining what portion of its paid-up capital and surplus was allocable to Michigan for annual franchise fee purposes but, rather, the inclusion in its capital account of stock investments claimed to be separable from its Michigan operations. Invoking the provisions of CLS 1956, § 450.305e (Stat Ann 1961 Cum Supp § 21.208 [5]), Cleveland-Cliffs sought to exclude such investments from the paid-up capital and surplus base to which the apportionment factor is applied. The Court’s majority carefully considered the nature of the privilege fee involved saying, at p 682: “We are taxing the privilege of carrying on intrastate activities. It is thus completely pointless for plaintiff to argue that when it came into this State it ‘did not apply for admission to the State of Michigan with respect to holding investments in steel stocks.’ Nor did it specifically, with respect to its iron ore holdings in Minnesota, or to its office furniture in Cleveland. But we are not taxing these things. We are taxing the value of the exercise of a privilege in this State and we ascertain that value through the application of property, payroll, and sales factors to the fair average stock value or the paid-up capital and surplus.”
The proofs disclosed that Cleveland-Cliffs’ business activities in Michigan, apparently including intrastate as well as interstate activities, were extensive and constituted a substantial part of its total business. Unlike the case at bar, the Court there was dealing with a taxpayer concededly actually exercising the granted privilege. As we have noted above, however, the franchise fee is payable in this State whether or not the privilege is exercised. And whether or not the privilege is exercised does not under our statute make any difference in the basis for determination of the amount of the annual fee payable either by a domestic or a foreign corporation nor, as we have previously said in Duluth, 353 Mich 636, at p 665, is there any reason constitutionally to bar use of interstate-commerce factors in making such determination.
Whether or not the privilege granted a taxpayer to do an intrastate business is exercised has nothing whatever to do with the right of a State, unhampered by tbe commerce clause, to charge for such privilege a fee based upon a reasonably allocated portion of the taxpayer’s capital and surplus. What Michigan says to the taxpayer, in effect, is this: “Separate and apart from your unquestioned right to exercise your corporate franchises in interstate commerce within this State, without imposition by this State of a fee for the exercise of that right, you may also pursue your business within this State in matters not involving interstate commerce, but only upon payment of a fee for that privilege. That fee will be measured by determination of that portion of your total paid-up capital and surplus available for such intrastate business, whether or not the privilege actually is exercised by you.” In Ford Motor Co. v. Beauchamp, 308 US 331 (60 S Ct 273, 84 L ed 304), relied upon and quoted by our majority in Cleveland-Cliffs, 351 Mich 652, at pp 692, 693, the United States supreme court, at p 336, recognized the constitutional propriety of measuring for fee purposes the worth of such local privilege by the “financial power” or capital potency available for use within the taxing State upon exercise of the privilege granted:
“In a unitary enterprise, property outside the State, when correlated in use with property within the State, necessarily affects the worth of the privilege within the State. Financial power inherent in the possession of assets may be applied, with flexibility, at whatever point within or without the State the managers of the business may determine. For this reason it is held that an entrance fee may be properly measured by capital wherever located. The weight, in determining the value of the intrastate privilege, given the property beyond the State boundaries is but a recognition of the very real effect its existence has upon the value of the privilege granted within the taxing State.”
It is not now open to dispute that when such intrastate privilege is exercised by a taxpayer the fee charged for such privilege may be based upon a portion of the taxpayer’s capital and surplus, wherever located, allocated in the manner provided by Michigan’s statute. Ford Motor Co. v. Beauchamp; Duluth; and Cleveland-Cliffs, supra, and cases cited and discussed in Duluth, at pp 660-663 and in Cleveland-Cliffs, at pp 690-698. Even in such cases in which the local privilege actually has been exercised, the privilege fee is determinable not by allocation to the taxing State of that portion of the corporate taxpayer’s capital and surplus actually utilized therein but, rather, by allocation of that portion of its capital and surplus reasonably available for such use. There is no constitutional reason, absent discrimination between domestic and foreign corporations, why a State may not determine corporate franchise fees on the basis of the potential capital,—the financial power or capital potency,— reasonably available to a corporation for use within the taxing jurisdiction, whether or not actually so used.
The statutory scheme of taxation discloses that the incidence of Michigan’s corporate franchise tax is that portion of the taxpayer’s paid-up capital and surplus actually utilized in Michigan for any purpose,—therefore available for use here in exercise of its local privilege,—and thus, theoretically at least, not available for use elsewhere nor subject to a similar tax in other States. Apportionment of a multi-State corporation’s capital and surplus is accomplished in Michigan in several ways depending upon the nature of the taxpayer’s business. For most taxpayers, this apportionment is determined by formula taking into account the taxpayer’s property, payroll, and sales in Michigan and everywhere. For carriers by aircraft, the apportionment is determined by formula taking into account both revenue tons handled and originating revenues in Michigan and everywhere. Railroads’ franchise fees are determined by use of another formula, as are the fees of certain financial institutions and the fees of motor carriers of passengers. Finally, the franchise fees of motor carriers of property and carriers of passengers or cargo by water, with which we are here concerned, are determined by formula taking into account tonnage of revenue passengers and revenue cargoes received and discharged in Michigan and everywhere.
Contrary to appellant’s assertions, the various formulae involved in the apportionment process do not result in the imposition of the franchise fee upon the taxpayer’s property, payroll, sales or upon any other factor referred to in those formulae. See Cleveland-Cliffs, 351 Mich 652, at p 682. The references to property, payroll, sales, revenue tons, originating revenues, and passenger and cargo tonnages have as their sole objective establishment of a realistic standard for allocating a reasonable portion of the taxpayer’s capital and surplus to the taxing State as a base for imposition of its franchise fee rate.
Having concluded that a State may charge its corporate franchise fee to a foreign corporation granted local privileges, whether or not actually exercised, and since the amount of the fee charged by Michigan is not dependent upon whether, and to what extent, intrastate business is actually conducted in Michigan, it is not necessary to review the corporation tax appeal board’s finding that appellant was engaged in such intrastate business during the periods involved in this' appeal.
Affirmed. No costs, there being involved statutory and constitutional provisions affecting tbe State’s revenues.
Carr, C. J., and Dethmers, Kelly, Black, Kavanagh, and O’Hara, JJ., concurred.
Smith, J., did not sit.
CLS 1956, § 450.305 (Stat Ann 1961 Cum Supp § 21.208).
Ibid. The statutory provision is reproduced and described by Mr. Justice Talbot Smith in Cleveland-Cliffs Iron Co. v. Corporation § Securities Commission, 351 Mich 652, 672-674.
“(1) In the ease of motor carriers of property, and carriers by water, the annual franchise fee shall be measured by that portion of the corporation’s paid-up capital and surplus as the sum of the tonnage of revenue passengers and revenue eargo first received or finally discharged by the carrier within this State is to the total of such tonnage so received and so discharged by such carrier within and without this State.” CLS 1956, § 450.305c (Stat Ann 1961 Cum Supp § 21.208[3]).
Although the attorney general tells us in his brief that the statutory reference to “tonnage of revenue passengers” has been construed to refer “to the number of passengers, rather than to their gross weight”, we note from the appellant’s annual reports filed as exhibits that weight was in fact used, a hypothetical average of 150 pounds per passenger. The matter is not important to the issue presented by this appeal.
Implicit in appellant’s concession of liability for the annual $10 minimum franchise fee is its recognition that the State properly may charge some fee, at least when the franchise granted was voluntarily sought, whether or not it was actually exercised.
In view of appellant’s contention that its business is “100% interstate”, one wonders why appellant voluntarily applied, in 1941, for the privilege of doing intrastate business in Michigan and then, assertedly, never exereised the privilege granted. An examination of Wisconsin law suggests a possible reason for the seemingly inconsistent course followed by appellant. 1939 Wis Stat § 71.02(3) (d) provided that “Persons engaged in business within and without the State shall be taxed only on sueh income as is derived from business transacted and property located within the State.” (This provision is the same today; see West’s Wis Stat Ann § 71.07[2].) In Trane Co. v. Tax Commission (1940), 235 Wis 516 (292 NW 897), the Wisconsin supreme court held that the entire income of a Wisconsin manufacturing corporation was derived from business transacted and property located within the State, and so subject to Wisconsin’s income tax notwithstanding that nearly 1/3 of the corporation’s net income accrued from sales originated by sales representatives located outside of the State. Por a discussion of other Wisconsin eases construing the statutory language in such a manner as to subject all of a corporation’s income to the Wisconsin income tax, even though the corporation engaged in activities in other States, see Department of Taxation v. Blatz Brewing Co. (1961), 12 Wis 2d 615 (108 NW2d 319). Although most of those eases involved manufacturing corporations, still the judicial attitude exhibited in those cases may have induced appellant to try to acquire all possible indicia of engaging in business outside of Wisconsin in order to qualify for the apportionment benefits of Wisconsin’s income tax law. One means by which it could do this was to obtain the privilege of doing intrastate business in Michigan. As the Wisconsin court pointed out in Blatz, supra, 623, “Although ‘engaged in business’ means something less than the standard which requires a license to do business in a State, still not every ‘activity’ out of the State constitutes engaging in business there within the meaning of §71.07(2).” Thus, appellant could argue that its qualification to do business in Michigan was evidence of its having met, and, indeed, having exceeded, the standard required to be “engaged in business” in another State.
“Both Gartland and Panhandle opinions, however, relied upon Cooney v. Mountain States T. & T. Co., 294 US 384 (55 S Ct 477, 79 L ed 934), for constitutional authority. Both failed to distinguish between the direct taxation of interstate commerce (which Cooney ruled out) and the employment of an interstate-commerce factor in the formula for determining the amount of paid-up capital and surplus to be allocated to Michigan in computing the fee to be assessed for doing intrastate business in Michigan.” 353 Mich 636, at p 665.
Appellant here, unlike Cleveland-Cliffs, did not seek adjustment of its franchise fee liability by claiming inequity correctable by administrative action authorized by this statutory provision.
See CLS 1956, §§ 450.305a-450.305d (Stat Ann 1961 Cum Supp §§ 21.208[1]-21.208[4]).—Reporter. | [
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Dethmers, J.
'Defendant appeals from an order denying his motion for new trial which he based on alleged invalidity of the verdict.
The jury returned a verdict finding defendant “guilty as charged”. The information on which he was tried charged that defendant, and others who were codefendants, “feloniously, wilfully and of their malice aforethought, did kill and murder one Alfred Jones, contrary to section 316, of Act 328 of the Public Acts of 1931, as amended.” (CL 1948, § 750.316 [Stat Ann 1954 Rev § 28.548].) Said section 316 provides that “All murder * * * which shall be committed in the perpetration, or attempt to perpetrate * * * robbery * * * shall be murder in the first degree.” The next succeeding section, 317, defines as second-degree murder all other murder not included in section 316. The proofs showed that the killing of Alfred Jones undisputedly was committed in the perpetration of a robbery. The court, after reading the language of section 316 to the jury, instructed them that the latter portion thereof, relating to a killing committed in the perpetration of a robbery, pertained to this case, that it was that statutory provision under which the information in this case was filed and, finally, that in order to find defendants guilty of murder in the first degree the jury must find them also guilty of robbery armed, failing which they could not find them guilty of murder in the first degree. The court did not charge as to second-de gree murder or permit the case to go to' the jury oii that or any lesser included offense, but instructed them that, “The respondents are here in court to answer the charge of first-degree murder.”
Section 318 of the mentioned act provides that if a jury finds a defendant guilty of murder, they shall “ascertain in their verdict, whether it be murder of the first or second degree.” This statutory requirement has been recognized or upheld and given effect in a number of cases decided by this Court, some holding verdicts not in compliance therewith invalid.
In Tully v. People, 6 Mich 273, defendants were indicted for 'murder. The- indictment contained 2 counts, charging murder as at common law. The jury returned a verdict of guilty as charged. It left open to question the offense of which defendants were convicted. This Court reversed because the jury did not observe the statutory mandate of determining the degree of murder.
People v. Potter, 5 Mich 1 (71 Am Dec 763), is not directly in point, but in reversing for failure of the trial court to properly instruct the jury concerning degree of murder, this Court, in passing, alluded to the statutory requirement that the jury determine the degree. ' •
People v. Hall, 48 Mich 482 (42 Am Rep 477), was a case of murder by poisoning. It was held that it was a case of murder in the first degree under the statute, and that the jury should have been so instructed. The jury was not so instructed in that case, the information did not charge the degree of the murder or the manner of its commission and the jury did not find the degree. Stressing that the jury did not find it murder in the first degree, it was held error to impose sentence as for first-degree murder.
People v. Repke, 103 Mich 459, contains a statement in this Court’s opinion that it is the duty of the jury to find the degree of.murder in their verdict, hut this Court held that it did not constitute an invasion of that jury duty for the court to instruct that they should find defendant either guilty of. murder in the first degree or not guilty. The jury found defendant guilty of murder in the first degree.-
In People v. Clark, 155 Mich 647, the information charged defendant with murder without specifying the degree or manner of its perpetration. The trial judge instructed the jury that defendant was either guilty of murder in the first degree or not guilty of the crime charged, and that there was no murder in the second degree or manslaughter in the case. The jury found “guilty as charged”. This Court reversed because, inter alia, the jury did not determine the degree of murder. Despite the trial court’s instructions as above mentioned, the information and the charge it contained was not definite or specific so the degree of murder the jury had found could be ascertained from a verdict of “guilty as charged”.
In People v. Treichel, 229 Mich 303, where the information charged murder in common law terms without alleging the degree, manner or means employed, this Court held that it was not error for the court to refuse to charge that only murder in the first degree could be found because, as this Court said, second-degree murder and also manslaughter, of which defendants were convicted, were included offenses. This, the defendant here says, supports his contention that a charge of wilful murder with malice aforethought does not charge first-degree murder exclusively, but leaves room for a finding of second-degree murder, and, hence, a verdict of guilty of such charge does not determine the degree of murder found.
Defendant urges Attorney General v. Recorder’s Court Judge, 341 Mich 461, as controlling and re quiring reversal in this case. In that case we said’ that (p 469):
“The information filed against Wruble charged ‘murder’ without specifying the degree, and the only intimation that first-degree murder may have been charged is the statutory reference at the foot of the information, which reads: ‘See 316 MPC 1931’.”
This Court then proceeded on the theory, as above stated, that the information “charged ‘murder’ without specifying the degree” and said “The situation here is analogous to that in People v. Simon, 324 Mich 450.” In Simon (p 457) we had said, “The information charged murder without specifying the degree” and that, accordingly, from the jury’s finding of “guilty as charged” we could not tell whether murder in the first degree was found by the jury. Accordingly, in Attorney General v. Recorder’s Court Judge, supra, we held that a verdict of “guilty as charged” in that case, as in Simon, was not determinative of the degree of murder because the charge did not specify it.
How do decisions in the above cases apply to the facts in the case at bar? In Tully there was an open charge of murder which did not specify the degree or manner or means of its perpetration. In the case at bar, by contrast, the information charged that the murder was committed contrary to said section 316, which defines only first-degree murder. Potter did not decide the point here involved. Sail was another case in which there was nothing in the information to indicate the degree of murder charged, and the jury failed to determine the degree by their verdict. This Court, in Repke, affirmed the jury’s verdict expressly convicting defendant of murder in the first degree. Hence, the point before us was not decided nor did it need to be in that, case. The Ciarle Case was also one in which the degree of murder or manner of its perpetration was not stated in the information. The same situation obtained as to the information in Treichel, in which, in addition, the proofs permitted of a finding of second-degree murder or manslaughter. The information in Simon was of like character to those in the cases just considered. That was also true of the information in Attorney General v. Recorder’s Court Judge, supra, except for the statement at the foot of the information “See 316 MPC 1931”. This Court said of this quoted language that it was “the only intimation that first-degree murder may have been charged” but held that the information did not actually specify the degree, and, therefore, a verdict of guilty as charged did not constitute a jury finding of the degree of murder. Clearly, in none of these cases did this Court pass on the validity of a verdict of “guilty as charged” based on an information, as here, charging murder committed contrary to said section 316, the language of which Is confined to definition of murder in the first degree.
It is obvious that this Court, in those of the above considered cases requiring decision of the question,has held that it is the duty of the jury, as required' by the statute, in returning a verdict of guilty of murder, to ascertain therein “whether it be murder of the first or second degree”. Manifestly, the purpose of the statute and said holdings has been to eliminate uncertainty as to whether the jury actually has found a defendant guilty of murder in the first degree. The question at bar, then, is “Did the jury ascertain in their verdict that defendants were guilty of murder in the first degree ?”
The information here did not merely charge defendants with murder, but charged that it was committed contrary to section 316 which defines murder in the first degree only, leaving it to section 317 to define murder in the second degree. Not in point is language in the dissenting opinión in People v. Netzel, 295 Mich 353, in which the information, charging felonious assault, was worded in the language of the section of the statute defining felonious assault (CL 1948, §750.82 [Stat Ann 1962 Rev § 28.277]), but concluded with an erroneous numerical reference to CL 1948, § 750.84 (Stat Ann 1962 Rev § 28.279), which makes it a felony to assault another with intent to do great bodily harm less than murder. The reference to the section number was said, in that dissenting opinion (p 355), to be “mere surplusage” because “the language of the information clearly informed defendant of the charge against him.” Here, instead of conflict between language of the charge and the section number reference, as in Netzel, the language of the information charged murder and the allegation that it was done contrary to section 316 made it more specific, to charge murder in the first degree. Defendant-appellant, represented by able counsel at trial, was thus duly informed and apprised by the information that he was charged with first-degree murder. At trial the undisputed proofs showed that the murder was committed in the perpetration of a robbery. Under this statute the murder was, therefore, first-degree murder. Consequently, in the appeal of 1 of the co-defendants, People v. Hearn, 354 Mich 468, this Court held that the trial judge was not in error in refusing defendant’s request to charge as to included offenses and in limiting jury consideration to murder in the first degree. In his instructions the trial judge told the jury that defendant was “in court to answer the charge of first-degree murder”. He also read section 316 of the act to the jury and told them that the information in this case was filed under that statute and that the portion thereof pertinent to this case was the latter part defining as first-degree murder all murder committed in the perpetration of a robbery. Thus not only the defendant but, equally, the jury was instructed and informed in plain and unmistakeable language that the charge against the defendants was murder in the first degree. Thus is this case to be distinguished from Attorney General v. Recorder’s Judge, supra, in which this Court said that the information contained “only intimation that first-degree murder may have been charged.” Here the information did not merely intimate that it may have been, but, on the contrary, it expressly charged murder committed in violation of the statutory provision, read to the jury, constituting murder committed in the perpetration of a robbery murder in the first degree. By announcement of a verdict of guilty of that charge, the jury did “ascertain in their verdict” that defendant was guilty of murder in the first degree.
The verdict was valid. The motion for new trial was properly denied. Affirmed.
Carr, C. J., and Kelly, Black, Kavanagh, Souris, Smith, and O’Hara, JJ., concurred.
Michigan penal code, PA 1931, No 328, § 316 (CL 1948, § 750.316 . [Stat Ann 1954 Rev § 28.548]).—Repobteb. | [
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O’Hara, J.
Plaintiffs-appellants filed a bill inequity to require specific performance of an oral agreement to sell and convey for $100 one acre of land out of a larger parcel which defendants were purchasing on land contract. They ask for a decree ordering the execution and delivery of a warranty deed to the 1 acre, and other relief.
Defendants in their answer set up certain “affirmative defenses,” alleging unfulfilled conditions in the agreement, among them the lack of payment of some $10 on the agreed purchase price, and seek equity’s aid in obtaining payment of a grocery bill that seems to have some tenuous relationship to the claimed agreement. Although in their affirmative defenses they declare that they have offered and still offer to go ahead on certain conditions, if plaintiffs prepare a quitclaim deed that would include a restriction against storing junk on the involved acre, they file a cross-bill asking foreclosure and an injunction against trespass.
We are not certain that we completely apprehend what issues were joined by the pleadings; our record does not contain a pretrial statement. Plaintiffs did not appear on hearing and a decree was taken on the cross-bill, plaintiffs’ bill being dismissed with prejudice. Plaintiffs’ original counsel by the time of the hearing, had withdrawn from the case because, we are told, “a settlement agreement had fallen through.”
On appeal, plaintiffs-appellants assert 3 grounds of abuse of discretion by the chancellor in foreclosing their rights under a land contract, and they complain that they were deprived of due process of law because the case was decided after a hearing at which they were not present, and of which they had no notice. The due process question is determinative.
The statement of facts of the appellants, accepted by appellees, recites:
‘Appellants retained Robert S. Brooks of Lansing, to represent them. Mr. Brooks did not enter an appearance as attorney for appellants. Since Mr. Brooks had not entered an appearance, appellee’s attorney notified appellants that the trial was scheduled for February 14,1961. This trial date was postponed, and no further notice was given appellants of any new trial date. It appears that notice may have been given their then attorney, Mr. Brooks, who was not attorney of record. Appellants had no actual notice of the trial. * * * Trial was thus set for April 21, 1961, and appellants naturally did not appear at the trial.” (Emphasis supplied.)
We are sympathetic to a degree with the plight of counsel who succeed to professional responsibilities with incomplete files and records. However, we cannot disregard what must on appellate review be accepted by us — an agreed statement of facts. Appellee accepted the following statement:
“Appellants had no actual notice of the trial. Trial was thus set for April 21, 1961, and appellants naturally did not appear at the trial.”
It is hardly necessary to buttress with citations the settled rule of law that due process requires notice so that opportunity is afforded to attend and present a claim or defense. Since the accepted statement of facts clearly concedes that such notice was not afforded, it follows that due process was denied.
The decree is vacated and the cause remanded for hearing with, we suggest, proper pretrial proceedings.
Costs to the appellants.
Carr, C. J., and Dethmers, Kelly, Black, Kavanagh, Souris, and Smith, JJ., concurred. | [
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Smith, J.
Again we review a zoning ordinance. The property involved, located on “Woodward avenue, in the city of Bloomfield Hills, is the former Hunter estate property. It is some 40 acres in extent and consists of a main building (of 20 rooms and 8 baths) set back a substantial distance from Woodward avenue, and a number of smaller accessory buildings, all “typical * * * of a passing era.” It was purchased by Dr. Harley Robinson,, one of the plaintiffs herein, in 1951. He desired to' use it as a rest home but was informed that the property was zoned for residential use. Consequently, he applied to the city commission, the planning commission, and, finally, to the board of appeals for aid in his desire to use the property he had .purchased as a convalescent home. “And you represented,” he was asked, “to the members of the city commission and members of the planning commission that you had gotten into this predicament through no fault of your own and it would be a hardship on you if you were not permitted to operate the property as a rest home?” The doctor answered in the affirmative. At any rate, whatever the pleas made, the board of appeals granted him what is described in the record as a “variance.” It reads as follows:
■ “Resolved, that on the appeal of Dr. Harley J. Robinson from the decision of the building inspector denying his application for a certificate of compliance for the use of the Hunter house on South Woodward avenue as a convalescent home: It is hereby determined that there are practical difficulties and particular and unnecessary hardships in requiring the carrying out the strict letter of the zoning ordinance with respect to said buildings, and further that the variance applied for under the conditions set forth in the application, to-wit: that said institution shall not be qualified as a tax-free organization and that not more than 30 persons will be cared for in said home, will not change the character of the-neighborhood involved and will conform to the spirit of the ordinance.
“Wherefore, it is hereby ordered that a special permit be and the same hereby is granted to Dr. Harley J. Robinson for the use of the residential dwelling on South Woodward avenue in the city of Bloomfield Hills known as the Hunter house on the property known as ‘Brae Burn,’ as a convalescent or rest home as described and applied for in his petition to this board, on conditions, however, that said home be owned, operated and supervised by the said Dr. Harley J. Robinson individually and personally, upon the further condition that said dwelling house be not enlarged or added to, upon the further condition that not more than 30 persons shall be cared for in said home at any one time and upon the further condition that said home shall not become qualified as a tax-free institution.”
It is pertinent to observe that certain of the restrictive conditions above recited and now attacked seem to have had their origin in a vague “agreement” between the petitioning doctor and the board. Thus we note in the record:
“Q. At the time the permit was granted, did you not represent you would not require additional facilities ?
“The Court: We are talking about in the original instance.
“Q. At the time you had the hearing before the-board of appeals and asked for the permit and got it.
“A. There was some agreement to that effect, yes.”
At any rate, with this variance, granted upon these conditions (which the doctor now claims were “illegal and void as being entirely beyond the scope and authority of zoning”), he commenced the operation of the rest home upon the property and spent considerable sums in its improvements.
Thereafter Dr. Robinson conveyed to Brae Burn, Inc., a Michigan corporation of which he is one of the shareholders, a rectangular parcel of 1A-1/2 acres. This piece comprised the central part of the former Hunter estate property and included the main building heretofore described. In June of 1954 the corporation filed an application to enlarge the rest home (and remodel the barn) in order that additional patients might be accommodated. It was refused. A writ of mandamus was then sought by the corporation to compel the city of Bloomfield Hills, and certain officials thereof, to issue the permit theretofore requested.
There is a second suit before us (both cases were consolidated for trial). In the second suit, which is likewise for a writ of mandamus, Dr. Robinson (with Anna P. Robinson) and his present counsel, Arthur E. Moore, are the plaintiffs. They sought to construct a 3-story office building south of Brae Burn on Woodward avenue. Their application for a building permit was likewise denied upon the ground, in part, that the property was zoned as residential. The trial court, being of the opinion that the limitation on the use of the property was arbitrary, discriminatory, and unconstitutional, ordered ■that the writs issue in each of the actions. Upon leave granted, the defendant city of Bloomfield Hills took an appeal in the nature of certiorari.
Before getting into the merits of the validity of the zoning scheme itself, we will advert to a preliminary issue, the validity of the particular regulation here involved. It is the contention of appellees that zoning ordinance 69, adopted on July 20, 1954, was adopted illegally for want of a statutory public hearing. (CL 1948, § 125.584 [Stat Ann § 5.2934].) In more detail it is urged that the minutes of the city commission do not show that the public meeting theretofore advertised was in fact held on the date-set, namely, June 29,1954. The minutes of the date-of adoption, however, state that a “public hearing was held at the Bloomfield Hills School on Vaughn road on Tuesday, June 29, 1954.” What actually happened was that the meeting was in fact held, and a record kept, but not in the minute book. We agree with the trial court that the omission, though contrary to good practice, is not fatal. We also agree that there is no showing of invalidating material amendment and that parol and other evidence may be admitted to supplement (although not to contradict) the public record. As we held in Township of North Star v. Cowdry, 212 Mich 7, 14, 15:
“It is first urged * * * that * * * the-proceedings of the township board cannot rest in parol, and that, except in a direct action to correct the record, the action of the township boards, and other official boards, can be proven only by the record kept by the proper official. Many cases are cited by counsel claimed to be in support of this proposition. * * *
“While there is language used in some of these-decisions which would tend to show that a record cannot be supplemented by parol evidence, an examination of the cases will show that the attempt was made to vary and contradict the record. We recognize the rule to be that the record cannot be contradicted, or impeached by parol testimony. We think the correct rule is Avell stated in Township of Taymouth v. Koehler, 35 Mich 22. * * *
“It is frequently competent to show by parol matters in aid of the record where the same is ambiguous, or where entries have been omitted.”
The ordinance, then, was validly adopted and plaintiffs were subject to it. Plaintiff Robinson, however, seeks to avoid its effect by setting up that the substantial sums expended in the improvement of the premises afford plaintiffs “the right to continue and carry out the business venture * * * (i.e., that) plaintiffs have a vested right to so use the property.” Apparently the argument is that the variance sought by Dr. Robinson and granted to him in order to help him out of his predicament is now to be used by him as a sword rather than a shield, that he can now operate “unhampered either by illegal ‘variance’ conditions or subsequently enacted ordinances.” The city, on the other hand, argues that Dr. Robinson is estopped to attack the variance by reason of the fact that he sought and received substantial benefits from it, citing 11 Am Jur, Constitutional Law, § 121, pp 766, 767. We do not find it necessary to decide this point. Regardless of the merits of a technical estoppel it is clear, as the trial court clearly perceived and held, “that the sums so spent in improvement were for the existing geriatric hospital with notice of the city’s claim.” There is no merit in the claim that rights vested under such circumstances. City of Coldwater v. Williams Oil Co., 288 Mich 140, has no application to these facts.
We are brought, then, to the merits of the zoning scheme itself. In view of the frequency with which zoning cases are now appearing before this Court, Ave deem it expedient to point out again, in terms not susceptible of misconstruction, a fundamental principle : this Court does not sit as a superzoning com mission. Our laws have wisely committed to the people of a community themselves the determination of their municipal destiny, the degree to which the industrial may have precedence over the residential, and the areas carved out of each to he devoted to commercial pursuits. With the wisdom or lack of wisdom of the determination we are not concerned. The people of the community, through their appropriate legislative body, and not the courts, govern its growth and its life. Let us state the proposition as clearly as may be: It is not our function to approve the ordinance before us as to wisdom or desirability. For alleged abuses involving such factors the remedy is the ballot box, not the courts. We do not substitute our judgment for that of the legislative body charged with the duty and responsibility in the premises. As Willoughby phrased it in his treatise, Constitution of the United States (2d ed, 1929), vol 1, § 21, p 32: “The constitutional power of a law-making body to legislate in the premises being-granted, the wisdom or expediency of the manner in which that power is exercised is not properly subject to judicial criticism or control.” We held similarly in Tel-Craft Civic Association v. City of Detroit, 337 Mich 326, 331:
“Unless it can be shown that the council acted arbitrarily or unreasonably, their determination is final and conclusive and no court may alter or modify the ordinance as adopted.
“ ‘While it is within the province of the courts to pass upon the validity of statutes and ordinances, courts may not legislate nor undertake to compel legislative bodies to do so one way or another. (Citing cases.) The court erred in seeking to compel the defendant mayor and city commission members to amend the ordinance.’ Northwood Properties Co. v. Royal Oak City Inspector, 325 Mich 419, 423.
“ ‘The ultimate power is vested in the council, and its good faith in acting for the public welfare cannot be questioned by the judicial branch of government.’ Gratton v. Conte, 364 Pa 578, 583 (73 A2d 381, 384).”
It is a necessary corollary of the above that the ordinance comes to us clothed with every presumption of validity, Hammond v. B. H. Building Inspector, 331 Mich 551, and it is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property. Janesick v. City of Detroit, 337 Mich 549. This is not to say, of course, that a local body may with impunity abrogate constitutional restraints. The point is that we require more than a debatable question. We require more than a fair difference of opinion.' 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. Such cases have in fact occurred (e.g., Bassey v. City of Huntington Woods, 344 Mich 701, 705, 706, where a lot zoned “residential” was subject as such to side-line restrictions leaving only a 4-foot width to accommodate a 2-family dwelling) but they must in their very nature be extreme and the rule thus stated cannot justify the great numbers of cases reaching this Court.
We have stressed, heretofore, in these zoning cases, the principle that each case must be judged on its own facts. Some confusion may have arisen from its frequent repetition. The statement is merely a truism in the law, applicable, to all cases, from arbitration to zoning. It solves nothing. Most assuredly it does not imply that each zoning case stands alone, unrelated to and untouched by the others. To put it in another ,way,. we have no “Woodward avenue rule,” no “traffic” rule as such, no “diminution in value” rule. All these are merely factors to he considered, pieces of the mosaic. The question always remains: As to this property, in this city, under this particular plan (wise or unwise though it may be), can it fairly be said there is not even a debatable question? If there is, we will not disturb.
Now as to the property before us and the ordinance before us: Much of the testimony taken went to the comparative value of the land if used for residential rather than commercial purposes. There is no doubt that its commercial value far exceeded its residential value. At the same time there is no doubt that even as residential property the land had considerable value. Thus one of plaintiffs’ witnesses testified that the office building site was worth $32,400 for commercial use but only $15,000 for multiple dwelling use. The properties (Brae Burn and the office building site), we are told, “lie on Woodward avenue, one of the busiest thoroughfares in the State..of Michigan. They are natural business sites.” It is urged, from this and similar considerations, that “such zoning is confiscatory,” that it is unreasonable, and that the property is not being put to its best use. Disparity in values between residential and commercial uses will always exist. In the leading case of Village of Euclid v. Ambler Realty Co., 272 US 365 (47 S Ct 114, 71 L ed 303, 54 ALR, 1016), Mr. Justice Sutherland, in upholding the ordinance, noted that the property involved was worth about $10,000 per acre for industrial use, as compared with $2,500 per acre for residential use. If such a showing serves to invalidate an ordinance the efforts of our people to determine their living conditions will be hopeless. To avoid “confiscation” in this sense (the obtaining of the highest dollar for one particular lot) will result in confiscation of far greater scope in property values in the municipality as a whole due to its inability to control its growth and development. It must be stressed that we are not, on this record (as we pointed out in Anderson v. City of Holland, 344 Mich 706, 710) “dealing with a situation in which the property involved is unsuitable for residential purposes and has little or no value if so restricted.” In such case the issue of confiscation is properly before us. See Yoldey’s discussion (1 Yokley, Zoning Law and Practice (2d ed), pp 47, 48) of our Fenner v. City of Muskegon case, 331 Mich 732:
“Late in 1951, the Supreme Court of Michigan decided a case -that aptly illustrates what we mean when we say that an ordinance that so deprives an owner of land of any fruitful use of his property as to amount to confiscation will not be sustained.
“In this case the zoning ordinance pertaining to the area in which the plaintiff’s land was situated restricted the area to residences, churches, schools, libraries, and accessory buildings, and the evidence established clearly that the land was not suitable for any one of these uses. The land was low, marshy and boggy, with a considerable area under water. Nearby streets were unimproved and the only houses nearby were substandard and of the ‘blighted area’ variety.
“The Supreme Court reversed the lower court and very properly ruled the ordinance invalid as to the plaintiff with the following comment:
“ ‘We conclude that the application of the zoning-ordinance to the lands in question is unreasonable and in practical effect, confiscatory of plaintiff’s property.’
“In the case of Arverne Bay Construction Company v. Thatcher, 278 NY 222 (15 NE2d 587, 117 ALR 1110), reversing 253 App Div 285 (2 NYS2d 112), the New York court of appeals held that to sustain an attack on the validity of a zoning- ordinance an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on Ms property precMde its use for any purpose to which it is reasonably adapted. The case of Fenner v. Muskegon, just discussed, seems well witMn the rule announced in this well known New York decision.”
In the case before us, however, such unsuitability for residential purposes (Ritenour v. Township of Dearborn, 326 Mich 242), lack of market for such purpose (Long v. City of Highland Park, 329 Mich 146), or “dead land” without residential value (Janesick v. City of Detroit, 337 Mich 549) do not appear. On the contrary, we find in the record that there is a new and successful residential development on Woodward avenue immediately south of plaintiffs’ property (Cranbrook Manor). It cannot, upon such facts, be held that the city’s legislative body acted in a whimsical manner in zoning this property as residential, that it is totally unsuited for its zoned use, or that it is confiscatory in the constitutional sense.
It is argued, also, that nearby is found an office building (McManus, John & Adams, at the northwest corner of Woodward avenue and West Long Lake road), and that across the street is found another similar rest home. These differences are bound to occur in any zoning plan. Somewhere one zone must end and another start. There will always be peripheral problems. But as the supreme court of Illinois expressed it in a recent “across-the-street” case (Wesemann v. Village of La Grange Park, 407 Ill 81, 87-89 [94 NE2d 904]):
' “It is practically a suburb of Chicago and is about 15 miles to the west of the Loop district. The village authorities have been diligent in attempting to enforce its zoning regulations. It is the province of the municipal body to draw the line of demarcation as to the use and purpose to which property shall be assigned or placed, and it is neither the province nor duty of courts to interfere with, the discretion with which such bodies are invested, except where there is a clear showing of an abuse of that discretion, which is not the case where the question is merely debatable. * * *
“The fixing of zoning lines is a matter of legislative discretion and necessarily results in a different classification of uses on either side of the line. This does not render limitations on use of property near the boundary line in a more restricted district unreasonable or invalid.”
See, also, 1954 U of Ill L Forum 716, at p 719; Babcock, 15 U of Chicago L Rev 87.
The trial court also held that the residential classification of plaintiffs’ properties, both the multiple dwelling area, 400 feet in depth along Woodward avenue, and the single-dwelling area of substantial depth to its rear, was unreasonable and confiscatory because, as we read it, “The day is since past when Woodward avenue frontage anywhere between Pontiac and Detroit is logically compatible with residential use.” The developers of Cranbrook Manor would .seem justified in their contrary belief. Contrariwise, also, seems to have been the opinion of one of plaintiffs’ experts, Thomas Elston, who testified that, at least from a traffic and noise standpoint, there would be no reason for saying that the rear part of the property fronting on Woodward was not an attractive residential property. Be that as it may, however, the wisdom of the ordinance, as we have observed, is not our concern. There are, obviously, those of our people to whom nearness to a great city, and ready access to transportation thereto, outweigh considerations of noise and the hazards of heavy traffic. It is not our function to debate the merits of their respective positions.
This Court is not equipped to zone particular parcels of land. We do not see the land, we do not see the community, we do not grapple with its day-today problems. When we interpose with our writ and command, for example, that a certain tract on Woodward avenue he turned over to commercial pursuits, the owners of the tract across the street are before us for similar dispensation the next day, and the areas north and south the day after. Thus we assume the zoning function. Their argument is cogent and not difficult to follow: What is sauce for the goose is sauce for the gander. So it is. But if the childish jingle is to he accorded the dignity of a legal axiom, if it is to replace, at least in these chambers, the deliberations of the legislative body, we would do well to re-examine our appellate function.
The function of the courts, with respect to these cases, lies largely in 2 broad areas: (a) has the legislative body the authority to act? (b) have the requirements of administrative due process been observed with respect to adoption, interpretation, and administration of the ordinance in question? The first brings to us the validity ánd breadth of the delegation of power. The second brings to us the legality of its use, whether the ordinance was properly adopted, whether exercised as to all alike, regardless of local pressures and improper influences, and similar questions. These are the areas in which we may he presumed to have some degree of competence. But many of the cases coming to us involve merely the legislative judgment. They are the peripheral problems (should the line be drawn here, or there?) and the allegations of more advantageous use, with its corollary of “confiscation” (the property is worth more if devoted to some other use). Save in the most extreme instances, involving clearly whimsical action, we will not disturb the legislative judgment. It is immaterial that we, as legislators, would have been wiser. We .are. acutely aware of the doctrine of the separation of powers. A legislative determination within its sphere of government is conclusive upon us. It was Mr. Justice Holmes who said in Noble State Bank v. Haskell, 219 US 104 (31 S Ct 186, 55 L ed 112, 32 LRA NS 1062, Ann Cas 1912A, 487), on rehearing, p 580: “We fully understand * * * the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern.”
Tested by these established principles it is clear beyond question that it lies within the competence of the city of Bloomfield Hills to plan its future growth and development, that its legislative body had authority to act, and that, so far as here questioned, the requirements of administrative and procedural due process have been observed (e.g., here there was no fatal defect in the observance of the requirement of a public hearing). Given these indispensable requirements, such factors as the relative values of competing uses, and the proximity of nonconforming uses, assume their rightful places as matters primarily for legislative concern, unless, as noted, we have patently a capricious and irrational invasion of property, the merits undebatable by reasonable men, the action indefensible to any save those whose minds have been made incandescent by partisan zeal or pursuit of gain. The prohibitory interposition of the courts, upon this record, is not warranted.
There is no merit in the additional issues raised by the appellees. Reversed. Costs to appellants.
Edwards, Voelker, and Black, JJ., concurred with Smith, J.
Dethmers, C. J., and Sharpe, Kelly, and Carr, JJ., concurred in the result.
See 219 US 575 (31 S Ct 299, 55 L ed 341) .—Reporter. | [
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Voelker, J.
During the past year or so the Eastern Michigan College at Tpsilanti (formerly Michigan State Normal College) .has had under construction 8 new residence apartment buildings, one to bo used by the faculty and the others to be used by married students. Plans called for completion and occupancy at the opening of the fall term of school in 1957. These new structures are located on its own property in Tpsilanti township, outside but adjacent to the city limits of Tpsilanti. As the construction sufficiently proceeded the college sought to have these new buildings effectively connected with the city of Tpsilanti water and sewage system and the water] turned on, but this the city refused to do unless the college first paid certain so-called “capital improvement charges” totalling $4,800 for tapping its water and sewage system, as provided by certain new ordinances passed by the city on January 21,' 1957. The college conceded it had to pay for water and the water connection, and also the water “capital improvement charge,” and tendered its $3,000 check for the latter, but refused to pay the $1,800 sewer “capital improvement charge” sought to be imposed by the city, notifying the city that under a valid preexisting contract between the two it should not and could not be required to pay for any sewage connection. The city then refused to connect, turn on or furnis'h water or permit sewer connection and this litigation has resulted.
On July 16th the college, through its governing board, filed here its original petition against the city for a peremptory writ of mandamus to compel it to • permit connection of said new buildings to the city sewage system without charge, to connect them to the water mains and supply water thereto, and for other relief, alleging in part as follows:
“That on the 7th day of July, A.D. 1926, your petitioner entered into a contract * * * by virtue of which your petitioner agreed to permit the city to construct a sewer on a part of premises owned by your petitioner in the township of Ypsilanti, Washtenaw county, Michigan, such premises comprising part of the campus of the college then known as Michigan State Normal College and now known as Eastern Michigan College, and such premises being located outside the city limits of respondent herein but lying adjacent thereto.
“That in return for your petitioner’s permission to construct a sewer on college land outside the city, respondent herein agreed, inter alia, ‘that the Michigan State Normal College will have the right to eon- nect with said sewer without charge, and that the city o£ Ypsilanti will extend its water mains to the boundary of the property of the State board of education near where said sewer is located, and that said water mains will be of sufficient size to meet the needs of the Michigan State Normal College whenever there is a necessity for larger mains.’ ”
The city answered opposing the petition, among other things admitting the existence of the 1926 contract and other allegations of the college just above quoted, but alleging that both the water and sewer connections had already been made in March, 1957; admitting the tender by the college and the receipt by it of the “water” check; admitting that it contends that it is entitled to a capital improvement charge for both water and sewer connections prior to the time that either are turned on; and alleging that relief in this case was barred by certain chancery litigation pending in the circuit court for Washtenaw county between the city and certain resident taxpayers who sought among other things to restrain the city from furnishing any such facilities to new users beyond the city borders. To this answer the college replied in substance that it sought not only a physical connection of sewage and water, but that it wanted the water turned on and kept turned on; that any sewage connection was manifestly ineffective and valueless unless this was done; and that it was an old customer and not a new one, and that accordingly any chancery suit pending in the Washtenaw circuit court had nothing to do with the present ease. To this reply the city in turn replied, claiming among-numerous other things that the 1926 contract called only for a connection; that a physical connection had already been made without charge and that thereby both the express and implied terms of that contract were completely satisfied. It also claimed that since the erection of college buildings for residence pur poses was only first authorized by law in 1937, that the furnishing of sewage connections without charge to such new facilities could not have been contemplated by the parties in the 1926 contract.
On July 31, Í957, this Court issued its order as follows:
“Lot an order issue requiring defendant to connect water service and give permission for sewer connection forthwith, as prayed, or in the alternative, show cause, on or before August 12, 1957, why a writ of mandamus should not issue as prayed.”
To this order the city filed an answer alleging in substance that such connections had already been made by plaintiff but that defendant had not furnished any water through these connections except as the college, through its contractors, had made certain illegal and meterless water connections; that the college therefore owed the city for water it had used through these illegal connections; and that on August 7th the city had accordingly shut off the illegal connections and sealed the valves: It further sought a reference to take proofs of many witnesses on various issues raised by it. It also raised questions of fact and law as to the right of the college to erect and rent the residence housing facilities under construction ; alleged that the college had asked for the wrong relief and had pleaded the wrong ordinance; alleged that mandamus was not the proper remedy; and concluded with an alternate prayer that the show cause order be dismissed and the writ denied or that such reference to take proofs be ordered.
To this answer to our order of July 31st the college replied “that the need and necessity for such writ is now urgent, dire and desperate in the extreme” and that “unless the writ issues a substantial number of students will be denied access not only to the housing facility but will be denied admission to the college.” It also denied making any illegal water connections anywhere on the campus and alleged that in any event the connections referred to hy the city in its answer had to do with an entirely different construction project more than half a mile away.
On August 16,1957, this Court issued a peremptory writ of mandamus directed to the city and its representatives, commanding it forthwith to connect water service to the new buildings in question; that it forthwith give permission for sewer connection without payment of any capital improvement charge for such sewer; and that it refrain in the future from disconnecting either water or sewer service at such buildings in derogation of the rights of the plaintiff.
Our supporting order on the same date, upon which our writ w;as based, concluded as follows: “without prejudice to the rights of either party to assert, in other appropriate proceedings, such rights, other than those prayed for by plaintiff in its petition herein, as are referred to in the pleadings or the parties may deem they have against the opposite party.” Because of the emergency character of these proceedings, as above noted, we caused such order to enter and writ to issue in advance of the filing of an opinion herein.
By papers filed here since that time the city has shown some disposition to appear to want to avoid the impact of our writ on various grounds: that the language of the writ did not follow that of the above-quoted language of the order; that in view of the language in the order that it apparently felt it could satisfy the writ by turning on the water briefly and turning it off again and then at leisure litigate “without prejudice” its various rights and claims to a sewage capital improvement charge as a condition to continued service; that the copy of tire writ as served did not properly conform to the origr inal-; that it has ordered but does not have on hand the necessary water meters to comply with the- writ;; and finally that it wanted oral argument before this-Court on its various claims and objections.
On this subject we will say this and no more: that we believe the city of Ypsilanti and its authorized representatives would be ill-advised to contemplate disobeying the mandate of our writ on any such grounds or any other grounds. The words “without prejudice” in our order are quite common in situations of this kind, and we point out that that portion of our order quoted expressly excepted the relief prayed for by the plaintiff, which we granted.
In our opinion whether the legislature authorized these new buildings in 1937 or whenever has nothing to do with the case. The contract of 1926 was plainly talking about future as well as present needs of the college, and it is equally plain that the contract was not meant to be confined to the needs in existence when it was made.
We meant exactly what we said in our writ. From the record before us we are of the opinion that the 1926 contract is a valid and binding continuing contract between the parties; that a clear legal right based upon that contract resides in the college to-have effective sewage connections made without charge; and that a clear legal duty resides in the city to furnish or authorize said sewage connections without charge; and that such a connection must include water (which the college concedes it must pay for) and means that the water must be turned on by the city and kept on, upon peril of disobedience of our writ. We further hold that the college is entitled to water and sewage connections and continuing' service without paying any sewer capital improvement charge; and that the plain intendments of the contract of 1926 between the parties cannot be circumvented by the device of a so-called sewage capital .improvement charge. We finally hold( that the,col lege is not obligated or required to pay the city any such charge nor may it pay any such charge at all.
Since a public question is involved, no costs are allowed.
Dethmers, O. J., and Sharpe, Smith, Edwards, Kelly* Carr, and Black, JJ., concurred. | [
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Black, J.
James Wheeler, former district game supervisor of the defendant department of conservation, was accidentally electrocuted August 9, 1955. December 6, 1956, Mr. Wheeler’s dependent widow and minor children received an award of compensation — under the workmen’s compensation act — on finding by the appeal board that such death arose out of and in the course of his employment by the defendant department. February 28,1957, it having-been represented that the appeal board’s finding collided with rules set forth in Daniel v. Murray Corporation of America, 326 Mich 1; Hickman v. City of Detroit, 326 Mich 547; Meehan v. Marion Manor Apartments, 305 Mich 262, and kindred cases, we granted application of the defendant employer and its insurer for leave to review such award.
The appeal board found, on strength of supporting-evidence and legitimate inference therefrom, that Mr. Wheeler (and family) was required by the employing department of conservation to live in a cottage provided by the department on the State- owned Pointe Mouillee game reserve (mouth of Huron river on Lake Erie); that his assigned work included study of, preparation for and (at times) personal participation' in televised educational and recreational programs of the department of conservation plus others of like nature; that he was responsible to the department of conservation “for maintenance of the buildings in the Pointe Mouillee game area including the house in which he lived;” that he was “on duty and subject to call 24 hours per day;” that television programs having to do with conservation “were an integral and important part of the department’s educational and public relations program,” and that the duty to watch and remain “up” on such programs constituted an essential part of Mr. Wheeler’s duties. The board went oil to observe, in the form of ultimate conclusions of fact:
“The fatal injury aróse out of and in the course of employment on the following 2 separate and distinct bases: (1) It was necessary that decedent have and use a television receiving set in order to properly and fully perform his regular duties of employment and he was engaged in installation work concerning same at the time of injury, and (2) Maintenance of the employer’s premises, including his own residence, was decedent’s responsibilty and he was engaged in an act of maintenance when the injury occurred.”
We turn now to the circumstances of Mr. Wheeler’s death. He had been assigned to the Pointe Mouillee reserve but a'short time prior to tragedy. The predecessor game supervisor, Merrill Petoskey, had attached a conventional television mast with antenna to the chimney of the cottage. When he departed for new assignment Petoskey left the connecting wire hanging outside the cottage as far as the floor levél, from which point it was extended inside the house and on the floor to the television receiver. Wheeler wished to have such connecting wire removed from the floor and installed on the underside of the floor joists. To that end, and during the fatal evening, he entered a crawl space (under the cottage floor) by means of a trap door providing access thereto. After having proceeded a short distance in the crawl space he encountered an electrically charged metal furnace duct and, the ground beneath the crawl space being damp, came to his death in such manner. On subsequent examination of the crawl space a witness found live wires- — not television connecting wire — hanging and exposed near the point where Mr. Wheeler was electrocuted. He also found evidence that such wires had been in contact with the mentioned furnace duct.
Did Mr. Wheeler’s death arise out of and in the course of his employment? We find no occasion for review of the authorities cited by defendants. Our decisions construing section 1 of part 2 of the workmen’s compensation act (CL 1948, §412.1; CLS 1956, § 412.1 [Stat Ann 1950 Rev § 17.151; Stat Ann 1955 Cum Supp § 17.151]) have undergone epochal changes since this application for leave to appeal ivas granted (Krist v. Krist House Moving Company, Inc., 348 Mich 230; Sheppard v. Michigan National Bank, 348 Mich 577; Freiborg v. Chrysler Corporation, 350 Mich 104; Dyer v. Sears, Roebuch & Company, 350 Mich 92) and Mr. Justice Smith’s exhaustive dissent in Salmon v. Bagley Laundry Co., 344 Mich 471, 475, has now been elevated to the status of recognized authority. In the latter opinion our Brother quoted with approval, from a later and obviously better considered decision of the supreme court of Massachusetts (Kubera’s Case, 320 Mass 419, 420 [69 NE2d 673]), a broad and comprehensive rule we adopt as. presently decisive (page 491 of report of Salmon):
“An injury arises- out' of the employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.”
In undertaking to provide a better and more serviceable installation of television facilities in the department’s isolated cottage this “resident employee” was performing for his employer a service which was incident to and in furtherance of the general task to which he had been assigned. The appeal board was consequently entitled to find, on the proof as presented, that Mr. Wheeler’s death arose in the course and out of his employment. That the act of repairing or improving installation of the television set was, in part, for the separate benefit of himself and family is of no moment. The combination of an employee’s responsibility to his employer for keeping in visual touch with televised programs addressed to conservation, and understandable desire of such employee to afford his family the known benefits of home television, makes up a clear case for application of the rule that where an employee is injured while performing a service for the employer as well as for himself the injury arises in the course and out of the employment (Geibig v. Asphalt Construction Co., 238 Mich 560).
Affirmed.
Smith, Edwards, and Voeliier, JJ., concurred with Black, J.
1 Larson’s Workmen’s Compensation Law, § 24, p 372. | [
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Souris, J.
This appeal by Romulus township is from a decree entered in consolidated suits instituted by 2 taxicab companies restraining the township from enforcing its taxicab licensing ordinance (Romulus township Ordinance No 35, as amended). Plaintiffs,- and other taxicab companies, pick up passengers from, and deliver passengers to, Metropolitan Wayne County Airport, located wholly in Romulus, for transport to and from various destinations principally in and around the metropolitan Detroit area. The Wayne county board of road commissioners, which owns and operates the airport pursuant to authority granted by the aeronautics code, has limited the right to pick up passengers at the airport to only those carriers with which it has entered into “concession” agreements and has promulgated rules and regulations governing the operations of carriers for hire on the airport premises. The township sought to enforce its taxicab licensing ordinance against those companies granted such concession and whose operations at the airport are subject to the board’s rules and regulations.
As the chancellor commented in his opinion, the power of the township to license taxicabs and drivers thereof doing business in the township elsewhere than within the airport is not challenged. The taxicab business. affects the health and safety of passengers, motorists, pedestrians, and other persons and property within the township (Lorraine Cab v. City of Detroit, 357 Mich 379) and may, therefore, be regulated by the township, by licensure or otherwise, pursuant to express legislative authority to adopt ordinances regulating, among other things, health and safety of persons and property. CLS 1956, § 41.181, as amended by PA 1959, No 55 (Stat Ann 1961 Rev § 5.45 [1] ). " The plaintiffs contend, however, that the aeronautics code “pre-empts” the township from applying any such ordinance to taxicab operations originating at the airport because it authorizes the county to operate and regulate such airports; to adopt rules, regulations, and ordinances for the management, government, and use thereof; and to grant concessions for goods and services. CLS 1956, §259.126, and CLS 1956, § 259.133, as amended by PA 1959, No 181 (Stat Ann 1960 Rev §§ 10.226, 10.233). They contend that such powers have been exercised by the county, through its board of road commissioners, by adoption of rules and regulations governing the operations of carriers for hire while on the airport premises and by execution of concession agreements with certain taxicab companies. Thus, their argument goes, the county’s exercise of the powers granted by the aeronautics code so comprehensively covers the operation of taxicabs at the airport that the township is thereby precluded from imposing its license ordinance upon such business.
The township’s ordinance is not applicable solely to taxicabs operating from the airport; it is universally applicable to taxicabs conducting business anywhere in the township. We are not, therefore, dealing with a direct attempt by the township to thwart or hinder the operation of taxicabs at the airport by ordinance applicable only to taxicabs authorized by the board to operate therefrom. What the plaintiffs’ argument amounts to is that the ordinance otherwise applicable throughout the township may not reach those taxicabs authorized to operate from the airport because it allegedly conflicts with the county’s rules and regulations and its concession agreements relating to taxicab service from the airport.
In pertinent part the rules and regulations adopted require consent of the board before a carrier for hire may load passengers at the airport, while any carrier for hire is permitted to enter the airport to discharge passengers. Nothing in the rules and regulations has any relevancy, directly or indirectly, to the li censure of such carriers by any other governmental agency.
The concession agreement, on the other hand, expressly provides that the favored carriers must conduct their operations in “strict conformity with all pertinent Federal, State and local government laws and regulations” and that they “shall obtain all licenses and permits which may be properly required by Federal, State [and] local government [s].” It also specifically refers to the fact that each of the favored carriers which are parties to the agreement “is duly licensed to engage in said operation,”- — by the city of Detroit, as to 1 carrier (Checker Cab Company, 1 of the plaintiffs), and by the township of Romulus, as to the 2 other carriers so favored.
The concession agreement grants an “exclusive right” to offer taxicab services from the airport for a stated fee per departure payable to the board. It specifies places and procedures for loading passengers and provides for minimum standards of supervision by the carriers. It requires the carriers to provide insurance and bonds in accordance with the requirements of the financial responsibility act (CLS 1956, § 257.501 et seq. [Stat Ann 1960 Rev § 9.2201 et seq.]) and in accordance with the insurance and bond requirements of Detroit’s taxicab licensing ordinance to which reference is made in the agreement. Nothing whatever is provided in the agreement relating to the rates which may be charged passengers by meter or otherwise, the condition of the taxicabs used by the carriers and inspection thereof, and the qualifications of the drivers.
In short, even if we assume without deciding that the aeronautics code empowers the county to do so, neither by agreement with carriers nor by rule and regulation has the county attempted to occupy exclusively the field of regulation covered by the township’s taxicab licensing ordinance. Absent such at tempt, there can be no conflict. See Huron Portland Cement Co. v. City of Detroit, 362 US 440 (80 S Ct 813, 4 L ed 2d 852, 78 ALR2d 1294), affirming 355 Mich 227.
The only remaining issue is the plaintiffs’ claim that the total revenues obtained from the ordinance far exceed the cost of its administration and enforcement thereby invalidating the ordinance as an exercise of the township’s police power. The ordinance provides that its requirements relating to insurance and bonds, licensing of drivers, and inspection of vehicles and taxi meters may be waived upon presentation of documentary evidence of compliance with comparable requirements of another municipality. The evidence discloses that Romulus township does not possess taxi meter testing equipment nor does it otherwise inspect vehicles or drivers prior to issuance of licenses. Whenever an applicant for license in Romulus has not been licensed elsewhere, Romulus sends him to an adjoining township which has the necessary equipment and personnel for inspection and testing. The evidence also discloses that the township’s revenues from the taxicab ordinance, if enforced, would equal or exceed its entire budget for both the police and ordinance enforcement departments, only a small portion of the time of which involves matters relating to regulation of the operation of taxicabs in the township.
While the chancellor made identical findings of fact from the evidence presented, he did not base his decree thereon; instead, he concluded that the ordinance was otherwise invalid. Had he considered the issue, we are convinced from his recorded findings of facts that he would have concluded, as do we on de novo review, that the license fees charged are so much greater than reasonably necessary to reimburse the township for its costs of regulating the licensed business that the ordinance is in fact a rev enue measure rather than a valid exercise of the police power and, for that reason, must he declared-invalid. See Vernor v. Secretary of State, 179 Mich 157 (Ann Cas 1915D, 128); Fletcher Oil Co. v. City of Bay City, 247 Mich 572; North Star Line, Inc., v. City of Grand Rapids, 259 Mich 654; and Merrelli v. City of St. Clair Shores, 355 Mich 575.
. Affirmed. Costs may be taxed only by appelleeswho have filed briefs on appeal.
Carr, C. J., and Dethmers, Kelly, Black, Kavanagh, Smith, and O’Hara, JJ., concurred.
The board intervened as party plaintiff in the suits.
CL 1948 and CLS 1956, § 259.1 ei seq., as amended (Stat Ann 1960 Rev § 10.101 et seq.). | [
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Edwards, J.
This is another difficult zoning problem. By so saying, in effect, we foretell the result of this case. For we are asked herein to set aside as unconstitutional a certain zoning classification on the grounds that it represents an arbitrary, capricious, and unreasonable legislative judgment.
Plaintiff in this case purchased 54 acres of land at the southwest corner of Middlebelt and School-craft, in the city of Livonia, in November, 1954. At the time of his purchase he knew the provisions of the previously-adopted zoning ordinance of which he now complains. He purchased the property for the purpose of building a large drive-in theater. His application for a building permit for this purpose was refused on the ground that the use contemplated was prohibited by the zoning ordinance.
Plaintiff thereupon brought mandamus proceedings to compel the issuance of such permit, alleging* that the specific provision of the zoning ordinance of the city of Livonia which prohibited drive-in theaters at any place in said city was unconstitutional, and that the zoning plan applied to the 54 acres which he had purchased was unreasonable and capricious and, hence, unconstitutional.
The circuit judge before whom the mandamus proceedings was heard disposed of the first question as follows:
“With reference to the first objection raised by the defendants as a basis for not issuing the building permit, it must be borne in mind that a drive-in theater is a legitimate business enterprise; that the city of Livonia is a new city containing 36 acres [sic square miles] of area, and that the record shows that there is ample vacant and industrial area on which to locate the same. This ordinance prohibits the erection of a drive-in theater anywhere within its corporate limits.
“A zoning ordinance which prohibits the construction of an outdoor drive-in moving picture theater, is unreasonable and arbitrary where the neighboring territory was either vacant, unimproved land, or devoted to heavy industrial plants, and there also was ample vacant property for residential use. People, ex rel. Trust Company of Chicago, v. Village of Skokie, 408 Ill 397 (97 NE2d 310).
“In King v. James, 88 Ohio App 213, 215:
“ ‘We are convinced and apparently it is now conceded that a drive-in theater is not a nuisance per se.’
“In 62 OJS, Municipal Corporations, § 237, pp 597, 598, it is stated:
“ ‘The power to prevent or prohibit a business or trade is to be exercised in the event the business or trade is per se of such a nature that its tendency is dangerous to morals, health, or safety. In other words, if a business is a nuisance per se, the municipal corporation may prevent it. ■ A business cannot be prohibited as a nuisance unless in fact it is a nuisance.’
“Therefore, the court is of the opinion that this ordinance is unreasonable and arbitrary.”
As to this first issue, defendant city took a cross appeal. We believe, however, that the circuit judge was right and we adopt his opinion thereon. For the reasons given therein, we hold that a drive-in theater is a legitimate business. City of Somerset v. Sears, 313 Ky 784 (233 SW2d 530). A zoning ordinance may not be employed to proscribe generally a legitimate business, unless the prohibition has a reasonable relationship to the health, morals or welfare of the community. Gust v. Township of Canton, 342 Mich 436. We concur in the trial judge’s opinion as to the invalidity of section 4.09 of defendant’s zoning-ordinance- purporting to prohibit the establishment of any outdoor theaters, and, hence, deny the cross appeal of defendant city of Livonia.
The principal question in this case, however, pertains to the zoning pattern defendant city applied to the 54 acres at the corner of Middlebelt and School-craft. . Both highways are shown by the testimony to be heavily-traveled thoroughfares. The ordinance recognizes the importance of the intersection by C-2 (commercial) zoning paralleling both highways to a depth of 300 feet. The balance of the 54 acres is zoned RUFB which is a rural urban farm classifica tion under which the drive-in theater would be prohibited as a commercial use.
The record discloses that the ItUFB zoning of the-interior portion of the piece has the effect of forestalling plaintiff’s drive-in theater plan, if held valid,, because of the space requirements of the theater.
In contending that the zoning is plainly arbitrary and capricious, plaintiff points to a large race track built on acreage on the southeast corner of the intersection in question. He also points to manufacturing zoning and 2 industrial institutions south of his parcel of acreage, along the Chesapeake & Ohio railroad.
Defendant, on the other hand, points to the fact that the rural urban farm zoning continues from plaintiff’s property in a generally continuous line west along Schoolcraft, and to a general residential area to the north and west. The zoning pattern complained of may be more effectively viewed than described in the reproduction which follows of a portion of exhibit 1 in these proceedings:
The trial judge who heard this matter dealt with the second of the issues presented to him, as follows:
“With reference to the second point raised that the zoning ordinance forbids the erection of a drive-in theater on the site proposed by plaintiff, the court is of the opinion that the zoning as reflected by the zoning plan for the city of Livonia is not capricious, arbitrary, discriminatory, or unconstitutional, nor does it amount to a confiscation of a part of plaintiff’s property. It is true that a race track is across the street from the present proposed site and that north of the proposed site is a vacant area which is to be subdivided into residential property and that both east and west of the site in question is unimproved property. The part of plaintiff’s property which he proposes to use for the theater is zoned as BUF, or a rural urban farm under the ordinance. Under this section petitioner can use his property for residential purposes, along with incidental uses such as nurseries, greenhouses and truck gardens.
“The council for the city of Livonia in the exercise of its good judgment adopted this plan for zoning. Every zoning ordinance has to have a beginning and an ending and one zone has to be separated from another at one point or another. The court does not propose to undertake a legislative function and set up a new zoning district for the city of Livonia. That is not properly a function of the judiciary. Therefore, for this reason, and this reason only, the petitioner is not entitled to a writ of mandamus and the cause should be dismissed, the zoning ordinance being held valid in all respects as applied to petitioner’s property.”
Again we agree with the conclusion reached by the circuit judge.
We certainly feel that reasonable minds might well differ about the wisdom of the zoning pattern Ave have described. It is apparent that uses pre-existing the zoning ordinance have prevented the adoption of a wholly consistent plan. However, the rural urban farm zoning stretches generally to the west and north of plaintiff's property, and the trial judge has found that the evidence does not indicate confiscation of any part of plaintiff's property.
Plaintiff relies principally upon Gust v. Township of Canton, supra; and Bassey v. City of Huntington Woods, 344 Mich 701. We do not read the former as holding that a city may not take into account the probable future development of the community in establishing a zoning pattern where this is done in reasonable relationship to presently-existing conditions. The instant zoning pattern clearly contemplates residential development along and south of Schoolcraft road. The evidence contained in this record of presently-existing residential developments and the expert testimony of realtors and city planners indicates that there are existing facts which justify this expectation. The mere use of the term “zoning plan” automatically implies some consideration of the future.
Nor do we believe that the Bassey Case is precedent for the result plaintiff-appellant seeks here to reach. That case upheld a trial court’s finding that certain Woodward avenue lots in Huntington Woods were not feasible or suitable for single-family use as zoned. Weight was lent to the opinion by the fact that in almost 40 years only 1 single-residential house had been built in the area concerned.
Our current facts are quite different. In this case there is ample evidence to indicate that the property in question can be effectively developed for residential use, and the trial judge so found.
Under the total record, we cannot conclude that the zoning provisions complained of were arbitrary, capricious or unreasonable. Where the validity of a zoning classification is fairly debatable, the legislative judgment thereon must prevail. Village of Euclid v. Ambler Realty Co., 272 US 365 (47 S Ct 114, 71 L ed 303, 54 ALR 1016); Highland Oil Corporation v. City of Lathrup Village, 349 Mich 650; Brae Burn, Inc., v. City of Bloomfield Hills, 350 Mich 425.
The judgment of the court below denying the writ of mandamus sought and dismissing this petition is affirmed. No costs, neither party having prevailed entirely.
Dethmers, C. J., and Sharpe, Voelker, Kelly, Carr, and Black, JJ., concurred.
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Souris, J.
Plaintiff wife was awarded a decree of divorce on ground of extreme and repeated cruelty. CL 1948, § 552.8 (Stat Ann 1957 Rev § 25.88). Defendant appeals, claiming plaintiff’s proofs failed to establish the requisite statutory ground for divorce. We agree and, so, must reverse this decree.
The parties were twice married. The first marriage ended by divorce after either 4 years or 7,— inconsistencies in the record make it impossible to determine when with any degree of certainty. After a lapse of at least 4 years, or possibly 7, the parties remarried. No children were born of either marriage.
Plaintiff’s testimony relating to her claims of cruelty were not corroborated by any other witness. Her own testimony sometimes fell short of that reasonably expected from her by her counsel (if one may assume it is not unreasonable of counsel to expect a litigant to verify by direct testimony what has been pleaded), thereby inducing counsel to supply the missing facts by testimonial interrog'ation. One example will suffice to illustrate our concern over this record:
“Q. Would it be possible for you to run a normal house, taking into consideration this habit of his of coming home at irregular times?
“A. No. I couldn’t.
“Q. You are stating then that drinking has made a problem as far as his not coming home on time.”
The record does not support counsel’s testimonial conclusion. Plaintiff did not testify in her preceding-examination that defendant’s irregular hours were the result of “drinking.” As a matter of fact, even her subsequent testimony fails to establish this claim. Instead, it discloses that plaintiff herself realized defendant’s employment caused such irregularity, in substantial part at least. So much for the technical inadequacies of this record.
Accepting plaintiff’s testimony at its face value, it fails to establish grounds for divorce. She testified that defendant drank beer daily, but she didn’t know how much he consumed; that on 1 occasion he was discourteous to guests in their home by reading a newspaper in their presence; that he objected to plaintiff’s attending meetings of a garden club and that plaintiff resigned when a meeting was about to be scheduled for her home because she feared defendant would embarrass her in front of her friends; that defendant, never very talkative anyway, refused to discuss with her household problems ; and that defendant never took her out socially except to taverns.
Plaintiff conceded that defendant never struck her, but testified that she left the marital domicile on the morning after defendant asked her, “What do I have to do, beat you to get rid of you?” She now professes this caused her to fear physical harm, but apparently she was not then frightened for she remained in the home with defendant until the following morning. Subsequently, until shortly before filing her bill of complaint, she resumed marital relations with defendant notwithstanding the fears she now professes.
Much of plaintiff’s testimony relates to her claim that defendant failed to support her during the marriage. Her own testimony belies the claim. She testified that defendant gave her his weekly pay, from which she would retain between $50 and $60 and from which she would give defendant $20 or $25 for his daily expenses. She candidly conceded she never objected to this arrangement, but maintains now that defendant’s financial contribution was inadequate to the parties’ needs. She claims it was necessary for her to contribute the monthly income from property she acquired before marriage to the joint family bank account, in a total amount of about $6,000 over the 4-year span of the present marriage. She makes no claim that defendant withheld any of his income from her, nor does she claim that her own financial contribution to the family was involuntary. The conclusion is inescapable that defendant performed his legal obligation of support to the extent of his capacity and plaintiff’s voluntary contributions of her own income to the family’s needs cannot alter the situation.
There is no other evidence in this record from which we can find properly that defendant was guilty of cruelty within the meaning of the cited statute authorizing judicial severance of marriage relationships. As we said in Williams v. Williams, 351 Mich 210, at 213:
“Cruelty we have, indeed, made a ground for divorce * * * but -¿kg cruelty we demand is more than display of temper, more than exasperating habits of conduct or expression. We must get into the realm of the evil and the wicked, of brutality, of malignancy, of indignities endangering mental or physical health. None of this do we here find.”
In Cooper v. Cooper, 17 Mich 205 (97 Am Dec 182), the Court said, at 210:
“The law does not permit courts to sever the marriage bond, and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable. Our statutes do not confine such cruelty to mere physical violence, which is by no means the worst injury that can be inflicted on persons of refined sensibility, but the grievance, of whatever kind, must be of the most aggravated nature to justify a divorce. While the proof shows that these parties lived in very unpleasant relations, it is not clear that' matters had proceeded to extremity.”
Our decision to reverse the decree of divorce entered in this case is not made without concern for the consequences of our action upon the parties. However, as we have noted before, divorce is a statu-* tory remedy in which our role is narrowly restricted for reasons of public policy.
“Divorce may only be had when the statutory grounds have been established. We hear the case de novo and, upon finding the proofs insufficient to establish such grounds, it is incumbent upon this Court, in' furtherance of public policy and protection of the interests of the State, regardless of the wishes of the parties or of who raises the question, to deny' a decree of divorce.” Unjian v. Unjian, 344 Mich 423, 427, 428.
The. decree entered below is reversed. A decree may be 'entered in this Court dismissing plaintiff’s bill of complaint. There shall be nó costs taxed.
Carr,. C. J., and Dethmers, Kelly, Kavanagh, and Smith, JJ., concurred with Souris, J. | [
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O’Hara, J.
Charles M. Begole, in his lifetime was financially well circumstanced. Pie made testamentary disposition of his property in an instrument containing a number of specific charitable bequests, a bequest in trust for plaintiff’s decedent, and a residuary bequest. It is with the trust in its relationship to the residuary clause that we are here concerned. The trust was in the nature of a life interest in the investment return on the corpus. The concerned paragraph is hereinafter set forth in full:
“Sixth: — I give, devise and bequeath to the First National Bank at Flint Five Hundred Thousand Dollars of securities owned by me at the time of my death, such securities to be selected by it and when so selected to be held by it in trust for the following purposes: Immediately after my death, and on the selection of the securities by my said trustee herein named, my said trustee is to take possession of such securities, collect all income therefrom, keep the same invested and reinvested, using its best discretion for that purpose, pay all taxes assessed against the same and pay over to my said adopted daughter, Louise Begole Smith, during the term of her natural life, as fast as the same is received, the entire net income from such securities, such income when paid over to her to belong to her absolutely and unconditionally, and at her death, if she leaves a child or children surviving her, pay over to each child of hers surviving her the sum of Fifty Thousand Dollars, the same to belong to such child or children absolutely; pay over to the husband of my said adopted daughter, if he is alive at that time, the sum of Five Thousand Dollars, to be his absolutely and pay the balance over to Harriet E. Davison, Charles A. Cumings, Edward M. Cumings and Josiah W. Begole of the City of Flint, Michigan, and William B. Cumings of Otter Lake, Michigan, equally, provided they are all alive at that time, and to the survivors of them, if any of them have died before that time without issue, but if any of them have died before that time leaving children surviving them and such children are alive at that time, then the portion which would go to the parent of such child or children, if living, shall go to snch child or children by right of representation.” ■ ■
While still alive, the life beneficiary, original plaintiff here, filed a bill in equity to construe the trust, and for other relief. The bill was in 5 separate counts. One and 2 alleged that a demand was made upon the successor trustee to pay over certain returns on the corpus which plaintiff claimed were hers absolutely, payable instanter, and which the fiduciary was erroneously retaining for the remaindermen. Count 3 sought an order directing the fiduciary to divest the trust of certain high tax bracket securities. Count 4 prayed an order of a rather general nature ordering the trustee to reinvest some securities in higher return stocks, claiming the remaindermen were being favored over the life beneficiary. Count 5 alleged a conflict in interest between the duty of the fiduciary to the life beneficiary and his personal potential for gain by reason of his status as the husband of one of the remaindermen, and asks his removal.
To this bill the fiduciary and named remainder-man filed a motion to dismiss on the ground that the bill stated no equitable cause of action.
The trial court granted the motion as to each of the 5 counts, assigning reasons for each. As to counts 3 and 4, the court held that the investment practices were within their recognized discretionary limits; that they had been subject to continuing supervisory control of the probate court which had been duly exercised. As to count 5, the chancellor determined that it was purely a conclusionary allegation of a potential for self benefit, and constituted no basis for equitable relief.
In disposing of counts 1 and 2, the trial judge held as follows:
“The language of the paragraph in question [the trust provision heretofore quoted] is plain enough and requires no construction; it says clearly that the plaintiff shall have the ‘entire net income’; and what that phrase means has been resolved for Michigan by In re Joy’s Estate, 247 Mich 418 (72 ALR 973), and subsequent cases. Stock script, stock purchase rights and stock dividends, our Supreme Court has ruléd, are principal, not income.”
To these holdings we must address ourselves with care. Our decision here is of abiding consequence not only to the parties here but is of important' general application.
In the interest of clarity, we point out that plaintiff’s life beneficiary died during the pendency of this litigation and her personal representative, the ancillary administrator of her estate, has been substituted as plaintiff. Earlier in the pendency of the trust, the named corporate trustee, First National Bank of Flint, went into receivership and defendantBrownell was named successor trustee.
Since the issue is before us on appeal from the granting of a motion to dismiss for failure to state a cause of action, it is elemental that for our purpose' in deciding, we must accept as true each well-pleaded, material allegation of 'the bill. See L’Hommedieu v. Smith, 351 Mich 223; Mathetos v. United Association of Journeymen, 351 Mich 293 at p 298; 2 Callaghan’s Michigan Pleading and Practice (1963 Cum Supp), chap 25, § 25.26, and cases there cited..
Antecedent this premise, however, is the fundamental question in every will construction easeIs' the instrument ambiguous? Synonymously stated, the proposition is: Is the intent of the testator clear, requiring therefore no judicial construction of the instrument to determine that intent? (See Quarton v. Barton, 249 Mich 474 [69 ALR 820].) The first-ambiguity contended for by plaintiff is the use of. the- phrase “entire net income.” If this phrase as used by the testator is clear, plaintiff’s case falls — more aptly perhaps it never rises in order to fall.
In support of her position, plaintiff urges:
(1) Net income is per se ambiguous. It does not distinguish between the various types of declared corporate returns on securities and that the use of “entire net” adds nothing by way of clarification.
(2) That while In re Joy’s Estate, supra, and subsequent cases have defined the word “income” as it relates to trusts in Michigan, that definition adopted by us in 1929 is not reflective of the testator’s intent in 1920 when he made his will, and that consequently plaintiff should be allowed to adduce proof of what that intention was.
Conversely argue the trustee and the remainder-men:
(1) The intent of the testator is manifest. He meant all cash dividends should be paid to the life beneficiary so long as she lived, and in whatever amount the increased corpus of the trust might provide. He was safeguarding her future by limiting her to usable cash return — and specifically excluding her from outright ownership of convertible stock interests. This they contend is clear from the intent of the whole instrument viewed from “its four corners” as against a legalistic piecemeal analysis of a single phrase.
(2) Joy, decided in 1929, was applied retrospectively in that case, the will having been drawn in 1908 and should be so applied here to the will drawn in 1920; that to do otherwise here would be “invidious discrimination and an intolerable parados.” That under well-recognized rules, the law as enunciated in Joy, since it overruled no prior holding, was a declaration of what the law always had been and the testator was presumed to have known what it was.
In re Joy’s Estate, supra, clearly committed this State to the Massachusetts rule in the interpretation of what was there before the court, viz., the meaning of the phrase “the net revenues” of the residue of the estate and the status of “stock dividends” as capital rather than income. In the language of the case:
“A simple rule is, to regard cash dividends, however large, as income, and stock dividends, however made, as capital.” In re Joy’s Estate, supra, p 421.
We are not unmindful, nor have we failed to consider the argument so earnestly urged by counsel for plaintiff in brief and on oral argument that Joy was adopting a rule of law for Michigan as of the date of its decision; that the more generally accepted interpretative rule at the time of the execution of this instrument was the “Pennsylvania” rule, rejected by Joy, and that the testator should be presumed to have been guided by the then more generally accepted principle.
Two propositions inhibit the application of plaintiff’s theory. First Joy did not overrule a prior .adopted rule. This Court clearly distinguished between prior holdings dealing with stock dividends .and the interpretation of the phrase “net revenues” from the residuary estate:
“While this Court has had occasion to consider wills, under the provisions of which stock dividends came into the hands of trustees, we were able from the language used to ascertain the intent of the testator as to the distribution tvhich should be made of them.” (Emphasis supplied.) In re Joy’s Estate, ■supra, at p 420.
“ Hence, we must here conclude that Joy was not announcing a new rule but rather articulating what —as to the precise question presented — had been the law theretofore.
Secondly, and perhaps more persuasively and pointedly relevant to the question of the testator’s intent — hence the lack of ambiguity, hence the absence of need for equitable construction — is the following language from Joy, at p 423:
“In common thought, we apprehend that the average man regards cash dividends as income and stock dividends as additions to his capital, and that he has this in mind when establishing a trust of this nature.”
We think this language equally applicable today. The language of Joy, heretofore quoted, however, is limited to “cash dividends” and “stock dividends” both in the quotation heretofore set out and even more specifically in the order of remand which directs the probate court to enter an order “awarding the stock dividends in question to the residuary legatee.” In his opinion' the chancellor relegates stock scrip and stock purchase rights to the same category as “stock dividends.” Assuming without here specifically deciding such to be the case, we cannot disregard what appellant denominates as stock dividends and other similar accruing benefits. We are not unmindful that in the more than quarter of a century that has passed since the ’ decision in Joy, new- corporate investment return techniques have been adopted. We mention “stock splits” as distinguished from “stock dividends” merely as 1 example. Without any record made below as to the specific nature of the various types of investment returns which were interpreted by - the successor trustee to be income and which to be principal, we are hard put to decide the degree of applicability of the rule in Joy and the need, if any, to re-examine it. Admittedly, the bill of complaint in this .and in other respects, is couched in conclusionary terms. However, keeping in mind that we still deal with the question of the sufficiency of the pleading to state aii equitable cause of action, we face again the longstanding controversy of what is a “conclusion of the pleader” and a “material fact.” As noted in 2 Callaghan’s Michigan Pleading and Practice, § 21.16, p 16:
“Frankly, the distinction between averments of ultimate fact and mere conclusions of the pleader is not always too easy to make. But the modern tendency is not to regard such distinctions too critically, and, as the supreme court of 1 of our neighboring States has well said, ‘it will not do to pursue toó far metaphysical distinctions between allegations of fact and conclusions of law.’ ” (Flambeau River Lumber Co. v. Lake Superior Dist. Power Co., 200 Wis 31, 33, 34 [227 NW 276].)
Ve think for the purpose of the motion the bill of complaint sufficiently' stated an equitable cause of action, and that an evidentiary record of whatever is relevant and admissible would be helpful to the trial court. This, we believe, is particularly true so far as the exact nature of those investment returns which were relegated to capital accretion and which to income. Helpful, too, would be any available and admissible evidence bearing on testamentary intent in the maintenance of the corpus of the trust at the value-figure specified in the trust instrument.
. For the reasons hereinbefore specified, the order granting the motion to dismiss is vacated. The case is remanded for hearing.
Appellant may have costs.
Carr, C. J., and Dethmers, Kelly, Black, Kavanagh, Souris, and Smith, JJ., concurred. | [
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Smith, J.
Plaintiff brought action for damages for breach of contract against defendant Catsman; and for damages for interference with contractual rights by defendant Herrlich. Proofs in the trial court were taken on, and limited to, the issue of whether there was a contract between the parties. A judgment in defendants’ favor was rendered upon motion for directed verdict, from which plaintiff appeals.
It is alleged by plaintiff that he and the Catsman Realty Company through its president, Samuel M. Catsman, entered into an agreement whereby the realty company, for certain stipulated rental payments, would construct and lease a building on property owned by it, said building to be operated by plaintiff as a drugstore.
The record indicates that an agreement was prepared by plaintiff; it was modified at the suggestion of defendant Catsman, and signed by both parties on January 16, 1959. The agreement provided that defendant Catsman “contemplates” erecting upon certain real estate a brick and masonry building for use as a drugstore. The agreement expressed, similarly, that plaintiff “contemplates” leasing said building. Particular note is made of the use of the word “contemplates.” Approximate dimensions were set forth in the agreement which further provided building “to be erected in accordance with plans and specifications and design not as yet formalized.” An additional stipulation was this: “provided that said plans, specifications, and design are acceptable to both parties that a lease shall be entered into between the parties.” The agreement stated further that “if for any reasonable reason the plans, specifications and design of said building are unacceptable to either party that the $1,000 good faith money shall be returned to the first party by the second party.”
The record indicates various steps were taken by the parties pursuant to the agreement, including rezoning of the property, an attempt to transfer plaintiff’s liquor license, retaining an architect, procurement of plans and specifications, and the taking of bids. The record further indicates that plaintiff was unsuccessful in his attempt to obtain financing. On May 19, 1960, defendant Catsman returned the $1,000, along with notice of his election to terminate the agreement. Subsequent to this notice of termi nation, defendant Catsman entered into a similar agreement with defendant Herrlich.
The sole question for the determination of this Court appears to be whether the trial court erred, as a matter of law, in finding that the subject instrument was not an enforceable contract.
It is well recognized that it is possible for parties to make an enforceable contract binding them to prepare and execute a subsequent agreement. In such a case, where agreement is expressed on all essential terms, the instrument is considered a contract, and is considered a mere memorial of the agreement already reached. 1 Corbin, Contracts, § 29. It is further to be noted, however, that “If the document or contract that the parties agree to make is to contain any material term that is not already agreed on, no contract has yet been made; and the so-called ‘contract to make a contract’ is not a contract at all.” Corbin, supra, p 68. See, also, 6 MLP, Contracts, § 27.
As noted in 1 Restatement, Contracts, § 26, p 33:
“Mutual manifestations of assent that are in themselves sufficient to make a contract will not be prevented from so operating by the mere fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but other facts may show that the manifestations are merely preliminary expressions.”
An agreement was held unenforceable in Socony-Vacuum Oil Co., Inc., v. Waldo, 289 Mich 316. The Court at pages 323, 324, cited 12 Am Jur, Contracts, § 24, p 521: “To be enforceable, a contract to enter into a future contract must specify all its material and essential terms and leave none to be agreed upon as the result of future negotiations.”
Regarding the agreement in the present case, several essential terms were left for future negoti ations, snob, as, for example, the requirement that plans, et cetera, be acceptable to both parties. It was stated in the agreement, that plans were not, as of the time of signing, formalized. This left, perhaps, the most significant feature of the venture open for further discussion and negotiations. In a like manner, the instrument additionally supports this construction in its provision for forfeiture “if for any reasonable reason the plans, specifications and design are unacceptable to either party.” What may constitute a “reasonable reason” is left to conjecture. At the very least, it is a matter for future negotiations, within the proscriptions of the Socony-Vacuum Case, supra.
In addition to matters left for future negotiations, there is yet another reason why the trial judge was correct in holding that the “agreement” was but a memorandum of the intentions of the parties. The use of the word “contemplates” in several significant clauses, cited above, is meaningful in law. In an. opinion from the bench, denying a new trial, Judge Both said:
“I found that the repeated use of the word ‘contemplates’ is not only apt but also clearly brings the instrument into legal focus, and I had recourse not to a law book but just to a common garden variety dictionary to find out what we mean by ‘contemplate’.
. “To contemplate is to consider and have in view in reference to a future act or event, to intend.
“And I held that here that future act or event never occurred.”
Ordinarily, the word “contemplates” indicates an expectation or intention rather than a promise or undertaking. Read v. Fox, 119 App Div 366 (104 NYS 251).
Whatever may. have been the- true intentions of the parties to the instrument in question, the vehicle used lacks the basic certainty which, under settled principles, is required before sanctions may be imposed. The trial judge found that inasmuch as the instrument upon which the cause of action was grounded was insufficient, as a matter of law, then there was no question of fact for the jury.
Affirmed. Costs to defendants.
Carr, C. J., and Dethmers, Kelly, Black, Kavanagh, and Souris, JJ., concurred.
O’Hara, J., took no part in the decision of this case. | [
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Per Curiam.
By leave granted, the Second Injury Fund appeals a March 6, 1992, opinion and order of the Workers’ Compensation Appellate Commission, one member dissenting, reversing the decision of a magistrate and declaring that § 373 of the Workers Disability Compensation Act, MCL 418.373; MSA 17.237(373), (the retiree presumption) is not applicable to plaintiff. The commission correlatively affirmed the magistrate’s determination that plaintiff suffered a disabling, single-event injury on September 9, 1985.
On that date, plaintiff, who was "on call” for the hospital, was summoned back to work by his employer. He was putting on his shoes when he felt overwhelming pain in his back. He thereafter was never able to return to his regular employment, which involved heavy lifting.
In 1986, plaintiff accepted an offer of favored work, a clerical position that entailed six hours of work a day, five days a week. He continued the favored work until June 1, 1987, three days after his sixty-second birthday, when he retired. Plaintiff then began receiving social security nondisability retirement benefits, for which he had begun the application process three months earlier.
The commission held § 373 inapposite because it concluded that plaintiff had not left "active employment,” reasoning that plaintiff was not performing his customary work, but favored work, at the time he retired. The commission also adopted plaintiff’s testimony that, on the date he retired, his back pain had become so severe that he could not continue even his clerical duties. Thus, the commission concluded that plaintiff was disabled even from favored work on the date of retirement.
The Second Injury Fund presents the following issues for review:
I. Did the wcac err in holding that plaintiff’s favored employment was not "active employment: for [purposes of] application of the retiree presumption contained in § 373?
II. Did the wcac err in finding a date of injury of September 9, 1985, the date plaintiff testified he injured his back while putting on his shoes at home, rather than a last day of work injury of June 1, 1987 pursuant to Porter v Great Lakes Steel, 114 Mich App 293 [318 NW2d 646] (1982)?
Section 373 provides, in relevant part:
(1) An employee who terminates active employment and is receiving nondisability pension or retirement benefits under either a private or governmental pension or retirement program, including old age benefits under the social security act, 42 USC §§ 301-1397f, that was paid by or on behalf of an employer from whom weekly benefits under this act are sought shall be presumed not to have a loss of earnings or earning capacity as the result of a compensable injury or disease under either this chapter or chapter 4. This presumption may be rebutted only by a preponderance of the evidence that the employee is unable, because of a work related disability, to perform work suitable to the employee’s qualifications, including training or experience. This standard of disability supersedes other applicable standards used to determine disability under either this chapter or chapter 4. [MCL 418.373; MSA 17.237(373).]
For purposes of § 373, this Court has twice construed "active employment” to mean being "actively on the job and performing the customary work of [the] job.” Frasier v Model Coverall Service, Inc, 182 Mich App 741; 453 NW2d 301 (1990); Dezwaan v Holland Motor Express, 189 Mich App 575, 579; 473 NW2d 788 (1991).
The commission has misconstrued what this Court intended when it spoke of "performing the customary work of [the] job.” Plaintiffs job, as of the date of retirement, was clerical. Immediately before his retirement, plaintiff was performing the customary duties of his clerical employment. To construe the phrase as the commission has done in this case makes the retiree presumption entirely meaningless, because all workers with otherwise work-related, compensable disabilities are, by definition, incapable of performing the particular job they were doing at the time of injury, by virtue of the definition of "disability” in § 301(4), MCL 418.301(4); MSA 17.237(301)(4).
The commission went on to reach the further erroneous conclusion that, pursuant to § 301(5)(e), MCL 418.301(5)(e); MSA 17.237(301)(5)(e), because plaintiff was employed less than one hundred weeks in favored work, he must receive compensation irrespective of the reason for losing his job. Subsection 5(e) of § 301 must, however, be construed properly in the context of subsection 5(a), which bars an employee, who has received a bona fide offer of favored work ("reasonable employment from the previous employer, another employer, or through the Michigan Employment Security Commission”) from receiving any benefits, on the rationale, so declared in the statute itself, that the employee has thereby voluntarily left the workforce.
That is, of course, exactly what plaintiff did when he retired. This renders irrelevant the commission’s additional, gratuitous finding that, on the date he retired, plaintiff was no longer able to perform even his favored employment. The fact remains that plaintiff was employed in and performed favored work until the date of retirement. Therefore, upon retirement, plaintiff "ceased active employment.” McDonald v Holland Motor Express, Inc, 201 Mich App 285, 288-289; 506 NW2d 234 (1993). Accordingly, plaintiff must rebut the presumption established in § 373 by showing that work suitable to his qualifications, training, or experience is unavailable, not simply that he cannot perform the favored work in which he was employed at the time of retirement. Peck v General Motors Corp, 164 Mich App 580; 417 NW2d 547 (1987), rev’d in part on other gds 432 Mich 892 (1989); see also Brown v Beckwith Evans Co, 192 Mich App 158, 163-164; 480 NW2d 311 (1991). Because the commission failed to determine whether the plaintiff carried his burden of proof on this issue in light of its resolution of the threshold question, the cause must be remanded for factfinding regarding this issue. Brown v Beckwith Evans Co, supra.
A second issue raised by the Second Injury Fund is without merit. The fund argues, first, that injuries sustained while an employee is going to and from work are not compensable. Denny v Kostadinovski, 117 Mich App 517; 324 NW2d 19 (1981). While that legal proposition is unassailable, here plaintiff was not simply going to or coming from work. His "on call” status meant that he was never in fact away from work. Plaintiff was simply, in effect, on an extended break, which his employer permitted him to take anywhere within reasonable geographic proximity to his place of employment and also near a telephone. Plaintiff was both recreating and on a mission for his employer, squarely within the "dual purpose” doctrine, which makes the injury clearly connected to his employment and compensable. Burchett v Del- ton-Kellogg School Dist, 378 Mich 231; 144 NW2d 337 (1966).
Viewed differently, plaintiff was effectively working a split-shift schedule, which exposed him to hazards of travel to and from the workplace greater than those encountered by an ordinary employee who reports for work and returns home only once each day. Compensation is awardable in these circumstances, even if plaintiff had been "concededly on his own time and performing no service for his employer.” Burchett, supra at 234, citing Howard v Detroit, 377 Mich 102; 139 NW2d 677 (1966).
Accordingly, the commission properly found that plaintiff was injured in the course of his employment on September 9, 1985. The commission was not bound to conclude that plaintiff suffered other than a single-event injury, and so the "last day of work” doctrine, § 301(1), which is factitious in its application, was correctly dispelled from further consideration.
The decision of the commission is reversed in part and affirmed in part, and the cause is remanded to the commission for further proceedings consistent with this opinion. This Court retains no further jurisdiction.
Affirmed in part, reversed in part, and remanded. | [
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Hood, P.J.
Defendants each were charged with one count of first-degree felony murder, MCL 750.316; MSA 28.548. Following a jury trial, each was convicted of involuntary manslaughter, MCL 750.321; MSA 28.553, and sentenced to a term of four to fifteen years. They appeal as of right. We reverse and remand.
Defendants had arranged to sell two cartons of cigarettes to the victim and another person at far below market price. During the transaction, defendant Malach was seated behind the wheel of her car and defendant Carris was seated next to her. The engine was running. The two purchasers were standing outside the car on the driver’s side.
The victim reached inside the car and gave the money to Carris, who then reached under the seat and gave the victim two cartons purportedly containing cigarettes, which were actually filled with paper. The victim took the cartons but, apparently suspecting the switch, said "wait a minute.” Instead of waiting, Malach put the car in gear and accelerated. The victim hung onto the car, but eventually fell off as Malach made a turn. He later died from the injuries sustained.
Both defendants argue that the cigarette carton scam constituted obtaining money by false pretenses, not larceny, and that, therefore, they should not have been charged with felony murder arising out of a "larceny of any kind.” We agree.
Both defendants moved for a directed verdict with regard to the felony-murder count. Carris also moved to quash the felony-murder indictment and objected to allowing the prosecutor to amend the information to base the felony-murder count on "larceny by false pretenses” instead of "larceny of any kind.” All these arguments, however, have the same underlying legal question: Whether obtaining money by false pretenses constitutes "larceny of any kind” for purposes of the felony-murder statute. We hold that it does not.
A murder committed during the perpetration of, among other things, "larceny of any kind” is first-degree murder and punishable by life imprisonment. MCL 750.316; MSA 28.548. Even a misdemeanor larceny has been found sufficient for purposes of this statute. People v Williams, 129 Mich App 362, 368; 341 NW2d 143 (1983), rev’d on other grounds 422 Mich 381; 373 NW2d 567 (1985) (use of the defendant’s confession); see also People v Hawkins, 114 Mich App 714, 717; 319 NW2d 644 (1982).
Larceny is the taking and carrying away of the property of another, done with felonious intent and without the owner’s consent. See People v Ainsworth, 197 Mich App 321, 324; 495 NW2d 177 (1992). Obtaining money by false pretenses, on the other hand, requires a knowing false representation of fact, done with intent to deceive, which causes detrimental reliance on the representation. In re People v Jory, 443 Mich 403, 412; 505 NW2d 228 (1993); People v Flaherty, 165 Mich App 113, 119; 418 NW2d 695 (1987); see also MCL 750.218; MSA 28.415. False pretenses and larceny are defined in separate chapters of the Penal Code. See MCL 750.356 et seq.; MSA 28.588 et seq. (chapter LII—Larceny); compare MCL 750.218; MSA 28.415 (chapter XXXVI — False Pretenses and False Representation).
We acknowledge that obtaining money by false pretenses is often referred to as "larceny by false pretenses.” See Jory, supra at 410; see also Flaherty, supra at 119. However, in light of the analysis that follows, we conclude that this is merely a misnomer.
In People v Long, 409 Mich 346; 294 NW2d 197 (1980), our Supreme Court explained the historical difference between the crimes of larceny and obtaining money by false pretenses:
"In larceny, the owner of the thing stolen has no intention to part with his property therein; in false pretenses, the owner does intend to part with his property in the thing, but this intention is the result of fraudulent contrivances. If the owner did not part with his property in the thing, but simply delivered the possession, the ownership remaining unchanged, for the purpose of having the person to whom the property was delivered use it for a certain special and particular purpose, for the owner, the title would not pass, and its felonious conversion would be larceny. A distinction is made between a bare charge for special use of the thing, and a general bailment; and it is not larceny if the owner intends to part with the property and deliver the possession absolutely, although he has been induced to part with the goods by fraudulent means. If, by trick or artifice, the owner of property is induced to part with the possession to one who receives the property with felonious intent, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but right of property also, the offense of the party obtaining the thing will not be larceny, but that of obtaining the goods by false pretenses.” [Id., at 350, quoting People v Martin, 116 Mich 446, 450; 74 NW 653 (1898) (emphasis added).]
The distinction between the two offenses therefore depends entirely upon the intent of the victim: if the owner of the goods intends to keep title but part with possession, the crime is larceny; if the owner intends to part with both title and possession, albeit for the wrong reasons, the crime is false pretenses. Long, supra at 350-351 (relying on Martin, supra at 450-451); see also People v Jones, 143 Mich App 775, 780; 372 NW2d 657 (1985). In Long, supra at 351-352, for example, the defendant tricked a cashier into voluntarily giving him more change than he was entitled to; the offense was obtaining money under false pretenses. In Jones, supra at 776-777, 780, on the other hand, the defendant took money from a cashier by sleight of hand; the crime was larceny because he took the money without her consent. As noted in Long, supra at 352:
The creation of the offense of false pretenses by statute had its historical origins in the lawmaker’s need to fill a void in the common law which existed by virtue of the fact that common-law larceny did not extend to punish the party who, without taking and carrying away, had obtained both possession and title to another’s property. Against this historical background, our Legislature early chose to recognize the offense. The conduct charged against defendant falls within the legislatively recognized category; thus marked, it is distinct from larceny.
See also Jory, supra at 412.
In this case, the trial court found that the victim clearly intended to transfer both title and possession of the money in exchange for what he believed to be two cartons of cigarettes. That intent was obviously "the result of fraudulent contrivances” and was induced "by fraudulent means.” Long, supra at 350. However, "/ají the time of [its] occurrence,” the victim surrendered possession with the intent, "however, hastily or ill-advisedly formed, to transfer title.” Id. at 352 (emphasis added). The underlying crime was, therefore, taking money by false pretenses, not larceny, and for that reason could not form the basis for a felony-murder charge.
Defendants’ motions for a directed verdict should have been granted because, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have found the elements of the crime of felony murder — specifically, the underlying "larceny of any kind”— proven beyond a reasonable doubt. See People v Daniels, 192 Mich App 658, 665; 482 NW2d 176 (1992). We note that the trial court did not challenge defendants’ argument that the crime committed was obtaining money by false pretenses. In fact, the court specifically found — and the prosecutor has not cross appealed from that finding— that the decedent intended to transfer both title and possession of the cash and that, therefore, the evidence did not support a charge of larceny by trick or of larceny by conversion. Rather, the court solely relied on . the fact that many decisions refer to this crime as "larceny by false pretenses.” This, we conclude, is an unfortunately confusing misnomer.
Carris’ motion to quash the information also should have been granted because, as a matter of law, the offense of obtaining money by false pretenses could not support a charge of felony murder. See People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991) (motion to quash based on a question of law is reviewed for error, not abuse of discretion). Again, we note that the trial court specifically rejected any argument that the facts could support a charge of larceny by conversion or larceny by trick and that no cross appeal was taken from that finding.
Similarly, the prosecutor’s motion to amend the information should have been denied. Again, the court’s ruling was based upon the erroneous legal ruling that taking money by false pretenses was "larceny by false pretenses.” The trial court concluded that defendants were not and could not be surprised by this charge because even they argued that false pretenses was the crime shown by the evidence. The prosecutor should not have been allowed to amend the information because, as discussed above, false pretenses is not larceny and, therefore, is not a proper underlying offense for a conviction of felony murder.
Because no larceny was proven, the charge of felony murder should not have been submitted to the jury. "[Wjhere a jury is permitted considera tion of a charge unwarranted by the proofs there is always prejudice because a defendant’s chances of acquittal on any valid charge [are] substantially decreased by the possibility of a compromise verdict.” People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975) (emphasis added). Therefore, both defendants’ convictions must be reversed. We address the remaining issues raised, however, to avoid confusion upon retrial.
Carris argues that the trial court should have granted his motion to suppress his confession. We disagree.
Carris was arrested admittedly without probable cause. He was questioned before being advised of his rights, and incriminated himself. He was then told that that statement could not be used, was read his rights, and was asked whether he wished to incriminate himself again. He did.
Generally, when an "unlawful detention has been employed as a tool to directly procure any type of evidence from a detainee” such evidence shall be excluded as the fruit of the poisonous tree. People v Mallory, 421 Mich 229, 240-241, 243, n 8; 365 NW2d 673 (1984). However, "not all evidence acquired directly or indirectly from a detainee during a[n] . . . unlawful detention will be procured by exploiting that detention.” Id. at 241. The key "is whether there was a causal connection between the unlawful detention and the statement.” Id. at 243, n 8. Relevant factors include: "(1) the time lapse between the arrest and the statement, (2) the flagrancy of official misconduct, (3) any intervening circumstances, and (4) any antecedent circumstances, i.e., events occurring before the arrest.” Id. Examples of evidence that will not be excluded as the fruit of an illegal arrest are: voluntary statements made shortly after arrest; physical evidence inadvertently discov ered in the detainee’s possession (absent a general plan or pattern to marshal evidence against him); and evidence obtained by means sufficiently distinguishable to be purged of the taint of the unlawful detention. Id. at 241.
For example, in People v Feldmann, 181 Mich App 523, 528-529; 449 NW2d 692 (1989), a panel of this Court upheld the admission of the second of two confessions given after an unlawful arrest. The Court found that the statement had been made eight hours after the arrest, that initially failing to tell the defendant that she was free to leave was not flagrant misconduct, and that the first confession was induced by a mistaken expectation of immunity and by instructions from her codefendant, not by the inherent coerciveness of her detention. Id. at 529-530. The Court agreed with the trial court that the defendant’s confession was voluntary. Id. at 530.
Similarly, in People v Merlo, 23 Mich App 694, 699; 179 NW2d 222 (1970), a defendant’s second confession was found not to be "the result of any prior illegality, but was the product of the defendant’s own purge of conscience.” The defendant had initially confessed about one crime when, before being read his rights, he had been asked about a different crime. Id. at 698-699. He confessed again after being advised of his rights. Id. at 699-700. This Court agreed with the trial court that there was no evidence that the first confession was linked to the second or that the first confession was exploited in obtaining the second. Id. at 700.
In contrast, in People v Grevious, 119 Mich App 403, 410-411; 327 NW2d 72 (1982), this Court reversed a conviction based upon a statement taken from a defendant-prisoner. The first statement was taken without a warning regarding the defendant’s rights. Id. at 406-407. A second statement was taken two days later, after the defendant had been read his rights. Id. at 408. This Court found that the second confession was causally related to the first and suppressed it. Id. at 410. However, the panel did not have the benefit of the Mallory factors, supra at 243, n 8, and the decision is, therefore, of questionable validity.
Here, the trial court found that Carris’ second confession was made less than six hours after his arrest; that the misconduct of the police was not flagrant; that Carris was advised that his first confession could not be used and was then read his rights before the second confession; and that, even before he was arrested, Carris had telephoned one of the officers and left a message indicating that he wished to talk. The trial court concluded that the second confession was not the product of the illegal arrest or of the first confession, but, rather, was an independent act of free will. We find that the trial court’s decision to admit the confession was not clearly erroneous.
Lastly, Carris argues that the trial court erred in denying his request for an instruction on negligent vehicular homicide. We agree.
"[W]hen properly requested, a trial court should instruct a jury on appropriate lesser included misdemeanors if a rational view of the evidence could support a verdict of guilty of the misdemeanor and not guilty on the felony, [provided that] the defendant has proper notice or has made the request, and the instruction would not result in confusion or injustice.” People v Taylor, 195 Mich App 57, 62; 489 NW2d 99 (1992) (relying on People v Stephens, 416 Mich 252, 261-265; 330 NW2d 675 [1982]). Failure to give such an instruction is an abuse of discretion if a reasonable person would find no justification or excuse for the ruling made.
Further, the error "cannot be held harmless [where] the jury rejected the primary charge and found defendant guilty of the least serious charge it was instructed on.” Taylor, supra at 63; see also People v Beach, 429 Mich 450, 490-494; 418 NW2d 861 (1988) (error is harmless if the jury rejects a lesser included offense greater than the offense whose instruction was refused). Negligent vehicular homicide is a lesser included offense of involuntary manslaughter. People v McIntosh, 400 Mich 1, 6-8; 252 NW2d 779 (1977); see also MCL 750.325; MSA 28.557.
Here, the trial court gave a negligent vehicular homicide instruction with regard to Malach but refused one with regard to Carris. The court very succinctly stated "[n]o, denied. [Carris] had nothing to do with it, the driving negligently. The sole reason would have been her own. Denied.” However, seconds earlier, the trial court had agreed to charge Carris with aiding and abetting involuntary manslaughter arising out of Malach’s grossly negligent driving. The court stated that "[i]n a review of the evidence, a reasonable jury could find that the defendant Carris did indicate to the defendant Malach to go when seeing the victim inside the car, which did aid or encourage the type of driving that ensued in which death resulted. Therefore, ... I will charge involuntary manslaughter as to the defendant Carris.” We fail to see any justification or excuse for ruling that Carris could aid or encourage grossly negligent driving but not purely negligent driving. The trial court abused its discretion in refusing Carris’ request for a negligent homicide instruction.
Reversed and remanded for a new trial. We do not retain jurisdiction.
These cases were consolidated on appeal because they arise out of the same facts.
We reject as unpersuasive the prosecutor’s argument that false pretenses must be a form of larceny because, under MCL 767.69; MSA 28.1009, it can be charged in the same indictment. | [
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Marilyn Kelly, J.
Following a jury trial, defendant was convicted of negligent homicide. MCL 750.324; MSA 28.556. On appeal, he argues that the trial court erred in instructing the jury that defendant’s conduct had to be only "a substantial” cause of the accident rather than "the substantial” cause. We reverse.
The fatal accident in this case occurred while defendant and Bobby Osborn were drag racing. Eyewitnesses estimated their vehicles to be traveling at between 70 and 90 miles per hour. Defendant’s vehicle struck and killed the victim approximately three quarters of a mile beyond the start of the race. The victim was hit while running across the street to retrieve a ball. Defendant claimed the race had ended by the time the collision occurred. An accident reconstruction expert estimated that, at the point of impact, defendant was traveling at between 22 and 49 miles per hour. Defendant claimed that the victim ran out in front of his car, his senses impaired from drinking alcohol.
i
The crime of negligent homicide is the killing of a person through an act of ordinary negligence, which only becomes criminal when the victim dies. People v Clark, 171 Mich App 656, 659; 431 NW2d 88 (1988). A decedent’s contributory negligence is not a defense to a charge of negligent homicide. People v Clark, 295 Mich 704, 708; 295 NW 370 (1940); People v Richardson, 170 Mich App 470, 472; 428 NW2d 698 (1988). However, the jury may consider the victim’s negligence to the extent that it bears on the question of proximate cause or on defendant’s negligence. Clark, 295 Mich 708; Richardson, supra.
In this case, the trial court instructed the jury that it could consider the victim’s conduct in determining whether defendant’s driving was "a substantial” cause of the accident. Defendant argues that the jury instruction should have required a finding that his act was "the substantial” cause of the accident.
There is currently a split of authority in this Court relating to the causal connection necessary to prove vehicular homicide. Some panels have held that a defendant’s conduct must be "the proximate” cause of the accident. People v Scott, 29 Mich App 549; 185 NW2d 576 (1971). Others have held that it need be only "a proximate” cause. People v Dolen, 89 Mich App 277; 279 NW2d 539 (1977). The current jury instruction states:
If you find that [named deceased] was negligent, you may only consider that negligence in deciding whether the defendant’s conduct was [the/a substantial] cause of the accident. [CJI2d 16.20.]
The commentary notes to CJI2d 16.20 indicate that the trial court must decide whether to follow Scott or Dolen. The phrase "a substantial cause” was taken from Brisboy v Fibreboard Corp, 429 Mich 540, 547; 418 NW2d 650 (1988). There, the Michigan Supreme Court indicated that, when numerous factors produced an injury, one actor’s negligence was not a proximate cause unless it was "a substantial factor” producing the injury.
n
Scott relied on the rationale in Commonwealth v Root, 403 Pa 571; 170 A2d 310 (1961). In Root, the Pennsylvania Supreme Court ruled that the tort liability concept of proximate cause has no proper place in prosecutions for vehicular homicide. Id. Scott accepted this holding. Neither Root nor Scott addressed whether the contributory negligence of the decedent could be a defense to vehicular homicide.
Michigan courts have consistently maintained that contributory negligence is not a defense to a charge of negligent homicide. In Dolen, we indicated that the fatal flaw in Scott was the failure to recognize this principle. Dolen, 281. If the existence of another proximate cause of a fatal accident prevents a verdict of guilt against a defendant, contributory negligence is a good defense. Id. The Dolen court found no support for earlier cases holding that a defendant’s negligent driving must be "the sole and only proximate cause” of the fatal accident. Id., 280.
hi
Other jurisdictions follow the Dolen rationale. See Fioretti v Delaware, 245 A2d 170 (Del, 1968); Connecticut v Alterio, 154 Conn 23; 220 A2d 451 (1966). In Alterio, the Supreme Court of Connecticut recognized that contributory negligence is not a defense to a violation of a motor vehicle criminal homicide statute. The state has the burden to prove that "a proximate cause” of the death was the unlawful acts of the defendant. The state fails to meet its burden only if the conduct of the victim was an independent and efficient cause of his death. See Alterio, 29-30.
In Fioretti, the Delaware Supreme Court recognized that defendant’s negligence need not be the sole proximate cause of the fatal accident. Fioretti, 171. It is sufficient if the negligence was "one” of the proximate causes. Id.
IV
We agree with the rationale advanced in Dolen, Fioretti, and Alterio. We believe that a defendant’s conduct need not be the proximate or "the substantial” cause of an accident. Instead, it is enough that his conduct be a proximate or "a substantial” cause.
Instructing a jury that the defendant’s conduct was "a substantial” cause of the accident prevents the jury from excusing the defendant’s negligence if the victim is contributorily negligent. Such an instruction also allows the jury to look at the victim’s conduct to determine if the defendant’s conduct was "a substantial” cause of the fatal accident. For example, a jury could conclude that the defendant’s conduct was not "a substantial” cause of the accident if: (1) the victim’s conduct was an intervening and superseding cause of the accident which the defendant could not foresee, or (2) the victim’s conduct was the sole and only proximate cause of the injury. See Clark, 171 Mich App 659; Scott, 555.
v
Although we recognize that this Court has created a conflict on this issue, we are precluded from resolving it. No conflict exists on the issue within the Michigan Supreme Court. According to our Supreme Court, in order for a defendant to be convicted of vehicular homicide, his conduct must be "the proximate cause” of the death. People v Layman, 299 Mich 141, 145; 299 NW 840 (1941); People v Townsend, 214 Mich 267, 275; 183 NW 177 (1921); People v Barnes, 182 Mich 179, 199; 148 NW 400 (1914). We are bound by the doctrine of stare decisis and are powerless to overturn a decision of the Michigan Supreme Court. Schwartz v Flint (After Remand), 120 Mich App 449, 462; 329 NW2d 26 (1982), rev’d on other grounds 426 Mich 295; 395 NW2d 678 (1986).
Reluctantly, we must reverse and remand. On remand, we instruct the trial court that the jury instructions should read "the substantial” not "a substantial” cause. However, we urge our Supreme Court to take up this issue and clarify CJI2d 16.20, because we believe the better reasoned approach is found in Dolen, Fioretti and Alterio.
Reversed.
In Clark, a panel of this Court indicated that, to exonerate a defendant on a negligent homicide charge, the victim’s contributory negligence must be “a substantial” factor causing the injury. Clark, 659-660. We disagree with this ruling. Allowing the defendant to be exonerated if the victim’s negligence was "a substantial” factor would mean that contributory negligence is a good defense to negligent homicide. See Dolen, supra. | [
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Per Curiam.
Plaintiffs appeal from an order of the circuit court granting summary disposition in favor of defendant on plaintiffs’ claim under an uiiderinsured motorist coverage clause in an automobile insurance policy issued by defendant. We affirm.
Plaintiff Lorrie Mead was injured when she was involved in an accident with a drunk driver. Plaintiffs brought suit against the driver and the bar that had served the driver. Mediation of the matter resulted in an evaluation of $450,000 against the driver and $50,000 against the bar. The suit was subsequently settled in the amount of $65,000, $20,000 being from the driver and $45,000 from the bar.
Thereafter, plaintiffs requested defendant, their no-fault insurer, to pay underinsured motorist benefits under the policy issued to plaintiffs. Defendant paid $35,000, representing the amount of the underinsüred policy coverage limit of $100,000, less the $65,000 paid plaintiffs from other sources. Plaintiffs filed suit, maintaining that they are entitled to the entire $100,000 of coverage limits. They argued that the $65,000 received from the other sources should have been offset against the total amount of damages, not against the amount of the coverage limit for the underinsured motorist coverage.
The sole issue on appeal is whether the trial court erred in agreeing with defendant that defendant was entitled to offset the amount of monies received by plaintiffs from other sources against the coverage limit rather than against the total amount of damages. At issue is the following provision in the uninsured motorist coverage of the policy, which provides in pertinent part as follows:
Any amounts otherwise payable for damages under this coverage shall be reduced by:
1. All sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under the Liability Coverage of this policy ....
We agree with defendant that this language is unambiguous on its face and provides that the offset shall be against coverage limits, not against the total amount of damages. The amount that is "otherwise payable . . . under this coverage” refers to, in this case, the policy limits of $100,000. That amount must, therefore, be reduced by the sums paid from other sources. This Court interpreted similar clauses in Parker v Nationwide Mutual Ins Co, 188 Mich App 354; 470 NW2d 416 (1991), and Schroeder v Farmers Ins Exchange, 165 Mich App 506; 419 NW2d 9 (1987), reaching similar results. As the Court in Schroeder noted, this type of insurance substitutes for residual liability coverage and benefits paid under another policy may be set off against the benefits paid under an uninsured or underinsured policy. Id. at 509.
In sum, we are satisfied that the intent and meaning of the setoff provision in defendant’s insurance policy is to provide that the coverage limits for the underinsured motorist coverage represent the amount the insured is guaranteed to recover, if damages are sufficient, from all sources, including the underinsured coverage itself. It does not, as plaintiffs would argue, represent coverage above and beyond that provided by other sources, such as the tortfeasor’s own liability coverage. Accordingly, the trial court correctly concluded that defendant was entitled to claim a setoff against the coverage limits and not against the total amount of plaintiffs’ damages. Therefore, the trial court properly granted summary disposition in favor of defendant.
Affirmed. Defendant may tax costs.
Because the total amount of plaintiffs’ damages exceeds the sum of the coverage limits for the underinsured motorist coverage and the amount received from other sources, plaintiffs would be entitled to the policy limits of the underinsured motorist coverage, $100,000, if their interpretation of the contract is accepted.
The definition of uninsured motorist under the policy includes underinsured motorists as well. | [
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Sawyer, J.
Defendant was convicted, following a jury trial, of receiving or concealing stolen property valued over $100. MCL 750.535; MSA 28.803. He thereafter pleaded guilty of being a habitual offender, fourth offense. MCL 769.12; MSA 28.1084. He was sentenced to serve a term of three years, four months to ten years in prison. He now appeals and we reverse.
Defendant was originally charged with breaking and entering a building with intent to commit a larceny therein. MCL 750.110; MSA 28.305. During the course of trial, however, the prosecutor requested that the jury also be instructed on receiv ing or concealing stolen property, the offense of which defendant was ultimately convicted.
On appeal, defendant argues that the trial court erred in instructing the jury on the offense of receiving or concealing stolen property. We agree. Receiving or concealing stolen property is a cognate lesser included offense of breaking and entering. People v Kamin, 405 Mich 482, 496; 275 NW2d 777 (1979). This Court reviewed the rules concerning consideration of lesser included offenses in People v Usher, 196 Mich App 228, 231-232; 492 NW2d 786 (1992):
The applicable legal principles were succinctly stated in People v Quinn, 136 Mich App 145, 147; 356 NW2d 10 (1984):
"A trial court has no authority to convict a defendant of an offense not specifically charged unless the defendant has had adequate notice. People v Adams, 389 Mich 222; 205 NW2d 415; 59 ALR3d 1288 (1973); DeJonge v Oregon, 299 US 353; 57 S Ct 255; 81 L Ed 278 (1937). The notice is adequate if the latter charge is a lesser included offense of the original charge. People v Ora Jones, 395 Mich 379, 388; 236 NW2d 461 (1975). A trial court may not instruct a jury on a cognate lesser included offense unless the language of the charging document gives the defendant notice that he could face a lesser offense charge. People v Chamblis, 395 Mich 408, 418; 236 NW2d 473 (1975).” Compare People v Price, 126 Mich App 647; 337 NW2d 614 (1983).
A cognate lesser included offense is one that is in the same class or category as the charged offense or that is closely related to the charged offense. Ora Jones, supra, p 389; People v William James, 142 Mich App 225, 227; 369 NW2d 216 (1985). The cognate lesser offense may share some elements with the greater offense, but may also include some elements not found in the greater offense. People v Heflin, 434 Mich 482, 495; 456 NW2d 10 (1990). The elements of the two crimes should be compared in order to determine if an offense is a cognate lesser included offense of a charged offense. James, supra. However, whether a crime is a cognate offense generally turns on the particular facts of the case. Heflin, supra.
While this Court has been reasonably consistent in determining the rules to be applied to this issue, it has been less than consistent in the results reached. For example, in Price, supra, this Court held that the trial court erred in granting the prosecutor’s motion to amend the information to add a count of receiving or concealing stolen property where the defendant was originally charged with breaking and entering, while in Quinn, supra, this Court, with minimal discussion, concluded that the trial court did not err in convicting the defendant following a bench trial of receiving or concealing stolen property where the original charge was breaking and entering.
Ultimately, the question becomes whether, under the facts of each particular case, the defendant had adequate notice of the need to defend against the newly added charge. People v Ellis, 174 Mich App 139, 146; 436 NW2d 383 (1988), involved an issue of instructing the jury on felonious assault where the defendant was charged with kidnapping and first-degree criminal sexual conduct, with the Court making the following observation:
Defendant next argues that it was error to instruct the jury on felonious assault. Defendant argues that he was not given fair notice to defend against a charge of felonious assault. Notice to defendant may be adequate with regard to a lesser cognate offense if the language of the charging document gives defendant notice that he could face a lesser offense charge. See People v Quinn, 136 Mich [App] 145; 356 NW2d 10 (1984). See also People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), overruled on other grounds in People v Stephens, 416 Mich 252; 330 NW2d 675 (1982). The theory of the prosecutor throughout the trial was that this transaction was accomplished at the point of a screwdriver. Defendant was clearly on notice that he was being charged for assaultive behavior accomplished with a weapon.
Thus, the question becomes whether defendant received adequate notice that he would have to defend himself against a charge of receiving or concealing stolen property to permit him properly to prepare and present his defense. First, we look to the language contained in the information. In Usher, supra, the prosecutor originally sought a conviction of first-degree murder under a theory of aiding and abetting, and the defendant was ultimately convicted of being an accessory after the fact to murder. The Court concluded that the information provided sufficient notice to the defendant of the possibility of being convicted of being an accessory after the fact because of the logical connection between the offenses of accessory after the fact and aiding and abetting. Id. at 234. In the case at bar, the information charged defendant with breaking and entering a building with intent to commit a larceny therein, with no reference to defendant’s having thereafter possessed stolen goods or even that the larceny had been successful.
Second, we believe it appropriate to consider the similarity between the charged offense and the offense sought to be added. As noted above, in Usher, this Court found sufficient similarity between the offenses of aiding and abetting and being an accessory after the fact to conclude that the defendant had received adequate notice. In the case at bar, while receiving or concealing stolen property is a cognate lesser included offense of breaking and entering a building with intent to commit a larceny therein, the two crimes are not particularly similar in their elements.
Breaking and entering requires a showing that (1) the defendant broke into a building, (2) the defendant entered the building, and (3) at the time of the breaking and entering, the defendant intended to commit a larceny or felony therein. See CJI2d 25.1. On the other hand, receiving or concealing stolen property requires a showing that (1) some property was stolen, (2) the defendant received or concealed that stolen property, (3) the defendant knew the property was stolen, and (4) the property had some value, over $100 for a felony. See CJI2d 26.1. The only common thread between these two offenses is the possible involvement of a larceny. However, even where the breaking and entering is predicated upon an intent to commit a larceny inside the building, it is not necessary that the larceny be successful, only that the defendant had intended to commit a larceny when he broke and entered.
Furthermore, the focus in breaking and entering is on the events that preceded the larceny: namely, what the defendant did in order to effectuate a planned larceny. Receiving or concealing stolen property, on the other hand, necessarily focuses on the facts that follow a larceny: whether the defendant obtained possession of stolen goods with the knowledge that those goods were stolen. It is not necessary to show that the defendant is indeed the same person who committed the larceny. Thus, the facts to be emphasized at a trial for breaking and entering are significantly differ ent from the facts to be emphasized at a trial for receiving or concealing stolen property.
Finally, there is the question of when defendant learned of the prosecutor’s intent to seek an instruction on the cognate lesser included offense. In the case at bar, the request for the instruction came after the close of proofs, though there is some indication that defense counsel may have learned of the prosecutor’s intent to seek an instruction on receiving or concealing stolen property part way through the trial, before the close of proofs.
We conclude that where, as here, the charged offense and the offense sought to be added are dissimilar in their elements, such late notice of the prosecutor’s intent to seek an instruction on the lesser offense is inadequate. Where offenses are dissimilar, with the focus being on different factual elements, the defendant may well prepare his defense, including the cross-examination of prosecution witnesses, in an entirely different manner for the lesser offense than he would for the greater offense. However, once the trial is completed, or even nearly completed, it is difficult, if not impossible, for the defendant to adjust his trial strategy to encompass the newly added offense. Had the prosecutor notified defendant before the opening of proofs that he would also seek an instruction on receiving and concealing stolen property, that may well have been entirely adequate notice to allow the trial court to grant a request for such an instruction, particularly if the trial court were generous in granting any request by defense counsel for a continuance to allow for any additional preparation necessary for the changed character of the trial to come. In the case at bar, however, that notice simply came too late.
In sum, we conclude that where a prosecutor seeks to add a cognate lesser included offense that is dissimilar to the charged offense, and the information does not suggest the need to prepare a defense against that cognate lesser included offense, and notice to the defendant does not come until after the prosecutor begins to present evidence, the trial court should not grant the prosecutor’s request for an instruction on that cognate lesser included offense. Under those circumstances, the notice to the defendant is not adequate. Accordingly, we conclude that in the case at bar the trial court erred in granting the prosecutor’s request for an instruction on the cognate lesser included offense of receiving or concealing stolen property.
In light of our disposition of the above issue, it is unnecessary to consider defendant’s remaining issue.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction._
We further note that in Usher the defendant’s conviction of a newly added offense was based upon a plea, not a conviction by a jury.
The prosecutor is, of course, free to retry defendant for receiving or concealing stolen property, because defendant would know of the charge. | [
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Doctoroff, C.J.
Defendant appeals as of right his jury convictions of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305, two counts of armed robbery, MCL 750.529; MSA 28.797, two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to imprisonment of ten to fifteen years for the breaking and entering conviction, thirty to sixty years for each of the armed robbery convictions, 60 to 120 years for each of the criminal sexual conduct convictions, and two years for the felony-firearm conviction. On appeal, defendant challenges the trial court’s denial of his motion for a hearing to evaluate the admissibility of identification testimony, the voluntariness of statements given to the police, and his sentences for armed robbery and criminal sexual conduct. We affirm.
Defendant’s convictions arise out of an incident in which he and a codefendant, Eugene Posey, broke into a home in Detroit in the early morning of November 21, 1991. The victims testified that they were sleeping in their bedroom when they were awakened by defendant and codefendant shining a flashlight in their eyes and demanding that they turn over money and valuables. Both victims testified that defendant was armed and that he threatened to kill them if they did not comply with the demands of defendant and his codefendant. Thereafter, the men demanded that the male victim retrieve money from his wallet, which was in his pants in the bedroom. At some point, the victims were also ordered to surrender their wedding rings.
Defendant subsequently ordered the female victim out of bed at gunpoint and forced her to accompany him throughout the home to point out certain valuables. Defendant escorted the female victim downstairs, where she kept her purse. She was then taken back upstairs and she went through certain valuables upstairs with defendant. Defendant then made sexual advances toward the victim. Defendant took the female victim back to the bedroom, ordered her to return to bed, and left the room. A short while later, defendant returned, ordered the victim to go with him, and, on two separate occasions, defendant penetrated the victim with his finger and his penis. Defendant and his codefendant then left the home, taking a number of valuables with them.
Shortly after the incident, the female victim identified defendant in a photo array consisting of five small photographs. The victim then identified defendant at a live lineup and in open court. Before trial, defendant moved for a hearing to evaluate the admissibility of this identification testimony. The motion filed with the court indicated that the lineup was unduly suggestive, but did not contain any factual averments to support that allegation. Moreover, the brief in support of the motion failed to allege any factual support for the assertion.
At a subsequent hearing, the trial court pressed counsel for factual substantiation of the claim that the identification procedures were unduly suggestive. Counsel for the defendant was unable to substantiate the allegations beyond her assertion that the identification at the photo array was inconclusive, that the defendant was the only one matching the physical description given by the victim, and that defendant appeared in the lineup wearing the same clothes he was wearing on the night of the incident. The court again pressed defense counsel to substantiate the allegations with facts and legal precedent concerning the physical differences and the manner in which defendant was presented at the lineup. When defense counsel could not, the court denied the motion for an evidentiary hearing, with the stipulation that defense counsel would be permitted to file a subsequent motion with factual support. Defense counsel made no such motion.
On appeal, defendant claims that the court erred in denying his motion for an evidentiary hearing to evaluate the identification procedures. Defendant suggests that United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), requires that a defendant be granted an evidentiary hearing whenever identification procedures are challenged. We disagree.
In support of defendant’s assertion, he relies upon People v Reynolds, 93 Mich App 516; 286 NW2d 898 (1979), where this Court stated that a defendant is entitled to an evidentiary hearing when the admissibility of identification evidence is challenged on constitutional grounds. Id. at 519. While we agree that certain cases will require a hearing to determine the constitutional validity of identification procedures, we do not agree that all cases require the court to conduct such a hearing. Rather, where it is apparent to the court that the challenges are insufficient to raise a constitutional infirmity, or where the defendant fails to substantiate the allegations of infirmity with factual support, no hearing is required.
Our holding is supported by Watkins v Sowders, 449 US 341; 101 S Ct 654; 66 L Ed 2d 549 (1981), where the Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not require a separate hearing to evaluate the admissi bility of identification evidence. Id. at 347. The Court rejected the petitioners’ claim that, like in the evaluation of confessions, a hearing is required to protect a defendant’s due process rights. Id. In so doing, the Court stated that the reliability of identification evidence was primarily a question for the jury and that, unlike in cases involving involuntary confessions, no special policy considerations compelled a hearing out of the jury’s presence. Id.
While we agree with the Reynolds Court that a hearing was required under the facts of that case, we decline to blindly follow that holding where there is a total absence of factual substantiation of the alleged improprieties. We find the instant case distinguishable from Reynolds, supra, because defendant does not allege that the photo array tainted the live lineup and because defendant was given the opportunity to challenge the identification on cross-examination.
Defendant’s assertion that he appeared at the lineup in the same clothes he wore when he committed the crimes does not automatically render the lineup impermissibly suggestive. See People v Kurylczyk, 443 Mich 289, 304-305, n 12; 505 NW2d 528 (1993) (Griffin, J.); People v Morton, 77 Mich App 240, 244-245; 258 NW2d 193 (1977). This is particularly so where, as here, the victim testified that she was able to identify defendant by his facial features and had a substantial independent basis for the in-court identification. Kurylczyk, supra at 13 (relying on People v Anderson, 389 Mich 155; 205 NW2d 461 [1975]).
In the instant case, we believe that the trial court properly denied defendant’s motion for an evidentiary hearing to evaluate the identification procedures. We do not believe that a defendant is entitled to an evidentiary hearing where the defendant fails to support the allegation of impropriety with factual support or where it is clear from the record that such a hearing would be futile in light of substantial evidence that there exists an independent basis for the identification. We acknowledge that certain situations will require an evidentiary hearing without full factual support (i.e., violations of the Wade right to counsel or other constitutional impropriety). However, this is not such a case.
Defendant next argues that the court improperly denied his motion to suppress statements given after his arrest. Defendant claims that the statements were given as a result of promises of leniency, threats against his pregnant girl friend, and physical coercion. We disagree.
Voluntariness of a confession is a question of law for the trial court’s determination. People v Etheridge, 196 Mich App 43, 57; 492 NW2d 490 (1992). In reviewing the trial court’s determination of voluntariness, this Court examines the entire record and makes an independent determination of voluntariness using the factors articulated by our Supreme Court in People v Cipriano, 431 Mich 315; 429 NW2d 781 (1988), as a guide. Those factors include:
[T]he age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and pro longed nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse. [Id. at 334.]
We defer to the trial court’s superior ability to view the evidence and the demeanor of the witnesses and will not disturb the trial court’s findings unless they are clearly erroneous. Etheridge, supra at 57.
In this case, after a lengthy Walker hearing, the trial court commented extensively with regard to the serious concerns it had about the veracity of defendant’s allegations of coercion and promises of leniency. Upon independent review of the entire record, we too are persuaded that the overwhelming evidence contradicted defendant’s version of the events surrounding his statements and do not believe that the court’s findings of fact were clearly erroneous. Accordingly, we affirm the trial court’s order denying the motion to suppress the statements.
Defendant next challenges the scoring of offense variables 2, 5, 6, 7, 9, and 13 of the sentencing guidelines. Appellate review of guidelines calculations is very limited and this Court should not disturb the scoring where there is record evidence to support the scores. People v Hernandez, 443 Mich 1, 16; 503 NW2d 629 (1993); People v Daniels, 192 Mich App 658, 674; 482 NW2d 176 (1992).
Defendant received twenty-five points for ov 2. Offense variable 2 is scored at twenty-five points where the victim incurs bodily injury or is subjected to terrorism. Under the circumstances of this case, the fact that defendant held a gun to the victim’s neck, admonished her not to pull away, and forced her throughout the home at gunpoint supports the conclusion that the victim was terrorized.
Defendant received fifteen points for ov 5. Offense variable 5 is scored at fifteen points where the victim was moved to another place of greater danger or to a situation of greater danger. In this case, the fact that defendant forced the victim to accompany him from the bedroom, throughout the house and, eventually, to the third floor of the home is sufficient evidence to support the score.
Defendant received ten points for ov 6. Offense variable 6 is scored at ten points where there are two or more victims of the crime. The instructions for the variable state that each person who is placed in danger of injury or loss of life is to be counted as a victim. See Michigan Sentencing Guidelines (2d ed) at 44. In this case, defendant threatened to kill both victims if they failed to cooperate with his demands. In view of the threats made against the victims, there was sufficient evidence to support the score.
Defendant received ten points for ov 9. Offense variable 9 is to be scored at ten points where the defendant is the leader in a multiple-offender situation. The instructions state that the entire criminal episode should be taken into account in determining whether the offender is a leader. See Guidelines, supra at 45. In this case, testimony at trial revealed that it was defendant who did most of the talking during the episode and that it was defendant who escorted the female victim through out the house in search of valuables. Moreover, defendant was the only one involved in the criminal sexual conduct violations. Given these facts, we are persuaded that there was sufficient record evidence to support the score.
Defendant was given five points for ov 7 (exploitation of the victim’s vulnerability) and five points for ov 13 (psychological injury). While we agree with defendant that the court may have abused its discretion in assessing these scores in the absence of supporting evidence, reduction of the score would not alter the total offense variable score so as to change the level at which defendant was ultimately placed in calculating the guidelines’ range. Accordingly, any error in this regard is harmless. People v Ratkov (After Remand), 201 Mich App 123, 127; 505 NW2d 886 (1993).
Finally, defendant’s contention that his sentences for armed robbery and criminal sexual conduct violate the principle of proportionality under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), is without merit. The armed robbery sentences are within the guidelines and are presumed proportionate. People v Williams (After Remand), 198 Mich App 537, 543; 499 NW2d 404 (1993). Defendant has failed to persuade us that the presumption does not apply in this instance.
As for the sentences for criminal sexual conduct, defendant was convicted of first-degree criminal sexual conduct and the scores placed him in the c-iv cell. See Guidelines, supra at 47. Thus, the guidelines’ range was 180 to 360 months or life. The prosecution concedes that the sentence of 60 to 120 years exceeds the guidelines, presumably because the term-of-years sentence falls outside the 180- to 360-month range as specified in the guidelines. In interpreting the guidelines, we are obligated to ascertain the drafters’ intent through the application of principles of statutory construction. People v Berry, 198 Mich App 723, 724; 499 NW2d 458 (1993). One such principle is that in interpreting the provision, terms should not be rendered meaningless. Jenkins v Great Lakes Steel Corp, 200 Mich App 202, 208; 503 NW2d 668 (1993).
In this case, we are persuaded that the drafters intended to allow a term of years between 180 and 360 months or life imprisonment with parole. To conclude that the guidelines permit a sentence of any term of years less than life would render the specific recommended guidelines’ range meaningless. Thus, any term-of-years sentence whose minimum exceeds the 360-month limitation is considered to be outside the guidelines. Inasmuch as defendant received a sentence of 60 to 120 years, his minimum sentence exceeds the guidelines’ recommended minimum sentence by two times.
In this matter, however, the court articulated specific reasons for the departure. The court stated that the horrendous nature of the circumstances surrounding the incident in question, coupled with defendant’s complete disregard for human life and dignity justified a departure from the guidelines. In this case, defendant repeatedly attempted to penetrate the victim in the course of the offense. Moreover, some four days later, defendant and his codefendant broke into another home and killed the owner. Defendant’s offense-variable score was more than double what it needed to be to place him in the c-iv cell of the criminal sexual conduct grid. Having reviewed the circumstances of the offense and subsequent criminal conduct of this offender, we are persuaded that the sentence was proportionate. The court did not abuse its sentencing discretion in this case.
Affirmed.
This is one of four companion cases before this Court involving defendant and his codefendant wherein the two men broke into homes in the Detroit area. See People v Posey, unpublished opinion per curiam of the Court of Appeals, decided November 1, 1993 (Docket No. 141612); People v Posey, unpublished opinion per curiam of the Court of Appeals, decided November 1, 1993 (Docket No. 141614); People v Johnson, unpublished opinion per curiam of the Court of Appeals, decided November 1, (1993) (Docket No. 141613).
Contrary to defendant’s assertion on appeal, the victim did positively identify defendant during trial in response to questions from the prosecutor.
Like the Court in Watkins, we are not faced with the question whether it was prudent for the trial court to deny the request for the hearing. Id. Rather, we are asked to determine whether it is error warranting reversal for a trial court to deny such a request.
Defendant offers no support for the assertion that an inconclusive identification at the photographic lineup inherently taints the live lineup.
We note that defendant raised the identical argument in a companion case. See People v Johnson, unpublished opinion per curiam of the Court of Appeals, decided November 1, 1993 (Docket No. 141613).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Defendant was twenty-two years old at the time he was sentenced and he does not argue that his sentence violates People v Moore, 432 Mich 311; 439 NW2d 684 (1989). Nonetheless, defendant can reasonably be expected to serve the minimum sentence. See People v Weaver (After Remand), 192 Mich App 231; 480 NW2d 607 (1991). | [
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Reilly, J.
Respondent, Michigan Conference Association of Seventh-day Adventists, appeals as of right an amended probate court order allowing a final accounting filed by petitioner, Lorraine Kigar, the special conservator of the estate of Fritz Erickson, a legally incapacitated person. The order recognizes the validity of a change in beneficiaries on six annuities. We affirm.
Under the terms of Erickson’s will and revocable trust agreement, respondent was the beneficiary of Erickson’s estate. Respondent contends that Jerry Kershner, Erickson’s insurance agent, unduly influenced Erickson to change the beneficiaries on the six annuity contracts, valued at $91,000, from Erickson’s estate to his nieces, Kigar and her sister, Audrey Hunt, thus depriving respondent of its potential inheritance. Respondent argues that petitioner failed to overcome the presumption of undue influence and, therefore, the probate court erred in recognizing the validity of the change of beneficiaries. We disagree.
Findings of fact made by a probate court sitting without a jury will not be reversed unless clearly erroneous. In re Powell Estate, 160 Mich App 704, 710; 408 NW2d 525 (1987). A finding is said to be clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). The reviewing court will defer to the probate court on matters of credibility, and will give broad deference to findings made by the probate court because of its unique vantage point regarding witnesses, their testimony, and other influencing factors not readily available to the reviewing court. Id.; MCR 2.613(C).
To establish undue influence it must be shown that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency, and impel the grantor to act against the grantor’s inclination and free will. Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, is not sufficient. Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77 (1976).
A presumption of undue influence arises upon the introduction of evidence that would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary, or an interest represented by the fiduciary, benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction. Id.
Respondent argues that it is entitled to the presumption of undue influence. Respondent contends that Kershner benefited from the transac tion because the changing of the beneficiaries was a service offered by Kershner that "was a part of an ongoing relationship which . . . resulted in a sale of $157,000 of annuities, some before and some after the change of annuity service.” We disagree.
The benefit must arise from the specific transaction claimed to have been the subject of undue influence. Id. Respondent concedes that Kershner received no commission from the change of beneficiaries. The probate court determined that Kershner had no financial interest in the act of changing beneficiaries. We believe that the record supports this conclusion and, therefore, the presumption does not apply. Moreover, we agree with the probate court that undue influence was not exerted upon Erickson because he was not pressured or coerced into changing his beneficiaries.
Further, we conclude that the probate court did not clearly err in finding that Erickson was sufficiently competent on April 27, 1990, to change beneficiaries. The test of mental capacity to contract is whether the person in question possesses sufficient mind to understand in a reasonable manner the nature and effect of the act in which the person is engaged. To avoid a contract it must appear not only that the person was of unsound mind or insane when it was made, but that the unsoundness or insanity was of such a character that the person had no reasonable perception of the nature or terms of the contract. Howard v Howard, 134 Mich App 391, 396; 352 NW2d 280 (1984); Star Realty, Inc v Bower, 17 Mich App 248, 250; 169 NW2d 194 (1969).
Similarly, the test to be applied in determining the mental competency of an insured at the time the insured attempts to effect a change of beneficiaries of a life insurance policy is whether the insured then had sufficient mental capacity to understand the business in which the insured was engaged, to know and understand the extent of the insured’s property, how the insured wanted to dispose of it, and who are dependent upon the insured. Harris v Copeland, 337 Mich 30; 59 NW2d 70 (1953); Grand Lodge, Ancient Order of United Workmen v Brown, 160 Mich 437; 125 NW 400 (1910). A mentally incompetent person is one who is so affected mentally as to be deprived of sane and normal action. A person may be incapable of conducting his business successfully and still not be mentally incompetent. Henderson v Henderson, 206 Mich 36; 172 NW 623 (1919). Where there is evidence pro and con, much weight should ordinarily be given to the conclusion reached by the probate judge, who has had the opportunity of seeing and hearing the witnesses. Grand Lodge, supra at 445. Where insanity or mental incompetency is claimed, it should be proved by a preponderance of the evidence. Id.
The probate court believed the testimony of Kershner, who had befriended the Ericksons. Kershner testified that although Erickson had difficulty understanding financial matters, he believed that Erickson understood the idea of naming his nieces rather than his church as beneficiaries, and that he would not have had Erickson make the change if Erickson did not comprehend it.
When Erickson testified on March 6, 1991, he was confused about some matters, and did not understand the nature of an annuity. However, he was coherent when discussing family relationships, and indicated that he had agreed to name his nieces as beneficiaries. The probate court found that even though Erickson’s mental abilities were weakened at the time of trial, he had the mental capacity to agree to the change of beneficiaries in April, 1990. The probate court determined that after discussing the matter of changing beneficiaries, Erickson acknowledged the idea by executing the forms necessary to accomplish the change.
Having reviewed the record, we cannot say that we are convinced that a mistake has been made. The probate court’s findings that there was no undue influence and that Erickson was mentally competent to change his beneficiaries on the six annuities was not clearly erroneous.
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Brennan, P.J.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendant. We affirm.
The underlying facts of this case are not in dispute. On February 17, 1990, Kenneth Leja was involved as a pedestrian in an automobile accident and was severely injured. Leja was immediately hospitalized. Nine days later, while still in the hospital, Leja died from the injuries sustained in the accident. At the time of the accident, Leja was covered both by an automobile no-fault insurance policy issued by State Farm Insurance Company and by a health insurance policy issued by defendant. Following Leja’s death, both defendant and State Farm presented payment for all medical expenses incurred by Kenneth Leja while in the hospital.
An action subsequently was initiated by plaintiff against defendant for the purpose of determining the rights, if any, of defendant to the proceeds paid by the no-fault insurer to plaintiff. On May 21, 1992, following a hearing, the trial court issued an opinion and order granting summary disposition in favor of defendant, finding that the plain terms of defendant’s policy provided it with a right to whatever proceeds plaintiff might collect for medical expenses for which defendant also had paid.
On appeal, plaintiff asserts that the trial court erred in granting summary disposition in favor of defendant and that he is entitled to any proceeds that he collects for the decedent’s medical expenses. When interpreting an insurance contract, the contract language must be given its ordinary and plain meaning, not a technical or strained construction. Hosking v State Farm Mutual Automobile Ins Co, 198 Mich App 632, 633-634; 499 NW2d 436 (1993); Whitaker v Citizens Ins Co of America, 190 Mich App 436, 439; 476 NW2d 161 (1991). The terms of án insurance contract must be enforced as written. Upjohn Co v New Hampshire Ins Co, 438 Mich 197, 207; 476 NW2d 392 (1991). Any ambiguity in an insurance contract will be construed against the insurer. Group Ins Co of Michigan v Czopek, 440 Mich 590, 595; 489 NW2d 444 (1992); Hosking, supra at 634. An insurance contract is unambiguous if it fairly admits of only one interpretation. State Farm Mutual Automobile Ins Co v Snappy Car Rental, Inc, 196 Mich App 143, 151; 492 NW2d 500 (1992).
In this case, the decedent’s no-fault insurance policy specifically provided for noncoordinated no-fault benefits. Decedent’s health insurance policy, however, provided for coordination of benefits. Sec tion X of decedent’s health insurance policy states in pertinent part:
B. Coordination of Benefits
To determine the benefits available under this provision, the following applies:
1. The benefits of a plan which does not have a coordination of benefits provision shall in all cases be determined before the benefits of this Contract. Health Alliance Plan’s benefits and the benefits payable under the other plan shall not exceed the total of the actual, reasonable expenses.
4. Benefits provided for services related to any automobile-related injury to the extent there is coverage under any no-fault automobile policy shall be billed to the responsible carrier or program. Where services are provided, Health Alliance Plan is assigned the Member’s rights to seek reimbursement.
Defendant’s health policy clearly states that benefits provided for services related to any automobile-related injury "to the extent there is coverage under any no-fault automobile policy” will be billed to the responsible carrier. The policy provides further that where services are provided, it "is assigned the Member’s rights to seek reimbursement.” We find that this language is plain and unambiguous, admitting of only one interpretation. Therefore, we interpret the language as written and conclude that the trial court did not err in granting defendant’s motion for summary disposition and holding that defendant had a right to whatever proceeds that plaintiff might collect that reimburse him for medical expenses paid by defendant.
Citing this Court’s decision in Smith v Physician’s Health Plan, Inc, 196 Mich App 617; 493 NW2d 480 (1992), plaintiff argues that defendant’s coordination of benefits provision is unenforceable because it is violative of public policy. We disagree with this argument in light of an earlier decision reached by this Court in Albright v Butterworth HMO, 196 Mich App 283; 492 NW2d 457 (1992). In Albright, a panel of this Court found that a group disability insurer, such as defendant, has the right, pursuant to MCL 500.3610a; MSA 24.13610(1), to coordinate its benefits with automobile medical insurance covering the same loss.
Consequently, we believe the trial court correctly granted summary disposition in this case under the authority of MCL 500.3610a; MSA 24.13610(1), which allows defendant to coordinate its payment of benefits with no-fault insurance. Plaintiffs’ decision not to coordinate benefits under their no-fault policy made the no-fault insurer primary. See Gibbard v Auto-Owners Ins Co, 179 Mich App 54, 57; 445 NW2d 182 (1989). [196 Mich App 289.]
Because we are compelled to follow Albright by Administrative Order No. 1990-6, as extended by Administrative Order No. 1991-11, as extended by Administrative Order No. 1992-8, we affirm the trial court’s decision to grant defendant’s motion for summary disposition. This disposition renders it unnecessary for this Court to discuss plaintiffs other claims on appeal.
Affirmed.
(1) A group disability insurance policy may contain provisions for the coordination of benefits otherwise payable under the policy with benefits payable for the same loss under other group insurance; automobile medical payments insurance; or coverage provided on a group basis by hospital, medical, or dental service organizations, by union welfare plans, or employee or employer benefit organizations.
(2) If a group disability insurance policy contains a coordination of benefits provision, the benefits shall be payable pursuant to the coordination of benefits act. | [
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Per Curiam.
Defendant pleaded guilty of attempted conspiracy to deliver cocaine, MCL 333.7401; MSA 14.15(7401); MCL 750.92; MSA 28.287; MCL 750.157(a); MSA 28.354(1). Defendant was sentenced to a prison term of five to ten years. Defendant appeals as of right. We affirm defen dant’s conviction, but remand this case to the trial court for resentencing.
The trial court enhanced defendant’s sentence pursuant to MCL 333.7413(2); MSA 14.15(7413)(2) on the basis of defendant’s previous conviction of attempted possession with intent to deliver cocaine. Defendant asserts that the enhancement was improper. We agree.
The enhancement provision 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 that otherwise authorized or fined an amount not more than twice that otherwise authorized, or both.
Defendant argues that enhancement under that provision was improper because an attempt to commit an "offense under this article” does not constitute the commission of one of the offenses under the article. The specific question presented is one of first impression.
Defendant cites People v Chambers, 191 Mich App 430; 478 NW2d 709 (1991), in support of his argument. In that case, the defendant was convicted by plea of attempted possession with intent to deliver 50 grams or more, but less than 225 grams, of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). The trial court ordered that the sentence be served consecutively to one the defendant had already received in federal court. The prosecutor argued that the consecutive sentence was proper pursuant to MCL 333.7401(3); MSA 14.15(7401)(3), which provides in part:
A term of imprisonment imposed pursuant to subsection (2)(a) . . . shall be imposed to run con secutively with any term of imprisonment imposed for the commission of another felony.
This Court ruled that consecutive sentencing was improper because the defendant was not sentenced pursuant to § 7401(2)(a). Instead he was sentenced pursuant to MCL 750.92; MSA 28.287, the attempt statute. Chambers, supra, p 431.
Defendant also cites People v Johnson, 195 Mich App 571; 491 NW2d 622 (1992). In that case, the defendant had been convicted of first-degree retail fraud, MCL 750.356c(2); MSA 28.588(3)(2). A person who engages in conduct that would otherwise constitute second-degree retail fraud can be convicted of first-degree retail fraud if he has one or more prior convictions of certain enumerated offenses, one of which is larceny in a building. The defendant had a prior conviction of attempted larceny in a building. This Court stated:
The question thus is whether a conviction of an attempt to commit one of the enumerated offenses is sufficient to constitute a conviction of one of the enumerated sections. The heart of the question is whether a conviction of an attempt to commit an offense constitutes a conviction of the substantive, underlying offense for which the attempt statute merely provides a different penalty, or whether an attempt is a separate, substantive offense. [Id., p 573.]
From a review of the wording of the attempt statute and a consideration of the fact that the elements of an attempt are not the same as those of the completed offense, this Court concluded that attempt is a substantive offense separate from the underlying offense. Id., p 575. That premise, taken together with the fact that larceny in a building was one of the enumerated offenses in the first-degree retail fraud statute but attempted larceny in a building was not, resulted in this Court holding that the defendant was not guilty of first-degree retail fraud. Id. This Court went on to observe that that conclusion was consistent with the rule of lenity regarding penal statutes. Id.
Applying the reasoning of Johnson to the present case results in the conclusion that enhancement of defendant’s sentence was improper. Delivery of cocaine is one of the offenses under the article. However, an attempt to conspire to deliver cocaine is a separate offense from delivery of cocaine.
Under the terms of § 7413(2), enhancement is authorized when a defendant is convicted of a second or subsequent offense under that article. As in Chambers, defendant was convicted of the present offense under the attempt statute. He was not convicted under the drug provisions. Therefore, enhancement of his sentence under § 7413(2) was improper.
Remanded for resentencing. We do not retain jurisdiction. | [
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Per Curiam.
Petitioner, Elizabeth Pitre, as personal representative of the estate of Francis M. Pitre, deceased, appeals as of right the Sanilac County Probate Court’s award of costs and attorney fees to respondent. We affirm.
Several years before he died, decedent estab lished an account with a stockbroker. At the time, decedent decided to make it a joint account with respondent with rights of survivorship, fully aware that this meant the account would become respondent’s if the decedent died first. The summer before he died, decedent decided he did not want respondent to get what was in the account. He sent a letter to the stock brokerage barring further transactions on the account, but did not withdraw the funds from the account. Decedent died, and the brokerage transferred the remaining funds to an account solely held by respondent.
Petitioner asked the probate court to order respondent to return the money from the joint account to the estate, as well as furniture respondent had removed from decedent’s house while decedent was alive. A jury took less than twenty minutes to reject petitioner’s claims. The trial court awarded respondent costs, pursuant to MCL 600.858(2); MSA 27A.858(2), and attorney fees, pursuant to MCR 2.114(E).
Petitioner first argues that the probate court was without power to award respondent attorney fees. Procedure in the probate court is governed by the rules applicable to other civil proceedings. MCR 5.001. Specifically, the provisions of MCR 2.114 apply, MCR 5.114(A)(1), including that rule’s sanction provisions, MCR 5.114(B)(2). Therefore, the probate court had the power to award attorney fees pursuant to MCR 2.114.
Petitioner next contends that the probate court erred in awarding attorney fees under MCR 2.114(E). A signature on a pleading is certification that the signer has read the pleading and, to the best of the signer’s knowledge, information, or belief after reasonable inquiry, the pleading is well grounded in fact. MCR 2.114(D). Filing a signed pleading that is not well grounded in fact subjects the filer to sanctions, including attorney fees. MCR 2.114(E).
The discovery in this case demonstrated that petitioner’s original claim against respondent must have been made without any inquiry into the facts, reasonable or otherwise. It also showed that petitioner’s later amendment of the claim, although better grounded in fact, was still not based on existing law or a good-faith argument for modification of existing law. MCR 2.114(D). There was no dispute that decedent intended respondent to have the right of survivorship when he set up the account and deposited his funds. Respondent’s property rights to the funds in the account are determined by the intent of the depositor at the time of the deposit. See MCL 487.703; MSA 23.303. No later change of heart on decedent’s part could have divested respondent of his right of survivor-ship, unless that change of heart was accompanied by withdrawal of the funds from the account. Because decedent did not withdraw the funds, petitioner’s claim was totally without merit. The award of attorney fees under MCR 2.114(E) was justified.
Finally, petitioner challenges the trial court’s award of costs pursuant to MCL 600.858(2); MSA 27A.858(2). The probate court did not abuse its discretion in awarding costs. Even if costs had not been provided for by statute, the award would still have been appropriate pursuant to MCR 2.114(E), as reasonable expenses incurred.
Affirmed._
The actual nature of this account is not clear from the record. Because the parties seem to have treated the account as a bank account, so do we.
The record also does not show that petitioner ever had any factual support for the claim that there was anything wrong with respondent’s removal of furniture from decedent’s home. | [
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Taylor, J.
The parties entered into a consent judgment of divorce in April 1988. Pursuant to the terms of this judgment, plaintiff-wife was awarded legal and physical custody of their son, Christopher, born on July 6, 1973, and defendant-father was awarded legal and physical custody of their daughter, Stephanie, born on November 19, 1975. Paragraph 10 of the judgment provides:
The defendant shall pay to the plaintiff . . . $50.00 per week for the support of Christopher
The defendant shall not be required to pay to the plaintiff any amounts for the support of Stephanie.
The above reflects the parties’ negotiated agreement and their relative financial conditions, and it is their intention that there will be no order of support entered requiring the plaintiff to pay support to the defendant on behalf of Stephanie before or after Christopher reaches the age of 18 or finishes high school, whichever is later, unless there has been a substantial change in the parties’ relative financial positions and income by that time.
At the time the parties divorced, plaintiff was earning approximately $20,000 annually as a secretary; defendant, who completed law school during the marriage, was earning approximately $40,000 annually. At the time the parties negotiated the consent judgment, they understood that their son, being older than their daughter, would be entitled to financial support for a shorter time than the daughter.
By 1991, approximately three years after the divorce judgment was entered, plaintiff had remarried and both plaintiff and defendant earned slightly more money than they had previously. The parties’ son, who was in plaintiff’s custody, was nearing his eighteenth birthday. Defendant moved to amend the judgment to require plaintiff to pay child support for the parties’ daughter, who was in defendant’s custody, at the rate set under the child support guidelines rather than under the terms of the consent judgment. Defendant, an attorney who represented himself both at the time the original judgment was entered and in subsequent proceedings, contended that plaintiff was obligated to do so despite the fact that there was no real change in the parties’ circumstances other than the approach of their son’s eighteenth birthday. On appeal, defendant cites the recent case of Calley v Calley, 197 Mich App 380, 383; 496 NW2d 305 (1992), suggesting that the change in the amount of child support called for under the guidelines in the intervening years, standing alone, mandates modification of the child support provisions of the judgment as a matter of law.
We conclude that the trial court did not abuse its discretion in ruling that there was no change of circumstances warranting a modification in this case. At the time the parties consented to the judgement, they had anticipated the ending of support for Christopher when he reached the age of eighteen and had negotiated with that in mind, as the language of the judgment makes clear. Further, while it is the case that a change in the amount of support calculated under the support guidelines may be sufficient to justify modification of a support order, Calley does not stand for the proposition that a change in support called for under the guidelines is mandatory. See, e.g., the discretionary language of MCL 552.17; MSA 25.97, Deal v Deal, 197 Mich App 739, 743; 496 NW2d 403 (1993), and Calley, supra.
It was with this appropriate understanding of its role that the trial court considered all the facts and circumstances claimed to constitute a change of circumstances and determined that they did not warrant a modification. This was no abuse of discretion in light of the parties’ negotiations and consent to the specific terms of this divorce judgment; the change that occurred was well within the contemplation of the parties at the time they came to terms.
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Whttbeck, J.
Defendant David Tippett appeals as of right from an order denying his motion for summary disposition and granting summary disposition in favor of plaintiff Brandon Charter Township pursuant to MCR 2.116(I)(2). We reverse.
I. basic facts and procedural history
Tippett owns ten acres of land, zoned as Rural Estate (re) District, in Brandon Township. He parked and stored various pieces of heavy equipment on his property, including a backhoe, excavator, bulldozer, semi-tractor, and dump truck and trailer. Tippett, who occasionally used the equipment to maintain his private road in Brandon Township and to run a part-time excavating business, did not store the equipment in a building or other structure on the property and did not engage in farming activities in Brandon Township. More importantly, Tippett also used the equipment in “bona fide fanning operations” in Marlette, Michigan, which is not in Brandon Township.
On November 29, 1995, Brandon Township filed its complaint requesting injunctive relief. Brandon Township alleged that, by storing farming equipment on his property, Tippett had violated subsection 8.03 of the local zoning ordinance, which states in pertinent part:
The following uses may be permitted subject to the conditions hereinafter imposed and subject further to the review and approval of the Planning Commission, and subject to the standards set forth in Section 5.18 of this Ordinance.
:|: * *
10. Parking and storing of commercial trailers, trucks and or equipment with a rated capacity exceeding 10,000 pound G.V.W. subject to the following conditions:
A. Minimum acreage required shall be 10 acres.
B. Not more than 3 vehicles or vehicles and mobile equipment in combination shall be parked or stored on the property.
C. All vehicles and equipment shall be parked or stored in completely enclosed building(s).
The restrictions in item 10 of this section do not apply to vehicles and equipment that are used on a bona fide farm and in farming operations as defined by article III of this ordinance. [Emphasis supplied.]
The township also alleged that Tippett, who continued to refuse to remove the equipment, had not applied for special use approval to maintain the equipment on his property.
Subsequently, in addition to agreeing to the facts outlined above, the parties stipulated that (1) the zoning ordinance was enacted in 1989, four years before Tippett built and occupied his house, (2) the zoning ordinance was in force at all relevant times and applied to Tippett’s property, and (3)
[o]n or about January 10, 1996, Defendant provided the Plaintiff with sixty photographs, taken at or about that time, depicting commercial equipment located on private residential property. Of the sixty (60) photographs, eleven (11) represented situations which violated the Brandon Township zoning ordinance Rural Estate (re) provisions, but had not, previous to that date, been enforced by the Township.
Tippett moved for summary disposition pursuant to MCR 2.116(C)(10). Relying on the stipulated facts, Tippett argued that the zoning ordinance did not prohibit him from storing the equipment on his property because the zoning ordinance had an exception for equipment used for bona fide farming. Tippett also argued that Brandon Township selectively enforced the zoning ordinance and, therefore, denied him equal protection. Brandon Township countered that exception for equipment used in bona fide farming operations only applied to such an operation within the township. Further, Brandon Township contended that it had not avoided enforcing the zoning ordinance to the extent that enforcing it against Tippett denied him equal protection.
The trial court rejected Tippett’s argument that by using the equipment for a bona fide farming operation outside Brandon Township he could qualify for a zoning exception within the township. The trial court reasoned that
the zoning ordinances don’t extend the authority of the Township to govern other regions. Therefore, it appears that although the zoning ordinance in question really didn’t specifically state that the exception as applied to farming equipment was limited to farming activities in the Town ship, to allow the lack of specificity to mean that any activity anywhere allows one to store commercial vehicles on their property is . . . ridiculous.
This . . . construction would be inappropriate in light of the fact that the Township really can’t regulate activities outside of its jurisdiction.
So the Defendant’s contention that the lack of specificity should be construed in favor of the property owner would be to give an absurd affect [sic] to the statute.
The trial court also commented that, even though Tippett had provided photographic evidence of other zoning violations in the township, he had failed to show that they were “identical” to his alleged violation. He also failed to present evidence that Brandon Township had not “ticketed” the property owners who had committed these other zoning violations. As a result, the trial court ruled, Tippett failed to show that he was treated unequally. The trial court’s resulting order enjoined Tippett from parking commercial vehicles on his property without a permit.
fi. BRANDON CHARTER TOWNSHIP’S ZONING ORDINANCE
A. STANDARD OF REVIEW
Tippett presents the same arguments on appeal regarding the meaning of, and his exemption from, subsection 8.03.10 of Brandon Township’s zoning ordinance. Because he asks us to interpret this zoning ordinance, he presents us with a question of law subject to review de novo. Burt Twp v Dep’t of Nat ural Resources, 459 Mich 659, 662; 593 NW2d 534 (1999).
B. INTERPRETATION
We interpret ordinances in the same manner that we interpret statutes. Ahearn v Bloomfield Charter Twp, 235 Mich App 486, 498; 597 NW2d 858 (1999). If the language is clear and unambiguous, the courts may only apply the language as written. Id. However, if reasonable minds could differ regarding the meaning of the ordinance, the courts may construe the ordinance. See generally Adrian School Dist v Michigan Public School Employees’ Retirement System, 458 Mich 326, 332; 582 NW2d 767 (1998). We follow these rules of construction in order to give effect to the legislative body’s intent. Ballman v Borges, 226 Mich App 166, 167; 572 NW2d 47 (1997).
C. PLAIN LANGUAGE
In most cases, whether a property owner would be exempt from the requirements in subsection 8.03.10 of the zoning ordinance would rely on proof that the property owner used the disputed equipment or vehicles on a “bona fide farm and in farming operations.” However, those terms are not at issue in this case because the parties agreed that the equipment on Tippett’s Brandon Township property generally fell within this exception. The narrow issue on appeal, then, is whether using the equipment in this manner in Marlette — but not in Brandon Township — exempts Tippett from complying with subsection 8.03.10 of Brandon Township’s zoning ordinance.
There is no question that subsection 8.03.10 of Brandon Township’s zoning ordinance regulates, as a whole, on the basis of many factors. Those factors include the size of the property at issue, the nature of the equipment or vehicles stored on the property, the number of vehicles or pieces of equipment, how the equipment and vehicles are used, and where the vehicles and equipment are stored on the property, i.e., in an enclosed structure. However, none of these factors, including the exception for equipment and vehicles used on a bona fide farm, explicitly or implicitly mentions a geographic location where the equipment is used. Brandon Township’s argument relies wholly on having this Court add three words to the exception in subsection 8.03.10, so that it would read:
The restrictions in item 10 of this section do not apply to vehicles and equipment that are used on a bone fide farm and in farming operations in Brandon Township as defined by article in of this ordinance.
This, however, is beyond our authority because courts may not legislate. See generally Morgan v Taylor, 434 Mich 180, 192; 451 NW2d 852 (1990), quoting Melia v Employment Security Comm, 346 Mich 544, 561-562; 78 NW2d 273 (1956).
Subsection 8.03.10 of the zoning ordinance, as written by the proper authority, is unambiguous and must be applied as written. Ahearn, supra at 498. That Brandon Township, when drafting the zoning ordinance, may have omitted what it now considers to be critical language limiting the exception to farming within the township is certainly not Tippett’s fault and should not be construed in a manner that prejudices him.
D. ABSURD RESULTS
Brandon Township nevertheless argues that Tippett’s interpretation is inconsistent with the purpose for enacting the zoning ordinance, which it contends is to protect farming within the township. Courts attempt not to interpret statutes, and by implication ordinances, in a manner that leads to absurd results. See Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409 (1994); Ahearn, supra at 498. However, we disagree that applying the plain language in this case leads to an absurd result.
Subsection 8.01 of the zoning ordinance explains the goals of zoning in this particular type of district:
1. Land containing agricultural value should be preserved because it is a vital resource.
2. Land with agricultural value justifies a design technique which attempts to support a town-country spatial relationship creating intrinsic urban-rural values.
3. Rural Estate zoning permits the timing of land allotments to urban purposes in keeping with a theory of maximizing supporting public utilities so as to achieve the greatest amount of service for each dollar of capital expenditure.
4. ^discriminating urbanizing [sic] of agricultural lands adversely affects the remaining owners of land pursuing agricultural endeavors, by creating urban land values.
Not one word within this very plain explanation of the zoning ordinance suggests that the benefits of preserving agricultural land relate only to property within Brandon Township’s limits. Rather, Brandon Township chose to express these goals in universal terms, without restriction to its borders. Nor can we see a flaw in this approach. For instance, the statement that “[l]and containing agricultural value should be preserved because it is a vital resource” may be as true outside Brandon Township as it is within Brandon Township.
We do agree with the trial court that Brandon Township would exceed its authority by attempting to regulate land outside its jurisdiction. See generally MCL 125.271(1); MSA 5.2963(1)(1) (describing a zoning board’s authority). However, to our knowledge, nothing would limit Brandon Township’s ability to reward property owners within its borders for arguably socially useful activities they conduct elsewhere. If Brandon Township did not intend to create this sort of reward in subsection 8.03.10 of its zoning ordinance, then the remedy is to amend the ordinance by going through the proper processes. Brandon Township cannot attempt to enforce the zoning ordinance to reflect wording it wishes it had adopted that, nonetheless, does not appear anywhere in the ordinance. That the township cannot regulate land use outside its jurisdiction is both true and interesting, but essentially irrelevant to the disposition of this case. Using the trial court’s terminology advisedly, it would be truly “ridiculous” to amend the Brandon Township zoning ordinance by judicial fiat in order to accommodate an essentially irrelevant notion of the scope of the township’s regulatory authority.
Overall, we must be guided first and foremost by the language of the ordinance, which clearly compels the result in this case. Even when we consult the explicit intentions behind the zoning ordinance, we see nothing absurd in enforcing subsection 8.03.10 as written.
m. CONCLUSION
Tippett claims that Brandon Township’s failure to enforce the zoning ordinance uniformly bars its enforcement against him. However, in light of the way we disposed of Tippett’s first claim, we need not reach this issue.
Reversed and remanded for further proceedings consistent with this decision. We do not retain jurisdiction.
Gage, J., concurred.
Brandon Township contends that we must defer to the trial court’s factual findings and engage in a review for clear error. However, because the parties stipulated the facts, our primary concern is with the law. In re Butterfield Estate, 405 Mich 702, 715; 275 NW2d 262 (1979). We review how the trial court applied the facts to the relevant law de novo, Cain v Dep't of Corrections, 451 Mich 470, 503, n 38; 548 NW2d 210 (1996), which is consistent with the standard of review de novo for summary disposition, Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). | [
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Per Curiam.
Defendant was convicted by a jury, as charged, of conspiracy to possess with intent to deliver and to deliver more than 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2) (a)(i). He was sentenced to mandatory life imprisonment without parole, and appeals as of right. We reverse.
The charge arose from an alleged conspiracy to import and sell drugs in the metropolitan Detroit area. Many of the alleged participants in the conspiracy were Chaldean' Iraqis. Defendant’s trial took place in 1991, during the third and fourth weeks of the Persian Gulf War against Iraq.
Defendant first argues that he was denied a fair trial by the prosecutor’s misconduct. Specifically, defendant complains that the prosecutor made numerous references to his nationality, that he vouched for the credibility of the people’s informants and for the strength of the people’s case, and that he appealed to the jury’s fear of drug trafficking in their community. We agree that defendant was denied a fair trial, even if he did not object to every single instance of misconduct now complained of, because the cumulative prejudicial effect of the prosecutor’s comments could not have been cured by an instruction. People v Gonzalez, 178 Mich App 526, 534-535; 444 NW2d 228 (1989); People v Rosales, 160 Mich App 304, 307; 408 NW2d 140 (1987).
During opening argument, the prosecutor noted defendant’s nationality and mentioned that many people in the courtroom audience were also Chaldean. Later, the prosecutor followed the lead of one of his witnesses who, despite defense counsel’s successful objections, repeatedly referred to defendant as being part of the "Arab connection.” The prosecutor even told the witness, after being told to rephrase a question, that the witness could "[t]alk about the Columbians [sic] and everybody all you want, but we can’t mention that 'A’ word, do you understand?” The prosecutor also elicited the Arabic nationality of several witnesses who allegedly conspired with defendant to sell drugs and asked them about the large Chaldean population in the Detroit area. He even referred to the "Arabs” during closing argument.
"A defendant’s opportunity for a fair trial may be jeopardized when the prosecution interjects issues broader than the guilt or innocence of the accused.” People v Rohn, 98 Mich App 593, 596; 296 NW2d 315 (1980). Even in civil trials, "[i]t is reversible error to deny the opposing party a fair trial by making irrelevant and inflammatory ethnic allusions.” George v Travelers Indemnity Co, 81 Mich App 106, 114; 265 NW2d 59 (1978) (involving "protracted inquiry into the plaintiffs’ Chaldean ethnic affiliation”). Whenever "racial, ethnic, or religious matters” are mentioned "there is always the risk of incidentally arousing prejudice— and this Court abhors injecting the poison of prejudice into any legal proceeding.” Id. "Any effort to arouse the prejudice of the jury 'cannot be overlooked, nor can it ever, in the final analysis, prove other than detrimental to the interests of the litigant whose counsel resorts to such a course.’ ” Id. (quoting Solomon v Stewart, 184 Mich 506, 511; 151 NW 716 [1915]). The prosecutor’s ethnic allusions were clearly improper, especially because they were made in the context of the Persian Gulf War.
Similarly, it is a prejudicial error to introduce evidence of a witness’ agreement to testify truthfully "if used by the prosecutor to suggest that the government has some special knowledge that the witness is testifying truthfully.” People v Enos, 168 Mich App 490, 492; 425 NW2d 104 (1988). Such testimony should be admitted only with great caution. Rosales, supra at 311. For example, in Enos, the defendant’s conviction was reversed where the prosecutor not only discussed the plea agreements and the promise to testify truthfully, but also told the witnesses that the deal would be voided if they lied and then recalled a particular witness, forced him to admit he had lied, threatened to charge him with perjury, asked him if he had lied about anything else — which he denied— and then reemphasized these events during the closing argument. Enos, supra at 492-495.
Here, the prosecutor elicited testimony from two accomplices-turned-informants that the prosecutor had personally promised to send them to prison for life without parole if they lied. He forced one of them to admit that, although he "could” lie and embellish his story, he would not do so because he had been promised life in prison if he lied. The prosecutor referred to this promise again during closing argument. Further, the prosecutor impermissibly elicited testimony from law enforcement officers regarding the steps they had taken to ensure that the informants were telling the truth. See Rosales, supra at 311; see also People v Smith, 158 Mich App 220, 230-231; 405 NW2d 156 (1987). The prosecutor’s comments were improper in light of these cases.
Also, a prosecutor is not permitted to inflame the jury’s emotions regarding "the drug problem.” People v Williams, 65 Mich App 753, 756; 238 NW2d 186 (1975). Further, he may not express a personal belief in the defendant’s guilt. People v McCoy, 392 Mich 231, 240; 220 NW2d 456 (1974). " 'The prosecutor may not attempt to place the prestige of his office, or that of the police, behind a contention that the defendant is guilty, but he may argue that the evidence shows that the defendant is guilty.’ ” People v Erb, 48 Mich App 622, 632; 211 NW2d 51 (1973) (quoting People v Cowell, 44 Mich App 623, 628; 205 NW2d 600 [1973]).
During closing argument, the prosecutor stated that the street value of the cocaine involved was enough "to retire the debt of half the Third World countries” and was more "than all of us together will earn in our lifetime probably.” He told the jury that the evidence might give them the impression "that this whole world is full of dope dealers” but that that was because "we get them all in this trial because we’re working with one of the biggest organizations that you can ever imagine.” He also referred to evidence that tended to show that some activities in furtherance of the alleged conspiracy had taken place at a public swimming pool and asked, "How much do you think of this happens when you’re out at the swimming pool?”
Additionally, the prosecutor stated several times that his case was very strong, that "[t]his is in front of you, it is in black and white moving pictures and it doesn’t get any better than that,” and that the evidence was so strong that "sometimes these cases seem too good.” He stated that "[t]his wasn’t a bought case, this was a perfect case, this was a perfect case. These dope cases don’t get any better.” Finally, he said that the case had been "presented to you well wrapped up, well organized, [and] that’s as good as it is going to get” and asked "[w]hat more can you possibly expect law enforcement to do to prove the case to you?” Again, the prosecutor’s comments were improper.
Defendant also argues that the prosecutor erred in introducing evidence that there was a very unusual secret compartment in defendant’s car that contained a gun holster and also by introducing evidence that defendant may have facilitated an assault by driving another drug dealer to the location where he was beaten. We agree in part.
Evidence of the secret compartment was marginally relevant and therefore the trial court did not abuse its discretion in admitting it. However, the beating occurred well after the termination of the alleged conspiracy. Therefore, evidence of defendant’s role in the beating was irrelevant to defendant’s participation in the conspiracy. Such evidence was also highly prejudicial because it contributed to the prosecutor’s effort to show that defendant was a bad person who deserved to be convicted.
It is possible that the prejudice resulting from some of the errors below could have been cured by a timely instruction. In the aggregate, however, and in light of the timing of the trial and of the credibility disputes involved, these errors undoubtedly deprived defendant of a fair trial. Given the mandatory life sentence without parole, we cannot reward the prosecutor’s improper attempt to obtain a conviction at any cost.
Defendant also argues that his sentence constitutes cruel and unusual punishment. Because we are ordering a new trial, this issue is moot. We note, however, that the Supreme Court has rejected defendant’s argument. See People v Fluker, 442 Mich 891; 498 NW2d 431 (1993); People v Loy-Rafuls, 442 Mich 915; 503 NW2d 453 (1993).
Reversed. | [
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Fitzgerald, P.J.
Plaintiff appeals as of right the order denying plaintiffs motion for summary disposition and granting judgment in favor of defendant pursuant to MCR 2.116(I)(2). We affirm.
The facts are undisputed. Plaintiff, an attorney in Indiana, reviews governmental records, including unclaimed property holder reports maintained by defendant’s unclaimed property division pursuant to the Uniform Unclaimed Property Act, MCL 567.221 et seq.-, MSA 26.1055(1) et seq. These reports include the name, social security number, and last known address of persons who have unclaimed property. In November 1997, pursuant to the Freedom of Informa tion Act (foia), MCL 15.231 et seq.-, MSA 4.1801(1) et seq., plaintiff requested that defendant allow him to personally inspect the unclaimed property holder reports for the annual transmittal reports for General Motors Corporation, Ford Motor Company, and Chrysler Corporation for the years 1983, 1984, and 1985. Defendant refused to disclose addresses of the property holders pursuant to subsection 13(l)(a) of the FOIA, MCL 15.243(l)(a); MSA 4.1801(13)(l)(a).
After plaintiffs request for reconsideration was denied by defendant, plaintiff brought this action, alleging a right to the unclaimed property holders’ addresses under the foia. Plaintiff subsequently moved for summary disposition pursuant to MCR 2.116(C)(10), and defendant filed a cross-motion for judgment in its favor pursuant to MCR 2.116(I)(2). The trial court denied plaintiff’s motion for summary disposition and entered a judgment for defendant. The court reasoned that because abandoned property holders would not expect the state to receive information about them from third-party financial institutions, it would be a “disservice” to the property holders to allow their addresses to be made public. Plaintiff appeals this order, requesting that defendant be ordered to disclose the addresses of the holders of the unclaimed property under the FOIA. This Court reviews such issues of law de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
The FOIA protects a citizen’s right to examine and to participate in the political process. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 231; 507 NW2d 422 (1993). By requiring the public disclosure of information regarding the affairs of government and the official acts of public officials and employees, the act enhances the public’s understanding of the operations or activities of the government. Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 291; 565 NW2d 650 (1997).
Subsection 3(1) of the FOIA, MCL 15.233(1); MSA 4.1801(3)(1), states:
Except as expressly provided in section 13, upon providing a public body’s foia coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of the requested public record of the public body.
Section 13 of the foia sets forth a number of items that a public body may withhold from disclosure. MCL 15.243; MSA 4.1801(13) states:
(1) A public body may exempt from disclosure as a public body record under this act:
(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy. [Emphasis added.]
In Mager v Dep’t of State Police, 460 Mich 134; 595 NW2d 142 (1999), the plaintiff sought the names and addresses of persons who owned registered guns. The Mager Court stated:
[W]e take guidance from the United States Supreme Court’s discussion in United States Dep’t of Defense v Federal Labor Relations Authority, 510 US 487; 114 S Ct 1006; 127 L Ed 2d 325 (1994).
Referring to earlier decisions, the U.S. Supreme Court said in Dep’t of Defense that “in evaluating whether a request for information lies within the scope of a foia exemption, such as [5 USC 552(b)(6)], that bars disclosure when it would amount to an invasion of privacy that is to some degree unwarranted, a court must balance the public interest in disclosure against the interest Congress intended the exemption to protect.” 510 US 495. The Court added that “the only relevant public interest in disclosure to be weighed in this balance is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." 510 US 495. From there, the Court continued by noting this language from Dep’t of Justice v Reporters Committee for Freedom of the Press, 489 US 749, 773; 109 S Ct 1468; 103 L Ed 2d 774 (1989):
“The basic [foia] policy of ‘full agency disclosure unless information is exempted under clearly delineated statutory language,’ ” [Dep’t of Air Force v Rose, 425 US 352, 360-361; 96 S Ct 1592; 48 L Ed 2d 11 (1976)], indeed focuses on the citizens’ right to be informed about ‘what their government is up to.’ Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various government files but that reveals little or nothing about an agency’s own conduct. In this case — and presumably in the typical case in which one private citizen is seeking information about another — the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records. Indeed, response to this request would not shed any light on the conduct of any Government agency or official.” [Id. at 144-146.]
Assuming the addresses sought here fall within the definition of “personal information,” given the clear language in Mager, it is apparent that the release of the property holders’ addresses to plaintiff would constitute an unwarranted invasion of privacy. Plaintiff’s request for information concerning private citizens is unrelated to how well defendant is complying with its statutory functions. Hence, we conclude that the addresses sought are exempt from disclosure under the FOIA.
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Kelly, J.
Defendant appeals as of right his conviction of two counts of first-degree criminal sexual conduct (victim under thirteen years of age), MCL 750.520b(l)(a); MSA 28.788(2)(l)(a) (csc-l), and one count of second-degree criminal sexual conduct (victim under thirteen years of age), MCL 750.520c(l)(a); MSA 28.788(3)(l)(a) (csc-n). Defendant also appeals his sentence of life imprisonment for the first-degree criminal sexual conduct convictions and ten to fifteen years in prison for the second-degree criminal sexual conduct conviction. We affirm defendant’s convic tions, but vacate the sentences and remand for resentencing.
Defendant argues that the trial court erred in denying his motion to disqualify the trial judge. We disagree. The denial of a motion to disqualify is reviewed for an abuse of discretion. People v Milton, 186 Mich App 574, 583; 465 NW2d 371 (1990).
The offenses, which involved a nine-year-old victim, occurred in the city of Taylor in 1993. Defendant originally entered a plea of nolo contendere and was sentenced on October 20, 1994, by Recorder’s Court Judge Dalton Roberson to concurrent terms of six to fifteen years’ imprisonment. He appealed as of right, and this Court, on October 1, 1996, ruled that defendant had been denied effective assistance of counsel and remanded to allow him to withdraw his plea.
On remand, defendant’s case was assigned to Judge Geraldine Bledsoe Ford. On January 24, 1997, defendant moved to disqualify the judge and to have his case assigned to a Wayne Circuit Court judge pursuant to Administrative Order No. 1995-5. Judge Ford denied the motion on her finding that Administrative Order No. 1995-5 was not to be given retroactive effect and that, under joint Recorder’s Court and Wayne Circuit LCR 6.102, defendant could have asked for a Wayne Circuit Court judge at the time of his arraignment on December 12, 1993, but that he failed to do so. Defendant sought rehearing before Recorder’s Court Chief Judge Vera Massey Jones, but withdrew his motion before the court issued a ruling. Following a jury trial, defendant was convicted on all three counts. Judge Ford sentenced defendant, who is seventy years old, to serve two concurrent life sentences for the CSC-I convictions and to serve ten to fifteen years for the csc-n conviction.
Defendant was arraigned at a time when the criminal dockets of the Detroit Recorder’s Court and the Wayne Circuit Court were consolidated and, as such, his case could be heard by a judge of either court pursuant to Administrative Order No. 1986-1. Since defendant’s crime took place outside the limits of the city of Detroit, he could have asked that his case be assigned only to a judge from the Third Judicial (Wayne) Circuit as required by joint LCR 6.102. However, by the time this Court remanded to allow defendant to withdraw his plea, Administrative Order No. 1986-1 had been rescinded by Administrative Order No. 1995-5, effective October 10, 1995:
On order of the Court, Administrative Order No. 1986-1 is rescinded, effective immediately. In addition, Joint Administrative Order No. 1986-1 for the Third Judicial Circuit Court and the Recorder’s Court for the City of Detroit and Joint Local Court Rule 6.102 for the Third Judicial Circuit and Recorder’s Court for the City of Detroit are vacated effective immediately. [450 Mich cxxii (1995).]
This Court remanded defendant’s case for trial on October 1, 1996. However, defendant was first arraigned on December 15, 1993. Administrative Order No. 1995-5 would apply to defendant’s case only if the administrative order had retroactive application.
There are three relevant inquiries when considering retroactivity of a judicial order. People v Neal, 459 Mich 72, 80-81; 586 NW2d 716 (1998). “[T]he three inquiries concern (a) the purpose of the new rule, (b) the general reliance on the old rule, and (c) the effect of retroactive application of the new rule on the administration of justice.” Id. at 80. There is nothing in the text of Administrative Order No. 1995-5 to indicate its purpose and we have not been provided with any published authority indicating the purpose of the order.
Absent any indication that Administrative Order No. 1995-5 should be applied retroactively, it took effect on October 10, 1995, approximately two years after the commencement of defendant’s case. Administrative Order No. 1986-1 controlled defendant’s case following remand by this Court, and, because defendant did not originally request in writing a Wayne Circuit Court judge pursuant to Local Rule 6.102, Judge Ford, sitting as a Recorder’s Court judge, properly heard the case and there was no abuse of discretion in denying defendant’s motion to disqualify.
Defendant also argues that his sentence was disproportionate and represents a drastic departure from the sentencing guidelines. This Court reviews the legality of a trial court’s imposition of sentence for an abuse of discretion. People v Houston, 448 Mich 312, 319; 532 NW2d 508 (1995). A trial court abuses its discretion when it violates the principle of proportionality. People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990). This principle is violated when the sentence is not proportionate to the seriousness of the circumstances surrounding the offense and the offender. Id.
To facilitate appellate review, the sentencing court must articulate on the record the criteria considered and the reasons for the sentence imposed. People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987). A sentence imposed within an applicable sentencing guidelines range is presumptively neither excessively severe nor unfairly disparate. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). Departures from the guidelines should alert appellate courts to the possibility of violation of the principle of proportionality. Milbourn, supra at 660.
The sentencing court may deviate from the guidelines range when the range is disproportionate to the seriousness of the crime and the defendant’s prior record. MCR 6.425(D)(1); Milbourn, supra at 636. To minimize the risks of relying on misinformation, evaluate the effectiveness of the guidelines, and facilitate appellate review, the sentencing court must articulate its reasons for departing from the guidelines range both on the record at sentencing and on the sentencing information report. Fleming, supra at 428.
According to the presentence investigation report (sir), defendant had no prior criminal history. The SIR noted a guidelines range of from thirty-six to ninety-six months. At sentencing, the court stated that this was the type of case that comes as a shock. The court stated that “it’s just offensive; the most offensive kind of act that any adult could commit.” The court opined that defendant “crossed a line that no one forgives a person for crossing.” The court noted the fact that defendant “helped the lame, and the poor, and the underprivileged,’’ but concluded that “even Mr. Bennett’s background, does not overcome the offense charged here.” The court sentenced defendant to the statutory maximum life term. We find this gross deviation from the sentencing guidelines to be an abuse of the sentencing court’s discretion. Moreover, in our opinion, the court failed to adequately state its reasons for the deviation. No comparison was made to the original October 24, 1994, sentences of six to fifteen years, which were within the guidelines. We find the Draconian departure unjustifiable.
The Milbourn Court noted that “departures from the guidelines, unsupported by reasons not adequately reflected in the guidelines variables, should . . . alert the appellate court to the possibility of a misclassification of the seriousness of a given crime by a given offender and a misuse of the legislative sentencing scheme.” Milbourn, supra at 659-660. The Court further stated:
A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion. Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality. [Id. at 660.]
Just as in Milboum, the facts of this case do not justify imposition of such a severe sentence. By sentencing defendant to life imprisonment, the sentencing court “has left no room for the principle of proportionality to operate on an offender convicted of [criminal sexual conduct] who has a previous record for this kind of offense or whose criminal behavior is more aggravated than in [defendant’s] case.” Id. at 668-669. This defendant is not in the most serious class of offenders, and his crime, although certainly punishable by a term of incarceration, was not the most serious with respect to various acts of criminal sexual conduct with which this Court is all too familiar. Accordingly, we find that the sentence imposed violates the principle of proportionality and represents an abuse of discretion.
We affirm defendant’s convictions, but vacate the sentences and remand for resentencing. | [
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Bandstra, C.J.
Defendant Andrew Scriver appeals as of right from a family court order awarding plaintiff primary physical custody of Kaylah Scriver, the parties’ daughter, and changing Kaylah’s state of domicile from Michigan to Virginia. We find no error in the trial court’s decision and affirm.
Plaintiff and defendant were not married at the time of Kaylah’s birth, but dated each other intermittently during their high school years and for approximately IV2 years before Kaylah was bom. Defendant ended the relationship three days after he learned of plaintiff’s pregnancy because he did not want “to feel trapped.” Both parties were twenty years old when Kaylah was bom, and each had taken some college courses.
Kaylah was bom with serious health problems, including cerebral palsy, frequent seizures, and von Willebrand’s disease, an incurable condition that affects the ability of a person’s blood to clot properly. A medical doctor testified that Kaylah’s cerebral palsy affected the right side of her body and prohibited her from walking and manipulating the fingers on her left hand. He described Kaylah as a “high needs” child who would need to undergo occupational therapy, physical therapy, and speech therapy until she reached adulthood.
At the time Kaylah was bom, plaintiff was employed as a waitress and shared an apartment with a roommate, but she soon moved in with her parents to save on living expenses. Plaintiff testified that, after Kaylah was bom, defendant visited her only one day a week. However, after Kaylah’s hip surgery, when she was almost two years old, the frequency of his visits increased. Over time, the parties arranged a schedule whereby defendant would take Kaylah to his house two nights a week and to his parents’ house every Friday night. The lower court record reflects that both parties had hectic and unpredictable work schedules, that each shared responsibility for taking Kaylah to her various appointments, and that they received help from their respective parents.
Plaintiff filed the instant action on May 2, 1997, in anticipation of her marriage to Mark Mogle. Plaintiff married Mogle on April 18, 1998, two days before the commencement of trial. At time of trial, Mogle was enlisted in the United States Air Force and was assigned to Langley Air Force Base, near Hampton, Virginia. Plaintiff sought an order awarding her custody of Kaylah and allowing her to move Kaylah’s domicile to Virginia. Defendant filed a countercomplaint in which he requested sole custody of Kaylah. The trial court found: (1) a custodial environment was established only with plaintiff; (2) many of the factors it was required to consider in making a determination regarding custody weighed equally with respect to both parties; (3) plaintiffs marriage to Mogle allowed her to better provide for Kaylah’s food, clothing, and medical needs because plaintiff planned to assume the role of a stay-at-home mother; (4) plaintiff would be able to better provide a permanent family unit for Kaylah; and (5) plaintiff’s marriage to Mogle would allow Kaylah to grow up in a traditional nuclear family, which the court reasoned should weigh in plaintiff’s favor. The court awarded primary physical custody of Kaylah to plaintiff and authorized a change in Kaylah’s domicile to Virginia. The court granted parenting time to defendant that generally allowed him to have Kaylah for two weeks every other month.
We review the trial court’s findings of fact to determine whether they are against the great weight of the evidence, the court’s discretionary rulings for a palpable abuse of discretion, and questions of law for clear legal error. MCL 722.28; MSA 25.312(8); McCain v McCain, 229 Mich App 123, 125; 580 NW2d 485 (1998). Under the “great weight of the evidence” standard, a trial court’s findings should be affirmed unless the evidence clearly preponderates in the opposite direction. Fletcher v Fletcher, 447 Mich 871, 879 (Brickley, J.), 900 (Griffin, J.); 526 NW2d 889 (1994); Ireland v Smith, 214 Mich App 235, 242; 542 NW2d 344 (1995) (Ireland /). The abuse of discretion standard applies to the trial court’s discretionary rulings; to whom custody is granted is such a discretionary disposition ruling. Fletcher, supra at 879-880 (Brickley, J.), 900 (Grifein, J.); Fletcher v Fletcher, 229 Mich App 19, 24; 581 NW2d 11 (1998).
Defendant first argues that the trial court’s factual finding that Kaylah had an established custodial environment with plaintiff was against the great weight of the evidence. Whether an established custodial environment exists is a question of fact that the trial court must address before it makes a determination regarding the child’s best interests. Overall v Overall, 203 Mich App 450, 455; 512 NW2d 851 (1994).
MCL 722.27(l)(c); MSA 25.312(7)(l)(c) states in relevant part:
The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
Defendant argues that the trial court should have found that an established custodial environment existed with respect to both parties, not just with plaintiff. An established custodial environment is one of significant duration “in which the relationship between the custodian and child is marked by qualities of security, stability and permanence.” Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981); DeVries v DeVries, 163 Mich App 266, 271; 413 NW2d 764 (1987). An established custodial environment, however, need not be limited to one household; it can exist in more than one home. Duperon v Duperon, 175 Mich App 77, 80; 437 NW2d 318 (1989).
We conclude that the trial court did not err in determining that Kaylah had an established custodial environment with plaintiff only. Trial testimony revealed that defendant became involved in Kaylah’s life and helped to provide for her care. The trial court noted that the parties’ sacrifice and work “reflect great credit to all concerned.” Nevertheless, Kaylah lived with plaintiff almost exclusively for the first two years of her life, and thereafter she continued to spend the majority of her days and nights with plaintiff. The testimony at trial did not clearly preponderate in defendant’s direction, and the trial court did not err in finding that an established custodial environment existed -with plaintiff only.
Defendant also argues that the trial court erred in its analysis of the criteria for determining Kaylah’s best interests, contained in MCL 722.23; MSA 25.312(3). He first contends that the trial court impermissibly determined that plaintiff’s recent marriage was an additional factor that weighed in plaintiff’s favor. MCL 722.23(1); MSA 25.312(3)® allows the trial court to consider anything that it deems relevant to the custody dispute. The trial court stated the following with respect to this factor:
In the long run it is — to me, it is in this child’s best interests to live with a traditional nuclear family if that option is available to her. While the grandparents are still maintaining diligent efforts to care for this child, time takes a toll on us all and, as time goes on, it’s going to be more and more difficult for them to be there for her, and I believe the best environment is that provided by a husband and wife living together.
Defendant cites Ireland v Smith, 451 Mich 457; 547 NW2d 686 (1996) (Ireland II), in support of his argument. In Ireland II, the Supreme Court determined that, in making their “best interests” determination, trial courts must not consider the “acceptability” of the homes to be established by each parent, but instead must concentrate on the “permanence” or “stability” of the family environments offered by the contesting parents. Id. at 464-465. Ireland II involved two unmarried parents, not one who remained single and another who was marrying and thus presenting the prospects of a two-parent family such as in this case. Considering the two single-parent situations before it, the Ireland II Court could “discern no significant difference between the stability of the settings proposed by the two parties.” Id. at 465. While recognizing that “in some respects, Mr. Smith’s proposed custodial home appears more stable” the Court also indicated that his single status made a finding of long-term stability problematic:
However, that stability may be chimerical. He will not live with his parents forever, and until the likely path of his life becomes more apparent, it is difficult to determine accurately how stable a custodial home he can offer. [Id. at 466.]
Considering the stated reasoning of the trial court in the present case, we do not conclude that it is in contravention of Ireland II. Notwithstanding defendant’s characterization, the trial court did not impermissibly conclude that a two-parent home is preferable to a single-parent home simply because it is more “acceptable.” Instead, the trial court compared the two alternatives with respect to the permanence and stability they offered the child. The court reasoned that defendant’s parents, who, defendant argued, have played a crucial role in providing care for the child and would continue to do so in the future, would find that task increasingly difficult as they become older. In contrast, considering “the long run,” the court concluded that “it is in this child’s best interest to live with a traditional nuclear family . . . provided by a husband and wife together.” In essence, the trial court’s findings under factor 1 merely expanded on its findings under factors d and e, in which the court analyzed the length of time Kaylah had lived in a stable and satisfactory environment, the desirability of maintaining continuity, and the permanence of the existing or proposed custodial unit. Under both factors, the court discussed plaintiff’s marriage to Mogle and the advantages to Kaylah of living in a nuclear family with a full-time mother. Under factor 1, the court merely synthesized its findings under the other factors to explain its opinion that a nuclear family with a stay-at-home mother presented a more stable environment. In each of the trial court’s findings, it limited its consideration to permanence and stability. We find this analysis to be entirely consistent with Ireland II.
Defendant also argues that the trial court erred in ignoring the fact that, shortly after plaintiff married Mark Mogle, she spent the night with a male coworker, and twice did not tell her husband that she did so. Defendant invites us to conclude from these facts that plaintiffs marriage was unstable, and that the court therefore erred in determining that plaintiff would be able to raise Kaylah in a traditional nuclear family.
When reviewing the trial court’s findings of fact, this Court defers to the trial court on issues of credibility. Harper v Harper, 199 Mich App 409, 414; 502 NW2d 731 (1993). Plaintiff testified that she and the co-worker were merely friends who liked to watch movies after work, and that she spent the night at his house because she did not want to leave late at night. The trial court was free to believe plaintiff’s testimony and therefore did not clearly err when it disregarded these incidents and found that plaintiff would be able to provide a stable nuclear family for Kaylah.
Defendant also asserts that the trial court erred in not finding that plaintiff’s attention deficit disorder prevented her from properly caring for Kaylah. However, a psychologist testified that, in his opinion, attention deficit disorder did not preclude good parenting. Furthermore, defendant neglects the fact that the trial court did consider the fact that plaintiff might suffer from attention deficit disorder when it gave him a “slight advantage” with respect to factor g, the “mental and physical health of the parties involved.”
Defendant points to the fact that, at the time of the lower court proceedings, plaintiff had not made any arrangements for housing in Virginia, and she had not made any arrangements to continue Kaylah’s therapy. These facts were of no consequence. Plaintiff explained that she had not made any firm plans for housing, nor had she located any therapists for Kaylah, because she was awaiting the trial court’s ruling whether she would be granted physical custody of Kaylah, and the court’s ruling on whether she could change Kaylah’s domicile to Virginia. No error is shown in the court’s ruling on custody.
Defendant’s final argument is that the trial court erred in allowing plaintiff to change Kaylah’s domicile to Virginia. This Court reviews for an abuse of discretion a trial court’s decision to allow a parent to remove a child from the state. Overall, supra at 458; Anderson v Anderson, 170 Mich App 305, 309; 427 NW2d 627 (1988). In determining whether to grant a request to change a child’s state of domicile, a trial court must consider
“(1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child; (2) whether the move is inspired by the custodial parent’s desire to defeat or frustrate visitation by the noncustodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state; (3) the extent to which the noncustodial parent, in resisting the move, is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and (4) the degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed. [Overall, supra at 458-459, quoting Anderson, supra at 309.”[ ]
The moving party has the burden of establishing by a preponderance of the evidence that the change in domicile is warranted. Overall, supra at 459; Anderson, supra at 309.
Defendant challenges only the court’s findings on the first and fourth factors. With respect to the first factor, “whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child,” the trial court stated the following:
Factor number one, I find that it is in the best interests of the child and her mother to live as a traditional nuclear family. The mother will not have to plan the child’s care around her work schedule since she would be able to live without holding an outside job. And this will, after an adjustment period, improve their quality of life. The military will provide for the child’s medical and educational needs, at least as well as they have been provided here in Lansing.
Defendant asserts that this finding was in error given that, in Michigan, Kaylah would receive support from all four of her grandparents. Defendant’s argument has some support in the record. Defendant, his parents, and plaintiff’s parents all live in Lansing, within a mile or two of each other. Kaylah’s pediatrician testified that Kaylah was a “high needs” child and that she would need to undergo therapy into her adult years.
Nevertheless, plaintiff testified that if she were able to take Kaylah to Virginia, she would assume the role of a stay-at-home mother. This would allow her to focus her energy on her family and on Kaylah’s special needs. The child’s pediatrician testified that Kaylah would benefit from living in a two-parent household with a full-time mother. A psychologist testified that this arrangement would be a “powerful positive” in Kaylah’s life, and that two-parent households were more stable. In the psychologist’s opinion, keeping Kaylah in Michigan would benefit defendant more than Kaylah. Finally, Mark Mogle’s own parents live within one-half hour’s drive from the Air Force base. In light of the foregoing, we conclude that the trial court did not err in finding that the first factor was satisfied.
In analyzing the fourth factor, the trial court concluded that “[t]here will be realistic opportunity for visitation there and also in Michigan where not only the Defendant, but both sets of grandparents can spend time with Kaylah.” Defendant asserts that given the great distance between Michigan and Virginia, he will have no realistic opportunity for visitation with Kaylah.
Under the fourth factor, the new visitation plan need not be equal to the prior visitation plan in all respects. It only need provide a realistic opportunity to preserve and foster the parental relationship previously enjoyed by the noncustodial parent. Anderson, supra at 310-311. The visitation schedule contained in the court’s final order generally provides that defendant will have visitation with Kaylah for two weeks during every other month. Further, the court ordered that transportation of Kaylah would be achieved by the parties’ meeting at a midpoint between the two states. We conclude that “there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.” Overall, supra at 459. In Anderson, supra at 311, this Court acknowledged the possibility that “extended periods of visitation will foster, not hinder, an even closer father-child relationship” than a typical weekly visitation schedule. We conclude that the trial court properly found that all four factors it was required to consider in determining whether to change a child’s state of domicile were satisfied, and that it did not abuse its discretion in granting plaintiff’s request to change Kaylah’s state of domicile from Michigan to Virginia.
We affirm.
We also note that Ireland II considered subsection e of the best interests factors, whereas the court’s analysis in this case was of the “catch all” factor, subsection 1. We do not conclude, however, that Ireland II is inapplicable here merely because a different statutory factor was at issue. It would be inappropriate for a court to use the “catch all” provision to allow an analysis of the best interests of a child that our Supreme Court has otherwise concluded is inappropriate under the statute.
Nonetheless, there is a distinction between the present case and Ireland that bears mentioning. In Ireland II, supra, the trial court’s findings were the foundation for its order changing custody, id. at 461; Ireland I, supra at 241, notwithstanding the presumption in favor of maintaining an established custodial environment. See Straub v Straub, 209 Mich App 77, 79; 530 NW2d 125 (1995). In the present case, the trial court was analyzing the factors to see if defendant had shown by clear and convincing evidence that custody should be changed. Its analysis resulted in its ultimate conclusion that custody should not be changed, consistent with the presumption.
This test is known as the D’Onofrio test. See D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976). | [
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Per Curiam.
Defendant appeals from the order of the circuit court revoking defendant’s probation and sentencing defendant to thirty to sixty months in prison for the underlying offense of carrying a concealed weapon in violation of MCL 750.227; MSA 28.424. We affirm the order of the circuit court, but remand for correction of defendant’s presentence report.
Defendant was sentenced to probation for three years after pleading nolo contendere to carrying a concealed weapon. Believing that defendant needed closer supervision, defendant’s probation officer requested and received from the circuit court an ex parte order amending the order of probation to require defendant to be placed in the electronic monitoring program, also known as the "tether” program. Defendant refused to cooperate with the tether program, apparently believing that his due process rights were being violated. A probation violation hearing was held, at the conclusion of which the circuit court found that defendant had violated his probation. The circuit court subsequently sentenced defendant for the underlying offense.
Defendant contends that he was denied due process because his probation was revoked for failure to comply with the ex parte order requiring him to comply with the tether program. Defendant argues that because placement in the tether program is the equivalent of confinement, due process protections apply and the ex parte amendment of the probation order therefore was improper. We disagree.
An order of probation may be amended ex parte, and there is no requirement that the defendant be given notice or an opportunity to be heard before the amendment. See MCL 771.2(2); MSA 28.1132(2); People v Marks, 340 Mich 495, 501; 65 NW2d 698 (1954); People v Kendall, 142 Mich App 576, 579; 370 NW2d 631 (1985); People v Graber, 128 Mich App 185, 190-191; 339 NW2d 866 (1983). In People v Jackson, 168 Mich App 280, 283; 424 NW2d 38 (1988), however, this Court distinguished ex parte orders that order Confinement of the defendant. In Jackson, the defendant, while on probation, voluntarily entered a drug rehabilitation program that involved confinement at the rehabilitation center. His probation officer then obtained an ex parte order making completion of the program a condition of probation and, when the defendant attempted to leave the program, sought to have his probation revoked. This Court found that due process protections attached because the defendant was essentially being confined, resulting in a fundamental change in the defendant’s liberty interest. Id.
In People v Granquist, 183 Mich App 343, 346-347; 454 NW2d 207 (1990), the Court concluded that the defendant in that case had escaped from prison while on an electronic tether. However, unlike the defendant in this case, the defendant in Granquist was being monitored by an electronic tether while on a prison furlough. The case does not stand for the proposition that any violation of curfew rules while on an electronic tether constitutes prison escape, but rather that the defen dant’s escape from an area under the surveillance of the Department of Corrections constituted prison escape.
Contrary to defendant’s argument, however, the order placing defendant in the tether program in this case was not an order of confinement. Being monitored with an electronic tether is not the equivalent of confinement in prison. People v Smith, 195 Mich App 147, 151-152; 489 NW2d 135 (1992); People v Reynolds, 195 Mich App 182, 184; 489 NW2d 128 (1992); Granquist, supra, 346-347; see also People v Whitted, 199 Mich App 459, 460; 502 NW2d 328 (1993). Electronic tethers were not intended to form the bounds of confinement. Rather, the electronic tether is simply a surveillance device for monitoring a defendant’s presence in his residence during curfew hours. Granquist, supra. Because placement in the electronic tether program did not constitute confinement, due process protections did not attach, and the circuit court was within its discretion entering the ex parte order.
Defendant also contends that his sentence is disproportionately severe. The sentencing guidelines do not apply to probation violations. Smith, supra, 149; People v Peters, 191 Mich App 159, 167; 477 NW2d 479 (1991). Although the second edition of the guidelines is the best barometer by which to measure the proportionality of a sentence, People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), the guidelines should be used only as a starting point when determining a sentence for a probation violation. Smith, supra, 150; Peters, supra. After reviewing the record, we hold that the sentence was proportionate to both the seriousness of the offense and the circumstances of the offender. The trial court therefore did not abuse its discretion.
Defendant also contends, and the prosecution agrees, that defendant is entitled to have certain challenged information stricken from the presentence report. We also agree. When a sentencing court states that it will disregard information in a presentence report challenged as inaccurate, the defendant is entitled to have the information stricken from the report. MCL 771.14(5); MSA 28.1144(5); People v Fisher (After Second Remand), 190 Mich App 598, 603-604; 476 NW2d 762 (1991); People v Newson (After Remand), 187 Mich App 447, 450; 468 NW2d 249 (1991), vacated in part on other grounds 437 Mich 1054 (1991). In this case, defendant challenged a number of alleged inaccuracies in the presentence report, and the circuit court indicated that it would not consider this information. Defendant, therefore, is entitled to have the information in question stricken from the report.
The order of the circuit court is affirmed, but the case is remanded to the circuit court so that the challenged information may be stricken from the presentence report. We do not retain jurisdiction. | [
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Bandstra, C.J.
Defendant appeals by leave granted the trial court’s order denying summary disposition of plaintiff’s defamation suit. We affirm.
This case arises from a letter that was written by defendant on October 7, 1996, to Michigan Supreme Court Commissioner Glen B. Gronseth. At the time the letter was written, defendant was the Grievance Administrator for the Michigan Attorney Grievance Commission. Gronseth served as liaison between the Supreme Court and the Attorney Grievance Commission. Plaintiff was a member of the Judicial Tenure Commission (jtc). The letter, written under the letterhead of the Attorney Grievance Commission, purported to contain information given to defendant regarding instances of misconduct by the JTC and its staff. The letter referenced the following allegations by JTC staff: (1) plaintiff was responsible in part for former JTC director Joseph F. Regnier’s resignation, (2) plaintiff had used his position on the JTC for his personal benefit, (3) another jtc staff member had engaged in racial intimidation and harassment of members of the commission’s support staff, and (4) plaintiff blocked discipline of that staff member and may have engaged in such intimidation and harassment himself. The letter also stated that JTC staff members had photocopied sensitive documents that may demonstrate that plaintiff engaged in conflicts of interest while serving on the commission out of concern that those documents would be destroyed. Moreover, defendant questioned JTC members’ motives in appointing an interim director who defendant believed was incapable of serving in that capacity.
Gronseth passed defendant’s letter on to the Michigan Supreme Court Chief Commissioner. Thereafter, then Chief Justice James H. Brickley forwarded the letter to JTC Chairman Henry Baskin, explaining that the Supreme Court felt it necessary to bring defendant’s allegations to the chairman’s attention. On March 19, 1997, an article was printed in the Detroit News referencing the substance of defendant’s letter to Gronseth and Chief Justice Brickley’s letter to the JTC. On September 30, 1997, plaintiff filed the present action, claiming that the allegations involving plaintiff referenced in defendant’s letter to Gronseth were either false or cast plaintiff in a false light. Plaintiff alleged that defendant’s publication of the falsities to Gronseth, the Justices of the Supreme Court, and the press damaged his reputation.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10), contending that he was immune from suit under MCR 9.125, that he did not publish the letter to any newspaper, and that plaintiff, a public official, had failed to allege any facts showing actual malice.* The trial court denied defendant’s motion for summary disposition, concluding that there were issues of fact concerning (1) whether defendant wrote the letter in the course of his duties and (2) whether defendant caused the letter to be sent to the newspaper.
Defendant argues that the trial court erred in denying summary disposition pursuant to MCR 2.116(C)(7) because he is absolutely immune from suit under the circumstances of the present case pursuant to MCR 9.125. We disagree. This Court recently discussed summaiy disposition based on a claim of statutory immunity:
On appeal, a trial court’s grant of summaiy disposition is reviewed de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Specifically, a court’s interpretation of a statute is reviewed de novo on appeal. Stabley v Huron-Clinton Metropolitan Park Authority, 228 Mich App 363, 366; 579 NW2d 374 (1998). When a motion for summaiy disposition is premised on MCR 2.116(C)(7), the nonmovant’s well-pleaded allegations must be accepted as true and construed in the nonmovant’s favor and the motion should not be granted unless no factual development could provide a basis for recovery. Stabley, supra at 365; Dewey v Tabor, 226 Mich App 189, 192; 572 NW2d 715 (1997). “[T]he court must consider not only the pleadings, but also any affidavits, depositions, admissions, or documentary evidence that has been filed or submitted by the parties.” Horace v City of Pontiac, 456 Mich 744, 749; 575 NW2d 762 (1998). If no facts are in dispute, whether the claim is statutorily barred is a question of law. Dewey, supra at 192. [Amburgey v Sauder, 238 Mich App 228, 231; 605 NW2d 84 (1999).]
In contrast to the defendant in Amburgey, whose claim of immunity was rooted in a statute, defendant in the present case bases his claim of immunity on a court rule, MCR 9.125. However, the rules governing the interpretation of statutes apply with equal force to the interpretation of court rules. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). The interpretation and application of the court rules, like the interpretation of statutes, is a question of law that is reviewed de novo on appeal. Id.) Szymanski v Brown, 221 Mich App 423, 433; 562 NW2d 212 (1997).
MCR 9.125 provides:
A person is absolutely immune from suit for statements and communications transmitted solely to the administrator, the commission, or the commission staff, or given in an investigation or proceeding on alleged misconduct or reinstatement. The administrator, legal counsel, investigators, members of hearing panels, the commission, the board, and their staffs are absolutely immune from suit for conduct arising out of the performance of their duties.
The rule provides immunity to two classes of persons associated with the Attorney Grievance Commission: (1) persons giving statements and communications (a) transmitted to the grievance commission or administrator or (b) given in an investigation or proceeding; and (2) the administrator and others involved in the grievance process for. conduct arising out of the performance of their duties. Defendant claims that he is entitled to absolute immunity as a member of both classes because his letter to Gronseth was a communication “given in an investigation or proceeding on alleged misconduct” and because his reporting of the plaintiff’s conduct to the Supreme Court was “conduct arising out of the performance of [his] duties” as Attorney Grievance Administrator. We disagree.
First, we cannot conclude that defendant is immune from suit because his letter constitutes statements made in an investigation on alleged misconduct. In interpreting a rule, this Court must read its language in the context of the entire rule in order to produce an harmonious whole. Frank v William A Kibbe & Associates, Inc, 208 Mich App 346, 354; 527 NW2d 82 (1995). MCR 9.125 is part of Chapter 9 of the court rules, which provides the procedure for attorney grievance proceedings. Although MCR 9.125 does not provide definitions of its terms, MCR 9.101 provides definitions of terms used in Chapter 9. MCR 9.101(12) defines “investigation” as “fact finding on alleged misconduct under the administrator’s direction.” The term “grievance” is defined as alleged misconduct. MCR 9.101(11). Clearly, the reference in MCR 9.125 to statements made in an investigation refers to fact finding on attorney grievances, not to all statements made to any tribunal. In the present case, defendant wrote the following: “I have hesitated to become involved in matters that do not directly concern me, but, I now feel I have no choice, but to come forward with this information.” (Punctuation in original). Given that defendant himself admitted that the allegations did not directly concern him, we must conclude that there is, at the very least, a factual issue regarding whether defendant’s statements were made in the course of investigating an attorney grievance.
Second, defendant’s purpose in writing the letter is not clear. While much of the letter focuses on alleged improper conduct by plaintiff, the letter also focused on another JTC staff member’s racial intimidation and harassment of other employees, the effect of the interim director’s appointment, and the overall ability of the jtc to function under the circumstances. The jtc is a constitutional entity, Const 1963, art 6, § 30, over which the Attorney Grievance Administrator is given no authority. Consequently, it cannot be said as a matter of law that defendant was engaging in conduct arising out of the performance of his duties as Grievance Administrator. Thus, we cannot conclude that defendant was entitled to summary disposition on the basis of MCR 9.125 immunity.
Further, we reject defendant’s claim that summary disposition should have been granted under MCR 2.116(C)(10) because there is no genuine issue of material fact with respect to the elements of the defamation claim. A motion under MCR 2.116(C)(10) tests whether there is factual support for a claim. Spiek, supra at 337; Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). Generally, a motion for summary disposition under MCR 2.116(C)(10) is premature when discovery on a disputed issue has not been completed. State Treasurer v Sheko, 218 Mich App 185, 190; 553 NW2d 654 (1996). However, summary disposition before the close of discovery is appropriate if there is no reasonable chance that further discovery will result in factual support for the nonmoving party. Id.
Defendant contends that further discovery would be an unnecessary waste of resources to uncover support for plaintiff’s claim that defendant published the letter to the press. In order to make a prima facie case of defamation, a plaintiff must show (1) that the defendant made a false and defamatory statement concerning the plaintiff, (2) that the defendant published the defamatory statement to a third party, (3) that the defendant was at least negligent in publishing the statement, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication (defamation per quod). Ireland v Edwards, 230 Mich App 607, 614-615; 584 NW2d 632 (1998). However, if the party claiming defamation is a public figure, the party must show that the statements were made with actual malice. Id. at 615.
Defendant in the present case contends that there is no dispute of fact regarding whether he caused the newspaper to receive a copy of the letter, thus defeating the element of publication. However, the allegation that defendant published the letter to the press is only one of the claims concerning publication. Plaintiff also alleged that defendant published the letter to the Supreme Court. The element of publication requires only that the statement must be published to a third party; it does not require that the statement go to the media. See DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 444; 566 NW2d 661 (1997) (defamation action would lie when alleged defamatory statements were made to prospective employer). When defendant sent the letter to Gronseth, the element of publication was satisfied. The trial court correctly denied summary disposition. State Treasurer, supra at 190.
We affirm.
The text of the letter was as follows:
As you are no doubt aware, Joseph F. Regnier, the former director of the Judicial Tenure Commission, resigned his position effective September 30, 1996. Although Mr. Regnier submitted a resignation concerning his employment, I have learned that he was actually terminated from his position and then given the option of resigning, which he accepted. As a result of the five years I spent working at the Judicial Tenure Commission, I know all current staff members of that agency and have received a considerable amount of uninvited information regarding the background of Mr. Regnier’s separation from that office. I have labored at great length over whether to report these matters to the Court. I have hesitated to become involved in matters that do not directly concern me, but, I now feel I have no choice, but to come forward with this information. I am concerned that unless this situation is addressed by the Court, information may begin leaking out of the Judicial Tenure Commission and make its way into the media. I am also very concerned by my current belief that the Judicial Tenure Commission’s staff is currently dysfunctional and is unable to carry out that agency’s important function. I am writing to inform the Court of the following.
1. I have been informed that the breakdown in the relationship between Mr. Regnier and the Judicial Tenure Commission resulted from Mr. Regnier’s support of proposed court rule amendments which would have precluded F. Philip Colista, who serves on that Commission, from representing respondent attorneys in Attorney Grievance Commission proceedings. After Mr. Regnier wrote to the Court expressing support for the proposed amendments, Mr. Colista allegedly wrote Mr. Regnier a rather nasty letter concerning the subject and circulated it to all Judicial Tenure Commission Members. I believe that certain members of the Judicial Tenure Commission staff have copies of, or access to [,] the letter Mr. Colista wrote to Mr. Regnier, which apparently resulted in the total breakdown in the relationship between those two individuals. The staff of the Judicial Tenure Commission feel that Mr. Colista abused his position as a Commission Member for his own benefit. This letter, if it exists, may be leaked to the media
2. Since leaving this office and being hired by the Judicial Tenure Commission, . . . has apparently developed a friendship with Judicial Tenure Commission Member, F. Philip Colista. I have been informed by several staff members from the Judicial Tenure Commission that... has provided a considerable amount of information to Mr. Colista regarding the daily comings and goings at that office. I have seen a copy of a book which . . . has allegedly kept over the last year documenting the comings and goings of Mr. Regnier and three members of the secretarial staff. There are some sort of coded entries contained in the book which reflect times when Mr. Regnier and the secretarial staff members have been away from the office, have arrived to work late, or left early. The three support staff members at the Judicial Tenure Commission are African-American and they believe that they are the subject of racial intimidation/harassment from . . . and perhaps even Mr. Colista I have been told that. . . has made racial remarks to the secretarial staff. . . . has allegedly referred to Judicial Tenure Commission secretary ... as “mammy” on at least one and possibly more occasions. It is alleged that although Mr. Regnier attempted to address the situation he was not able to take action against. . . due to her friendship with Mr. Colista. When I was told this information by one of the support staff members subjected to alleged racial intimidation, she was in tears.
3. I believe that several members of the Judicial Tenure Commission staff who are supportive of Mr. Regnier and who feel he was improperly treated have begun copying sensitive documents which may indicate that Mr. Colista engaged in conflicts of interest while serving as a member of that agency. These employees are apparently concerned that someone with access to the materials in question may destroy them.
4. On Tuesday, October 1, 1996, the Judicial Tenure Commission appointed staff counsel... to act as interim director, until a decision is made on a permanent replacement for Mr. Regnier. I worked with . . . for five years. . . . has been on staff at the Judicial Tenure Commission for two decades and to my knowledge has never been entrusted with more than a routine file to investigate. . . . has never been assigned a file that proceeded to any type of litigation since being at that office. I personally believe that... is incapable of dealing with people in a one on one situation or with any type of excitement or stress and is incapable of functioning as the director of that agency. Several members of the Judicial Tenure Commission staff feel that someone such as . . . was appointed to this important position so that he will not be able to take a definitive stand against or regarding the Commission in the coming months. Whether that is true or not, I do not know. However, I do know that... is not capable of running that office on a day to day basis.
I strongly urge that the Court consider evaluating this situation.
Although defendant argued that plaintiff (1) was a public figure and (2) had failed to allege facts showing actual malice, he does not raise either issue on appeal.
Defendant argues only that the element of publication was not satisfied. He does not argue on appeal, and we do not address, whether an issue of fact exists with respect to the remaining elements. See Lawrence v Will Darrah & Associates, Inc, 445 Mich 1, 4, n 2; 516 NW2d 43 (1994) (issues not raised on appeal may be construed as waived). Further, our holding is based solely on the current state of the record and the current procedural'posture of this case. Nothing in this Court’s opinion should be read to preclude a motion for summary disposition either following discovery or if it becomes clear that further discovery will not uncover factual support for plaintiff’s position. Dep’t of Social Services v Aetna Casualty & Surety Co, 177 Mich App 440, 446; 443 NW2d 420 (1989). | [
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Fitzgerald, J.
Defendant, who was charged with four counts of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and felonious driving, MCL 752.191; MSA 28.661, was convicted by a jury of four counts of the lesser offense of felonious assault, MCL 750.82; MSA 28.277, and felonious driving. Defendant was tried jointly with a codefendant, Jeremiah Saunders, who was also convicted of four counts of felonious assault and felonious driving. Defendant was sentenced to two years’ probation, including completion of a 90- to 120-day Special Alternative Incarceration (boot camp) program. He appeals as of right. We affirm.
Defendant and his codefendant were jointly tried, and both were represented by the same retained attorney. Defendant argues that the court rule governing joint representation, MCR 6.005(F), violates his constitutional right to equal protection, US Const, Am XIV; Const 1963, art 1, § 2, because it mandates separate counsel for jointly charged indigent defendants but does not mandate separate counsel for jointly charged defendants where counsel is retained. Because MCR 6.005(F) does not restrict a defendant’s right to retain counsel of his own choosing, we do not believe that the “strict scrutiny” test is applicable. People v Pitts, 222 Mich App 260, 272-273; 564 NW2d 93 (1997). Instead, we apply the “rational basis” test to review the constitutionality of MCR 6.005(F). Pitts, supra at 273.
Under the “rational basis” test, the legislation, or in this case MCR 6.005(F), is presumed to be constitutional, and the party challenging it has the burden of proving that it is arbitrary and, therefore, irrational. Pitts, supra at 273. The constitutionality of MCR 6.005(F) will be upheld if the classification scheme created in it is rationally related to a legitimate governmental purpose. Pitts, supra at 273. Under this test, the wisdom, need, or appropriateness of the scheme is not measured. People v Sleet, 193 Mich App 604, 607; 484 NW2d 757 (1992).
MCR 6.005(F) distinguishes between defendants who are indigent and those who can afford to retain their own counsel. A defendant who can afford to retain counsel on his own cannot have that right restricted by the courts. Such a defendant has a con stitutional right to defend an action through the attorney of his choice. Const 1963, art 1, § 13; MCL 600.1430; MSA 27A.1430; People v Arquette, 202 Mich App 227, 231; 507 NW2d 824 (1993). In contrast, an indigent defendant is entitled to the appointment of counsel, but he does not have the right to have counsel of his choosing appointed. People v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973). The Supreme Court had a rational basis for treating these classes of defendants differently. Requiring that separate counsel be appointed for jointly charged indigent defendants avoids problems with conflicts of interest arising from joint representation, as well as problems with jointly represented indigent defendants later claiming that their rights were violated. Further, requiring the appointment of separate counsel for jointly charged indigent defendants is a means of assuring that indigent defendants obtain fair trials. Therefore, defendant has not shown that the classification scheme in MCR 6.005(F) is not rationally related to a legitimate governmental purpose. Pitts, supra at 273.
Defendant, also argues that he was denied the effective assistance of counsel as a result of counsel’s joint representation of himself and codefendant Saunders. Because defendant did not request an evidentiary hearing on this issue in the trial court, our review is limited to the existing record. People v Wilson, 196 Mich App 604, 612; 493 NW2d 471 (1992).
The record indicates that the trial court complied with MCR 6.005(F) by eliciting from defense counsel the reasons for believing that joint representation would not cause a conflict of interest, by questioning each defendant about whether they wished to retain separate counsel, and by finding that joint representa tion would not cause a conflict of interest. Additionally, the trial court’s questioning demonstrates that defendant voluntarily agreed to the joint representation. Finally, the record does not factually support defendant’s claim that an actual conflict of interest adversely affected his lawyer’s performance. People v Smith, 456 Mich 543, 556-557; 581 NW2d 654 (1998). Therefore, appellate relief is not warranted.
Affirmed. | [
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Weaver, J.
Following a jury trial, defendant was convicted of possession of less than twenty-five grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), and attempted resisting and obstructing a police officer, MCL 750.479; MSA 28.747. He then pleaded guilty of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. Defendant was sentenced to concurrent prison terms of two to six years for the possession conviction and six months for the obstruction conviction. Defendant appeals as of right. We affirm.
On the afternoon of September 5, 1990, defendant was standing with four or five other men in front of a barber shop on East Main Street in Kalamazoo. When police officers approached the group, defendant walked away and then began to run. He was followed by two police officers. Defendant ran through a number of yards. As defendant ran through the backyard at 546 Phelps Street, Officer Jay Boehme saw him bend down and make a motion like he was placing something on the ground. Officer Boehme arrived in the yard about a minute later, and saw some money and a rock of cocaine on the ground. A six-year-old girl in the yard said, "That man put that there.” When the officer asked her whether it was a man wearing a blue Pistons T-shirt, which he had seen defendant wearing, she said, "Yes.” Defendant fled into the basement of his grandmother’s home. The officers followed him into the basement, handcuffed him, and placed him in a police car. Officer Kirk Spence testified that defendant struggled with him as he attempted to handcuff defendant.
i
Defendant contends Officer Boehme’s testimony regarding what the little girl told him was inadmissible hearsay. Defendant also argues that the court’s failure to compel the prosecutor to call the little girl to testify denied defendant a fair trial. Before the trial, defendant moved to preclude the prosecution from presenting the child’s extrajudicial statements. In the alternative, defendant asked the court to require the prosecution to call the child as a witness. The court denied both requests.
Defendant first argues the statements were inadmissible hearsay. At trial Officer Boehme testified that while pursuing the defendant, he saw money and a rock of cocaine lying on the ground. A little girl in the yard told him "[t]hat man put that there.” The officer then verified with the child the color shirt defendant was wearing. The time that elapsed between the officer seeing defendant bend down in the grass and the officer speaking to the six-year-old girl was less than one minute. Further, the initial statement was unsolicited.
MRE 803(1) states:
The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
Defendant argues the statements do not fall within the present sense impression exception because of the time lapse between the event and the making of the statements. Our Supreme Court has ruled that a four-minute interval between an event and a statement was "immediately after” the event for purposes of the present sense impression exception. Johnson v White, 430 Mich 47; 420 NW2d 87 (1988). Here, the interval was less than a minute, and clearly falls within the exception.
Defendant also argues the child should have been sworn in as a witness so that defendant could have had the benefit of cross-examination. The child was available at trial; defendant had the opportunity to call the child as a witness and chose not to do so. Defendant cannot now claim that the lost opportunity constitutes a denial of due process. Dresselhouse v Chrysler Corp, 177 Mich App 470; 442 NW2d 705 (1989); People v Roberson, 167 Mich App 501; 423 NW2d 245 (1988).
ii
Defendant next asserts that the cumulative effect of four instances of alleged misconduct by the prosecutor denied him a fair trial and due process of law.
Defendant first claims the prosecutor made a false assertion of fact during closing argument, that the child declarant could not be called as a witness at trial. Although not called to testify, the child was available, not ruled incompetent to testify, and named on the prosecutor’s witness list. During closing argument, defendant’s counsel asserted that the child was the only eyewitness and attacked the prosecution’s failure to call the child as a witness. The prosecutor, in closing, responded as follows:
A little 6-year old girl comes by, backyard [sic], sees someone go through, put something down. The reason you were allowed to hear what she had to say at the moment that she saw the officer was because she said it right then. The officer was in a position to observe much of what she saw too. Well, she’s just a little tiny girl. She’s even younger than Jason was. She’s not someone that we can bring into a Courtroom.
We agree that the prosecutor intentionally misrepresented a material fact, because there is nothing in the record to support the idea that the young girl could not have been called to testify. However, defendant did not object to the improper remark or seek a curative instruction. The goal of a defense objection to improper remarks by the prosecutor is a curative instruction. People v Fuqua, 146 Mich App 250, 254; 379 NW2d 442 (1985). A miscarriage of justice will not be found if the prejudicial effect of the prosecutor’s comments could have been cured by a timely instruction. People v Gonzalez, 178 Mich App 526; 444 NW2d 228 (1989). Thus, if defense counsel fails to object, review is foreclosed unless the prejudicial effect of the remark was so great that it could not have been cured by an appropriate instruction. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), rev’d on other grounds 414 Mich 877 (1982). In the instant case, the prejudicial effect of the improper remark could have been cured by an appropriate instruction. The girl’s statement was admissible under the present sense impression exception to the hearsay rule (see issue i). The court could have instructed the jury that it was possible to call the child to testify at trial, but not necessary.
Defendant next argues that in cross-examining defendant the prosecution, over defense counsel’s objection, repeatedly elicited testimony establishing that defendant had frequented an area known for cocaine trafficking and improperly attempted to establish guilt by association.
Officer Boehme, a member of the police department’s Tactical Response Unit, testified that he first observed defendant in the 1600 block of East Main Street, an area "where narcotics are bought, sold and used on a regular basis.” The prosecutor elicited testimony from two other Tactical Response Unit officers who were on duty with Officer Boehme in the area on September 5, 1990, who attested that this area was known for narcotics trafficking. Then, over defense counsel’s objection, the prosecutor cross-examined defendant with repeated questions concerning whether defendant knew the street names of his companions who had been congregating in front of the barber shop, whether defendant knew that the area was known for selling crack cocaine, whether defendant had a street name, and whether he had seen crack cocaine before. The prosecutor’s questioning was in response to defendant’s testimony on direct examination that he was in the 1600 block of East Main Street to buy some juice and play basketball with another individual in the group. It was also in response to defendant’s testimony that he had never used or sold drugs. A defendant’s false or inconsistent testimony may be impeached. See Michigan v Harvey, 494 US 344; 110 S Ct 1176; 108 L Ed 2d 293 (1990). We conclude that the prosecution’s cross-examination of defendant’s testimony, when reviewed in the context of the trial, did not constitute misconduct so as to deprive defendant of a fair trial. Duncan, supra.
Defendant also argues that the prosecutor improperly implied that the child witness, who did not testify, had identified defendant at trial. Specifically, defendant argues that during cross-examination of defendant, the prosecutor implied that the child could identify defendant by asking the following question: "This small child, this little girl that approached Officer Boehme and said that she saw you place that piece of crack and the money on the ground, you were a figment of her imagination?” Defendant failed to object to this question, and any error could have been easily cured by a timely instruction; therefore, appellate review is precluded. Duncan, supra.
Defendant claims the prosecutor improperly implied that the jury had a duty to convict defendant. However, review of the complained-of remark persuades us that it does not rise to the level of urging the jurors to convict the defendant as part of their civic duty. People v Swartz, 171 Mich App 364; 429 NW2d 905 (1988).
Finally, defendant argues that the , cumulative effect of all four instances of alleged misconduct by the prosecutor was so great that it denied defendant a fair trial and due process of law. Review of the record convinces us this argument has no merit.
iii
Defendant asserts the court erred in ruling the prosecutor could impeach defendant with evidence of a prior robbery conviction.
Before trial the prosecution moved to impeach defendant with evidence of a 1988 armed robbery conviction, should he choose to testify. A witness’ credibility may be impeached with evidence of prior convictions, MCL 600.2159; MSA 27A.2159, but only if the convictions satisfy the criteria set forth in MRE 609. The rule provides, in part: •
(a) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross examination, and
(1) The crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and
(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.
Because armed robbery contains an element of theft, evidence of such a conviction is admissible under MRE 609 if it satisfies the Allen balancing test. People v Allen, 429 Mich 558; 420 NW2d 499 (1988); People v Minor, 170 Mich App 731; 429 NW2d 229 (1988).
Defendant’s 1988 armed robbery conviction has lower probative value with regard to the question of veracity than other theft offenses would have, but heightened probative value because defendant’s prior conviction was only two years old. Allen at 612. Further, theft is an element of robbery, and an indicator that defendant is of dishonest character and may not testify truthfully. However, there would be little prejudice to defendant because of the disparity between defendant’s 1988 armed robbery conviction and his current convictions of possession of cocaine and attempted resisting and obstructing a police officer. Although the trial court erroneously focused upon its view that "armed robbery is a very violent crime” to determine the veracity of defendant’s testimony, it did not abuse its discretion because the evidence here is more probative than prejudicial. Allen, supra.
iv
Defendant argues the court erred in denying his motion for a directed verdict on the charge of attempted resisting and obstructing a police officer. Specifically, defendant argues the prosecution failed to establish a prima facie case because it failed to prove beyond a reasonable doubt that defendant knew he was being arrested. Defendant’s own testimony establishes that he knew at the time that he struggled with the officers that he was being arrested. The testimony of the arresting officers establishes that defendant intended to resist the arrest. Viewing the evidence in a light most favorable to the prosecution, we find the prima facie elements of attempted resisting and obstructing a police officer proven beyond a reasonable doubt. People v Little, 434 Mich 752; 456 NW2d 237 (1990).
v
Defendant contends the jury instruction given regarding the charge of attempted resisting and obstructing a police officer was deficient to the point that reversal is required, because it did not adequately inform the jury of the elements of the charged offense.
Defendant did not object to the jury instructions given at trial and therefore has not preserved this issue for appeal. A party must object to a given jury instruction in order to preserve the issue for appellate review. People v Puroll, 195 Mich App 170, 171; 489 NW2d 159 (1992); People v Clark, 172 Mich App 407, 417; 432 NW2d 726 (1988). Failure to object to a jury instruction waives appellate review absent manifest injustice. People v Sammons, 191 Mich App 351, 372; 478 NW2d 901 (1991), lv den 439 Mich 938 (1992), cert den — US —; 112 S Ct 3015 (1992). We find no such manifest error and therefore decline to address the issue.
VI
Finally, defendant argues his sentence for the possession conviction is excessive. A sentence constitutes an abuse of discretion if it violates the principle of proportionality. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). After a thorough review of the record, we find the sentence imposed is proportionate to the seriousness of the circumstances surrounding this offense and this offender. We find no abuse of the sentencing court’s discretion.
Affirmed.
Michael J. Kelly, P.J., concurred. | [
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Murphy, J.
Pursuant to a plea agreement, defendant pleaded guilty of delivery of between 225 and 650 grams of a mixture containing cocaine in violation of MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). Defendant was sentenced to five to thirty years, in prison. The prosecution appeals from the judgment of sentence, contending that the sentence impermissibly falls below the term agreed upon by the parties under the sentence agreement. This Court issued an order of peremptory reversal, which was vacated by our Supreme Court with direction that we give the case plenary consideration. 437 Mich 1034 (1991). We vacate defendant’s sentence and remand for further proceedings.
Defendant was charged with delivery of 650 grams or more of a mixture containing cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). Defendant entered into an agreement with the prosecution whereby she would plead guilty of delivery of over 225 but less than 650 grams of cocaine in exchange for her truthful testimony and cooperation in the prosecution of others involved in the trafficking of narcotics. The agreement provided that defendant would receive a sentence of ten to thirty years.
The trial court accepted the plea agreement and indicated that the court was aware of the sentence agreement. Before sentencing, defendant cooperated fully in accordance with the agreement, and the prosecution admits that defendant fully complied with the agreement. The trial court subsequently sentenced defendant to five to thirty years, a downward departure from the agreed-upon minimum, stating as the compelling reason defendant’s extensive cooperation with the prosecution.
The prosecution contends that it is entitled either to the imposition of the agreed-upon sentence or to be permitted to withdraw from the agreement. We reluctantly agree, and do so only because we are required to follow People v Siebert, 201 Mich App 402; 507 NW2d 211 (1993). Administrative Order No. 1990-6. In Siebert, this Court concluded that implicit in the decision of our Supreme Court in People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982), is the assumption that the prosecution’s right to have a sentence agreement enforced must be recognized in the interest of fairness and of protecting the prosecution’s charging function. Siebert, supra, 408-412. Further, this Court in Siebert explicitly rejected the argument that the prosecution is barred from seeking reinstatement of the higher charges on the basis of the principles of double jeopardy. Id., 424.
Absent this Court’s decision in Siebert, however, we would be disinclined to agree with the prosecution. To allow the prosecution to withdraw from a plea agreement entered into with full knowledge by the prosecutor that the sentencing function is for the judiciary violates concepts articulated in Killebrew, supra, and more recently in People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). Further, to do so in a fact situation such as this, where defendant has satisfied her part of the bargain by cooperating fully with the authorities at her own personal risk, is fundamentally unfair.
Judicial control of sentencing, empowered by the Legislature, MCL 769.1; MSA 28.1072, will effectively be delivered to the prosecutor, who will assuredly condition the sentence to be imposed on any negotiated guilty plea. Reliance on negotiated guilty pleas is commonplace in the administration of our criminal justice system, and an already overburdened judiciary will be encouraged to go along with the plea and sentence established by the prosecutor. The idea of a judge being the impartial dispenser of justice will thus be threatened, as will the concept of the sentencing function belonging to the judiciary.
Although equal treatment may suggest that allowing a prosecutor to withdraw from a sentence agreement unfulfilled is no different than the present process of allowing a defendant to do so, see Killebrew, supra, such an argument ignores the reality of the power and crime-charging authority of the prosecutor in the criminal law process, as well as constitutional considerations unique to a defendant charged with a crime. Before Siebert, neither case law, court rule, nor practice would allow the procedure now condoned, and, in fact, People v Pool, 183 Mich App 191; 454 NW2d 121 (1989), would have prohibited it. If working with a clean slate and if not bound by Administrative Order No. 1990-6, we would not venture down this slippery path that risks overstepping the boundaries that separate the responsibilities of the executive branch of government from those of the judicial branch.
Concerning the prosecution’s contention that the court erred in staying execution of defendant’s sentence until the federal facility could accommodate her, we disagree. The prosecution fails to cite any authority that would prohibit the trial court from acting as it did under the circumstances of this case, and we conclude that the trial court did not abuse its discretion in this regard.
Defendant’s sentence is vacated, and this case is remanded to the trial court, where the prosecution shall be given opportunity to withdraw from the plea agreement and reinstate the original charge. However, as in Siebert, supra, 430-431, n 18, should defendant choose instead to abide by the terms of the original agreement and to accept the sentence to which the parties agreed, the prosecution shall not be permitted to withdraw from the plea agreement, and defendant shall be sentenced in accordance with the terms of the plea agreement. We do not retain jurisdiction.
Cavanagh, J., concurred.
We agree with defense counsel that this issue is moot if, as defense counsel asserts, defendant is now incarcerated. | [
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Per Curiam.
Defendant was convicted of third-degree child abuse, MCL 750.136b(5); MSA 28.331(2)(5), following a bench trial. She was sen tenced to two years’ probation, with the final sixty days to be served in jail, subject to judicial review. Defendant appeals as of right. We affirm.
Defendant challenges whether sufficient evidence was presented supporting a conclusion that she specifically intended to harm her daughter. Generally, we review a challenge to the sufficiency of the evidence in a bench trial de novo and in a light most favorable to the prosecution to determine whether the trial court could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Ortiz-Kehoe, 237 Mich App 508, 520; 603 NW2d 802 (1999).
Initially, we must determine whether third-degree child abuse is a specific intent crime. We find that it is. This question is one of first impression.
MCL 750.136b(5); MSA 28.331(2)(5) provides: “A person is guilty of child abuse in the third degree if the person knowingly or intentionally causes physical harm to a child.” The statutory language is substantially similar to the language employed in MCL 750.136b(2); MSA 28.331(2)(2), which provides that a person is guilty of first-degree child abuse “if the person knowingly or intentionally causes serious physical or serious mental harm to a child.”
In People v Gould, 225 Mich App 79, 84-85; 570 NW2d 140 (1997), lv den 459 Mich 955 (1999) (Supreme Court observing our conclusion was dicta on this point) we concluded that first-degree child abuse is a specific intent crime. In reaching this conclusion, we relied on a previous ruling by this Court that “where a statute requires that the criminal act be committed either ‘purposefully’ or ‘knowingly,’ the crime is a specific intent crime.” Id. at 85 (citing Peo ple v Lerma, 66 Mich App 566, 569-570; 239 NW2d 424 [1976]). In addition, the Gould panel summarized the distinction between “specific intent” and “general intent” as follows:
“Analyzed in this fashion, specific intent crimes would be limited only to those crimes which are required to be committed either ‘purposefully’ or ‘knowingly,’ while general intent crimes would encompass those crimes which can be committed either ‘recklessly’ or ‘negligently.’ Thus, in order to commit a specific intent crime, an offender would have to subjectively desire or know that the prohibited result will occur, whereas in a general intent crime, the prohibited result need only be reasonably expected to follow from the offender’s voluntary act, irrespective of any subjective desire to have accomplished such result.” [Gould, supra at 85, quoting Lerma, supra at 569-570 (emphasis added).]
In light of the nearly identical statutory wording of the first-degree and third-degree child abuse provisions, we believe that third-degree child abuse is a “specific intent” crime. Thus, defendant’s conviction required sufficient evidence to establish that defendant subjectively desired or knew that the prohibited result would occur.
In the instant matter, defendant testified that before the spankings she gave her daughter, her daughter was “getting real, real lippy,” and said some things that were “quite piercing.” In addition, defendant testified that the spankings were hard enough to cause a blood clot that was in her daughter’s nose from an earlier nosebleed to dislodge, and that her nose bled for a short time. Moreover, the bruising to her daughter was sufficient to raise the suspicion of her daughter’s teacher, a child protective services investigator, a police officer, and an emergency room physician. Defendant contends that her daughter bruises easily because of her asthma medication; however, defendant certainly was aware of this before spanking her. At the very least, defendant’s decision to spank her daughter with enough force to actually cause substantial bruising and dislodge a blood clot from her nose, when viewed in a light most favorable to the prosecution, supports the trial court’s conclusion that defendant possessed the requisite specific intent to harm her child.
In fact, the only evidence presented that indicated that the harm was not specifically intended was defendant’s denial. However, the trial court noted that it had problems with defendant’s credibility, weakening the probative effect of these denials. Special deference is given to a trial court’s findings when based on witness credibility. Draggoo v Draggoo, 223 Mich App 415, 430; 566 NW2d 642 (1997). Accordingly, we find it unnecessary to disturb the trial court’s finding that defendant was not a credible witness. Consequently, we conclude that sufficient evidence was presented supporting a conclusion that defendant possessed the requisite specific intent to harm her child, as required by the statute, and reject her argument to the contrary on appeal.
Nevertheless, defendant argues that the trial court also erred in failing to consider a “reasonable discipline” defense. MCL 750.136b(7); MSA 28.331(2)(7) indicates that the child abuse statute should not be construed to prohibit a parent from reasonably disciplining a child, including the reasonable use of force. The record reveals, however, that defendant never argued this defense below. Accordingly, we deem this issue forfeited for appellate review.
Affirmed. | [
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Per Curiam.
Defendant pleaded guilty of second-degree criminal sexual conduct, MCL 750.520c(1) (a); MSA 28.788(3)(1)(a), and child sexually abusive activity, MCL 750.145c(2); MSA 28.342a(2). He was sentenced to three to fifteen years’ imprisonment for the former conviction and eight to twenty years’ imprisonment for the latter conviction. He appeals as of right. We affirm. This case has been decided without oral argument pursuant to MCR 7.214(E)(1)(b).
Given the circumstances of the offense and the offender, we hold that defendant’s eight-year minimum sentence for his child sexually abusive activity conviction does not violate the principle of proportionality. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
Defendant’s failure to challenge the accuracy of the information contained in the presentence report at sentencing precludes appellate review of this issue. People v Sharp, 192 Mich App 501, 503-504; 481 NW2d 773 (1992).
Likewise, defendant’s failure to challenge the constitutionality of the child sexually abusive activity statute before the trial court also normally would preclude appellate review. See People v Ghosh, 188 Mich App 545, 546; 470 NW2d 497 (1991). However, because an important constitutional question is involved, we will review the issue. Id.
Defendant claims the child sexually abusive activity statute, MCL 750.145c(2); MSA 28.342a(2), is unconstitutional because it is overbroad. Specifically, he asserts that the statute’s prohibition against "erotic nudity” involving children is over-broad because it could encompass protected forms of free speech, such as the innocent photograph of a nude child by its parents. We disagree. The statutory definition of erotic nudity does not encompass the depiction of all child nudity. Rather, it is narrowly defined to exclude those depictions that have a "primary literary, artistic, educational, political, or scientific value” and that do not appeal to the prurient interests in sex. MCL 750.145c(1)(d); MSA 28.342a(1)(d). Because the definition is narrowly drawn so that protected forms of free speech are not punished, the statute is not unconstitutionally overbroad. New York v Ferber, 458 US 747; 102 S Ct 3348; 73 L Ed 2d 1113 (1982); Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973).
Affirmed. | [
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Sawyer, J.
The Association of Businesses Advocating Tariff Equity (ABATE) appeals of right an order of the Michigan Public Service Commission (PSC) providing that Detroit Edison Company was to refund revenue it had collected through self-implemented rates; the rates were self-implemented while Detroit Edison was awaiting a final order on an application for a rate increase. Rather than requiring a refund to each customer based on that customer’s overpayment, the PSC held that the refund was to be made prospectively in the January 2011 billing month to classes of customers based on the classes’ pro rata share of the self-implemented increase. We affirm.
I. FACTS AND PROCEEDINGS
On January 26, 2009, Detroit Edison applied for an increase in electrical rates in the amount of $378,000,000. Under § 6a(l) of 2008 PA 286 (Act 286), MCL 460.6a(l), the PSC was required to act on this application by January 26, 2010. However, § 6a(l) also provided that Detroit Edison was entitled to self-implement an interim rate unless the PSC acted on its application within 180 days or issued an order preventing or delaying self-implementation for good cause. No such action was taken and no such order issued. Detroit Edison elected to self-implement $280 million of rate relief.
On January 11, 2010, the commission issued a final order approving a rate increase of only $217,392,000. Section 6a(l) required a refund because the new rate was less than the self-implemented rate. The refund amount, with interest, was determined to be $26,872,231.
With respect to the refund, Detroit Edison proposed to allocate the total refund amount among customer classes based upon each customer class’s pro rata share of the total revenue collected. ABATE objected to this proposed refund methodology as it pertained to primary customers. It maintained that § 6a(l) required that Detroit Edison calculate a refund for each primary customer based upon each primary customer’s actual overpayment and that it refund an amount equal to the actual overpayment to each primary customer. Regarding the refund, § 6a(l) states in pertinent part:
If a utility implements increased rates or charges under this subsection before the commission issues a final order, that utility shall refund to customers, with interest, any portion of the total revenues collected ... that exceed the total that would have been produced by the rates or charges subsequently ordered by the commission in its final order. The commission shall allocate any refund required by this section among primary customers based upon their pro rata share of the total revenue collected through the applicable increase, and among secondary and residential customers in a manner to be determined by the commission. [Emphasis added.]
The PSC held that the refund did not have to be “precisely tailored to each and every Detroit Edison customer who paid a self-implemented rate.” It continued:
Other than requiring that the refund to primary customers be based on their pro rata share of the total revenues collected through the applicable increase, the statute leaves the method of the refund up to the Commission’s discretion. MCL 460.6a(l). The Commission has long rejected the notion that historical perfection must be achieved with refunds or surcharges. The Commission has authority to exercise discretion in fashioning a refund procedure, and the most precise procedure may have disadvantages, such as attendant costs or administrative burdens, that outweigh the apparent advantages. See, Attorney General v Public Service Comm, 235 Mich App 308; 597 NW2d 264 (1999) [Mich Gas]; Attorney General v Public Service Comm, 215 Mich App 356; 546 NW2d 266 (1996) [Mich Consol]; May 17, 2005 order in Case No. U-13990, pp. 21-22. And, as the Staff correctly notes, the refund must be allocated based on the pro rata share of the revenue from the self-implemented increase, not on the precise dollar amount paid in excess revenue; thus, ABATE’s argument in favor of a refund that reflects what each primary customer “actually paid” is inconsistent with the language of the statute. Finally, were the Commission persuaded to order a refund based on the amount each primary customer paid during self-implementation, the administrative costs associated with making those individual determinations would be addressed in a future rate case, and, under basic principles of cost causation, would likely be borne by the primary class.
The Commission approves the refund procedure proposed by the Staff and agreed to by the company, which bases the refund on rate schedule class, and forecasts sales for the refund month. Further, the Commission approves the use of the [Power Supply Cost Recovery] reconciliation proceeding as a mechanism to complete the refund, in order to make the refunded amount as exact as possible.
ABATE claimed that two unidentified ABATE members who were primary customers subject to the self-implemented rates signed up for service from alternative electric suppliers during the period that these rates were in place rather than continuing to receive bundled service from Detroit Edison. ABATE pointed out that under the refund methodology approved by the PSC, these two primary customers would not receive a refund because they were no longer in the class of customers that would receive the refund. ABATE argued that their exclusion was arbitrary and capricious. The PSC held:
The Commission does not agree with ABATE that primary customers who chose to switch from bundled to choice service during the period of self-implementation are treated unfairly under this refund method. There was nothing hidden from such customers. The possibility that the rate increase adopted in the final order would differ from the unapproved rate increase self-implemented by the company was always present, as was the possibility that the final rate design would differ, however slightly, from the self-implemented rate design. Such customers would have (or should have) been aware of that fact at the point in time when they decided to switch. Indeed, any customer who made that switch early in the self-implementation period likely underpaid during the self-implementation period, since only one [retail open access] rate schedule overpaid during self-implementation.
II. STANDARD OF REVIEW
In In re Application of Consumers Energy Co for Rate Increase, 291 Mich App 106, 109-110; 804 NW2d 574 (2010), the Court stated:
The standard of review for PSC orders is narrow and well defined. Pursuant to MCL 462.25, all rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasonable. See also Mich Consol Gas Co v Pub Serv Comm, 389 Mich 624, 635-636; 209 NW2d 210 (1973). A party aggrieved by an order of the PSC has the burden of proving by clear and convincing evidence that the order is unlawful or unreasonable. MCL 462.26(8). To establish that a PSC order is unlawful, the appellant must show that the PSC failed to follow a statutory requirement or abused its discretion in the exercise of its judgment. In re MCI Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164 (1999). A reviewing court gives due deference to the PSC’s administrative expertise, and should not substitute its judgment for that of the PSC. Attorney General v Pub Serv Comm No 2, 237 Mich App 82, 88; 602 NW2d 225 (1999).
A final order of the PSC must be authorized by law and be supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; In re Application of Consumers Energy Co, 279 Mich App 180, 188; 756 NW2d 253 (2008). Whether the PSC exceeded the scope of its authority is a question of law that is reviewed de novo. In re Complaint of Pelland Against Ameritech Mich, 254 Mich App 675, 682; 658 NW2d 849 (2003).
It is noted that in Attorney General v Pub Serv Comm, 206 Mich App 290, 296; 520 NW2d 636 (1994), the Court explained that MCL 462.26(8) “requires a reviewing court to determine only whether an order is unlawful or unreasonable, not whether it is arbitrary and capricious.”
The standard of review for an agency’s interpretation of a statute was recently set forth in In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 103; 754 NW2d 259 (2008), quoting Boyer-Campbell v Fry, 271 Mich 282, 296-297; 260 NW 165 (1935):
“[T]he construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons. However, these are not binding on the courts, and [w]hile not controlling, the practical construction given to doubtful or obscure laws in their administration by public officers and departments with a duty to perform under them is taken note of by the courts as an aiding element to be given weight in construing such laws and is sometimes deferred to when not in conflict with the indicated spirit and purpose of the legislature.” This standard requires “respectful consideration” and “cogent reasons” for overruling an agency’s interpretation. Furthermore, when the law is “doubtful or obscure,” the agency’s interpretation is an aid for discerning the Legislature’s intent. However, the agency’s interpretation is not binding on the courts, and it cannot conflict with the Legislature’s intent as expressed in the language of the statute at issue. [Citation omitted; second alteration in original.]
III. ANALYSIS
ABATE first argues that the phrase “shall allocate any refund . . . among primary customers based upon their pro rata share of the total revenue collected through the applicable increase,” MCL 460.6a(l), means that each primary customer must be given back the amount it actually overpaid pursuant to the self-implemented rate. However, the propriety of fashioning a refund by including it in a prospective billing for a class of customers depends on the interpretation given this statute. In In re Review of Consumers Energy Co Renewable Energy Plan, 293 Mich App 254, 269; 820 NW2d 170 (2011), quoting In re Temporary Order to Implement 2008 PA 295, unpublished opinion per curiam of the Court of Appeals, issued October 14, 2010 (Docket No. 290640), pp 4-7, the Court stated:
When interpreting statutory language, this Court’s primary goal is to give effect to the intent of the Legislature. “The first step is to review the language of the statute. If the statutory language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute.” Briggs Tax Serv, LLC v Detroit Pub Schools, 485 Mich 69, 76; 780 NW2d 753 (2010) .... This Court accords to every word or phrase of a statute its plain and ordinary meaning, unless a term has a special, technical meaning, or is defined in the statute. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999); Stocker v Tri Mount/Bay Harbor Bldg Co, Inc, 268 Mich App 194, 199; 706 NW2d 878 (2005). See also MCL 8.3a; Bay Co Prosecutor v Nugent, 276 Mich App 183, 189-190; 740 NW2d 678 (2007). Furthermore, statutory language is to be read in context, and “statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.” Robinson v City of Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010)....
In Detroit Edison Co v Pub Serv Comm, 261 Mich App 1, 8-9; 680 NW2d 512 (2004), vacated in part on other grounds 472 Mich 897 (2005), the Court stated:
If the language of the statute is ambiguous, judicial construction to determine its meaning is appropriate. In re MCI [460 Mich 396, 411; 596 NW2d 164 (1999)]. The Legislature is presumed to be familiar with the rules of statutory construction and is charged with knowledge of existing laws on the same subject. Inter Coop Council v Dep’t of Treasury, 257 Mich App 219, 227; 668 NW2d 181 (2003). In addition, the Legislature is presumed to act with knowledge of administrative and appellate court statutory interpretations. Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991).
We conclude that § 6a(l) is ambiguous and that it is subject to reasonable but differing interpretations. It calls for a “refund” to “customers” and, with respect to “primary customers” requires that the refund be “based upon their pro rata share of the total revenue collected through the applicable increase.” This could be viewed as requiring a “refund” in the traditional sense, i.e., a return of monies previously paid. In this regard, The American Heritage Dictionary, Second College Edition, defines refund when used as a verb as “1. To return or give back. 2. To repay (money)----To make repayment.” When used as a noun, it is defined as “1. A repayment of funds. 2. An amount repaid.” However, MCL 460.6h(13) also calls for a refund under certain circumstances. Yet, in Mich Con- sol, 215 Mich App 356, and Mich Gas, 235 Mich App 308, the Court concluded that § 6h(13) allowed for an adjustment of future rates and did not require a return of actual monies paid. Thus, within the context of PSC statutes, the term “refund” enjoys a broader meaning. There is nothing in the statute that compels the conclusion that use of the term “refund” means the monies returned to a primary customer must be based on the individual primary customer’s actual overpayment.
Nonetheless, § 6a(l) requires that the refund to “primary customers” be based on “their” “pro rata” share of revenues collected. “Primary customers” could be interpreted to mean the individual primary customers, given that the statute refers to “primary customers” and not the class of primary customers. Conversely, the absence of the phrase “individual primary customers” allows for the “primary customers” to be viewed and treated as a group. Further, “their pro rata share” could be interpreted to mean the amount of self-implemented increase in rates that each individual customer actually paid. However, the statute could also be read as requiring that all of the primary customers together be given a refund based on all of the primary customers’ pro rata share of the total revenue collected.
We conclude that there are cogent reasons supporting the agency interpretation. Although ABATE disagrees, Alan Droz, an auditor manager with the PSC, testified that implementing individual refunds to all primary customers would result in burdensome administrative costs. As the PSC noted, these costs would not be borne by the individual customers who received a refund but would be addressed in a future rate case. ABATE suggests that there is a cogent reason for overruling the PSC because basing the refund on a prospective refund month applicable to only bundled customers will result in no refund to primary customers who switched to choice or retail open access service during the interim period. However, Droz indicated that these primary choice customers would have factored the potential loss of a refund into their decision to switch to choice. This presumption is supported by the fact that “refunds” given by way of a prospective adjustment were approved in Mich Consol, 215 Mich App 356, and Mich Gas, 235 Mich App 308. Moreover, the Legislature is presumed to have been familiar with this treatment of the term “refund” when it enacted § 6a(l). See Detroit Edison Co v Pub Serv Comm, 261 Mich App at 8-9. Thus, we find no cogent reason for overruling the PSC’s interpretation of the statute and conclude that the PSC’s action was both lawful and reasonable.
Affirmed.
HOEKSTRA, PJ., concurred with SAWYER, J. | [
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Riordan, J.
Defendants appeal by leave granted a preliminary injunction enjoining the immediate effect of House Bill 4246 (HB 4246) and House Bill 4929 (HB 4929). We granted appellants’ application for leave to appeal and motion for immediate consideration. We stayed the trial court’s order and further proceedings pending the resolution of this appeal. Because plaintiffs fail to demonstrate a likelihood of success on the merits or an irreparable harm, we reverse the trial court’s order, vacate the preliminary injunction, and remand for an order of dismissal.
I. FACTUAL BACKGROUND
HB 4246 was introduced in the House of Representatives to amend the public employment relations act (PERA.), MCL 423.201 et seq., and addressed legislation relating to the rights of public employees in collective-bargaining situations. The House passed HB 4246 on February 23, 2011, with a 62 to 47 vote. A motion for immediate effect prevailed on a voice vote with two-thirds of the House members voting in support. After being modified and approved by the Senate, the House passed the amended version of HB 4246 with a 63 to 47 vote. HB 4246 was given immediate effect, signed by the Governor, and filed with the Secretary of State on March 13, 2012.
HB 4929 also involved a proposed amendment to the PERA that affected the collective bargaining rights of public employees. The House passed HB 4929 on September 15, 2011, with a narrower voting margin of 55 to 53. A motion for immediate effect prevailed on a voice vote with two-thirds of the House members voting in support. After being modified and approved by the Senate, the House passed the amended version of HB 4929 with a 56-54 vote. HB 4929 was given immediate effect, signed by the Governor, and filed with the Secretary of State on March 16, 2012.
On March 27, 2012, plaintiffs moved for a preliminary injunction and sought mandamus relief to enjoin the immediate effect of HB 4246 and HB 4929. Plaintiffs alleged that the bills had been given immediate effect in violation of the constitution because a roll call vote was not performed. The trial court found that defendants had violated article 4, § 18 and § 27 of the Michigan Constitution. The trial court stated:
We hear a lot today about transparency. And I think in this particular case the reason that the Constitution probably requires there to be a roll call vote, so that there can be transparency. That works for [sic] both ways so that the public, I do believe, have [sic] a right upon the request of the requisite number of members to know how their representative votes, whether they voted for immediate effect or against immediate effect.
After again mentioning that “the [c]ourt is concerned about that transparency,” the trial court entered an order for a preliminary injunction, enjoining the immediate effect of the bills. Defendants now appeal.
II. PLAINTIFFS’ ALLEGATIONS
The Michigan Constitution provides that “[e]ach house, except as otherwise provided in this constitution, shall choose its own officers and determine the rules of its proceedings,” and that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Const 1963, art 4, § 16; art 3, § 2. A general challenge to the governing procedures in the House of Representatives is not appropriate for judicial review. See Mich Taxpayers United, Inc v Governor, 236 Mich App 372, 379; 600 NW2d 401 (1999). The House rules require that motions for immediate effect be resolved with a rising vote, and that a roll call vote be made orally. Plaintiffs stated at oral argument that they have no quarrel with the rules of the House. Rather, they assert that under article 4, § 27, motions for immediate effect are required to be resolved by a roll call vote, and that article 4, § 18 prohibits a requirement that motions for immediate effect and for a roll call vote be made orally. Plaintiffs further allege that defendants’ application of these provisions is unconstitutional and has resulted in a reduction in their effectiveness as legislators. This, they also allege, has served to nullify the effect of their votes as members of the House of Representatives. At oral argument, defendants conceded for purposes of this appeal that plaintiffs have standing as to these specific claims of constitutional violations. Thus, we address the merits of this appeal, recog nizing the admonition of our Supreme Court in Straus v Governor, 459 Mich 526, 531; 592 NW2d 53 (1999):
We cannot serve as political overseers of the executive or legislative branches, weighing the costs and benefits of competing political ideas or the wisdom of the executive or legislative branches in taking certain actions, but may only determine whether some constitutional provision has been violated by an act (or omission) of the executive or legislative branch. As has been long recognized, when a court confronts a constitutional challenge it must determine the controversy stripped of all digressive and impertinently heated veneer lest the Court enter — -unnecessarily this time — another thorny and trackless bramblebush of politics. [Quotation marks and citations omitted.]
III. APPROPRIATENESS OF THE PRELIMINARY INJUNCTION
A. STANDARD OF REVIEW
We review for an abuse of discretion the trial court’s decision to grant a preliminary injunction. Oshtemo Charter Twp v Kalamazoo Co Rd Comm, 288 Mich App 296, 302; 792 NW2d 401 (2010). “ ‘[A]n abuse of discretion occurs only when the trial court’s decision is outside the range of reasonable and principled outcomes.’ ” Mich AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich App 143, 146; 809 NW2d 444 (2011), quoting Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). “Questions of constitutional interpretation ... are questions of law reviewed de novo by this Court.” Dep’t of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008).
B. TEST FOR PRELIMINARY INJUNCTION
The purpose of a preliminary injunction is to preserve the “status quo pending a final hearing regarding the parties’ rights.” Mich AFSCME Council 25, 293 Mich App at 145 (quotation marks and citation omitted). “A court’s issuance of a preliminary injunction is generally considered equitable relief.” Id. To obtain a preliminary injunction, the moving party “bears the burden of proving that the traditional four elements favor the issuance of a preliminary injunction.” Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit, 482 Mich 18, 34; 753 NW2d 579 (2008). This four-part test involves the trial court’s determination that
(1) the likelihood that the party seeking the injunction will prevail on the merits, (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued, (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and (4) the harm to the public interest if the injunction is issued. [Mich AFSCME Council 25, 293 Mich App at 148 (quotation marks and citation omitted).]
Thus, we must determine whether the trial court properly concluded that plaintiffs met their burden under this test.
C. LIKELIHOOD OF SUCCESS ON THE MERITS
We find that plaintiffs fail to demonstrate that they are likely to prevail on the merits of their claim. While the trial court found that success on the merits was highly likely because constitutional “transparency” prevails over the governing rules in the House of Representatives, that reasoning is flawed.
“[T]he primary and fundamental rule of constitutional or statutory construction is that the Court’s duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question.” Adair v Michigan, 486 Mich 468, 477; 785 NW2d 119 (2010) (quotation marks and citation omitted). “This Court typi cally discerns the common understanding of constitutional text by applying each term’s plain meaning at the time of ratification.” Wayne Co v Hathcock, 471 Mich 445, 468-469; 684 NW2d 765 (2004). We must “give effect to the common understanding of the text,” Lansing v Michigan, 275 Mich App 423, 430; 737 NW2d 818 (2007), and avoid an interpretation that creates “a constitutional invalidity.” Mich United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 411; 630 NW2d 297 (2001) (CAVANAGH, J., dissenting).
Article 4, § 27 of the Michigan Constitution states that “[n]o act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.” (Emphasis added). The plain language of §27 does not specifically mandate or require the taking of a record roll call vote. Because other sections of the Constitution do specifically provide for a roll call vote, see, e.g., Const 1963, art 4, § 26 (stating that the names and the vote of the members in each house must be entered in the journal on the final passage of a bill); Const 1963, art 4, § 17 (requiring that committees in each house of the Legislature must use the roll call vote for action on all bills), we are led to conclude that the omission of any reference to a roll call vote in § 27 was intentional. See Bush v Shabahang, 484 Mich 156, 169; 772 NW2d 272 (2009) (noting that courts cannot assume that the language chosen by the Legislature is inadvertent). Thus, to interpret § 27 to require a roll call vote despite the complete absence of language supporting such a conclusion would violate the principles of constitutional interpretation.
We are well aware that “[e]very provision in our constitution must be interpreted in light of the document as a whole[.]” AFSCME Council 25 v State Em ployees’ Retirement Sys, 294 Mich App 1, 9; 818 NW2d 337 (2011). Therefore, we turn to article 4, § 18 of the Constitution, which states:
Each house shall keep a journal of its proceedings, and publish the same unless the public security otherwise requires. The record of the vote and name of the members of either house voting on any question shall be entered in the journal at the request of one-fifth of the members present. Any member of either house may dissent from and protest against any act, proceeding or resolution which he deems injurious to any person or the public, and have the reason for his dissent entered in the journal. [Emphasis added.]
While plaintiffs conclude that this section definitively supports that they had a constitutional right to a roll call vote, a careful reading contradicts this assertion. Article 4, § 18 does not delineate any particular method required to obtain the one-fifth vote necessary to obtain a roll call vote. Rather, it merely requires that if one-fifth of the members request a roll call vote, a roll call vote shall be taken. Since the Constitution is silent regarding the method for obtaining a one-fifth vote for a roll call vote, it is within the House’s discretion to formulate its own rules and procedures regarding this issue. See Const 1963, art 4, § 16 (stating that each house shall choose its own officers and determine the rules of its proceedings). Significantly, there is no indication in the Journal of the House that a one-fifth vote requesting a roll call vote was obtained for either HB 4246 or HB 4929. As this Court has previously ruled, “the Journals of the House and Senate are conclusive evidence of those bodies’ proceedings, and when no evidence to the contrary appears in the journal, we will presume the propriety of those proceedings.” Mich Taxpayers United, 236 Mich App at 379. Thus, there is no evidence suggesting that the defendants violated this provision of the Constitution.
Further, the Constitution contains no language supporting the trial court’s anecdotal opinion that because “[w]e hear a lot today about transparency . . . the Constitution probably requires there to be a roll call vote, so that there can be transparency.” (Emphasis added). Because the trial court’s finding is devoid of constitutional support, we conclude that the trial court erred.
In short, we reject plaintiffs contention that the Constitution was violated by defendants. The constitutional provisions at issue permit the manner in which they are applied to be determined by adoption of the rules of the House, which plaintiffs concede they do not challenge, and which we do not oversee. Straus, 459 Mich at 531; Mich Taxpayers United, 236 Mich App at 379.
D. IRREPARABLE HARM
An alternate basis justifying reversal of the trial court’s decision is that plaintiffs failed to demonstrate that they would suffer irreparable harm if a preliminary injunction was not obtained. As the moving party, plaintiffs bore the burden of establishing the existence of an irreparable harm. Detroit Fire Fighters Ass’n, 482 Mich at 34. It is “well settled that an injunction will not lie upon the mere apprehension of future injury or where the threatened injury is speculative or conjec tural.” Mich AFSCME Council 25, 293 Mich App at 149 (quotation marks and citation omitted). A party must demonstrate “a particularized showing of irreparable harm” and “[t]he injury is evaluated in light of the totality of the circumstances affecting, and the alternatives available to, the party seeking injunctive relief.” Id.
Plaintiffs’ generalized argument that a constitutional violation would result in harm is insufficient because it is not particularized. Moreover, plaintiffs’ ability to vote and the effectiveness of their vote have not been impaired. Plaintiffs had, and continue to have, the ability to request a roll call vote as long as they follow the procedures established by the House of Representatives and amass one-fifth support for such a motion. Because their failure to achieve a one-fifth vote in this case is not a result of a constitutional violation, they have failed to identify an irreparable harm.
Plaintiffs’ assertion that their constituents were harmed because of the effect on referendums is also unfounded. Article 2, § 9 of the Constitution states that
[t]he people reserve to themselves the power ... to approve or reject laws enacted by the legislature, called the referendum. ... The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted.
Nothing in the language of this section or in article 4 § .27 implies that the people’s right to a referendum has been impaired. The power of a referendum can be invoked within 90 days of the final adjournment of the legislative session and nothing implies that the immediate effect of the law infringes upon the right to a referendum. As this Court held in Frey v DSS Dir, 162 Mich App 586, 601-602; 413 NW2d 54, aff'd 429 Mich 315 (1987):
Plaintiffs’ argument that giving the act immediate effect would impair their right to referendum is without merit. Under article 2, § 9, referendum must be invoked within ninety days of the final adjournment of the legislative session at which the law was enacted. Whether the law was given immediate effect is irrelevant.
Thus, plaintiffs have failed to demonstrate that they will suffer irreparable harm if an injunction is not issued. Mich AFSCME Council 25, 293 Mich App at 148-149.
IV CONCLUSION
The trial court erred by granting the preliminary injunction. Because plaintiffs failed to demonstrate a likelihood of success on the merits or to establish irreparable harm, we reverse the trial court’s order, vacate the preliminary injunction, and remand for an order of dismissal. We do not retain jurisdiction.
There are no costs, a public question being involved. We do not retain jurisdiction. This opinion is to have immediate effect pursuant to MCR 7.215(F)(2).
Talbot, EJ., and Wilder, J., concurred with Riordan, J.
Plaintiffs contend that Representative Kate Segal intended to request a one-fifth vote for a roll call vote and that a sufficient number of members were prepared to vote in favor. To support this claim, plaintiffs offer a list of those members whom they say were in support of Representative Segal’s request. Yet the House Journal conclusively shows that no roll call vote request was made and such a vote did not take place. Because the Journal of the House is conclusive and “[p]arol evidence may not be used to show that the Legislature violated the constitution in enacting a statute,” Mich Taxpayers United, 236 Mich App at 379, plaintiffs’ arguments are meritless. | [
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The Court orders that the September 4, 2012, opinion is hereby vacated, and a new opinion is attached.
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Meter, J.
These consolidated appeals involve a class action by individuals whose benefits under a cash-assistance program administrated by the Department of Human Services (DHS) in accordance with the Social Welfare Act, MCL 400.1 et seq., were terminated. In Docket No. 309447, defendant, the DHS Director, appeals as of right the circuit court’s order granting summary disposition in favor of plaintiffs with respect to their claim that the DHS Director exceeded her authority by implementing a 60-month time limit for receiving cash-assistance benefits for members of plaintiffs’ class. In Docket No 309894, the DHS Director appeals as of right the injunctive relief ordered by the circuit court on the basis of that determination. We affirm in part and reverse in part.
I. BACKGROUND
This case involves cash-assistance benefits provided to individuals under the Family Independence Program (FIP), as established under the Social Welfare Act and amended by 2011 PA 131, effective October 1, 2011. Pursuant to MCL 400.57a(1), “[t]he department[ ] shall establish and administer the family independence program to provide assistance to families who are making efforts to achieve independence.” The time limit established by the Legislature for FIP assistance to be paid to an individual, beginning October 1, 2007, is “not longer than a cumulative total of 48 months during that individual’s lifetime.” MCL 400.57r. A recipient of FIP assistance who does not comply with his or her individual family-self-sufficiency plan is penalized by having payments temporarily or permanently terminated, and those penalty months are still counted toward the 48-month total. MCL 400.57g(4). The Social Welfare Act also contains exclusions from the 48-month limit, even though payment is made to a recipient. MCL 400.57p.
The instant class action arose because the DHS uses federal Temporary Assistance for Needy Families (TANF) funds to administer the Fip and application of the 48-month limit under the Social Welfare Act with the exemptions established by the Legislature leaves some individuals eligible for FIP benefits even though they have exhausted TANF funds.
The purpose of TANF is to provide flexibility for states in operating a program designed to:
(1) provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives;
(2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage;
(3) prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and
(4) encourage the formation and maintenance of two-parent families. [42 USC 601(a).]
42 USC 601(b) specifies that the statutory provisions concerning TANF funds “shall not be interpreted to entitle any individual or family to assistance under any State program funded” by TANF. Federal law generally provides for a 60-month limit on the use of TANF funds, 42 USC 608(a)(7)(A), but that limit is subject to the following express rules of interpretation:
(E) Rule of interpretation
Subparagraph (A) shall not be interpreted to require any State to provide assistance to any individual for any period of time under the State program funded under this part [42 USC 601 through 42 USC 619].
(F) Rule of interpretation
This part shall not be interpreted to prohibit any State from expending State funds not originating with the Federal Government on benefits for children or families that have become ineligible for assistance under the State program funded under this part by reason of subparagraph (A). [42 USC 608(a)(7).]
Each of the four plaintiffs in this case received a “NOTICE OF CASE ACTION” from the DHS, dated October 11, 2011, which specified that FIP benefits were being cancelled effective November 10, 2011, for the following reason:
The intended action results from a change in law and policy that placed a lifetime time limit on the receipt of assistance through the Family Independence Program. Your group is no longer eligible for the Family Independence Program because the person(s) listed below has received 60 months or more of benefits, which is the time limit allowable for eligibility.
The notice informed each plaintiff that they had the right to a hearing to contest the DHS’s calculation that assistance should stop because of the 60-month limit. The notice was provided to affected recipients of the cash-assistance benefits pursuant to an action in the United States District Court in which the adequacy of prior notices provided by the DHS was challenged by various individuals on procedural due-process grounds. See Kelly v Corrigan, unpublished order of the United States District Court for the Eastern District of Michigan, entered October 4, 2011 (Docket No. 11-14298).
On October 28, 2011, plaintiffs filed this action against the DHS Director on behalf of themselves and other similarly situated individuals to challenge the DHS Director’s authority to impose the 60-month time limit through the implementation of an administrative policy. The circuit court initially granted plaintiffs’ motion for a preliminary injunction to enjoin the DHS Director from terminating the cash-assistance benefits on the basis of the 60-month limit. The circuit court also ordered that the case could proceed as a class action on behalf of “all current and future FIP recipients who have been or will be denied or terminated from FIP assistance based on a 60 month limit when they have not received FIP for 48 countable months under the Social Welfare Act.”
In an earlier interlocutory appeal in this case, this Court, in lieu of granting leave to appeal, peremptorily reversed and vacated the preliminary injunction because “[p]laintiffs failed to establish a likelihood of prevailing on the merits of their claim.” Smith v Dep’t of Human Servs Dir, unpublished order of the Court of Appeals, entered November 3, 2011 (Docket No. 306846). Following this decision, the DHS Director moved for reconsideration of the circuit court’s order granting the class certification. The DHS Director also moved for summary disposition under MCR 2.116(C)(8) and (C)(10) with respect to plaintiffs’ substantive claim, while plaintiffs moved for summary disposition under MCR 2.116(C)(10).
The circuit court denied the DHS Director’s motion for reconsideration. In addition, it resolved the cross-motions for summary disposition in favor of plaintiffs on the basis of its determinations that (1) the Social Welfare Act created an entitlement to FIP assistance for individuals who comply with the FIP’s family-self-sufficiency plan and (2) the DHS Director exceeded her authority under the separation of powers doctrine by imposing time limits that are not authorized by the Social Welfare Act. On the basis of those determinations, the circuit court entered a judgment (1) permanently enjoining the DHS Director from terminating or denying cash-assistance benefits “based on time limits unless and until it is determined that [class members] have received [benefits] for more than forty-eight countable months under the time limits set by the Social Welfare Act” and (2) enjoining the DHS Director from terminating or denying cash-assistance benefits “to Plaintiffs and members of the Class based on a 60 month limit that starts counting months prior to the October 1, 2007 started [sic] date established by statute and does not have the exemptions required by the Social Welfare Act[.]”
The DHS Director filed two appeals with this Court to challenge the circuit court’s determinations. In Docket No. 309447, the Michigan Supreme Court denied the DHS Director’s bypass application for leave to appeal, but directed this Court to consider the case on an expedited basis, stating:
The Court of Appeals is directed to decide this case on an expedited basis, considering whether (1) the circuit court erred in concluding that defendant may not implement limits on the duration of welfare benefits as part of its authority to establish eligibility criteria for family independence program recipients under MCL 400.57a(3) and/or MCL 400.57b(l)(f) and, if so, (2) whether plaintiffs are entitled to summary disposition on the alternative ground that defendant failed to comply with the requirements of the Administrative Procedures Act [APA], MCL 24.201 et seq. [Smith v Dep’t of Human Servs Dir, 491 Mich 898 (2012).]
II. STANDARD OF REVIEW
We review de novo a circuit court’s decision concerning a motion for summary disposition. Driver v Naini, 490 Mich 239, 246; 802 NW2d 311 (2011). Issues involving statutory construction are also reviewed de novo. Id. Whether the constitutional principle of separation of powers was violated is also reviewed de novo. People v Garza, 469 Mich 431, 433; 670 NW2d 662 (2003).
Although the circuit court did not state the subpart of MCR 2.116(C) on which it relied to resolve the parties’ cross-motions for summary disposition, because the parties’ motions relied on evidence that went beyond the documentary evidence filed with plaintiffs’ complaint, we find review under MCR 2.116(C)(10) appropriate. See Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d 174 (2007). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim based on substantively admissible evidence. MCR 2.116(G)(6); Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). A court should grant the motion if the submitted evidence fails to establish a genuine issue of material fact and the movant is entitled to judgment as a matter of law. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 424-425; 751 NW2d 8 (2008).
III. SEPARATION OF POWERS
Because the circuit court’s decision to invalidate the DHS Director’s action rested on a determination that the separation of powers doctrine was violated, we shall first address the applicability of this doctrine to the parties’ dispute. Const 1963, art 3, § 2, 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.” Under this provision, the executive branch has the duty of executing the laws enacted by the legislative branch. See Kyser v Kasson Twp, 486 Mich 514, 535; 786 NW2d 543 (2010). “An administrative agency that acts outside its statutory boundaries usurps the role of the legislature.” Herrick Dist Library v Library of Mich, 293 Mich App 571, 583; 810 NW2d 110 (2011). Accordingly, whether the circuit court erred by finding a violation of the separation of powers doctrine depends on the powers conferred by the Legislature on the DHS. We turn to the Social Welfare Act to determine if the DHS Director had authority to terminate FIP assistance on the basis of the 60-month time limit for TANF funds.
In interpreting the DHS’s authority under the Social Welfare Act, our primary goal is to ascertain the legislative intent by first examining the plain language of the statute. Driver, 490 Mich at 246-247. “Statutory provisions must be read in the context of the entire act. ...” Id. at 247. An undefined statutory term is given its plain and ordinary meaning unless it is a term of art with a unique legal meaning. Mich AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich App 143, 156; 809 NW2d 444 (2011). “When a statute specifically defines a given term, that definition alone controls.” Haynes v Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007). If a statute is unambiguous, it is applied as written. Driver, 490 Mich at 247. “A statutory provision is ambiguous if it irreconcilably conflicts with another provision or is equally susceptible to more than a single meaning.” AFSCME, 293 Mich App at 155. If a statutory provision is ambiguous, judicial interpretation is appropriate. Capitol Props Group, LLC v 1247 Ctr Street, LLC, 283 Mich App 422, 434; 770 NW2d 105 (2009). An administrative agency’s construction of a statute that it is charged with executing is entitled to respectful consideration, but is not binding on courts and cannot conflict with the plain language of a statute. In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 103, 111-112; 754 NW2d 259 (2008).
The circuit court began its review of the DHS’s authority by considering whether the Social Welfare Act created an entitlement program. However, because the present issue does not involve whether the DHS Director took action that deprived the class members of due process, but rather whether the DHS Director had authority under the Social Welfare Act to apply the 60-month limit applicable for TANF funds to FIP assistance, we find it unnecessary to address whether an entitlement program existed for due-process purposes. Upon review de novo of the relevant statutory provisions in light of the act as whole, we hold that the circuit court erred by finding that the DHS Director violated the Social Welfare Act — in particular, the exemptions to the 48-month limit established by MCL 400.57p — by imposing a 60-month limit on FIP assistance.
MCL 400.57p states:
Any month in which a recipient has been exempted from the JET program[ ] under section 57f(3) or (4)(b) shall not be counted toward the cumulative total of 48 months in a lifetime for family independence program assistance. Any month in which a recipient has been exempted from the JET program under section 57f(4)(e) or (f) may, in the department’s discretion, be excluded from the count toward the cumulative total of 48 months in a lifetime for family independence program assistance.
Read in the context of MCL 400.57r, which establishes an individual’s lifetime limit for FIP assistance as “not longer than a cumulative total of 48 months,” it is clear that the Legislature contemplated that actual payments could extend beyond the 48-month limit if a recipient has been exempted from the JET program.
There is no statutory language that limits actual payments to 60 months. However, considering that the 60-month limit approved by the DHS Director in this case arises from limitations on TANF funding for individuals, the circuit court erred by concluding that the DHS Director has no authority under the Social Welfare Act to impose this limitation. Other statutory provisions, which operate independently of MCL 400.57p, authorize the DHS to use the exhaustion of TANF funding as an eligibility criterion for individuals.
Initially, we note that we reject the DHS Director’s argument that the duties imposed on the DHS under MCL 400.57a(3) with respect to the “composition of the program group,” standing alone, provide authority to establish an individual’s exhaustion of TANF funds as an eligibility criterion. MCL 400.57a(3) provides:
The department shall establish income and asset levels for eligibility, types of income and assets to be considered in making eligibility determinations, payment standards, composition of the program group and the family independence program assistance group, program budgeting and accounting methods, and client reporting requirements to meet the following goals:
(a) Efficient, fair, cost-effective administration of the family independence program.
(b) Provision of family independence program assistance to families willing to work toward eventual self-sufficiency. [Emphasis added.]
In interpreting a statute, a court considers both the plain meaning of a critical word or phrase and its placement and purpose in the statutory scheme. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). A court may consult a dictionary to determine the ordinary meaning of an undefined term. Haynes, 477 Mich at 36. The words in a statute should be read together to harmonize the meaning and give effect to the act as a whole. G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003).
Random House Webster’s College Dictionary (1997) defines the word “eligible,” in relevant part, as “meeting the stipulated requirements; qualified.” The word “eligibility” as used in MCL 400.57a(3), examined in context, plainly depends on income and asset levels. The Random House Webster’s College Dictionary (1997) defines “composition,” in relevant part, as “the manner of being composed; arrangement or combination of parts or elements” and “the parts or elements of which something is composed; makeup; constitution.” As used in MCL 400.57a(3), the term “composition” requires a determination of the “program group” and the “family independence program assistance group.” While the DHS is permitted to take action that serves the goal of a cost-effective FII) “program group” and “family independence program assistance group” are both statutorily defined phrases. “Program group” is defined as “a family and all those individuals living with a family whose income and assets are considered for purposes of determining financial eligibility for family independence program assistance.” MCL 400.57(l)(n). “Family independence program assistance group” is defined as “all those members of a program group who receive family independence program assistance.” MCL 400.57(1)(f).
As a whole, MCL 400.57a(3) permits the DHS to determine issues involving financial eligibility using income and asset information. The DHS is also authorized to determine which individuals make up the program group. However, standing alone, the statute does not authorize the DHS to add an eligibility criterion based on whether TANF funding has been exhausted for an individual because of the federal 60-month limit. Nonetheless, MCL 400.57b(l) provides:
An individual who meets all of the following requirements is eligible for family independence program assistance:
(a) Is a member of a family or a family independence program assistance group.
(b) Is a member of a program group whose income and assets are less than the income and asset limits set by the department.
(c) In the case of a minor parent, meets the requirements of subsection (2).
(d) Is a United States citizen, a permanent resident alien, or a refugee. If the applicant indicates that he or she is not a United States citizen, the department shall verify the applicant’s immigration status using the federal systematic alien verification for entitlements (SAVE) program.
(e) Is a resident of this state as described in section 32.
(f) Meets any other eligibility criterion required for the receipt of federal or state funds or determined by the department to be necessary for the accomplishment of the goals of the family independence program. [Emphasis added.]
“The commonly understood word ‘any’ generally casts a wide net and encompasses a wide range of things.” People v Lively, 470 Mich 248, 253; 680 NW2d 878 (2004). Therefore, it is plain that the Legislature authorized the DHS to add an eligibility criterion that is not required for federal or state funds but is necessary to accomplish the goals of the FIE Further, MCL 400.57a(3)(a) establishes that one goal of the FIP is to achieve an efficient, fair, cost-effective administration of the FIP] and the DHS Director’s affidavit filed in support of her motion for summary disposition indicates that “fiscal soundness” is one of the purposes for terminating FIP assistance when TANF funds are exhausted. Thus, MCL 400.57a(3) and MCL 400.57b(l)(f), read together, are reasonably construed as permitting the DHS to consider its added eligibility criterion for purposes of deciding the composition of the program group and the family independence program assistance group. In addition, the DHS had no duty to consider hardship criteria to extend the 60-month period because the use of the phrase “[t]he State may exempt” in the applicable federal law, 42 USC 608(a)(7)(C)(i), denotes permissive action. See Manuel v Gill, 481 Mich 637, 647; 753 NW2d 48 (2008) (noting that the word “may” is generally an indication of permissive action).
In sum, the circuit court erred by granting plaintiffs summary disposition based on the doctrine of separa tion of powers. MCL 400.57a(3)(a) and MCL 400.57b(l)(f) provide statutory authority for the DHS Director’s reliance on fiscal soundness to add an eligibility criterion that would disqualify individuals from FIP assistance based on the exhaustion of federal TANF funds.
IV ADMINISTRATIVE PROCEDURES ACT
Plaintiffs nevertheless contend that they are entitled to summary disposition because the DHS did not follow the rulemaking procedures of the APA. This issue requires consideration of general provisions in the Social Welfare Act, see MCL 400.6, that are applicable to the DHS, as well as consideration of relevant provisions of the APA. MCL 400.6, provides, in pertinent part:
(1) The family independence agency may promulgate all rules necessary or desirable for the administration of programs under this act. Rules shall be promulgated under the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.328 of the Michigan Compiled Laws. Beginning 2 years after the effective date of subsection (2), if the Michigan supreme court rules that sections 45 and 46 of Act No. 306 of the Public Acts of 1969, being sections 24.245 and 24.246 of the Michigan Compiled Laws, are unconstitutional and a statute requiring legislative review of administrative rules is not enacted within 90 days after the Michigan supreme court ruling, this subsection does not apply.
(2) The family independence agency may develop regulations to implement the goals and principles of assistance programs created under this act, including all standards and policies related to applicants and recipients that are necessary or desirable to administer the programs. These regulations are effective and binding on all those affected by the assistance programs. Except for policies described in subsections (3) and (4), regulations described in this sub section, setting standards and policies necessary or desirable to administer the programs, are exempt until the expiration of 12 months after the effective date of this subsection from the rule promulgation requirements of the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.328 of the Michigan Compiled Laws. Upon the expiration of 12 months after the effective date of this subsection, regulations described in this subsection are not effective and binding unless processed as emergency rules under section 48 of Act No. 306 of the Public Acts of 1969, being section 24.248 of the Michigan Compiled Laws, or promulgated in accordance with Act No. 306 of the Public Acts of 1969.
(3) The family independence agency may develop policies to establish income and asset limits, types of income and assets to be considered for eligibility, and payment standards for assistance programs administered under this act. Policies developed under this subsection are effective and binding on all those affected by the assistance programs. Policies described in this subsection are exempt from the rule promulgation requirements of Act No. 306 of the Public Acts of 1969. Not less than 30 days before policies developed under this subsection are implemented, they shall be submitted to the senate and house standing committees and appropriation subcommittees with oversight of human services.
(4) The family independence agency may develop policies to implement requirements that are mandated by federal statute or regulations as a condition of receipt of federal funds. Policies developed under this subsection are effective and binding on all those affected by the programs. Policies described in this subsection are exempt from the rule promulgation requirements of Act No. 306 of the Public Acts of 1969. [Emphasis added.]
The DHS Director argues that MCL 400.6(4) applies to the pertinent policy because the DHS is implementing a federal requirement that TANF funds not be paid to persons for more than a cumulative period of 60 months. To the extent that only federal monies are involved, we agree. 42 USC 608(a)(7)(A) states:
A State to which a grant is made under section 603 of this title shall not use any part of the grant to provide assistance to a family that includes an adult who has received assistance under any State program funded under this part attributable to funds provided by the Federal Government, for 60 months (whether or not consecutive) after the date the State program funded under this part commences, subject to this paragraph.
By cutting off federal funds from individuals after they have received 60 months of benefits, the DHS is following a federal mandate and need not follow the rulemaking procedures outlined in the APA. MCL 400.6(4). Plaintiffs argue that the federal 60-month limit is not a mandate (even assuming, arguendo, that only federal funds are at issue) because the federal law also allows for optional hardship exemptions that can extend the 60-month limit. However, we conclude that (1) there is a clear mandate involving a 60-month limit, (2) there are optional exemptions, and (3) the existence of the option for exemptions does not somehow extinguish the mandate.
While there is an exemption from the rulemaking requirements for the cutting off of federal monies, it is clear that some state funds are used in administering the FIP program. To the extent that plaintiffs would be entitled to FIP benefits derived from state funds, we find a violation of the APA in connection with the challenged policy. Indeed, the deprivation of state funding otherwise provided by state law cannot reasonably be deemed a federal mandate under MCL 400.6(4). The DHS Director focuses on the amendment of the “Group Composition” section of Michigan’s TANF State Plan and related policies, but the DHS’s authority to exclude a person from a group stems, as previously discussed, from its authority to add an eligibility criterion that the DHS determines is necessary to accomplish the FIP goals under MCL 400.57b(l)(f). The eligibility criterion plainly falls within the broad provision in MCL 400.6(2), which requires rulemaking under the APA for “all standards and policies related to applicants and recipients that are necessary or desirable to administer the programs.”
The DHS Director has also failed to establish any provision of the APA that would exempt the DHS from developing its policy as a rule under the APA. “Rule” is defined in the APA as “an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency.” MCL 24.207. The APA also specifies numerous agency actions that do not constitute a rule. MCL 24.207. The DHS Director relies on the exception set forth in MCL 24.207(j): “A decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected.” We reject the DHS Director’s claim that the exception set forth in MCL 24.207(j) applies. MCL 400.57a(3) provides that the DHS “shall establish . . . composition of the program group and the family independence program assistance group . .. .” The word “shall” denotes mandatory action. Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 409; 716 NW2d 236 (2006). A mandatory action does not fall within the exception set forth in MCL 24.207(j). Spear v Mich Rehab Servs, 202 Mich App 1, 4-5; 507 NW2d 761 (1993).
The DHS Director’s claim could, at first blush, have merit if it is considered in light of the DHS’s authority to add an eligibility criterion under MCL 400.57b(l)(f). However, MCL 400.6(2) mandates that the DHS process such regulations as emergency rules or promulgated rules under the APA. The APA provides that “[t]his act shall not be construed to repeal additional requirements imposed by law.” MCL 24.211. Because the Social Welfare Act mandates rulemaking under the APA, the DHS’s added eligibility criterion is not exempt from the APA. See Detroit Base Coalition for the Human Rights of the Handicapped v Dep’t of Social Servs, 431 Mich 172, 186-188; 428 NW2d 335 (1988) (concluding that the agency’s attempt to implement a mandatory hearing policy did not constitute the exercise of permissive statutory authority under MCL 24.207(j) when the statute applicable to the agency mandated that hearings be conducted pursuant to promulgated rules).
An agency’s failure to substantially comply with the procedural requirements for promulgating rules under the APA renders a rule invalid and precludes it from having the force of law. MCL 24.243; Goins v Greenfield Jeep Eagle, Inc, 449 Mich 1, 9-10; 534 NW2d 467 (1995). Because the DHS’s policy constitutes a rule, no exception to the rulemaking requirements of the APA applies, and the DHS failed to follow the procedures for promulgating rules, the circuit court correctly concluded that the rule is invalid to the extent that state funding is involved.
V CLASS CERTIFICATION
The DHS Director also argues that the circuit court erred by certifying the plaintiffs’ case as a class action under MCR 3.501. We disagree.
We review de novo the proper interpretation of MCR 3.501. Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009). We review for clear error any factual findings made by the circuit court. Id. We review the court’s discretionary decisions for an abuse of discretion. Id. “[A]n abuse of discretion occurs only when the trial court’s decision is outside the range of reasonable and principled outcomes.” Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).
Contrary to the DHS Director’s argument on appeal, the circuit court was not required to apply the federal “rigorous analysis” approach to determine whether to certify the class action. MCR 3.501(A) provides sufficient guidance for considering a request for class certification. Henry, 484 Mich at 502. MCR 3.501(A)(1) contains the following prerequisites for a class action:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.
The DHS Director focuses on subparts (b) and (e). We reject the DHS Director’s argument that plaintiffs’ class fails the commonality requirement of MCR 3.501(A)(1)(b). This prerequisite only requires “the common issue or issues to predominate over those that require individualized proof.” Hill v City of Warren, 276 Mich App 299, 311; 740 NW2d 706 (2007). The circuit court did not clearly err by finding a predominating issue of law concerning the validity of the DHS Director’s implementation of a 60-month time limit for receiving cash-assistance benefits.
With respect to MCR 3.501(A)(1)(e), the court rule provides a number of factors that a trial court should consider when evaluating whether a class action would be superior to other forms of adjudication. MCR 3.501(A)(2). This prerequisite to class certification is essentially a practicality test that promotes the convenient administration of justice. Hill, 276 Mich App at 314. A court should not evaluate the merits of the case when determining whether to certify a class action. Henry, 484 Mich at 504-505. Therefore, we reject the DHS Director’s argument that the possible effect of this case on funding for FIP assistance weighs against the circuit court’s finding that a class action was a superior means of adjudication.
We also reject the DHS Director’s argument that plaintiffs should have pursued their claim by requesting a declaratory ruling from the DHS, followed by an action to obtain a declaratory judgment, under the APA. See MCL 24.263 and MCL 24.264. An action for a declaratory judgment authorized by MCL 24.264 was not applicable to plaintiffs’ claim because it does not involve promulgated rules. See Jones v Dep’t of Corrections, 185 Mich App 134, 137; 460 NW2d 575 (1990), and Bentley v Dep’t of Corrections, 169 Mich App 264, 270; 425 NW2d 778 (1988). In addition, MCL 24.263 did not apply because plaintiffs were not seeking to apply a rule to an actual set of facts, but rather to have an administrative policy that was not promulgated as a rule declared invalid. See Mich Farm Bureau v Dep’t of Environmental Quality, 292 Mich App 106, 119 n 7; 807 NW2d 866 (2011). In any event, it is clear from the record that the circuit court’s concern was that individual actions could lead to different rulings on a question of law. We conclude that the DHS Director has failed to establish any basis for reversal of the circuit court’s decision that the class action was a superior means of adjudicating the question of law in this case.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
SERVITTO, EJ., and FORT Hood, J., concurred with Meter, J.
The “department” is defined in the Social Welfare Act to mean the Family Independence Agency. MCL 400.1(4). The Family Independency Agency was renamed the Department of Human Services pursuant to an executive reorganization order effective March 15, 2005. See MCL 400.226. The executive order states that all statutory references to the Family Independence Agency shall be deemed references to the Department of Human Services. See id.
While a state may exempt a family from the 60-month limitation by reason of hardship subject to certain limitations under 42 USC 608(a)(7)(C), it is undisputed in this case that the DHS’s current policy does not allow for hardship exemptions.
Plaintiffs also filed the action as next friends of their minor children, but the circuit court did not rule on their motions to be appointed as next friends.
“JET program” is defined in MCL 400.57(l)(i) as “the jobs, education and training program administered by the Michigan economic development corporation or a successor entity for applicants and recipients of family independence program assistance or a successor program.”
The DHS Director also relies on MCL 24.207(o), an exception for federal mandates. The cutting off of state funds, as noted earlier, cannot be considered a federal mandate.
Because MCL 400.6(2) applies, it is unnecessary to consider plaintiffs’ argument based on Palozolo v Dep’t of Social Servs, 189 Mich App 530; 473 NW2d 765 (1991).
The record is not clear regarding how the FIP program operates in terms of distributing state funds versus federal funds. Further proceedings may serve to clarify this issue.
Certain aspects of the circuit court’s decision were erroneous, and we thus remand for entry of an order that comports with our decision today. | [
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The Court orders that the July 3, 2012, opinion is hereby vacated, and a new opinion is attached.
New opinion reported at 298 Mich App 539—Reporter. | [
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Murray, J.
Defendant Blue Cross and Blue Shield of Michigan appeals as of right a final judgment entered in favor of plaintiff, Calhoun County, in the amount of $1,138,943. Defendant’s appeal challenges several pre liminary rulings made by the trial court when deciding the parties’ cross-motions for summary disposition, as well as the trial court’s denial of defendant’s motion to amend its affirmative defenses. We reverse the trial court’s order granting plaintiff summary disposition on its breach-of-contract and fiduciary-duty claims and remand for entry of an order granting defendant’s motion for summary disposition of those claims.
I. FACTUAL BACKGROUND
This case is one of a series involving defendant and various governmental entities. Calhoun County has for years contracted with defendant to administer its self-insured health care plan. Defendant is governed by various Michigan statutes and is legally obligated to subsidize insurance policies for any Medicare-eligible person who is not a member of a “group.” Defendant internally refers to this subsidy as “other than group” (OTG). Defendant is also required to maintain a contingency fund and ensure that each “line of business” is independently funded. Defendant’s self-insurance plan is one “line of business.”
In the late 1980s, defendant separately billed its customers for the cost of the OTG subsidy. Many self-insured customers were dissatisfied with paying the OTG charge; as a result, some customers hired defendant’s competitors, while others simply refused to pay the OTG charge. Defendant ultimately decided to merge mandatory business charges such as the OTG charge into the hospital claims for self-insured plans. Thus, the various business charges were no longer “visible” on billing statements, but were instead built into the bill submitted to the customer (after a reduction had already occurred because of defendant’s network discounts). According to defendant, these built-in charges were part of an access fee that was structured in part as the cost for access to defendant’s hospital network discounts.
II. THE CONTRACT BETWEEN THE PARTIES
Since 1990, plaintiff has contracted with defendant to administer plaintiffs self-insured health care plan. Pursuant to the parties’ agreement, plaintiff reimburses defendant on a weekly basis for the medical claims submitted by its employees. This weekly payment includes the costs of actual claims (which, as noted, are initially reduced by defendant’s network savings) and some additional fees. The amount of the payment is determined by the parties’ administrative services contract (ASC). The ASC is the central contract for the insurance arrangement, and it determines the rights and obligations of each party.
The ASC outlined plaintiffs financial responsibilities as follows:
A. General Obligations.
The Group - - will immediately assume: all risks; all financial obligations, including but not limited to Amounts Billed, court costs, and attorney’s fees; and all other liabilities BCBSM may assume or which might otherwise attach with respect to processing Coverage pursuant to this Contract. The Group will make full payment and satisfaction to BCBSM for all amounts resulting from such risks, financial obligations, and liabilities. Group responsibility will not, however, include amounts resulting directly from any negligent processing/payment of claims by BCBSM.
B. Specific Obligations.
The Group will, for each Contract Year, pay BCBSM the total of the following amounts:
1. Amounts Billed during the current Contract Year.
2. The hospital prepayment reflecting the amount BCBSM determines is necessary for its funding of the prospective hospital reimbursement.
3. The actual administrative charge.
4. The group conversion fee.
5. Any late payment charge.
6. Any statutory and/or contractual interest.
7. Stop Loss premiums, if applicable.
8. Cost containment program fee, if applicable.
9. Any other amounts which are the Group’s responsibility pursuant to this Contract, including but not limited to risks, obligations or liabilities, deficit amounts relating to previous agreements, and deficit amounts relating to settlements.
The Provider Network Fee, contingency, and any cost transfer subsidies or surcharges ordered by the State Insurance Commissioner as authorized pursuant to 1980 PA. 350 [MCL 550.1101 et seq.] will be reflected in the hospital claims cost contained in Amounts Billed. [Emphasis added.]
The ASC defined “Amounts Billed” as “the amount the Group owes in accordance with BCBSM’s standard operating procedures for payment of Enrollees’ claims” and “Provider Network Fee” as “the amount allocated to the Group for the expenses incurred by BCBSM in the establishment, management and maintenance of its participating hospital, physician and other health care provider networks.” The ASC expressly incorporated additional documents, including schedules, and contained a severability clause.
Each year the parties agreed to a new fee for defendant’s administrative services, which was typically detailed in a document titled “Schedule A.” The Schedule As included an “administrative charge” and a fee for “excess loss coverage” or “stop-loss coverage.” The 1994 Schedule A also contained the following provision:
8. Effective with your current renewal, your hospital claims cost will reflect certain charges for provider network access, contingency, and other subsidies as appropriate. [Emphasis added.]
The Schedule As from 1995 to 2006 contained a substantially similar provision, stating either, “Your hospital claims cost reflects certain charges for provider network access, contingency, and other subsidies as appropriate,” or something quite similar, while the 2007 Schedule A contained a more detailed provision acknowledging the agreed-upon fees and charges:
11. A portion of your hospital savings has been retained by BCBSM to cover the ASC Access Fee. The ASC Access Fee covers (a) costs associated with the establishment, management and maintenance of BCBSM’s participating hospital, physician and other health provider networks, (b) charges to help maintain BCBSM’s surplus at an appropriate level in compliance with regulatory and Blue Cross and Blue Shield Association standards, and (c) cost transfer subsidies or surcharges authorized pursuant to 1980 BA. 350, such as the group conversion fee and the ‘other than group’ subsidy. [Emphasis added.]
The access fee varied based upon projected business costs. The access fee was a fixed percentage of each hospital claim, and during separate litigation defendant produced a document titled “Development of Access Fee Factors” that purportedly reflected defendant’s formula for calculating the access fee.
III. PROCEDURAL HISTORY
Plaintiffs complaint contained two counts alleging breach of contract as well as additional counts alleging breach of fiduciary duty, conversion, and constructive fraud. In general, each of plaintiffs allegations centered on the assertion that the parties had not agreed to a price for the access fee and, even if they had, defendant unilaterally charged excessive fees in violation of the parties’ agreement. In particular, with respect to its first breach-of-contract claim, plaintiff alleged that there was no agreement between the parties on the access fee because the lack of a stated price made the term so vague that no contract regarding that fee existed:
19. The contractual relationship between the parties is governed by two documents — the Master Contract and the yearly Schedule A. Plaintiff agreed to pay Defendant an Administrative Fee and Stop Loss Coverage. Plaintiff did not agree to pay Defendant an ASC Access Fee or other fee other than an Administrative Fee and Stop Loss Coverage. To the extent that the Master Contract or Schedule A make reference to charges for “provider network access, contingency and other subsidies as appropriate,” that provision is so vague, uncertain or ambiguous that an enforceable contract does not exist regarding that fee. The amount, price or method to determine the amount or the price is absent. [Emphasis added.]
Plaintiffs second breach-of-contract claim asserted that if there was a contract regarding the fees, defendant violated the covenant of good faith and fair dealing by unilaterally determining the fee, which was unreasonably high.
After initially denying both motions for summary disposition, the trial court held a second hearing just prior to trial to reconsider the competing motions for summary disposition. The trial court set forth several legal conclusions in support of its decision to grant plaintiffs motion:
And what I’ve come up with is this: that the Plaintiffs theory in this case is that there is-that the contract between the parties provides for an access fee but provides for an indefinite means of determining what that fee will be. And so in looking at the contract language, it seems to me that there isn’t-as a matter of law there is no agreement on what the price term was for the access fee.
And the Plaintiffs counsel has presented a line of cases that indicate in that instance that that part of the contract providing for an access fee is unenforceable, which leads one to the conclusion that the Defendant is not allowed to charge an access fee. They did charge it. And so the only factual issue remaining for the jury is to determine if there was the issue of fraudulent concealment and how far back the Plaintiff can go with their claim for reimbursement of the access fee that the Defendant has already collected.
The Defendant’s theory of the case is that there was definitely an agreement for an access fee. There is a means for determining it even if it refers to the Defendant’s standard operating procedure or other what I would term indefinite terms, and even if there-but even if the price is indefinite in nature, that the Defendant has not been harmed because the Defendant should be able to show that there certainly was an agreement for an access fee, and they ought to be able to present evidence about what that fee would or should have been worth. Really it strikes me as a quantum meruit type of analysis.
In any event, I told the attorneys I’ve decide — I’m deciding this legal issue in favor of the Plaintiff. So that gets us down to only one real factual issue, determining- and that is determining when [plaintiff] knew or should have known of the existence of this claim. And then that will determine how far back they can go.
The trial court then ruled that defendant was plaintiffs fiduciary as a matter of law:
Another part of this case is the allegation that the Plaintiff breached a fíduciary-or the Defendant breached a fiduciary duty it owed to the Plaintiff. The Defendant is asserting that’s an issue of law. I agree with that. And I’m determining based on what’s been presented already that’s not contested that there was a fiduciary duty, and that’s because the Defendant was receiving health care claims from health care providers for the Defendant’s employee, acting as their agent and paying those claims, accounting for those things to the Plaintiff, and then billing the Plaintiff for those items.
And [defendant’s counsel] correctly pointed out that there has to be a scope to that duty, and, as I see it, the scope of the duty was simply to bill the Plaintiff accurately for claims that were presented. And so the part of this case that’s troubling to me is that bills were presented to the Plaintiff that said we paid X number of dollars of health care claims for your employees over the past year, with no disclosure that some percentage of those payments were actually this access fee that was never diselosed-at least prior to 2006 was never clearly disclosed by the Defendant to the Plaintiff.
So I’m ruling as a matter of law on that issue. So I believe the only remaining issue is the issue of fraudulent concealment.
The trial court ultimately entered an order granting partial summary disposition to plaintiff on the breach-of-contract and breach-of-fiduciary-duty claims, and plaintiff later voluntarily dismissed the remaining three claims. Defendant moved to add a counterclaim for quantum meruit and return of its consideration, which the trial court denied.
IV ANALYSIS
Defendant argues that the trial court erred in denying its motion for summary disposition of plaintiffs breach-of-contract claims. Defendant’s argument is two-fold. First, defendant argues that the access fee was specific enough that the contract did not fail for indefiniteness. Second, defendant argues that even if the contract was ineffective, the remedy would not be liability for breach of a contract, but would instead be a ruling that the failure of consideration caused there to be no contract between the parties.
This Court reviews de novo the grant or denial of a motion for summary disposition filed under MCR 2.116(C)(10). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When a motion is brought under that subrule, the trial court must consider the “affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties,” MCR 2.116(G)(5), “in the light most favorable to the party opposing the motion,” Maiden, 461 Mich at 120. “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. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
In addressing the validity of the trial court’s decision, both parties cite evidence produced at the trial held on the fraudulent-concealment issue. Much of that evidence, and of course all the trial testimony, was not available to the trial court when it decided the motions for summary disposition prior to trial. Consequently, we cannot look to that evidence in determining whether the trial court properly granted the motion. Peña v Ingham Co Rd Comm, 255 Mich App 299, 313 n 4; 660 NW2d 351 (2003); Zurcher v Herveat, 238 Mich App 267, 292; 605 NW2d 329 (1999). Instead, we are limited to considering the evidence submitted to the trial court before its decision on the motions. Zurcher, 238 Mich App at 292.
A. WAS THERE A CONTRACT?
With respect to plaintiffs first breach-of-contract claim, defendant’s primary argument is that the trial court erred in granting partial summary disposition to plaintiff on the basis that the contract was missing an essential term. Construction and interpretation of a contract are questions of law that we review de novo, meaning that we do so without deference to the trial court’s decision. Comerica Bank v Cohen, 291 Mich App 40, 46; 805 NW2d 544 (2010). In Meagher v Wayne State Univ, 222 Mich App 700, 721-722; 565 NW2d 401 (1997), this Court explained:
Under ordinary contract principles, if contractual language is clear, construction of the contract is a question of law for the court. If the contract is subject to two reasonable interpretations, factual development is necessary to determine the intent of the parties and summary disposi tion is therefore inappropriate. If the contract, although inartfully worded or clumsily arranged, fairly admits of but one interpretation, it is not ambiguous. The language of a contract should be given its ordinary and plain meaning. [Citations omitted.]
There are five elements of a valid contract: “(1) parties competent to contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation.” Hess v Cannon Twp, 265 Mich App 582, 592; 696 NW2d 742 (2005) (quotation marks and citation omitted). Most of the elements listed above reflect the fact that the parties to a contract must have “a meeting of the minds on all essential terms of a contract.” Burkhardt v Bailey, 260 Mich App 636, 655; 680 NW2d 453 (2004). “Where mutual assent does not exist, a contract does not exist.” Quality Prod & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 372; 666 NW2d 251 (2003). “ ‘A meeting of the minds is judged by an objective standard, looking to the express words of the parties and their visible acts, not their subjective states of mind.’ ” Stanton v Dachille, 186 Mich App 247, 256; 463 NW2d 479 (1990), quoting Heritage Broadcasting Co v Wilson Communications, Inc, 170 Mich App 812, 818; 428 NW2d 784 (1988).
There is no dispute that elements one and two have been satisfied, i.e., that the parties were competent to contract and that the contract involved a proper subject matter. The parties also do not seem to dispute that there was legal consideration supporting the contract. The essence of consideration — whatever form it takes — is that there be a bargained-for exchange be tween the parties. Higgins v Monroe Evening News, 404 Mich 1, 20; 272 NW2d 537 (1978). Typically, consideration will, at least for one side of the contract, take the form of the payment of legal tender. See Timko v Oakwood Custom Coating, Inc, 244 Mich App 234, 244; 625 NW2d 101 (2001). Here, there is no question that legal consideration supported the contract. Defendant agreed to administer plaintiffs self-insured health care plan, and in return plaintiff agreed to compensate defendant with the payment of legal tender. And finally, there is no dispute that the parties mutually agreed to be bound to these respective rights and obligations. Consequently, and as plaintiff repeatedly states in its brief on appeal, a contract existed between the parties.
Despite the concession that a valid contract existed between the parties, plaintiffs breach-of-contract claim asserts that the failure to specify in the contract the actual dollar amount of the access fee rendered that “contract term” indefinite. In addressing this issue, we are ever mindful that judicial avoidance of contractual obligations because of indefiniteness is not favored under Michigan law, and so when the promises and performances of each party are set forth with reasonable certainty, the contract will not fail for indefiniteness. Nichols v Seaks, 296 Mich 154, 159; 295 NW 596 (1941).
In accordance with this principle, the absence of certain terms — including at times the price — does not necessarily render a contract invalid. Some 40 years ago, in J W Knapp Co v Sinas, 19 Mich App 427, 430-431; 172 NW2d 867 (1969), we outlined the general common-law rule that a contract may be enforced despite some terms being incomplete or indefinite so long as the parties intended to be bound by the agreement:
Even though important terms of the contract were indefinite the trial judge acted properly in supplying the necessary additions. In an appropriate case an agreement may be enforced as a contract even though incomplete or indefinite in the expression of some term, if it is established that the parties intended to be bound by the agreement, particularly where one or another of the parties has rendered part or full performance. Where the price is indefinite, the purchaser may be required to pay and the seller to accept a reasonable price. Where the time of performance is indefinite, performance may be required to be rendered within a reasonable time. Each case will turn on its own facts and circumstances. See 1 Corbin on Contracts, § § 95, 96, 99,102; 5 Williston on Contracts, § 1459; 1 Williston on Contracts (3d ed), § § 36, 36A, 40, 41, 49; Restatement, Contracts, § 5. [Emphasis added.]
In reviewing the contract terms agreed to by the parties, we reach several legal conclusions. First, the parties agreed to all the terms of the ASC and Schedule A, so there is no question that they “ ‘intended to enter into a binding contract[.]’ ” Nichols, 296 Mich at 159, quoting 1 Williston on Contracts (rev ed), § 37, p 100. This conclusion applies with equal force to the more discrete question of agreement to the access fee. Contrary to plaintiffs argument, the language of the ASC expressly provided for the collection of additional fees beyond the administrative charge and stop-loss coverage. Plaintiffs contractual obligations are listed under article III of the ASC, the final provision of which states: “The Provider Network Fee, contingency, and any cost transfer subsidies or surcharges ordered by the State Insurance Commissioner as authorized pursuant to 1980 P.A. 350 will be reflected in the hospital claims cost contained in Amounts Billed.”
According to this unnumbered provision, the parties agreed that plaintiff would be charged for additional fees beyond the administrative charge and stop-loss coverage, and that those fees would be reflected in the hospital claims cost contained in “Amounts Billed.” The term “Amounts Billed” was broadly defined in the ASC as the amount owed in accordance with defendant’s “standard operating procedures.” Thus, the agreed-upon terms of the ASC allowed for the collection of the access fee, the means for collection, and the process through which it could be determined.
This is also reflected in Schedule A, which has since at least January 2007 reflected the parties’ agreement that the access fee covered three specific costs or charges and would be retained by defendant as a part of the overall savings realized by plaintiff:
11. A portion of your hospital savings has been retained by BCBSM to cover the ASC Access Fee. The ASC Access Fee covers (a) costs associated with the establishment, management and maintenance of BCBSM’s participating hospital, physician and other health provider networks, (b) charges to help maintain BCBSM’s surplus at an appropriate level in compliance with regulatory and Blue Cross and Blue Shield Association standards, and (c) cost transfer subsidies or surcharges authorized pursuant to 1980 EA. 350, such as the group conversion fee and the ‘other than group’ subsidy.
Consequently, the parties unequivocally agreed to the payment of the access fee, what it covered, and how it would be paid. This takes us to the ultimate question raised by plaintiff: Does the contract’s failure to reference a specific dollar amount for, or allegedly a means for calculating, the access fee make the fee unenforceable? For the reasons expressed below, we answer that question in the negative.
In determining the answer to this question, we first look to the language of the parties’ agreement. Meagher, 222 Mich App at 721-722. In doing so, we also remain cognizant of what we recognized earlier, which is that our courts do not look favorably on arguments that a contract cannot be enforced because of the indefiniteness of a term. Nichols, 296 Mich at 159; see, also, Waites v Miller, 244 Mich 267, 272; 221 NW 171 (1928). This sound rule is premised in part on the principle that parties to contracts should not be readily able to evade their obligations using after-the-fact assertions of indefiniteness. See Dumas v Auto Club Ins Ass’n, 437 Mich 521, 556; 473 NW2d 652 (1991) (BOYLE, J., concurring). As we consider this issue, we are also keenly aware that the challenged access fee is not the only consideration involved in this contract, but is instead one of several forms of costs and charges agreed to by the parties.
Turning to the contract itself, there is no doubt that the parties entered into a valid and enforceable contract that has been performed by both parties over a significant number of years, a fact plaintiff readily admits. And as part of that contract, the parties agreed that the access fee would be paid out of the savings plaintiff benefited from as a result of defendant’s network savings. Although the contract does not have a specific price for the access fee, it is nonetheless binding on the parties because “the promises and performances to be rendered by each party are set forth with reasonable certainty.” Nichols, 296 Mich at 159. In other words, because there is no dispute that the parties specifically agreed to the access fee, what comprised the access fee, and how it was to be paid, and because the amount was reasonably ascertainable through defendant’s standard operating procedures, the contract does not fail for indefiniteness.
It is simply not enough to say that the fee agreed to is not binding because no specific dollar figure was placed in the contract. As reflected above, the answer instead comes from looking at the entire agreement and determining its full substance in order to enforce the parties’ intentions. Higbie v Chase, 306 Mich 577, 595-596; 11 NW2d 248 (1943). Plaintiff does not dispute that defendant was able to calculate the access fee amounts through the “Development of Access Fee Factors,” which is in conformity with defendant’s “standard operating procedures.” As defendant argues, the “Development of Access Fee Factors” reflects an objective formula, based on a review of the fees and costs historically charged to plaintiff, for calculating the amount actually comprising the access fee. This manner of determining the contractually agreed amount of the access fee is entirely consistent with the plain language of the contract, as well as Michigan common law. Waites, 244 Mich at 272 (“Courts do not favor the destruction of contracts because of indefiniteness, and hold that uncertainty may be removed by subsequent acts, conduct, declarations, or agreements of the parties.”); see, also, Shelton v Wilson, 274 Mich 433, 436; 264 NW 854 (1936); Thompson v Tuckgr-Osborn, 111 Mich 470, 479-480; 69 NW 730 (1897); 1 Restatement Contracts, 2d, § 34(2), p 97. There is also no dispute that had plaintiff wanted to determine this amount, it had the ability to do so through the contractual annual audit, in which presumably the same “Development of Access Fee Factors” and the results of its formula would have been produced. For these reasons, we hold that the access fee was readily ascertainable through defendant’s standard operating procedures, and therefore plaintiff was obligated to pay the fee to which it agreed.
B. FIDUCIARY DUTY
The trial court also held as a matter of law that defendant had a fiduciary duty toward plaintiff and that defendant breached that duty. Whether to recognize a cause of action for breach of fiduciary duty is a question of law reviewed de novo, Teadt v Lutheran Church Missouri Synod, 237 Mich App 567, 574; 603 NW2d 816 (1999), because the existence of a duty is generally a question of law, Meyer & Anna Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 43; 698 NW2d 900 (2005).
A fiduciary relationship is
“[a] relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships — such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client — require the highest duty of care. Fiduciary relationships [usually] arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.” [In re Karmey Estate, 468 Mich 68, 74 n 2; 658 NW2d 796 (2003), quoting Black’s Law Dictionary (7th ed).]
Even assuming that defendant owed a fiduciary duty to plaintiff, as a result of our holding that defendant was authorized by the contract to charge the access fee, plaintiff cannot maintain its breach-of-fiduciary-duty claim. Plaintiffs complaint specifically alleges that defendant had a duty to “clearly disclose to Plaintiff that it was charging Plaintiff additional fees, the amount of those fees and not to undertake a program of misinformation . . . regarding those fees.” Plaintiff then alleged that defendant violated that duty “by. . . charging and . . . receiving a secret fee from plaintiffs account.” However, because this alleged breach of duty resulted from defendant’s charging a fee that it was contractually entitled to charge, that allegation should also have been dismissed on defendant’s motion for summary disposition.
We reverse the trial court’s order granting plaintiff summary disposition of its claims for breach of contract and fiduciary duty and remand for entry of an order granting defendant’s motion for summary disposition of those claims.
No costs, neither side having prevailed in full on the merits of the case. MCR 7.219(A).
Fitzgerald, P.J., and Gleicher, J., Concurred with Murray, J.
The material facts are taken from plaintiffs complaint and the parties’ motions for summary disposition. To the extent we have utilized some nonmaterial facts brought forward at trial, it has only been to provide some context to the circumstances giving rise to this case.
“The Group” refers to plaintiff.
Although the contract denotes this fee as the “ASC Access Pee,” the parties mostly refer to it as the “access fee.” We will do the same.
Defendant’s motion was filed in lieu of an answer and was filed pursuant to MCR 2.116(C)(8). Plaintiffs motion for partial summary disposition was brought pursuant to MCR 2.116(C)(10) and sought judgment only on its breach-of-contract claims.
A three-day jury trial was conducted to determine whether defendant had fraudulently concealed the access fee from plaintiff. If the jury had found in plaintiffs favor, plaintiff would have been able to recover damages for the breach of contract beyond the applicable statute of limitations. However, after one hour of deliberations, the jury found that defendant had not fraudulently concealed the access fee from plaintiff.
“ ‘Meeting of the minds’ is a figure of speech for mutual assent.” Kamalnath v Mercy Mem Hosp Corp, 194 Mich App 543, 548-549; 487 NW2d 499 (1992).
Plaintiff states its position this way in its brief on appeal: “The parties agree that there is a contract. Indeed, this contract was performed: claims were processed and paid, advances were made, quarterly and annual settlements occurred - all pursuant to the contract. The dispute is simply over one of its terms - the ASC Access Fee.”
In a December 21, 1992, ruling, Michigan Insurance Commissioner David J. Dykhouse stated that, with respect to the OTG costs, “it is BCBSM’s obligation to pursue the collection of cost transfers from its ASC customers.” Final Decision (Case No. 91-11806-BC), p 5. The rationale was that because defendant’s ASC customers derive a benefit from defendant’s tax-exempt status, it is not unreasonable to expect that the ASC customers would also contribute (just as defendant’s other lines of business do) a cost transfer to foster the affordability of health care coverage for Michigan’s elderly residents. See Pipefitters Local 636 Ins Fund v Blue Cross Blue Shield of Mich, 654 F3d 618, 632 (CA 6, 2011).
It is primarily for this reason that the cases relied on by plaintiff are of no real assistance. In Dayton v Stone, 111 Mich 196, 199; 69 NW 515 (1896), for example, the parties entered into a contract for the sale of both damaged and undamaged goods, but had failed to agree on the value or valuation mechanism for the damaged goods, which, given the subject of the contract, was an essential term. Likewise, the parties in Reed v Vander Zalm, 336 Mich 1, 9; 57 NW2d 304 (1953), had allegedly contracted for the purchase of land and the erection of a building, but the Court held that there had been no meeting of the minds on the cost of the house, the lot, or the insurance and taxes and that there was no provision in the alleged agreement that could be looked to in defining these costs. Finally, in Zurcher, 238 Mich App at 294-295, the Court held that the consideration (the price of the house) was stated and so was not at issue in the case, while in Ford Motor Co v Kahne, 379 F Supp 2d 857, 874-875 (ED Mich, 2005), the court was addressing an alleged contract that had purposely left material terms open to future negotiation, which is not what is presented here.
Though there is no need to rely on decisions from outside our state to decide this issue, we note that this point has been recognized before today. See, e.g., GEM Advisors, Inc v Corporación Sidenor, SA, 667 F Supp 2d 308, 326 (SD NY, 2009) (“The failure to fix a sum certain, however, is not necessarily fatal to a contract.”), relying on Cobble Hill Nursing Home v Henry & Warren Corp, 74 NY2d 475, 483; 548 NYS2d 920; 548 NE2d 203 (1989).
Plaintiffs counsel admitted to the trial court at the October 23,2008, motion hearing that defendant does “have a methodology,” but argued that plaintiff did not agree to it.
As a result of this conclusion, we need not address defendant’s alternative argument that if there was no readily ascertainable and agreed-upon fee amount, the result would not be a cause of action for breach of contract, but would instead be that no contract between the parties existed, at least as far as the access fee was concerned.
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O’connell, J.
In this original action, plaintiff, Protect MI Constitution (PMC), seeks a writ of mandamus against defendant Secretary of State (the Secretary). PMC asks this Court to direct the Secretary to reject a ballot question petition for a constitutional amendment filed by intervening defendant Citizens for More Michigan Jobs (CFMMJ). We grant the requested relief.
I. INTRODUCTION
CFMMJ is a ballot question committee that collected more than 500,000 petition signatures for a constitutional amendment proposal to be placed on the November 2012 general election ballot. The CFMMJ proposal would amend art 4, § 41 of the Michigan Constitution and expand casino gaming throughout the state. The proposal would allow a fourth casino in Detroit and seven other casinos at specific locations. Additionally, the CFMMJ proposal addresses subjects related to casino gaming that are presently governed by the Michigan Gaming Control and Revenue Act (the Gaming Act), MCL 432.201 et seq., which was enacted by voter initiative in 1996. In some respects, the CFMMJ proposal directly contradicts provisions of the Gaming Act, and CFMMJ admits that its proposal would limit, suspend, or invalidate portions of the Gaming Act.
PMC is a ballot question committee, representing existing casinos, that was formed to oppose the CFMMJ proposal and challenge its eligibility for the ballot. PMC claims that the proposal would amend the Gaming Act without following the constitutional procedures in Const 1963, art 2, § 9 for amending a voter-initiated law, or the constitutional procedures in Const 1963, art 4, §§ 24 and 25, requiring a title and republication of the statute to alter, revise, or amend an existing law. PMC also asserts that the CFMMJ petition impermissibly advances more than one purpose, and that its purpose is incapable of expression in 100 or fewer words.
PMC seeks a writ of mandamus from this Court directing the Secretary to stop the canvass and to refrain from taking any action to place the CFMMJ proposal on the ballot. The Attorney General has filed an amicus brief supporting PMC’s position.
This case presents an issue of first impression. We are asked to examine the process that the constitution requires for placing before the voters a proposed constitutional amendment that would alter specific provisions of a voter-initiated law. Our constitution sets forth separate and distinct procedures for amending the constitution, amending a voter-initiated law, and revising or altering a law. Michigan case law has not addressed whether the constitutional requirements for altering or amending a voter-initiated law must be satisfied when a petition for a constitutional amendment proposes a change in that law. We hold that Const 1963, art 4, § 25, which provides that a law may not be altered, revised, or amended without a republishing of the affected statutory language, applies to the CFMMJ petition presently before us. We further hold that the CFMMJ petition fails to comply with the prerequisites of article 4, § 25. Accordingly, the Secretary has a clear legal duty to reject the petition.
II. BACKGROUND AND PROCEDURAL HISTORY
A. THE GAMING ACT AND CONST 1963, ART 4, § 41
In the November 1996 general election, Michigan voters approved ballot initiative “Proposal E,” which allowed the establishment of three casinos in Detroit. Proposal E created the Michigan Gaming Control Board to regulate casino operations and imposed an 18% state wagering tax on gaming revenues. Of this tax revenue, 55% was allocated to Detroit for public safety and economic development, and 45% was allocated to the state for public education. The law became effective December 5, 1996. The Legislature codified Proposal E in the Gaming Act and subsequently amended the law in 1997 by a three-fourths vote of both houses of the state legislature, as provided by Const 1963, art 2, § 9 to amend a voter-initiated law.
In 2004, Michigan voters adopted a constitutional amendment to restrict the expansion of legalized gaming by requiring voter approval for certain expansions. Article 4, § 41 of the Constitution presently provides:
The legislature may authorize lotteries and permit the sale of lottery tickets in the manner provided by law. No law enacted after January 1, 2004, that authorizes any form of gambling shall be effective, nor after January 1, 2004, shall any new state lottery games utilizing table games or player operated mechanical or electronic devices be established, without the approval of a majority of electors voting in a statewide general election and a majority of electors voting in the township or city where gambling will take place. This section shall not apply to gambling in up to three casinos in the City of Detroit or to Indian tribal gaming. [Const 1963, art 4, § 41.]
B. THE CFMMJ BALLOT PROPOSAL
The CFMMJ proposal would amend Const 1963, art 4, § 41. The proposed constitutional amendment would strike all of the existing language of § 41 except the first sentence, “The Legislature may authorize lotteries and permit the sale of lottery tickets in any manner provided by law.” The CFMMJ proposal would add language to § 41 to allow casino gaming in eight locations in the state, providing in part:
The Legislature may authorize lotteries and permit the sale of lottery tickets in any manner provided by law. In addition, for the purpose of Michigan employment opportunities and economic development, as well as funding for K-12 schools, police and fire services, and road construction and repair, casino gaming shall be permitted in the following locations throughout the State of Michigan: In the City of Detroit, in addition to the three existing Casinos in that city, on [certain designated properties].
The proposed amendment provides the legal descriptions of parcels for the potential location of a new Detroit casino. It also authorizes seven new casinos outside Detroit and provides the legal descriptions of sites in Clam Lake Township in Wexford County, DeWitt Township in Clinton County, Pontiac in Oakland County, Clinton Township in Macomb County, Birch Run Township in Saginaw County, Grand Rapids in Kent County, and Romulus in Wayne County.
The Gaming Act allows only three casinos in Detroit. MCL 432.206(3). In addition to authorizing new casinos, the CFMMJ proposal contains several provisions that are different from, and in some places directly contrary to, various provisions in the Gaming Act. For example:
(1) The Gaming Act defines “casino” as “a building in which gaming is conducted.” It defines “gaming” as “to deal, operate, carry on, conduct, maintain or expose or offer for play any gambling game or gambling operation.” MCL 432.202(g) and (x).
The CFMMJ proposal uses the term “casino gaming,” which it defines as “gambling in each and all forms now and hereafter authorized within the state of Michigan and by federal law. The term ‘casino’ means the facility in which actual gaming activities are conducted.”
(2) The Gaming Act imposes an 18% wagering tax on the adjusted gross receipts from casinos. MCL 432.212(1).
The CFMMJ proposal would impose a 23% wagering tax on the casinos’ adjusted gross receipts.
(3) The Gaming Act allows a city to impose a municipal services fee on the casino operator (licensee) that is “equal to the greater of 1.25% of adjusted gross receipts or $4,000,000.00 in order to assist the city in defraying the cost of hosting casinos.” MCL 432.213(1).
The CFMMJ proposal would eliminate the ability of cities to impose municipal services fees and other assessments related to gaming. The language of the proposed amendment to Const 1963, art 4, § 41 includes:
No other taxes, fees, assessments or costs of any kind related directly to gaming or wagering shall be imposed upon a casino subject to the wagering tax described in this section, except for reasonable regulatory fees imposed by the State of Michigan for a license to operate the casino or for fines and penalties assessed by the State of Michigan for conduct prohibited by Michigan law.
(4) The Gaming Act allocates 55% of the wagering tax revenues to specified uses within the city where a casino is located and 45% of the wagering tax revenues to fund state public education. MCL 432.212(3).
The CFMMJ proposal would reallocate the wagering tax revenues. The taxes from Detroit casinos would be allocated as follows: 60% of the wagering tax revenues would fund police and fire services in Detroit, 20% would fund K-12 schools throughout the state, and 20% would fund road repairs and construction throughout the state. For wagering tax revenues generated by casinos outside Detroit, 30% of the revenues would be distributed to the state to fund K-12 public schools, 20% of the revenues would be distributed directly to all municipalities throughout the state to fund police and fire services, 20% would be distributed directly to the municipality where the casino is located, 20% to the county where the casino is located, 5% to the state to fund road repair and construction, and 5% to the state to fund gambling-addiction programs.
(5) The Gaming Act requires casinos to pay for all the state’s “regulatory and enforcement costs, compulsive gambling programs, casino-related programs and activities, casino-related legal services provided by the attorney general, and the casino-related expenses of the department of state police.” MCL 432.212a(l).
As stated, the CFMMJ proposal would prohibit other taxes, fees, assessments or costs of any kind related directly to gaming or wagering from being imposed on a casino, “except for reasonable regulatory fees imposed by the State of Michigan for a license to operate the casino” and fines or penalties for wrongful conduct.
(6) The Gaming Act governs the application procedure for casino licenses. It requires certain disclosures, criminal background and financial information, and other information that must be provided to (and reviewed and investigated by) the Gaming Control Board. MCL 432.205; MCL 432.206.
The CFMMJ would authorize the Gaming Control Board to establish rules for casino licensing. The proposed amendment does not require disclosure of investors or background checks of employees.
(7) The Gaming Act provides that “[a]lcoholic beverages shall only be sold or distributed in a casino pursuant to the Michigan liquor control act.” MCL 432.210.
The CFMMJ proposal entitles all casinos to liquor licenses: “All of the casinos authorized by this section shall be granted liquor licenses issued by the State of Michigan to serve alcoholic beverages on the premises.”
(8) As a condition for eligibility to apply for a casino license, the Gaming Act requires an applicant to have “entered into a certified development agreement with the city where the local legislative body enacted an ordinance approving casino gaming.” MCL 432.206(1)(b). Applicants must submit the required development agreements and documents with their applications. MCL 432.205(3).
The CFMMJ proposal does not require development agreements. To the extent that such agreements would impose fees or assessments by the city related to gaming, they would be prohibited.
C. PMC’S REQUEST TO THE SECRETARY TO REJECT THE CFMMJ PETITION
CFMMJ submitted its petition on June 26, 2012, to the Secretary for placement on the November ballot. In a July 17, 2012, letter to the Secretary, counsel for PMC urged the Secretary to determine that the CFMMJ proposal is ineligible for the ballot. PMC advanced three reasons in support of its position: (1) a single ballot proposal may not be used to amend both the constitution and an initiated law; (2) a ballot proposal that would amend an initiated law must comply with Const 1963, art 2, § 9; and (3) because the CFMMJ ballot proposal would amend the Gaming Act, the petition must have a title stating that objective and inform voters of the proposal’s effect on the initiated law by republishing the Gaming Act, in accordance with Const 1963, art 4, §§ 24 and 25.
The Director of Elections responded that no clear legal duty exists on the part of the Secretary “to decide whether a ballot question is constitutional.” The Secretary notified the Board of State Canvassers of the filing of the CFMMJ petition, and the Board began its canvass of the petition to determine the validity and sufficiency of the petition signatures pursuant to Const 1963, art 12, § 2.
III. THE COMPLAINT FOR MANDAMUS
PMC asks this Court to direct the Secretary to reject the petition. PMC claims that although the CFMMJ petition purports only to amend article 4, § 41 of the state constitution, the proposal also amends several provisions of the voter-initiated Gaming Act without complying with the constitutional procedures in art 2, § 9 for doing so. Additionally, the petition is silent about the proposed constitutional amendment’s effects on the Gaming Act. PMC contends that the proposal is ineligible for the ballot because the CFMMJ petition does not comply with the title and notice requirements of Const 1963, art 4, §§ 24 and 25 for altering, revising, or amending a law. PMC characterizes the CFMMJ proposal as an attempt to surreptitiously amend the Gaming Act by constitutional amendment, thereby circumventing the constitutional requirements for altering or amending a statute.
The Secretary answers that she has no legal duty to review the CFMMJ petition to determine whether it meets the constitutional prerequisites for acceptance and placement on the ballot. The Secretary maintains that determining the procedural constitutionality of the CFMMJ petition is a discretionary task that is outside the scope of her statutory responsibilities and authority. She also states that any such duty, if it exists, would not be ministerial in nature and therefore would not be a proper subject for mandamus relief.
CFMMJ intervened. CFMMJ challenges PMC’s standing to bring this mandamus action and the ripeness of this case for decision. With respect to the merits of the complaint, CFMMJ argues that its proposal seeks only to amend the constitution, and that CFMMJ has complied with the requirements of Const 1963, art 12, § 2 for doing so. CFMMJ concedes that the proposed constitutional amendment will limit or suspend some provisions of the Gaming Act and will impact the application and the enforcement of the Gaming Act. But CFMMJ maintains that the proposed constitutional amendment will not amend the Gaming Act in any way because the language of the Gaming Act will remain unchanged. CFMMJ argues that the procedural requirements for amending a statute are inapplicable because its proposal seeks to amend the constitution.
The Attorney General urges this Court to grant mandamus relief and to order the Secretary to refrain from placing the CFMMJ proposal on the ballot. The Attorney General maintains that a single ballot proposal cannot be used to amend both a voter-initiated law and the constitution. The Attorney General argues that CFMMJ’s compliance only with Const 1963, art 12, § 2 regarding publication of the constitutional provision that would be changed by the proposed constitutional amendment leaves voters uninformed about the effect that the proposal would have on the voter-initiated Gaming Act. The Attorney General argues that alteration or revision of the Gaming Act, which the CFMMJ proposal would affect, requires a title and publication of the affected provisions under Const 1963, art 4, §§ 24 and 25.
IV DISCUSSION AND ANALYSIS
A. JURISDICTION
This Court has jurisdiction over an original action for mandamus against a state officer. MCR 7.203(C)(2); MCL 600.4401(1). The Secretary is a state officer for purposes of mandamus. Citizens Protecting Michigan’s Constitution v Secretary of State, 280 Mich App 273, 282; 761 NW2d 210, aff'd in part 482 Mich 960 (2008). “Mandamus is the appropriate remedy for a party seeking to compel action by election officials.” Id. at 283.
B. STANDARD FOR MANDAMUS
A writ of mandamus is an extraordinary remedy. Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich App 362, 366; 820 NW2d 208 (2012). The plaintiff must show that (1) the plaintiff has a clear legal right to the performance of the duty sought to be compelled, (2) the defendant has a clear legal duty to perform the requested act, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result. Id. at 366-367. See also White-Bey v Dep’t of Corrections, 239 Mich App 221, 223-224; 608 NW2d 833 (1999). An act is ministerial if it is “prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Citizens Protecting Michigan’s Constitution, 280 Mich App at 286, quoting Carter v Ann Arbor City Attorney, 271 Mich App 425, 439; 722 NW2d 243 (2006) (quotation marks omitted).
C. STANDING
We reject CFMMJ’s challenge to PMC’s standing to bring this action. Michigan jurisprudence recognizes the special nature of election cases and the standing of ordinary citizens to enforce the law in election cases. Deleeuw v Bd of State Canvassers, 263 Mich App 497, 505-506; 688 NW2d 847 (2004). See also Helmkamp v Livonia City Council, 160 Mich App 442, 445; 408 NW2d 470 (1987) (“[I]n the absence of a statute to the contrary, ... a private person .. . may enforce by mandamus a public right or duty relating to elections without showing a special interest distinct from the interest of the public.” [Quotation marks omitted.]). The general interest of ordinary citizens to enforce the law in election cases is sufficient to confer standing to seek mandamus relief. See Citizens Protecting Michigan’s Constitution, 280 Mich App at 282 (permitting a ballot question committee to challenge a petition).
D. RIPENESS AND THE NEED FOR A THRESHOLD DETERMINATION
Our Supreme Court has recognized that a ballot issue controversy is ripe for review when “it is not dependent upon the Board of Canvassers’ counting or consideration of the petitions but rather involves a threshold determination whether the petitions on their face meet the constitutional prerequisites for acceptance.” Michigan United Conservation Clubs v Secretary of State, 463 Mich 1009; 625 NW2d 377 (2001). See also Citizens Protecting Michigan’s Constitution, 280 Mich App at 282-283 (rejecting a ripeness challenge that was premised on the fact that the Board had not decided whether to certify an initiative petition). PMC’s complaint for mandamus requires us to make a “threshold determination” whether the CFMMJ proposal qualifies for placement on the ballot according to constitutional prerequisites. In that context and on that issue, this case is ripe for adjudication.
We emphasize that the constitutional issue before us is limited to the procedure employed by CFMMJ to alter the Gaming Act by means of a constitutional amendment and the CFMMJ proposal’s eligibility for the ballot. We do not consider the constitutionality of the proposed amendment itself, which would be premature before the voters adopt the proposal. See Leininger v Secretary of State, 316 Mich 644, 651; 26 NW2d 348 (1947) (noting that substance of initiative petition was not being questioned in writ of mandamus); Hamilton v Secretary of State, 212 Mich 31, 34; 179 NW 553 (1920) (holding that issue of constitutionality of initiative petition was not ripe for review). In Citizens Protecting Michigan’s Constitution, we adopted Justice OSTRANDER’s articulation of this important distinction, first expressed in 1918 in Scott v Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918), and reaffirmed in Leininger:
In ... Leininger the Court carved out an exception to the Hamilton rule, holding that a constitutionally fatal defect in an initiative petition supported the issuance of a writ of mandamus prohibiting the Secretary of State from transmitting the proposed law. The Leininger Court explained that, unlike in Hamilton, “[i]n the case at bar .. . we are not concerned with the question of whether the substance of the proposed law is violative of the Federal or State Constitutions. Here the question is whether the petition, in form, meets the constitutional requirement so as to qualify it for transmittal to the legislature and submission to the people.” [Leininger, 316 Mich] at 651. On this point, the words of Chief Justice OSTRANDER in Scott v Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918), are most instructive:
“Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution. [Emphasis added.]” [Citizens Protecting Michigan’s Constitution, 280 Mich App at 289.][ ]
The same principle applies here, making PMC’s request for mandamus a proper subject for this Court’s consideration. Because the challenges in this case implicate this “threshold determination” whether the petition meets the constitutional prerequisites for acceptance, this case is ripe for this Court’s consideration. Id. at 283.
E. MINISTERIAL DUTY OR DISCRETIONARY JUDGMENT
This Court clarified the nature of the Secretary’s legal duty in this context in Citizens Protecting Michigan’s Constitution. In that original action seeking mandamus relief to keep an initiative from the general election ballot, this Court explained that it was for this Court to examine the constitutional amendment initiative and determine its eligibility for the ballot in light of constitutional prerequisites for acceptance. Once that threshold determination was made, the Secretary’s task of rejecting the petition was ministerial.
In Citizens Protecting Michigan’s Constitution, the plaintiffs sought a writ of mandamus directing the Secretary and the Board of State Canvassers to reject an initiative petition filed by the intervening defendant Reform Michigan Government Now! (RMGN). The petition proposed a single constitutional amendment for the November 2008 general election ballot that would comprehensively restructure state government. Id. at 275. The plaintiffs argued that the RMGN proposal was ineligible for the ballot because its provisions amounted to a general revision of the constitution that could only be accomplished by a constitutional convention and because the proposal served more than a single purpose. Id. at 281-282. This Court recognized a clear legal duty of the Secretary that a writ of mandamus can enforce once the Court makes its threshold determination of constitutional compliance:
[Assuming the Board and the Secretary have no clear legal duty to determine whether the RMGN initiative petition is an “amendment” to, or a “general revision” of, the constitution, or a duty to determine whether the RMGN initiative petition serves more than one purpose, then this Court must make the “threshold determination” that the RMGN initiative petition does not meet the constitutional prerequisites for acceptance. And, at that point, the Board and the Secretary have a clear legal duty to reject the RMGN petition. In other words, in this case, our order would not enforce any duty on the part of the Board and the Secretary to make the “threshold determination” whether the RMGN initiative petition is an "amendment” or a “general revision,” or whether it serves more than one purpose. Rather, our order would enforce a duty on the part of the Board and the Secretary to reject the RMGN initiative petition in light of our “threshold determination” that it does not meet the constitutional prerequisites for acceptance. [Id. at 291 (some emphasis added).]
This Court concluded that the subsequent act of the Secretary in rejecting the challenged initiative petition after the Court made its threshold determination “would be ministerial in nature because it would not require the exercise of judgment or discretion.” Id. at 291-292. Likewise, this Court must determine whether the CFMMJ petition satisfies the constitutional requirements for placement on the general election ballot. The Secretary will then have the ministerial task of rejecting the petition, or not, in accordance with this Court’s decision.
F. RELEVANT CONSTITUTIONAL PROVISIONS
Among the rights that the Michigan Constitution reserves to the people of this state are the right to amend their constitution, to enact laws by initiative, and to amend initiated laws. The constitution prescribes different procedures for exercising these rights.
Const 1963, art 12, § 2 allows voters to amend the constitution by voter initiative as follows:
Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. Such petitions shall be filed with the person authorized by law to receive the same at least 120 days before the election at which the proposed amendment is to be voted upon. Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law. The person authorized by law to receive such petition shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to the election at which the proposed amendment is to be voted upon.
Any amendment proposed by such petition shall be submitted, not less than 120 days after it was filed, to the electors at the next general election. Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law.
The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment.
If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail.
Const 1963, art 2, § 9 protects the people’s right to enact laws through initiative and prescribes the means for amending or repealing a voter-initiated law. Amendment or repeal of an initiated law can only be accomplished “by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature.” Id. Article 2, § 9 provides in full:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
No law as to which the power of referendum properly has been invoked shall be effective thereafter unless approved by a majority of the electors voting thereon at the next general election.
Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is receive by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided.
If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election. The legislature may reject any measure so proposed by initiative petition and propose a different measure upon the same subject by a yea and nay vote upon separate roll calls, and in such event both measures shall be submitted by such state officer to the electors for approval or rejection at the next general election.
Any law submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon at any election shall take effect 10 days after the date of the official declaration of the vote. No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature. Laws approved by the people under the referendum provision of this section may be amended by the legislature at any subsequent session thereof. If two or more measures approved by the electors at the same election conflict, that receiving the highest affirmative vote shall prevail.
The legislature shall implement the provisions of this section. [Emphasis added.]
The Gaming Act does not provide other means for its amendment. Therefore, either a vote of the electorate or a three-fourths vote in each house of the legislature is required to amend the Gaming Act. Const 1963, art 2, §9.
Clearly, Const 1963, art 2, § 9 and art 12, § 2 prescribe different procedures that must be satisfied before an initiative is submitted to the electorate, depending on the type of initiative. A legislative initiative requires petitions signed by 8% of registered electors; a constitutional amendment requires petitions signed by 10% of registered electors. Unlike a constitutional amendment proposal, a legislative initiative must be submitted to the legislature for adoption or rejection. These constitutional provisions both authorize amendment by a vote of the electors, but they set different procedures for accomplishing these different objectives.
Const 1963, art 4, § 24 mandates that a law can have only one object and must have a title that expresses its object: “No law shall embrace more than one object, which shall be expressed in its title.”
The revision, alteration, or amendment of a law implicates the procedures of Const 1963, art 4, § 25. The law as it exists must be published to show the effect of the proposed changes. Const 1963, art 4, § 25 provides:
No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.
This publication requirement applies to the revision or the alteration of a law by the people through the initiative process. See Auto Club of Mich Comm for Lower Rates Now v Secretary of State (On Remand), 195 Mich App 613, 622-624; 491 NW2d 269 (1992) (finding that the failure to republish at length certain statutory provisions in their proposed amended forms may not be considered before the initiative is submitted to the electorate for a vote).
G. APPLICATION OF THE PREREQUISITES OF CONST 1963, ART 2, § 9
Const 1963, art 2, § 9 and Const 1963, art 12, § 2 prescribe separate procedures for amending voter-initiated laws and for amending the constitution, respectively. They are not interchangeable alternatives. These distinct procedures for different objectives must be respected. Citizens Protecting Michigan’s Constitution, 280 Mich App at 295. Accordingly, CFMMJ may not use a constitutional amendment under art 2, § 12 to effect an amendment of the Gaming Act. If CFMMJ seeks to amend the Gaming Act, it must satisfy the dictates of art 2, § 9.
On its face, the CFMMJ petition purports only to amend Const 1963, art 4, § 41. As required by article 12, § 2, the petition indicates the language that it proposes to strike from article 4, § 41, as well as the language that the proposed amendment would add. The petition contains no reference to the Gaming Act. Whether disclosure of the CFMMJ proposal’s effects on the Gaming Act is required depends upon whether the CFMMJ proposal is properly deemed an amendment of the Gaming Act.
We need not decide whether the CFMMJ proposal constitutes an amendment of the Gaming Act, thereby requiring compliance with the procedures in Const 1963, art 2, § 9 for submission to the voters. The republication requirement of Const 1963, art 4, § 25 applies not only to efforts to amend an existing law, but also to proposals that would revise or alter a law. Although similar, principles of construction require us to give meaning to each term, “revise,” “alter,” and “amend,” lest any one of them be rendered surplusage or nugatory. Apsey v Mem Hosp, 477 Mich 120, 127; 30 NW2d 695 (2007). To the extent that the CFMMJ proposal revises or alters the Gaming Act, it must comply with Const 1963, art 4, § 25.
H. APPLICATION OF CONST 1963, ART 4, § 25
As set forth, Const 1963, art 4, § 25 provides that “[n]o law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.” This notice requirement has a long history and its significance is deeply rooted in this state’s constitutional jurisprudence. Const 1963, art 4, § 25 was also article 4, § 25 of the 1850 Constitution, under which our Supreme Court decided Mok v Detroit Bldg & Savings Ass’n No 4, 30 Mich 511 (1875). Alan v Wayne Co, 388 Mich 210, 273; 200 NW2d 628 (1972). Justice COOLEY wrote of article 4, § 25 in Mok:
No one questions the great importance and value of the provision, nor that the evil it was meant to remedy was one perpetually recurring, and often serious. Alterations made in the statutes by mere reference, and amendments by the striking out or insertion of words, without reproducing the statute in its amended form, were well calculated to deceive and mislead, not only the legislature as to the effect of the law proposed, but also the people as to the law they were to obey, and were perhaps sometimes presented in this obscure form from a doubt on the part of those desiring or proposing them of their being accepted if the exact change to be made were clearly understood. [Mok, 30 Mich at 515-516.]
In Advisory Opinion re Constitutionality of 1972 PA 294; 389 Mich 441; 208 NW2d 469 (1973), our Supreme Court reiterated the import of art 4, § 25 in Constitution 1963. The Court interpreted art 4, § 25 in the context of addressing the constitutionality of an amendment to the no-fault act. The Court recognized the significant purpose of § 25 to provide notice to the public of the full effects of a proposed amendment:
The language of § 25 is quite clear. It says succinctly and straightforwardly that no law (meaning statutory enactment) shall be revised, altered or amended by reference to its title only. The constitutional language then proceeds to state how it shall be done (i.e. the sectionfs] of the act in question shall be amended by reenacting and republishing at length).
There are only two sentences in § 25. Although the second word is ‘.‘law”, it is obvious from the reading of the entire section that “law” means act or section of an act. Section 25 is worded to prevent the revising, altering or amending of an act by merely referring to the title of the act and printing the amendatory language then under consideration. If such a revision, alteration or amendment were allowed, the public and the Legislature would not be given notice and would not be able to observe readily the extent and effect of such revision, alteration or amendment. [Id., 389 Mich at 470.]
Looking to precedent, the Advisory Opinion Court quoted Justice COOLEY in People v Mahaney, 13 Mich 481 (1865):
“This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that the legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws.” (p 497.)
This citation indicates that another reason for the language in § 25 is to require that notice be given to the Legislature and the public of what is being changed and the content of the act as revised, altered or amended. ...
“An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was introduced into the law, and the constitution wisely prohibited such legislation.” [Advisory Opinion, 389 Mich at 472-473, quoting Mahaney, 13 Mich at 497.]
The effects of the proposed constitutional amendment on the Gaming Act are not minor. If adopted, the CFMMJ proposal will significantly limit, suspend, or invalidate specific provisions of the statute. Among other changes to the Gaming Act, the constitutional amendment will authorize more casinos than the Gaming Act allows, increase the wagering tax rate, change the statute’s allocation of tax revenues, remove the Gaming Act’s requirement that casinos’ liquor licenses be issued according to the liquor control act and instead mandate such licenses, and alter the duties of the Michigan Gaming Control Board. If Michigan voters are presented with and adopt the CFMMJ proposal, the constitutional amendment will supersede numerous provisions of the Gaming Act because the authority of a constitutional amendment is superior to statutory authority. See Dunn v Dunn, 105 Mich App 793, 805; 307 NW2d 424 (1981) (noting that when statutes conflict with our constitution, the latter controls) (KALLMAN, J., concurring). Although the CFMMJ proposal does not amend the Gaming Act by changing its language, the proposal nonetheless thoroughly revises the Act.
If the CFMMJ proposal is allowed to be placed on the ballot, not only would it run afoul of the republication requirement of Const 1963, art 4, § 25, but it would foster the harm that § 25 seeks to prevent. The constitutional amendment would substantially change the Gaming Act, yet the public “would not be given notice and would not be able to observe readily the extent and effect of such revision, alteration, or amendment.” Advisory Opinion, 389 Mich at 470.
The CFMMJ petition does not publish at length the sections of the Gaming Act that the proposed constitutional amendment would alter as required by Const 1963, art 4, § 25. The petition contains no reference to the Gaming Act. The petition heading states only that it proposes a constitutional amendment; the petition discloses nothing about the substantial changes to the application and enforcement of the Gaming Act that would result from adoption of the proposal. Indeed, the petition gives no indication to voters that the CFMMJ proposal would alter parts of the voter-initiated Gaming Act in any way. Because the proposed amendment would directly alter provisions of the Gaming Act without republishing the affected provisions, the CFMMJ proposal fails to satisfy Const 1963, art 4, § 25. This failure makes it ineligible for placement on the ballot.
We neither address nor consider the wisdom of the CFMMJ proposal. Whether the goals of the CFMMJ proposal are desirable, or whether its changes to the Gaming Act are sound policy, are not before us. We simply apply the procedural requirements that the constitution demands.
Our decision today gives effect to the publication requirement of Const 1963, art 4, § 25 and furthers its purpose of ensuring that the public is informed of the effects of proposed changes to existing law. By giving effect to article 4, § 25, the public will be assured of the opportunity to “mak[e] the necessary examination and comparison” and “to become apprised of the changes made in the laws.” Advisory Opinion, 389 Mich at 472-473. This constitutional safeguard is as crucial to the people’s exercise of their right to amend their constitution, perhaps more so, as it is to their use of the initiative to enact or amend existing law.
We grant the relief requested in the complaint for a writ of mandamus, and we have concurrently issued an order directing the Secretary to reject the CFMMJ petition and to disallow the proposal from the ballot.
No costs, a public question being involved. We do not retain jurisdiction. This opinion is to have immediate effect, MCR 7.215(F)(2).
OWENS, EJ., concurred with O’CONNELL, J.
We granted the motion of the Attorney General to file an amicus curiae brief. Protect MI Constitution v Secretary of State, unpublished order of the Court of Appeals, entered August 3, 2012 (Docket No. 311504).
Const 1963, art 2, § 9 provides that an initiated law becomes effective ten days after the official declaration of the vote.
1997 PA 69 defined the term “city” as a
local unit of government other than a county which meets all of the following criteria:
© has a population of at least 800,000 at the time a license is issued.
(ii) is located within 100 miles of any other state or country in which gaming was permitted on December 5, 1996.
(Hi) had a majority of voters who expressed approval of casino gaming in the city. [MCL 432.202©.]
The CFMMJ proposal is written in all capital letters in the petition. However, for ease of reading it is reproduced in this opinion in lower case letters.
MCL 168.477(1) requires the Board to certify the petition as sufficient or insufficient at least two months before the general election, which in this case is September 7, 2012. When PMC filed its complaint for mandamus, the CFMMJ petition was before the Board of State Canvassers, and the Board’s decision regarding the sufficiency of the petition was pending.
The Secretary takes no position regarding the merits of PMC’s allegations regarding the constitutional validity of the CFMMJ proposal, but she recognizes her ministerial duty to act in accordance with this Court’s determination whether the proposal meets the constitutional prerequisites for acceptance.
We granted CFMMJ’s motion to intervene. Protect MI Constitution v Secretary of State, unpublished order of the Court of Appeals, entered August 2, 2012 (Docket No. 311504).
Scott and Leininger interpreted previous versions of our constitution.
The proposed constitutional amendment in Citizens Protecting Michigan’s Constitution included provisions to: modify initiative and referendum procedures, establish a new office of elections in the executive branch, freely allow absentee ballot voting, reduce the number of legislators in the state house and senate, reduce the number of appellate judgeships and Court of Appeals districts while adding circuit court judgeships, change procedures for legislative districting, reduce salaries and alter pension benefits of certain elected officials, impose limits on lobbying activities, change election procedures for selecting the governor and the lieutenant governor, make changes to the governor’s and the Legislature’s authority in certain matters, and replace the Judicial Tenure Commission with a new body composed of nonlawyers. Id. at 279-281.
Article 4, § 25 of the Constitution of 1850 was worded and punctuated slightly differently than in the current version: “No law shall he revised, altered or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended shall be reenacted and published at length.” “Except for some punctuation and some rearrangement of words in the latter half of the provision, this language has continued through to this date (also see 1908 Cont art 5, § 21, § 22).” Advisory Opinion re Constitutionality of 1972 PA 294; 389 Mich 441, 469-470; 208 NW2d 469 (1973).
The Attorney General stated at oral argument that amending both the constitution and an initiated law would require separate petitions. Whether two petitions would be necessary to accomplish CFMMJ’s casino gaming expansion goals, or whether one petition would suffice if that petition republished both the Gaming Act provisions and constitutional provisions that the CFMMJ proposal would affect, is not before us. Accordingly, we leave that question for another day. | [
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Markey, J.
Defendant appeals by right his jury trial convictions of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(l)(b)(ii). The victim of the offenses was defendant’s 13-year-old granddaughter. The trial court sentenced defendant to two concurrent prison terms of 12 to 30 years and to lifetime electronic monitoring, MCL 750.520n. Defendant asserts two evidentiary trial errors and also asserts that lifetime electronic monitoring is not authorized by law in this case. Regarding the last issue, we would vacate the order for lifetime electronic monitoring but for MCR 7.215(J)(1), which requires that we follow the rule of law established in People v Brantley, 296 Mich App 546; 823 NW2d 290 (2012). We explain our disagreement with Brantley in part II below and request that a conflict panel be convened. MCR 7.215(J)(2) and (3). We affirm.
I. EVIDENTIARY ISSUES
Defendant raises two evidentiary issues on appeal, framing each as a violation of his constitutional right to present a defense. Defendant first argues he was denied his constitutional right to present a defense because the trial court precluded presentation of purported evidence that his daughter Jennifer, the victim’s mother, had in the past required her children to steal things for her. The defense theorized this evidence should be admitted under MRE 404(b) to show that Jennifer had a plan, scheme, or system of enticing her own daughters into dishonest behavior to serve her own ends and that Jennifer and her daughters fabricated the allegations against defendant. Second, defendant asserts he was denied his constitutional right to present a defense when the trial court precluded testimony under MRE 404(a)(1) regarding defendant’s reputation for positively interacting with teenagers at the Kent County Juvenile Detention Facility where defendant had been employed for many years as a youth specialist. To address defendant’s arguments, we must first summarize some of the evidence presented at trial.
A. SUMMARY OF TRIAL TESTIMONY
Defendant’s convictions arose out of a sexual assault committed on his granddaughter on October 26, 2008, when she was 13 years old. The victim did not live with defendant at the time, but that night she spent the night at his apartment after he picked her up from the Kent County Juvenile Detention Facility. She had been arrested for shoplifting. Matthew Fenske, superintendent of the detention facility, testified that records established that the victim was released to defendant’s custody on the day in question. She returned with defendant to his apartment and slept in his bed that night. The victim testified that twice during the night defendant attempted vaginal intercourse, partially penetrating her. The victim also testified that defendant molested her and her sisters (JR and DR) on other occasions.
The trial court permitted the prosecution to present evidence under MRE 404(b) of sexual incidents between defendant and both JR and Jennifer. JR testified that defendant sexually touched her in 2004, when she, her mother, and siblings were staying with defendant. JR was 13 at the time. During the visit, JR sometimes slept in defendant’s bed. One time, when the victim was also in bed with their grandfather, JR awoke to find defendant’s hand in her pants. JR testified defendant put his fingers in her vagina while he masturbated himself.
DR testified that although she had slept in her grandfather’s bed once, nothing inappropriate had happened. DR also testified she had not seen anything inappropriate. DR remembered that the victim tried to wake her one night, but she could not understand what the victim was saying. According to DR, one time the victim had tried to tell her something about defendant and made “a little joke” about something going on. When DR stated that she was “gonna tell momma,” the victim stated, “I’m just playing,” and then, “I was just lying.”
Jennifer testified that growing up, she did not live with her father but when she was 6 or 7 years old she started spending summers with him. When she was about 11 years old, she stayed with defendant for a couple of weeks when he was living in Chicago. According to Jennifer, one night defendant had sexual intercourse with her. Jennifer testified that she ran away for few days, but was returned to defendant’s home. She never told anyone what happened, but she refused any further childhood visits with defendant.
During the investigation of this case, Jennifer secretly tape-recorded a conversation with defendant. In the conversation, defendant recalled “what happened between [Jennifer] and [defendant] when [Jennifer] was younger[.]” Defendant explained the incident as having woken up with Jennifer on top of him moving around and he was “feeling unloved” and “so alone.” When confronted with the victim’s allegations, defen dant did not deny them, but said he did not remember because of his use of drugs and alcohol.
Detective Daniel Adams interviewed defendant at the Kent County Juvenile Detention Facility where defendant was working. A tape recording of this interview was played for the jury. During the interview, defendant said he could not remember the alleged incidents because of drug and alcohol abuse.
In his defense, defendant presented the testimony of several relatives who were living in the Chicago household when Jennifer visited. They testified they observed no inappropriate sexual activity. Two nieces and a nephew testified they had stayed with defendant when they were in high school or grade school and nothing inappropriate happened. Another nephew, who was a minister, a high school principal, and a former superintendent at the detention facility, testified to defendant’s stellar reputation for truth and honesty.
Defendant’s wife, Tammi King, testified that on the night defendant picked the victim up from the detention facility, she observed defendant and the victim in the kitchen arguing over the shoplifting incident. Defendant slapped the victim, and Mrs. King tried to defuse tensions by offering to fix the victim something to eat. Afterward, she escorted the victim to an upstairs bedroom. Mrs. King went back downstairs, but later checked to confirm the victim was asleep in the upstairs bedroom. She went back downstairs, finished her work in the kitchen, and retired for the evening with defendant in their downstairs bedroom.
Defendant testified, denying that he sexually abused the victim, or JR, or Jennifer. With respect to Jennifer, however, he remembered a time when she was visiting only for a short time, maybe a week, and Jennifer had climbed atop him and rubbed against him in a sexual manner. Defendant testified that he did not sexually respond. Defendant also testified that on one occasion the victim behaved similarly. He denied he initiating any sexually motivated contact with either Jennifer or the victim.
B. STANDARD OP REVIEW
A trial court’s decision whether to admit or exclude evidence will be affirmed in the absence of a clear abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). The trial court abuses its discretion when its decision is outside the range of principled outcomes. People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010). We review de novo the trial court’s rulings on preliminary questions of law regarding the admissibility of evidence, such as the application of a statute or rule of evidence. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). A preserved trial error in admitting or excluding evidence is not grounds for reversal unless, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome determinative. Id. at 495-496. Preserved nonstructural trial error of constitutional magnitude will not merit reversal if it is harmless beyond a reasonable doubt. People v Graves, 458 Mich 476, 482; 581 NW2d 229 (1998).
Whether a defendant was denied his constitutional right to present a defense is a question of law we review de novo. People v Unger, 278 Mich App 210, 247; 749 NW2d 272 (2008). In this case, defendant did not preserve his constitutional claims by presenting them to the trial court. People v Bauder, 269 Mich App 174, 177-178; 712 NW2d 506 (2005). Appellate review of unpreserved constitutional claims is for plain error affecting the defendant’s substantial rights. People v Shafier, 483 Mich 205, 219-220; 768 NW2d 305 (2009). This requires the defendant to show that the plain error affected the outcome of the proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Moreover, reversal is warranted only if the error resulted in the conviction of an innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial proceedings regardless of the guilt or innocence of the accused. Id.
C. RIGHT TO PRESENT A DEFENSE
Defendant’s claim — that his constitutional right to present a defense was violated by the trial court’s ruling excluding alleged evidence that Jennifer required her children to steal things for her benefit — is without merit. There is no doubt that based on the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s Compulsory Process or Confrontation Clauses, “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane v Kentucky, 476 US 683, 690; 106 S Ct 2142; 90 L Ed 2d 636 (1986) (citation omitted); see also People v Aspy, 292 Mich App 36, 48-49; 808 NW2d 569 (2011). “Few rights are more fundamental than that of an accused to present evidence in his ... own defense.” Unger, 278 Mich App at 249. But this right is not unlimited and is subject to reasonable restrictions. United States v Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d 413 (1998) (opinion by Thomas, J). The right to present a complete defense “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973). Michigan, like other states, “has a legitimate interest in promulgating and implementing its own rules concerning the conduct of trials.” Unger, 278 Mich App at 250. And our Supreme Court has “broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Scheffer, 523 US at 308 (opinion by Thomas, J.). Thus, an “accused must still comply with ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984), quoting Chambers, 410 US at 302. The Michigan Rules of Evidence do not infringe on a defendant’s constitutional right to present a defense unless they are “ ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Scheffer, 523 US at 308 (opinion by Thomas, J.), quoting Rock v Arkansas, 483 US 44, 56; 107 S Ct 2704; 97 L Ed 2d 37 (1987).
In this case, while defendant presents arguments that the trial court misapplied the Michigan Rules of Evidence by excluding certain evidence, he presents no argument whatsoever that any particular rule is arbitrary or disproportionate to the purposes it was designed to serve, either in general or as applied to the facts of this case. “An appellant’s failure to properly address the merits of his assertion of error constitutes abandonment of the issue.” People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). Moreover, it is patent from a review of the trial record that defendant was allowed to present evidence in the form of his testimony, that of his wife, and of several relatives, which, if the jury believed, would have provided defendant a complete defense to the charges brought against him. Consequently, we reject defendant’s claim that constitutional error occurred, either in the exclusion of other acts evidence or character evidence.
D. OTHER ACTS EVIDENCE
We also conclude that the trial court’s ruling excluding purported evidence of theft by Jennifer and her daughters was within the range of principled outcomes, and, therefore, not an abuse of discretion. See Feezel, 486 Mich at 192.
Defendant argues that the trial court erred in its pretrial ruling by relying on the prosecutor’s argument that because no conviction existed, the proposed evidence was improper impeachment evidence of a crime under MRE 609. On appeal the prosecution concedes that MRE 609 is not controlling on this issue, and that the trial prosecutor may have misspoken by citing MRE 609 rather than MRE 608, which permits attacking or supporting the credibility of witness with testimony of opinion or reputation regarding a witness’s “character for truthfulness or untruthfulness ... .” MRE 608(a). And, in general, “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.” MRE 608(b). We decline this invitation to speculate, but we do agree with the prosecution’s argument that this Court “will not reverse a trial court decision when the lower court reaches the correct result even if for a wrong reason.” Bauder, 269 Mich App at 187. Moreover, in revisiting this issue during the course of the trial, the court ruled that the proposed evidence was not relevant, MRE 401,- and, therefore, was inadmissible, MRE 402. We agree.
We initially note that the prosecution disputes that the excluded evidence exists, at least in admissible form. In arguing this issue during the trial, the prosecutor stated that the allegations regarding Jennifer came from unsubstantiated, anonymous hearsay contained in a Children’s Protective Services (CPS) report. Defense counsel conceded the source of the information regarding Jennifer was a CPS report, apparently provided to the defense during discovery. Defense counsel never made, nor offered to make, an offer proof regarding what witnesses he would be able to present and what admissible testimony would substantiate the claims regarding Jennifer. See MRE 103. This failing by itself would support finding that the trial court did not abuse its discretion by excluding the proffered evidence. See People v Paquette, 114 Mich App 773, 781; 319 NW2d 390 (1982) (holding no basis for reversal exists when nothing in the record indicates the defendant could have produced the excluded evidence).
Additionally, we find without merit defendant’s argument that the evidence should have been admitted under MRE 404(b) to show Jennifer had a plan, system, or scheme of manipulating her daughters into deceitful conduct. We recognize that MRE 404(b) is a rule of inclusion and allows evidence of other acts committed by witnesses, provided the evidence is offered for a proper purpose, is relevant, and the relevance of the evidence is not substantially outweighed by the danger of unfair prejudice. People v VanderVliet, 444 Mich 52, 64 n 13, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994); People v Rockwell, 188 Mich App 405, 409-410; 470 NW2d 673 (1991); MRE 403. But the touchstone of admissibility of evidence under MRE 404(b), as with all other evidence, is logical relevance. VanderVliet, 444 Mich at 61-62. Clearly, evidence is relevant when it affects the credibility of the victim and when it affects the credibility of witnesses who enhance the victim’s credibility. As the finder of fact, the jury is generally entitled to weigh all evidence that might bear on the truth or accuracy of a witness’s testimony. People v Layher, 464 Mich 756, 765; 631 NW2d 281 (2001). In this case, however, defendant has failed to establish a logical link between the proffered other acts concerning theft and fabrications of allegations of sexual abuse. Because defendant failed to establish that the purported evidence was logically relevant, he failed to establish a touchstone element necessary for admissibility under MRE 404(b). VanderVliet, 444 Mich at 61-62, 74. Consequently, the trial court correctly ruled that the proposed evidence was not relevant, MRE 401, and thus was inadmissible, MRE 402.
Also unpersuasive is defendant’s theory of admissibility: that the other acts evidence showed Jennifer used a common plan or scheme to manipulate her daughters into dishonest behavior to serve her own ends. To establish logical relevance under this theory of admissibility, the other acts and defendant’s claim of fabrication must be “sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system.” People v Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000). To meet this criterion of similarity between the other acts (theft) and the fact to be proved (fabrication of sexual acts), there must be “a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” Id. at 64-65, quoting 2 Wigmore, Evidence (Chadbourn rev), § 304, p 249 (emphasis omitted). Jennifer’s alleged common plan or scheme to manipulate her daughters into stealing things for her is too dissimilar to the victim’s assertions of sexual abuse to demonstrate a common plan or scheme.
For all these reasons, we conclude that the trial court did not abuse its discretion by excluding the purported evidence of theft by Jennifer and her daughters.
E. CHARACTER EVIDENCE
Defendant argues that the trial court erred when it ruled that Fenske would not be permitted to answer defendant’s question on cross-examination regarding defendant’s reputation for interacting with teenagers at the Kent County Juvenile Detention Facility. Specifically, defendant asserts the testimony should have been permitted under MRE 404(a), which provides, in pertinent part:
Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Evidence of a pertinent trait of character offered by an accused....
So, defendant argues, the court erred by restricting him to presenting evidence of reputation under MRE 608.
The prosecution concedes that MRE 404(a)(1) is the pertinent rule regarding the character evidence at issue and that an accused has “an absolute right to introduce evidence of his character to prove that he could not have committed the crime.” People v Whitfield, 425 Mich 116, 130; 388 NW2d 206 (1986). Nevertheless, the prosecution asserts error did not occur because defendant’s reputation for interaction with teenagers at his workplace is not probative of his character regarding sexual abuse of teenage females in his own household. The prosecution further contends that even if the trial court erred, the error was harmless because the evidence would have provided little benefit to defendant, see id. at 129, and would have “opened the door” to evidence of defendant’s inappropriate behavior with female coworkers. MRE 405(a).
We agree with defendant that the trial court should have permitted him to introduce the proposed character evidence under MRE 404(a)(1). Whitfield, 425 Mich at 130. But we also agree with the prosecution that the error was harmless. For the reasons discussed in part 1(C), the error is ordinary nonconstitutional trial error. The preserved trial error of excluding the proposed character evidence is not grounds for reversal because, after an examination of the entire cause, it does not affirmatively appear that it is more probable than not that the error was outcome determinative. Lukity, 460 Mich at 495-496.
First, character evidence of the type excluded here has limited value. “Both the value and the wisdom of presenting character evidence have been doubted. It is thought that such evidence typically adds little of relevance to the determination of the actual issues in a case and is likely to inject extraneous elements.” Whitfield, 425 Mich at 129. Moreover, the fact that defendant likely behaved appropriately with teenage detainees was implicitly already before the jury, which had heard evidence of defendant’s longtime employment as a youth specialist at the juvenile detention facility. It would be reasonable for the jury to infer that if defendant had a reputation for behaving inappropriately with teenage detainees, he would not have remained employed.
Second, as the prosecution argues, allowing the character evidence might have “opened the door” to cross-examination regarding specific instances of behavior, and the net effect of the evidence might have been more harmful than helpful to defendant. MRE 405(a).
Third, defendant was able to present direct evidence, through the testimony of several relatives, that he behaved appropriately with respect to teenage relatives in his home. This testimony was more pertinent to the charged offenses than Fenske’s testimony could have been regarding defendant’s reputation at his workplace.
Finally, the prosecution presented a very strong case of defendant’s guilt. Defendant presented his own testimony that the offenses did not occur and that of his wife that the offenses could not have occurred. The jury obviously found the prosecution’s evidence more credible than that of defendant and his wife. In light of the marginal value of Fenske’s excluded testimony and our examination of the entire case, we are convinced that it does not affirmatively appear more probable than not that the error was outcome determinative. Lukity, 460 Mich at 495-496.
II. LIFETIME ELECTRONIC MONITORING
The Legislature in 2006 enacted several tie-barred acts providing for lifetime electronic monitoring of certain sex offenders by the Department of Corrections. See 2006 PA 165 through 172. Defendant argues that reading these provisions together, MCL 750.520n controls over MCL 750.520b(2)(d) so that lifetime electronic monitoring does not apply to persons convicted of CSC-I unless the victim was under 13 years of age. The prosecution argues that lifetime electronic monitoring applies to all persons convicted of CSC-I regardless of the victim’s age, i.e., the age of the victim is pertinent only to persons convicted of second-degree criminal sexual conduct (CSC-II), MCL 750.520c. This Court agreed with the prosecution’s position in Brantley, 296 Mich App at 559, holding “that any defendant convicted of CSC-I under MCL 750.520b, regardless of the age of the defendant or the age of the victim, must be ordered to submit to lifetime electronic monitoring.” Dissenting in Brantley, Judge K. F. KELLY found persuasive several unpublished opinions of this Court that agreed with defendant’s position. Id. at 564-567 (K. F. KELLY, J., dissenting), citing People v Bowman, unpublished opinion per curiam of the Court of Appeals, issued November 9, 2010 (Docket No. 292415), lv den 489 Mich 898 (2011); People v Quintana, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket No. 295324), lv den 490 Mich 894 (2011); People v Floyd, unpublished opinion per curiam of the Court of Appeals, issued September 20, 2011 (Docket No. 297393), lv den 491 Mich 886 (2012); and People v Hampton, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2011 (Docket No. 297224). But for MCR 7.215(J)(1), which requires that we follow Brantley, we would vacate the order for lifetime electronic monitoring.
A. STANDARD OF REVIEW
Defendant failed to object to the imposition of lifetime electronic monitoring in the trial court; therefore, he failed to preserve this issue for appeal. We review an unpreserved claim for plain error affecting substantial rights. Carines, 460 Mich at 763. In this case, defendant raises an issue involving the interpretation and application of a statute, which this Court reviews de novo. People v Kern, 288 Mich App 513, 516; 794 NW2d 362 (2010).
B. PERTINENT STATUTES
The Penal Code, for purposes of the chapter concerning criminal sexual conduct, defines “electronic monitoring” to mean “that term as defined in section 85 of the corrections code of 1953, 1953 PA 232, MCL 791.285.” MCL 750.520a(c) as added by 2006 PA 171.
MCL 791.285 provides, pertinent to the issue in this case:
(1) The lifetime electronic monitoring program is established in the department [of Corrections]. The lifetime electronic monitoring program shall implement a system of monitoring individuals released from parole, prison, or both parole and prison who are sentenced by the court to lifetime electronic monitoring....
(3) As used in this section, “electronic monitoring” means a device by which, through global positioning system satellite or other means, an individual’s movement and location are tracked and recorded.
MCL 750.520b(l) sets forth various forms of CSC-I that are punishable, as follows, under MCL 750.520b(2):
(a) Except as provided in subdivisions (b) and (c), by imprisonment for life or for any term of years.
(b) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any term of years, but not less than 25 years.
(d) In addition to any other penalty imposed under subdivision (a) or (b), the court shall sentence the defendant to lifetime electronic monitoring under section 520n. [Emphasis added.]
CSC-II is punishable by not more than 15 years’ imprisonment. MCL 750.520c(2)(a). “In addition to the penalty specified in subdivision (a), the court shall sentence the defendant to lifetime electronic monitoring under section 520n if the violation involved sexual contact committed by an individual 17 years of age or older against an individual less than 13 years of age.” MCL 750.520c(2)(b) (emphasis added).
Finally, and critical to this issue, MCL 750.520n(l) provides:
A person convicted under section 520b or 520c for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age shall be sentenced to lifetime electronic monitoring as provided under section 85 of the corrections code of 1953, 1953 PA 232, MCL 791.285.
C. ANALYSIS
This Court’s primary obligation when it interprets a statute is to ascertain and give effect to the intent of the Legislature. People v Breidenbach, 489 Mich 1, 8; 798 NW2d 738 (2011). The best way of determining the Legislature’s intent is through the plain words used in the statute, read in context according to their ordinary meaning to provide a harmonious meaning to the whole statute. People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011). “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.” Id. “A statutory provision is ambiguous if it irreconcilably conflicts with another provision or is equally susceptible to more than one meaning.” Kern, 288 Mich App at 517, citing People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008).
In Kern, this Court examined the interplay between MCL 750.520c, MCL 750.520n, and MCL 791.285 as they related to lifetime electronic monitoring of persons convicted of CSC-II but not sentenced to prison. The Court held that the defendant, “who was sentenced to five years’ probation, with 365 days to be served in jail, is not subject to lifetime electronic monitoring.” Kern, 288 Mich App at 525. In conducting its statutory analysis, the Kern Court noted the statutes relating to lifetime electronic monitoring were in pari materia, opining:
In general, [statutes that address the same subject or share a common purpose are in pari materia and must be read together as a whole. No one provision may be viewed in a vacuum. The object of the [in pari materia] rule is to give effect to the legislative purpose as found in harmonious statutes. [Id. at 517 (citations and quotation marks omitted; first alteration in original).]
Defendant argues that although nothing in § 520b limits the mandatory lifetime electronic monitoring of those convicted of CSC-I by the age of the victim, MCL 750.520b(2)(d) specifically requires that the sentence of lifetime electronic monitoring be imposed “under section 520n.” Defendant reads MCL 750.520n(l) as applying victim age limitations for the imposition of lifetime electronic monitoring to convictions under both § 520b and § 520c. Defendant relies on the unpublished opinions of this Court. He also cites Department of Corrections Policy Directive 6.04.100, but this directive merely restates MCL 750.520n(l).
The prosecution argues that the plain language of MCL 750.520b(2)(d) requires that trial courts “shall sentence” all persons convicted of CSC-I, regardless of the victim’s age, to lifetime electronic monitoring. It argues that MCL 750.520n must be read in the context of § 520b, for which the Legislature provided no victim age limits for lifetime electronic monitoring, and § 520c, in which the Legislature imposed the same victim age limits for lifetime electronic monitoring as stated in § 520n. Read in this context, § 520n requires lifetime electronic monitoring for defendants convicted of violating § 520b or defendants 17 years old or older who are convicted of violating § 520c with respect to victims less than 13 years of age.
The prosecution and defendant’s interpretations of § 520b and § 520n are equally reasonable. Consequently, when we read these statutory provisions together, as we must, we conclude they are ambiguous because they are “equally susceptible to more than one meaning.” Kern, 288 Mich App at 517. “[A] statute that is unambiguous on its face can be ‘rendered ambiguous by its interaction with and its relation to other statutes.’ ” People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997) (citations and quotation marks omitted). In this case, the apparently plain language of MCL 750.520b(2)(d) is rendered ambiguous by the conflicting language in MCL 750.520n(l), to which it refers, and judicial construction of the statutes is necessary.
There are rules of statutory construction that favor the prosecution’s reading of the statutes. See Brantley, 296 Mich App at 557-558. Most notably, “ ‘Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute ....’” People v Anstey, 476 Mich 436, 444; 719 NW2d 579 (2006), quoting People v Monaco, 474 Mich 48, 58; 710 NW2d 46 (2006) (citation and quotation marks omitted). Here, the Legislature specifically applied victim age limits on the imposition of lifetime electronic monitoring in § 520c and with respect to the mandatory minimum sentences in § 520b(2)(b) and (c), but imposed no such limitation in § 520b (2) (d). Additionally, the last antecedent rule could support the prosecution’s construction of § 520n(l). “Generally, 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.” People v Henderson, 282 Mich App 307, 328; 765 NW2d 619 (2009).
Despite these rules of statutory construction, we believe it more appropriate to focus on the language that the Legislature chose to include in MCL 750.520b(2)(d), rather than assume intentional omissions. Specifically, although it need not have, the Legislature required that trial courts in sentencing CSC-I offenders to lifetime electronic monitoring do so “under section 520n.” That section, as defendant argues, and as numerous judges of this Court have concluded, can reasonably be read as limiting lifetime electronic monitoring of a person convicted of either CSC-I or CSC-II to when the victim was under age 13. We conclude this construction is the more reasonable one consistent with the Legislature’s mandate for construing the Penal Code. “All provisions of this act shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.” MCL 750.2; see also Kern, 288 Mich App at 517. We also conclude this construction is consistent with the dominant purpose of the Legislature when it enacted the statutory scheme for lifetime electronic monitoring: to protect children that are the most vulnerable to sexual predators — children under the age of 13. As such, this interpretation of the statute is also consistent with the last antecedent rule. Henderson, 282 Mich App at 328. For these reasons, we agree with Judge KELLY’S analysis of this issue in her dissent in Brantley and with the per curiam analyses in the several unpublished opinions of this Court addressing this issue. While these opinions are not binding precedent, MCR 7.215(C)(1), we find them instructive and persuasive. People v Jamison, 292 Mich App 440, 445; 807 NW2d 427 (2011).
III. CONCLUSION
The evidentiary errors that defendant has raised on appeal are not of constitutional magnitude. With respect to the exclusion of evidence of purported other acts regarding the victim’s mother and her daughters, we conclude that the trial court did not abuse its discretion. With respect to the trial court’s exclusion of character evidence offered by defendant under MRE 404(a)(1), we conclude the trial court abused its discretion but that the error was not outcome determinative and does not warrant reversal. Lukity, 460 Mich at 495-496. Finally, we follow Brantley on the issue of lifetime electronic monitoring only because we are required to do so. MCR 7.215(J)(1).
We affirm defendant’s convictions and sentences.
Meter, PJ., concurred with Markey, J.
MRE 609 permits impeachment with evidence of a conviction for a crime with an element of theft that was punishable by imprisonment in excess of one year, if the conviction or resulting confinement occurred within the past 10 years and the court determines that the evidence has significant probative value on the issue of credibility. MRE 609(a)(2) and (c). “Evidence of juvenile adjudications is generally not admissible under this rule . ...” MRE 609(e).
MRE 405(a) states: “In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into reports of relevant specific instances of conduct.”
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Sawyer, J.
In these consolidated cases, intervenors appeal by leave granted the trial court order denying their discovery requests to learn the identities of the plaintiff class. We affirm in part, reverse in part, and remand.
The underlying class actions in this case were brought by women convicted of felonies and incarcerated at facilities operated by the Department of Corrections (DOC). Plaintiffs filed these actions against the DOC, past and current directors and various wardens, as well as corrections officers. Plaintiffs alleged that they were the victims of systematic sexual harassment, sexual assault and retaliation inflicted by male corrections personnel. See Neal v Dep’t of Corrections, 230 Mich App 202; 583 NW2d 249 (1998).
That litigation ultimately resulted in a settlement agreement in which DOC agreed to pay $100 million in installments over a six-year period paid into an escrow account and then distributed to the attorneys and class members according to an allocation plan. DOC also agreed to waive the prohibition on prisoners maintaining accounts at financial institutions outside their DOC institutional account. The trial court also entered a protective order that prohibited the disclosure of the names of class members other than to necessary DOC and Attorney General employees. The purpose of the protective order was to prevent retaliation against the class members.
Thereafter, the Wayne County Prosecutor and the Oakland County Reimbursement Unit/Fiscal Services Division, intervened seeking to discover the names of the class members to ensure that any outstanding orders of restitution, court costs, and court-appointed attorneys fees arising from judgments of sentence were paid from the proceeds of the settlement agreement. The Department of Human Services (DHS) intervened, seeking to ensure the payment of any outstanding child support obligations. Plaintiffs’ counsel responded that it was her understanding that all applicable laws regarding these payments were being complied with and the protective order precluded the release of the identity of the class members. DOC similarly refused to comply with the discovery requests due to the protective order.
The trial court attempted to resolve the matter by having intervenors submit a list of the names of any female prisoner with an outstanding obligation who might have been a member of the class. Plaintiffs’ counsel was to then compare those lists against the names of class members to determine if any class member had an outstanding obligation. This failed to resolve the dispute, however, because intervenors determined that it was logistically impossible for them to generate a comprehensive list of all potential claimants. They continued to maintain that they needed the list of names of the class members to check that list against their own records. Ultimately, the trial court declined to order the parties to disclose to intervenors the identities of the class members and this appeal followed.
We agree with intervenors’ general proposition that there are constitutional and statutory provisions that support victims’ rights to recover restitution, as well as the government’s right to recover fines, costs and fees imposed as part of a judgment of sentence. And we also agree that, to the extent that the settlement agreement between the parties is inconsistent with applicable statutes, those provisions are unenforceable. But that does not equate to intervenors having a right to discover the identities of the class members. On the other hand, we are not in agreement with the trial court’s approach of putting the burden on intervenors to produce a list of prisoners who owe an obligation and are potentially a member of the class. Nor are we convinced that it was appropriate to put the burden on plaintiffs’ counsel to determine if a potential obligor was a member of the class because that places on counsel a serious conflict of interest between protecting the interests of the client and the efforts of intervenors to collect the obligations owed.
In resolving this matter, we must begin by looking at the relevant statutory provisions. We review de novo questions of statutory interpretation. People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009). In doing so, we discover the general resolution to this issue. At issue are the provisions of MCL 791.220h and MCL 600.5511.
MCL 791.220h provides as follows:
(1) If a prisoner is ordered to pay restitution to the victim of a crime and the department receives a copy of the restitution order from the court, the department shall deduct 50% of the funds received by the prisoner in a month over $50.00 for payment of restitution. The department shall promptly forward the restitution amount to the crime victim as provided in the order of restitution when the amount exceeds $100.00, or the entire amount if the prisoner is paroled, transferred to community programs, or is discharged on the maximum sentence. The department shall notify the prisoner in writing of all deductions and payments made under this section. The requirements of this subsection remain in effect until all of the restitution has been paid.
(2) Any funds owed by the Michigan department of corrections or to be paid on behalf of one or more of its employees to satisfy a judgment or settlement to a person for a claim that arose while the person was incarcerated, shall be paid to satisfy any order(s) of restitution imposed on the claimant that the department has a record of. The payment shall be made as described in subsection (1). The obligation to pay the funds, described in this section, shall not be compromised. As used in this section, “fund” or “funds” means that portion of a settlement or judgment that remains to be paid to a claimant after statutory and contractual court costs, attorney fees, and expenses of litigation, subject to the court’s approval, have been deducted.
(3) The department shall not enter into any agreement with a prisoner that modifies the requirements of subsection (1). Any agreement in violation of this subsection is void.
Much of the dispute related to victim restitution can be resolved by reference to this statute. First, it clearly puts the burden on DOC to withhold money from the settlement and forward to the victims any restitution ordered. Second, DOC has such an obligation only if a copy of the restitution order has been sent to the department.
We note that it should be unnecessary for intervenors to identify potential class members who have outstanding restitution obligations because all restitution orders relating to defendants that have been sentenced to the custody of the DOC should have been forwarded to the DOC for collection from prisoners’ funds. Because MCL 791.220h(l) does not, by its terms, apply only to the proceeds of lawsuits against DOC, but to any prisoners funds, we would expect that all restitution orders would be automatically forwarded for any defendant sentenced to prison.
And by the clear mandate of the statute, the DOC must collect from prisoner funds any outstanding restitution obligation. Therefore, the DOC should already have been withholding from the disbursements funds allocated to any prisoner who had an outstanding restitution obligation until that obligation was satisfied.
We should note that attention must be paid to the differences between subsections (1) and (2). Subsection (1) only applies to prisoners and it limits the amount that can be deducted (50% of the funds received in excess of $50 in any given month). Subsection (2), on the other hand, applies to a “person” who receives money from a judgment or settlement against the DOC or a DOC employee. It is not limited to current prisoners, nor is there a limit to the amount that can be withheld. That is, all of the funds owed to a person arising from a settlement or judgment against the DOC or its employees are to be withheld until restitution is satisfied. Therefore, the DOC should already have been withholding from the three previous disbursements any amounts that would be paid to a class member who had an outstanding restitution obligation (of which the DOC had a record) and should continue to do so in the three remaining disbursements until the restitution obligation is satisfied.
Plaintiffs argue that the protective order does not interfere with the enforcement of the statute for two reasons. First, once a prisoner is released from incarceration, her name is released to the DOC, which can then determine if any restitution needs to be paid. Second, for those class members who remain incarcerated, when the money is transferred into their institutional prison accounts, the DOC would automatically deduct the money to pay the restitution pursuant to subsection (1). While there is some logic to these arguments, they fail because they are premised on a third argument, which is flawed. That argument is that MCL 791.220h does not mandate that restitution be satisfied before settlement proceeds are distributed. As we discussed earlier, the clear meaning of subsection (2) is that the proceeds from a judgment or a settlement in litigation against the DOC must first be used to satisfy any outstanding restitution order filed with the DOC before any proceeds may be distributed to a prisoner.
Accordingly, to the extent that the protective order does not allow for the disclosure of names to the DOC or its employees in order for the DOC to comply with its statutory obligations, or provide for some alternative method that ensures the DOC’s compliance, that provision is invalid. The DOC has a clear statutory obligation to disburse the funds to the victims in payment of restitution obligations and an agreement in violation of law is unenforceable. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 51; 664 NW2d 776 (2003). And the fact that this agreement takes the form of a stipulated order does not change this basic principle because a stipulated order that does not conform to the law is void. Miller v Miller, 264 Mich App 497, 507 n 12; 691 NW2d 788 (2004), rev’d on other grounds 474 Mich 27; 707 NW2d 341 (2005). Simply put, the parties could not stipulate to an order that relieves the DOC of its statutory obligations or that precludes the DOC from being able to fulfill its statutory obligations.
MCL 791.220h only resolves the question of restitution. With respect to court costs, etc., we must turn to MCL 600.5511, which provides in pertinent part as follows:
(2) Subject to section 220h of 1953 PA 232, MCL 791.220h, and the crime victim’s rights act, 1985 PA 87, MCL 780.751 to 780.834, any damages awarded to a prisoner in connection with a civil action brought against a prison or against an official, employee, or agent of a prison shall be paid directly to satisfy any outstanding restitution orders pending against the prisoner, including, but not limited to, restitution orders issued under the state correctional facility reimbursement act, 1935 PA 253, MCL 800.401 to 800.406, the prisoner reimbursement to the county act, 1984 PA 118, MCL 801.81 to 801.93, 1982 PA 14, MCL 801.301, and the crime victim’s rights act, 1985 PA 87, MCL 780.751 to 780.834, any outstanding costs and fees, and any other debt or assessment owed to the jurisdiction housing the prisoner. The remainder of the award after full payment of all pending restitution orders, costs, and fees shall be forwarded to the prisoner.
(3) Before payment of any damages awarded to a prisoner in connection with a civil action described in subsection (2), the court awarding the damages shall make reasonable efforts to notify the victims of the crime for which the prisoner was convicted and incarcerated concerning the pending payment of damages.
This statute, if applicable, would not only resolve the restitution issue, it would also resolve the issues relative to outstanding court costs and fees (but not the child-support issue). This statute clearly provides that any damage award to a prisoner arising out of a claim against the department or its employees must first be utilized to pay any outstanding restitution, costs and fees, or other assessments owed to the jurisdiction housing the prisoner. Only after full payment of restitution, costs and fees may any money be paid to the prisoner.
Plaintiffs’ primary argument against the application of MCL 600.5511 to this dispute is that it was not enacted until three years after the filing of these actions and, therefore, does not apply. We disagree. First, we note that this is true only for some of the claims. The Neal case was filed in 1996. But the Anderson case was not filed until 2003 and was consolidated with Neal. Therefore, even if we agree that the statute does not apply to cases filed before the statute was enacted, it would still apply to the Anderson claims. But we do need to resolve the issue with respect to the Neal claims.
The retroactivity issue was addressed in a prior appeal in this case. Neal v Dep’t of Corrections, unpublished opinion per curiam of the Court of Appeals, issued February 23, 2006 (Docket Nos. 253543 and 256506). But we are not persuaded that that opinion controls here. Initially, because it is unpublished it is not precedentially binding. MCR 7.215(C)(1). Furthermore, neither are we persuaded that the law of the case doctrine applies. First, intervenors were not a party to the prior appeal. Second, while the prior appeal considered the retroactive application of the prison litigation reform act, MCL 600.5501 et seq., it considered it in relation to a different aspect of the act. Specifically, it considered whether the requirement of MCL 600.5503(1) that a prisoner exhaust all administrative remedies before filing suit, barred claims that had accrued before the enactment of the statute. Neal, unpub op at 3. This Court concluded that the requirement only applied to those claims that had accrued after the effective date of the act.
In this appeal we deal not with the question whether a claim is barred by the statute, but with how the proceeds of a settlement are to be disbursed. The settlement was reached after the effective date of the act, when all parties would be aware of the provisions of the law. Thus, while applying MCL 600.5503(1) retroactively to bar the claim itself would impair or abrogate a vested right, directing the distribution of settlement proceeds does not. In other words, the application of MCL 600.5511(2) to this case would not retroactively impair or abrogate plaintiffs’ rights, but merely ensure the payment of their preexisting financial obligations from proceeds to which they became entitled after the enactment of the statute. Furthermore, we view this portion of the statute as being remedial or procedural in nature and, therefore, it may be applied retroactively. See Tobin v Providence Hosp, 244 Mich App 626, 661-662; 624 NW2d 548 (2001).
Accordingly, we conclude that the DOC may not disburse any funds to any plaintiff class member until there has been “full payment of all pending restitution orders, costs, and fees” as required by MCL 600.5511(2) for that particular plaintiff class member. Because disbursement should not have been made until the obligations had been satisfied, the DOC should seek to recover those payments to any particular class member if the future payments owed that particular class member will prove inadequate to meet the obligations under the statute.
While these statutes resolve the obligations of the DOC with respect to the disbursement of the settlement proceeds, it does not itself directly resolve the question whether the identities of the class members must be disclosed. Initially, we note that nothing in these statutes gives intervenors any particular right to know the identity of the class members. While intervenors certainly have an interest in ensuring that the statutes are complied with and the restitution, fees and costs are properly paid, that does not equate with the right to receive the names of the class members. If the trial court is able to fashion a method to ensure that the DOC is meeting its statutory obligations with respect to the proper disbursement of the proceeds of the settlement without the necessity of disclosing the names of the class members, it is certainly free do so.
We leave it initially to the trial court to determine an appropriate method of doing so. Perhaps the trial court will find it appropriate to appoint a Special Master who will have access to the names of the class members and the DOC records to determine which class members have outstanding obligations and which do not. Or maybe the answer lies in modifying the protective order to allow the release of names, even those currently incarcerated, to a limited number of DOC employees who will oversee compliance with the statutes. We offer these only as suggestions and not as directions. Our only directions are these: (1) the DOC must comply with the statutory provisions to ensure that the restitution, fees and costs required to be paid by a class member are, in fact, paid before any disbursement to that class member, (2) plaintiffs’ counsel is not to be the gatekeeper to determine compliance or otherwise to identify which class members have such an obligation, and (3) there must be some oversight mechanism to confirm that the DOC does, in fact, discharge its obligations. We also direct that any future disbursement of funds is to be suspended until a satisfactory method is in place to ensure compliance with the statute.
We do note, however, a statutory provision that may preclude complete concealment of the names of the class members. As intervenors point out, MCL 600.5511(3) obligates the trial court in this matter to make reasonable efforts to notify the victims of the pending payment of damages before any payment may be made to the prisoner. Of course, the notification does not have to disclose that any such damage payment is coming from the proceeds of this particular lawsuit. Nor is the trial court obligated to make public the identity of the victims to whom the notices are sent. But because the notices must be sent, it is conceivable that the identity of a currently incarcerated class member might become known. Nonetheless, the trial court is obligated to comply with this statute. According to intervenors, the trial court has failed to comply with its statutory duty to provide notice. Indeed, if in fact the trial court has not been supplied with a list of names of the class members, then it presumably would be impossible for the trial court to have complied with this duty.
Next, intervenors argue that the trial court lacked the authority to issue a protective order because MCR 2.302(C) requires a motion and this order was entered by stipulation. This issue was not raised below and, therefore, is not preserved for review. Keenan v Dawson, 275 Mich App 671, 681; 739 NW2d 681 (2007).
In a similar argument, intervenors argue that the protective order is invalid because it does not meet the requirements of MCR 8.119(F) regarding sealed records. This argument is without merit because it does not appear that the names of the class members were ever part of the court record. In short, the protective order does not, in fact, seal the court records.
It is also argued that plaintiffs are obligated to disclose their names in the caption of the complaint under MCR 2.113(C)(1)(b). We do not read that rule as requiring that all members of a class in a class action suit be named in the caption of a complaint. As MCR 3.501(A)(1) states, in class actions there are one or more representative parties from the class. Reading these two rules together, we conclude that only the representative parties must be named in the caption of the complaint, not all class members.
Finally, we turn to the issue of the collection of child support by intervenor DHS. MCL 791.220h and MCL 600.5511 do not resolve this issue because they do not deal with the collection of child support, but MCL 552.625a does. That statute provides for an automatic lien on the assets, including settlements and judgments arising from a civil action, of any person obligated to pay child support once that support becomes due and unpaid. MCL 552.625a(l). While this statute is somewhat more procedurally complex than the other two statutes involved in this case, it nonetheless provides a statutory basis under which the DOC may be obligated to withhold funds from the settlement disbursements and remit them in payment of child support obligations.
We note that DHS is taking a very flexible and reasonable approach to this issue. While DHS is not opposed to merely lifting the protective order, it is willing, and indeed had suggested, a method designed to maximize the security of the identity of the class members and to protect the privacy of those members who do not have support obligations. It proposed that a limited number of individuals in the State Court Administrative Office should have access to the names of the class members, determine which have outstanding support obligations, and institute the necessary procedures to collect those support obligations from the settlement amount. This would appear to be a feasible method of ensuring that DHS can exercise its obligations to collect child support, while maintaining the highest degree of security over the identities of the class members. It would certainly be more secure and less intrusive than that which DHS is already empowered to do by statute. Under MCL 400.234(1), DHS’s Office of Child Support is empowered to request any information or record that assists in implementing the Office of Child Support Act, MCL 400.231 et seq. from any public or private entity or financial institution. This would presumably authorize the office to obtain the class member list from the DOC and the financial institution serving as the escrow agent, and possibly the trial court itself and plaintiffs’ counsel. But we need not decide the scope of DHS’s authority under the statute as it does not appear that it has invoked its authority under the statute.
In any event, as with our suggestions regarding the oversight of the collection of restitution, fees and costs, we are not requiring the trial court to adopt the proposed method. If the parties are able to agree on a different method, they are free to do so. And in the absence of an agreement, the trial court is free to adopt DHS’s suggestion, or to develop its own method as long as that method is consistent with this opinion. That is to say, the method must permit DHS to effectively collect as much of the support obligation owed by class members as possible from the proceeds of the settlement and to do so before any further proceeds are distributed.
Finally, we are aware that we are placing on the trial court an unusual burden in overseeing the collection of the various financial obligations involved in this case, a burden greater than that which would normally be placed on a trial court that oversees a civil case where the plaintiff receives an award and happens to owe one or more of the obligations involved in this case. But the trial court in essence took this burden on itself when it entered the protective order. We do not disparage the actions of the trial court in doing so as we recognize the reasons for the protective order. But just as the unique circumstances of this case necessitated the protective order, they also necessitate greater involvement by the trial court to ensure that the order does not impede the DOC and DHS from meeting their statutory duties. Moreover, these unique circumstances do not shield plaintiffs from meeting their financial obligations.
In summary, the DOC is obligated to meet its obligations under MCL 791.220h and MCL 600.5511 to pay from the settlement proceeds any restitution, fees and costs that any class member is obligated to pay under a judgment of sentence before any future disbursement may be made to such a class member. If the future amounts due to such a class member are inadequate to meet those obligations, the DOC shall make reasonable efforts to recover any of the proceeds previously paid to such a class member to satisfy those obligations. To the extent that the protective order prevents the DOC from meeting its statutory duty in this respect, the trial court shall modify the protective order in such a manner that the DOC is able to fulfill its duty. Similarly, the trial court shall make any necessary modifications to the protective order to ensure that DHS is able to discharge its duty to collect any outstanding support from class members.
We encourage the parties to arrive at a mutually agreeable method to implement these requirements. But if the parties are unable to do so, the trial court shall fashion such a method. In doing so, the trial court shall be guided by the principle that the statutory duties of the DOC and DHS take priority over the protective order. That is, a settlement agreement cannot relieve a party (or a nonparty) of a duty imposed by statute. Any agreement must be consistent with the laws of this state. Furthermore, plaintiffs’ counsel shall not serve as the gatekeeper to determine which members of the class owe such obligations. While the confidentiality of the identities of the class members should be maintained to the extent possible, oversight must be provided by some entity not associated with plaintiffs or the DOC. Finally, if it has not already done so, the trial court shall promptly send notice to the victims of the class members as required by MCL 600.5511(3).
To ensure that there are no future disbursements in violation of defendant’s and the intervenor’s statutory duties, we order that any future disbursements under the settlement agreement are stayed until a procedure is in place that ensures that any outstanding child support, restitution, costs and fees are collected from the settlement proceeds before the proceeds are disbursed to any class members owing such an obligation. This stay provision shall be given immediate effect. MCR 7.215(F)(2).
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. No costs.
HOEKSTRA, EJ., and SAAD, J., concurred with SAWYER, J.
Though separate class actions were brought in the Washtenaw Circuit Court and the Court of Claims, the actions were consolidated below.
The installments are due each October from 2009 through 2014. Approximately one-third of the disbursements have already been made and two-thirds remain to be paid.
The reference in subsection (2) to subsection (1) is only in regard to how the payment to the victim is made, not in reference to how the funds are withheld. That is, the DOC does not have to make payments to the victim until the accumulated amount exceeds $100 or the prisoner is released from incarceration.
The concern that DOC is not fully meeting this obligation is reflected in plaintiffs’ brief on appeal when they indicate that it was DOC’s clear intent in reaching the settlement to not be involved in the identification of class members and the allocation of settlement funds. While the DOC’s desire to stay out of that process is understandable, it is not feasible given its statutory duty to collect restitution before the distribution of the proceeds.
Even if the trial court does not currently possess the list of names it is obligated to send notice to the victims of the class members. This presumably means that at some point, the trial court will have to possess the names in order to comply with this requirement.
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Per Curiam.
Defendant, Anthony Ryan Brown, appeals as of right his conviction, following a bench trial, of manufacturing less than 5 kilograms or fewer than 20 plants of marijuana, MCL 333.7401(2) (d) (iii). The trial court sentenced defendant to 30 days in jail (suspended), 2 years’ probation, and 100 hours of commu nity service. In addition, the trial court imposed a $500 fine and suspended defendant’s driver’s license for one year. We affirm.
On January 7, 2010, defendant’s former roommate, Justin Fielding, contacted police and told West Michigan Enforcement Team Detective David Bytwerk that defendant was growing marijuana in his home in Holland Township. Fielding explained that when he lived with defendant he saw grow lights and ventilation fans installed in the laundry room of the home and small marijuana plants growing under the lights. On February 5, 2010, Bytwerk and another detective searched trash left for pickup on the shoulder of the road in front of defendant’s house and found a piece of fresh marijuana in the trash. Bytwerk also found two pieces of mail in the same trash container addressed to defendant. Bytwerk confirmed defendant’s address with the Michigan Secretary of State.
Bytwerk included the above facts in his search-warrant affidavit. However, Bytwerk did not check to see if defendant was a qualifying patient or a primary caregiver under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. Bytwerk explained that he did not check defendant’s status under the MMMA because the State Department of Community Health will not provide the police with any information concerning whether a person has a valid MMMA certificate on the basis of the person’s name alone. He explained that the Department of Community Health requires an identification number before acknowledging the validity of a certificate.
A magistrate approved the search warrant on February 5, 2010. That same day, Bytwerk and other police officers executed the search warrant at defendant’s home. The officers found eight marijuana plants and two grams of marijuana.
On July 7, 2010, defendant moved to dismiss the case and for a hearing to suppress the evidence obtained during the execution of the search warrant. At the motion hearing defendant argued that the evidence seized during the search should be suppressed because the search warrant was invalid. Defendant claimed that the MMMA made it legal to possess and grow certain amounts of marijuana and, thus, the statement in the affidavit that defendant was growing marijuana was insufficient to provide the police officers with probable cause that a crime had been committed.
The trial court held that the affidavit did not contain sufficient facts to provide a substantial basis for inferring that a fair probability existed that evidence of a crime would be found in defendant’s home. The trial court acknowledged that before the effective date of the MMMA, traces of marijuana constituted sufficient evidence of a crime to support probable cause because possession of marijuana was per se illegal. However, the trial court concluded that after the MMMA became effective, an affidavit must provide specific facts sufficient for a magistrate to conclude that the possession of the marijuana alleged in the affidavit is not legal under the MMMA.
Despite its holding, however, the trial court did not suppress the evidence obtained from the search of defendant’s home because the trial court applied the good-faith exception to the exclusionary rule. The trial court found that the officers’ belief in the validity of the search warrant was not entirely unreasonable because the warrant was not facially invalid, and before the passage of the MMMA, the facts included in the affida vit would have been sufficient to establish probable cause that a crime was committed. The trial court also found no evidence that Bytwerk misled the magistrate and that the magistrate did not wholly abandon his role.
Defendant filed a motion for reconsideration on September 15, 2010. The trial court denied defendant’s motion, holding that it was “unreasonable to expect that a law enforcement officer would have known that previously sufficient evidence is no longer sufficient to establish probable cause.”
After a bench trial, the trial court found defendant guilty of manufacturing marijuana, and defendant now appeals as of right, challenging the validity of the search.
“A trial court’s findings of fact on a motion to suppress are reviewed for clear error, while the ultimate decision on the motion is reviewed de novo.” People v Hrlic, 277 Mich App 260, 262-263; 744 NW2d 221 (2007).
We find that because the possession, manufacture, use, creation, and delivery of marijuana remain illegal in Michigan even after the enactment of the MMMA, a search-warrant affidavit concerning marijuana need not provide specific facts pertaining to the MMMA, i.e., facts from which a magistrate could conclude that the possession, manufacture, use, creation, or delivery is specifically not legal under the MMMA.
A search warrant may only be issued upon a showing of probable cause. US Const, Am IV; Const 1963, art 1, § 11; MCL 780.651(1). Probable cause to issue a search warrant exists if there is a substantial basis for inferring a fair probability that evidence of a crime exists in the stated place. People v Kazmierczak, 461 Mich 411, 417-418; 605 NW2d 667 (2000). Probable cause must be based on facts presented to the issuing magistrate by oath or affirmation, such as by affidavit. People v Waclawski, 286 Mich App 634, 698; 780 NW2d 321 (2009).
The trial court acknowledged that before the MMMA became effective, traces of marijuana in a suspect’s trash would be sufficient for a magistrate to find that probable cause to search existed. However, the trial court concluded that after the MMMA became effective, possession of marijuana was no longer per se illegal. In concluding that possession of marijuana was no longer per se illegal under the MMMA, the trial court, citing People v Lemons, 454 Mich 234, 246 n 15; 562 NW2d 447 (1997), acknowledged that
where the relevant medical-marijuana law provides an affirmative defense to a crime, the fact that a suspect may have a medical authorization to use and possess marijuana does not negate probable cause.... That is because an affirmative defense merely excuses or justifies the defendant’s criminal act, it does not negate any elements of the crime.
However, the trial court distinguished between the two MMMA sections that provide protection from criminal liability: MCL 333.26424 and MCL 333.26428. MCL 333.26424 provides a qualifying patient or a primary caregiver who meet the requirements of the MMMA immunity from arrest, prosecution, or “penalty in any manner.” MCL 333.26428 allows a “patient” and a “patient’s primary caregiver” to assert the medical purpose for using marijuana as an affirmative defense. The trial court argued that to interpret the MMMA as providing only an affirmative defense would make MCL 333.26424 surplusage or nugatory. Accordingly, the trial court held that the immunities provided to a qualifying patient or a primary caregiver under MCL 333.26424 removed the per se illegality of the possession of marijuana. Thus, the trial court reasoned that evidence of a suspect’s mere possession of marijuana was no longer sufficient evidence of a crime to support probable cause. The trial court held that to support a probable cause ruling, “the affidavit must set forth specific facts from which a magistrate can conclude the possession is not legal under the MMMA.”
The trial court’s holding is inconsistent with this Court’s statements in People v King, 291 Mich App 503; 804 NW2d 911 (2011), rev’d in part on other grounds by People v Kolanek, 491 Mich 382 (2012). In King, this Court held that “[b]y its terms, the MMMA does not abrogate state criminal prohibitions of the manufacturing of marijuana.” Id. at 508-509. This Court went on to describe the MMMA’s impact on the Public Health Code:
Although these individuals [who are seriously ill and are using marijuana for its palliative effects] continue to violate the Public Health Code by using marijuana, the MMMA sets forth narrow circumstances under which they can avoid criminal liability. In other words, the MMMA constitutes a determination by the people of this state that there should exist a very limited, highly restricted exception to the statutory proscription against the manufacture and use of marijuana in Michigan. As such, the MMMA grants narrowly tailored protections to qualified persons as defined in the act if the marijuana is grown and used for certain narrowly defined medical purposes. Further, the growing of marijuana is tightly constrained by specific provisions that mandate how, where, for what purpose, and how much marijuana may be grown. [Id. at 509 (emphasis added).]
Contrary to the trial court’s holding, this Court has held that the MMMA does not abrogate state criminal prohibitions related to marijuana. The MMMA as a whole constitutes a “very limited, highly restricted exception to the statutory proscription against the manufacture and use of marijuana in Michigan.” Id.
The possession, manufacture, use, creation, and delivery of marijuana remain illegal in this state, even after the enactment of the MMMA. Thus, we conclude that to establish probable cause, a search-warrant affidavit need not provide facts from which a magistrate could conclude that a suspect’s marijuana-related activities are specifically not legal under the MMMA. Probable cause exists if there is a substantial basis for inferring a fair probability that contraband or evidence of a crime exists in the stated place. Kazmierczak, 461 Mich 417-418. Defendant has presented no authority indicating that for probable cause to exist, there must be a substantial basis for inferring that defenses do not apply. See, generally, Lemons, 454 Mich at 246 n 15 (discussing affirmative defenses). We disagree with the trial court’s holding pertaining to probable cause. Accordingly, we affirm the trial court on alternative grounds, and defendant’s issue regarding the good-faith exception to the exclusionary rule is moot. See Contesti v Attorney General, 164 Mich App 271, 278; 416 NW2d 410 (1987) (discussing mootness).
Affirmed.
Meter, EJ., and Servitto and Stephens, JJ., concurred.
The act uses the spelling “marihuana,” but we employ the more common spelling “marijuana” in this opinion.
Defendant received a physician certification pertaining to medical-marijuana use on November 20, 2009. Defendant also received a letter from the Department of Community Health on April 6, 2010, explaining that he was approved for a qualifying patient registry identification card. Defendant’s identification card indicated that it was issued on February 4, 2010. Nevertheless, the trial court found defendant guilty of manufacturing marijuana. Evidently, defendant did not comply fully with the requirements of the MMMA, although the specifics of the noncompliance are not clear from the present record.
See People v Bylsma, 294 Mich App 219, 227; 816 NW2d 426 (2011).
Even if the protection scheme set forth in MCL 333.26424 is not technically viewed as an “affirmative defense,” it nonetheless constitutes a “narrowly tailored protection!]” against punishment for a violation of the Public Health Code. King, 291 Mich App at 509. The violation itself still exists, see id., and thus we disagree that search-warrant affidavits must set forth information indicating that a suspect’s marijuana-related activities are specifically not legal under the MMMA.
While we decline, in light of the pertinent case law, to impose an affirmative duty on the police to obtain information pertaining to a person’s noncompliance with the MMMA before seeking a search war rant for marijuana, if the police do have clear and uncontroverted evidence that a person is in full compliance with the MMMA, this evidence must be included as part of the affidavit because such a situation would not justify the issuance of a warrant. This scheme will reduce any potential (however unlikely) for police overreach in attempting to obtain search warrants.
Contrary to defendant’s argument, the prosecutor was not obligated to file a cross-appeal to argue an alternative basis for affirmance. Kosmyna v Botsford Community Hosp, 238 Mich App 694, 696; 607 NW2d 134 (1999). | [
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The Court orders that a special panel shall not be convened pursuant to MCR 7.215(J) to resolve the conflict between this case and People v Brantley, 296 Mich App 546;_NW2d_(2012). | [
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Per Curiam.
William McNeight and Blaine Levigne, Jr., appeal by leave granted the circuit court’s order affirming their convictions before the district court for unlawfully taking a bear in violation of MCL 324.40118(3). Defendants were charged with a misdemeanor violation of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq., for using trained hunting dogs to assist Todd Yoder, a Native American hunter, in capturing and killing a bear out of hunting season. We reverse.
The prosecution argued that defendants unlawfully took a bear outside of the season in which it is lawful to hunt bear with the use of a firearm, which was defined by the Department of Natural Resources (DNR) in former Wildlife Conservation Order (WCO) 3.203(4) as having run between September 17 and September 25, 2010. The prosecution asserted that MCL 324.40118(3) precludes the unlawful “taking” of a bear, which is defined in the statute to include both hunting and attempting to hunt. The prosecution also claimed that Yoder’s permit to hunt out of season did not extend to defendants and did not permit them to assist him. Because defendants knowingly assisted Yoder in capturing and killing a bear on October 23, 2010, the prosecution argued that defendants could not claim that they were only “training” their animals out of season.
Defendants argued that they did not break the law because their no-kill tags permitted them to participate in a bear hunt out of season as long as they did not kill the bear. Defendants asserted that the tags were designed to limit the number of bears harvested, not the number of participants permitted in a bear hunt. Because Yoder was authorized by his permit to hunt bear until October 26, 2010, and defendants did not actually kill the bear, defendants reasoned that they did not violate the law. Defendants conceded that they were participating in the hunt, rather than training their dogs to hunt bear, because they intended to assist Yoder in harvesting the bear. While defendants claimed that the law did not prohibit them from acting as licensed hunting guides, they also conceded that Yoder would not have been able to harvest the bear without their assistance.
The district court found defendants guilty of violating MCL 324.40118(3). The court noted that the essential question before it was whether defendants were lawfully permitted to participate in a bear hunt out of season given that the hunter had a valid permit to hunt out of season. The court concluded that defendants’ own no-kill permits restricted their right to participate in bear hunting outside of the hunting season specified for authorized Michigan residents.
During the appeal before the circuit court on September 9, 2011, the parties reasserted the arguments they had made before the district court. Defendants additionally argued that they did not “take” the bear because longstanding precedent requires that a hunter possess or capture an animal before it can be “taken.” Because they did not chase the bear while using a gun or bow, defendants argued, they could not have committed a “taking” under the statute. Plaintiff responded that “taking” is defined by statute to include defendants’ chasing and capturing of the bear. The circuit court affirmed the district court convictions, reasoning that defendants were participating in a bear hunt out of season, which constituted hunting under the statute. The court specifically held as follows:
Whether they were carrying a gun, or discharged the gun themselves, they were participating in hunting and therefore using hunting in its commonly understood term, they were hunting as participants in the hunt. And the clear language of the statute says that these Defendants are not permitted to do that outside of the bear hunting season.
Defendants now appeal the circuit court’s order affirming their convictions.
On appeal, defendants assert that the district court was precluded from finding that they acted in violation of MCL 324.40118(3). We agree. Defendants’ sole issue on appeal is essentially an argument that the evidence presented at trial did not demonstrate that they committed an action proscribed by law. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution in order to determine whether a rational trier of fact could have found that the prosecution proved the elements of the crime beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268-269; 380 NW2d 11 (1985). Essential to defendants’ argument on appeal is the claim that the district court erred in interpreting MCL 324.40118(3). On appeal, questions of statutory interpretation are reviewed de novo. People v Buehler, 477 Mich 18, 23; 727 NW2d 127 (2007).
Defendants were convicted of violating MCL 324.40118(3), which provides as follows:
A person who violates a provision of this part or an order or interim order issued under this part regarding the possession or taking of deer, bear, or wild turkey is guilty of a misdemeanor and shall be punished by imprisonment for not less than 5 days or more than 90 days, and a fine of not less than $200.00 or more than $1,000.00, and the costs of prosecution.
Under this statutory language, a person is guilty of a misdemeanor if that person violates a provision or order issued under part 401 of NREPA, MCL 324.40101 et seq., related to the taking of certain animals. In the present case, defendants are alleged to have violated former WCO 3.203(4), which provided:
The open season for taking a bear with firearms, crossbows, or bow and arrow in the red oak bear management unit in zone 2 shall be from the first Friday following September 15 and 8 days thereafter. The open season for taking a bear with bow and arrow only in the red oak bear management unit shall be from the first Friday following October 1 through 6 days thereafter.
In charging defendants with a violation of MCL 324.40118(3), the prosecution theorized that defendants’ conduct constituted the taking of a bear. That theory is largely based on the statutory definition of the term “take.” “Take” is statutorily defined as “to hunt with any weapon, dog, raptor, or other wild or domestic animal trained for that purpose; kill; chase; follow; harass; harm; pursue; shoot; rob; trap; capture; or collect animals, or to attempt to engage in such an activity.” MCL 324.40104(1). As a result of their interpretations of this statutory provision, both the prosecution and the lower courts have determined that defendants, by working in concert with Yoder, took the bear when they used dogs to tree the bear before Yoder shot it.
It is certainly reasonable to conclude that defendants, by pursuing, chasing, following, and harassing a bear with hunting dogs did commit a taking under the statutory definition of that term. However, former WCO 3.203(4) did not merely prohibit the taking of a bear. Rather, the order at issue placed qualifying language after the term “taking a bear” in the form of the phrase “with firearms, crossbows, or bow and arrow . . . .” Former WCO 3.203(4). The parties agree that neither of these defendants used a firearm, crossbow, or bow and arrow while assisting Yoder. As the prosecution admits, these defendants were not convicted on a theory of aiding and abetting the unlawful taking of a bear. Indeed, the circuit court emphasized that whether these defendants used a gun was irrelevant to its determination. However, when interpreting a statute, the court’s goal is to give effect to the intent of the Legislature. People v Hill, 486 Mich 658, 667-668; 786 NW2d 601 (2010). Unless ambiguous, statutory language should be given its ordinary meaning because the Legislature is presumed to have intended the meaning expressed in the statute. Id. MCL 324.40118(3) and former WCO 3.203(4) did not prohibit an unarmed individual from assisting someone with the lawful taking of a bear, nor did they prohibit someone from taking a bear without a firearm, crossbow, or bow and arrow. Had the Legislature or the DNR intended to prohibit that behavior, the language used in the order and statute would have expressed that intent. Because the parties stipulated that neither defendant used a firearm, crossbow, or bow and arrow to take the bear, there was insufficient evidence presented to support a conviction under MCL 324.40118(3) and former WCO 3.203(4).
Reversed.
BECKERING, EJ., and FITZGERALD and STEPHENS, JJ., concurred.
The spelling of “Levigne” is inconsistent in the record. Most of the court documents spell his name as “Lavigne,” while the documents submitted by defendants’ attorney (including those filed in this appeal) identify the defendant as “Levigne.”
The relevant order, WCO 3.203, has been amended several times. At the time that defendants participated in the hunt at issue here, WCO 3.203 as amended by 2010 Amendment 17 was controlling. | [
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Sawyer, J.
We are asked to determine whether the delivery of heroin in a drug transaction constitutes the aggravated use of a weapon under offense variable (OV) 1 of the sentencing guidelines. We conclude that while heroin could, under the appropriate fact situation, constitute the aggravated use of a weapon, that it is not the case in an ordinary drug transaction. That is, for points to be assessed under OV 1, the heroin itself must have been used as a weapon.
Defendant delivered a half gram of heroin to the victim in exchange for a PlayStation video game. Thereafter, the victim overdosed on the heroin. Defendant pleaded guilty of manslaughter and unlawful delivery of less than 50 grams of heroin. She was sentenced to 71 months to 15 years in prison on the manslaughter conviction and 57 months to 20 years in prison on the delivery conviction, with the sentences to run concurrently. She appeals by leave granted.
At sentencing, the prosecutor requested that 20 points be assessed for OV 1, arguing that defendant subjected the victim to a harmful substance, namely the heroin. Defendant objected to the scoring, but the trial court agreed that heroin met the definition of “chemical substance” under OV 1 and assessed the 20 points.
In resolving this question, we apply the following principles of statutory construction from People v Blunt:
When construing a statute, this Court must ascertain and give effect to the Legislature’s intent. People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). “The first step in that determination is to review the language of the statute itself.” Id. (quotation marks and citation omitted). We construe statutory language according to the common and approved meaning of the words, but when a statute employs technical terms of art, “ ‘it [is] proper to explain them by reference to the art or science to which they [are] appropriate.’ ” West Bloomfield Charter Twp v Karchon, 209 Mich App 43, 51; 530 NW2d 99 (1995), quoting Corning Glass Works v Brennan, 417 US 188, 201; 94 S Ct 2223; 41 L Ed 2d 1 (1974). In discerning legislative intent, this Court gives effect to every word, phrase, and clause in the statute. People v Hill, 269 Mich App 505, 515; 715 NW2d 301 (2006). The Court must avoid construing a statute in a manner that renders statutory language nugatory or surplusage. Id. “ ‘We construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature.’ ” Id., quoting Macomb Co Prosecutor v Murphy, 464 Mich 149, 159-160; 627 NW2d 247 (2001). When discerning legislative intent, a particular word in one statutory section must be interpreted in conjunction with every other section, “so as to produce, if possible, a harmonious and consistent enactment as a whole.” Grand Rapids v Crocker, 219 Mich 178, 183; 189 NW 221 (1922); see also G C Timmis & Co v Guardian Alarm Co, 468 Mich 416 420; 662 NW2d 710 (2003) (invoking as a statutory interpreta tion aid the doctrine of noscitur a sociis, “i.e., that a word or phrase is given meaning by its context or setting”) (quotation marks and citation omitted).
Under MCL 777.31(1) 20 points are assessed for OV 1 as follows:
Offense variable 1 is aggravated use of a weapon. Score offense variable 1 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(b) The victim was subjected or exposed to a harmful biological substance, harmful biological device, harmful chemical substance, harmful chemical device, harmful radioactive material, harmful radioactive device, incendiary device, or explosive device.
Furthermore, MCL 750.200h(i) defines “harmful chemical substance” as “a solid, liquid, or gas that through its chemical or physical properties, alone or in combination with 1 or more other chemical substances, can be used to cause death, injury, or disease in humans, animals, or plants.”
We disagree with defendant’s argument that heroin does not constitute a harmful chemical substance because there are nonlethal dose levels. As this case demonstrates, it is capable of causing death and is therefore, a harmful chemical substance. Nothing in MCL 750.200h(i) restricts the definition of “harmful chemical substances” to those substances that are lethal at all dose levels. We do, however, agree with defendant that it was not, under the facts of this case, used as a weapon.
The first sentence of MCL 777.31 directs that OV 1 applies to the aggravated use of a weapon. The statute does not define “weapon.” But Random House Webster’s College Dictionary (2001) defines it as “1. any instrument or device used for attack or defense in a fight or in combat. 2. anything used against an opponent, adversary, or victim.... 3. any part or organ serving for attack or defense, as claws, horns, teeth, or stings.” Furthermore, the need for the substance to be used as a weapon is supported by the Supreme Court’s statement in People v Carr, wherein the Court ordered resentencing because the “trial court committed plain legal error in scoring offense variable 1 because the defendant did not use the methadone against her child as a weapon, as is required to score the variable.” The prosecution attempts to distinguish Carr by pointing out that the underlying facts are unknown, but that it did involve methadone, which has legal uses, while the case at bar involves heroin, which has no legal uses. But such a distinction does not mean that heroin is always used as a weapon merely because it is illegal per se. While the underlying facts of Carr may be unknown, it is clear that the Supreme Court stated that a substance must be used “as a weapon” in order to score the variable.
Undoubtedly, heroin can be used as a weapon. For example, one could forcibly inject heroin into an unwilling victim for the purpose of killing that person by means of a heroin overdose. In such a case, we would have no difficulty in concluding that the heroin was used as a weapon because it was “used against an opponent, adversary, or victim.”
But that is not what happened here. There is no evidence that defendant forced the victim to ingest the heroin against his will. This was an ordinary, albeit illegal, consensual drug transaction. Defendant traded the heroin to the victim for something of value, and thereafter the victim voluntarily ingested the heroin with tragic results. But defendant did not attack the victim with the heroin and, the heroin was not used as a weapon. Therefore, it is not appropriate to score OV 1 as if it had been. Accordingly, the trial court must resentence defendant under properly scored sentencing guidelines, assessing zero points for OV 1.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Hoekstra, P.J., and Saad, J., concurred with Sawyer, J.
MCL 750.321.
MCL 333.7401(2)(a)(iv).
People v Blunt, 282 Mich App 81, 83-84; 761 NW2d 427 (2009).
Indeed, while we are not chemists, we question whether there is any substance that is lethal at the smallest possible dose level. But even if there is a substance that will kill with exposure to only one molecule of it, it seems doubtful that the Legislature intended to limit the provisions to those substances.
People v Carr, 489 Mich 855, 856 (2011). | [
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Hoekstra, J.
Defendant appeals by leave granted the circuit court order denying his application for leave to appeal the district court’s denial of defendant’s motion to dismiss a charge of possession of marijuana on the basis of immunity provided by the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. For the reasons stated in this opinion, we reverse and remand for proceedings consistent with this opinion.
Defendant was arrested on May 1, 2011, for possession of marijuana in violation of MCL 333.7403(2)(d). Before his arrest, defendant had been sitting in a passenger seat of a parked vehicle near the Grandville water treatment plant when the vehicle was approached by a police officer. Defendant had approximately one ounce of marijuana in his possession, and verbally informed the police officer that he was a medical marijuana patient. Defendant indicated that he had been approved for the medical use of marijuana, but that he had not yet received his registry identification card. Defendant claimed to have paperwork showing his approval for the use of marijuana for medical purposes, but the paperwork was in his own car that was parked at his residence. The police officer arrested defendant and he was subsequently charged with possession of marijuana in violation of MCL 333.7403(2)(d).
In the district court, defendant moved for dismissal of the charge pursuant to § 4(a) of the MMMA, which provides, in pertinent part: “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 . . . provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana . . . .” MCL 333.26424(a). Defendant argued that while he did not have the paperwork with him at the time of his arrest, he had applied for a registry identification card on February 16, 2011. Further, defendant maintained that although he had not received the actual card before the date of his arrest, by virtue of MCL 333.26429(b), his application became his card on March 18, 2011. The record also indicates that a copy of defendant’s application, dated February 16, 2011, and a registry identification card that was backdated to indicate an issuance date of March 18, 2011, were submitted to the district court. The district court denied defendant’s motion to dismiss.
Defendant then filed an application for leave to appeal the district court’s ruling in the circuit court, which granted defendant’s motion for immediate consideration, but denied the application in a written decision. The circuit court focused its analysis on the meaning of the term “possesses” as used in § 4. The circuit court determined:
For [defendant] to avail himself of the defense provided by section 4(a) of the act, he had to have an issued registry identification card, in his possession at the time of the offense. However, he acknowledges in his motion that he handed the officer a baggy containing marijuana, and that he had applied for, but had not received, a medical marijuana card.
Accordingly, the circuit court denied defendant’s application.
On appeal, defendant argues that the circuit court improperly added an “immediate possession” requirement to the statute. Defendant maintains that the immunity from arrest and prosecution provided in § 4(a) for “[a] qualifying patient who has been issued and possesses a registry identification card” extends to qualifying patients who have constructive possession of a registry identification card. Accordingly, defendant urges us to find that a qualifying patient may not be arrested or prosecuted for the medical use of marijuana as long as that patient has a registry identification card somewhere, and that a patient is not required to produce the card immediately or carry the card on his or her person in order to qualify for the immunity set forth in § 4(a).
We review a trial court’s decision on a motion to dismiss charges against a defendant for an abuse of discretion. People v Campbell, 289 Mich App 533, 535; 798 NW2d 514 (2010). A trial court may be said to have abused its discretion only when its decision falls outside the range of principled outcomes. People v Blackston, 481 Mich 451, 460; 751 NW2d 408 (2008).
We review de novo a trial court’s interpretation of the MMMA. People v Bylsma, 294 Mich App 219, 226; 816 NW2d 426 (2011). “The MMMA was enacted as a result of an initiative adopted by the voters in the November 2008 election.” Id. This Court explained the rules of construction that apply to the interpretation of an initiative law in Redden, 290 Mich App at 76-77:
“The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters.” Welch Foods, Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995). We presume that the meaning as plainly expressed in the statute is what was intended. Id. This Court must avoid a construction that would render any part of a statute surplusage or nugatory, and “[w]e must 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).
It is illegal under the Public Health Code, MCL 333.1101 et seq., for a person to possess, use, manufacture, create, or deliver marijuana. Michigan v McQueen, 293 Mich App 644, 658; 811 NW2d 513 (2011); see also MCL 333.7401(2)(d); MCL 333.7403(2)(d); MCL 333.7404(2)(d). The MMMA permits the medical use of marijuana “to the extent that it is carried out in accordance with the provisions” of the MMMA. MCL 333.26427(a). The MMMA “sets forth very limited circumstances under which those involved with the use of marijuana may avoid criminal liability”; the MMMA did not repeal any drug laws. Bylsma, 294 Mich App at 227.
In this case, defendant moved for dismissal of his marijuana charge on the basis of the immunity provided in § 4(a) of the MMMA. Section 4(a) provides:
A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. [MCL 333.26424(a).]
Accordingly, a defendant is immune from arrest, prosecution, or penalty pursuant to § 4(a) if he or she (1) is a qualifying patient, (2) who has been issued and possesses a registry identification card, and (3) possesses less than 2.5 ounces of usable marijuana. Id. Provided that a defendant satisfies these requirements, he or she is entitled to immunity under § 4(a) for the “medical use” of marijuana in accordance with the MMMA. MCL 333.26424(a). Thus, medical use in accordance with the MMMA is an additional criterion for § 4(a) immunity.
It is not disputed that on the date of his arrest, defendant was a qualifying patient, had been issued the equivalent of a registry identification card pursuant to MCL 333.26429(b), and possessed less than 2.5 ounces of usable marijuana. What remains to be decided is whether, under the circumstances of this case, defendant can satisfy the statutory requirements that a user of marijuana for medical purposes be a person who “possesses a registry identification card” and was engaged in the medical use of marijuana in accordance with the MMMA.
On appeal, defendant argues that the term “possesses” should be construed to include constructive possession, and that, accordingly, he satisfied the requirement because he had constructive possession of a registry identification card, which was in his automobile at his residence. The prosecution argues that defendant was required to have his registry identification card on his person in order to satisfy the “possesses” requirement. It is apparent from these arguments that both defendant and the prosecution presume that whether a defendant is a person who “possesses a registry identification card” at the time of his or her arrest is determinative regarding whether he or she meets the § 4(a) “possesses” requirement in order to be immune from not only arrest, but also prosecution or penalty.
However, contrary to the parties’ position, we conclude that a person can fail to qualify for immunity from arrest pursuant to § 4(a), but still be entitled to immunity from prosecution or penalty. Therefore, courts must inquire whether a person “possesses a registry identification card” at the time of arrest, prosecution, or penalty separately. We base this conclusion on the ordinary and customary meaning of the words, as they would have been understood by the voters, and we presume that the meaning plainly expressed by the words used in the statute is what was intended. Redden, 290 Mich App at 76.
The statutory section at issue in this case specifically provides, in pertinent part, that “[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[.]” MCL 333.26424(a) (emphasis added). The word “or” is disjunctive and, accordingly, it indicates a choice between alternatives. McQueen, 293 Mich App at 671. Thus, the immunity from arrest, prosecution, or penalty set forth in § 4(a) is applicable separately under each circumstance. Accordingly, whether a person is one who possesses a registry identification card so as to be immune from arrest is a separate question from whether the person is immune from prosecution or penalty.
Further, regarding the “possesses” requirement, the statute uses the term “possesses” in the present tense. Thus, the language of the statute requires a defendant to presently possess his or her registry identification card in order to qualify for § 4(a) immunity from arrest. Consistent with the present tense language of the statute, we conclude that, for purposes of immunity from arrest, someone “possesses” a registry identification card only when the registry identification card is reasonably accessible at the location of that person’s marijuana possession and use. For example, a registry identification card would be reasonably accessible at a person’s location under circumstances where the person, who is in possession of marijuana in their house and is requested by a police officer to establish their claim of immunity by producing their registration identification card, does not have their card in their house but is able to comply by leaving the house and retrieving the card from a car that is parked in the driveway of the house.
In this case, the relevant facts show that the arresting officer discovered defendant in possession of marijuana when he was in a passenger seat in another individual’s vehicle that was parked near the Grand-ville water treatment plant. The officer asked the driver of the vehicle about the marijuana, and the driver indicated that defendant, who sitting in a passenger seat in the vehicle, possessed the marijuana. Defendant told the officer that he had “crotched” the marijuana and removed a small bag of marijuana from his groin region. At that point, defendant informed the officer that he was a medical marijuana patient, but that proof of this fact was located in his own vehicle, which was parked at his residence. Under these circumstances, we conclude that defendant’s paperwork showing that he had been issued the equivalent of a registry identification card at the time the police officer found him to be in possession of marijuana was not reasonably accessible at the location where he was requested to produce it because he was in possession of marijuana in another individual’s vehicle away from his residence where the paperwork for his card was located. Consequently, defendant was not a person who “possesses a registry identification card,” and he was not entitled to immunity from arrest.
We next address whether defendant is immune from prosecution. If defendant’s registry identification card was reasonably accessible at the location of his prosecution, defendant would meet the “possesses” require ment for immunity pursuant to § 4(a) despite the fact that he was not entitled to immunity from arrest. Here, defendant’s production of his registry identification card in the district court was sufficient. Accordingly, defendant met the statutory requirement of possessing a registry identification card at the time of his prosecution and therefore, for purposes of the “possesses” requirement defendant is immune from prosecution pursuant to § 4(a).
Our conclusion that defendant satisfied the “possesses” requirement in § 4(a) at the time of his prosecution does not conclusively resolve the issue regarding whether defendant is entitled to immunity from prosecution. Defendant still has one more hurdle to overcome to be entitled to § 4(a) immunity from prosecution; he must also establish that at the time of his arrest he was engaged in the medical use of marijuana in accordance with the MMMA. MCL 333.26424(a). Because this issue is not properly before us and the factual record is not sufficient for resolution of whether defendant was engaged in the medical use of marijuana in accordance with the MMMA, we remand for consideration of this issue.
In sum, we hold that defendant was not immune from arrest because his application paperwork for a registry identification card was not reasonably accessible at the location of his arrest. We further hold that because defendant did possess a registry identification card that had been issued before his arrest when being prosecuted, he is immune from prosecution unless evidence exists to show that his possession of marijuana at the time of his arrest was not in accordance with medical use as defined in the MMMA or otherwise not in accordance with the provisions of the MMMA.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
WHITBECK, EJ., and SAWYER, 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.
MCL 333.7403(2)(d) provides that a person shall not knowingly or intentionally possess a controlled substance, and that a person who possesses marijuana is guilty of a misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $2,000, or both.
MCL 333.26429(b) provides:
If the department fails to issue a valid registry identification card in response to a valid application or renewal submitted pursuant to this act within 20 days of its submission, the registry identification card shall be deemed granted, and a copy of the registry identification application or renewal shall be deemed a valid registry identification card.
In denying defendant’s motion to dismiss, the district court indicated that § 4 and § 8 (MCL 333.26424 and MCL 333.26428) of the MMMA did not protect two different classes of patients, and that defendant was required to establish a doctor-patient relationship under § 4. The circuit court denied defendant’s application for leave to appeal on different grounds. Nonetheless, we note that the district court erred by conflating § 4 and § 8. As this Court has plainly explained, “the MMMA provides two ways in which to show legal use of marijuana for medical purposes in accordance with the act. Individuals may either register and obtain a registry identification card under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in § 8.” People v Redden, 290 Mich App 65, 81; 799 NW2d 184 (2010). Because § 4 functions independently of § 8, and there is no mention of a physician-patient relationship in § 4, the district court erred by holding that defendant must establish a physician-patient relationship under § 4. See id.
“ ‘Medical use’ means 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 medicad condition or symptoms associated with the debilitating medical condition.” MCL 333.26423(e).
Defendant maintains that constructive possession of a registry identification card is sufficient to satisfy the statute’s “possesses” requirement, and urges this Court to accept a definition of “possesses” that would require only dominion and control of a registry identification card. This argument is contrary to the plain language of the statute as we have interpreted it, and it is inconsistent with the clearly established law that permits police officers to arrest individuals who commit misdemeanor offenses in their presence. Construing § 4(a) to provide immunity to any person who merely makes the claim that they have a valid registry identification card, hut is unable to display it, is unworkable because it would eviscerate the ability to enforce the prohibition against the unlawful possession of marijuana with respect to anyone who simply makes a representation of entitlement to immunity without any proof of that status. If only constructive possession of a registry identification card is required, police officers would have no ability to evaluate the legitimacy of a claim of immunity made by individuals in possession of marijuana. | [
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M. J. Kelly, J.
Plaintiff, Melissa Danelle Brecht, appeals by leave granted the trial court’s order denying her motion for permission to change the domicile of her daughter with defendant Lee Allen Hendry, II. Because we conclude that the trial court improperly applied the law governing a motion to change domicile, we vacate the trial court’s order and remand for proceedings consistent with this opinion.
I. BASIC FACTS
Brecht and Hendry had their daughter in November 2007. In September 2009, the trial court awarded Brecht sole legal and physical custody of the child and gave Hendry parenting time. However, the order also provided that, at least 48 hours before exercising parenting time, Hendry had to notify Brecht about his intent to exercise parenting time and had to provide Brecht with the address and telephone number for the location where he intended to exercise the parenting time. As required under MCR 3.211(C)(1) and (3), the custody order provided that the domicile of the minor child could not be removed from the state of Michigan without the court’s approval and that a parent whose custody or parenting time was governed by the order could not change the child’s legal residence unless the change complied with MCL 722.31.
In June 2011, Hendry asked the trial court to order Brecht to show cause and requested to change the custody and parenting time order after Brecht moved to North Dakota with their daughter without first obtaining the trial court’s permission. After holding a hearing, the trial court entered an order requiring Brecht to return the child to Michigan.
Thereafter, Brecht moved for permission to change the child’s domicile from Michigan to North Dakota. At the evidentiary hearing Brecht presented evidence on the factors enumerated under MCL 722.31(4) and argued that the trial court should grant her motion on that basis. After considering the factors, the trial court denied the motion for a change in domicile.
In October 2011, Brecht moved for relief from the order under MCR 2.612(C)(1)(a), (e), and (f). Specifically, she argued that the trial court erred when it considered the factors stated under MCL 722.31(4) because those factors do not apply when a parent with sole custody seeks to change the child’s domicile. She further argued that, in cases where a parent has sole custody, the court is required to approve a request to change the child’s domicile out of state after the parent presents proof that he or she has sole custody. The trial court disagreed:
I absolutely appreciate counsel’s argument that the court has no option and no choice in sole custody cases. I disagree with that. I believe that the court is required to look at what is in the best interest of the child.
And at this point based on the facts that this court has been presented with over and over and over with this case, I do not believe it is in her best interests to leave the State of Michigan. I am not vacating my order. The order will stand.
After the trial court entered an order denying Brecht’s motion for reconsideration, Brecht appealed.
II. CHANGE OF DOMICILE
A. STANDARD OF REVIEW
On appeal, Brecht argues that the trial court erred when it denied her motion to change domicile on the basis of the factors enumerated under MCL 722.31(4). Specifically, she argues that the trial court cannot consider those factors when analyzing her request because our Legislature provided that those factors do not apply in situations involving sole custody. This Court reviews de novo the proper interpretation and application of statutes and court rules. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). This Court also reviews de novo as a question of law the proper interpretation and application of the common law, such as the common law governing petitions for a change of domicile. See Mich Citizens for Water Conservation v Nestlé Waters North America Inc, 269 Mich App 25, 53, 83; 709 NW2d 174 (2005), rev’d in part on unrelated grounds 479 Mich 280 (2007).
B. CUSTODY, DOMICILE, AND COURT SUPERVISION
1. MCR 3.211(C)(1)
Michigan courts have the authority to resolve disputes concerning the custody of children, whether as an original action or incidentally from another action. See MCL 722.27(1). In such cases, the trial court must “declare the child’s inherent rights and establish the rights and duties as to the child’s custody, support, and parenting time in accordance with this act.” MCL 722.24(1). Moreover, after a Michigan court has entered a judgment or order governing child custody, the court retains jurisdiction over the child and may modify its order or judgment until the child reaches — at the latest — age 19 years and six months. MCL 722.27(l)(c). Thus, Michigan courts have a continuing interest in protecting the children subject to custody orders and ensuring that the parents continue to meet their obligations.
Until 1963, a parent could change a child’s domicile without the court’s permission unless otherwise provided in the original judgment or order. However, in 1963, our Supreme Court adopted the General Court Rules, which included a provision requiring every judgment involving child custody to contain a requirement that parents obtain the court’s permission before moving the child’s domicile out of this state. See GCR 1963, 729.4(1). Our Supreme Court adopted this rule in order to ensure the efficient administration of our courts’ continuing jurisdiction over children subject to court orders and to ensure that the Friend of the Court would have notice and an opportunity to make recommendations consistent with its obligations. See committee comments to GCR 1963, 727.2 (noting that courts may have difficulty exercising their jurisdiction when a parent moves the child from the state) and GCR 1963, 729.4 (noting that the purpose of GCR 1963, 729.4 was to “facilitate continuing supervision over the child”), reprinted in 4 Honigman & Hawkins, Mich Court Rules Annotated (2d ed, 1967), pp 390-391, 429.
This Court determined that GCR 1963, 729.4— current MCR 3.211(C)(1) — gave trial courts the discretion to approve or deny a parent’s request to move a child’s domicile from this state. See Lem v Lem, 12 Mich App 174, 177; 162 NW2d 683 (1968) (reviewing the trial court’s reasons for granting permission and determining that the decision was not an abuse of discretion). This Court did not at first provide the trial courts with any guidance for evaluating these requests; rather, the trial court could presumably premise its decision on any factors that it deemed relevant to the requested change and this Court would uphold those decisions as long as they did not amount to an abuse of discretion. See id. However, some panels of this Court instructed trial courts to consider the request in light of factors taken from the decision in D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (1976). See Scott v Scott, 124 Mich App 448, 452; 335 NW2d 68 (1983); Henry v Henry, 119 Mich App 319, 323; 326 NW2d 497 (1982); Watters v Watters, 112 Mich App 1, 12-13; 314 NW2d 778 (1981).
Under the so-called D’Onofrio factors, a trial court should consider the rights of the noncustodial parent as well as the rights of the custodial parent in determining whether to grant the requested change in domicile:
“(1) ‘It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children.
“(2) ‘It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation orders when she is no longer subject to the jurisdiction of the courts of this State.
“(3) ‘It must likewise take into account the integrity of the noncustodial parent’s motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations.
“(4) ‘Finally, the court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.’ ” [Henry, 119 Mich App at 323-324, quoting D’Onofrio, 144 NJ Super at 206-207.]
Eventually this Court held that trial courts 'must consider the D’Onofrio factors when resolving a parent’s request to move the child’s domicile outside this state. See Overall v Overall, 203 Mich App 450, 458; 512 NW2d 851 (1994). Further, this Court recognized that MCR 3.211(C)(1) applied to both sole and joint custody orders. See Scott, 124 Mich App at 452 (applying the D’Onofrio factors to a joint custody situation); Henry, 119 Mich App at 324 (applying the D’Onofrio factors to a sole custody situation). Accordingly, under the common law applicable to requests for a change in domicile under MCR 3.211(C)(1), a parent with sole or joint custody could not change the domicile of a child to a location outside this state without obtaining the trial court’s permission and the trial court had to make its decision after considering the D’Onofrio factors, but that decision would not be disturbed on appeal absent an abuse of discretion.
2. THE 100-MILE RULE
The common law governing requests for a change of domicile under MCR 3.211(C)(1) remained the sole law applicable to requests for a change in domicile until the Legislature enacted 2000 PA 422. In its analysis of this bill, the Senate Fiscal Agency noted that MCR 3.211(C)(1) limited a parent’s ability to relocate a child’s residence outside Michigan, but left “movement within Michigan . . . unencumbered. . . .” Senate Legislative Analysis, SB 1244, January 22, 2001, p 1. It explained that this could lead to incongruous results: “[A] parent living in Monroe, Michigan, could be prevented from moving 15 miles or so to Toledo, Ohio, without court approval or consent from the other parent, but could move 620 miles to Ironwood, Michigan” without the court’s approval or the consent of the other parent. Id. The agency stated that the bill’s rationale was to address the belief that, “in situations in which parents have dual legal custody, both parents’ homes should be designated as the child’s legal residence, and changing the child’s legal residence should be subject to a restriction based on a reasonable and consistent distance.” Id. 2000 PA 422 became effective on January 9, 2001 and was codified at MCL 722.31.
The new law provided that a child whose custody “is governed by court order has ... a legal residence with each parent” and that a parent cannot change the child’s legal residence “to a location that is more than 100 miles from the child’s legal residence . . . .” MCL 722.31(1). A parent could, however, change the child’s residence to a location that was more than 100 miles from the current residence if the parent obtained permission from the court or the other parent. MCL 722.31(2). The Legislature further provided that, when considering a motion for permission to change a child’s domicile, the court must consider a series of factors that were in part derived from the D’Onofrio factors. See MCL 722.31(4). Finally, the Legislature provided that this new section did not apply to orders that granted one parent sole legal custody — that is, MCL 722.31 only applied if the custody order provided for joint legal custody. MCL 722.31(2).
It is well settled that the common law remains in force until modified and that courts will not lightly presume a legislative intent to abrogate or modify the common law. Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20, 28; 780 NW2d 272 (2010). Further, when the Legislature does exercise its right to modify the common law, it should speak in no uncertain terms. Id. Because MCL 722.31 and MCR 3.211(C)(1) can be construed harmoniously as complementary provisions, were we writing on a clean slate, we would conclude that trial courts must fully comply with both. See Dawe, 485 Mich at 31-32 (noting that the statutory scheme at issue in that case was not so comprehensive that it suggested an intent to completely abrogate the common law and, for that reason, concluding that the common-law duties remained in addition to the new statutory duty). That is, we would conclude that, before a parent moves a child out of state, the parent must obtain the trial court’s permission and the trial court must consider the D’Onofrio factors even if MCL 722.31 does not apply. Similarly, if MCR 3.211(C)(1) did not apply but MCL 722.31 did apply, the trial court would still have to conduct a hearing and consider the factors codified under MCL 722.31(4). But we are not writing on a clean slate.
After our Legislature enacted MCL 722.31, this Court addressed the continuing validity of the common-law rules applicable to a motion to change domicile under MCR 3.211(C)(1) in Spires v Bergman, 276 Mich App 432; 741 NW2d 523 (2007). In that case, the defendant argued that the trial court erred by failing to make findings of fact with regard to the plaintiffs request to change the minor child’s domicile from Michigan to Texas and by failing to consider the D’Onofrio factors as required under the common law. Id. at 436. The Court in Spires disagreed and held that the Legislature’s decision to codify the D’Onofrio factors altered the common law. Id. at 437-438. Specifically, the Court held that the Legislature’s decision to exempt parents with sole legal custody from the requirements of MCL 722.31 effectively eliminated the trial court’s duty to consider the D’Onofrio factors under either MCL 722.31 or under MCR 3.211(C)(1). Id. at 438-440. Thus, even though a parent must still seek the trial court’s permission under MCR 3.211(C)(1) before moving a child subject to a custody order out of this state, if MCL 722.31 does not apply, the trial court has no obligation to consider the D’Onofrio factors. Id. at 439-440. After the decision in Spires, another panel of this Court held that it was error for a trial court to consider the D’Onofrio factors, as codified under MCL 722.31(4), when considering whether to grant a parent’s request to move the child out of this state under MCR 3.211(C)(1) because MCL 722.31 did not apply. See Brausch v Brausch, 283 Mich App 339, 350, 352-353; 770 NW2d 77 (2009). Accordingly, under the decisions in Spires and Brausch, if a parent with sole legal custody wishes to move a child subject to a custody order out of this state, MCL 722.31 does not apply and the trial court may not consider the D’Onofrio factors. Nevertheless, the trial court must still exercise its discretion to grant or deny the request. See Brausch, 283 Mich App at 350.
We acknowledge that, after the decisions in Spires and Brausch, it is unclear how trial courts might properly exercise the discretion called for under MCR 3.211(C)(1). Indeed, those decisions appear to have rendered MCR 3.211(C)(1) nugatory; if MCL 722.31 does not apply, the trial court may not consider the D’Onofrio factors and, accordingly, must approve the request without further ado, which seems to contradict the notion that trial courts have the discretion to grant or deny requests to move a child whose custody is subject to a court order out of this state. In any event, it is now a matter for our Supreme Court to determine whether and to what extent MCR 3.211(C)(1) should have any continuing validity.
C. APPLICATION
The child at issue here was subject to a court order, but that order provided Brecht with sole legal custody. Accordingly, MCL 722.31 did not apply, see MCL 722.31(2), and the trial court was not required to consider the factors enumerated under MCL 722.31(4) in determining whether to grant the request. Brausch, 283 Mich App at 349-350; Spires, 276 Mich App at 438. Similarly, even though Brecht still had to obtain the court’s permission before she could move the child out of state, because MCL 722.31 did not apply, the trial court could not make its determination in reliance on the D’Onofrio factors. Brausch, 283 Mich App at 350, 352-353. Rather, it had to grant her request as a matter of course. Therefore, the trial court erred when it determined that it was not in the child’s interest to permit the move.
III. CONCLUSION
The trial court erred to the extent that it determined that MCL 722.31 applied to Brecht’s request to move. And, although the trial court still had to determine whether Brecht should be permitted to move the child outside this state, see MCR 3.211(C)(1), it could not consider the D’Onofrio factors in determining whether to grant the request. Brausch, 283 Mich App at 352-353. Moreover, once it determined that MCL 722.31 did not apply, it should have granted Brecht’s request. Brausch, 283 Mich App at 350, 352-353; Spires, 276 Mich App at 439-440 (noting that once the trial court determined that MCL 722.31 did not apply, it properly approved the parent’s request to move the child out of state). For that reason, we vacate the order denying Brecht’s request and remand for further proceedings consistent with this opinion.
Vacated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. As the prevailing party, Brecht may tax her costs. MCR 7.219(A).
SERVITTO, J., concurred with M. J. KELLY, J.
We have cited the bill analysis for background purposes and not as an aid to determining the Legislature’s intent. See Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587 n 7; 624 NW2d 180 (2001).
We note that MCR 3.211(C)(1) also implicates our Supreme Court’s authority to promulgate rules affecting court administration. See McDougall v Schanz, 461 Mich 15, 30-31; 597 NW2d 148 (1999). As already noted, a court that has issued an order governing the custody of a child continues to have jurisdiction over that child, and its duty to act in that child’s best interests might be impaired if the child is removed from the state. | [
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Per Curiam.
Defendant, Jeffrey Lamar Jones, appeals as of right his jmy convictions of two counts of assault with intent to do great bodily harm less than murder, MCL 750.84, and one count each of assaulting, resisting, or obstructing a police officer, causing serious impairment of bodily function, MCL 750.81d(3), carjacking, MCL 750.529a, second-degree fleeing and eluding a police officer, MCL 750.479a(4)(a), third-degree fleeing and eluding a police officer, MCL 750.479a(3), felonious driving, former MCL 257.626c, assaulting, resisting, or obstructing a police officer, MCL 750.81d(l), failure to stop at the scene of a personal injury accident, MCL 257.617a, operating a motor vehicle with a suspended or revoked license, MCL 257.904(1), and possession of marijuana, MCL 333.7403(2).
Defendant was sentenced, as a third-offense habitual offender, MCL 769.11, to 10 to 20 years’ imprisonment for each conviction of assault with intent to do great bodily harm less than murder, 15 to 30 years’ imprisonment for assaulting, resisting, or obstructing a police officer, causing serious impairment of bodily function, 30 to 50 years’ imprisonment for carjacking, 10 to 20 years’ imprisonment for second-degree fleeing and eluding a police officer, 5 to 10 years’ imprisonment for third-degree fleeing and eluding a police officer, 2 to 4 years’ imprisonment for felonious driving, and 2 to 4 years’ imprisonment for assaulting, resisting, or obstructing a police officer. Defendant was sentenced to the time he had already served for his convictions of failure to stop at the scene of a personal injury accident, operating a motor vehicle with a suspended or revoked license, and possession of marijuana.
Because we conclude that the enhancement of defendant’s sentence was not error and that there was sufficient evidence to support defendant’s carjacking conviction, we affirm.
I. SENTENCING ENHANCEMENT
Defendant argues that the trial court erred when it sentenced him, pursuant to MCL 769.11, as a third-offense habitual offender, because one of the predicate felonies relied on by the trial court was committed by defendant when he was a juvenile, and despite having jurisdiction waived from the juvenile court to the circuit court, defendant ultimately was sentenced as a juvenile for the offense.
Claims of scoring error or that the trial court relied on inaccurate information when determining a sentence must be preserved by raising the issue at sentencing, in a motion for resentencing, or in a “proper motion to remand” filed with this Court. MCL 769.34(10). Defendant filed a motion to remand; however, the motion was not timely filed with this Court. Accordingly, defendant’s motion to remand was not a “proper motion to remand,” and this issue is unpreserved. See People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004). We review unpreserved, constitutional error for plain error affecting the defendant’s substantial rights. People v Carines, 460 Mich 750, 752-753, 764; 597 NW2d 130 (1999). Substantial rights are affected when the defendant is prejudiced, meaning the error affected the outcome of the trial. Id. at 763.
Resolution of the issue on appeal here requires interpretation of the statutory provision that allows defendant’s sentence to be enhanced on the basis of his habitual-offender status. Pursuant to MCL 769.11(1), upon conviction of a felony, a defendant may be subject to an enhanced sentence if he has already been “convicted of any combination of 2 or more felonies or attempts to commit felonies.”
The proper construction of a statute is an issue that we review de novo. People v Weeder, 469 Mich 493, 497; 674 NW2d 372 (2004). The goal of statutory construction is “to ascertain and give effect to the intent of the Legislature.” Id. (citation and quotation marks omitted). We assume that the Legislature intended the plain meaning of clear and unambiguous statutory language, and we enforce such a statute as written. Id.
In 1996, after jurisdiction was waived from the juvenile court to the circuit court for prosecution of defendant as an adult, defendant entered a nolo contendere plea to a charge of assault with intent to murder, MCL 750.83. The events giving rise to defendant’s plea occurred in 1994, when defendant was 16 years old. The trial court accepted defendant’s plea. At that time trial courts had discretion regarding whether to sentence a juvenile waived to the circuit court as an adult or as a juvenile pursuant to MCL 769.1(3). In this case, the trial court exercised its discretion and sentenced defendant as a juvenile.
On appeal, defendant argues that the peculiar circumstances of this case do not permit the use of his admitted felony conviction as a predicate offense for sentencing as an habitual offender because a juvenile sentence was imposed as a result of that felony conviction. Whether an adult conviction resulting in a juvenile sentence can be used as a predicate offense for sentencing as an habitual offender pursuant to MCL 769.11 is an issue of first impression.
Here, it is not disputed that the circuit court accepted defendant’s nolo contendere plea to a charge of assault with intent to murder. Pursuant to MCL 750.83, “[a]ny person who shall assault another with intent to commit the crime of murder, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any number of years.” Thus, it is clear that following his waiver from the juvenile court, defendant was convicted in the circuit court of a felony when the trial court accepted his plea to the charge of assault with intent to murder.
We find the fact that MCL 769.11(1) focuses only on whether a defendant has been convicted, and does not contain any language regarding a defendant’s sentence, controlling. This Court “will not read anything into a statute that is not within the manifest intention of the Legislature as gathered from the act itself; rather, the Legislature is presumed to have intended the meaning it plainly expressed.” People v St John, 230 Mich App 644, 648; 585 NW2d 849 (1998). MCL 769.11(1) permits sentence enhancement if a defendant has been “convicted of any combination of 2 or more felonies or attempts to commit felonies.” Therefore, we conclude that because defendant was convicted of two felonies before he was convicted of the instant offenses, the trial court did not err when it enhanced his sentence pursuant to MCL 769.11(1).
II. SUFFICIENCY OF THE EVIDENCE
Defendant also argues that there was insufficient evidence to sustain his conviction of carjacking. Specifically, defendant argues that the evidence does not support the conclusion that the police officer involved was present when defendant gained possession of the officer’s vehicle.
We review de novo a claim of insufficient evidence. People v McGhee, 268 Mich App 600, 622; 709 NW2d 595 (2005). The evidence is viewed in a light most favorable to the prosecution to determine whether a rational jury could find that each element of the crime was proved beyond a reasonable doubt. People v Ericksen, 288 Mich App 192, 196; 793 NW2d 120 (2010).
Defendant’s argument on appeal appears to be based on the prior version of Michigan’s carjacking statute. In 2004, the Legislature amended the carjacking statute. The former version of the statute, MCL 750.529a, provided that a person was guilty of carjacking if he or she
by force or violence, or by threat of force or violence, or by putting in fear robs, steals, or takes a motor vehicle ... from another person, in the presence of that person or the presence of a passenger or in the presence of any other person in lawful possession of the motor vehicle ....
The current version of MCL 750.529a, under which defendant was charged, as amended by 2009 PA No. 128, states that
[a] person who in the course of committing a larceny of a motor vehicle uses force or violence or the threat of force or violence, or who puts in fear any operator, passenger, or person in lawful possession of the motor vehicle, or any person lawfully attempting to recover the motor vehicle, is guilty of carjacking....
This Court’s goal in construing a statute is “to ascertain and give effect to the intent of the Legislature.” People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008) (quotation marks and citation omitted). We determine the Legislature’s intent by the plain language of the stature, and clear and unambiguous statutes are enforced as written. Id.
Defendant’s argument regarding the officer’s presence during the offense is erroneously based on the previous version of the statute. Presence is no longer an element of the offense. When it amended the carjacking statute, the Legislature removed the phrase “in the presence of that person or the presence of a passenger or in the presence of any other person in lawful possession of the motor vehicle” and replaced it with the phrase “any operator, passenger, or person in lawful possession of the motor vehicle, or any person lawfully attempting to recover the motor vehicle.” We assume that when the Legislature removed the word “presence” from the carjacking statute it did so intentionally. See People v Auto Serv Councils of Mich, Inc, 123 Mich App 774, 787; 333 NW2d 352 (1983) (“It is reasonable to presume some intentionality in the insertion of. . . additional [statutory] language.”). Accordingly, that the officer was not present inside the police cruiser at the time defendant took the cruiser is not dispositive because such presence at the time of the initial larceny is not a necessary condition for criminal liability under the amended carjacking statute.
Defendant also asserts that the officer was not lawfully attempting to recover the motor vehicle, but does not explain his basis for this assertion. Contrary to defendant’s argument, the evidence established that the officer was attempting to remove the keys from the ignition and arrest defendant when defendant put the car into drive and stepped on the gas pedal. Accordingly, when viewed in the light most favorable to the prosecution, the evidence was sufficient to establish beyond a reasonable doubt that defendant was guilty of carjacking.
Defendant also claims that the officer “attacked” him first, and that defendant was acting in self-defense. Defendant does not cite any controlling authority for the assertion that an arrestee is entitled to respond with force to an officer’s lawfully attempting to arrest him or her, nor does defendant point to facts on the record that would suggest that the officer was “attacking” him. Indeed, the record establishes the exact opposite. Defendant assumed control of the officer’s police vehicle while the officer pursued him on foot, close behind. The officer grabbed defendant’s arm and told him to get on the ground; defendant responded by striking the officer in the face with a closed fist. The officer’s actions did not constitute an “attack” because the officer was attempting to restrain defendant so that defendant could be arrested. “If a police officer lawfully arrests an individual, he may use reasonable force if that individual resists.” Tope v Howe, 179 Mich App 91, 106; 445 NW2d 452 (1989).
Affirmed.
Jansen, P.J., and Cavanagh and Hoekstra, JJ., concurred.
Juvenile defendants are treated like adult defendants when jurisdiction is waived pursuant to MCL 712A.4(1), which provides:
If a juvenile 14 years of age or older is accused of an act that if committed by an adult would be a felony, the judge of the family division of circuit court in the county in which the offense is alleged to have been committed may waive jurisdiction under this section upon motion of the prosecuting attorney. After waiver, the juvenile may be tried in the court having general criminal jurisdiction of the offense.
At the time of defendant’s sentencing for the conviction of assault with intent to murder, former MCL 769.1(3)- — later amended by 1996 PA 247, effective January 1, 1997 — provided:
A judge of a court having jurisdiction over a juvenile shall conduct a hearing at the juvenile’s sentencing to determine if the best interests of the juvenile and the public would he served by placing the juvenile on probation and committing the juvenile to a state institution or agency described in the youth rehabilitation services act... or by imposing any other sentence provided by law for an adult offender.
According to defendant’s presentence investigation report, defendant was committed to the Department of Social Services for placement until age 19.
In support of his position, defendant relies on People v McIntire, 7 Mich App 133, 140; 151 NW2d 187 (1967), while the prosecution relies on People v McGilmer, 95 Mich App 577; 291 NW2d 128 (1980). Although both cases address peculiar issues regarding the sentencing of juveniles, a close reading of both cases reveals that neither case is directly on point or helpful to the resolution of the issue in this case.
It is not disputed that defendant was also previously convicted of third-degree fleeing and eluding, “a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000, or both . . . .” MCL 750.479a(3). | [
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PER CURIAM.
This case involves the authority of the Governor, exercised in Executive Order No. 2001-9, to reduce the Legislature’s allocation of general sales taxes to the Comprehensive Transportation Fund (CTF) by $12,750,000 for the fiscal year ending September 30, 2002, and to transfer those revenues to the state’s general fund. Appellants claim that the general sales tax revenues allocated to the CTF are “constitutionally dedicated” funds within the meaning of Const 1963, art 9, § 9, and therefore immune to the Governor’s power to balance the budget, Const 1963, art 5, §20.
The Court of Appeals concluded that art 9, § 9, which it found to be ambiguous, does not dedicate any portion of the general sales tax revenues for comprehensive transportation purposes. 260 Mich App 299; 677 NW2d 340 (2004). We agree with the Court of Appeals that the revenues at issue are not constitutionally dedicated and that the Governor had the authority to reduce the Legislature’s allocation of general sales tax revenues to the CTF in EO 2001-9. We disagree, however, that art 9, § 9 is ambiguous. In affirming the Court of Appeals, we rely on the plain meaning of the constitutional provision.
I. FACTS AND PROCEDURAL HISTORY
To alleviate a budget shortfall for the fiscal year ending September 30, 2002, the Governor implemented EO 2001-9. The order transferred $12,750,000 in general sales tax revenues from the CTF to the general fund.
Plaintiffs sought and obtained a preliminary injunction from the Ingham Circuit Court to enjoin the transfer. Plaintiffs maintained that the general sales tax revenues allocated to the CTF were “constitutionally dedicated” within the meaning of Const 1963, art 9, § 9 and immune to the Governor’s power to reduce the expenditure and balance the budget under Const 1963, art 5, § 20.
In a published decision, the Court of Appeals reversed. 260 Mich App 299; 677 NW2d 340 (2004). The Court of Appeals found, the language of the constitutional provision ambiguous, and examined the historical development of art 9, § 9 in determining whether the allocation to the CTF was “constitutionally dedicated.” We granted oral argument on the application. 471 Mich 887 (2004).
II. STANDARD OF REVIEW
Constitutional issues are reviewed de novo. Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).
Our first inquiry, when interpreting constitutional provisions, “is to determine the text’s original meaning to the ratifiers, the people, at the time of ratification.” Id. at 468. This is accomplished by “applying each term’s plain meaning at the time of ratification.” Id. at 468-469. See also Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 375; 663 NW2d 436 (2003).
III. ANALYSIS
The Governor’s authority to reduce state expenditures is found in art 5, § 20, which states:
No appropriation shall be a mandate to spend. The governor, with the approval of the appropriating committees of the house and senate, shall reduce expenditures authorized by appropriations whenever it appears that actual revenues for a fiscal period will fall below the revenue estimates on which appropriations for that period were based. Reductions in expenditures shall be made in accordance with procedures prescribed by law. The governor may not reduce expenditures of the legislative and judicial branches or from funds constitutionally dedicated for specific purposes. [Emphasis added.]
The disputed issue in this case is whether the general sales tax revenues that the Legislature allocated to the CTF are “constitutionally dedicated for specific purposes,” and therefore immune from the Governor’s authority to reduce expenditures. The answer to this question is found in art 9, § 9, which states, in relevant part:
All specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and to propel aircraft and on registered motor vehicles and air craft shall, after the payment of necessary collection expenses, be used exclusively for transportation purposes as set forth in this section. ,
Amount used for transportation purposes. The balance, if any, of the specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and on registered motor vehicles, after the payment of necessary collection expenses; ... and not more than 25 percent of the general sales taxes, imposed directly or indirectly on fuel sold to propel motor vehicles upon highways, on the sale of motor vehicles, and on the sale of the parts and accessories of motor vehicles ... shall be used exclusively for the transportation purposes of comprehensive transportation purposes as defined by law. [Emphasis added.] [ ]
While construing the wording of art 9, § 9 might require effort, the provision’s meaning is clear. The provision limits the amount of general sales taxes that the Legislature can allocate to comprehensive transportation to “not more than 25 percent of the general sales taxes . ...” In doing so, it places a ceiling on the amount of general sales tax revenues that can be used “exclusively for.. . comprehensive transportation purposes . . .,” but does not dedicate any specific amount of general sales taxes to be used for comprehensive transportation purposes. The only conclusion that can be drawn from art 9, § 9 is that the general sales tax revenues described in that provision are not constitutionally dedicated funds.
When construing art 9, § 9, the Court of Appeals mistakenly found that the constitutional provision was subject to alternative interpretations, and then unnecessarily considered its history and purpose and the circumstances under which it was written and later amended. See 260 Mich App 307-311. As described above, the Court should have looked no further than the plain language of art 9, § 9 to determine that the general sales tax revenues allocated by the Legislature to the CTF were not constitutionally dedicated funds. Our obligation is to give the words of our Constitution a reasonable interpretation consistent with the plain meaning understood by the ratifiers. Hathcock, 471 Mich at 468-469. Text that may require reasonable effort to parse is not for that reason ambiguous.
IV
In sum, we conclude that art 9, § 9 is unambiguous, and we agree with the Court of Appeals that, with respect to the reduction of the general sales tax revenues allocated to the CTF by EO 2001-9, the executive order was a lawful exercise of the Governor’s constitutional authority under art 5, § 20.
We therefore affirm the Court of Appeals resolution of this issue in favor of the defendants. In all other respects, leave to appeal is denied because we are not persuaded that the remaining questions should be reviewed by this Court. This case is remanded to the trial court for entry of a judgment in favor of defendants on the merits.
Taylor, C.J., and Corrigan, Young, and Markman, JJ., concurred.
CAVANAGH, J., concurred in the result only.
The maimer in which any funds allocated under this provision to “comprehensive transportation purposes” will be distributed is set forth in the General Sales Tax Act, MCL 205.51 et seq. For fiscal year 2001-2002, MCL 205.75(4) apportioned only 27.9 percent of the 25 percent of revenues to the CTF. The balance of the general sales tax revenues described in art 9, § 9 was directed to the state general fund. | [
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WlEST, J.
September 21, 1922, was the big day of the fair at the village of Hart, Oceana county. Defendant placed a jug of sweet wine in his Ford car and, with a companion, at the noon hour, started for the fair at a high rate of speed. The highway had in its center a strip of tarvia, about eight feet wide, with gravel at the sides. While defendant was driving east at about the center of this tarvia strip, John Nelson, plaintiff’s decedent, was driving west over the tarvia strip, with a part of his automobile somewhat to the south of the center. The cars SO' approached, and when a short distance apart both turned to the north and collided, resulting in the death of John Nelson. This action was brought under the' survival act by the administrator of the estate of John Nelson to recover damages. Plaintiff had verdict and judgment. Defendant moved for a directed verdict on the grounds that the action could not be maintained under the survival act, and plaintiff’s decedent was guilty ' of contributory negligence. Defendant also moved for judgment notwithstanding the verdict. John Nelson lived about 20 minutes after the accident, was unconscious, did not groan and his death was occasioned by internal bleeding induced by ruptured ribs. Death was therefore not instantaneous, but followed the injuries received, and was occasioned by a cause brought into operation by the accident. This being true, life survived the accident until death from internal bleeding supervened. The action was properly planted. Paperno v. Engineering Co., 202 Mich. 257; Swaczyk v. Detroit Edison Co., 207 Mich. 494; Budnick v. Peterson, 215 Mich. 678.
Defendant claimed that when he saw Mr. Nelson’s) automobile approaching, south of the center of the tarvia strip, he thought Mr. Nelson intended to turn in a nearby drive or go south on an intersecting street, and therefore turned to the north to let him have the way to do so. This was a miscalculation on defendant’s part, for Mr. Nelson also turned to the north, evidently to let defendant go by on the right side of the road, as he should have done, and the collision resulted. Under the evidence the question of whether Mr. Nelson was guilty of contributory negligence was for the jury and not one of law for the court and the trial judge was not in error in so holding. Defendant was not entitled to judgment notwithstanding the verdict.
Judgment is affirmed, with costs to plaintiff.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Wiest, J.
Plaintiffs own a lot on Belser street in the city of Ann Arbor. The regents of the University own a lot on Volland street in the same city. Plaintiffs’ lot and the University lot abut at the rear. Defendant Edward C. Pardon, in July, 1923, was superintendent of buildings and grounds held by the regents, and, as such, had permitted Earl Rising, tenant of the Volland street lot, to build a barn on the lot, so close to the line and near a barn standing on plaintiffs* lot that, when the Rising barn burned, July 26, 1923, it set fire to plaintiffs’ barn and destroyed it and its contents. This suit was brought to recover the loss suffered by plaintiffs, and verdict was had against both defendants, but judgment against defendant Pardon alone. The regents were discharged from liability under the authority of Robinson v. Washtenaw Circuit Judge, 228 Mich. 225. Defendant Pardon reviews by writ of error. Plaintiffs claim it was the duty of Mr. Pardon to supervise the use made by the tenant of the property rented from the regents and prevent the tenant from endangering plaintiffs’ property. It is claimed the tenant of the regents built his barn within about three feet of the rear lot line and within about four feet of plaintiffs’ barn, fastened some pieces of 2x4 to plaintiffs’ barn in violation of the housing code of the State, piled combustible material between the barns and permitted children to frequent the barn. The day of the fire a 12-year-old boy, it is claimed, came out of the barn with a cigarette and soon thereafter the Rising barn was discovered on fire, and the fire spread to and destroyed plaintiffs’ barn. What negligence of defendant Pardon was the proximate cause of this fire? Assuming, but not deciding, that the liability of Mr. Pardon is the same as that of an owner, did the duty rest upon him to so supervise the use of the barn by the tenant as to prevent children from being permitted therein or to prevent some trespassing boy from visiting the premises and smoking therein? We think not.
A landlord is not liable for the use of premises by a tenant in such a way as to occasion damage to a neighboring proprietor, merely because there was a possibility of their being so used. The wrong in such a case is that of the tenant and the liability therefor will stop with the tenant. The erection of the barn was lawful and its use legitimate. Any abuse of rights of neighboring proprietors in the use of the barn by the tenant was not chargeable to the landlord unless such abuse was sanctioned by the landlord; and such sanction could not rest upon implied notice and acquiescence. If the fastening of the 2x4 to plaintiffs’ barn was wrongful, still there is nothing in the case to show defendant directed, sanctioned, or even knew that it had been done, and besides, it cannot be said to have had even a causal connection with the fire. The same may be said of the claimed combustible material piled between the barns, for the fire did not originate in such material, neither was such material the cause of carrying the fire to. plaintiffs’ barn. Up to the very hour of the fire there had been nothing done by the tenant which would have justified the landlord in ending his tenancy. If in law the landlord could not have interfered with the use made by the tenant of the premises, surely liability for such use does not fasten to the landlord. There is no evidence in the case of a violation of the State housing code. Section 18, Act No. 326, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5180 [19]), upon which plaintiffs rely, has no bearing. This section regulates the space between buildings on the same lot with a dwelling; permits a stable at the rear of a lot but requires a passage at least three feet wide from the yard to an alley. The barn built by the tenant was wholly upon the land of the regents and there was no negligence on the part of the regents or of their agent in permitting it to be built close to the line. Plaintiffs claim the fire was set in the Rising barn by the 12-year-old boy lighting a cigarette therein. This boy, so far as the record shows, was a trespasser. The tenant had no children. But it is said the tenant had ponies in the barn and this called children and it was the duty of defendant Pardon to notice such fact. The evidence fails to show smoking by children about the barn previous to the date of the fire. It was not the duty of Mr. Pardon to pay attention to the fact that the tenant had ponies in the barn and this called children, nor should he have anticipated that some boy might visit the barn and smoke therein.
The circuit judge instructed the jury that:
“Something was said to you about the construction of the barn contrary to the housing code. Unless you find that was the proximate cause of the injury complained of, of course you could not find for the plaintiffs in this cause.”
We have searched this record to discover what violation, if any, with reference to the provisions of the housing code, was before the jury, and find none. If there was no violation of the housing code permitted or acquiesced in by Mr. Pardon, then he is not liable in this case. The building of the barn did not violate the housing code. The two barns being less than four feet apart rendered it inevitable that the burning of one would spread to the other and the combustible material, if any, lying between the two barns, cannot be said to have caused the fire to spread from one barn to the other. The proximate cause of the fire was under plaintiffs’ evidence the careless act of an intruding boy.
Rowland v. Kalamazoo Sup’ts of Poor, 49 Mich. 553, relied on by plaintiffs, involved liability arising-from negligently permitting set fires to spread, to the injury of a neighboring proprietor, and lays down no rule aiding plaintiffs in this case. We find no negligence chargeable to defendant Pardon rendering him liable in this .case. The proximate cause of the fire was not his failure to perform any duty or in permitting the tenant to perpetrate a wrong. The court should, notwithstanding the verdict, have entered judgment in favor of Mr. Pardon.
The judgment is reversed and the case remanded with direction to enter such judgment. Defendant Pardon will recover costs.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Steere, J.
This is a proceeding by certiorari in which defendant seeks reversal of an award by the department of labor and industry to plaintiff, as widow of Dennis Millaley, for his claimed accidental death while in the service of the defendant city as a policeman. The deputy commissioner who conducted the arbitration proceedings found plaintiff was not entitled to compensation, but on her appeal to the full board an order was made by two of the commissioners reversing the deputy’s decision and awarding her compensation “at the rate of $10 per week for a period of 300 weeks, less 13 weeks and 2 days, for which compensation was paid to deceased during his lifetime,” $501.67 of which was found then due and ordered paid forthwith. Defendant’s grounds for denying plaintiff’s right to compensation are summarized as follows:
“1. Because any claim on the part of the claimant in this case is barred by the limitation provided by section 15, part 2, of the workmen’s compensation act, as amended by Act No. 64 of the Public Acts of 1919 (Comp. Laws Supp. 1922, § 5445), in that the claim is not made until more than two years after the date the injury was received.
“2. Because no claim was made against the city within six years from the date of the recovery of deceased from the first injury claimed, or from the date of the final settlement of all claims against the city, and because the same is barred under the general statute of limitations (3 Comp. Laws 1915, § 12323).
“3. Because said Dennis Millaley was at the time of his injury a police constable and captain of police, an officer of the city of Grand Rapids and not an employee within the provisions of the workmen’s compensation act.
“4. Because the accident mentioned was not the cause of the injury complained of in this case, it being claimed that the blood poisoning that resulted from the accident resulted in the injury now complained of, but not the accident itself.”
Dennis Millaley died February 13, 1923, when approximately 65 years of age, survived by plaintiff and their three grown children. The death certificate furnished by the physician who attended him in his last illness stated the cause of his death was “arteriosclerosis, general myocarditis degenerative.”
Deceased was a member of the police force of the city of Grand Rapids for 38 years prior to January 23, 1922, at which time he was retired on a pension of $50 per month which was regularly paid him by defendant until his' death. , With the exception of an illness from blood poisoning in 1916 incapacitating; him for duty for nearly three months, he was regularly on duty during the 38 years of his active service on the police force. He entered the service as police constable in 1884 and by promotion attained the rank of police captain in 1908, in which position he served on night duty from that time until his retirement. His hours of duty were from 6 p. m. to 3 a. m. During the night of March 27, 1916, while engaged in making an arrest, he sustained a bruise or abrasion of his left shin. On his return to police headquarters, he called the attention of the police matron to the abrasion. She took her “first aid kit” and dressed the injury. It did not then disqualify him for duty and he thereafter continued on active duty without loss of time until May 5, 1916, when it was found blood poisoning had developed. The physician with whom he had consulted sent him to a hospital and called another physician in consultation. They found a serious condition with abscesses formed along his leg. An anaesthetic was administered and the abscesses were opened in five different places. He remained in the hospital for about two weeks and was then taken to his home where the physicians attended him until another abscess developed near the groin which they relieved by opening under an anesthetic. His regular physician visited him thereafter until about August 7, 1916, when he had sufficiently recovered to return to active duty at police headquarters although yet lame. He at first used crutches and rode in an automobile to and from the police station. Plaintiff testified he first used crutches and then a cane, saying “I should judge in all, the crutches and cane, six weeks.” After returning to duty he visited his physician’s office a few times. The latter said:
“I would see him, sometimes every day, on duty. I don’t remember how many times he called at the office after that; it was only for a little while, so to speak; he got well; he didn’t call at the office, but I would see him on the street and so on.”
On September 15, 1916, deceased gave notice to the city under the employers’ liability law of claim for compensation for injury received while in its employ and on the same date a “report” of the accident was made by, or for the employer “City of Grand Rapids, Board of Police and Fire Commissioners,” signed by H. W. Nelson, as “Secretary Board of Police and Fire Commissioners.” These papers were received by the industrial accident board on September 16, 1916. An agreement for compensation between the parties was entered into, signed by “Dennis Millaley” and “Board of Police and Fire Commissioners, by H. W. Nelson,” under which Millaley received full pay for all lost time and payment of the hospital and physicians’ bills. Settlement receipt and final report of the accident followed. The final report to the industrial accident board was made November 10, 1916, and showed, amongst other things—
“Date of final payment — October 25, 1916. Date of accident — March 27, 1916, but worked until May 5, 1916. > Date of return to work — August 7, 1916.”
The compensation proceedings were in customary form on blanks required by the board to be .used, the printed instructions advising that “incomplete or indefinite reports will be returned for correction. * * * Incomplete reports will not be accepted.” The final report bears an indorsement or memorandum “(completed).” This settlement was made after deceased had resumed his duties and been on active service for some time. He remained on active duty as police captain for over six years thereafter. The police matron testified that when he first returned he was lame and used a cane, she did not remember how long but he got well and attended to his duties as usual, apparently cured of all his troubles, and from that time on he worked there for five or six years.
After the adjustment of his claim in full and final report in 1916 no further claim or complaint to defendant was made that Millaley was yet injuriously affected in any way as a result of that accident until after his death, when plaintiff began this proceeding claiming that the hardening of his arteries of which he died in 1923 was caused by the blood poisoning which resulted from the injury to his shin in 1916. She produced expert opinion testimony of physicians to the effect that although the symptoms of blood poisoning might be gone the attack of it which he underwent “would leave a residual effect,” tending to lower his mental and physical capacity, which “might be the sequela of an infection of this kind,” through which the cause of his death might be traced to blood poisoning which resulted from the accident. Upon that ultimate theory the conclusions of the medical experts were conflicting. They appear to agree that the most common cause of arterio-sclerosis is old age, but disagree as to whether any infection except syphilis will cause it. On the facts of this case hypothetically stated from plaintiff’s evidence, they disagree as to whether or not the blood poisoning caused or contributed to the disease of which Millaley died. While the expert testimony on that subject was largely limited to possibilities or probabilities as to what causal connection the blood poisoning might or might not have with the disease of which deceased died, there was sufficient positive expression of opinion both ways to raise an issue of fact within the province of the commission to decide whether or not plaintiff showed by a preponderance of convincing evidence that deceased’s death in 1923 was caused by the abrasion of his shin in 1916. This court is not at liberty to pass upon its credulity.
Defendant’s contention that deceased was an official of the city and not an employee within the meaning of the compensation act is not tenable under the facts of this case. Whether a member of the police force of a city is to be regarded as an employee or an officer of the city depends primarily upon the provisions of its charter. Blynn v. City of Pontiac, 185 Mich. 35; McNally v. City of Saginaw, 197 Mich. 106; Walker v. City of Port Huron, 216 Mich. 361. In Burroughs v. Eastman, 93 Mich. 433, this court held, as applied to the issue there raised, that a captain of police was not under the provisions of its charter to be regarded as an officer of the city of Grand Rapids. Furthermore, the city in its original report of the accident involved here recognized deceased as an employee, settled with him as such, paid him compensation under the act, and when this case was first heard its counsel answered “Yes” to the inquiry of the commissioner: “Is it stipulated that both employer and employee was subject to the compensation laws?”
The more serious question raised is defendant’s contention, consistently urged from the beginning, that under the facts of this case plaintiff’s claim is barred by both the general statute of limitations and the special limitation of the compensation act. The general statute of limitations (3 Comp. Laws 1915, § 12323) provides:
“All actions in any of the courts of this State shall be commenced within six years next after the causes of action shall accrue, and not afterward, except as hereinafter specified: Provided, however, * * *
“2. Actions to recover damages for injuries to person or property shall be brought within three years from the time said actions accrue, and not after-wards.”
The limitation specified by the employers’ liability act provided as follows at the time of deceased’s injury (2 Comp. Laws 1915, § 5445) :
“Section 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.”
This section was amended seven years later (Act No. 64, Pub. Acts 1919 [Comp. Laws Supp. 1922, § 5445]) to read as follows, so far as material here:
“Section 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within three months after the happening thereof, and -unless the claim for -compensation with respect to such injury, which claim may be oral or in writing, shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, within six months after said death; or, in the event of his physical or mental incapacity, within the first six months during which the injured employee is not physically or mentally incapacitated from making a claim: Provided, however, That in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within three months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within six months after the happening of the accident, but does develop and make itself apparent at some date subsequent to six months after the happening of the same, claim for compensation may be made within three months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee, but no such claim shall be valid or effectual for any purpose unless made within two years from the date the accidental personal injury was sustained.” * * *
It is urged for plaintiff that the general statute of limitations has no application here because the department of labor and industry is not a court, as this court has held, and a proceeding before it is not an action “in any court of this State.” Technically viewed, there is much force in that contention. When creating this commission, however, the legislature provided a special statute of limitations to govern its proceedings, evidently recognizing that its quasi-judicial functions were analogous to that of a court in the particular that the functions of both were directed to compulsory collection of money claimed due, or the enforcement of a legal right. The awards of the commissioners, like determinations of referees, or commissioners on claims, are in a sense auxiliary to actions in courts, as a supplemental judgment in a court is essential for their enforcement by legal process (2 Comp. Laws 1915, § 5466). That these proceedings are directed to like purpose and in many respects analogous to actions at law for personal injuries is evident, and the legislature has apparently so recognized in providing statutes of limitation. While the general statute fixes the maximum for all actions at six years, in actions for personal injuries based on some wrongful act of the defendant it is limited to three years, and in proceedings under the compensation act, where no negligence or tort of the respondent is essential to an award, it was limited to six months at the time this accident occurred, and by later amendment enlarged with the express limitation that no such claim should be valid for any purpose unless made within two years from the date of the accidental injury.
When the legislature in providing a statute of limitations for the amended act began the paragraph with a provision that “No proceedings for an injury under this act shall be maintained” unless notice is given within three months and claims made for compensation within six months, followed by certain excepting extensions in special cases including “or in case of the death of the employee within six months after said death,” and then expressly provided that no such claim should be “valid or effectual for any purpose unless made within two years from the date the accidental injury was sustained,” there is little room for an inferred legislative intent that for “some purposes” the time might be even extended beyond the six-year limitation of the general statute. It would be a forced construction to so hold were the words “for any purposes” ignored, but as it reads the plain limitation following the excepted extensions is graphically emphasized.
In its findings the commission cites Curtis v. Slater Construction Co., 194 Mich. 259, to the point that once it has acquired jurisdiction of a case either by an award or an agreement under the act in regard to compensation it “retains jurisdiction indefinitely.” The commission was created by statute and has no jurisdiction beyond that conferred by the statute. Its jurisdiction acquired over a case by award or agreement is definitely limited to ending, increasing or diminishing the weekly payment awarded or agreed upon, within the maximum and minimum amounts specified'for not to exceed the number of weeks authorized by the act, with costs, fees, etc., when application for review is made by one of the interested parties (2 Comp. Laws 1915, § 5467, as amended by Act No. 60, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 5467]).
In the Curtis Case, John Curtis was injured November 20, 1913. By agreement with his employer he was paid weekly compensation for a time, was paid and receipted for a certain amount in final settlement and returned to work, but later claiming that he found himself unable to continue work because of his injuries he petitioned the industrial accident board on December 6, 1914, to re-open the case and grant further compensation. An award was made on September 23, 1915. He had died, apparently of his injuries, in the meantime, and the claim was renewed in the name of his administratrix de bonis non. The award only covered the period from the last payment to the date of his death. The court held that by the agreement for compensation filed with the board the employer waived the statutory requirement that the employee should make his claim within six months from the date of the injury and affirmed the award. The Curtis Case again came before this court (202 Mich. 673) and it was found that the widow had lost all right to claim compensation through failure to make her claim six months after Curtis’ death. In that and other cases cited where claim of compensation after death was made no question of the two-year or general statute of limitations running from the date of the accident was involved. Of this law, it was said in Podkastelnea v. Railroad Co., 198 Mich. 321:
“The purpose of requiring a claim for compensation is to give the employer notice, to enable him to employ skilled physicians to treat and care for the employee, thus minimizing his loss, and inuring to the benefit of the employee. It is its purpose to enable him to investigate claims made against him, and to do this when the matter is fresh in the minds of those who saw or knew of the accident, and to prevent the pressing of stale and unfounded claims. * * *
“The whole scheme of this act is designed to work out a speedy adjustment and payment of claims for industrial accidents. The injured employee is given a reasonable time, three months, in which to give notice of the accident, and ample time, six months, to make claim for compensation, with certain exceptions, named in the section.”
The six months limitation of time as first set by the act was found to work harshly in certain special cases where the result of the injury was not at first clearly manifest, and in 1919 the legislature amended and revised that section of the act, retaining the six months limitation after the death of the injured party, which as it read in the old act was otherwise unlimited and ran for his lifetime no matter how long he lived, but with that provision before them and presumptively in mind positively and without qualification fixed two years as a proper limitation within which all such personal injury claims for compensation should be made. It cannot be said with reason the legislature blundered, or did not intend to say what it so plainly said. It was in harmony with the design of the act, as above quoted, to work out a speedy adjustment of claims for industrial accidents and prevent the pressing of stale and unfounded claims, and .within the spirit of our general legislation on limitations, which limits actions for personal injuries to half the six years allowed for other actions, for reasons generally recognized as well founded.
The test of the right to compensation under the act is the inability of the injured employee to work and earn his wages at the employment in which he was-engaged when injured. In the instant case when deceased had apparently recovered from his attack of blood poisoning in 1916 and was able to resume his employment, defendant promptly recognized his claim for compensation, paid him full wages for lost time, hospital expenses, etc., and made a final settlement with him under the act, satisfactory to both parties. He thereafter continued in defendant’s employ in the same position as before, at full wages, without any lost time until January 25, 1922, when he retired on an old-age pension to which he was entitled and died about a year later of arterio-sclerosis, or hardening of the arteries, a disease of which, as plaintiff’s expert testified, “the principal cause is old age.”
The right to compensation for industrial accidents where the employer is blameless is purely statutory.
“Where a statute grants a right which did not exist at common law, and prescribes the time within which it must be exercised, the limitation is of the essence of the right. The statute of limitations is a positive rule of law which must be enforced by the courts when pleaded and found applicable.” 1 Wood on Limitations (4th Ed.), 11.
This case falls within both the spirit of the act and letter of the prescribed limitation under consideration. It follows that the award appealed from must be and the same is hereby reversed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Bird, J.
Edwin F. Cosendai, plaintiff’s husband, was employed by Piggott Brothers in their store in Bay City. In getting ready to make a display of their goods, it is the claim of plaintiff that her husband was called upon to assist, that he was called upon to assist in moving a stove, and while doing so he was suddenly seized with a severe pain in his abdomen. He grabbed his stomach and said “My God, I am sick.” He went and sat down, but later went to his home. The next morning he returned to his work, but remained only a short time. An operation for appendicitis followed and drainage tubes were inserted. Later another operation was had. A few days after the last operation he died.
The claim is that the appendicitis was caused by the strain in lifting the stove. It was established by medical testimony that appendicitis could be caused by a strain, but the doctors who performed the operation did not say that in this case appendicitis was probably caused by the strain. Dr. Kerr gave no material testimony on this question. Dr. Clark testified, as follows:
“The Commissioner: Why do you think this condition is produced by a strain?
“A. I did not state so, your honor.
“The Commissioner: You sai.d it was your opinion.
“A. I do not think so. I said it could be done. That is a condition that sometimes causes it, whether this was the thing I don’t know.
“The Commissioner: I misunderstood you.
“A. That is one of the causes, but whether or not that was the cause of this I do not know. I would not say. It can be done.”
Perhaps there was a question of fact in the case. If so, the board considered the case and resolved the question of fact against plaintiff. If the case turns upon a question of fact the finding of the board is final with this court. We think there is no occasion to disturb the conclusion of the board. Defendants will recover costs.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Sharpe, J.
In October, 1922, Matt Johnson was in the employ of the defendant lumber company at a camp about four miles from Bergland, where its saw-mill was located. About the eighth day of his employment, he “had diarrhcea and felt sick.” . He continued work, however, but “was weak and had a high fever.” He went to his home about 20 miles distant. He was too weak to work, and about a week later took to his bed. Dr. Florentine was called, and pronounced his ailment to be typhoid fever. In about three weeks he died. An award of compensation by the department of labor and industry is here reviewed by the defendants by certiorari.
Defendants insist that no notice that the deceased was afflicted with typhoid, or that his death was caused, thereby, was given within the time (three months after the happening thereof) fixed by the' statute (Comp. Laws Supp. 1922, § 5445).
In Ames v. Lake Independence Lumber Co., 226 Mich. 83, 90, Mr. Justice Steere, speaking for the court, said:
_ “This is a special statutory proceeding. The condition that the party sought to be charged must be given or have notice or knowledge of the accident, within the limitation provided is a substantial, statutory right which when claimed may not be ignored, either by a commission or. court. Podkastelnea v. Railroad Co., 198 Mich. 321; Herbert v. Railway Co., 200 Mich. 566.”
The finding of the board as to notice is thus stated':
“The testimony shows that at the time deceased left respondent’s camp he informed the camp foreman that he did not feel well and was advised by the foreman, to go_ home and come back when he felt better. At the time when, deceased died Dr. Moll was requested by the president of the respondent employer to make an investigation of its camp and he did so, taking samples of the water to have them analyzed. Also the foreman of the camp was inoculated for typhoid fever. It would seem from the fact that respondent was informed that deceased had died of typhoid fever, together with its knowledge that other cases of typhoid had come from its camp and the investigation that was immediately started upon the death of deceased that it had grounds to believe that the typhoid fever originated at their camp and so had notice and knowledge of the accident.”
Dr. Moll, the health officer, testified that he took specimens of the water and sent them to the State chemist for analysis. Nothing was said to him about the illness or death of Johnson in connection therewith. He also testified that there was an epidemic of typhoid in that county that fall and that three other men who had worked in the camp were so afflicted.
A careful reading of the record fails to disclose •any proof “that respondent was informed that deceased had died of typhoid fever,” or that its foreman or any of the officers of the company knew that he was so afflicted. The first direct notice that the employer received of the death of Johnson, or that claim for compensation would be made, was on September 29, 1923, nearly a year after he left the camp. The delay in giving such notice was much greater than in the Ames Case, and in our opinion bars recovery.
The award is vacated and set aside.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Steere, J.
Defendants appeal by certiorari from an order of the commission of the department of labor and industry awarding compensation for the accidental death of Mrs. Eva Harmon on November 5, 1923, resulting from a collision of the automobile in which she was riding with an interurban electric railway car at a highway crossing between the city of Hancock and Calumet, in Houghton county, Michigan. Plaintiff, Florence Stockley, is a sister of deceased and guardian of her son, Edward Harmon, a minor then 9 years of age and wholly dependent on his mother for support. The two sisters were school teachers living in Hancock. Miss Stockley taught in the Hancock school and Mrs. Harmon was employed as a teacher in the high school at Houghton, which is located directly across Portage lake to the west, a bridge connecting the two municipalities. The county school commissioner of Houghton county had received instructions from the State superintendent of public instruction to advertise an “inspiration institute” for the teachers of Houghton and Keweenaw counties to be held in the high school building at Calumet on Monday, November 5, 1923. This he did by publishing a notice in the newspapers of the district which concluded as follows:
“State Superintendent Thomas El Johnson will be present as conductor. All teachers are urged to be present. A cordial invitation is extended to all in terested in school, especially to school officers and parents, to attend both morning and afternoon sessions. Signed, J. Bettens, Commissioner of schools.”
Professor John E. Erickson was superintendent of “School District No. 1 of Portage township,” which included the schools of Houghton, and had control of all teachers in that district. He issued a bulletin on October 23, 1923, copies of which were sent to the teachers in his district, a paragraph of which reads as follows:
“Schools of Portage township will be closed Monday, November 5th, to allow teachers to attend the county institute which will be held at Calumet on that date. There will be morning and afternoon sessions, and all teachers are expected to attend. For time and place watch the newspapers.”
Superintendent Erickson testified that he instructed all the teachers under him to attend the institute and attended it himself; they were all required to go, were paid for so doing as though teaching and every teacher went every year unless detained on account of sickness ; refusal to go would reflect on a teacher’s professional standing, she would receive no pay for that day and personally he “would not feel like recommending her for a position the following year.” The superintendent of the Hancock schools gave like instructions to the teachers under him, and testified to like effect as to the result of failure to attend.
On the morning of November 5,1923, the two sisters left Hancock in a Ford sedan they jointly owned for Calumet to attend the institute, accompanied by Mrs. Munroe, a teacher in the Houghton school who Mrs. Harmon had invited to ride with them. They first drove across Portage lake to Houghton for Mrs. Munroe and then started back through Hancock for Calumet by the main highway between the two places, a distance of between 12 and 13 miles. Miss Stockley drove-the car while Mrs. Harmon and Mrs. Munroe occupied the back seat. At a point about a mile and a half from Calumet where the highway crosses an interurban railway track their auto collided with an electric interurban car, killing Mrs. Munroe and Mrs. Harmon. Miss Stockley was severely injured but recovered. There was a clear view of the approaching electric car for several hundred feet. One auto driver had seen the car and stopped, but Miss Stockley drove past this standing automobile and onto the track just in time to be struck by it. Of the collision she testified:
“The last I remember is that we made Quincy Hill on high and that I remarked the engine never worked better and that I would drive slowly so that we would not arrive at Calumet early. I have been told that I was driving slowly just before the accident; that I passed a car parked on the right side of the road; and that a Studebaker car passed on my left. I did not see the street car which came from my right off a trestle which ends at the crossing. I heard no exclamation from the others and don’t think they realized they were struck. * * * I am very familiar with the crossing where the accident occurred. There is a clear view of the trestle for some distance. The day was clear.”
On November 6, 1923, Superintendent Erickson reported the accident to the department of labor and industry on one of its blank forms entitled “report of compensable accident,” naming “School District No. 1 of Portage township” as the employer. “By John E. Erickson, supt. of schools.” He testified that as superintendent of the district he participated in hiring deceased and had charge of all teachers in the district. Mrs. Harmon’s contract to teach that year was signed, “District Board of School Number one of Portage Township, by W. F. Miller, director. J. T. Finnigan, moderator. Eva S. Harmon, teacher.”
On December 3,1923, a “supplemental report of fatal accident” was made to the commission on one of its forms, signed “School District No. 1, Portage Twp. by W. F. Miller, secretary.” A claim for compensation was thereafter made, and filed with the commission. Liability was denied and hearing had before a deputy commissioner who made an award for the maximum amount authorized under the industrial accident law for death, which was affirmed on appeal to the full commission.
The controlling issue presented here is whether the facts shown furnish any legal evidential support, direct or inferential, for the conclusion of the commission that the fatal accident which befell deceased arose out of and in the course of her employment as a teacher. Defendants contend that it does not, and their counsel particularly attacks the resort of the commission in support of its finding to the theory that the reports of the employer are an admission—
“and may be taken as prima facie evidence that deceased was an employee of respondent employer and that she sustained an accidental injury which arose out of and in the course of her employment.”
This court has held in cases cited by the commission that an employer’s report, where there was full opportunity to investigate the facts, is prima facie evidence of the facts stated and that the accident occurred as reported. It may or may not as a proposition of law furnish prima facie evidence that the accident arose out of and in the course of the injured party’s employment, which is the issue of law involved here. The purpose of requiring a report of the accident is to give the commission timely notice and opportunity to investigate and determine liability if denied by the employer. If important here, there is force in defendants’ contention that it does not appear Superintendent Erickson had authority to make the report he made and bind the school district by it. But a report was also made by the district, signed officially by its secretary who was also its moderator and whose authority is not questioned. The reports are in harmony with the undisputed facts so far as they go, and of little aid or importance in this inquiry.
It is shown without dispute that deceased, a qualified teacher holding a life certificate, was in defendant’s employ as teacher in the Houghton high school at the time of the accident, which occurred at about 9 a.t m. while she was on her way from Houghton to Calumet to attend a teachers’ institute, as she had been directed to do by the superintendent in charge of the Houghton schools, which were closed that day because the teaching force was required to be in attendance at the institute.
It is strenuously contended for appellants that deceased’s death neither, arose out of nor in the course of her employment because it was limited by her contract of hiring to teaching in the high school at Houghton, and even if her contract should be construed as inferentially including attending the teachers’ institute at Calumet, she was not injured while in attendance, but on a public highway when going from her home to the place where the convention was to be held. Teachers’ institutes are authorized by statute in this State in connection with our public school system. The State superintendent of public instruction is required to annually appoint the time and place of holding one in each county, except as certain conditions may allow him in his discretion to hold an institute for the benefit of two ■ or more adjoining counties. While the act itself does not in express terms make attendance mandatory, it recognizes so doing as compensable service in the line of employment as a teacher, requires that the superintendent of public instruction or his duly appointed conductor shall give each attending teacher a certificate of attendance, recognizes the right to close the public schools for that purpose and provides that each teacher so doing “shall not forfeit his or her wages as teacher during such time as he or she shall have been in attendance at said institute.” 2 Comp. Laws 1915, § 5973.
A teachers’ institute in the system of common schools of this country is defined as—
“An assembly of -teachers of elementary or district schools, convened by a county superintendent or other school authority, to receive or give normal instruction. The work consists of a brief course of class exercises, lectures, and examinations.” — Century Dictionary.
The county commissioner of schools testified among other things that the purpose of their institutes was to inspire the teachers of the county and bring before them subjects of vital interest to the schools, and those institutes had been conducted in that district by the public school authorities under direction of the State superintendent of public instruction for over 30 years. Professor Erickson stated they were held “for inspirational and instructional purposes, so that better work may be done in the schools of the county during the year.”
While deceased’s contract of hiring does not directly specify as one of her duties attendance at the teachers’ institute, it obligates her to faithfully,“discharge all duties as such teacher in accordance with the statutes -of the State of Michigan, and to observe and enforce all regulations that have been or may be established by the school board,” and authorizes her dismissal “for violation of the contract,” which by reference includes and is to be construed in harmony with statutory pro- • visions touching that subject.
When this teachers’ institute was called in that district as provided for by statute, the Houghton schools were closed on the appointed day, as the law author izes, for the teachers to attend it. They were timely notified and instructed by the superintendent to attend. The law impliedly recognizes so attending as a service under their contract equivalent in value to teaching and requires that they be paid accordingly. Under such conditions it can fairly be said that deceased was performing a special duty within the scope of her contract and course of her employment when devoting the day to attending the institute as directed.
It is also contended that even if in the course of her employment deceased’s injury did not arise out of it because she had not arrived at, but was only on her way to, the place of holding the institute, in support of which counsel cites decisions to the generally accepted rule that when an employee is injured away from his place of employment and employer’s premises while going to or returning from his work the injury does not arise out of his employment. Various exceptions to that general rule are found, in cases where it is made to appear that the employee although away from his regular place of employment, even before or after customary working hours, was doing some special service or discharging some duty incidental to the nature of his employment in the interest of or under direction of his employer. Deceased’s regular employment, for which she primarily hired, was teaching in the high school of Houghton on her employer’s premises, not far from her home. Attending this legally appointed teachers’ institute when directed to do so by the superintendent of schools, while within the scope of her contract, was an unusual and special service which called her to go on a journey away from her place of employment and regular duties. In their daily school work the teachers were required to be in the school house at Houghton on duty at 8:30 in the morning. At just what time she left Houghton does not appear, but Professor Erickson testified that he left Houghton in his automobile at about 8:30 that morning for Calumet, going by the main highway, and reached the place of accident about 9:15 a. m., “almost immediately” after it took place. The accident occurred during deceased’s usual working hours as a teacher, on a day and at a time when but for the schools being closed and teachers required to attend the institute she would have been on duty in the high school building of her employer at Houghton. The accident occurred during her working hours, but while she was away from there in obedience to her employer’s instructions, in performance of a special service incidental to the nature of her employment and within the scope of her contract. She was not going to or returning from her customary place of employment before or after working hours, but by authority of her employer was going away from her home and place of regular employment on a journey of 12 miles or more, made subject thereby to the hazards of travel, not free to go where she pleased at her own convenience or pleasure, but to a specified place on a special mission in the line of her employment. The criterion is not necessarily that others are exposed to the same dangers of travel, but whether with reference to the nature of his employment the performance of a special service within the scope of such employment, in the interest of or by direction of his employer, particularly subjects an employee to the added danger out of which the accident arises.
Under the circumstances disclosed by this record we are not prepared to hold the finding of the commission that the accident which befell deceased arose out of and in the course of her employment is destitute of evidential support.
The award will stand.
McDonald, C. J., and ClaRk, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
This action was brought to recover damages for the unlawful flooding and overflowing of the plaintiffs’ land by the construction of a dam by the defendant on the Tobacco river at Beaver-ton, Gladwin county, Michigan. The plaintiffs are the owners of the land in question which lies on the north and south sides of the south branch of the Tobacco river. It is their claim that, when allowed to flow in its natural course, the river does not overflow its banks, that in 1919 and 1920 the defendant built a dam across the river about two miles below the plaintiffs’ land thereby obstructing the flow of the water, causing it to rise to an unusual height and to overflow the adjoining land, destroying the crops and timber and depriving the plaintiffs of the use of about 35 acres. The plaintiffs’ deed to the land lying south of the river contained a reservation, “excepting and reserving the right of flowage of the Tobacco river through said land.” This land originally belonged to Ross Brothers, and in all of the successive deeds until the title vested in the plaintiffs there was a similar reservation. It is conceded that the defendant, the Beaverton Power Company, is now the owner of any rights of flowage previously owned by Ross Brothers. On the trial the court refused to submit the question of damages to land lying on the south side of the river, holding that, as to these lands, the reservations in the deeds- gave the defendant an unlimited right of flowage.
The reservation as to the land lying on the north side of the river was different. It was as follows:
“First parties reserving and having the right and privilege to raise the water in said south branch of the Tobacco river not to exceed 20 feet at the dam of said parties of the first part, the same to be constructed in the city of Beaverton; and said first parties also reserve the right to use said river for floating all of their timber on said river.”
About seven acres of the land on the north side of the river were not included in the deed from Ross Brothers to plaintiffs’ predecessor in title, but were included in plaintiffs’ deed. To this they claim title by adverse possession. The court submitted the question of adverse possession and, based on the reservation in the deed, instructed the jury that, if the defendant maintained more than 20-foot head of water at its dam, thereby causing damage to the plaintiffs’ lands, they could recover. The jury found for the plaintiffs and estimated their damages at $841.70. When the plaintiffs rested their case the defendant moved for a directed verdict, which was denied. A motion for a judgment non obstante veredicto was also denied and judgment was entered on the verdict. Both parties bring error.
As to the defendant’s assignments of error, the only question to be discussed is whether the court should have directed a verdict against the plaintiffs or, having declined to do that, whether he should have entered a judgment for the defendant, notwithstanding the verdict.
The defendant relies on plaintiffs’ failure to show:
(1) Title by adverse possession.
(2) That there was any flooding of the lands beyond what would actually occur by the carrying of a 20-foot head of water at defendant’s dam.
(3) If there was an excess flooding, to what extent it flooded the plaintiffs’ land.
(4) What damages they suffered by reason of defendant’s carrying more than a 20-foot head of water at the dam.
Adverse Possession. The plaintiffs claimed to own all of the 80 acres on the north side of the river. On April 26, 1917, they purchased it from Orín L. Spicer. On April 6, 1905, Spicer and his father received from Ross Brothers a deed in which this land was described by metes and bounds, but which did not include 7 acres of the 80 lying between the highway and the river. Spicer, however, went into possession of the whole 80 and continued in possession until he sold to the plaintiffs in 1917. In his deed to the plaintiffs the description included the 7 acres. This 7 acres is low land between the river and the highway and is that portion of the land north of the river which plaintiffs claim was most damaged by flooding from defendant’s dam.
In their brief counsel for the defendant say:
“Could Lewis tack the adverse possession of Spicer to the strip of land which was not conveyed to Spicer by Ross Bros., so that his predecessor and grantor, with Lewis, would have held this land adversely for a period of 15 years and more?”
The plaintiffs can tack Spicer’s adverse possession to theirs because the 7 acres are included in his deed to them. All rights that he had in the land were conveyed to them by this deed. See Robertson v. Boylan, 214 Mich. 27, and cases cited. The court did not err in submitting to the jury the question of plaintiffs’ claim to title by adverse possession.
As to the flooding of the land and the damages occasioned thereby, if the defendant carried more than a 20-foot head of water at its dam and this excess damaged the plaintiffs, we are not concerned with the extent of the flooding or with the actual amount of the damages, for, if there was testimony of any excess flooding and resulting damages, defendant would not be entitled to a directed verdict or to a judgment non obstante. A reversal is not asked on other grounds. In their brief counsel for defendant say:
“The defendant requests this court either to enter a judgment in favor of the defendant or cause an order to be made compelling the circuit judge to enter a judgment for the defendant non obstante veredicto. The defendant does not ask that the judgment be reversed and a new trial ordered.”
The defendant offered no testimony and we think it clearly appears from the plaintiffs’ proofs that there was more than a 20-foot head of water carried at the dam, and that such excess caused them some damage. The extent to which the excess of water flooded the lands and the amount of damages caused by such excess flooding was not proven. But, having proved an actionable trespass, whether they suffered much or little, they were entitled to a verdict for some damages. 1 Sutherland on Damages (4th Ed.), § 10. Therefore, the court did not err in refusing to direct a verdict or to enter a judgment non obstante veredicto. In view of counsel’s concession that they do not desire a reversal, the judgment should be affirmed unless the plaintiffs are entitled to a new trial on their assignments of error.
It is first claimed by them that the court erred in excluding evidence of damages. They complain of the following ruling:
“Q. How much were you damaged by the flooding of this land, Mr. Lewis?
“Mr. Beach: I object to that, if the court please, how much he was damaged, let him show what the facts were; that is a conclusion.
“The Court: I think the objection is well taken.
“Mr. Leibrand: I think the rule is, your honor, that when ownership of property, in reference to the owner testifying to its value, or the value of his damage, the owner of property does not have to qualify as an expert as others do, and that is so held in a very recent case in the Supreme Court.
“Mr. Beach: If the court please, we do not object to this line of questions because he is not qualified, but we object, if the court please, to the man testifying to what his damages are; he cannot state what this property was damaged, and what was done with it— let the jury determine how much he was damaged; if he says that he has sold trees up there and they were worth so much, but when he comes on here in a wholesale way, how much was your damage, that of course does not—
“The Court: Do you think that it is?
“Mr. Leibrand: I will change this question, I will ask the witness how much this timber was worth before it was destroyed, not for sawing purposes but what it was actually worth for the purpose it was used and bought?
“Mr. Beach: Now I object to that, if the court please, for which it was used and bought; we cannot determine when a man buys a piece of property, except he may—
“The Court: I will sustain the objection.”
The court might properly have permitted the witness to answer the question as to the amount of his damages, but his ruling did not preclude counsel from inquiring for facts which would show the amount of damages. That would have been the proper course. It was offered to counsel. He declined to follow it. His failure to show actual damages was not due to the action of the court. There was, therefore, no error in the ruling.
The plaintiffs showed the extent of the flooding of their lands but introduced no evidence to show in dollars and cents the damages they suffered. Notwithstanding a total lack of evidence on this question, the jury gave them a verdict for $841.70. We have said that, having shown actionable trespass, the plaintiffs were entitled to a verdict for some damages. But when the jury got beyond nominal damages they were in a realm of speculation. The question as to whether the verdict is excessive is not before us. The defendant is not complaining of that. And having submitted no proofs from which the jury could make an intelligent determination of their damages, the plaintiffs cannot now complain that they were entitled to a greater amount than the jury allowed them. They were not entitled to a verdict based on mere guess and speculation. In this view of the case it is not necessary to discuss at length any of the other questions urged by the plaintiffs, because they all go to the extent of the injury from the flooding. For instance, the court ruled that the plaintiffs could not recover damages for flooding the land on the south side of the river. Assuming, but not holding, that the court was wrong, how were the plaintiffs injured by that ruling? They had put in all of their evidence before the court made his ruling and had utterly failed to show the damages to land on that side of the river. Having no evidence on the question, they cannot complain that the court refused to allow them to include more land, so that the jury might guess more damages against the defendant. The same reasoning applies to the other questions raised by the plaintiffs. It is not necessary to discuss them. In view of the record they should be content with the verdict of $841.70.
The judgment of the circuit court is affirmed, without costs to either party.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Moore, J.
(dissenting). The bill of complaint is filed in this case to compel defendant to assign to plaintiff certain patents. Defendant filed an answer in the nature of a cross-bill asking for affirmative relief. The bill of complaint was dismissed and a decree granting the relief prayed in the cross-bill was granted. The case is brought into this court by the plaintiff on appeal.
The bill of complaint was filed April 4, 1923. The plaintiff company was organized August 23, 1915. It succeeded Mr. Clark W. Parker who was made its first president. We quote some correspondence that is important:
“(Letter from Clark W. Parker to defendant dated May 18, 1915.)
“May 18,1915.
“Mr. W. H. Allen,
“234 Hubbard Ave.,
“Detroit, Mich.
“Dear Sir: In consideration of your having assigned to me your invention and improvement in rust-proofing of metals, and also of the future assignment to me of any further inventions and improvements you may have or may hereinafter make in the process of rustproofing, I agree to pay you a salary of not less than $15.00 per week so long as you may assist me in this matter. This is with the understanding that I will increase your weekly salary as soon as the profits of this business will warrant me doing so, and further if the business of the Parker Rust-Proof Company develops into a paying business as a result of your efforts, I will see that a further remuneration is given you. The amount and character of this additional remuneration is to be decided by me and I will decide in accordance to the success of_ the business to which your efforts may have to do with.
“Trusting that this is according to our understanding and is satisfactory to you, I remain,
“Yours very truly,
“CWP/EE.”
Assignment dated October 23, 1915.
“Clark W. Parker to Parker Rust-Proof Co.
“For and in consideration of the sum of one dollar to me in hand paid, and in further consideration of an amount of the capital stock of the Parker Rust-Proof Company of America, a corporation of the State of Michigan, having par value of the sum of fifty thousand dollars, and other good and valuable considerations, the receipt whereof is hereby acknowledged,’ I, Clark Warner Parker, of Detroit, Wayne county, Michigan, do hereby sell, assign and transfer unto said Parker Rust-Proof Company of America, the entire right, title and interest in and to certain new and useful improvements in processes for rust-proofing iron and steel invented by William H. Allen. * * *
“And I, the said Clark Warner Parker, hereby agree and bind myself, in consideration of the above premises, to pay over, transmit and render to said Parker Rust-Proof Company of America, immediately upon receipt thereof, all incomes and receipts of .whatever character arising out of or derived from said contract with the Richards Anti-Rust (foreign patents) Limited, or the said power-of-attorney from the said Frank Rupert Granville Richards, of the said letters patent number 1,069,903 immediately upon the receipt thereof, together with all claim, contracts and agreements relating to the rust-proofing of iron and steel.
“And I, the said Clark Warner Parker, do hereby constitute myself trustee for the said Parker RustProof Company of America, in all matters pertaining to the premises above set forth, binding myself to account to said corporation for all properties, effects, rights and privileges now vested in me, pertaining to the rust-proofing of iron and steel.
“In testimony whereof I have hereunto set my hand and affixed my seal this 23rd day of October, 1915.
(Signed) “Clark W. Parker.”
The defendant did not answer the letter of May 18, 1915, but entered into the employ of Mr. Parker, and later the plaintiff company. He also continued to be a professor in the college of pharmacy in the Detroit Institute of Technology, with which college he had been since 1891. When defendant came to the plaintiff he claims he was employed to perfect processes they were then using, known as a “hot process” and that he took out several patents along that line, which were duly assigned by him to the plaintiff company. It is also his claim here that the patents in controversy relate to an entirely different process which does not require heat.
There appears in the record the following paper:
“William H. Allen to Parker Rust-Proof Co.
“For and in consideration of being employed as consulting chemist by the Parker Rust-Proof Company of America, a corporation of the State of Michigan, having its principal office and place of business at Detroit, Michigan, and in consideration of the salary received by me from said Parker Rust-Proof Company of America, and in consideration of the issuance to me of an amount of the capital stock of said Parker Rust-Proof Company of America having a par value of five thousand dollars ($5,000), I, William H. Allen, of Detroit, Michigan, hereby sell, assign and convey to said Parker Rust-Proof Company of America, all of my right, title and interest in and to two applications for letters patent of the United States, for new and useful improvements in processes for rust-proofing iron and steel. * * *
“And, I, the said William H. Allen, hereby agree that I will assign to said Parker Rust-Proof Company of America, exclusively, all rights to employ and use any inventions that I may hereafter make while in its employ, in the rust-proofing of iron and steel, and I further agree to execute all applications for patents, assignments and licenses necessary to carry this present instrument and the contract expressed herein into effect, when requested by and at the expense of said Parker Rust-Proof Company of America.
“In testimony whereof, I have hereunto set my hand and affixed my seal this 6th day of December, 1915.
(Signed) “William H. Allen (Seal)”
Mr. Allen testified that he did not read this paper, nor was it read to him; that he was assured by Mr. Parker that it was simply the assignment of two patents, and that he relied upon the statement of Mr. Parker. The latter was not called as a witness and had severed his connection with the company as will appear later.
In this connection the following, written by the secretary and treasurer of the company, may be of interest:
“(Letter from Mr. Cornelius to defendant, dated March 15, 1921.)
“March 15, 1921.
“Mr. W. H. Allen,
“Office.
“Dear Professor: In accordance with your request I herewith submit to you the following information relative to your employment by' the Parker Rust-Proof Company.
“On May 9,1915, Mr. C. W. Parker made the following arrangement with you which was in the form of a letter from Mr. Parker to you:
“ ‘la consideration of your having assigned to me your invention and improvement in rust-proofing of metals, and also of the future assignment to me of any further inventions and improvements you may have or may hereinafter make in the process of rust-proofing, I agree to pay you a salary of not less than $15 per week so long as you may assist me in this matter. This is with the understanding that I will increase your weekly, salary as soon as the profits of this business will warrant me doing so, and further if the business of the Parker RustProof Company develops into a paying business as a result of your efforts, I will see that a further remuneration is given you, the amount and character of this additional remuneration is to be decided by me and I will decide in accordance to the success of the business to which your efforts may have to do with.
“ ‘Trusting that this is according to our understanding, and is satisfactory to you, I remain.’
“On August 23, 1915, the Parker Rust-Proof Company was incorporated and on August 24, 1915, you were placed on the pay roll at $15 per week. It would therefore seem that prior to the incorporation of the •company you were in the employ of Mr. C. W. Parker. On October 6, 1915, the company issued to you certificate No. 5 for 50 shares of its common stock of the par value of $5,000. At this time it was arranged that you were to receive from stock that was issued to C. W. Parker for patents 200 additional shares of the par value of $20,000. On October 28, 1915, Mr. C. W. Parker assigned to the Parker RustProof Company all his rights under the agreement he made with you under the date of May 8, 1915, above referred to. On September 17, 1918, the company issued to you certificate No. 1279 for 200 shares of its common stock of the par value of $20,000 which was in fulfillment of the arrangement that was made with you on October 6,1915, at the time the 50 shares were issued.”
It will be noticed that there is no reference to the agreement of December 6, 1915. Perhaps this may be explained by testimony to the effect that the paper did not appear with the contracts of the company, but was found with the patent files of the company, whether with those mentioned in the paper itself does not appear.
Under date of January 23, 1917, the following appears on the minute books of the company:
“The president announced that he had appointed William H. Allen as chief chemist of this corporation for the ensuing year at a salary of $3,900 a year, payable in twenty-four equal instalments, on the 1st and 15th of each month. The appointment of Mr. Allen as chief chemist was duly approved.”
That is all that is said about the employment of Professor Allen at that time or anywhere in the minute books of the company.
The following appears in the testimony of the secretary and treasurer of the company:
“Mr. Allen was employed August 24, 1915, at $15 a week. On November 19, 1916, it was raised to $25 a week. On April 1, 1916, it was fixed at $54.17 a half month. On November 1, 1916, it was increased to $108.33 per half month. On January 1, 1917, it was increased to $162.50 a half month. On September 1, 1919, it was reduced to $83.33 a half month. That was effective until April 1, 1921. He resigned on the 7th, I think of March, but our record shows he was paid up to April 1; that would be customary with any employee leaving the company.”
In 1918 Mr. Lane was elected president of the company in place of Mr. Parker, and the latter soon severed his connection with the company.
We quote some of the testimony of the secretary and treasurer:
“Mr. Parker’s relationship at the time he retired was not friendly to our company. The securities commission had made several orders that affected him, and he was not re-elected president. His salary had been cut and very unfriendly relationship existed at that time, I am sorry to say, between Mr. Parker and the company.”
When there was talk of reducing his salary' Mr. Allen testified he protested against it. We quote:
“I had my pay reduced September 1, 1919. I had a talk with Mr. Lane in regard to that a little while before. I could not just say when it was — in the preceding month anyway. That would be in August, 1919. That conversation took place in his office. He told me that he was very sorry, but owing to the condition of the company they would have to cut my wages, and that they were also going to employ some other chemist to come in with me, and I told him that I was very disappointed; that I could not very well live on that, and explained to them that the high cost of living with a sudden dump down like that, that the thing hurt. He says: T don’t want you to look at it as hurting you, because it is really not so. You can practically make your own time and do what you please, and be outside; in fact, you can look upon yourself almost as a free agent.’ That, of course, toned the thing down. My pay had been $3,900 a year for the two years previous. On September 1, it was cut to $2,000.”
The secretary and treasurer of the company testified in part as follows:
“When we reduced Mr. Allen’s salary on September 1, 1919, we in a way put him on the pension list, kept him there because of past services; it was something like that. That is not just an accurate statement of my attitude towards Professor Allen. The company’s attitude was to take care of Mr. Allen. I will say it was not my idea at that time that anything would ever happen that would make the company raise Mr. Allen’s pay, or anything happen to make them reduce his pay.”
At or about this time another chemist was employed by the company.
In May, 1917, Mr. Allen took out a patent for a pickling process. We quote from his testimony:
“I filed that application May 10, 1917, but it had been in use for quite a time. It was very satisfactory. That process was used during the period I was with them. When I left them it was still in use by the plaintiff. When I got out this patent I told Mr. Parker that I was taking it out; that I would give him the shop rights. He had no objection to that. I explained to him that I was taking it out in my own name; it could not be anybody else’s name, and that I would retain the title to it and give the plaintiff the shop right to the patent. * * *
“There was some kick that I should turn over everything. I said ‘nothing doing.’ Mr. Lane may have been or may not have been present. I could not say. I could not say who was in there. I said it was outside of actual business; it belonged to me. I told them I was taking out numbers of these things and I would not do any such thing — assign rights to them — assign the exclusive right in this patent. That discussion became a little warm, and I told them to take it or leave it, and they took it. That was April 18, 1919.”
Mr. Lane was the president. This testimony was practically undisputed, though plaintiff says it acquiesced to avoid a dispute.
We quote further from Mr. Allen:
“They reduced my wages the following September. I filed this application with the patent office for the rusticide on September 25,1919. I made experiments with this formula known as rusticide over in the laboratory of the college of pharmacy in the Detroit Institute of Technology. I am a professor over in that institute. I have been a professor there since 1891, first of all as an assistant, then as professor, then as dean; then as dean emeritus, and I hold the professorship of chemistry. They have a laboratory over at the college. I cannot tell you the exact day I made the first test, but it was some time about the opening of school, probably about the 14th or 15th of September, 1919. I am quite sure that I did not make any tests on this rusticide at the plant of the plaintiff prior to the filing of the letters patent.
“As to what this process consists of and how I happened to test it out, I would say a man may have a thing in his subconscious mind for many years. I was over-in the laboratory there. I had some rusty iron there, and it always had been a dream in my head to get something you could put on freight cars and other things like that, that were covered with rust. * * * And I shook them all up and I
poured them on one of the pieces of rusty iron I had there cut up small something like that (indicating). I had in my cupboard over there some considerable quantities of pieces of rusty iron. I used to boil up things and try things accordingly as things came into my head. By ‘over there’ I mean the laboratory of the college of medicine. Then I went home — just left it. When I came back the next day it was perfect— beautifully black. I took my knife out and cut through it and everything else. I was perfectly well satisfied. I was so glad I called Stout over; he is the dean now; and I told him what I had.”
Mr. Stout corroborated this testimony. This is the process in controversy in this litigation.
Mr. Allen further testified that he made up some of . the preparation and tried it out at a garage owned by the plaintiff. We quote:
“There was a warped door on the garage. The garage was about as wide' as this room, and there were three or four — there were three big doors about that size (indicating), and somebody had very nicely put on that garage door an angle iron to straighten out -the warping, and it was beautifully rusted. You know this was the Parker Rust-Proof Company people. To the Rust-Proof people I said: ‘This is a damned nice ad.’ I said, T am going to try this stuff on,’ and proceeded to do it. Then I daubed it all over, most of it, with that formula. I think I put a little section with some glucose on there, and I drew the attention — well, there wasn’t any need, someone said, ‘Allen, what are you doing?’ I said, T have got some good stuff here that I want protected, and I want to see what you fellows think of it.’ They said it was all foolish or faulty. They could not see any good in it — none of them. * * * I talked to Mr. George Lane, the general manager and president at that time, and had some acid ordered from the Warner Chemical Company. * * * Those five carboys came on in the next shipment which was unloaded in the Parker Rust-Proof Company’s place, their warehouse, and for which I paid, or rather, the firm paid. They were invoiced to me but by some error the firm paid on my invoice and I paid the firm. That is the material that I was using in rusticide. The officials of the plaintiff company knew at that time the use I was making of those five carboys of acid. It was no secret.
“In an effort to try and interest the plaintiff company in the production of this rusticide I talked with Lane, Bristol, Charles Awkerman and two or three of the other fellows around there. * * * He saw that bar of iron along with the other men as they passed it twice a day, but nobody thought it was any good. I asked him what he thought of it, and he found fault with it. You simply cannot go further with a thing when a fellow tells you it is no good. He was sufficiently interested in it to say it was no good.”
The officers of the company admit their attention was called to the application on the garage door, as stated by Mr. Allen, but say they did not suppose the formula had been perfected so it was commercially valuable.
As to the stock claimed by the defendant, the bill of complaint has this averment:
“That this plaintiff, because of the breach by said Allen of his agreement with this plaintiff and his refusal to assign to this plaintiff the patent heretofore issued as described in paragraphs ten and eleven, as required by the terms of said agreement, has kept in its possession said certificate of stock and refused to surrender same to said Allen until he has executed the assignment of said patent as required by his contract of employment and subsequent agreement of December 6, 1915, that upon the compliance by said defendant with the terms of his said agreements this plaintiff is ready and willing to surrender to him the certificate aforesaid.”
The trial judge, after hearing all the testimony, expressed himself in part as follows:
“Allen was not hired to make inventions. He was originally hired to straighten out the process Parker was using, which was a hot process. The discovery of the rusticide process did not occur while Allen was at the plaintiff’s plant or in the service of the plaintiff or of Parker. This was a ‘cold’ process as distinguished from the ‘hot’ process plaintiff and Parker always used. It occurred when and while he was at the Detroit college of pharmacy performing his duties there. He was connected with the college since 1891. The plaintiff’s officers knew this. They knew he worked for others as well as plaintiff. They do not claim that plaintiff was entitled to Allen’s entire time. In fact, they concede that he was to a certain extent his own boss. He came and went as he pleased. He was required to put in no set hours of service or any particular time of service each day. Therefore, even if it were conceded that the contract, Exhibit 2, was valid and binding on Allen, plaintiff would not be entitled to an assignment from the latter of the rusticide patent. But Allen claims that the latter contract is not valid and binding and I think there is quite a satisfactory basis for his claim. I am satisfied from the evidence that Allen executed this document without knowledge of its full contents and reasonably believing it to be merely a document designed to make more perfect plaintiff’s title to the patents previously assigned by plaintiff to Parker and by the latter to plaintiff. It is, however, unnecessary for me to here decide whether or not the contract could be avoided by him for this reason, as I am satisfied that it is not enforceable for other reasons. The plaintiff never issued to him the stock therein mentioned. He was in plaintiff’s employ before and at the time he executed it. There was no change whatsoever in the terms or conditions of his employment. Plaintiff paid him nothing whatsoever in consideration of its execution. In short, no advantage whatsoever accrued to Allen and no detriment whatsoever was suffered by plaintiff in consequence of its execution. It was executed absolutely without consideration and it would be unconscionable to enforce it as against Allen. The evidence indicates that after its execution by Allen it was laid away and apparently forgotten for a long period of time. It was not preserved, cared for and remembered as valuable and valid contracts usually are. No demand was made, that Allen assign any patents to plaintiff until a few weeks before he left plaintiff’s employ although plaintiff’s officers knew long before that time of the discovery by Allen of the rusticide process.
“The agreement between Parker and Allen evidenced by Exhibit 8 (if such agreement in fact existed) was. a personal agreement between Parker and Allen. It was terminated when the plaintiff corporation took over the business and it was not assignable by Parker to the plaintiff. Globe & Rutgers Fire Ins. Co. v. Jones, 129 Mich. 664; 26 Cyc. p. 984. The mere fact that plaintiff paid Allen the same wages for a period after it took over the business is not sufficient to bind Allen to the terms of his personal contract with Parker in whom Parker had ‘implicit’ confidence. The bill must be dismissed.
“It is conceded that plaintiff holds certain stock belonging to Allen. It has no right to hold this stock. Allen is entitled to a decree for the delivery over of the stock.”
The situation as developed by the testimony was practically as follows: A contract was made by defendant with Mr. C. W. Parker, who was to fix his salary from time to time “and I will decide in accordance to the success of the business to which your efforts may have had to do.” Mr. Parker had been relieved of the presidency, and left the company under such circumstances as to warrant the inference that he had been crowded out. Mr. Allen had his salary reduced and the circumstances indicate he had been put on the retired list. Another chemist had been employed. He had invented a cold process after this had happened, and while at work at the pharmacy where he had been connected so long. He called the attention of the officers of the plaintiff company to his process, and they did not regard it favorably, and it was not until after he had interested somebody in the process that they indicated a desire to possess it for the plaintiff company.
It may be well to refer to the paper of December 6, 1915. We have already stated the claim of Mr. Allen as to the circumstances of its making. There was no agreement made at that time by the company to increase Mr. Allen’s salary or to continue it even for a day. There was no agreement to advance any fees to pay the expenses of getting the patent. There was no agreement to manufacture the product patented. There, in fact, was no change in the status of the parties because of the signing of this paper. At the time the instant suit was brought, and for a long time before, Mr., Allen was entitled to the delivery of stock of the par value of $10,000, but it was withheld from him.
Under the facts disclosed by this record we are not inclined to disturb the decree made by the chancellor. See Dalzell v. Dueber Watch Case Manfg. Co., 149 U. S. 315 (13 Sup. Ct. 886); Detroit Testing Laboratory v. Robison, 221 Mich. 442, and cases cited therein.
The decree should be affirmed, with costs to the appellee.
Bird, J., concurred with Moore, J.
Fellows, J.
This bill was filed to secure the
assignment to plaintiff of four letters patent held by defendant. They are as follows: No. 1,290,476 for which application was filed January 8, 1917, and issued January 7, 1919; No. 1,321,182 for which application was filed May 10, 1917, and issued November 11, 1919; No. 1,341,100 for which application was filed November 18, 1918, and issued May 25, 1920; and No. 1,329,573 for which application was filed September 25,1919, and issued February 3,1920. The first three of the patents named are improvements on and aids to plaintiff’s process of rust-proofing. They pertain to its process and are styled by defendant in his testimony as “protective” patents. He also testifies that he was employed to protect the Parker business. There can be no doubt upon this record that these patents are protective of the Parker business; they were all applied for when defendant was in the employ of plaintiff for the purpose stated and was receiving a salary of $3,900 a year from plaintiff which, as disclosed by this record, was greater than he ever before received in his life. The other patent is the So-called “Rusticide patent.” It covers the application of a rust-proofing compound while cold. It was applied for after defendant’s salary had been reduced to $2,000 but while he was still in plaintiff’s employ. While it was actually discovered at the laboratory of the college of pharmacy, he had been experimenting with it for a long time at the Parker plant. I do not understand the rule to be that one employed as an inventor and paid a salary as such may, because the successful idea comes to him when away from the plant, appropriate to himself the invention or sell it to the competitor of his employer. But I think this record fairly discloses that defendant called attention of the officers of plaintiff to the rusticide process and was willing to turn it over to the company but that they either through failure to give it proper attention or otherwise took no interest in it and gave defendant to understand they did not want it and that thereafter he entered into engagements with others so as to estop plaintiff from now insisting on the assignment to it of this patent. For this reason, I agree with Justice Moore that defendant should retain the xusticide patent.
As to the other three patents, those which are protective of the plaintiff’s business, and which pertain solely to its process, which defendant was employed to perfect and protect, I discover no good reason for withholding them from plaintiff and giving them to defendant thereby permitting him to harass plaintiff or sell them to its competitors. And upon this branch of the case, I think it is unimportant whether defendant knowingly executed the contract of December 6, 1915, or was employed as he testifies to protect the Parker business. If he knowingly signed the contract of December 6, 1915, he is bound by its terms to assign these patents to plaintiff. If he was employed as he swears he was to protect the Parker business, and to perfect and improve plaintiff’s process by patents which he himself styles “protective” patents and has been paid therefor, as he has been, then plaintiff is entitled to these patents.
I take but little stock in defendant’s claim that he did not know what he was signing when he signed and acknowledged before a notary public the contract of December 6, 1915. He claims it was brought to him by Mr. Parker and that he took it to a notary public and acknowledged it before him. While in some of his testimony he claims he does not remember any of the conversation between him and Parker, in another part he claims that he supposed it was to “cover an assignment of a couple of patents.” The notary public before whom it was acknowledged, while not recollecting the circumstances, testifies from his universal custom that he either read the paper over to defendant or ascertained that he knew its contents. While placing some credence in this claim of defendant, the trial judge also found that the $5,000 of stock provided for in the contract had never been issued to the defendant. In this the trial judge was clearly in error. He was doubtless confused on the subject. The undisputed evidence showed that a certificate for $5,00.0 of stock was issued to defendant. Later the capitalization of the company was reduced one-half and he surrendered his certificate and a new one was issued for $2,500; and the certificate for this stock and some other defendant had purchased was produced by him in open court and is an exhibit in the case. In addition to this $5,000 of stock, there was also issued to defendant $20,000 more of stock of the company, called bonus stock. This is possibly what led to the confusion in the mind of the trial judge. Under an order of the securities commission this stock was deposited in escrow. When the capital of the company was reduced, the certificate was surrendered and a new one for $10,000 was issued to defendant and this was likewise deposited in escrow. When it was released from escrow it was sent to the plaintiff, and its officers are and at all times have been willing to deliver this stock to defendant when he executes an assignment of the patents which belong to plaintiff and which now stand in his name. It seems strange that the company would issue and the defendant receive the $5,000 of stock provided for in this contract without some knowledge of the contents of the contract on defendant’s part.
But if defendant did execute and acknowledge before a notary public this contract without knowledge of its contents and he was employed as he claims he was and as I have pointed out to protect the Parker business, and while so employed obtained in his own name these three patents which he admits are protective of the Parker business, there is no sound reason for withholding from plaintiff these patents which they have already paid for and which he took in his own name but under the terms of his employment for plaintiff’s use and benefit. Before difficulties arose he had assigned to plaintiff other similar patents which were taken out in his name and by so doing recognized his understanding of his contract with and his duty to the company which employed and paid him. Upon the facts in this casé I perceive no equity in a decree which gives defendant the rusticide patent, the $10,000 bonus stock and at the same time withholds from plaintiff the three patents which, as matter of law and matter of equity, it is entitled to.
I think a decree should be entered in this court requiring defendant to assign these three patents to plaintiff, confirming defendant’s title to the rusticide patent, and requiring plaintiff to deliver to defendant the $10,000 of bonus stock.
McDonald, C. J., and Clark, Sharpe, Steere, and Wiest, JJ., concurred with Fellows, J. | [
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Clark, J.
Mandamus to compel the department of labor and industry to file a claim for review under section 5461, Comp. Laws Supp. 1922:
‘‘The committee of arbitration shall make such inquiries and investigations as it shall deem necessary. The hearings of the committee shall be held at the locality where the injury occurred, and the decision ,of the committee shall be filed with the industrial accident board. Unless a claim for a review is filed by either party within ten days, the decision shall stand as the decision of the industrial accident board; Provided, That said industrial accident board may, for sufficient cause shown, grant further time in which to claim such review.”
The decision of the committee on arbitration was filed with the department on October 24th.. Petitioner, here, defendant there, mailed claim for review in the postoffice at Detroit on November 3d. The claim was received by the department on November 5th and refused, as not having been filed within ten days from the filing of the decision on arbitration. Petitioner had to and including November 3d to file its claim for review. This excludes October 24th, the day on which the decision was filed. Depositing the claim in the mail within ten days will not suffice for the statute requires that it be filed within the time. Review is statutory and the statute must be followed. See Brunette v. Quincy Mining Co., 197 Mich. 301; Kalucki v. American Car & Foundry Co., 200 Mich. 604.
Writ denied, with costs to defendant.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. Wiest, J., did not sit. | [
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Fellows, J.
There are a large number of defendants in this case, but most of them are nominal and the real controversy is between plaintiff and Dorothy Waters Fitzgerald, Charles L. Bertch and Cora M. Bertch, who will be hereafter referred to as defendants. These parties together with Hazel McGregor, plaintiff’s secretary, own all the stock of Associated Merchants Company, defendants owning 1,500 shares, plaintiff 950 shares and Hazel McGregor 50 shares. The company has a lease for a period of years of an apartment house owned by plaintiff and for some time has so successfully conducted it under the management of Mrs. Fitzgerald as to return very substantial dividends. In considering the claims of parties, it Will be necessary later to go more fully into detail, but for the present it will suffice to state that the plaintiff and defendants entered into an agreement which recited that defendants were willing to sell and plaintiff was willing to buy defendants’ stock in the company but were unable to agree upon the price to be paid; and agreeing that plaintiff would buy and defendants would sell such stock, the price to be fixed by one man chosen by plaintiff, one by defendants, and the third to be chosen by the two or in the event they were unable to agree upon a man, one was to be chosen by the presiding judge of the Wayne circuit court. Plaintiff selected John Harold Schmidt, defendants Walter V. Brandon, and at Mr. Schmidt’s suggestion, Claude M. Harmon was selected as the third. Before they had arrived at a final result this bill was filed seeking to set aside the agreement and for other relief and an injunction was issued restraining Messrs. Schmidt, Brandon and Harmon from further proceeding with their duties.
In considering the questions involved we shall take them up in what we deem their logical order rather than their degree of importance. This necessitates first considering the character of the agreement. It was not executed in conformity with 3 Comp. Laws 1915, § 13646 et seq., and plaintiff insists that it is an agreement for a common-law arbitration while defendants insist that it is an agreement for an appraisal.
“The settlement of controversies by arbitration is an ancient practice at common law. In its broad sense it is a substitution, by consent of parties, of another tribunal for the tribunals provided by the ordinary processes of law; a domestic tribunal, as con-tradistinguished from a regularly organized court proceeding according to the course of the common law, depending upon the voluntary act of the parties disputant in the selection of judges of their own choice. Its object is the final disposition, in a speedy and inexpensive way, of the matters involved, so that they may not become the subject of future litigation between the parties.” 5 C. J. p. 16.
“Appraisal or Appraisement. A valuation of, or an estimation of the value of, property; the valuation of goods and chattels or real estate by two persons of suitable qualifications, fair, impartial, and disinterested, having knowledge of the property to be appraised, and with intelligence to ascertain its value after inspection and inquiry on the subject.” 4 C. J. p. 1408.
This court has recognized the difference between an arbitration and an appraisal. Noble v. Grandin, 125 Mich. 383. In the instant case the sole function to be performed by the three men selected was the fixing of the value of the stock; they were not to adjust disputed claims between the parties. The contract provided for an appraisal, not an arbitration, and could not be set aside or revoked at the will of the plaintiff. Noble v. Grandin, supra.
Plaintiff claims that his signature to the agreement was procured by fraud and that he did not intelligently enter into it. He claims that defendants’ attorney prepared it and represented to him that it would have no binding effect and that if he would sign it matters would be settled up without proceeding under it. This is emphatically denied by defendants’ attorney. We deem it but proper to say at this point that plaintiff’s sworn bill filed in this case contained so many charges that are unsupported by proof that we feel constrained to scrutinize plaintiff’s testimony with an unusual degree of care. We are satisfied by the convincing proof and the circumstances surrounding the transaction which are overwhelmingly with defendants that no fraud was perpetrated on plaintiff in procuring the contract and that it was entered into advisedly by him. Beyond any doubt the facts surrounding the making of this contract are these: There was disagreement between the parties; plaintiff’s son is an attorney and we are satisfied notwithstanding claims to the contrary that he represented his father through this entire transaction; he had several conferences with defendants’ attorney and finally they sat down together and jointly dictated the agreement. After it was finished plaintiff was not prepared to sign it; he had besides his son another attorney employed, a man of high standing and unquestioned ability; he submitted the contract to him and retained it in his possession for upwards of ten days when he finally signed it; to effectuate the agree ment defendants were required to deposit their stock in escrow with the Union Trust Company and plaintiff was required to deposit his certified check for $1,000 with the Trust Company; this he did. Plaintiff is a man of large affairs whose business is “re-discounting mortgages and notes on contracts,” and it is unbelievable that he did not know what he was signing or that any fraud was perpetrated to procure his signature.
The plaintiff selected Mr. Schmidt as one of the appraisers. He had been a tenant of plaintiff for a couple of years, and was engaged in the real estate business. Defendants’ selection was Mr. Brandon. He is president of the Bankers Trust Company. It does not appear that he had any acquaintance with defendants before his selection and was named at the suggestion of their attorney. Mr. Schmidt suggested Mr. Harmon with whom he had been acquainted for a number of years and with whom he had had business relations for the third member. Mr. Harmon had been president of the Detroit Real Estate Board and was at the time chairman of its appraisers committee. He had had a wide experience in real estate matters. He was and had been for some time a member of the board of directors of the Bankers Trust Company, consisting of eighteen members. Two members of the firm of attorneys employed by defendants were directors of the Trust Company, and the attorney having active charge of the case had a few shares of its stock! They were not attorneys for the Trust Company. It is the claim of plaintiff that he did not know that Brandon and Harmon were on the board of directors together when they were selected although he learned of that fact soon after. Mr. Schmidt also claims he did not know of this fact, and it was claimed by plaintiff that Harmon for this reason was disqualified from acting as an appraiser. It developed on the hearing that Mrs. Bertch had a loan at the Bankers Trust Company secured by a mortgage. The amount of it does not appear, nor is it claimed that the security was not ample or that either Brandon or Harmon had anything to do with making it. She was not an active participant in the proceedings, the business pertaining to the appraisal being entirely conducted by Mrs. Fitzgerald. This loan is noted and commented on by plaintiff’s counsel but the main contention in the case centers around the claim that Harmon was disqualified by reason of his relations with Brandon and the fact that Mr. Denby and Mr. .O’Brien were also members of the board -with him. No doubt all the parties were entitled to impartial, disinterested appraisers. But to follow plaintiff’s contention would require us to assume, and assume in advance of a finding by the appraisers, that defendants’ attorneys would unduly influence Brandon and he in turn would unduly influence Harmon to the detriment of plaintiff’s rights. The high standing of the attorneys and the high standing of Mr. Brandon and Mr. Harmon, as appears from this record, forbids this assumption. Had this been a trial in court and had Mr. Brandon and Mr. Harmon been called as jurors, they could not have been successfully challenged for cause and it is doubtful if even a peremptory challenge would have been exercised. Had they not been restrained, we are convinced that the three appraisers, all men of high standing, would have reached a unanimous result that would have been fair to all the parties. Plaintiff thought it eminently proper to select as one of the appraisers Mr. Schmidt, a man with whom he had business relations, who had been his tenant for two years, and Mr. Schmidt thought it eminently proper to suggest Mr. Harmon with whom he had business relations, but plaintiff now insists that the selection of appraisers who have business relations with defendants’ attorneys would entirely vitiate their pro-. ceedings and render any award made by them a nullity. However, after he had learned of these relations on two occasions he recognized the validity of these proceedings by procuring an adjournment of the hearings, one on account of his attorney and the other on account of his own absence from the city. His contention is without merit. Courts should encourage the settlement of differences without resort to litigation and should not discourage men of experience and high standing from serving as jurors, arbitrators and appraisers.
At the first meeting of the appraisers Mr. Schmidt presented a memorandum stating the plaintiff’s viewpoint and contention; Mr. Brandon presented a memorandum stating defendants’ viewpoint and contention. That prepared by defendants’ attorney was more elaborate than that prepared for plaintiff, but defendants’ counsel is not to be criticized nor his clients’ rights disregarded because he devoted skill to the task in hand and carefully prepared a statement showing the contention of his clients and the figures upon which such contention was based; the memorandum prepared by him set forth the claims of defendants; it contained figures showing the income of the corporation; an audit of the company’s books later procured by plaintiff established the correctness of these figures. In view of the fact that the claims of both parties were presented in writing, we do not perceive that defendants’ attorney transcended his duty to his clients or to the appraisers by presenting as forcefully as he could his clients’ claim. Neither defendants nor their attorney appeared at this meeting. Plaintiff did appear and asked to be heard at that time. The appraisers declined to hear his side of the case in the absence of the other parties and fixed the next day for a hearing when both parties could be present. Plaintiff insists that he was deprived of presenting his contention, which right was fixed in the contract. But we think the appraisers pursued an orderly procedure. Both parties should be permitted to be present and both should be permitted to present their respective contentions and the orderly way required the presence of both sides at the same time. After plaintiff left the meeting the appraisers considered and all of them tentatively agreed upon some of the elements going to make up the value -of the stock but no final decision was reached and it was understood that both parties should be fully heard before a final appraisal was arrived at. After this first adjournment there were other adjournments, some due to absence from the city of some of thé appraisers, and as before noted, two for the accommodation of the plaintiff. Before a result had been reached the appraisers were restrained from further acting.
The time for completing the appraisal fixed by the contract and by the agreement for adjournments has, of course, long since expired. The delay has been occasioned by the injunction obtained by plaintiff. This does not defeat the right of defendants to a completion of the appraisal. The appraisers or a majority of them will fix a day of hearing and give notice to all interested parties who will be given full opportunity to be heard, after which the appraisers will fix the value of the stock.
The decree will be affirmed, with costs of this court and with the modification above noted made necessary by the delay resulting from this litigation.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Clark, J.
The parties made a contract by which plaintiff New Era Spring & Specialty Company was to manufacture an automobile spring bumper under certain claimed patent rights of defendant, and to pay to defendant a royalty on each bumper manufactured and sold. The bill was filed to restrain an action at law by defendant to recover an amount claimed to be due, and to set aside the contract because of fraud. The fraud claimed by plaintiff, in the evidence, disputed by defendant, is that defendant represented just before the making of the contract that his patents were “basic,” “absolutely new,” “nobody had anything like it,” that they gave “a perfect right to manufacture the bumper without interference from others,” that plaintiff company’s president, Daniels, having no experience with patents, relied on the representations, that they proved not to be true, that the patents were not basic, but that other patentees or their assigns had superior rights under other patents to manufacture and sell the article in question. The plaintiff company in preparing its plant and machinery for manufacturing this bumper expended nearly $10,000. Sales were made and. royalties paid from time to time until claims were made by other patent holders that the bumper was an infringement on other patents. After investigation, counsel, and negotiation, and to avoid trouble and litigation, plaintiff company recognized the dominant rights of another patentee, contracted with it to continue manufacturing, and to pay royalty to it. Plaintiff company also notified defendant that their contract relations were terminated. Plaintiffs were decreed the relief prayed. Defendant has appealed.
The trial judge found that defendant’s patents were infringements on other dominant patents. The evidence preponderates in favor of this finding. It will serve no useful purpose here to detail the evidence of infringement. But it is urged that the State court has no jurisdiction of the question. The bill was filed primarily to set aside the contract for fraud. The matter of infringement is involved collaterally. The State court has jurisdiction. It was held in Paul v. Collins, 191 Mich. 113, quoting syllabus:
“Though in cases involving collaterally the validity of a patent the State court may enter into the question, as, for example, the defense to a note that it was given for a void patent, and hence was without consideration, yet if the real issue between the litigants is the question, Who was in fact the inventor? the State courts are deprived of jurisdiction.”
Finding that defendant’s patents are dominated by other patents, fraud must be held to be established. The trial judge properly required plaintiffs to pay to defendant royalty on all bumpers manufactured under the contract between them.
The decree is affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
This is an action on a promissory note payable to the plaintiff, made by the Michigan-Arkansas Oil Corporation, and indorsed in blank before delivery by the other defendants, who are all directors of the corporation. It was a renewal of a note originally given for $2,500 on which $1,000 had been paid. It was given on November 1, 1922, payable in 60 days. The due date was therefore December 31, 1922, which was on a Sunday. The next day, January 1, 1923, was a legal holiday, so that it actually became due on January 2, 1923. The note contained no waiver of notice of presentment and dishonor. It was not paid, and under date of January 4, 1923, the plaintiff mailed each of the indorsers a letter notifying them of that fact. There followed considerable correspondence between Mr. Hammond, vice president and manager of the bank, and some of the defendants relative to payment, but no understand ing was reached and this suit was begun. The defense to the action was that the defendants had not been notified of the dishonor of the note within the time required by the statute, that there had been no waiver by them of such notice, and that therefore they were .discharged from liability. The case was tried in the circuit court without a jury. The plaintiff was given a judgment. The defendants Downes, Moore, and Wagar, bring error.
The circuit judge found that the notice of dishonor was sent to each of the defendants, but was not sent within the time fixed by the negotiable instruments law. That, nevertheless, the defendants were not discharged, because they were not entitled to notice for two reasons, first, because they were “original obligors, each personally liable for the payment of the debt,” and second, because they had waived notice.
That the defendants were original obligors and therefore not entitled to notice seems to be based on the conclusion reached by the circuit judge that the whole transaction, including the incorporation of the defendant company, was conceived in fraud and was fraudulent throughout. In his opinion, he says:
“It is a reasonable conclusion also that the whole transaction, from its inception, was a joint adventure prosecuted in the guise of a corporation with the intention on the part of the contributors to raise a specific fund to be turned over to Gibbs, as trustee, to enable him to prosecute, at will, his oil ventures in Arkansas to the mutual benefit of all concerned. Should these ventures prove successful, they would profit thereby, but should they prove otherwise, they would lose only the amount of their contributions and avoid personal liability for the corporation’s indebtedness, should any accrue. This conclusion is justified by the testimony of all the witnesses which clearly shows that the corporation was only a form, without any intention of the incorporators to use it for any lawful purposes for which a corporation is usually organized, but as only a means to an end. So far as the record shows, the corporation, as such never did any substantial business, except, perhaps, to give the notes in question and to send out a few notices and letters. All its business transactions were carried on by Gibbs, as trustee.”
There is nothing in the record to support this finding. The evidence seems all to the contrary. The corporation was organized by 18 men, each of whom subscribed and paid in $2,500 for his stock. They selected a board of directors of substantial business men. Director William L. Hammond was vice president of the First National bank of Ludington, and had been its manager for 28 years. Mr. Wagar was active vice president of the Edmore State Bank, Mr. Moore was in the insurance business, Mr. Downes was an accountant, and Mr. Gibbs was a broker and a promoter. With the exception of Gibbs, the directors were all men of good business standing in this State. And as to Gibbs it should be said that at that time he had the confidence of some very influential men connected with the Michigan Finance Company in Grand Rapids. The best evidence, however, of the good faith of all of the men in organizing this company is that they did not attempt to sell any stock to the general public, but backed the enterprise with their own money. And when it became necessary to raise more money they secured it by indorsing the company’s note instead of following the usual.method of selling stock. The record is clear that all of the directors, including Gibbs, had faith in the enterprise which they organized to promote. They acquired land in the oil region in Arkansas. They drilled several wells. The first one was a failure. The second was a gusher and produced a flow of several thousand barrels a day. From this well they got a good sized lake of oil which they sold, but in attempting to control the flow they stopped it entirely and got no more oil from that well. The third well at first produced about 250 barrels a day, but gradually settled down to a daily production of 40 barrels. This well produced a net income of $1,067 a month. The result of these drilling operations tended to increase the faith of the directors in the ultimate success of the business. In May, 1922, they had $8,000 in the treasury, and decided to borrow $5,000 more for the purpose of putting down another well. A part of this expense was obtained by the note in suit. At this time all of the parties believed in the business and thought that the company would be able to pay the note when it should become due. Director Hammond, who is vice president and manager of the plaintiff bank, but who did not indorse the note, and is here a witness adverse to the defendants, testified:
“This matter of procuring an additional $5,000 was thoroughly discussed by the various members of the board of directors and we agreed this proposition was coming out all right and would be a profitable turn. I voted for it, as one of the directors, that the loan should be made.”
From these facts and circumstances the circuit judge was wrong in holding that the corporation had its inception in fraud, that these defendants participated in the fraud, acted in bad faith in securing the loan for which the original note was given, and that they should be held as original obligors not entitled to notice of dishonor. There is no evidence to support his findings in this respect.
The second question to be considered is whether the defendants waived notice of dishonor. They were accommodation indorsers and as such each was entitled to notice of dishonor.
“When a negotiable instrument has been dishonored by * * * nonpayment, notice of dishonor must be given to * * * each indorser and * * * any indorser to whom such notice is not given is dis charged.” Negotiable instruments law, § 91 (2 Comp. Laws 1915, § 6130).
It is conceded that notice of dishonor was not given within the time fixed by the statute, and that therefore the defendants were discharged from liability unless they waived such notice.
“Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.” 2 Comp. Laws 1915, § 6150.
There is no evidence that, previous to the time when notice should have been given, the defendants said anything or did anything indicating that a waiver was intended. In fact, the bank did not rely on any belief of waiver in failing to take the necessary steps to fix the liability of the indorsers. It did give notice but too late to bind the defendants. Mr. Hammond, manager of the plaintiff bank, testified that the reason he did not give the notice in time was because he was very busy and it was not then convenient for him to do so. It is clear from the evidence that there was no waiver by any of the defendants prior to the time when notice should have been given. Was there a subsequent waiver? We think there was by Gibbs and Wagar. When the note became due and remained unpaid, Mr. Hammond, acting for the bank, got busy and carried on considerable correspondence with Gibbs and Wagar. There are letters in the record in which both of these defendants acknowledged their liability on the note. There is no evidence of such waiver on the part of defendants Downes and Moore. They are therefore discharged from liability. The question arising out of this situation is, Downes and Moore having been discharged, are the other defendants, Gibbs and Wagar, also released notwithstanding their waiver? If one of the indorsers is discharged are they all discharged? This depends on whether the defendants are to be deemed joint indorsers only or joint and several indorsers. If they are joint in-dorsers only all are discharged unless all receive notice or all waive notice.
“Prior to the negotiable instruments law, it was generally held that if two or more persons signed as joint indorsers, none could be compelled to pay the holder, unless notice was given to all, or waived by all, because the contract of endorsement involved only a contingent joint liability which was governed by common-law principles applicable to joint contracts.” Case v. McKinnis, 32 A. L. R. 167, 182 (107 Or. 223, 213 Pac. 422).
The negotiable instruments law of this State has not changed the common-law rule except as to joint payees and joint indorsees who indorse. It is so stated in section 70 of the negotiable instruments law, being section 6109, 2 Comp. Laws 1915, as follows:
* * * “Joint payees or joint indorsees who indorse are deemed to indorse jointly and severally.”
The defendants here do not come within this statute because they were neither joint payees nor joint in-dorsees. Nor were they prior and subsequent in-dorsers. They indorsed the note in blank before delivery and were joint accommodation indorsers only, each entitled to notice of dishonor and all discharged unless each and all of them received such notice or each and all waived it. None of them were severally liable to the holder. Inasmuch, therefore, as Downes and Moore did not receive notice of dishonor in time to bind them and did not waive it either before or after the omission to give due notice, the other joint defendants who did waive are, notwithstanding their waiver, discharged from liability.
The other questions presented by the record relative to the conduct of the defendants in relation to the business affairs of the corporation in as far as they are supported by any evidence, are disposed of ad versely to plaintiff’s claims in Haynes Automobile Co. v. Shepherd, 220 Mich. 231 (25 A. L. R. 960), and Case v. McKinnis, supra.
Judgment went against the Michigan-Arkansas Oil Corporation by default. As to the other defendants the judgment is reversed, with costs, and without a new trial.
Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. Bird, J., did not sit. | [
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Fellows, J.
On January 4, 1923, defendants Blaz Padgen and Anna Padgen, his wife, entered into an agreement with defendant Baldassare Amore to sell him a piece of property in Detroit and to erect thereon a two-story frame store and dwelling for the sum of $9,300. On May 28th, following, a supplemental agreement in writing was entered into providing for a brick veneer building, and increasing the consideration $850. Neither of these contracts was recorded. Later another change was orally agreed upon making the material solid brick. It also fairly appears from the record that other changes were made and some extra work or extras were put on. The record does not clearly establish the amount these changes and extras came to. On August 29, 1923, defendants Padgen entered into an agreement with plaintiff Joseph Bucilli to sell him the same premises for $12,000, and on the following day they executed to him a deed with full covenants of warranty and he paid $4,000 in cash on that day and shortly after paid another $1,000 in cash; the balance of the purchase price was secured by two mortgages, one for $6,000 and one for $1,000.
The testimony is convincing that plaintiff not only had constructive notice but also actual knowledge of Amore’s contract, and we are likewise convinced that plaintiff believed the misrepresentations of Padgen that Amore had defaulted on his contract and that it could and would be forfeited and terminated. That plaintiffs were defrauded and grievously so, is beyond question. The trial judge was bound under the facts to sustain the validity of the Amore contract as against the plaintiffs; this he did. He gave plaintiffs a personal decree against defendants Padgen and made it a lien on the premises; he also required defendant Amore to make his payments into court. There were numerous liens filed and a suit was pending to fore close them at the time the ease was heard in the court below and jurisdiction was retained of this case to make such further order as might be necessary after the decree was entered in the lien case. The plaintiffs alone appeal. We therefor consider only the question raised on their appeal.
We agree with the conclusion reached by the trial judge and with the decree entered with one exception which we will now state. The trial judge reached the conclusion that the agreement to change the construction of the building being erected on the premises to brick and for the extras was an independent agreement to be enforced only by Padgen in an action at law against Amore or by filing a lien. We are clearly of the view that it was but a modification of the original agreement. Defendant Amore was not only buying the land but he was also buying a completed building and this is what he has received. In the original agreement the building contracted for was a frame building, in the supplemental written agreement the building contracted for was of brick veneer and the purchase price was increased by $850; in the oral agreement the building contracted for was of brick and Amore was to pay the added cost. We do not think it was an agreement independent of and separate from the original contract, but was a further modification of it and that the extra cost became a part of the purchase price to be paid for the lot and completed building.
Plaintiffs’ lien will attach to the full purchase price as modified by the oral agreement and Amore will make his payments to them until the lien is satisfied therefrom unless it is sooner discharged by payment by defendants Padgen.
It is of no moment to defendant Amore whether he pays the purchase price as modified by the oral agreement to plaintiffs or to defendants Padgen so long as he is protected, so no costs should be awarded against him by reason of this modification of the decree. As we have noted, the testimony is not sufficiently definite to permit a finding by us of the amount which should be paid for the extras so the case must be remanded for a determination of that question. Doubtless by this time the lien case has been disposed of and such further order may be made as the decree in that case renders necessary or advisable.
A decree will be here entered in accordance with this opinion. Plaintiffs will recover costs against defendants Padgen. No other costs will be allowed.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, and Wiest, JJ., concurred. Bird, J., did not sit. | [
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Fellows, J.
On April 7, 1919, plaintiff adopted the provisions of Act No. 166, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 5870 [24-32]). February 24, 1920, a special election was held and a portion of Buena Vista township was annexed to the city of Saginaw, effective April 6, 1920. The portion annexed was a part of defendant school district. On April 1, 1920, the township board of Buena Vista township met with a committee consisting of four members of plaintiff’s board and adopted a resolution making the territory annexed to the city of Saginaw a part of plaintiff’s district. This proceeding was evidently taken under the provisions of Act No. 86, Pub. Acts 1909 (2 Comp. Laws 1915, § 5860 et seq.). School property located in the annexed territory of the value of $14,000 was turned over to plaintiff and it assumed debts of defendant district aggregating $9,164.06. In 1920 the primary school interest fund was apportioned by the superintendent of public instruction in accordance with the provisions of section 5644, 2 Comp. Laws 1915, on the school census of 1919. When this census was taken defendant had 988 students within the provisions of the act, 930 of whom were taken over by plaintiff in the annexation. November 1, 1920, defendant received $9,830 primary school money and $241.33 library money from the State through the prescribed channels. This action is brought to recover the proportionate share of the money so received.
In Collins v. City of Detroit, 195 Mich. 330 (followed in Board of Education v. Bacon, 196 Mich. 15), this court held that the change in the territorial limits of a city did not of itself affect the school districts within the annexed territory, that proceedings under the act of 1909 were necessary. The opinion in this case was filed March 30, 1917. Act No. 166, Pub. Acts 1917, wasi approved May 2, 1917, and it is quite probable that it was passed to obviate in the future the effect of that decision. This probability is somewhat strengthened by the fact that the legislature had already passed Act No. 18, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 5870 [77-82]), approved March 29th, entitled:
“An act to provide for the consolidation of school districts in territory annexed to cities with school districts of such cities.”
But Act No. 18 did not go as far as Act No. 166 and it was passed before the decision in the Collins Case. Whether it was repealed by implication by the latter act is a question not necessary to decide. Section 6 of Act No. 166 is as follows:
“Whenever hereafter any territory shall be annexed to any city, village or township forming the whole or a part of a school district of the third or fourth class, the territory so annexed shall become a part of the contiguous school district embracing the whole or some part of said city,; village or township, and all property of any school district, situated wholly upon the territory so annexed, shall become the property of the school district to which the said territory is adjoined, and said last named district shall assume and pay such proportion of th'e then existing school indebtedness of the district from which such territory is taken as the assessed value of the taxable property in the territory annexed shall bear to the total assessed value, before such annexation was made, of the taxable property of the entire district from which such territory is taken, the value as shown by the assessment roll for the year preceding the annexation to be used as the basis of the computation.”
By the plain language of this section upon the annexation of the portion of Buena Vista township to the city of Saginaw, that portion of defendant district so annexed to the city automatically becomes a part of plaintiff’s district and the proceedings taken under the act of 1909 were unnecessary. At the same time title to property “situated wholly upon the territory so annexed” passed to plaintiff and it became liable for its statutory portion of defendant’s indebtedness. The act, however, makes no provision for a division of the other property, including uncollected taxes, as did Act No. 141 (Comp. Laws Supp. 1922, § 5870 [1-23]), of the same session which applies to larger districts.
Before going further it should be stated’ that the provisions of section 5644, 2 Comp. Laws 1915, requiring the superintendent of public instruction to make the apportionment on the basis of the school census for the preceding year, are mandatory. Manifestly there must be some fixed basis upon which the apportionment is to be made or utter confusion would follow. In the wisdom of the legislature the school census for the preceding year was deemed such a basis and it was used in the instant case.
The trial judge denied plaintiff’s right to recover on the authority of Township of Saginaw v. School District, 9 Mich. 541. The earnest insistence of plaintiff’s counsel that if this case is not in effect overruled by Board of Sup’rs of Ontonagon Co. v. Board of Sup’rs of Gogebic Co., 74 Mich. 721, it should now be overruled or at least modified, prompts us to examine the authorities at some length. We shall reserve our own cases for the last.
In considering the question here involved, we should bear in mind that we are not considering a case of consolidation of districts where one district is wiped out. This annexation took but a part of defendant’s territory and left defendant an existing corporation with a portion of its territory intact. Cases of consolidation will, therefore, not be considered.
In Inhabitants of Hampshire v. Inhabitants of Franklin, 16 Mass. 76, it was said by Chief Justice Parker:
“By general principles of law, as well as by judicial construction of statutes, if a part of the territory and inhabitants of a town are separated from it, by annexation to another, or by the erection of a new corporation, the remaining part of the town, or the former corporation, retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties; unless some express provision to the contrary should be made by the act authorizing the separation.”
In Hartford Bridge Co. v. Town of East Hartford, 16 Conn. 149, it was said:
“We suppose it to be well settled, that, when a part of the inhabitants and territory of an older town are erected into a new corporation, the old town retains all the property, rights, and privileges formerly belonging to it, and is subject to all its former duties and liabilities, at least, as it regards property which has no fixed location in the new town, as lands, buildings, etc.”
The Supreme Court of the United States in Laramie County v. Albany County, 92 U. S. 307, thus stated the rule:
“Regulation upon the subject may be prescribed by the legislature; but, if they omit to make any provision in that regard, the presumption must be that they did not consider that any legislation in the particular case was necessary. Where the legislature does not prescribe any such regulations, the rule is that the old corporation owns all the public property within her new limits, and is responsible for all debts contracted by her before the act of separation was passed. Old debts she must pay, without any claim for contribution; and the new subdivision has no claim to any portion of the public property except what falls within her boundaries, and to all that the old corporation has no claim.”
Two cases cited by defendant’s counsel are quite in point. They are State, ex rel. School District, v. School District, 90 Mo. 395 (2 S. W. 420), and Union Township v. Oakdale Township, 30 Okla. 708 (120 Pac. 968, 39 L. R. A. [N. S.] 284). In the Missouri case the question was like the one before us and it was there said:
“That it was the duty of the State superintendent and of the county clerk to make the apportionment, at the time and on the enumeration then before them is not denied. This duty is clearly enjoined upon them by section 7122, Rev. Stat. 1879. At the time these apportionments were made they had, and could have had, before them, only the enumeration of 1881. It cannot be said that these officers have done other than follow the plain dictates of the statute. It would seem to be fair that the fund should follow the children, on whose account it was apportioned, into the new district; but the statute makes no provision for such cases, and we are not at liberty to make a law to accord with what may appear to us to be an equitable distribution.”
In the Oklahoma case it was held (we quote from the syllabus):
“Where part of an existing township was detached by an order of the county commissioners in 1904, and the part so detached was organized as a new township, no provision being made in the order, and no statute existing for the division or apportionment of the assets of the old township, held, that the new township can not recover of the old any part of the cash in the hands of the county treasurer and due the old township at the time of division, or received by the treasurer for it, after division, from tax levies made prior to the division.”
See, also, 24 R. C. L. p. 566; 35 Cyc. p. 850; 1 Dillon on Municipal Corporations (5th Ed.), p. 626; Voorhees on the Law of Public Schools, § 20; Whittier v. Sanborn, 38 Me. 32; Board of School Com’rs of Indianapolis v. Center Township, 143 Ind. 391 (42 N. E. 808); Town of Depere v. Town of Bellevue, 31 Wis. 120 (11 Am. Rep. 602).
Doubtless the extreme holding is found in City of Winona v. School District, 40 Minn. 13 (41 N. W. 539, 3 L. R. A. 46, 12 Am. St. Rep. 687). In that case both the city and the school district of the city were operating under special acts. Construing these acts it was held that when the city expanded its territorial limits and annexed additional territory, such territory thereby became a part of the city school district, but that the old school district which still existed retained title to all the property including that within the annexed territory.
The authorities clearly demonstrate, we think, that this court applied the correct rule in Township of Saginaw v. School District, supra, and that it should not be modified or overruled. Nor do we think it was overruled by Board of Sup’rs of Ontonagon Co. v. Board of Sup’rs of Gogebic Co., supra. While there is some language in that case which gives color to the contention of plaintiff’s counsel, it must be borne in mind that the question involved in that case and the only one necessary to decision was whether mandamus would lie.
We shall now examine some others of our own cases. In Deckerville School District v. School District, 131 Mich. 272, a very similar question to the one now before us was involved. It was there held (quoting from the syllabus):
“Where a legislative act dividing a school district provided that each district should receive one-half of all moneys, rents, and profits due to the district divided up to the time the act took effect, which was April 18th, the new district was not entitled to a share of the primary school interest fund apportioned to the old district in the following November, though the apportionment was based on the number of school children for the previous year.”
Board of Health of Buena Vista Township v. City of East Saginaw, 45 Mich. 257, was an action of ejectment to recover possession of a cemetery. A portion of the township which included the cemetery had been annexed to the city. Townships had authority to own cemeteries if necessary outside their boundaries (1 Comp. Laws 1915, § 5045). In holding that the plaintiff was entitled to maintain the action, it was said:
“It is very clear that the legal identity of a township remains unchanged after division, so far as corporate existence is concerned, unless otherwise provided by law. Our statutes have not extinguished the corporation known as the township of Buena Vista. Its authority as a township does not extend over the city, but its property remains unless divested. * * *
“There being no statute applying to cities in general, or to this city in particular, the rules applicable to townships, the common-law rule, must prevail, which leaves the property of a corporation unaffected by such changes as leave its corporate character in existence, and do not destroy its corporate identity. There is no common-law rule which can transfer property from one corporation to another without grant.”
And in Township of Comins v. Township of Harrisville, 45 Mich. 442, it was held (quoting from the syllabus):
“Assumpsit on the common counts will not lie at the suit of a township to recover from the township from which it has been set off the amount of school and township taxes collected by the latter under an assessment made upon the territory of the former before its township organization was perfected.”
See, also, People, ex rel. School District No. 1, v. Ryan, 19 Mich. 203; Courtright v. Brooks Township Clerk, 54 Mich. 182; Township of Springwells v. Wayne County Treasurer, 58 Mich. 240; Wayne County Savings Bank v. School District, 152 Mich. 440.
While the legislature has the unquestionable right in creating new school districts to transfer and provide for the transfer of the property of the old school district to the new district because it is public property (Attorney General, ex rel. Kies, v. Lowrey, 131 Mich. 639 [affirmed in Attorney General, ex rel. Kies, v. Lowrey, 199 U. S. 233 (26 Sup. Ct. 27)]), in the absence of express legislation on the subject the property of the old district except that in the annexed territory still remains its property unaffected by the annexation. Individuals and private corporations may be liable in an action for money had and received where they hold money equitably belonging to another, but the rights, duties and liabilities of public corporations which are. the creatures of the legislature are fixed by the legislature. No act of the legislature has been called to our attention, and we have found none, which changes the rule which is established by the authorities we have cited. We agree with the opinion of the trial judge in which he said:
“Upon the hearing of the argument the court was impressed with the equitable claim of the plaintiff and its right to recover. However, upon a careful examination and analysis of the statutes pertaining to the subject, the court finds no law giving to the city any right to make claim to any portion of this fund, notwithstanding the fact that it might be, .and, in the opinion of the court is, as a matter of equity, entitled to the same.”
- The judgment must be affirmed.
McDonald, C. J., and Clark, Sharpe, Moore, Steers, and Wiest, JJ., concurred. Bird, J., did not sit. | [
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McDonald, C. J.
This action is brought to recover the value of a car load of hardwood flooring which it is claimed the defendant converted by unauthorized delivery. The plaintiffs are lumber dealers at Big Rapids, Michigan. On . July 22, 1920, they shipped one car of No. 1 grade maple flooring via the Pere Marquette Railway Company and connecting carriers to the order of themselves, under the name of Ward Brothers, at Brockton, Massachusetts, “Notify Taunton Lumber Company, Brockton, Mass.” The* order bill of lading with draft attached for $3,927.04 was sent to the Fidelity Trust Company of Boston, the shipment having been made on an order from Albert C. Place, a lumber broker of Boston, for the Taunton Lumber Company. The car arrived at Brockton on August 21st, and was placed on the storage tracks of the terminal carrier where it remained until August 25th, when it was transferred to a private side track of the Taunton Lumber Company without a surrender of the bill of lading. The foreman of the lumber company broke the seals of the car, unloaded about 4,000 feet of lumber and removed it to the warehouse of the Taun-ton Lumber Company where it was inspected and afterwards returned to the car. No notice of rejection was given to the railway company or to the plaintiffs, and no further attention was paid to the car by the lumber company. It remained upon its private track until about September 8th. In the meantime the draft not having been paid and having no information as to the whereabouts of the car, the plaintiffs sent their agent, Mr. Bugai, to Brockton to investigate. He found that the lumber had been rejected by the Taunton Lumber Company; that the car still stood on its private track with the doors open; and that some of the flooring had been damaged by rain. He stated the facts as he had found them to the railroad company, and was requested to dispose of the lumber to the best advantage, leaving the matter of loss adjustment for further consideration. Accordingly, the car was forwarded to Boston where it was subsequently sold for much less than the original invoice price. The action for conversion is based upon the claim that on the 25th day of August, 1920, the railroad company delivered the car of lumber to the Taunton Lumber Company without a surrender of the bill of lading. The defendant denies a delivery. The case was tried by the court without a jury. Findings of fact and of law were filed. Defendant proposed amendments which were denied and exceptions thereto duly taken. Judgment was entered for the plaintiffs in the sum of $2,890.42. The defendant brings error.
The material facts are not disputed. The question presented is solely one of law. If the defendant is to be held for conversion it is because the destination carrier delivered this car load of lumber to the Taun-ton Lumber Company without a surrender of the bill of lading. That the bill of lading was not surrendered is undisputed. Therefore, the only question is whether there was a delivery. It is the custom of the railroad company at Brockton, in handling shipments of this kind, to place the car on its hold or storage tracks and keep possession of it until the bill of lading is surrendered. When that is done the car is switched to the private siding of the Taunton Lumber Company. This siding is owned and exclusively used by the Taunton Lumber Company. It was not used by the railroad company either for necessity or convenience. It was the only place where the railroad made all deliveries to the lumber company. The railroad company understood that when a car was placed upon that siding its shipment was terminated. It had no further dominion over it. From that time the Taunton Lumber Company had complete and exclusive possession of the car and could break the seals and unload the contents. Mr. Hanscom, the chief clerk in the Brockton freight office, testified:
“Q. The car is delivered when placed on that siding, isn’t it?
“A. Ordinarily.”
“Q. An order notify car, when it is placed, is delivered and the consignee has the right to break the seals and do as he sees fit?
“A. If placed on his track, yes.”
When the car in question arrived it was placed in the railroad yard on storage track No. 9, a track inaccessible for delivery purposes. It remained there for several days when, at the request of the Taunton Lumber Company, it was switched onto its private siding without the surrender of the bill of lading. After it went upon this siding, the railroad company had no control of the car. It had no right to go upon the siding, except to check the car for the purpose of charging demurrage against it. By this act of placing the car upon the private siding, it gave up possession and all dominion over the car. There was nothing more it could do to complete the shipment. As stated by the trial court:
“There was no further or different manual or physical act to be done by the carrier in addition to what it did do in order to deliver this car to the Taunton Lumber Company and to give the lumber company dominion over this car of lumber. Had the draft been paid and the bill of lading presented to the carrier, it would have moved and placed the car just as it was done. * * *
“As between the railroad company and the Taunton Lumber Company, the understanding and custom is that a car is delivered by the railroad company to the Taunton Lumber Company when it is placed by the railroad company upon this private siding of the Taunton Lumber Company.
“By reason of the doors of the car being left open, the lumber in the car was damaged in a substantial sum and amount by being exposed to the weather and by being wet and rained upon.” * * *
On the question of delivery the controlling facts in this case are that the carrier placed the car of lumber on a private siding owned and exclusively used by the Taunton Lumber Company; that this siding was the usual and customary place where shipments were delivered to the lumber company; that the railroad company relinquished all dominion over the shipment, and placed it in the possession and in the exclusive control of the lumber company; and that while in possession of the lumber company the shipment was injured. These facts constitute a complete delivery of the car of lumber to the Taunton Lumber Company, and consequently a conversion of the plaintiffs’ property.
It has been suggested that there could be no conversion because delivery could not legally be made without a surrender of the bill of lading. The delivery was legal, but wrongful, because it was unauthorized. The circuit judge correctly determined the issue.
The judgment entered is affirmed, with costs to the plaintiffs.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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FELLOWS, J.
(after stating the facts). The testimony, and we have quoted all of it on the subject, clearly establishes that plaintiff at the time he received the injury was employed repairing locomotives used in interstate commerce. If he was within the purview of the Federal act, his action was not season ably brought; Bement v. Railway Co., 194 Mich. 64 (L. R. A. 1917E, 322), where the appropriate provision of the act is quoted. If the Federal act applies, it is exclusive as the authorities we shall presently cite demonstrate. Numerous cases involving the Federal act have been before this court. We shall first examine some of them. In Gaines v. Railway Co., 181 Mich. 376, the plaintiff received his injuries while at work repairing a car used in interstate commerce. It was held that the work plaintiff was doing when he received his injuries was a part of interstate commerce and his remedy under the Federal act, and Pedersen v. Railroad Co., 229 U. S. 146 (33 Sup. Ct. 648, Ann. Cas. 1914C, 153), was cited. In the Pedersen Case it was said:
“That the defendant was engaged in interstate commerce is conceded, and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines; and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any deféct or insufficiency * * * in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment’ used in interstate commerce. But, independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? See McCall v. California, 136 U. S. 104, 109, 111 (10 Sup. Ct. 881); Second Employers’ Liability Cases, 223 U. S. 6, 59 (32 Sup. Ct. 169, 38 L. R. A. [N. S.] 44); Zikos v. Navigation Co., 179 Fed. 893, 897, 898; Central R. Co. of N. J. v. Colasurdo, 192 Fed. 901; Darr v. Railroad Co., 197 Fed. 665; Northern Pacific R. Co. v. Maerkl, 198 Fed. 1. Of course, we are not here concerned with the construction of tracks, bridges, engines or cars which have not as yet become instrumentalities in such commerce, but only with work of maintaining them in proper condition after they have become such instrumentalities and during their use as such.”
In Sims v. Railway Co., 196 Mich. 114, plaintiff was engaged as an assistant car repairer in defendant’s shop. This court held that under the Federal act the defense of assumed risk was available and that a verdict should have been directed on that ground. In the recent case of Britton v. Railway Co., 230 Mich. 628, plaintiff was engaged in defendant’s machine shop at Montpelier, Ohio; he worked repairing engines. It was held that he was engaged in interstate commerce and defendant was liable under the Federal act. In Fernette v. Railroad Co., 175 Mich. 653 (on rehearing 672), the train was an intrastate train but it contained two cars carrying merchandise billed to points outside the State. It was held that this impressed an interstate character on the train and that the Federal act applied and was exclusive. In other cases in this court it has been held that employees who were not engaged directly in the movement of interstate commerce but whose work concerned the instrumentalities-necessarily a part of such movement were engaged in interstate commerce and under the Federal act. In Collins v. Railroad Co., 193 Mich. 303, a lineman stringing wires; in Cholerton v. Railway, 199 Mich. 647, an employee in the bonding crew of an intrastate interurban road which carried interstate shipments; in Guy v. Railroad Co., 198 Mich. 140, an employee engaged in coaling and placing water in tanks of engines engaged in interstate commerce; in Jorgensen v. Railway Co., 189 Mich. 537, a fireman on a work train; and in Chapman v. Railroad Co., 196 Mich. 671, an employee engaged in unloading bridge timbers.
After the decisions in New York Cent. R. Co. v. Winfield, 244 U. S. 147 (37 Sup. Ct. 546, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139), and Erie R. Co. v. Winfield, 244 U. S. 170 (37 Sup. Ct. 556, Ann. Cas. 1918B, 662), this court was called upon to determine whether our workmen’s compensation act applied to employees in interstate commerce. Carey v. Railway Co., 200 Mich. 12. Speaking for the court and having reference to the New York Centred Case, it was said by Justice Stone :
“In other words, it was there held that, by the Federal act, congress manifested its will to cover the whole field of compensation or relief for injuries suffered by railroad employees engaged in interstate commerce, or at least the whole field of obligation of carriers relating thereto; and that it thereby withdrew the subject wholly from the domain of State action.
“The doctrine announced is that by the Federal legislation employees of an interstate railroad company are not within the purview of a State workmen’s compensation act.”
- See, also, Miller v. Railway Co., 201 Mich. 72; McKenna v. Railroad Co., 202 Mich. 103.
Our decisions have, we think, quite consistently followed the rule announced in Pedersen v. Railroad Co., supra, and by them we are committed to a doctrine which prevents an affirmance of this case without overruling some at least of them, particularly the Gaines, Sims, and Britton Cases. The act being an act of congress, and a valid one (Second Employers’ Liability Cases, 223 U. S. 1 [32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44]), we should, of course, follow the •decisions of the court of last resort of the nation, but we should not recede from holdings in consonance with the earlier holdings of that court unless we are clearly convinced that the rule there announced has been modified by that court or exceptions engrafted upon it which are applicable to the case in hand. Let us, therefore, take up and consider some of the decisions of the Supreme Court of the United States to determine whether it is our duty to recede from our former holdings. In Minneapolis, etc., R. Co. v. Winters, 242 U. S. 353 (37 Sup. Ct. 170, Ann. Cas. 1918B, 54), the proof as to the service of the locomotive fell far short of that contained in this record, and the paucity of proof was commented upon in the opinion. It was there held (we quote from the syllabus):
“The injury occurred while plaintiff was repairing an engine. The engine had been used in interstate commerce before the injury and was so used after-wards, but there was nothing to show that it was permanently or specially devoted to such commerce, or assigned to it at the time. Held, not a case within the Federal employers’ liability act.”
Upon the authority of this case Chicago, etc., R. Co. v. Kindlesparker, 234 Fed. 1, was reversed (246 U. S. 657 [38 Sup. Ct. 425]). But in the Kindlesparker Case the repairs took 79 days and the engine was withdrawn from both intra- and interstate service for that period of time. The circuit court of appeals of this circuit entertained the view that this was not controlling and upon the authority of Law v. Railroad Co., 208 Fed. 869 (L. R. A. 1915C, 17), sustained liability. In Industrial Commission v. Davis, 259 U. S. 182 (42 Sup. Ct. 489), however, the Supreme Court did hold that time was to be considered. In that case the engine was withdrawn from service December 19, 1918, and the repairs were not completed until February 25, 1919, and the engine was not put back into service until a week later; it had to be shipped and dismantled and it would seem was practically rebuilt. Manifestly one employed in building or rebuilding a locomotive is no more engaged in interstate commerce than a miner engaged in mining coal which is afterwards used in interstate commerce (Delaware, etc., R. Co. v. Yurkonis, 238 U S. 439 [35 Sup. Ct. 902]), and the court so held. Likewise an engine used in interstate commerce may be withdrawn from such service for so long a period as to lose its identity and be no longer a part of such commerce and no longer an instrumentality of it. These three cases tend more strongly to sustain plaintiff’s contention than any others which have been called to our attention or which we have been able to find. They are, we think, distinguishable from the case made by this record. Other cases should, however, be considered. In Illinois Cent. R. Co. v. Behrens, 233 U. S. 473 (34 Sup. Ct. 646, Ann. Cas. 1914C, 163), the employee was engaged in switching intrastate cars onto various tracks in the city. The railroad was an interstate carrier but the work being performed was purely intrastate. Liability under the Federal act was denied. In Shanks v. Railroad Co., 239 U. S. 556 (36 Sup. Ct. 188, L. R. A. 1916C, 797), an employee was injured while taking down and putting up fixtures in a repair shop. It was held that he was not engaged in interstate commerce. In Chicago, etc., R. Co. v. Harrington, 241 U. S. 177 (36 Sup. Ct. 517), the employee was moving coal from storage tracks to coal shutes where it was to be used later in interstate commerce. Liability under the Federal act was denied because he was not engaged in interstate commerce as he was doing “nothing more than putting the coal in a convenient place from which it could be taken as required for use.” But in Philadelphia & Reading R. Co. v. Hancock, 253 U. S. 284 (40 Sup. Ct. 512), where a car of coal was moving from the mine to the yard where it was to be weighed and billed to destination in another State, it was held that it was a part of an interstate movement and liability under the Federal act was sustained. In North Carolina R. Co. v. Zachary, 232 U. S. 248 (34 Sup. Ct. 305, Ann. Cas. 1914C, 159), in sustaining liability under the Federal act, it was said:
“It is argued that because, so far as appears, deceased had not previously participated in any movement of interstate freight, and the through cars had not as yet been attached to his engine, his employment in interstate commerce was still in futuro. It seems to us, however, that his acts in inspecting, oiling, firing, and preparing his engine for the trip to Selma were acts performed as a part of interstate commerce, and the circumstance that the interstate freight cars had not as yet been coupled up is legally insignificant.”
And the Pedersen Case was cited.
In Philadelphia & Reading R. Co. v. DiDonato, 256 U. S. 327 (41 Sup. Ct. 516), a watchman at a railroad crossing was held to be engaged in interstate commerce and that it was unimportant whether he was flagging an interstate or intrastate train when the accident occurred. In Philadelphia, etc., R. Co. v. Smith, 250 U. S. 101 (39 Sup. Ct. 396), an employee who did the cooking and made the beds for a gang of bridge carpenters was held to be engaged in interstate commerce within the meaning of the Federal act. Likewise the act was held to apply in Erie R. Co. v. Collins, 253 U. S. 77 (40 Sup. Ct. 450), where the employee attended the signal tower and switches and operated a gasoline engine in pumping water for the engines; in Erie R. Co. v. Szary, 253 U. S. 86 (40 Sup. Ct. 454), where the employee was engaged in drying sand for use in engines, both interstate and intrastate; in Louisville, etc., R. Co. v. Parker, 242 U. S. 13 (37 Sup. Ct. 4), where the accident occurred while moving an intrastate car, but there was some testimony that the ultimate movement contemplated reaching an interstate car, and in New York Cent. R. v. Carr, 238 U. S. 260 (35 Sup. Ct. 780), where the employee was injured while on an intrastate car, but where the movement was to cut out cars of an interstate train.
We shall not discuss cases cited from State courts other than our own, although they have been examined. Nor shall we discuss the divergent views of the several Federal circuit courts of appeal. One of such decisions, that in Northern Pacific R. Co. v. Maerkl, 198 Fed. 1, which has been cited with approval by the Supreme Court, should be noted. In that case it was said:
“It is equally plain, we think, that those engaged in the repair of such a car are as much engaged in interstate commerce as the switchman who turns the switch that passes the car from the repair shop to the main track to resume its place in the company’s system of traffic, or any of the operatives who thereafter handle it in such traffic.”
An examination of the authorities is not persuasive that we should recede from our former holdings. Locomotives are a part and an indispensable part in the movement of interstate commerce, they are an instrumentality and an important instrumentality in such movement, as important as the bridges and roadbed. Not only does every consideration of public safety demand that they be kept in repair, but the express mandate of congress so requires (36 U. S. Stat. p. 913, as amended, 38 U. S. Stat. p. 1192). These repairs may be so extensive as to temporarily take them out of service in such commerce and they may be so minor as to require but a few hours of attention. Plaintiff was employed in such repair work, both large and small. Upon this record we hold he was engaged in the work of interstate commerce and the remedy afforded by the Federal act was exclusive. It was unimportant that he was temporarily leaving defendant’s grounds to get something to eat. North Carolina R. Co. v. Zachary, supra; Erie R. Co. v. Winfield, supra.
It follows that the judgment must be reversed and the case remanded with directions to enter judgment for defendant non obstante veredicto.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. Wiest, J., concurred in the result. | [
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